Interview with Christine Chung, Former War Crimes Prosecutor at the ICC in The Hague
A former war crimes prosecutor discusses her experiences working at the International Criminal Court and the various crises it has faced since its inception.
International Criminal Court Building, The Hague, Netherlands.
By: Joshua Bean, Staff Member
Christine Chung. Photo: Selendy & Gay PLLC.
Joshua Bean sat down with Christine Chung, a former war crimes prosecutor at the International Criminal Court (ICC) in The Hague, for an interview about her experiences working at the ICC and the various crises it has faced since its inception. Ms. Chung has taught criminal and international human rights law at Yale and Fordham law schools, and she most recently led Selendy & Gay’s White-Collar and Investigations practice. Prior to working at the ICC, she served as Chief of Appeals at the United States Attorney’s Office for the Southern District of New York (SDNY).
This interview has been edited for clarity and length.
After serving as a federal prosecutor in the SDNY, you worked abroad as a war crimes prosecutor, serving as a Senior Trial Attorney at the ICC in The Hague. How did you end up working there, especially considering that the United States is not a State Party to the Rome Statute?
When I left the US Attorney’s Office, I was mostly looking at private-sector jobs. At the same time, I asked myself if there were any other jobs in public service that I wanted to do. The only other thing I could think of was to be a prosecutor on the international level rather than on the domestic level. At the time, the ICC was just getting started, and the first Chief Prosecutor, Luis Moreno Ocampo, had just been appointed, and he was teaching at Harvard, so I wrote to him. He encouraged me to apply. Even if you are from a non-State Party, you can still get a job at the ICC. You likely have to be more qualified than applicants from States Parties. All things being equal, they’d rather have people from States Parties.
I was brought on as the first Senior Trial Attorney, that is, the first lawyer to be hired after Luis. Luis was appointed by the States Parties. I was hired basically in the same round as a German federal prosecutor and a British prosecutor, so we ended up being the first three trial lawyers at the ICC.
How did your time at the SDNY prepare you for this new role? What aspect of the job did you feel particularly unprepared to tackle?
The SDNY was great training. Interestingly, Luis was very interested in having an American prosecutor because the American system is practically the only one where prosecutors, at the federal level at least, are involved in the investigations to make sure that they get the evidence they need early on. They basically craft the investigation plan. In most other countries, and even in our own state systems, the cops typically do the investigatory work, and then they turn the file over to the prosecutor.
The Rome Statute nonetheless has completely different rules of procedure and evidence. It is basically a unique blend of common law and civil law. Not really knowing how those parts fit together was a challenge. It was both exhilarating and, at times, incredibly frustrating. It is a melting pot of different experiences. I came there saying, “Of course we should be able to prep the witnesses before trial.” My British colleagues replied, “No, that would be unethical. Why would you ever expect to be able to do that?” In the British system, you do not do that. Separately, in the civil law system, you justify your dossier, you build your case, and you keep track of things that are exonerating. If you do not bring the case, you basically have to explain why. That was very new to me because in the American system you almost have absolute discretion; no one really questions why you did not bring a case. However, in the ICC system, it was mandated: we had an obligation to keep records of both inculpatory and exonerating circumstances. It makes sense because if you turn down a case that is of the magnitude that the ICC was investigating it in the first place, people should know why you are turning it down and what it is that you found exonerating.
Given the influence of different legal systems, what sorts of defenses did you encounter at the ICC?
I worked mainly in investigations, but I can say, for example, that duress is being tried now. The duress defense is codified in Article 31(1)(d) of the Rome Statute. The case I am talking about is against Dominic Ongwen, one of the leaders of the Lord’s Resistance Army (LRA) who was apprehended. He was a child soldier, abducted at a very young age. He rose through the ranks of the LRA to become one of the top five commanders, and he grew up to be a very ruthless killer, orchestrating countless attacks. He is basically arguing, Listen, I was a kid when I was abducted. I was brainwashed. I was fully dependent on the LRA. I could not do anything but kill as I was ordered to do. Now I worked for 12 years in the US Attorney’s Office and I never came across a duress defense; his argument is about as good as a duress defense as you are ever going to hear. Of course, it will be resolved in this proceeding based on whether the proof is good enough to satisfy that defense.
