“Case Closed: A Prosecutor Without Borders.” By Julie Flint and Alex de Waal.
World Affairs Journal, Spring 2009
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Kofi Annan spoke for many when he said, “Until now, when powerful men committed crimes against humanity, they knew that as long as they remained powerful no earthly court could judge them.” The Nuremberg trials were victors’ justice—the prosecution of those already fallen from power. The ICC is different: it promised to be a turning point in the struggle for human rights and against impunity, a landmark in the advance of global ethics. Some of the world’s most committed lawyers and investigators converged on The Hague, relishing the challenges that lay ahead. The ICC’s mandate was not only to identify the perpetrators of the worst crimes ever codified in international law; it was to arrest and prosecute them. Yet the Court had no police force, three of the Permanent Five at the Security Council did not support it, and the UN Department of Peacekeeping Operations didn’t want its overstretched and vulnerable peacekeepers conscripted as ICC enforcers. It also had Luis Moreno Ocampo as its lead prosecutor.
Despite the challenge of building and operating an institution in an uncertain and evolving field of law, Moreno Ocampo had a strong wave to ride—the goodwill of publics across the globe, including a powerful American human rights constituency, and some of the ablest legal minds in the business. But three years into his tenure, many in the Office of the Prosecutor (OTP) were questioning his ability to do the job. A further three years on, and the Court is in trouble—a trickle of resignations has turned into a hemorrhage, and cases under prosecution and investigation are at risk of going calamitously wrong. The Lubanga trial has come to court under a cloud of controversy over the Prosecutor’s handling of evidence and charges, and an arrest warrant issued for Sudan’s president, Omar al-Bashir, has set in motion a chain of events that threatens a humanitarian disaster for the victims of the war in Darfur.
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Moreno Ocampo is a man who diminishes with proximity. Six years after he became Prosecutor, the priceless human capital invested in his office is draining away. Lawyers and investigators who served in the OTP, and who count among the brightest and the best of their profession, say they believe the Court’s reputation, and perhaps even its life, is at risk. Their desire to make a success of the court remains as strong as ever it was—but not under the current Prosecutor. “My time in the ICC was a mixture of a fascinating time and a terrible time,” one of these exiles said shortly before Moreno Ocampo demanded Bashir’s arrest. “The Prosecutor was erratic, so irrational sometimes that you felt despair. He uses his charisma in a negative way. Everyone in the OTP felt disrespected. But I still have a dream that one day—along with some other good people—I will be able to return.”
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International Security Studies Report Investigates Tensions Between AU and ICC
Posted in Commentaries, News Updates, tagged African Union, Bashir, ICC on November 7, 2010 | Leave a Comment »
Read Full Report at: http://www.issafrica.org/pgcontent.php?UID=30455
Intro to Report:
This African expert study on the African Union’s (AU) concerns about article 16 of the Rome Statute of the International Criminal Court (ICC) seeks to articulate a clearer picture of the law and politics of article 16 deferrals within the context of the AU’s repeated calls to the United Nations Security Council (UNSC) to invoke article 16 to suspend the processes initiated by the ICC against President Omar al-Bashir of Sudan. The lack of a formal reply by the UNSC to the AU request has resulted in AU member states deciding to withhold cooperation from the ICC in respect of the arrest and surrender of Bashir. In light of the AU’s continued concerns, questions have arisen about the UNSC’s exercise of the controversial deferral power contained in article 16. This culminated in the AU proposing that article 16 be amended to empower the UN General Assembly to act should the UNSC fail to decide on a deferral request after six months.
Although states parties to the Rome Statute have shown little support for the AU’s proposed amendment to article 16, the merits of the AU proposal must be considered. A failure to engage with African government concerns about the deferral provision could further damage the ICC’s credibility in Africa. Constructive suggestions about the ‘article 16 problem’ must be developed in order to contribute towards resolving the negative stance that some African countries have taken towards the ICC. The challenge is to devise both legally sound and politically palatable options. For many Africans, the ICC’s involvement in Sudan has come to reflect the skewed nature of power distribution within the UNSC and global politics. The result is that the uneven political landscape of the post-World War II collective security regime has become a central problem of the ICC.
It is also important to pay attention to the AU’s concerns and its request for an article 16 deferral of the Bashir indictment because the matters underlying the tension – how ICC prosecutions may be reconciled with peacemaking initiatives and the role and power of the UNSC in ICC business – are likely to arise in the future with respect to other situations. Solutions must be found to problems that may arise in working out the relationship between the UNSC and the ICC. The study therefore makes practical suggestions about how to resolve the concerns raised within certain African government circles and other developing nations about the relationship between the UNSC and the ICC, and the relationship between the ICC and peacemaking initiatives of governments and regional organisations.
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