ICC: GETTING DOWN TO BUSINESS?

C O N F I D E N T I A L SECTION 01 OF 04 THE HAGUE 001885

SIPDIS

DEPARTMENT FOR S/WCI - PROSPER/RICHARD, L - WTAFT, L/UNA -
BUCHWALD/COGAN, L/AF - GTAFT

E.O. 12958: DECL: 10/13/2010
TAGS: PREL PGOV KAWC
SUBJECT: ICC: GETTING DOWN TO BUSINESS?

REF: A. KINSHASA 707

B. THE HAGUE 2779

C. THE HAGUE 1016

D. THE HAGUE 1837

Classified By: Deputy Legal Counselor David Kaye per reasons 1.5(b)-(d)
.


1. (SBU) Summary: The next few months will see the
International Criminal Court (ICC) begin formal
investigations into serious charges of war crimes and crimes
against humanity in Africa. The Office of the Prosecutor
(OTP) recently opened its first investigation in the
Democratic Republic of the Congo (DRC) and is set to commence
another in Uganda this week. Lacking specific cases, the
judges are focused on rules and regulations for their work,
while OTP and the Registry are gearing up in staffing and
organization. As a consequence, ICC staffing levels have
been expanding over the past several months and are set to
continue growing through 2005. Embassy legal officers'
conversations with diplomats and other contacts in The Hague
who follow the ICC closely say that ICC staff, from the
senior leadership to the rank-and-file, remain both excited
and anxious about their prospects. Typical symptoms of
start-up international organizations -- bureaucratic
infighting, energetic gossip, and individual ambition -- may
also be less pronounced as the OTP turns the organization's
attention to specific cases. End Summary.


2. (C) The sense of movement in the ICC is palpable, from the
rank-and-file -- who express excitement about the uptick in
concrete work assignments -- to the senior staff. (Ref C
discusses the very different mood pervading at the ICC just
months ago, in April 2004). In a chance conversation at a
friendly embassy's reception, Philippe Kirsch of Canada told
Embassy legal officer that he was, until six months ago,
wondering why he agreed to join the ICC as President. It
lacked work, its political prospects were poor, and
bureaucratic infighting among the Registry, Chambers and OTP
was rampant. Now, he says, things are better. The
Registrar, Bruno Cathala of France (an effective deputy
registrar at the International Criminal Tribunal for the
former Yugoslavia (ICTY) but widely seen as ineffective
within the ICC),now "knows he works for me," Kirsch said,
though "he remains difficult." The place is "consumed by
gossip" more than he expected. He said the judges are busy
with the rules and regulations, but that OTP is "focused."
Kirsch said he is pressing Chief Prosecutor Luis
Moreno-Ocampo of Argentina to do more outreach, but he "still
doesn't understand how important that is." Kirsch added that
he wants the ICC to begin its work so that people will no
longer will be able to speculate on "whether we are or will
be politically motivated. The proof that we are not," he
said, "will be in our actions."

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Early Investigative Efforts
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3. (C) In June, it was announced that three Pre-Trial
Chambers were established, organized to address legal matters
that arise prior to the commencement of trial proceedings.
This is a necessary first step to hearing cases, a reality
that drew closer when the OTP commenced its first
investigation. On June 21, Ocampo notified ICC states
parties that OTP "determined that there is a reasonable basis
to commence an investigation into crimes allegedly committed
in the territory of the Democratic Republic of the Congo
(DRC)" since 1 July 2002. The situation was officially
referred to the ICC by the DRC in March 2004 and the OTP made
the announcement after an initial examination of the
situation (Refs A and B). Though it will first focus on
events in the northeastern region of Ituri, the ICC stresses
that its decision to open an investigation means that it will
cover all aspects of a referred "situation;" this includes
parts of the situation outside the initial focus region, and
potentially contrary to the wishes of the DRC. Ocampo says
that OTP "has evaluated the information available on issues
of jurisdiction, admissibility and the interests of justice
with respect to the entire territory of the DRC." He has
found a "potentially widespread pattern of victimization,
including but not limited to rape and other sexual violence,
torture, child conscription, and forced displacement." That
said, he has also told members of his staff that, if he can
focus on simply one count of murder, for example, in a
particular case with confidence that he could gain a
conviction, he would be willing to limit his indictments
accordingly. He expects to focus on "those who bear the
greatest responsibility for crimes," a clear allusion to his
desire to focus on senior-level perpetrators.