Let’s shift gears and talk politics. You joined the ICC shortly after the Bush Administration had signed into law the American Service-Members’ Protection Act of 2002, infamously dubbed “The Hague Invasion Act.” Many human rights advocates viewed the statute as an attempt to intimidate other countries that might ratify the Rome Statute. What do you think animated American opposition to the ICC at the time? Do you think that the aftermath of 9/11 had an effect at all on the nature of the opposition? Is it any different from the opposition to the ICC that you see today from the Trump Administration?
The most powerful countries in the world are always going to be against the ICC. That is why the big non-joiners are the US, China, Russia, and Israel. The ICC system is a system based on law and not power, so if you are the most powerful country in the history of the world, you are not going to agree to less powerful actors holding you to account for possible war crimes and crimes against humanity. In the case of the US, we send a lot of troops to a lot of places; thus, the US had a very outsized fear that its troops would come under ICC prosecution. I never found it that surprising that the world’s biggest players who get the most out of having power and being able to exercise it would not sign up for the ICC system.
As for the War on Terror, it is interesting because I was in The Hague when reports about Abu Ghraib came out. It was shameful because I was there as an American. My colleagues at the ICC, who represent people from many different societies and countries, were appalled. But they weren’t just angry at the US. They were also sad for the US and everybody else because the US is a leader. If the US cannot keep its act together and not do things like commit torture, then the entire global community loses, regardless of whether there is US participation at the ICC or not. Of course, the US not being a member of the ICC does not mean the ICC cannot make its own way. In fact, I think it can often be a good thing that the most powerful countries are not involved since it gives other players the chance to form coalitions and move things forward.
During the War on Terror, we have also witnessed the revitalization of, what I would say, the power of power. If you look at the authorization to use military force that was used as the legal approval for the War on Terror, it is not saying, Listen, you guys are criminal, you need to be brought to justice. Rather, it is saying, You are our enemies, and we are going to fight you wherever you are, using whatever means we have. That is sort of an express statement of power over law. I will also note that since I left the ICC in 2007, the security situation has gotten much worse. The world is a much less safe place. There are more states attacking their own citizens. There are more refugee crises. There is Syria. Things are devolving all the time. Another problem is that our government has really embraced ignoring international law to achieve our ends. Drone bombings are not foreign to Republican or Democratic administrations. The US government has run clandestine black-sites on multiple countries’ territories, outside the reach of international law. If the US is signaling that this is an okay way to do business, then the entire international community suffers from that. It changes the norm.
What is the incentive for smaller players to become States Parties to the Rome Statute, apart from the desire to hold those who commit genocide and crimes against humanity to account?
It is fascinating that so many countries signed the Rome Statute. I actually wrote an article about how remarkable it was. It took decades for the Genocide Convention to get 80 signatures, and the Rome Statute got to about 100 and then about 120 pretty rapidly, within 10 or 15 years. We know why incredibly powerful countries do not join, but why do smaller places join? It is kind of a mystery. Perhaps first, it is an easy standard to agree to. It is not: Let’s not commit jaywalking; it is: Let’s not commit genocide.
Secondly, Oona Hathaway has written about how smaller nations join these international treaties, even if they have poor human rights records. They do so with the belief it may economically benefit them. It is a way of joining the developing world. However, as investigations have gotten more real at the ICC, some States Parties who fear being investigated have stepped back, like the Philippines. Many of the countries did not fully understand what it meant to join. It was binding yourself to the mast of I will not commit genocide, I will not commit crimes against humanity, and I will not commit war crimes. It sounded like an easy pledge to make, but there is a serious pull to violate these norms when you are really in distress.
When you were working at the ICC, did broader concepts of transitional justice inform how you went about your work on these matters? Or were you singularly focused on your job as a prosecutor?
