Luis Moreno-Ocampo – dwkcommentaries

ICC Prosecutor Reports About Sudan/Darfur to the U.N. Security Council

Voting on Iran sanctions — U.N. Security Council

On June 5th the ICC’s Prosecutor, Luis Moreno-Ocampo, gave his semi-annual report to the U.N. Security Council.

He said the Court had “fulfilled its judicial mandate. The evidence collected uncovered the functioning of the State apparatus used to commit genocide, crimes against humanity and war crimes. Those who bear the greatest responsibility have been indicted [Sudanese President al-Bashir, its defense minister, former interior minister and a leader of the Janjaweed militia]. The current challenge is their arrest.”

The Prosecutor added, “President Al Bashir is taking advantage of his position of power to continue with his strategy and to ensure his own impunity and the impunity of those who follow his instructions.” That strategy, the Prosecutor stated, includes:

“threats to the international community to commit new crimes in other areas of the Sudan;
denial of his own crimes, denial of the rapes in the villages and in the camps; attributing the killings to banditry, sporadic clashes between rebel groups, or reducing its relevance through statistic comparisons; and attributing conditions in the camps to other factors like drought, lack of proper seeds or inability to access farming land;
forcing the international community into a never-ending negotiation in order to gain access to those displaced;
a permanent promise of a peace negotiation. The international community chases promises of peace agreements that are systematically ignored while President Bashir’s forces commits more attack and creates the conditions for new promises of peace agreements;
announcements of justice initiatives followed only by new announcements, not by action. After more than seven years of instituting judicial mechanisms, the . . . [government] has conducted no proceedings relevant to the crimes committed in Darfur; and
the open defiance of the Security Council’s authority including public announcement that its resolutions will not be implemented.”

The Prosecutor, therefore, suggested that the Council request all 193 U.N. member states or regional organizations to take action to enforce the arrest warrants.

The Council’s record of the meeting indicates that the Prosecutor’s report was supported by the representatives of the U.S., the U.K., France, Germany Portugal, Colombia, Guatemala and Togo. More qualified support with emphasis on assisting negotiation of peace accords to end the fighting in Sudan/Darfur was expressed by Morocco, South Africa, Pakistan, Azerbaijan, Russia, India and China.

The session ended with a heated exchange between Moreno-Ocampo and the Sudanese Ambassador after earlier he had rejected the Prosecutor’s assertions as “fallacious.”

The Prosecutor said that he was advising the Council and putting the Ambassador on notice that his denial of crimes in Darfur “could be considered part of those crimes” and that the Prosecutor’s office had “an obligation to investigate anyone responsible for the commission of crimes.” Therefore, his office would investigate whether this denial “could be considered a contribution to a group of perpetrators acting with a common purpose” and would take appropriate action if the evidence supports such a contention.

The Sudanese Ambassador responded in Arabic (and translated into English) that this statement was “a violation of all political and diplomatic norms. It is a threat that should be rejected . . . and a statement of a terrorist who is trying to silence the voice of justice and [a statement] of a politician who does not recognize the political and diplomatic rules and norms that give us the right to defend ourselves and make our voices heard by the Council.” The Ambassador added that the Prosecutor “has tackled all of these issues–in a totally illegal, immoral and illogical manner, to the extent of intimidation and terrorization.”

Earlier posts have discussed various aspects of the ICC’s investigation of the Sudan/Darfur situation, including the Security Council’s referral of the Sudan/Darfur situation to the ICC in March 2005 during the George W. Bush Administration and the Prosecutor’s report to the Council in June 2011 with a comment to the latter about the December 2011 report to the Council.

U.N. Security Council Briefing on Libya by ICC Prosecutor

On May 16, 2012, the ICC’s Chief Prosecutor, Luis Moreno-Ocampo, briefed the U.N. Security Council on the status of the ICC’s investigation and prosecution of crimes committed in Libya since February 15, 2011. He did so because the Council on February 26, 2011, had referred this situation to the ICC for investigation and prosecution.

Mr. Moreno-Ocampo reported that his office has been cooperating with states, INTERPOL, NGO’s and others, including the separate U.N. Commission of Inquiry on Libya and the Libyan National Transitional Council (NTC).

The Prosecutor emphasized that the “intensity of the cooperation [between the ICC and the NTC] . . . is only increasing” and that the NTC had asked the ICC to postpone its investigation and prosecution of two individuals to enable Libya to prosecute them for the same crimes. The Prosecutor said that his office was well aware of the “primacy of national proceedings” under the Rome Statute and on June 2nd would submit his comments on the request to the Court.