4. (C) Embassy legal officers have also learned that Ocampo
will notify states parties on July 28 (and issue a press
statement on July 29) of his decision to "commence an
investigation into crimes allegedly committed in northern
Uganda" since July 1, 2002. (Notification and press
statement emailed to S/WCI and L/AF.) Like the DRC, Uganda
referred the situation in the north, involving activities of
the Lord's Resistance Army (LRA),to the OTP, and OTP
officials have engaged Kampala closely in seeking its
cooperation in the event of an investigation. Legal officer
was told that Kampala agreed to the ICC condition that any
investigation will examine not only LRA acts, but also those
of government forces. The July 28 notification will also
note that "Ugandan authorities have not and do not intend to
conduct national proceedings, preferring instead that the
cases be dealt with by the ICC." Embassy legal officer has
also learned that the Sudanese Foreign Minister, who passed
through The Hague last weekend, met with Ocampo on July 24;
Ocampo is interested in obtaining Khartoum's cooperation in
the Uganda investigation. In particular the ICC wants
assistance in the Uganda-Sudan border areas where the LRA
operates. That said, an OTP official noted that Sudanese
officials may also be involved in sheltering LRA members and
could be criminally liable under the ICC Statute (as aiders
and abettors, for instance) for such actions.


5. (SBU) The Jurisdiction, Complementarity and Coordination
Division (JCCD) is charged with reviewing the scores of
individual communications received by the OTP. (NB:
Individuals may communicate directly with the OTP so as to
bring to its attention possible crimes within ICC
jurisdiction. Embassy legal officers understand that a
majority of the communications -- largely from U.S. citizens
-- have either been spurious or concern matters outside the
ICC's jurisdiction.) According to the recently released
draft budget, by the end of 2003, nearly 800 communications
had been received, and the ICC is projecting a near tripling
of that number in the next fiscal year; the organization
projects that these communications will result in about ten
situations that will merit further substantial study. Though
there are additional countries already receiving ICC
attention -- include Cote d'Ivoire, Colombia and Venezuela --
there is no indications that these States will become
subjects of formal investigations in the near term.


6. (C) Meanwhile, the JCCD is working to develop cooperative
relationships with governments and international
organizations. An official OTP team is currently in the DRC
seeking such cooperative arrangements with the government and
others. OTP has not, however, been able to guarantee
governments that information provided will be kept strictly
confidential, if so requested. Lawyers in the JCCD have

SIPDIS
struggled to convince the judges that governments will be
hesitant to share sensitive information if they have no
ability to control the dissemination of that information
beyond OTP. The judges have thus far, however, jealously
guarded what they see as their right to see all information,
whether provided in confidence or not, and it remains unclear
whether their jealously extends to all information or just
information that may be considered as "exculpatory" to a
defendant. This issue has proven difficult at the ICTY and
has already begun to be played out in the ICC with no
solution yet in sight. Embassy officers understand that a
less difficult cooperation agreement with the United Nations
is in its end stages of negotiation. ICC officials consider
this to be an important agreement, especially given the heavy
UN presence in the DRC (in the form of MUNOC). Further,
embassy legal officers have been told that MUNOC may already
have some potential ICC investigative targets (or witnesses)
in custody.


