Category: Current Events

The highest measure of prosecutorial judgment is knowing when not to proceed.

It is remarkable how a single sentence buried deep within an otherwise routine legal filing can resurrect lessons long thought settled. Sometimes a legal submission does more than advance an argument. Occasionally, almost unexpectedly, it reminds us that the strength of legal institutions depends not only on the rules that govern them but also on the judgment of those entrusted with applying them.

The Prosecution’s submission in Banda did exactly that. Before I finished reading it, I found myself transported more than forty years into the past. Continue reading “THE HARDEST PROSECUTORIAL DECISION: Beyond the Decision to Charge”

Part II — THE DISCIPLINE OF CHOOSING: Toward a Forensic Method of Institutional Judgment

The Office confers authority, not judgment; judgment must already exist.

Part I argued that before an institution entrusts extraordinary constitutional authority, it must first determine what qualities the Office of the Prosecutor (OTP) requires and whether the available evidence justifies confidence that those qualities genuinely exist in the individual seeking to occupy it. Part II asks the next question: How should a mature institution reach that judgment?   

Not how should it identify an impressive candidate. Not how should it reward a distinguished career. Not how should it reconcile political, regional, or diplomatic considerations. Important though those considerations may be, they are secondary. The central inquiry is evidentiary: What should persuade an institution that one individual, rather than another, should be entrusted with extraordinary constitutional authority?

Institutions do not appoint ideals. They entrust authority to people. Their responsibility is neither to identify perfection nor to select, in some abstract sense, “the best” candidate. Such conclusions inevitably reflect differing views of excellence, experience, personality, or leadership. Reasonable people will disagree. Rather, through disciplined inquiry, the institution must satisfy itself that the available evidence reasonably and confidently supports the conclusion that the individual it will select possesses the judgment, character, temperament, leadership, executive ability, and moral authority necessary to exercise extraordinary public power responsibly over time. Continue reading “THE OFFICE BEFORE THE OFFICEHOLDER: Merit, Judgment, and Institutional Leadership – Part II — Toward a Forensic Method of Institutional Judgment”

WHAT THE OFFICE REQUIRES: Judgment Before Power

Before an institution entrusts power, it should first determine what qualities the responsible exercise of that power demands.

There are times when experience teaches us less by providing new answers than by revealing that we have been asking the wrong question.

Several years ago, I wrote (here and here) about the election of the Prosecutor of the International Criminal Court (ICC). My purpose then was straightforward. I sought to identify the qualities the next Prosecutor should possess. Drawing on decades of experience before national and international courts and tribunals, I compiled what I regarded as the essential attributes of an effective chief prosecutor: extensive prosecutorial experience, sound judgment, strategic thinking, leadership, management, diplomacy, professional gravitas, legal knowledge, and, not least, a restrained ego. I continue to believe those qualities remain indispensable.

Looking back, however, I have come to think that I approached the matter from the wrong direction. Continue reading “THE OFFICE BEFORE THE OFFICEHOLDER: Merit, Judgment, and Institutional Leadership – Part I of a Two-Part Series on Institutional Judgment and the Selection of the ICC Prosecutor”

When the facts change, I change my mind. What do you do, sir?

– commonly attributed to John Maynard Keynes

A montage is a sequence of separate images assembled to create a particular impression. Each image may be entirely authentic. The power of the montage lies not in fabrication, but in selection, arrangement, timing, and presentation. It does not merely depict reality; it constructs a narrative about reality.

That distinction matters, perhaps more than ever.

I deliberately borrow the French expression l’affaire. Like the great public affairs that have periodically consumed institutions, this has long since ceased to be merely an investigation into allegations. It has become a contest over narratives, institutional credibility, public legitimacy, and, ultimately, the ICC’s reputation. Continue reading “When Justice Becomes a Montage: Public Narratives, L’Affaire Khan, and Institutional Legitimacy”

I disapprove of what you say, but I will defend to the death your right to say it.

-Evelyn Beatrice Hall, under the pseudonym S. G. Tallentyre (widely misattributed to  Voltaire)

One of the prerogatives of being the owner of a self-funded eponymous blog is that I get to decide what I want on it.  However, as the saying goes,  “With great power comes great responsibility.”¹  When it comes to the hundreds of comments to my posts, I believe I have only exercised my power of non-publication twice in the dozen years I have been hosting this blog.  In both cases, I did so because I felt an attack on another commenter crossed a line from fair comment to nastiness.  The most recent such withheld comment came in April of this year, and, ironically, it was directed at Professor Kevin Jon Heller.  Even then, I reached out to the author and invited him to rewrite the comment but I never heard back.  That said, I have never rejected a comment directed at me, no matter how needlessly ad hominem or vitriolic.  Although I have, on a handful of occasions, exercised my editorial droits to remove some expletives.

