LONDON - The chief prosecutor of the International Criminal
Court Luis Moreno-Ocampo created something of a stir at a London meeting
when he said the United States can be expected to take 20 years to accept
”I would expect the United States to join the court,” he said in response
to a question at a meeting organized in London Thursday evening by
Transparency International, an independent group that seeks to expose and
fight corruption. ”In the long run if the court shows how useful it is,
then in 20 years all countries will be a part of the court,” he said at
the meeting held at the offices of the legal firm Clifford Chance.
So far 94 countries have accepted the jurisdiction of the International
Criminal Court. The United States is an eminent exception. It has refused
to accept purview of the court on the grounds that its soldiers serving
abroad could face prosecution because of political motivations.
A delegate at the meeting said Moreno-Ocampo's pointer towards a 20-year
wait for the United States to come to the court was not pleasing to hear.
”When I say 20 years maybe I'm being optimistic,” he replied. ”It took
the United Nations 40 years to sign the genocide convention. So if
everyone joins in 20 years that's not bad.”
Moreno-Ocampo, former prosecutor in Argentina who was teaching at Harvard
University in the United States before being invited to join the ICC,
said a decision to join the international court was a difficult one.
In accepting the ICC a government had to ”surrender a part of its
national sovereignty to this court,” he said. ”So many do not like it. It
is a huge decision.” That is the reason there was a ”huge discussion” on
this when the statutes were drawn up in Rome in 1998.
Signatories agree to face prosecution by the ICC if their governments
fail to prosecute in the areas of the ICC's remit: to investigate heinous
crimes such as genocide, war crimes and crimes against humanity, but only
when a country is unwilling or unable to conduct a proper investigation.
For a country to accept the ICC means really that it cuts reasons for
genocide to be committed or then not prosecuted, the chief prosecutor
said. In signing up to the ICC a country would effectively be tying its
hands, Moreno-Ocampo said.
The chief prosecutor set out several limitations of the ICC given its
remit, and the very nature of its jurisdiction. Unlike a national
prosecution service, ”we have no government, no police, or even the idea
of a society,” he said. ”We want to promote national governments in their
work, only when they fail can we do our work.”
The best outcome for the ICC would be that ”there is no case, no
genocide, or if that happens, then national governments are punishing the
guilty people. So that nation states make the best efforts they can.”
Moreno-Ocampo set out the limitation of the ICC in relation to several
conflicts where there have been serious allegations of war crimes. In
Darfur the ICC cannot intervene ”because Sudan is not a party to the
ICC,” he said. ”I have no authority to start a case there, I can do so
only if the United Nations Security Council gives a referral.” To date
the United Nations has not referred any case to the ICC.
In Iraq, Moreno-Ocampo said there have been complaints over the British
role in the war, since Britain has accepted the ICC though the United
States has not. ”But aggression in war is not a crime yet,” he said. The
ICC could act only if there was reason to believe that British troops had
committed genocide and the British government was not willing to
The international court will also work under limitations in accepting
evidence from humanitarian organizations like the International Committee
of the Red Cross (ICRC). The ICRC currently claims exemption from
offering evidence on the ground that this would hamper its humanitarian
”Our job is not to expose these groups,” Moreno-Ocampo said. ”They are
doing a difficult job. We have to protect them. We have to find evidence
in other ways.”
The ICC took up human rights abuses and genocide in the Democratic
Republic of Congo as its first case Wednesday this week. The action
followed a referral from the government and also letters from individuals
within Congo. The number of people to have died in the conflict in Congo
since the 1990s runs into millions, but the court can investigate cases
only after July 1, 2002 when it came into existence.
Thousands of deaths have been reported since then, and also rape,
torture, forced displacement and the illegal use of child soldiers. The
scale of atrocities makes this a vital test case for the ICC.
The thinking in the West has been to deal with groups responsible for
such actions by negotiating with them, he said. ”This kind of justice is
a new concept.”
Moreno-Ocampo spelt out some of the challenges in prosecuting the case in
Congo. ”From last June there is a transitional government there,” he
said, that has brought many different groups together. ”They were killing
each other, now they are working together. I have to see how to cooperate
with them.” But his first duty, he said, would be to the victims.
That duty must extend beyond what the court can do, he said. ”If we
prosecute the leaders, we can hope to stop these groups (behind the
killings),” he said. ”But someone else has to educate them, give proper
© 2004, IPS - Inter Press Service