Identifier
Created
Classification
Origin
03THEHAGUE1837
2003-07-18 13:37:00
UNCLASSIFIED//FOR OFFICIAL USE ONLY
Embassy The Hague
Cable title:  

ICC: PROSECUTOR FOCUSES ON CONGO, DISCLAIMS ANY

Tags:  PREL KAWC KJUS ICTY KICC 
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UNCLAS SECTION 01 OF 05 THE HAGUE 001837 

SIPDIS

SENSITIVE

E.O. 12958: N/A
TAGS: PREL KAWC KJUS ICTY KICC
SUBJECT: ICC: PROSECUTOR FOCUSES ON CONGO, DISCLAIMS ANY
ABILITY TO EXAMINE U.S. FORCES IN IRAQ

REF: THE HAGUE 01806

Sensitive But Unclassified; Protect Accordingly.

UNCLAS SECTION 01 OF 05 THE HAGUE 001837

SIPDIS

SENSITIVE

E.O. 12958: N/A
TAGS: PREL KAWC KJUS ICTY KICC
SUBJECT: ICC: PROSECUTOR FOCUSES ON CONGO, DISCLAIMS ANY
ABILITY TO EXAMINE U.S. FORCES IN IRAQ

REF: THE HAGUE 01806

Sensitive But Unclassified; Protect Accordingly.


1. (U) Summary: On July 16, the Chief Prosecutor of the
International Criminal Court (ICC),Luis Moreno-Ocampo, held
a press conference in The Hague to discuss information his
office has received from around the world about possible
areas for ICC inquiry. During the ICC's first year, the
Office of the Prosecutor (OTP) received 499 communications
from individuals and nongovernmental organizations (NGOs) in
66 different countries. The largest number of communications
came from Germany (93),the United States (70),France (58),
the United Kingdom (33),the Netherlands (29) and Spain (23).
As expected (see reftel),Ocampo is focusing his
investigative energies on the Congo and ruling out an
examination of the situation in Iraq with respect to U.S.
forces. End summary.


2. (U) In his first press conference, ICC Chief Prosecutor
Ocampo reviewed the jurisdiction of the ICC, summarized
incoming communications from individuals and NGOs and
explained his interest in the Congo. Details on these topics
may be found in the ICC press release reproduced at para 6.
His office has identified the situation in Ituri, Democratic
Republic of Congo (DRC),as the most urgent situation to be
examined at this time. If he uncovers sufficient reason to
do so as a result of his preliminary examination, the OTP
will seek authorization from a Pre-Trial Chamber of the Court
to initiate an investigation. Ocampo stated that the primary
focus will be to determine the ability or willingness of the
transitional government in DRC to investigate and prosecute
the alleged crimes.


3. (U) Ocampo fielded several questions from the press. He
noted that the Court has received several communications
regarding the war in Iraq which generally lack detail.
Ocampo said that since neither Iraq nor the United States is
a State Party to the Convention, the ICC has no jurisdiction
over such matters. (For the same reason, he said that two
communications regarding the Israeli-Palestinian conflict
would not be examined by his office.) He advised that
individuals with specific information should address their
concerns directly to the USG. With respect to allegations

concerning British forces in Iraq, Ocampo said that OTP would
only examine them if the UK were "unable or unwilling" to
investigate (a point referenced in the press release at para
6). Several questions alluded to the USG's status as a
non-party and its efforts to negotiate Article 98 agreements.
When one reporter asked if Washington's "aggressive
campaign" was affecting the ICC's work, he responded, "I do
not know . . . we will see." When pressed further, he said
that it was not his job to worry about U.S. policy and that
it was his personal feeling that in the future, all
countries, including the United States, will join the ICC.
Ocampo implied an interest in working with non-parties such
as the United States when discussing OTP's need for solid
information on Congo; he said that there is open-source
information available, such as the Department's Human Rights
Report, but that he hoped governments would provide access to
closed-source information as well.


4. (U) In addition to reporting on developments in OTP,
Ocampo affirmed that he is also concentrating on building up
the staff of his organization with a focus on investigators.
By the end of 2003, he said, he expects to have 51 staffers
working primarily on investigations. By the end of 2004, he
hopes to have 122 staffers divided into three teams.


5. (SBU) Comment: While the announcement of OTP interest in
the Congo was not surprising, it is a somewhat risky gambit
given OTP's limited resources and the fact that it will be
some months, at the earliest, before Ocampo is in a position
to conduct a full-fledged investigation into Ituri, let alone
initiate a prosecution. His failure to mention other
situations rumored to be among his interests, such as
Colombia, may reflect his recognition that limited resources
will enable him to focus only on the Congo over the coming
months. More unexpected than what he expects to investigate
was his signal to individuals and NGOs that he would hope
that they only bring to his attention matters arguably within
his mandate. End comment.


