“There is a Double Standard at the ICC”

“There is a Double Standard at the ICC”

That was the candid assessment of outgoing ICC Prosecutor Luis Moreno-Ocampo at the recent ASIL Midyear meeting held at UCLA this past weekend. In a free-flowing and unusually frank discussion of the International Criminal Court to a packed assembly, Moreno-Ocampo admitted that there is “one standard for 119 member states, and another standard for every other country.” He welcomed the enhanced role of the Security Council in referring cases to the ICC, something that he said was unthinkable in 2003. But he openly admitted that the Security Council exercised political discretion in picking and choosing which countries to refer to ICC prosecution. Why did the Security Council refer the situation in Libya to the ICC, but not the situation in Syria? The only distinction, he suggested, was the geopolitical position of the two countries. The ICC is becoming the vehicle for the Security Council to punish countries that are politically unpalatable.

If this is the case, should that impact the way the ICC prosecutor handles the matter? “No,” he said. Once the matter was referred to the ICC, Moreno-Ocampo was quick to disabuse any suggestion that the prosecutor exercised its discretion in a political fashion. When someone in the audience intimated that the pace of the Libyan prosecutions was politically motivated, the prosecutor denied it, saying that “he is criticized if he goes too slow and criticized if he goes too fast.” The only reason that the Libyan investigation and arrest warrants were so expeditious was due to the assistance from numerous sources both inside and outside of Libya.

When asked about the circumstances of Muammar Gaddafi’s death and whether the ICC would investigate crimes perpetrated by rebel forces, Moreno-Ocampo admitted that Gaddafi’s death was not “clean”, but said that, consistent with complementarity, the ICC must let the national court proceedings complete their work before the ICC considers taking any action.

As for the choice of which prosecutions to initiate against ICC member states, Moreno-Ocampo stated in an earlier lunch Q&A that the gravity of the offense was the deciding factor. “We look at how many hundreds were killed or raped, and prioritize investigations on that basis.”

The keynote address by Moreno-Ocampo was the highlight of what otherwise was a stellar performance by panelists at the ASIL midyear meeting. Now in its second year, the midyear meeting is fast becoming an important venue for the presentation of international law scholarship. The notable feature of this meeting as compared to the annual meeting is the heavy focus on the discussion of working papers, a sharp contrast from the traditional short presentation from a group of panelists. Just check out this feast of papers presented.

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Mark Kersten

Just out of curiosity, in the conversation about the political nature of the ICC’s role/work in the context of Libya and its relationship to the UN Security Council, did anyone ask about temporal jurisdiction limitation imposed by the UNSC on the ICC? It seems to me that the fact that the Court was ordered by the UNSC to only investigate alleged crimes after February 15th 2011 is amongst, if not the, most political issue in the UNSC referral. It seems particularly important given that the UNSC resolution tells the Court to disavow its own Statute which declares that the ICC can investigate any alleged crimes dating back to July 2002. Surely it does so for fundamentally political reasons!

Mark Kersten

Thanks for letting me know, Roger.