This week the network European Investigative Collaborations (EIC) started publishing Court Secrets – a series of articles on the policy and actions by the first prosecutor of the International Criminal Court (ICC). The series is based on over 40,000 leaked documents, financial statements, diplomatic cables and correspondence. It reminded me of my own encounter with Luis Moreno-Ocampo when I interviewed and observed him while he was still ICC chief prosecutor.

Excerpt from my book All Rise:

‘With irritation prosecutor Luis Moreno-Ocampo responded to the question. It was still in the early stages of the interview, and his reaction came abruptly and unexpectedly. The question hadn’t been outrageous, I thought. It had seemed a normal thing to ask: what personal characteristics do you need to possess to be a good prosecutor? It was autumn 2011. The Argentine lawyer was into his eighth year leading the Office of the Prosecutor (OTP), the organ of the court tasked with investigating international crimes and prosecuting the main perpetrators.

While he slammed with his hand on his desk, he answered my question: ‘It is not about personality. It is about duty. The requirement for the job is to have integrity. And integrity is not just about being honest. It means that if you have the evidence and the law says that you should [prosecute], you do it! Integrity is also ignoring applause or criticism.’

Two years before this interview I had seen the prosecutor live for the first time – although from a distance. He was invited as the special guest for the presentation of a documentary about the work of the ICC in general, and more specifically about Moreno-Ocampo’s OTP, during the Movies that Matter Festival, organised by Amnesty International in The Hague. A film crew had been following the prosecutor for three years. The result, ‘The Reckoning: The Battle for the International Criminal Court,’ was shown to the public that evening.

The hall of Theater aan het Spui filled up. The guests, half of whom were ICC officials, climbed the stairs to find themselves a seat. After an introduction the lamps dimmed. On the big screen the first images appeared of a documentary about the court and its mediagenic prosecutor. After a full hour the lights flipped on again. A table and two chairs had been placed before the screen for an interview between journalist Linda Polman and the main character of the documentary. The two walked to the stage, where Polman invited Moreno-Ocampo to take a seat. The prosecutor ignored her request. He preferred to stand, made a few steps until he was right in front of the audience, raised his arms and with a big smile encouraged his staff: get up, this movie and screening are in honour of you!

Happily surprised, the court officials got up from their seats as they heard Moreno-Ocampo’s encouragements to applaud. Soon the staff were standing, clapping joyfully for themselves, while the rest of the audience moved uncomfortably in their chairs – looking around in amazement as the screening had turned into an ICC celebration, in which they didn’t participate. In this festive ambiance, Moreno-Ocampo seemed even less inclined to take part in an interview with a critical journalist. Again he refused to sit down next to the small table. Like an Argentinian cowboy he put his foot on the seat of the chair reserved for him, focused on the audience and reacted with repulsion to Polman and her questions. He did not even want to talk much about the Darfur case, in which he had won a major victory a few weeks before. On 4 March 2009 the judges had honoured his request for an arrest warrant against the Sudanese president Omar Hassan Ahmad Al-Bashir, charged with crimes against humanity and war crimes committed in Darfur.

Moreno-Ocampo had wanted to prosecute the head of state for genocide as well, but the judges ruled he hadn’t provided enough evidence to support charges for this crime of crimes. The prosecutor appealed that decision. A year later, on 12 July 2010, the pre-trial judges would issue an arrest warrant for genocide charges as well.

Back in the theatre the prosecutor didn’t feel like responding to journalistic questions such as: would the arrest warrants not trigger revenge by the Sudanese regime against the population in Darfur? Moreno-Ocampo was, in fact, looking for a way to cut short the interview. Again he walked to the public, then stood still and asked one of the filmmakers to take his place on the stage.

The painful session came to an end. Later in the foyer a concerned organiser of the Amnesty film festival came up to journalist Polman asking: ‘What went wrong?’ It was anyone’s guess. One ICC official briefly approached Polman and suggested the prosecutor did not like being grilled by female journalists. Further down in the foyer the ICC staff were having a great time amongst themselves. Polman and her problematic interview had ceased to exist.

