The Inevitable Practice of the Office of the ProsecutorIt was not clear in 2002 how the court would function precisely because of the multitude of challenges it faced. Eleven years later only some of those questions have been resolved. [...] It is clear, however, that theICCis an institution with the capacity to change habits and outcomes. We may be seeing the start of that in Kenya today, where the electoral violence of 2007 has thankfully not been repeated, perhaps because of its ongoing intervention which was a major topic throughout the political campaign.

Established institutions condition the conduct of their leaders and those who work within their structures. New institutions, however, are conditioned by the personalities and characteristics of their first leaders and staffs, as they lack existing institutional controls and cultures.1This was clearly the case with the International Criminal Court (ICC) and its prosecutorial division, the Office of the Prosecutor (OTP), and an understanding of the Court requires an appreciation of the circumstances of their creation and first 11 years of operation.

Since its inception in July 2002, theOTPhas faced two primary critiques: first that it has been inefficient, and second that it has preoccupied itself with Africa and failed to investigate equally severe conflicts elsewhere. These criticisms do not arise in a vacuum, however, and must be understood within the context of the court’s recent creation, administrative and personnel challenges, legal impediments imposed by theRome Statute,and external pressure to prosecute as many cases as possible in order to satisfy its value-oriented goal of “guarantee[ing] lasting respect for and the enforcement of international justice.”2These factors have made the choices of the prosecutor largely inevitable, although future practice must be reformed.