6. (U) Begin text of ICC Press Release:

16 July 2003
COMMUNICATIONS RECEIVED
BY THE OFFICE OF THE PROSECUTOR OF THE ICC
Since July 2002, the Office of the Prosecutor has received
499 communications from 66 different countries. These
communications address a broad range of crimes allegedly
committed in a number of regions around the world. Almost all
of these communications request the Office of the Prosecutor
to undertake legal action.

Some of the complaints received cannot be investigated by
this Office because they are outside the jurisdiction of the
International Criminal Court. The provisions establishing the
jurisdiction of the Court were negotiated between more than
150 countries over a period of more than four years. In
accordance with those provisions, the Court may exercise
jurisdiction if genocide, crimes against humanity or war
crimes are committed on or after 1 July 2002. The
jurisdiction of the Court may be triggered by a referral from
the United Nations Security Council, a State Party or the
Prosecutor exercising his proprio motu powers to initiate an
investigation. To this date, there have not been any
referrals by the Security Council or by a State.

In order to launch an investigation proprio motu, the
Prosecutor must seek the authorization of a Pre-Trial Chamber
of the Court. In this case, the alleged crimes must have been
committed by nationals of a State Party or have taken place
in the territory of a State Party.


I. Allegations of crimes that are not within the
jurisdiction of the ICC

Temporal jurisdiction
The Office has received over 50 communications containing
allegations of acts committed before 1 July 2002, so they are
not within the temporal jurisdiction of the Court.

Subject-matter jurisdiction
A number of communications allege criminal acts which by
their nature lie outside the subject-matter jurisdiction of
the Court. Some letters and complaints, for example, allege
criminal acts related to environmental damage, drug
trafficking, money laundering, tax evasion, and judicial
corruption. Other communications call upon the Court to
become a court of appeals for decisions taken by domestic
courts or they concern human rights violations outside the
scope of the Statute.

Under the Rome Statute, these allegations do not fall within
the jurisdiction of the Court. The Court is not designed to
deal with violations of human rights unless they constitute
genocide, crimes against humanity or war crimes.

The crime of aggression
Thirty-eight communications express the view that a crime of
aggression took place in the context of the war in Iraq.

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 International Criminal Court may adopt
such a provision at a review conference to be convened in

2009. Thus, the alleged crime to which these communications
refer does not fall within the jurisdiction of the Court.

Crimes committed in the territory of non-States Parties
Sixteen communications with no detailed information relate to
acts allegedly committed by United States, troops on the
territory of Iraq. Since neither Iraq nor the United States
is a State Party to the Statute, the ICC has no jurisdiction
in these matters.

There are two brief communications with no detailed
information about the Israeli-Palestinian conflict. These
communications do not involve any State Party. The alleged
crimes, therefore, do not fall within the jurisdiction of the
Court.

The Office has received communications alleging the killing
of civilians by army soldiers in the Ivory Coast. The media
has reported that the Ivory Coast has asked the UN Security
Council to refer the situation in the country to the
Prosecutor of the International Criminal Court in accordance
with Article 13(b) of the Rome Statute, but the Office of the
Prosecutor has received no information from the State or the
Security Council. Thus, at this time, the Prosecutor of the
Court cannot investigate the crimes allegedly committed
because Ivory Coast is not a State Party to the Rome Statute.

II. Crimes allegedly committed by nationals of a State
Party or in the territory of a State Party

The Office of the Prosecutor has received some communications
referring to crimes allegedly committed by nationals of a
State Party. For example, some communications refer to acts
allegedly committed by States Parties who were part of the
coalition forces during the war in Iraq. Pursuant to the Rome
Statute, the jurisdiction of the ICC is complementary to that
of national criminal jurisdictions. Thus, in order for the
Court to exercise jurisdiction over these alleged crimes, it
is necessary to determine whether the national authorities
concerned are unwilling or unable to investigate or prosecute.

The Office of the Prosecutor expects that future
communications alleging the commission of crimes falling
within the jurisdiction of the Court contain specific
information concerning the ability or willingness of national
authorities to deal with those crimes, as well as a
description of the efforts undertaken, if any, to seek
redress before those authorities where appropriate.