In the following years I would continue to follow and watch Moreno-Ocampo. When there were important announcements, it was the prosecutor himself who would, with his usual assertiveness, address the media during press conferences. He was the director of the show. Without a trace of doubt he would passionately counter critical questions from journalists, in his ‘Spanglish’ – his English flavoured by a heavy Latino accent. He appeared worldwide on television and thus Moreno-Ocampo became the face of the International Criminal Court. As chief prosecutor he only came to the courtroom for principal hearings, where he would, with great alacrity, present his case against the suspect. But when he was not speaking, he would slump back in his chair and play with an arm of his glasses between his teeth; quasi offhand or sometimes even showing disregard for the opposing party. As if he wanted to demonstrate that the words of the defence did not affect him at all.’

Several African governments complain that the ICC has been targeting Africans. But national authorities are by no means powerless when it comes to the court. Here are fifteen – successful – strategies that governments and allies have been using to keep the ICC off their backs.

1. The obvious and by far the best option: Don’t commit genocide, crimes against humanity or war crimes (as the ICC is tasked only to go after perpetrators of these international crimes).

2. States: don’t join the ICC, so the court doesn’t automatically have jurisdiction, which reduces the risk of investigations on your national territory. This strategy is applied by many nations such as the United States, China, Russia, India, Syria, Sri Lanka and Myanmar.

3. If countries have joined, they can also leave. Member states are allowed to withdraw. Burundi, which is feeling the heat as the ICC opened a preliminary examination into atrocity crimes in April 2016, decided half a year later, in October, to pull out. This was clearly out of self-interest. By doing so the government tries to prevent the ICC from starting a full-blown investigation which could lead to charging individuals. The ICC has to decide before the withdrawal is active, in October 2017, to open a full investigation in Burundi.

 4. Make sure you are a member of, or have good friends on the United Nations Security Council. The UNSC has the power to refer situations in countries that are not ICC-members to the court in The Hague, as it did with Sudan in 2005 and Libya in 2011. The Syrian regime for instance benefited from its good relations with Russia. In 2014 Moscow (and Beijing) blocked a UNSC referral (the other 13 were in favour).

 5. On this note, the three permanent members of the UNSC, who never joined the ICC, are in a comfortable position. Clearly the United States, Russia and China won’t refer their own conflict situations and human rights violations for investigation to the ICC. Although that position might not always save them. The ICC’s Office of the Prosecution (OTP) is examining international crimes in member state Afghanistan. If it decides to do full investigations, the prosecution probably will look at accusations of atrocities by American armed forces and CIA officials in Afghanistan, and in secret CIA detention centres in Poland, Lithuania and Romania which are related to this situation.

6. Bilateral immunity agreements with countries promising to never handover a national to the ICC. This strategy was applied by the United States. ‘The bilateral agreements sought by Washington would require states to send an American national requested by the ICC back to the U.S. instead of surrendering him/her to the ICC,’ Human Rights Watch wrote in 2003. By 2006 more than 100 countries (including Afghanistan) had signed such an agreement, said the Coalition for the International Criminal Court.

7. The United States also adopted the American Service-Members’ Protection Act, in 2002. Better known under its nickname: The Hague Invasion Act. The law ‘authorizes the use of military force to liberate any American or citizen of a U.S.-allied country being held by the court,’ Human Rights Watch wrote.

8. This tactic seems counter-intuitive but has proven effective: self-referrals. It sounds tricky for a government to invite the ICC to come and investigate atrocities committed on its territory, especially when authorities are possibly involved. But history has proven that in case of these self-referrals, the ICC has a tendency to go after adversaries of these governments. In Uganda, the Democratic Republic of Congo and Central African Republic, for instance, rebel leaders, militia and political opponents are prosecuted by the ICC, while members of the government and security forces remain as yet untouched.

9. If they cannot avoid being charged, high profile leaders are better off cooperating with the ICC’s summons to appear and thus prevent an arrest warrant. That’s what happened in the Kenyan cases. Because the Kenyan ICC suspects Uhuru Kenyatta and William Ruto cooperated, they were not detained in The Hague and could rally against the court and campaign freely. This won them the 2013 elections from which they emerged as president and vice-president.

