ICC: A CAUTIOUS BEGINNING WITH MIXED SIGNALS FROM

C O N F I D E N T I A L SECTION 01 OF 04 THE HAGUE 001806

SIPDIS

E.O. 12958: DECL: 07/15/2013
TAGS: PREL KAWC KJUS ICTY KICC
SUBJECT: ICC: A CAUTIOUS BEGINNING WITH MIXED SIGNALS FROM
THE PROSECUTOR

REF: 02 THE HAGUE 3524

Classified By: Legal Counselor Clifton M. Johnson per reasons 1.5(b) an
d (d).


1. (C) Summary: Public documents of the International
Criminal Court (ICC) and conversations with diplomats from
friendly states parties to the Rome Statute and other members
of The Hague international law community have given Embassy
legal officers an early glimpse into the formative activities
at ICC headquarters. Chief Prosecutor Luis Moreno-Ocampo and
his key staffers are working to develop principles, rules and
regulations to guide their selection of the first preliminary
examinations and investigations while at the same time
culling through over 400 submissions alleging potential
crimes for the ICC to pursue. Ocampo has signaled his
interest in examining potential crimes in Congo and Colombia.
Less clear are his views on Iraq. While he has spoken of
alleged crimes involving British forces in Iraq in
semi-public briefings, his private comments indicate that
such cases would be highly unlikely candidates for ICC
investigations. Meanwhile, in late June, the ICC ended the
phase of leadership head-hunting when ICC judges selected
Bruno Cathala of France as the organization's first
Registrar. With leadership figures now in place in all three
branches of the court, the next key event is Ocampo's press
briefing on July 16 where he will provide an overview of
"information received by the Office of the Prosecutor
regarding potential situations under the jurisdiction of the
Court." End summary.

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The Prosecutor Promises Restraint and Focus . . .
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2. (C) ICC Chief Prosecutor Luis Moreno-Ocampo faces three
major tasks at this time -- setting out his office's
investigative and prosecutorial policies and principles,
organizing the office itself, and reviewing incoming
information concerning potential crimes. Ocampo's early
thoughts on prosecutorial policy may be found in a draft
policy paper OTP published on the ICC website in advance of a
June 17-18 OTP "public seminar" (see
www.icc-cpi.int/otp/policy.php). OTP seems to be making an
effort to cool the passions and lower the expectations of ICC
activists who want the prosecutor to issue ambitious
indictments soon. Three aspects of the paper in particular
give an early view into how Ocampo intends to manage his
investigative responsibilities.


3. (C) First, the paper emphasizes the constraints on ICC
action much more than the opportunities for investigations
and prosecutions. Echoing the new Registrar's views (see
paras 11-13 below),it emphasizes "the logistical constraints
that will limit the practical scope of action of the Court"
and argues for "a project-oriented as opposed to a static
organisation model" for the court. Its emphasis on resource
constraints is matched by a stated commitment to
complementarity -- the principle that national jurisdictions
have primacy over the ICC and that the ICC merely complements
national systems. It makes a restrained, if rhetorical,
claim that the ICC's success should be measured "by the
absence of trials by the ICC as a consequence of the
effective functioning of national systems." Such rhetoric,
we have heard from close observers of the ICC, has strongly
irritated leading ICC supporters in the non-governmental
organization (NGO) community.


4. (C) With respect to complementarity, OTP takes an initial
stab at evaluating the content of the Rome Statute's
provision for determining that the ICC may take jurisdiction
over a situation if an otherwise responsible state would be
"unwilling or unable" to exercise its jurisdiction. It
suggests that the prosecutor will need to take a hard look at
such situations before proceeding to investigations. The
paper emphasizes that "States remain responsible and
accountable for investigating and prosecuting crimes
committed under their jurisdiction and that national systems
are expected to maintain and enforce adherence to
international standards." Indeed, the prosecutor seems eager
to use his position as much to "help State authorities to
fulfill their duty to investigate and prosecute at the
national level" as to investigate and prosecute crimes
himself.


5. (C) Second, the OTP is clearly heading toward a policy --
similar to that of the International Criminal Tribunal for
the former Yugoslavia (ICTY) -- of focusing its investigative
and prosecutorial energies on senior-level perpetrators of
crimes within its jurisdiction. Here the OTP appears to be
taking a narrower approach than the Rome Statute, which
refers to "the most serious crimes of concern" to the
international community, by focusing on only the most senior
alleged perpetrators of such crimes. The OTP argues that
"(t)he concept of gravity should not be exclusively attached
to the act that constituted the crime but also to the degree
of participation in its commission." The OTP policy paper
concludes that the OTP should therefore "focus its
investigative and prosecutorial efforts and resources on
those who bear the greatest responsibility, such as the
leaders of the State or organization allegedly responsible
for those crimes." Embassy legal officers have learned from
some participants at the June 17-18 OTP seminar that this
aspect of the paper caused the greatest consternation among
the NGO community, which decried the emergence of a so-called
"impunity gap," in which senior levels get prosecuted but
lower-level criminals escape prosecution. OTP anticipated
that charge by stating, in its paper, that "less grave cases"
should be returned to national jurisdictions for prosecution
-- again, a further echo of the ICTY and its "completion
strategy".


