US embassy cable - 03THEHAGUE1806

C O N F I D E N T I A L SECTION 01 OF 04 THE HAGUE 001806 
 
SIPDIS 
 
E.O. 12958: DECL: 07/15/2013 
TAGS: PREL, KAWC, KJUS, ICTY, KICC 
SUBJECT: ICC: A CAUTIOUS BEGINNING WITH MIXED SIGNALS FROM 
THE PROSECUTOR 
 
REF: 02 THE HAGUE 3524 
 
Classified By: Legal Counselor Clifton M. Johnson per reasons 1.5(b) an 
d (d). 
 
1. (C) Summary:  Public documents of the International 
Criminal Court (ICC) and conversations with diplomats from 
friendly states parties to the Rome Statute and other members 
of The Hague international law community have given Embassy 
legal officers an early glimpse into the formative activities 
at ICC headquarters.  Chief Prosecutor Luis Moreno-Ocampo and 
his key staffers are working to develop principles, rules and 
regulations to guide their selection of the first preliminary 
examinations and investigations while at the same time 
culling through over 400 submissions alleging potential 
crimes for the ICC to pursue.  Ocampo has signaled his 
interest in examining potential crimes in Congo and Colombia. 
 Less clear are his views on Iraq.  While he has spoken of 
alleged crimes involving British forces in Iraq in 
semi-public briefings, his private comments indicate that 
such cases would be highly unlikely candidates for ICC 
investigations.  Meanwhile, in late June, the ICC ended the 
phase of leadership head-hunting when ICC judges selected 
Bruno Cathala of France as the organization's first 
Registrar.  With leadership figures now in place in all three 
branches of the court, the next key event is Ocampo's press 
briefing on July 16 where he will provide an overview of 
"information received by the Office of the Prosecutor 
regarding potential situations under the jurisdiction of the 
Court."  End summary. 
 
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The Prosecutor Promises Restraint and Focus . . . 
--------------------------------------------- ---- 
 
2. (C) ICC Chief Prosecutor Luis Moreno-Ocampo faces three 
major tasks at this time -- setting out his office's 
investigative and prosecutorial policies and principles, 
organizing the office itself, and reviewing incoming 
information concerning potential crimes.  Ocampo's early 
thoughts on prosecutorial policy may be found in a draft 
policy paper OTP published on the ICC website in advance of a 
June 17-18 OTP "public seminar" (see 
www.icc-cpi.int/otp/policy.php).  OTP seems to be making an 
effort to cool the passions and lower the expectations of ICC 
activists who want the prosecutor to issue ambitious 
indictments soon.  Three aspects of the paper in particular 
give an early view into how Ocampo intends to manage his 
investigative responsibilities. 
 
3.  (C) First, the paper emphasizes the constraints on ICC 
action much more than the opportunities for investigations 
and prosecutions.  Echoing the new Registrar's views (see 
paras 11-13 below), it emphasizes "the logistical constraints 
that will limit the practical scope of action of the Court" 
and argues for "a project-oriented as opposed to a static 
organisation model" for the court.  Its emphasis on resource 
constraints is matched by a stated commitment to 
complementarity -- the principle that national jurisdictions 
have primacy over the ICC and that the ICC merely complements 
national systems.  It makes a restrained, if rhetorical, 
claim that the ICC's success should be measured "by the 
absence of trials by the ICC as a consequence of the 
effective functioning of national systems."  Such rhetoric, 
we have heard from close observers of the ICC, has strongly 
irritated leading ICC supporters in the non-governmental 
organization (NGO) community. 
 
4. (C) With respect to complementarity, OTP takes an initial 
stab at evaluating the content of the Rome Statute's 
provision for determining that the ICC may take jurisdiction 
over a situation if an otherwise responsible state would be 
"unwilling or unable" to exercise its jurisdiction.  It 
suggests that the prosecutor will need to take a hard look at 
such situations before proceeding to investigations.  The 
paper emphasizes that "States remain responsible and 
accountable for investigating and prosecuting crimes 
committed under their jurisdiction and that national systems 
are expected to maintain and enforce adherence to 
international standards."  Indeed, the prosecutor seems eager 
to use his position as much to "help State authorities to 
fulfill their duty to investigate and prosecute at the 
national level" as to investigate and prosecute crimes 
himself. 
 
5. (C) Second, the OTP is clearly heading toward a policy -- 
similar to that of the International Criminal Tribunal for 
the former Yugoslavia (ICTY) -- of focusing its investigative 
and prosecutorial energies on senior-level perpetrators of 
crimes within its jurisdiction.  Here the OTP appears to be 
taking a narrower approach than the Rome Statute, which 
refers to "the most serious crimes of concern" to the 
international community, by focusing on only the most senior 
alleged perpetrators of such crimes.  The OTP argues that 
"(t)he concept of gravity should not be exclusively attached 
to the act that constituted the crime but also to the degree 
of participation in its commission."  The OTP policy paper 
concludes that the OTP should therefore "focus its 
investigative and prosecutorial efforts and resources on 
those who bear the greatest responsibility, such as the 
leaders of the State or organization allegedly responsible 
for those crimes."  Embassy legal officers have learned from 
some participants at the June 17-18 OTP seminar that this 
aspect of the paper caused the greatest consternation among 
the NGO community, which decried the emergence of a so-called 
"impunity gap," in which senior levels get prosecuted but 
lower-level criminals escape prosecution.  OTP anticipated 
that charge by stating, in its paper, that "less grave cases" 
should be returned to national jurisdictions for prosecution 
-- again, a further echo of the ICTY and its "completion 
strategy". 
 