10. Governments can block the ICC from doing investigations. ‘We never in our life went to a country to investigate without informing the authorities and having consensus,’ ICC’s former chief prosecutor Luis Moreno-Ocampo said in an interview. Without investigations on the ground it will be harder for the prosecution to get evidence. Sudan never gave the ICC permission. Ocampo explained how the prosecution tried to do interviews among Darfur refugees in the city of Abéché in Chad. ‘But that same night, the rebels who were working for the government of Sudan, took Abéché. They said they would respect the life of international workers. But that would not count for my workers, of course. So we acted swiftly to evacuate them immediately.’

11. Obstruction of the transfer of evidence to the ICC, even though the prosecutor has permission to do investigations on a nation’s territory. The OTP insisted Kenya had to handover specific information so the prosecution might beef up its evidence against president Kenyatta after key witnesses had proved to be unreliable. The Kenyan authorities refused to give most of these materials, such as telephone data.

12. Witness interference. It happens in many cases before the ICC, but it was fatal for the trial against Kenyan deputy president William Ruto and journalist Joshua Sang. The presiding judge concluded: ‘The proceedings are declared a mistrial due to a troubling incidence of witness interference and intolerable political meddling that was reasonably likely to intimidate witnesses.’ His co-judge stressed Ruto and Sang weren’t involved in pressuring witnesses, but did profit from it.So far the Kenyan government hasn’t transferred any 0f the three Kenyans, charged by the ICC with threatening and bribing witnesses, to The Hague.

13. Ask the UNSC to delay investigations or a trial because these would undermine international peace and security. Article 16 of the Rome Statute says: ‘No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.’

14. Being wanted by the ICC doesn’t mean that a powerful suspect’s freedom is over. Again, good relations are vital. Sudan’s president Omar Al Bashir, charged with genocide, crimes against humanity and war crimes in Darfur, travels all the time. Even to ICC member states such as South Africa who refuse to arrest him. Being a president Al Bashir is a successful fugitive.

15. File an admissibility challenge arguing that the ICC doesn’t have the mandate to do this case because national authorities are already working on investigations and prosecutions. Kenya tried this road, but failed. But it missed a chance there. Basically the Kenyan state wanted to make use of the principle of complementarity. The ICC is a court of last resort. It only comes into action when states are unwilling or unable to act. This means that governments have the power to take their own responsibility to investigate and prosecute perpetrators themselves, so that the ICC doesn’t even have to intervene.

Published by: https://www.justicetribune.com/blog/fifteen-ways-avoid-prosecution-icc

In times of conflict and large scale violence, many people put their hope on the International Criminal Court. They call on the ICC to act, to go after the perpetrators and stop the suffering. They want justice to be done.

Many people are begging the court to address the shocking atrocities committed against the Rohingyas. @Aungaungsittwe tweeted: ‘Without action no solution of #Rohingya: all #Genociders must be brought to #ICC immediately.’

For decades this ethnic minority in Rakhine state, in the west of Myanmar, has been suffering from extreme oppression, persecution and violence. It is a complex matter, with a long history. But following attacks last August by a radical Rohingya-group on police stations, the security forces have now gone into an all-out offensive. Rohingya-villages have been burned. People are being shot, massacred and wounded. The violence has pushed almost 300,000 of the 1.1 million Rohingyas over the border into Bangladesh. ‘The situation seems a textbook example of ethnic cleansing,’ said UN human rights chief, Zeid Ra’ad al-Hussein.  http://www.aljazeera.com/news/2017/09/myanmar-crisis-textbook-ethnic-cleansing-170911081528888.html

The ICC

Despite the calls for action, the reality is that the ICC doesn’t have (automatic) jurisdiction in Myanmar, because the country never became a member of the court. That’s how the rules are. This means that the ICC doesn’t have the power to initiate by itself investigations into the violence in Rakhine state.

The only way that the court could become active in non-member states such as Myanmar, is when the United Nations Security Council agrees to refer the situation in Rakhine state to the ICC. In the past this happened with Sudan/Darfur (in 2005) and Libya (in 2011). But with China being a permanent member of the council, this is extremely unlikely in the case of Myanmar. The big neighbour will say: no. China has huge geopolitical and economic interests. Instead of seeking a confrontation with the Myanmar authorities – by giving the ICC’s investigators the green light to go after the individuals organising the violence – China will prefer to work on good relations with its southern neighbour. Russia won’t be keen to refer the situation either, as it has been supplying weapons to the Myanmar military.