6. (C) Finally, the OTP does not fully suggest how it will
evaluate information that NGOs and individuals are
increasingly submitting as evidence of war crimes, crimes
against humanity or genocide. Embassy contacts have noted
that the prosecutor seems obligated to evaluate incoming
information, whatever its source, pointing to the provision
of Article 15(2) of the Rome Statute that the "Prosecutor
shall analyse the seriousness of the information received."
The paper emphasizes that OTP's Analysis Section "must be
strengthened" so that it can undertake "focused and
effective" preliminary examinations of incoming information.
The OTP especially wants to develop analytic capabilities to
identify "complex patterns of criminal conduct" and the
presence of elements of alleged crimes. Again, the paper
returns to the theme of resource limitations, noting the
OTP's interest in "cost-effective" investigations.


7. (C) A set of "draft regulations" designed to guide OTP's
investigative and prosecutorial activities gives some insight
into how it will evaluate whether information provides a
sufficient basis for an investigation. For instance, the
draft section on preliminary examinations would guide the
office from the initial collection of communications
submitted to the OTP, to its "assessment of the credibility
and reliability of the sources of information" and the
preparation of a "preliminary examination report" and "draft
investigation plan." The ultimate aim in this respect would
be a recommendation from the deputy prosecutors for
investigations and prosecutions to the chief prosecutor as to
whether OTP should seek authorization from a pre-trial
chamber to conduct an investigation. A draft investigation
plan would assess such items as the reasonableness of belief
that a crime within the ICC's jurisdiction took place; the
role of likely suspects and aims of an investigation; whether
a case would meet the complementarity standards of the
Statute; a discussion of required resources for an
investigation; and other matters. The full text of the
regulations may be found at
www.icc-cip.int/otp/draft regulations.


8. (C) At the organizational level, the OTP deputy slots
remain to be filled (perhaps by a decision of the Assembly of
States Parties in September),though Ocampo has initiated an
active hiring program that tracks his focus on policies and
investigations rather than prosecutions at this stage. The
institution remains small, and OTP is looking to hire
mid-level investigators and lawyers to guide preliminary
examinations of incoming information as well as lawyers with
background in public international criminal law. He has
hired as his chief of staff and head of the OTP's
"complementarity unit" Argentine diplomat and lawyer Sylvia
Fernandez. Fernandez has extensive experience with the ICC,
having served as a senior negotiator for Argentina at Rome
and as head of the working group looking at the definition of
aggression in the ICC Preparatory Commission. A UK colleague
indicated that she is considered a reliable and serious
person who is rated very highly by FCO lawyers. The
experience of some USG delegates to the ICC Rome Conference
is less positive and some credit her with the drafting of
various anti-U.S. provisions in the statute. We expect that
Fernandez' role and influence will become clearer over time.

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. . . But Is Ocampo Ready For Prime Time?
--------------

9. (C) While Ocampo seems to be moving the OTP in a careful
direction with his draft policy paper, his public statements
reveal a prosecutor who has not yet mastered his public role.
Ocampo will be further tested and subject to public scrutiny
when he describes in a July 16 press conference the over 400
submissions received by the OTP thus far, of which over 100
are said to be Iraq-related. In semi-private forums and in
private conversations reported to Embassy legal officers,
Ocampo has indicated consistently that his initial
investigative interests will focus not on Iraq but on the
situation in the Congo, including the potential involvement
of Belgians with financial interests in the diamond industry,
and Colombia. In public, however, Ocampo has been less
restrained. At a recent presentation before a group of ICTY
staff and students participating in a Humanity in Action
summer course, Ocampo said that he was looking at the actions
of British forces in Iraq -- which, according to one Embassy
source, led a British ICTY prosecutor nearly to fall off his
chair. It was, another participant said, "a complete
shocker" and came without any qualifications. Such
statements may contain less than meets the eye. Privately,
Ocampo has said that he wishes to dispose of Iraq issues
(i.e., not investigate them),much in line with what
Registrar Cathala is urging (see para 13 below). In
addition, some observers of Ocampo believe he has adopted too
much of an academic approach -- raising situations such as
Iraq not to signal areas he wishes to investigate but to
illustrate the limits of the ICC's jurisdiction (i.e., that
jurisdiction may extend to UK but not U.S. personnel).