6. (C) Finally, the OTP does not fully suggest how it will 
evaluate information that NGOs and individuals are 
increasingly submitting as evidence of war crimes, crimes 
against humanity or genocide.  Embassy contacts have noted 
that the prosecutor seems obligated to evaluate incoming 
information, whatever its source, pointing to the provision 
of Article 15(2) of the Rome Statute that the "Prosecutor 
shall analyse the seriousness of the information received." 
The paper emphasizes that OTP's Analysis Section "must be 
strengthened" so that it can undertake "focused and 
effective" preliminary examinations of incoming information. 
The OTP especially wants to develop analytic capabilities to 
identify "complex patterns of criminal conduct" and the 
presence of elements of alleged crimes.  Again, the paper 
returns to the theme of resource limitations, noting the 
OTP's interest in "cost-effective" investigations. 
 
7. (C) A set of "draft regulations" designed to guide OTP's 
investigative and prosecutorial activities gives some insight 
into how it will evaluate whether information provides a 
sufficient basis for an investigation.  For instance, the 
draft section on preliminary examinations would guide the 
office from the initial collection of communications 
submitted to the OTP, to its "assessment of the credibility 
and reliability of the sources of information" and the 
preparation of a "preliminary examination report" and "draft 
investigation plan."  The ultimate aim in this respect would 
be a recommendation from the deputy prosecutors for 
investigations and prosecutions to the chief prosecutor as to 
whether OTP should seek authorization from a pre-trial 
chamber to conduct an investigation.  A draft investigation 
plan would assess such items as the reasonableness of belief 
that a crime within the ICC's jurisdiction took place; the 
role of likely suspects and aims of an investigation; whether 
a case would meet the complementarity standards of the 
Statute; a discussion of required resources for an 
investigation; and other matters.  The full text of the 
regulations may be found at 
www.icc-cip.int/otp/draft regulations. 
 
8. (C) At the organizational level, the OTP deputy slots 
remain to be filled (perhaps by a decision of the Assembly of 
States Parties in September), though Ocampo has initiated an 
active hiring program that tracks his focus on policies and 
investigations rather than prosecutions at this stage.  The 
institution remains small, and OTP is looking to hire 
mid-level investigators and lawyers to guide preliminary 
examinations of incoming information as well as lawyers with 
background in public international criminal law.  He has 
hired as his chief of staff and head of the OTP's 
"complementarity unit" Argentine diplomat and lawyer Sylvia 
Fernandez.  Fernandez has extensive experience with the ICC, 
having served as a senior negotiator for Argentina at Rome 
and as head of the working group looking at the definition of 
aggression in the ICC Preparatory Commission.  A UK colleague 
indicated that she is considered a reliable and serious 
person who is rated very highly by FCO lawyers.  The 
experience of some USG delegates to the ICC Rome Conference 
is less positive and some credit her with the drafting of 
various anti-U.S. provisions in the statute.  We expect that 
Fernandez' role and influence will become clearer over time. 
 
----------------------------------------- 
. . . But Is Ocampo Ready For Prime Time? 
----------------------------------------- 
9. (C) While Ocampo seems to be moving the OTP in a careful 
direction with his draft policy paper, his public statements 
reveal a prosecutor who has not yet mastered his public role. 
 Ocampo will be further tested and subject to public scrutiny 
when he describes in a July 16 press conference the over 400 
submissions received by the OTP thus far, of which over 100 
are said to be Iraq-related.  In semi-private forums and in 
private conversations reported to Embassy legal officers, 
Ocampo has indicated consistently that his initial 
investigative interests will focus not on Iraq but on the 
situation in the Congo, including the potential involvement 
of Belgians with financial interests in the diamond industry, 
and Colombia.  In public, however, Ocampo has been less 
restrained.  At a recent presentation before a group of ICTY 
staff and students participating in a Humanity in Action 
summer course, Ocampo said that he was looking at the actions 
of British forces in Iraq -- which, according to one Embassy 
source, led a British ICTY prosecutor nearly to fall off his 
chair.  It was, another participant said, "a complete 
shocker" and came without any qualifications.  Such 
statements may contain less than meets the eye.  Privately, 
Ocampo has said that he wishes to dispose of Iraq issues 
(i.e., not investigate them), much in line with what 
Registrar Cathala is urging (see para 13 below).  In 
addition, some observers of Ocampo believe he has adopted too 
much of an academic approach -- raising situations such as 
Iraq not to signal areas he wishes to investigate but to 
illustrate the limits of the ICC's jurisdiction (i.e., that 
jurisdiction may extend to UK but not U.S. personnel). 
 