Aung San Suu Kyi

On social media many are urging the ICC to prosecute Myanmar’s leader Aung San Suu Kyi, as they see her as the main culprit. For instance @Elmileedo tweeted: ‘She don’t deserve to hold such Nobel Peace prize. #ICC Must bring her in front of the court.’

The ICC has the task to investigate international crimes (genocide, crimes against humanity and war crimes) and to charge the individuals most responsible for these atrocities. The court has no mandate in Myanmar, but if it had, it would be doubtful whether Aung San Suu Kyi would be the main target of ICC investigations. She fails terribly in her duty as the country’s leader by keeping silent and not protecting her people, but she is confronted with huge political constraints and has no say over the security apparatus. In Rakhine state a military operation is taking place, which is organised, planned and ordered by the army. If one day a criminal court or tribunal would get the go ahead to investigate the violence in Rakhine state – indeed Bangladesh is calling for this – the chain of command will probably lead from soldiers on the ground, directly involved in the violence, to the generals, who are calling the shots.

Chapter 1. The entrance.

It is autumn 2011. I arrive at the ICC, then still located in a temporary building, squeezed in between a highway, trailways and an industrial zone. A press officer navigates me through the building……

‘Every time she gets to the next electronic lock, she presses her security pass
against the device. Arriving at the last door, she takes out her hand-phone and calls for a final okay. She then pushes the heavy door that gives access to the protected wing, enters the corridor and walks to the room of Gilbert Bitti, an amiable Frenchman who works as senior legal advisor for the judges of the pre-trial division, that handles cases in the entire phase before the trial. In his appearance – spectacles with a light metal rim – he resembles a professor who’s passionate about his subject. When he is present during hearings in the courtroom, he is recognizable because of his full beard. But now, after some drastic razor blade action, suddenly his shaven jaws are visible.
Bitti has been involved since ICC’s conception. In fact, he was present even before the ‘midwives’ arrived on the scene, he tells with a friendly smile. ‘It was a bit of a miracle,’ the legal expert says about the birth of the court, speaking with his typical high voice, in an English that is lifted up by a charming French accent. With satisfaction he remembers the ‘nineties’ when he, as a young lawyer, was part of the French diplomatic
delegation at the United Nations.
It was a special time. The campaign by human rights organisations and a large group of ‘like-minded’ countries, dedicated to establish the first permanent international criminal court in history, had reached its climax. World politics were still caught up in large disputes, but there were opportunities as well. ‘We experienced that moment of Utopia. Between the end of the Soviet Union and the attack on the World Trade Centre in New York,’ recalls Bitti, who, as a true French intellectual, enjoys with visible delight a more contemplative discourse. It was a period with political leaders on the world stage who were positive about the idea of international justice. Tony Blair had just been elected, and was still fresh as the new prime minister of the United Kingdom. In France, the
government was led by the socialist prime minister Lionel Jospin. The Democrat Bill Clinton was president of the United States of America.
The basics were in place. The United Nations had – after a vacuum of forty years since the war tribunals of Nuremberg and Tokyo – established two new ad hoc tribunals to punish suspects of international crimes committed during the wars in Yugoslavia and the genocide in Rwanda.
‘We were about to change the world,’ says Bitti, with such animation that his voice almost goes off the rails. ‘Interestingly, many persons dedicated to the International Criminal Court were still young. I was 32 years old. Still a boy. But one needs that naivety and youthful enthusiasm to get things done.’

The Netherlands was keen on getting the ICC to The Hague. While lobbying, the government had chosen a softly-softly approach in order to prevent attracting too much attention of rivals, whose interest in hosting such a prestigious institution might otherwise be awoken. Much to its surprise, there was no resistance nor competition. When the Dutch suggested to put ‘The Hague’ behind the word ‘seat’ in the draft version of the Rome Statute, nobody objected. And so The Netherlands succeeded
in fulfilling its ambition.