US embassy cable - 04THEHAGUE1885

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." 
 
--------------------------- 
Early Investigative Efforts 
--------------------------- 
 
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. 
 
------------------- 
The Cost of Justice 
------------------- 
 
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. 
 
------- 
Comment 
------- 
 
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