From: Eli Pariser, MoveOn.org 
To: Fye Samateh 
Sent: Thursday, August 21, 2003 10:50 PM
Subject: Grassroots Interview with ICC Chief Prosecutor


GRASSROOTS INTERVIEW WITH LUIS MORENO-OCAMPO
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. 

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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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