7. (SBU) A signature component of Ocampo's vision for OTP
rests on his often repeated maxim that "true success for the
ICC would be for the Court not to prosecute anyone." (Ref B)
Ocampo hopes to use the mere threat of ICC involvement in
order to push domestic systems into compliance with
international norms, thus allowing violations to be tried
where they occur rather than in The Hague. This use of the
ICC as a stick is being called "positive complementarity,"
and OTP apparently plans to use this method in dealing with
certain countries, such as Colombia, in the near future.

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The Cost of Justice
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8. (SBU) In preparation for the first meeting of the Assembly
of States Parties to be held in The Hague (September 6 - 10),
the Registry has released its draft budget for 2005. The
document calls for a total 2005 budget of 70 million Euros,
with about half dedicated to the Registry, and just under a
quarter assigned to OTP. Nearly 60 percent of the budget
goes to staffing costs. The budget calls for a 40 percent
increase in staff over the next fiscal year, which may total
up to 800 staff by the end of 2005, a number which includes
the addition of several new senior staff members. The OTP is
currently engaged in a search for a deputy chief prosecutor
and has selected two further senior prosecutors (to augment
the sole senior prosecutor now in post). Both new senior
prosecutors (alumni of the ICTY) will join the Court before
the end of this year. The document also notes that the ICC
has yet to finalize the location of its permanent facilities,
which are projected to include space for all units of the
ICC, including a detention center. (The Court currently
occupies half of a building in Voorburg, south of The Hague;
it shares the building with Eurojust. The facilities are
said to be insufficient for full operations of the Court, and
staff complain about the quality of the premises and cramped
office space.)


9. (SBU) The growth in personnel has not come without
difficulty, especially for the ICTY across town. The ICC is,
by and large, only offering one-year contracts, limiting the
attractiveness of a post to some candidates (though this is
similar to the ICTY). Further, within the Court, and
especially from member States, Ocampo has received
significant flak following his decision to appoint an
American as his first senior prosecutor; he has apparently
decided not to hire any further non-member State nationals to
posts in OTP. (NB: Officially, ICC hiring guidelines hold
that a non-member State national can be considered for a post
only if she is more qualified than any applicant from a
member State.) Gaining posts for their nationals preoccupies
a number of member States, and all areas of the ICC have felt
some pressure by member States lobbying for specific
candidates. To support its growth, the organization is
borrowing (or taking) from the United Nations. It has
devised its staffing structures, salary levels and
nomenclature to match the UN's and it has adopted significant
portions of the UN staff manual. Further, the organization
of the OTP will follow the UN model established by the ICTY
and ICTR, and will be structured with prosecutors separated
into case-specific teams. Many investigators, lawyers and
staff from the ICTY (located only a few miles away) have left
the Tribunal and joined the ICC.

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Comment
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10. (C) The ICC is set to expand significantly over the
coming year, burrowing into The Hague landscape for the
long-term. Expansion will need justification in the form of
investigative and prosecutorial activity, and this is clearly
the ICC's general focus now. Interestingly, its first two
formal investigations were initiated by the subject
governments themselves; in that sense, they may not provide
the ICC with the political test that would come with a more
contentious exercise of jurisdiction (e.g., a case where the
subject state, while unwilling or unable to pursue
investigation or prosecution of crimes itself, nonetheless
objects to ICC action). They will, however, provide the ICC
with a direct test of its investigative and, one expects,
prosecutorial capabilities. Observers and ICC parties,
especially those who will bear the burden of financing the
growing organization, will undoubtedly be poring over the
ICC's reports to determine whether it is working efficiently
and effectively. Apart from the attention to actual
investigations, we expect two other issues to concentrate the
minds of ICC-watchers. One is the focus on Africa, as we
have already heard of concern that the ICC could become the
"criminal court for Africa." Second is the potential for
Ocampo's "positive complementarity" to work too successfully,
from the perspective of committed ICC-backers. That is,
would the increase in credible domestic prosecutions --
encouraged by Ocampo -- serve to undermine the justification
for the ICC's substantial growth through 2005? Its
activities over the coming months may bear out the direction
of the ICC in both of these areas. End comment.
SOBEL