10. (C) Embassy interlocutors have also suggested that
Ocampo's public remarks may be directed at fending off a wave
of dissatisfaction among the NGO community about his draft
policy paper. According to this reasoning, Ocampo wants to
bring attention to the complaints he has received so as to
prompt governments to conduct their own investigations and
thereby provide a basis for removing these cases from ICC
review under the complementarity provision. A colleague at
the UK Embassy, who was aware of Ocampo's remarks concerning
the UK, said London was not particularly concerned because
any information about UK war crimes, if assessed reliable,
would be the subject of investigation by relevant UK
authorities and, ultimately, not be subject to ICC
investigation. Some Embassy contacts also suggest that
Ocampo's mediocre English skills may give his public remarks
a less nuanced and more glib tenor than intended.

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A Cautious French Administrator for the ICC
--------------


11. (C) On June 24, the ICC's 18 judges selected as Registrar
France's Bruno Cathala -- a pragmatist who impressed Embassy
legal officers in his former function as deputy registrar of
the ICTY. Cathala has been the de facto Registrar since the
fall, when the Assembly of States Parties drew him away from
the ICTY in order to be the ICC's Director of Common
Services, or chief administrator. (Note: His selection
disappointed the Dutch Government, which had expected, as is
the tradition with many international legal institutions in
the Hague, that the position would go to the Dutch candidate.
End note.) A lawyer and civil law judge by training,
Cathala has long experience in court and organizational
management. The Embassy's experience with Cathala as deputy
registrar of the ICTY is solidly positive; he was a leading
force behind the emergence of the completion strategy and a
constant thorn in the sides of ICTY judges and prosecutors,
whom he pressed daily to stick to ICTY efficiency and
completion strategy benchmarks. He regularly made himself
available to Embassy officers to discuss ICTY issues, and in
our periodic contact with him since his departure from the
ICTY, has emphasized his interest in seeing the ICC develop
in a decentralized, flexible, measured, and narrowly focused
way. See reftel.


12. (C) Sensitive to the ICC's resource limitations, Cathala
believes that the ICC cannot seek to try all war criminals
within the court's jurisdiction but needs to focus its
efforts on those most responsible for such crimes. It is a
vision derived from his experience at the ICTY and leads him
to a different place than many of the ICC's strongest
supporters. While he will not have influence over the
prosecutor's specific investigative decisions, he will be in
a position to help steer the ICC in a fiscally responsible
direction. An energetic and voluble character, Cathala
professes to be a proponent of caution within the ICC, and
his control of the purse will undoubtedly influence the OTP
and chambers.


13. (C) Cathala (please protect) told an embassy legal
officer that he has strongly advised Ocampo to speak very
carefully in public and to be extraordinarily sensitive to
the way even strictly accurate statements may be perceived.
In the face of the media "pushing and pushing" and under the
watchful eyes of governments, the "first wrong word," Cathala
said, could easily spell disaster for the court. It will be
crucial, he said, for the ICC to dispose easily of "silly
things like Iraq". "We're not going to run all over the
world," said Cathala, who added that he personally wants
relations with the USG to be smooth.

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Comment
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14. (C) Cathala's personal comments to Emboff and Ocampo's
early OTP documents seem designed to put the USG at ease and
assure us that the court will proceed carefully and not
launch controversial investigations. Ocampo's public
statements raise concerns less about what he will investigate
and prosecute -- as one colleague noted to us, the prosecutor
has an obligation not merely to throw away complaints but
must at least dispose of them according to some logic -- than
about his ability to avoid embroiling the ICC in controversy
even in the absence of any investigations. The proof of
Ocampo's abilities and intentions, of course, will be found
in how he selects and investigates his first targets.


15. (C) Despite the seeming transparency of the OTP, many
questions are likely to remain unanswered until the first
investigations are announced. For instance, how will the OTP
sift through its growing in-box, some submissions no doubt
legitimate but many more politically motivated and useless
for the purpose of investigations? How in practice will the
prosecutor determine when a State is "unwilling or unable" to
exercise jurisdiction over an alleged crime? Will the
prosecutor undertake preliminary investigations even before
determining whether a State is "unable or unwilling" to do so
itself? What specific crimes will be of the most interest to
the OTP, and how high up the chain of command will the
prosecutor select his investigative targets? With Ocampo
beginning to sift through investigation submissions and new
staff coming on board, the coming months should demonstrate
more clearly whether the ICC and its leadership have the
temperament to pursue and sustain a cautious course.
SOBEL