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World: International Criminal Court Gains Momentum With Prosecutor's Appointment

  • Don Hill

The nearly 80 countries to found the world's first permanent International Criminal Court (ICC) have taken the next big step. They have elected a fighting Argentinian lawyer as the court's first chief prosecutor. The appointee, Luis Moreno Ocampo, led a team of prosecutors in 1985 that handled 700 cases of people charged with kidnapping, torture, and disappearances of opponents of Argentina's 1976-83 military junta. Moreno will have broad powers as the chief of an independent unit within the ICC structure.

Prague, 22 April 2003 (RFE/RL) -- The International Criminal Court (ICC) took a giant stride this week with the election of Luis Moreno Ocampo of Argentina as its first chief prosecutor.

International organizations hailed Moreno Ocampo as a combative lawyer who won worldwide recognition for his part in prosecutions in 1985 of a military junta that ruled Argentina from 1976 to 1983.

Others celebrated the basic fact that an independent prosecutor had been named. The Geneva-based International Commission of Jurists is one of the organizations that worked for the ICC's establishment. Secretary-General Louise Doswald-Beck said the appointment is central to building the court.

"Yes, indeed. It's been an extremely important step. The creation of the post of a prosecutor that can initiate an investigation -- which was a great achievement in Rome -- was extremely important. And the fact that such a prosecutor has now been chosen is absolutely excellent," Doswald-Beck said.

Gustav Moynier, a founder of the International Committee of the Red Cross, was the first to propose an international war crimes court, in 1872. The idea gained momentum with the post-World War II trials of Nazi and Japanese leaders. But it wasn't until 1998 -- at a United Nations conference in Rome -- that a coalition of governments wrote and approved a statute to create such a court. One year ago, on 20 April, the 60 ratifications necessary to validate the statute were reached. And the statute came into force last July.

Last month, the founding states elected the ICC's first judges -- seven women and 11 men -- to convene in the court's interim quarters in The Hague. But court officials said at the time that the gathering of the judges was more significant for its symbolism than for its effect. They said that no cases could be considered, no investigations of crimes begun, until the prosecutor and his staff were in place.

Moreno Ocampo, whose term runs for nine years, is to take office on 16 June. His first task will be to hire investigators and a prosecuting staff and to organize his independent division of the court.

Although 139 nations signed the ICC statute and 89 so far have ratified it, only 78 nations had ratified in time to be eligible to vote for the Argentinian's appointment.

The new prosecutor is a specialist in human rights and criminal law. In addition to participating in prosecuting former members of the Argentine military junta, he investigated war crimes committed by Argentine military leaders in their 1982 war with Britain over the Falkland Islands. He has been a visiting professor of law at Harvard University and a consultant to the United Nations and the World Bank and other international institutions.

David Donat-Cattin, of Parliamentarians for Global Action, said Moreno Ocampo's experience qualifies him as a competent and skilled ICC prosecutor. Richard Dicker of Human Rights Watch said, "The elections of an experienced prosecutor and Harvard professor is further proof that the ICC will be a serious, responsible, and effective institution."

As the ICC is organized, the prosecutor's office is a separate division, subordinate neither to the judges nor to the administrative structure. As prosecutor, Moreno Ocampo can initiate investigations and prosecutions. The International Commission of Jurists' Doswald-Beck places special emphasis on this independence. "The independence of the judges from the prosecutor and, obviously, from the defense lawyers is something that insures that [a] trial will be as impartial as possible," he said. "And, I would say, it's the most important step, from the point of view of an international tribunal, to insure the nonpoliticization of the proceedings."

The founding statute places a number of limitations on the court's jurisdiction. It can prosecute only alleged crimes when the country where the offense occurred fails to prosecute. It can act only on crimes committed within states party to the treaty or on cases approved by the United Nations Security Council.

And, as Isaac Flattau of the Coalition for the International Criminal Court pointed out, it can prosecute only war crimes alleged to have occurred after that statue came into force. "Another limitation on the jurisdiction of the ICC is that it will only be able to have jurisdiction over crimes that have been committed since 1 July 2002," Flattau said.

That would rule out, for example, prosecution by the ICC of war crimes and crimes against humanity allegedly committed by Iraq's Saddam Hussein and his regime.

The United States, under former President Bill Clinton, was one of the original signatories to the ICC statute. The United States never ratified that statute, however, and President George W. Bush has withdrawn U.S. support for the court. Since the United States is not a party to the court, the ICC could not consider any charges that might arise from recent U.S. action in Iraq.

International Commission of Jurists Secretary-General Doswald-Beck told RFE/RL that the U.S. opposition will not inhibit the new court: "There are enough states now that are party to this statute. And the judges have been elected, the prosecutor has now been chosen, and the result is that there is nothing to stop this court actually starting its work."

Since Chief Prosecutor Moreno Ocampo has not yet taken office, nobody knows what cases he might take on at the start. Some court advocates have speculated that the first cases are likely to come from Columbia and from the Democratic Republic of Congo. Both nations have ratified the treaty.