The Law-in-Action of the International Criminal Court

When we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. —Missouri v. Holland (Oliver Wendell Holmes Jr., J.) As the International Criminal Court (ICC) moves from an exhilarating idea to a carefully negotiated document and finally to an operational institution, the cogency of its conception will be tested by the manifold realities of international politics, not the least of which will be the practical and financial limits those realities may place upon investigation and prosecution. The drafters of the Rome Statute benefited from important previous experiments—the Nuremberg Tribunal and the International Criminal Tribunals for the Former Yugoslavia and for Rwanda. But once the Court is launched, the predecessors and prototypes that were so helpful in the drafting stages will be of less and less assistance. The ICC must operate in a substantially different context than the earlier efforts, and the problems it will encounter (and already is encountering) will be different from and may prove more formidable than those facing its prototypes.