ICC: OTP, STILL A WORK IN PROGRESS, LOOKING AT

C O N F I D E N T I A L SECTION 01 OF 03 THE HAGUE 001016 SIPDIS DEPARTMENT FOR S/WCI - PROSPER/RICHARD, L - WTAFT, L/UNA - MATHIAS/COGAN, L/AF - GTAFT E.O. 12958: DECL: 10/13/2010 TAGS: PREL PGOV KAWC SUBJECT: ICC: OTP, STILL A WORK IN PROGRESS, LOOKING AT AFRICA REF: A. KINSHASA 707 ¶B. WWW.ICC-CIP.INT/PHP/NEWS Classified By: Legal Counselor Clifton M. Johnson per reasons 1.5(b)-(d ). ¶1. (C) Summary: The International Criminal Court (ICC) remains very much in a nascent stage even as the Office of the Prosecutor (OTP) considers whether to open formal investigations of situations in northern Uganda and the Congo, based on referrals from Kampala and Kinshasa (refs). The lack of any formal investigation -- let alone indictments or cases -- has allowed the competing visions of the institution to develop into policy and personality disputes within its organs and among its senior leadership, though at this stage it is difficult to tell whether such disputes are merely early growing pains or something else. Early signs, however, are that Chief Prosecutor Luis Moreno-Ocampo is firmly stamping his vision on the OTP. End summary. ¶2. (C) The ICC is, as one UK colleague reports, "very much a work in progress." It is growing both in terms of staff and workload, though the former is outpacing the latter. Each of the four organs of the ICC -- the Presidency, Chambers, Registry and OTP -- has been focusing for the past year on organization and recruitment, while the senior management also engages in substantial outreach (speeches, travel, etc.). Most of the personnel growth is occurring in the OTP, which envisions a staff of over 100 by the end of 2004. The senior leadership interacts through a Coordination Council bringing together the Prosecutor, Registrar and President, or their respective deputies or chiefs of staff, who work on items of mutual concern. -------------- Form and Substance Mesh in OTP -------------- ¶3. (C) Structurally, the OTP is becoming the most sophisticated and complex of the ICC organs, as the judges bide their time by working on regulations to govern their work (nb: unlike the ICTY, the judges of the ICC have no power to promulgate Rules of Procedure and Evidence, a power which rests with the ICC Assembly of States Parties) and the Registry works principally on infrastructure and administration. The OTP has organized itself into an Investigations Division, headed by a deputy prosecutor from Belgium, Serge Brammertz; a Prosecutions Division, whose division chief position remains vacant and likely to be filled in September; and a unique Jurisdiction, Complementarity and Cooperation Division (JCD),headed by Chief Prosecutor Luis Moreno-Ocampo's chief of staff, Silvia Fernandez. ¶4. (C) The OTP structure is revealing, particularly as the JCD points not only to a complicated set of relations among the key personnel in the office but also to the way in which Ocampo sees the OTP's role. At this time, the JCD is a small section largely staffed by former foreign ministry-type lawyers and other analysts, whereas the other divisions involve small numbers of prosecutors and investigators from a mix of national jurisdictions and international tribunal (mainly ICTY) experience. As described to embassy legal officer, the JCD is the entry point for any communications claiming criminal violations within the jurisdiction of the ICC (approximately 700 received since July 2002) and is the first stop for analysis of whether available information provides a basis for initiating investigation. Its two principal analytical questions are, first, whether the information on its face falls outside ICC jurisdiction, and second, whether a national jurisdiction may already be in a position to handle the allegations in its own criminal justice system. As a result, Ocampo has put complementarity -- i.e., the question of national competence and capacity to try crimes domestically rather than at the ICC -- in a priority place in his office structure. ¶5. (C) The primacy of the JCD, particularly at this early phase of the OTP's development, rankles the other sections of the OTP, especially the investigators, who see their role of assessing and developing information as a primary one for the OTP. According to an embassy contact, the investigators and JCD officers do cooperate and the distinctions between their functions have not led to strict firewalls. Nonetheless, JCD officials have the lead role in the current phase of OTP work. Moreover, JCD officers tend to see investigators as unnecessary at the current phase, preferring instead regional experts and political analysts who can assess the reliability of information. ¶6. (C) In matters of perspective, key JCD officers also differ from others in OTP. This derives not only from their non-prosecutorial background but also from some officers' previous positions in governments that had substantial information-sharing programs with the ICTY. For example, two key officers are from the UK Foreign Office and Canada's DFAIT, respectively). In part as a result of their backgrounds, these officers see it as essential to the OTP's success to develop positive relationships with information-providers, particularly governments. They are in the process of holding 'educational' discussions with key governments, particularly in Africa but also with major ICC supporting governments such as the UK. ¶7. (C) With this background in mind, JCD officers believe that governments are unlikely to share sensitive information with the OTP in the absence of strong protections against their further disclosure without consent. According to one, however, they are facing a significant hurdle with investigators and Chambers, which is said to be ready to adopt regulations that would require the OTP to disclose potentially exculpatory information to a trial chamber even if the information derives from a provider that does not consent to such disclosure. This dispute, which rings similar to the