The report also discussed the Prosecutor’s continuing investigation of gender crimes (rape of opponents), the alleged arbitrary arrests and enforced disappearances of presumed Gaddafi loyalist and the alleged killings, looting, property destruction and forced disappearances of suspected Gaddafi loyalists in the town of Tawergha.

In addition, the Prosecutor stated that his office had investigated alleged crimes by NATO forces, but that it had “no information to conclude that the NATO air strikes which may have resulted in civilian deaths and injury or damaged civilian objects were the result of the intentionally directing of attacks against the civilian population as such or against civilian objects.” Nor did the Prosecutor have any “information to suggest that [NATO] . . . authorized the launching of strikes in the knowledge that such attacks would cause incidental loss of life or injury to civilians or damage to civilian objects which would be clearly excessive in relation to the concrete and directed overall military advantage anticipated.”

These conclusions regarding NATO were specifically welcomed by some of the NATO members on the Security Council (U.K., France and Germany). Russia and China, on the other hand, expressed concern that no charges had been brought against NATO leaders for some of their air strikes.

The Togo representative on the Council mentioned the need for greater cooperation between the ICC and African states and hoped that the recent visit to the African Union headquarters by the President of the ICC’s Assembly of States Parties “will enable a strengthening of ties so that the shared goal of combating the impunity of the perpetrators of heinous crime can be met.”

The most recent prior post on the ICC and Libya was on November 16, 2011 with nine comments thereto.

Supporting International Criminal Justice and the International Criminal Court

Another outgrowth of my eight years of teaching the international human rights law course at the University of Minnesota Law School was an expanding knowledge of, and interest in, international criminal justice, in general, and the International Criminal Court (ICC), in particular.[1]

The general topic of international criminal justice covers the efforts of national and international courts to impose criminal penalties on those who are convicted of committing the worst crimes: genocide, crimes against humanity and war crimes.[2] My interest in this topic is shown by the 14 posts on this topic to date.[3] Similarly my interest in the ICC is demonstrated by the 18 posts on this topic to date.[4]

I have put this interest into action in several ways.

I have served as the Provisional Organizer of the Minnesota Alliance for the ICC, which is a member of the American Non-Governmental Organizations Coalition for the ICC (AMICC). This Coalition is committed to achieving through education, information, promotion and an aroused public opinion full U.S. support for the ICC and the earliest possible U.S. ratification of the Court’s Rome Statute.[5] Some of my papers about the ICC and the Rome Statute are posted on the AMICC website.[6]

Professor Barbara Frey and I assisted the Human Rights Committee of the Minnesota State Bar Association (MSBA) in developing and presenting a resolution on the ICC that was adopted by the Association’s governing body in September 2010. That resolution stated that the MSBA “urges the [U.S.] Government to take steps towards ratification of the Rome Statute by expanding and broadening [U.S.] interaction with the [ICC], including cooperation with the Court’s investigations and proceedings. The MSBA also calls on the [U.S.] Government to participate in all future sessions of the [ICC’s] governing body, the Assembly of States Parties.”[7]

In September 2010 I also presented a paper about the U.S.’ relationship with the ICC at a symposium at the University of Minnesota Law School.[8] The true highlight of the symposium was the appearance of the ICC’s Prosecutor, Luis Moreno-Ocampo. He said that when he was chosen as the Prosecutor in 2003, he told its judges that the best situation for the Court would be to have no cases. That would mean that there were no serious crimes in the world or that national courts by themselves were addressing these crimes. At the symposium he reviewed the history of the Court and its current investigations and prosecutions.[9]

In March 2011 I participated in a debate at a meeting at the University of Minnesota Law School that was hosted by the Federalist Society, Law School Democrats and InternationalLaw Society. The issue was whether the U.S. should become a member of the ICC. [10] The key points of that debate were the following:

Professor Eugene Kontorovich of Northwestern University School of Law asserted that U.S. membership in the ICC would be unconstitutional. U.S. membership would expose U.S. citizens to trials without the structures of an Article III court. In such trials defendants would not have certain procedural rights guaranteed by the Constitution, such as the right to a grand jury. He based his constitutional argument on the U.S. refusal in the early 19th century to join international slave-trading courts or commissions organized by Great Britain.[11]

Professor Kontorovich also argued that the ICC was a failure: the sluggishness of the trial process, the failure to convict any defendant, and the absence of empirical research demonstrating meaningful deterrent effects. The ICC, he said, could actually extend conflict by inhibiting peace deals when militants or regimes see international criminal prosecution as unavoidable in spite of ceasing or surrendering. He was also critical of the recent aggression amendment to the Rome Statute.