What I do reserve unto myself, though, is the option to respond, which I now take the opportunity to do in response to Professor Heller’s comment to my recent post,  ICC PROSECUTOR SUSPENSION: Process, Perception, and the Cost of Prolonged Uncertainty.² Continue reading “Response to Professor Heller’s Comment to My Post, ICC PROSECUTOR SUSPENSION: Process, Perception, and the Cost of Prolonged Uncertainty”

1. The modern attribution of this saying is to Stan Lee, in the first appearance of Spider-Man in 1962. [↩]
2. Professor Heller’s comment can be viewed in the sidebar to this post, or in the comment section at the end of the post to which it was appended. [↩]

What is not good for the swarm is not good for the bee.

– Marcus Aurelius

What the Bureau of the Assembly of States Parties (ASP) has done in the past day is, in procedural terms, relatively clear, even if the implications are anything but routine.

By qualified majority, the Bureau has decided to initiate disciplinary proceedings against Prosecutor Karim A. A. Khan KC of the International Criminal Court (ICC): it referred the matter to the ASP for final determination and suspended him from duty with immediate effect. It has also made clear that the suspension is not determinative of the outcome and that due process continues.

That much is straightforward. Continue reading “ICC PROSECUTOR SUSPENSION: Process, Perception, and the Cost of Prolonged Uncertainty  “

The essence of the rule of law is that it should place restraints on power.

– Lord Bingham

The public reaction in the Philippines and beyond to Senator Ronald “Bato” Dela Rosa’s apparent evasion of an International Criminal Court (ICC) arrest warrant has been intense, emotional, and, in many quarters, openly condemnatory. For some, it is evidence that powerful individuals continue to enjoy privileges unavailable to ordinary citizens: an attempted escape from accountability unfolding in real time. For others, it is yet another example of impunity shielding political elites from consequences that would otherwise be swiftly imposed.

The anger is understandable. Many victims, activists, and observers view Dela Rosa not merely as a political figure but as a principal architect of the Duterte administration’s anti-drug campaign – a campaign alleged to have killed thousands and shattered countless families. From that perspective, jurisdictional objections can seem less like legal arguments than like procedural obstruction.

But that framing risks a deeper analytical error: it collapses distinct legal questions into a single moral narrative. The structure of available legal outcomes is not binary – ICC prosecution or no accountability.

Continue reading “THE DELA ROSA AFFAIR: Jurisdiction, Accountability, and the False Choice between the ICC and Impunity”

Occasionally, I get facts wrong. When that happens, I have no difficulty acknowledging error.

In my earlier post, relying on the biographical details listed by Temple Garden Chambers, I stated that Judge Abdul Koroma was no longer serving as a judge of the International Court of Justice. As Professor Heller was quick – and no doubt delighted – to point out, Judge Koroma presently sits at the ICJ in an ad hoc judicial capacity.

On that point, I was, like Middle East Eye in breaking the story, mistaken. Mea culpa. And sincerely so. Continue reading “CORRECTION NOT RETRACTION: If Anything, This Makes It Worse”

Any attempt to re-open litigation of the matter would undermine the integrity of the Institution and the rule of law.

– Abdul Koroma

So declares former International Court of Justice judge Abdul Koroma, according to the Middle East Eye (MEE), in a seven-page “opinion” (as characterized) concerning the disciplinary proceedings involving the embattled and currently leave-bound ICC Prosecutor Karim A. A. Khan KC.

At this stage, L’Affaire Khan resembles less a serious disciplinary process than a carefully managed media campaign wrapped in legal jargon, institutional symbolism, and selectively deployed prestige. The latest installment is particularly remarkable – even faintly farcical.

Based on MEE’s reporting, which claims to have reviewed the “Koroma Opinion,” Khan – who in recent weeks has embarked on what has been described as an “exoneration media tour” – now appears to be indirectly leveraging the stature of a former ICJ judge to exert pressure not merely on the Bureau but effectively on the Assembly of States Parties (“ASP”).

Is the timing entirely coincidental? Continue reading “WEAPONIZING JUDICIAL PRESTIGE: The Curious Timing of the “Koroma Opinion””

The interpretation of the Rome Statute is governed by the provisions of articles 31 to 33 of the Vienna Convention on the Law of Treaties. The relevant provisions must be interpreted systematically, taking into account the object and purpose of the Statute, which is to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole and thus contribute to the prevention of such crimes. (para. 1, underlined added)

Judgment on the appeal of Mr. Rodrigo Roa Duterte against Pre-Trial Chamber’s “Decision on the Defence Challenge to the Jurisdiction on the Courts” of 23 October 2025

Legal texts, much like religious ones, rarely yield a single intelligible meaning. They invite interpretation; they sustain it. In doing so, they inevitably reflect not only the words on the page but also the institutional instincts, interpretive philosophy, and normative priorities of those tasked with applying them.

The Rome Statute is no exception. Perspective matters. Purpose matters. And institutional orientation – especially in a court expressly created to confront atrocity crimes – matters profoundly.

When adjudication is guided by a strong commitment to the Statute’s anti-impunity mandate, the interpretive method can shift subtly yet decisively. Textual ambiguities no longer appear as limits; they begin to resemble obstacles. Procedural distinctions no longer function as safeguards; they begin to appear as technicalities that can frustrate the Statute’s overarching purpose. Continue reading “THE DUTERTE JURISDICTIONAL JUDGMENT: Foreboding Questions for the ICC’s Jurisdictional Future  “