10. (C) Embassy interlocutors have also suggested that 
Ocampo's public remarks may be directed at fending off a wave 
of dissatisfaction among the NGO community about his draft 
policy paper.  According to this reasoning, Ocampo wants to 
bring attention to the complaints he has received so as to 
prompt governments to conduct their own investigations and 
thereby provide a basis for removing these cases from ICC 
review under the complementarity provision.  A colleague at 
the UK Embassy, who was aware of Ocampo's remarks concerning 
the UK, said London was not particularly concerned because 
any information about UK war crimes, if assessed reliable, 
would be the subject of investigation by relevant UK 
authorities and, ultimately, not be subject to ICC 
investigation.  Some Embassy contacts also suggest that 
Ocampo's mediocre English skills may give his public remarks 
a less nuanced and more glib tenor than intended. 
 
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A Cautious French Administrator for the ICC 
------------------------------------------- 
 
11. (C) On June 24, the ICC's 18 judges selected as Registrar 
France's Bruno Cathala -- a pragmatist who impressed Embassy 
legal officers in his former function as deputy registrar of 
the ICTY.  Cathala has been the de facto Registrar since the 
fall, when the Assembly of States Parties drew him away from 
the ICTY in order to be the ICC's Director of Common 
Services, or chief administrator.  (Note: His selection 
disappointed the Dutch Government, which had expected, as is 
the tradition with many international legal institutions in 
the Hague, that the position would go to the Dutch candidate. 
 End note.)  A lawyer and civil law judge by training, 
Cathala has long experience in court and organizational 
management.  The Embassy's experience with Cathala as deputy 
registrar of the ICTY is solidly positive; he was a leading 
force behind the emergence of the completion strategy and a 
constant thorn in the sides of ICTY judges and prosecutors, 
whom he pressed daily to stick to ICTY efficiency and 
completion strategy benchmarks.  He regularly made himself 
available to Embassy officers to discuss ICTY issues, and in 
our periodic contact with him since his departure from the 
ICTY, has emphasized his interest in seeing the ICC develop 
in a decentralized, flexible, measured, and narrowly focused 
way.  See reftel. 
 
12. (C) Sensitive to the ICC's resource limitations, Cathala 
believes that the ICC cannot seek to try all war criminals 
within the court's jurisdiction but needs to focus its 
efforts on those most responsible for such crimes.  It is a 
vision derived from his experience at the ICTY and leads him 
to a different place than many of the ICC's strongest 
supporters.  While he will not have influence over the 
prosecutor's specific investigative decisions, he will be in 
a position to help steer the ICC in a fiscally responsible 
direction.  An energetic and voluble character, Cathala 
professes to be a proponent of caution within the ICC, and 
his control of the purse will undoubtedly influence the OTP 
and chambers. 
 
13. (C) Cathala (please protect) told an embassy legal 
officer that he has strongly advised Ocampo to speak very 
carefully in public and to be extraordinarily sensitive to 
the way even strictly accurate statements may be perceived. 
In the face of the media "pushing and pushing" and under the 
watchful eyes of governments, the "first wrong word," Cathala 
said, could easily spell disaster for the court.  It will be 
crucial, he said, for the ICC to dispose easily of "silly 
things like Iraq".  "We're not going to run all over the 
world," said Cathala, who added that he personally wants 
relations with the USG to be smooth. 
 
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Comment 
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14. (C) Cathala's personal comments to Emboff and Ocampo's 
early OTP documents seem designed to put the USG at ease and 
assure us that the court will proceed carefully and not 
launch controversial investigations.  Ocampo's public 
statements raise concerns less about what he will investigate 
and prosecute -- as one colleague noted to us, the prosecutor 
has an obligation not merely to throw away complaints but 
must at least dispose of them according to some logic -- than 
about his ability to avoid embroiling the ICC in controversy 
even in the absence of any investigations.  The proof of 
Ocampo's abilities and intentions, of course, will be found 
in how he selects and investigates his first targets. 
 
15. (C) Despite the seeming transparency of the OTP, many 
questions are likely to remain unanswered until the first 
investigations are announced.  For instance, how will the OTP 
sift through its growing in-box, some submissions no doubt 
legitimate but many more politically motivated and useless 
for the purpose of investigations?  How in practice will the 
prosecutor determine when a State is "unwilling or unable" to 
exercise jurisdiction over an alleged crime?  Will the 
prosecutor undertake preliminary investigations even before 
determining whether a State is "unable or unwilling" to do so 
itself?  What specific crimes will be of the most interest to 
the OTP, and how high up the chain of command will the 
prosecutor select his investigative targets?  With Ocampo 
beginning to sift through investigation submissions and new 
staff coming on board, the coming months should demonstrate 
more clearly whether the ICC and its leadership have the 
temperament to pursue and sustain a cautious course. 
SOBEL