[Imc-france-paris] [ICC] FW: Grassroots Interview with ICC Chief Prosecutor

[Gareth Mahon]

GRASSROOTS INTERVIEW WITH LUIS MORENO-OCAMPO
MoveOn Bulletin addendum
Thursday, August 21, 2003
Noah T. Winer, Editor
noah.winer at moveon.org

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GRASSROOTS INTERVIEW
A delay prevented us from including the Grassroots Interview in the MoveOn
Bulletin earlier this week. We hope you'll excuse the second mailing.

Three weeks ago, our bulletin on the International Criminal Court offered
MoveOn members an opportunity to interview the Court's first Chief
Prosecutor, Luis Moreno-Ocampo. Today, we bring you the Prosecutor's
responses to five of the top-ranked questions.

Mr. Moreno-Ocampo was elected as the Chief Prosecutor by the Court's
ratifying countries in April. He has a long history of prosecuting criminal
and human rights cases including the extradition of a former Nazi officer
from his home country of Argentina, political bribery, journalists'
protection, and the military junta that seized power during Argentina's
"dirty war." The Prosecutor has also been a visiting professor at Stanford
and Harvard Universities in the United States.

Here's an excerpt from Mr. Moreno-Ocampo's responses:

"National States alone cannot offer individuals the protection they need and
deserve, as the attacks on the Twin Towers in Manhattan show. The protection
offered by national States is not sufficient to guarantee the life and
freedom of their citizens if the international community, too, is not based
on the rule of law. Only the existence of mechanisms for the protection of
all persons in all countries can bring lasting, comprehensive peace."

His full answers to the questions you selected are below. Thank you to the
Prosecutor and all the members who posed questions.

------------------------------

Question 1: Could the ICC have been an alternative to bringing Saddam
Hussein -- or, for that matter, Osama bin Laden -- to justice? Do you
imagine that -- with or without U.S. approval -- the ICC can become a
deterrent for the kinds of pre-emptive wars we've seen since 9/11?
-- Elizabeth Swanson Goldberg, Forestdale, Massachusetts

The International Criminal Court has no jurisdiction over crimes committed
by Saddam Hussein or Osama bin Laden before the entry into force of the Rome
Statute on 1 July 2002. The ICC may have jurisdiction over crimes committed
by them on or after that date, provided that certain very clear requirements
are met. 

A war crime, a crime against humanity or genocide must have been committed
either on the territory of a State Party to the Rome Statute or by a
national of a State Party for the ICC to have jurisdiction.

There are currently 91 States Parties to the Statute, but Iraq is not one of
them. Thus, crimes committed by Saddam Hussein in Iraq would not fall within
our jurisdiction.  Even if Iraq became a State Party, the Court has no
retroactive jurisdiction, so some of the atrocities allegedly committed by
Saddam Hussein prior to 1 July 2002, such as the gassing of the Kurds in
Halabja in 1988, cannot be investigated by the Office of the Prosecutor. The
ICC is only designed to respond to atrocities that occur after a State
ratifies the Statute.

Although there is no agreed legal definition of terrorism under
international law, it is possible that certain terrorist acts allegedly
committed by Osama bin Laden could be qualified as either war crimes, crimes
against humanity or even genocide, if the complex legal criteria defining
these crimes are fulfilled. If this were the case, and provided the acts in
question occurred on the territory of a State Party, or were carried out by
the national of a State Party, and occurred on or after 1 July 2002, then
there could be possible ICC jurisdiction.

Despite all of the above criteria, if a State is genuinely willing and able
to investigate and prosecute a crime itself, then the ICC has no authority
to act.  This is because the Court is complementary to national justice
systems.  It is only when a crime within the jurisdiction of the Court has
occurred, and national States are unwilling or unable genuinely to act, that
the ICC will be able to assume jurisdiction.

For thousands of years the world has used war as an instrument of conflict
resolution. Peace is a modern invention. Since weapons of mass destruction
have unlimited effects, the ICC and other institutions are key for the
creation of a world in which violence is controlled.

