Global Policy Forum

International Criminal Court Could Play Role in War Against Terrorism,
Says New Chief Prosecutor

By James Podgers

The U.S. government may not be taking advantage of another potential weapon in the war against terrorism by refusing to cooperate with the International Criminal Court, says the court's recently appointed chief prosecutor.
The United States has been a staunch opponent of the ICC since it was created under an international statute negotiated in 1988 at a conference in Rome. Both the Bush administration and Congress have expressed opposition to the court because of concerns that its jurisdiction might extend to members of the U.S. military.

U.S. officials also maintain that the court will be too independent from the control of the U.N. Security Council, of which the United States is a member, and that an independent prosecutor could be empowered to initiate politically motivated investigations and cases.
But Luis Moreno Ocampo, who took office as the ICC's chief prosecutor in June, says the refusal of the United States to work with the ICC will undermine any support the court might be able to give to U.S. efforts to fight terrorism. Ocampo is an attorney with extensive experience investigating atrocities and prosecuting public officials in his home country of Argentina.

"The lack of interaction with us is the mistake, but I think that will change in the next few years," said Ocampo, speaking with a select group of reporters during the annual meeting of the International Bar Association this week in San Francisco. The ICC's jurisdictional mandate does not specifically cover terrorist acts. The court is empowered to try individuals, including government leaders and members of military forces, for genocide, crimes against humanity and related crimes arising out of armed conflicts. The court may conduct prosecutions of individuals for those crimes if they occurred in a country that has ratified the court or were allegedly carried out by nationals of a ratifying country. The U.N. Security Council also may refer cases to the court, and the prosecutor may conduct investigations on the basis of information communicated to him by states or individuals.

The court only has jurisdiction over incidents that occurred after it went into official existence in April 2002. In his press briefing, however, Ocampo offered an interpretation of the court's jurisdiction that would encompass terrorist acts under some circumstances. He said a terrorist act like the Sept. 11, 2001, attacks on the World Trade Center and the Pentagon "is a crime against humanity, clearly," that could be investigated by his office for possible prosecution. But he added that such acts also would have to meet the court's territorial jurisdiction, meaning that his office might not be able to investigate or prosecute crimes occurring in the United States because it has not ratified the Rome Statute. To date, the statute has been ratified by 89 countries, including most European nations and other U.S. allies. Ocampo said he has had neither official nor informal contacts with U.S. officials since taking office, but he expressed hope that U.S. opposition to the court will ease at some point.

"This court is creating hopes and dreams," Ocampo said, "and in a few years people will know" how it can play a role in enforcing international law.
At the same time, Ocampo acknowledged, his office has had what he termed "communications," both formal and informal, from 66 countries urging his office to investigate the U.S. conduct in its war against Iraq. He said, however, that he has not initiated any preliminary investigation into the war because the primary charge, that it was an act of aggression against Iraq, is not at this time covered by the court's subject-matter jurisdiction. (The nations ratifying the ICC treaty, known as the Assembly of States Parties, have not reached agreement on how to define aggression.) Ocampo also noted the court would not have jurisdiction over any U.S. officials or troops, although some of its allies in the war, including the United Kingdom, have ratified the ICC treaty.

Ocampo confirmed that his office is conducting a preliminary study into possible atrocities in the Congo, which has been wracked by civil war. He plans to submit an initial report to the Assembly of States Parties before the end of September that could seek authorization to investigate further. No formal prosecution could be initiated, however, until a panel of the ICC's 18 judges approves it. Ocampo acknowledged that his selection of the Congo for an initial investigation was made partly with an eye to the overall credibility of the International Criminal Court. "For us, there are cases for which there might be some doubts," he said, "but the Congo was a clear case."

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