III. Decision by the Office of the Prosecutor to closely
follow the situation in Ituri, Democratic Republic of Congo

The Office of the Prosecutor has selected the situation in
Ituri, Democratic Republic of Congo, as the most urgent
situation to be followed. The Prosecutor himself and selected
staff are analyzing the information available and will
request additional information on the occurrence of crimes
and assess the ability of the State to deal with them. The
Office is conscious of the peace process under way, and hopes
that the efforts of the international community to halt the
violence will bear fruit. The Office of the Prosecutor will
use all the powers at its disposal to contribute to the
prevention of future crimes and the investigation and
punishment of the alleged crimes committed in Ituri. If
necessary, the Office of the Prosecutor will seek
authorization from a Pre-Trial Chamber to start an
investigation.

a. Crimes allegedly committed in the Democratic Republic of
Congo

The Office of the Prosecutor has received six communications
regarding the situation in Ituri, including two detailed
reports from non-governmental organizations. These reports
estimate that 5,000 civilians have been killed in Ituri
between July 2002 and early 2003. These deaths are just a
fraction of the civilians who reportedly have died since the
conflict started in 1998. The estimated total number of
deaths varies in different reports, ranging between 2.5 and
3.3 million people. The deaths are a consequence of the
fighting as well as of indirect causes including starvation,
landmines, untreated injuries and diseases (including the
transmission of HIV/AIDS through rape).

The fighting taking place in Ituri seems to be the outcome of
ethnic strife and of the struggle for local power,
intertwined with national and regional conflicts. All of
these aspects of the situation are fueled by the way natural
resources are exploited.

Specifically, the reports allege that armed assailants in
Ituri massacred unarmed civilians, some solely on the basis
of their ethnicity, killing scores of people in individual
attacks over the past year. Members of different armed
groups, reportedly vying for control over the region,s
natural resources, have also allegedly carried out summary
executions, systematic torture, unlawful arrests and
detention of individuals, and abductions of persons whose
whereabouts remain unknown. Crimes specifically targeting
women have also been reported as taking place frequently in
Ituri, including rape and other forms of sexual violence.

This information is corroborated by different United Nations,
national human rights, media and non-governmental
organizations reports. The report on the latest of four
Security Council missions to the Democratic Republic of
Congo, issued on 16 June 2003, described the occurrence of
gross violations of human rights in the eastern part of the
country, including murder, mass rape, large-scale
displacement of civilians, the use of child soldiers and
even, reportedly, cases of ritual cannibalism.

These crimes could constitute genocide, crimes against
humanity or war crimes, and could thus, fall within the
jurisdiction of the International Criminal Court.

b. Money-laundering and other crimes committed outside the
Democratic Republic of Congo which may be connected with the
atrocities

Various reports have pointed to links between the activities
of some African, European and Middle Eastern companies and
the atrocities taking place in the Democratic Republic of
Congo. The alleged involvement of organized crime groups from
Eastern Europe has also been mentioned. Their activities
allegedly include gold mining, the illegal exploitation of
oil, and the arms trade. There is general concern that the
atrocities allegedly committed in the country may be fueled
by the exploitation of natural resources there and the arms
trade, which are enabled through the international banking
system.

Although the specific findings of these reports have not been
confirmed, the Prosecutor believes that investigation of the
financial aspects of the alleged atrocities will be crucial
to prevent future crimes and for the prosecution of crimes
already committed. If the alleged business practices continue
to fuel atrocities, these would not be stopped even if
current perpetrators were arrested and prosecuted. The Office
of the Prosecutor is establishing whether investigations and
prosecutions on the financial side of the alleged atrocities
are being carried out in the relevant countries.

c. Ability of the government of the Democratic Republic of
Congo to genuinely investigate and prosecute the crimes
allegedly committed in Ituri

A transitional government was being established in the
Democratic Republic of Congo on 30 June 2003. This government
stated that it intends to put an end to the bloodshed, but in
order to do this it requires the resolved assistance of the
international community.

The United Nations Security Council is following the
situation in the Democratic Republic of Congo closely. It has
sent four missions to the country, the last on 7-16 June

2003. According to the report of this last mission fighting
continues to affect the area, and impunity remains rampant in
Ituri.

In their last meeting on 7 July 2003, members of the Security
Council again expressed their concern about the situation in
the country. In this meeting the Council received information
from Jean-Marie Guhenno, Under-Secretary-General for
Peacekeeping Operations, and from Bertrand G. Ramcharan,
acting High Commissioner for Human Rights. There was a
general recognition that the transitional government faces
many difficulties, but also that peace cannot be restored
without an end to impunity. Several possibilities and
complementary mechanisms -- including national truth
commissions and a human rights observatory agreed upon during
the Inter-Congolese Dialogue at Sun City (South Africa) --
have been identified. The members of the Security Council
have also acknowledged the need for international assistance
to effectively investigate the alleged crimes and punish the
perpetrators.

The United States Department of State,s 2002 country report
on the Democratic Republic of Congo confirms the difficulties
of the national government to control the territory. It also
described the inability of judicial and police authorities to
investigate and prosecute the alleged crimes.

The Office of the Prosecutor on the International Criminal
Court supports the efforts being made by national and
international actors alike to help the country along the road
to peace, and will bear these efforts in mind as it continues
to follow the situation in the Democratic Republic of Congo
closely.

End text of ICC press release.
RUSSEL