long-running but almost nearly resolved questions of whether the ICTY's Rule 70 (information-sharing) trumps its Rule 68 (exculpatory information),is putting some JCD officers in the position of having to tell potential information-providers that they cannot guarantee at this stage that sensitive information would not also be shared with an ICC trial chamber. This fact leaves JCD uneasy and concerned that governments will be hesitant to share the most sensitive lead and background information with the OTP. ¶8. (C) Finally, the backgrounds of the respective officials in the OTP continually play a role in how they see the OTP's mission. The former government lawyers, for instance, do not appear to see their missions in strictly prosecutorial terms. As one JCD official put it, when looking at a situation for possible investigation, he needs to consider not merely whether a crime occurred and whether a particular person or persons may be subject to prosecution; he also needs to consider whether prosecution would promote justice more generally, just as Article 53(2)(c) of the Rome Statute provides that the Prosecutor may decide not to proceed with a prosecution that is "not in the interests of justice". Ocampo is said to see his role in similar terms. The investigators reportedly do not see it the same way; rather, they see their role as following the information and evidence wherever it leads. They are ready to scour potential crime sites for evidence before the assessment is made as to whether an investigation/prosecution would likely be permitted, whereas the JCD officials see it is as fundamentally important first to gain the trust and cooperation of those potential governments in whose territory crimes might have been perpetrated. -------------- Uganda and Congo -------------- ¶9. (C) The result of the JCD-investigators divergent perspectives is seen, to some extent, in the early efforts to gather information from Kampala and Kinshasa. The Presidents of both countries have now made referrals to the OTP. The referrals on their own, however, do not require the OTP to open a formal investigation, though Emboff contacts all believe that formal investigations will be opened over the next several months. One reliable source has reported that the OTP is operating on the assumption of investigating three situations in 2005. Both JCD and investigative officials have made numerous trips to both capitals in an effort both to encourage cooperation and begin the process of collecting information. Investigators have gone on these trips prepared to begin the process of information-gathering, whereas the JCD officials have been taking a go-slow approach, using the visits more to build relationships with responsible government officials. -------------- Personalities -------------- ¶10. (C) It remains difficult to assess, from the Embassy's distance, the impact of the key personalities on the ICC's early work. Some trends evident, however, and chief among them is that the three principals -- President Philipe Kirsch, Prosecutor Ocampo, and Registrar Bruno Cathala -- eye one another with a mixture of suspicion and bemusement. Ocampo is seen to be the wildcard by some on his staff -- a seemingly laid back Argentine who is less concerned with the details than "the vision" and his mission. The meetings between this rumpled-suit prosecutor with a half-shaved beard, the smooth, pinstriped Kirsch and the voluble, dynamic Cathala are said to be comic in appearance -- but not settings for clear understanding. Cathala, emboffs are told, has committed some misdemeanors of overreach, seeking to use his control of infrastructure issues as a wedge into what Kirsch sees as his turf. For one thing, Cathala's early vision of a flexible institution able to contract and expand according to the demands of the proceedings, appears to have been shelved in favor of a more traditional, solidly growth-oriented agenda. For his part, Kirsch seems to be presiding over a restive set of judges, many of whom come from distinguished backgrounds and are now simply waiting for OTP to give them something real to do (and move beyond development of what is described as a several-inch thick set of judicial regulations). -------------- Comment -------------- ¶11. (C) Comment: One year after they joined the ICC, the principal ICC officials continue to work on shaping and building their institution. It should be expected that any such process will cause strains, particularly against the backdrop of healthy egos, ambitious junior officials, the NGO and States Parties' microscope, and an unclear mandate. Still, two factors of particular strain have come to the fore at the OTP. First, unlike other international tribunals, the ICC lacks a specific geographic and temporal charge that can give its investigators and prosecutors some sense of the possible. The result, in part, is that the sense of mission is somewhat diffuse -- in contrast to the ICTY's early rallying call of bringing an end to crimes in Bosnia the ICC mission at present is more to find a case or cases that can demonstrate the ICC's seriousness and value. ¶12. (C) Here, then, is the second problem for the ICC -- a difficulty in defining what "seriousness" and "value" mean. Investigators and prosecutors are said to see it as meaning that the ICC should be in a position to prosecute serious crimes. But the Chief Prosecutor himself seems to see the ICC's role as, perhaps principally, ensuring that domestic jurisdictions have the ability to prosecute cases in their own systems. He has said numerous times that a sign of ICC success would be when domestic jurisdictions, and not the OTP, prosecute cases -- a line that seems to zero out the job of investigators and prosecutors. The early prominence of the JCD seems to concretize this point, which appeared merely rhetorical at first. As the OTP heads towards more formal investigations into the Congo and Uganda, the outcome of this internal maneuvering will likely become clearer. End comment. SOBEL