Transitional justice is a fluid term. I think of the ICC as one of the modes or methods of transitional justice. The basic animating principle of the ICC is no peace without justice. Victims need to feel that they can access justice, and the ICC works to vindicate that interest. Of course, there are other forms of transitional justice that the ICC tries to complement. Thus, if there are truth commissions, if there are domestic prosecutions, if there are other hybrid international courts, all of that gets factored into decision-making at the ICC. The ICC will even defer to these other modes of transitional justice through its admissibility requirements. The ICC is not supposed to get involved unless others are unable to do it. In a place like Colombia, the ICC was pretty active, but it was a very interesting dynamic. When the ICC got involved, Colombia was vitalized to push forward in their peacemaking, peace negotiations, as well as truth and reconciliation efforts. There was a healthy push-and-pull, and the ICC got involved in Colombia where it could be productive and chose to lay back where Colombia was really leading the charge. Colombia is a pretty positive example.
Unfortunately, complementarity does not always work perfectly, but theoretically, you should consider prosecution as only one of the means of transitional justice. The ICC should have perfect side vision into what all the other outlets of transitional justice are.
Do you find that your experiences at The Hague inform the work that you do today?
The one thing you learn that you can use anywhere is creativity. There was the Rome Statute, but you never really knew how something would be interpreted. When you would write briefs at the ICC, you did not have a bunch of cases to cite, so you had to think teleologically. You would try to find the common-sense answer given your instruction. You would think about the way that the law should be if we want to create the right incentives. Of course, you have to be a little careful about being that creative in the US system, but I still find it really helpful. For example, if you study first-year criminal law, and you learn things like mistake of fact or mens rea, the rules regarding each fall in places that make natural sense. So, even though the ICC is a practical system, in a way it was highly theoretical when I was there. Being there during the first legal disputes was kind of like going back to school, and seeing the law get created through the argument is really useful when you are back to being a practicing lawyer in the US. If a rule makes sense in a certain context, 9 times out of 10 that ends up being the right rule. It is almost like you intuit what the law should be, and then you go out and find it.
There has been renewed criticism of the ICC in recent years, not only from the United States but also from several countries throughout Africa. As you noted earlier, the Philippines also withdrew from the Rome Statute after the ICC announced its decision to open up an investigation there. Do you think the ICC can survive its current crisis of legitimacy?
There are things about the ICC that are self-inflicted wounds. Cases take too long to come to trial; that is very undermining, and it is really hard on the witnesses and really hard on the proof. It is hard for the world to see the ICC as really doing its job if it takes that long for justice to come. As for States Parties coming and going, I just sort of expect it. Maybe that is because I am an American. My own country never joined, so I sort of get it. States will opportunistically threaten to leave when they do not want to play by the rules anymore. That will always be there.
At the same time, the Court is incredibly misunderstood. Many critics forget that the ICC has almost no enforcement power. It is really a question about political will. Will the States Parties support the Court to conduct arrests, to carry out investigations, and to make sure that witnesses are not threatened or tampered with? The ICC has faced all these issues. It is also important for Americans to hear this because, given their own experiences, they understandably think of prosecuting offices as all-powerful. Their first reaction is to think, Aha! The prosecutor is doing something wrong. They botched the case. In the ICC system, it is very different. The prosecutor cannot make anybody do anything, and so everything boils down to moral authority or cajoling or being in the right place at the right time. It is a much tougher system. If the ICC system does not get the air and the support and the feeding that it needs, then it is always going to be extremely vulnerable.
Any final thoughts before we wrap up?
At an International Law Association conference last month, I saw David Scheffer, who was the first Ambassador-at-Large for War Crimes Issues under the Clinton Administration. He was around when I was at the ICC; it was the first time I had seen him in 13 years. He was also part of the US delegation at Rome. When he saw me, he said, “Christine, we’re both still here!” He was referring in a humorous way to the unending criticism of the Court. People—especially academics, NGOs, and basically the whole world—criticize the ICC constantly. All the time. It’s as if nobody expects to get rewarded for saying positive or good things about the ICC. So it is a miracle this Court continues to exist. To me, given the obstacles, it is a total miracle that there are people still working there. Of course, it is never going to be easy, and people who thought that everything should be running peachy keen and smooth are deluding themselves. The public has to moderate their expectations. As long as the Court is functioning, I tend to think of that as hopeful. Obviously, there are things both inside and outside the Court that need to be fixed, but overall, I think that the fact that the ICC exists and is still supported by 120 countries is pretty remarkable.
Joshua Bean is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. He graduated from Harvard College in 2016.