The Irritating ICC Prosecutor

by Kevin Jon Heller

Luis Moreno-Ocampo wants to formally investigate crimes against humanity in Cote D’Ivoire.  Cote D’Ivoire consented to the ICC’s jurisdiction over crimes committed there eight years ago.  So what’s Moreno-Ocampo waiting for?  Apparently, a state referral:

“We are concerned about the recent information on massive atrocities committed in the western part of Cote d’Ivoire,” he said. “We are trying to define exactly what happened there.”

Moreno-Ocampo said that “Gbagbo himself accepted jurisdiction of the court and Mr. Ouattara confirmed that, so what we are doing now is collecting information in order to open an investigation there.”

He urged the Ivory Coast’s West African neighbors to help him speed up the process of starting an investigation by “referring” the case to the court.

If a state that recognizes the court calls for an investigation, Moreno-Ocampo can honor that request immediately. If that does not happen, Moreno-Ocampo has to gather enough evidence to persuade a panel of judges they should allow him to open an investigation, a process that could take weeks or months.

“We are discussing with some state parties particularly from the region,” he said. “If they decide to refer the case, that will help to expedite the activities of the court in the Ivory Coast.”

I’m sorry, but this is just dumb.  Yes, a proprio motu investigation requires the Prosecutor to convince the Pre-Trial Chamber that there is a “reasonable basis” to proceed with one, while a state referral does not.  But the Prosecutor has to determine whether such a reasonable basis exists either way; Article 18 of the Rome Statute, governing admissibility challenges, requires the Prosecutor to determine that there is a reasonable basis to investigate state-referred situations.  Given the low “reasonable basis” standard, is it really that onerous to convince the Pre-Trial Chamber that an investigation is warranted in Cote D’Ivoire?  After all, the OTP has been monitoring the situation there for eight years.  In all that time, it hasn’t found enough information to justify an investigation?

Also, notice the complaint: persuading the Pre-Trial Chamber could take weeks or months.  You know what might also take weeks or months?  Convincing a state to refer the situation, particularly one in the region.

States fought long and hard to ensure that the Prosecutor has proprio motu powers.  Moreno-Ocampo finally got over his ridiculous love of self-referrals with the Kenyan situation; if he wants to investigate in Cote D’Ivoire, he should — to quote the famous Greek philosopher Nike — just do it.

http://opiniojuris.org/2011/04/09/the-irritating-icc-prosecutor/

5 Responses

  1. Please do not apologize for stating the truth. Ocampo is rather dumb, and pompous.
    Having said that, I still haven’t figured out what indicators help in his decision making. Maybe it proves to be counter-intuitive but there is definitely some very subjective criterion that Ocampo takes into consideration while deciding on his next prey. Or maybe it’s just the way he talks

  2. I speculate that Ocampo would like a “clean” referral – “clean” in the sense that having the situation referred frees him from accusations of selectively picking on yet another African stepchild, and “clean” in the sense that Ivory Coast’s consent to jurisdiction under Art. 12 as a non-State Party is entirely open-ended and non-specific.  A referral saves him, again, from accusations of selectivity in choosing where and when the “situation” in question begins and ends, what crimes are under consideration, etc.

    Since both sides are allegedly responsible for atrocities, I wonder if we won’t see Ivory Coast’s Art. 12 consent/acceptance of jurisdiction withdrawn while Ocampo dithers, regardless of who comes out the winner.

  3. Patrick,

    It’s a very fair point.  But do you really think that, after Moreno-Ocampo’s politicking for a referral, the ICC’s critics would really treat a “referred” case involving Africa any differently than a proprio motu one?

  4. I’d also note that the Kenya investigation is the first non-“clean” referral, and that hasn’t stopped African states from complaining they’ve been unfairly targeted!

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  1. […] open an investigation proprio motu has stumped some observers. Kevin Heller, over at Opinio Juris, opined that the Prosecutor’s angle on investigating alleged crimes in Ivory Coast “is just […]