Ocampo admits UN political influence .
ICC Chief Prosecutor Luis Moreno Ocampo has finally admitted that politics plays a part in the arrival of cases in the Hague. Ocampo was the keynote speaker last weekend at a meeting of the American Society of International Law at the University of California, Los Angeles. His presentation was titled, “The Libya case: a new paradigm in international relations or business as usual?”
Ocampo accepted there is “one standard for 119 member states and another standard for every other country,” according to a report in international law blog Opinio Juris. There are 119 member states that have signed the Rome Statute and are members of the assembly of state parties to the ICC. “Every other country” refers to countries like the Sudan that are not party to the statute but whose cases can still be referred to the International Criminal Court by the UN Security Council.
Yesterday international law scholar Dr Godfrey Musila termed Ocampo’s comments as a “first and very significant.” The blog, founded by Chris Borgen, a law professor at St John’s University Law School, reported that Ocampo spoke in a “free-flowing and unusually frank” way to a packed assembly of distinguished law scholars and practitioners.
Ocampo openly admitted that the UN Security Council exercises political discretion in choosing which countries to refer to the ICC. He used the example of Libya which was referred to the ICC during this year’s violent rebellion and Syria which was not. “The only distinction was the geopolitical position of the two countries. The ICC is becoming the vehicle for UNSC to punish countries that are politically unpalatable,” Opinio Juris reported Ocampo as saying.
The post was made by Roger Alford of Pepperdine University Law School who helps run the blog. The prosecutor denied that UN influence spills over to the ICC once it takes up a case. He denied suggestions by a member of the audience that the pace of the Libyan prosecution was politically motivated. Ocampo replied that he is criticised if he goes too slowly and equally criticised if he goes too fast.
Yesterday, ICC spokesman Fadi El Abdalla defended Ocampo saying the blog was “just playing with words.” “That means that there are two ways, or two different bases for the ICC to have jurisdiction. That however does not mean that the Prosecutor applies double standards. Following a referral, whether by a State party or by the UNSC, the Prosecutor remains independent,” Abdalla said.
He said the prosecutor conducts his investigations in an impartial way under the control of impartial and independent judges. “The ICC being independent, it is not acceptable to say that the UNSC uses the ICC to punish certain governments. If there are no crimes that fall under the ICC jurisdiction, the ICC Prosecutor will simply decline to open an investigation even if he was requested to do so by the UNSC,” said Abdalla.
Lawyer Musila however praised Ocampo and chided court officers for living in denial. He said it is obvious to supporters of the ICC that the role of the Security Council is a structural weakness of the statute. “The council remains the most undemocratic institution in the world to date and is still fashioned in a post World War Two arrangement. Essentially it is a victors’ affair. The world has moved on. It’s the least place you can expect fairness but that is what is available and it’s the reality for now,” Musila said.
He said political considerations spill over to the prosecutor’s office because only he has the discretion over who to prosecute. “He (Ocampo) had learned from past experiences in Uganda and Congo DRC. He had also checked on the political history of Kenya and realised it would be problematic to target one side of the political divide. These are things which play themselves out although the prosecutor wouldn’t say it,” Musila said.
Abdalla however differed with Musila. He told the Star that states retain this route “in order to allow justice to be done, even when a country’s government tries to shield itself from justice by not joining the Rome Statute.” He said ICC should not be criticised for what the Security Council does or does not do. He said the easiest way to avoid UN referral is to universally join the Rome Statute, and to have solid national judicial systems. "The ICC is a court of last resort functioning under the principle of complementarity,” Abdalla said.