The Court cannot exercise jurisdiction over alleged crimes of aggression
until the crime is defined and the conditions for the exercise of
jurisdiction are set out. The Assembly of States Parties of the ICC may
adopt such a provision at a review conference to be convened in 2009. Thus,
pre-emptive wars are not, at this time, within the jurisdiction of the
Court. 

Question 2: For those of us less informed about the workings of political
bodies, would you please explain in simple terms the necessity of a second
international organization independent of the United Nations? Does the UN or
its Security Council not already have the jurisdiction to try war and human
rights criminals? Is there some clear advantage to functioning separately?
-- Irene Wells, Mt. Vernon, Ohio

The ICC was born from discussions that took place in the framework of the
United Nations. However, some UN member States do not support the Court, and
thus we are an independent organisation. A fundamental difference between
the UN and the ICC is that some UN member States have the power to veto
Security Council resolutions. This alone sets the two institutions apart.
The ICC acts independently and has an internal system of checks and
balances. All of this accounts for the lack of support for the ICC of some
States and to their unwillingness to ratify the Rome Statute.

The Tribunals for the former Yugoslavia and Rwanda were created by the UN
Security Council exercising power under Chapter VII of the UN Charter.
These Tribunals were created because the Security Council had determined
that the situations in these countries constituted a threat to or breach of
international peace and security. Their creation was thus a reaction to
pre-existing situations. They can only prosecute crimes which occurred
within those countries, and do not have the potential global reach of the
ICC.  

The ICC is intended to exist prior to any future atrocities occurring, so
that those who choose to commit these atrocities will have knowledge before
they act that there is an established Court ready to investigate and
prosecute them.  This means that the ICC has a significant global power of
deterrence which previously did not exist.  It would not have been legally
possible for the Security Council to create a prospective court for
situations which had not yet occurred – particularly so when at the moment
of creation, there has been no threat to or breach of international peace
and security. 

Furthermore, to create a truly global Court, global participation and
consensus was required.  The ICC was created not by a resolution of the
Security Council, but by an extensive multi-lateral treaty negotiation which
concluded in Rome in 1998.  160 countries attended the negotiations, with
120 finally voting to adopt the Rome Statute. This later increased to 139.
Only 7 countries voted against it (including the US).  Of this 139, the
number of States who have become full participants of the ICC system is
currently 91.  This means that, although it does have a close relationship
with the UN, the ICC is an independent treaty body.  The General Assembly
sponsored the Rome Conference, and the Security Council can trigger the
jurisdiction of the Court by referring a situation for investigation to the
Prosecutor, thus avoiding the delays and costs involved in creating ad hoc
tribunals as a reaction to atrocities.

Question 3: How can we, who believe that the US should be a participating
member of the world community, convince those who fear that the ICC would be
misused for political interests? What arguments can we make?
-- Andrew Hummel-Schluger, Brier, Washington

In order to appease those who feared that the ICC would suffer from
politically motivated bias, the putting in place of a rigorous system of
selection of its officers and a system of checks and balances was necessary.
These systems ensure that the Court is a serious institution, and one which
possesses high technical quality. Despite the assurances offered by these
safeguards, individuals in some countries are disinclined to support a
criminal court that is independent, because it limits the actions of certain
States. The judicial system, as we know it, developed within national States
in which the government controls the police and the army, and also
designates the judges. In a world without a central government, without
police and an army, a system of justice which is independent is a novelty
and may give rise to fears and uncertainty.

Despite not currently being a supporter of the ICC, the US was an active
participant of the Rome Conference in 1998 and played a major role in the
inclusion in the Statute of a comprehensive series of safeguards to protect
national sovereignty and to prevent the ICC from ever being used for
frivolous or politically motivated prosecutions.  As such, the Rome Statute
contains a comprehensive system of checks and balances.  Below is a
selection of some of the most prominent safeguards.