I responded that the U.S. Constitution does not bar U.S. membership in the ICC. I referred to the U.S. Supreme Court’s decision in Missouri v. Holland that endorsed a broad interpretation of the President’s constitutional treaty power subject to the U.S. Senate’s advice and consent. I said I had not had an opportunity to review Professor Kontorovich’s early 19th century sources for his constitutional argument, but in doing so anyone should have at least two overriding questions in mind: (a) was U.S. resistance to the slave-trading courts due to Southerners’ desire to preserve slavery and (b) was U.S. resistance to such courts due to a desire to avoid entanglement with Great Britain so soon after our Revolutionary War and the War of 1812.[12]

I then argued the U.S. should ratify the Rome Statute for the following additional reasons: (1) the Court will prosecute and punish those guilty of the most serious crime; (2) the Court provides deterrence from such crimes; (3) the Court promulgates the truth about these crimes; (4) the Court assists victims; and (5) the Court is active and appears to be permanent, making U.S. involvement pragmatic.

International criminal justice needs the support of all citizens of the world. Going forward, the ICC is the most important institution for holding violators of international rights accountable for their actions.

[1] See Post: Teaching the International Human Rights Law Course (July 1, 2011).

[2] See Post: International Criminal Justice: Introduction (April 26, 2011).

[3] These posts can be accessed by double-clicking on “International Criminal Justice” in the Tag Cloud (dwkcommentariestags) to the right of this post.

[4] These posts can be accessed by double-clicking on “International Criminal Court” in the Tag Cloud (dwkcommentariestags) to the right of this post.

[5] AMICC, Mission Statement, http://www.amicc.org/mission.html.

6] Krohnke, US FEDERAL COURTS RELY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT IN CIVIL CASES (Nov. 9, 2009); Krohnke, U.S. Court of Appeals Relies Upon Rome Statute in Case Raising Issue of Corporate Liability under the Alien Tort Statute (Nov. 22, 2010), http://amicc.blogspot.com/2010/11/us-court-of-appeals-relies-upon-rome.html; Krohnke, U.N. Human Rights Council Recommends U.S. Join the International Criminal Court (Nov. 12, 2010), http://amicc.blogspot.com/2010/11/un-human-rights-council-session.html; Krohnke, Symposium on International Criminal Justice at the University of Minnesota Highlights the Importance of the International Criminal Court (Oct. 4, 2010), http://amicc.blogspot.com/2010/10/symposium-on-international-criminal.html.

[7] MSBA, Resolution regarding the ICC (Sept. 17, 2010), http://www.mnbar.org/committees/humanrights.

[8] Many of the points of the symposium paper have been set forth in other postings to this blog. Post: The International Criminal Court and the Clinton Administration (May 11, 2011); Post: The International Criminal Court and the G. W. Bush Administration (May 12, 2011); Post: The International Criminal Court and the Obama Administration (May 13, 2011); Post: The International Criminal Court: The Crime of Aggression (May 15, 2011).

[9] Krohnke, Symposium on International Criminal Justice at the University of Minnesota Highlights the Importance of the International Criminal Court (Oct. 4, 2010), http://amicc.blogspot.com/2010/10/symposium-on-international-criminal.html; Univ. Minn. Journal of Law & Inequality, 2010 Symposium: “International Wrongs, International Rights: The Use of Criminal Law to Protect Human Rights” (Sept. 28, 2010), http://www.law.umn.edu/lawineq/symposiummain/september-2010-agenda.

[10] Rau & Shepherd, AMICC Representative Participates in University of Minnesota Law School Debate on the US Involvement in the ICC (March 28, 2011), http://amicc.blogspot.com/2011/03/amicc-representative-in-minnesota.html.

[11] Kontorovich, The Constitutionality of International Courts: The Forgotten Precedent of Slave Trade Tribunals, 158 U. Penn. L. Rev. 39 (2009).

[12] After the debate, I discovered that a Stanford University Law School professor had written a rebuttal to Professor Kontorovich’s interpretation of the U.S. refusal to join the British-led international courts or commissions with respect to slave trading. In essence, she argued that in the early 19th century slave trading was not against international law. Instead, only Great Britain and the U.S. had recently banned such activities. Thus, the proposed international courts or commissions potentially would be trying U.S. citizens under U.S. law. That was the source, and a legitimate one, for U.S. refusal to join such tribunals at that time. (Martinez, International Courts and the U.S. Constitution: Re-Examining the History (2011), http://www.pennumbra.com/issues/article.php?aid=306.