Any investigation initiated by the Prosecutor himself will require the
authorisation of a Pre-Trial Chamber of three judges who must examine the
evidence the Prosecutor has gathered and be satisfied that there is a
“reasonable basis to proceed".  Further, any arrest warrant issued must also
be confirmed by this Pre-Trial Chamber.

An accused person, and any involved countries, will have the opportunity to
challenge the indictment during confirmation hearings before the Pre-Trial
Chamber. 

Also, the system of complementarity protects against politically motivated
prosecutions because if States are willing and able to genuinely investigate
and prosecute a matter themselves, they need never fear ICC involvement.
The need for the national proceedings to be genuine is crucial, though, as
national action cannot be used to “shield" someone from ICC jurisdiction,
and if done so, the ICC will have the power to act.

The Prosecutor himself and all the judges went through a rigorous process of
scrutiny prior to their election as officials of the Court.  There are
strict criteria for their selection which includes they be experts whose
reputation, moral character and independence are beyond reproach.  The
judges are nominated by the States Parties and must be eligible for the
highest judicial office in their home country.  Whilst in office the
Prosecutor and judges are prohibited from engaging in any activity which may
threaten their independence, and, if they do so, they can be removed.
Furthermore, if they abuse their power while in office, they can be
impeached. 

It must be emphasised that the crimes the ICC is empowered to prosecute are
the most serious, horrendous and egregious crimes known to humanity and
prior to the Rome Statute, the US was fully committed to preventing and
punishing the commission of these crimes.  The US does not operate a policy
of committing these crimes, and as such should not fear prosecution of its
nationals, particularly when all the safeguards are taken into
consideration. 

Question 4: Some have argued that weak, poor countries should actually
oppose the Court alongside the U.S. because it’s unlikely the ICC will be
able to pursue cases against the leaders of rich, powerful states on whose
political support and deep pockets it will depend. In effect, the Cou/rt
would not be able to avoid propagating a double standard of "justice" that
reflects that power dynamics of global politics. Do you find this argument
at all valid?
-- Jeremie Smith, Asheville, North Carolina

National States alone cannot offer individuals the protection they need and
deserve, as the attacks on the Twin Towers in Manhattan show. The protection
offered by national States is not sufficient to guarantee the life and
freedom of their citizens if the international community, too, is not based
on the rule of law. Only the existence of mechanisms for the protection of
all persons in all countries can bring lasting, comprehensive peace.

The life and freedom of individuals in any country can be threatened by
internal and external elements. Internally, individuals may be attacked by
groups over which the State has no control. This is what happens in
countries in which the rule of law has broken down. The events that took
place in Rwanda in the 1990s are an example of this type of threats. This is
the kind of situation that can be repeated. It is taking place in Ituri,
Democratic Republic of Congo.

A second set of threats is external, and consists of attacks coming from
other States. In order to protect individuals from this type of threat, it
is necessary for States to reach consensus regarding the definition of the
crime of aggression. However, there is also scope for some of the crimes
committed in this context to come within the purview of the ICC, if they
constitute war crimes, crimes against humanity or genocide.

Question 5: Given your comments on the role of corporations and the
international banking system in the Democratic Republic of Congo, might the
ICC be a mechanism to deal indirectly with businesses implicated in massive
human rights violations, even if international business does not directly
fall under the ICC's jurisdiction? Do you think that the issue of corporate
responsibility might be an issue that should be raised at the ICC's review
scheduled for 2009?
-- Andrea Muehlebach, Chicago, Illinois

The issue of corporate responsibility is central to our vision of ensuring
the observance of the law in the long term. We need to align values,
economic interests and decisions of national States. Corporations have to be
aware of the fact that for there to be markets, there needs to be peace, and
that they, too, can contribute to its construction.

The ICC has no jurisdiction over crimes such as money laundering and illegal
exploitation of natural resources, both of which would be fuelling the war
in Ituri according to credible reports. The Office of the Prosecutor is
convinced that investigations and prosecutions into the financial aspects of
the crimes being committed in Ituri will surely contribute to the winding
down of the war in the country.

------------------------------

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