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( 54 .)


whether as judge, prosecutor, advocate, or in other similar capacity in criminal proceedings;
B: . . . competence in relevant areas of international law, such as international humanitarian
law and the law of human rights, and extensive experience in a professional legal capacity
which is of relevance to the judicial work of the Court.™™ ICC Web site, ˜˜Chambers.™™
Interview, 2004, 2006.
108 Building the International Criminal Court

Justice, on March 11, 2003. The judges then elected Ambassador Philippe
Kirsch of Canada as President of the Court, Akua Kuenyehia of Ghana as
the ¬rst Vice President, and Elizabeth Odio Benito of Costa Rica as the
second Vice President. The judges elected Bruno Cathala as Registrar, over
a Dutch candidate, moving him from Director of Common Services.

Finding a Chief Prosecutor
Recruiting the Chief Prosecutor proved to be more dif¬cult than electing
judges. The challenges and uncertainties of the job may have narrowed the
¬eld. The Of¬ce of the Prosecutor had yet to be created and its budget had yet
to be determined. The Prosecutor™s success would depend heavily on states™
support, and there was no promise that such support would be forthcoming.
Investigations would likely have to be undertaken in places lacking the very
institutional characteristics that make national prosecutors™ of¬ces effective “
a context of social stability, public support, effective police, governmental
oversight, and executive mandate. It would be a tough job.
Political and professional requirements were both daunting. For election by
the ASP, the new Chief Prosecutor should come from a state party to the
Statute, but preferably not from a UN Security Council member. Because
the two ad hoc tribunals were viewed as having been dominated by Anglo-
American common-law heritage and personnel, many states sought to avoid
similar domination of the ICC, although there was apparently also a concern
that the Prosecutor should be someone with friendly relations with the United
States, so as not to exacerbate the already rocky relationship. Professionally, the
Chief should have experience in criminal prosecutions, be knowledgeable about
human rights and international criminal law, have extensive management
experience, and be capable of being an effective spokesperson for the Court.
According to the New York Times,14 there were six or seven candidates
considered, from Africa, Latin America, and Europe, ˜˜who have had the
discreet backing of their governments™™ during a ˜˜quiet but intense™™ six-
month search. Candidates publicly mentioned were Carla del Ponte, Chief
Prosecutor of the ICTY, and Reginald Blanch of Australia, chief judge in
New South Wales District Court .15 The Associated Press referred as well to
candidates from Canada and Gambia,16 and there is evidence that candi-
dates from Brazil and South Africa were considered in the running.17

Simons, ˜˜Argentine Is Expected to Be Prosecutor for War Crime Court™™ (2003).
The Age, ˜˜NSW Judge Candidate for International Court™™ (2003).
CNN, ˜˜War Tribunal Starts Without US™™ (2003).
Building the Court

Argentina™s Luis Moreno Ocampo emerged as the consensus candidate in
the spring of 2003. Moreno Ocampo, then a visiting professor at the Harvard
Law School (and hence with an apparently friendly relationship with the
United States), had been an assistant prosecutor in the trials of the former
military junta in Argentina in 1985 that were terminated with Argentina˜s
˜˜full stop™™ law and amnesty. In 1986, he was again an assistant prosecutor in
trials of police of¬cers accused of political murders, kidnapping, and torture.
In 1988, he became a main prosecutor in cases dealing with the 1987 military
rebellion and against commanders of the Malvinas-Falklands war for military
malpractice. From 1992 onward, he worked in a law ¬rm dealing with
criminal and human rights law, corruption control, and dispute resolution,
consulting with a wide variety of governmental and nongovernmental
international organizations on corruption issues and on human rights. He
had presented seminars on these issues at Yale, Harvard, Stanford, NYU, and
Columbia. Argentina is a civil-law country, although it is considered to have
incorporated signi¬cant elements of common-law procedure. Moreno
Ocampo was unanimously elected Chief Prosecutor on April 21, 2003, to
begin work at the ICC on June 16. Although much of the legal groundwork
for the Court™s operations had been laid, it was up to the Chief Prosecutor to
get the machinery in gear. This proved to be a contentious process.


Major decisions confronted the Chief Prosecutor upon his arrival at the
Court. While of¬cials had been developing an operational code for his
of¬ce, no ¬nal decisions could be made, and, as it turned out, his pre-
ferences differed from those who had been preparing the way. About two
years had passed between the establishment of the ad hoc tribunals by the
UNSC and the start of their ¬rst trials,18 but their missions were clearer
than that of the ICC: Although the particular cases they would pursue
would have to be selected, their statutes de¬ned the time periods and ter-
ritories wherein they would look for crimes to prosecute. The ICC Statute
spelled out Court jurisdiction and triggers, but the Of¬ce of the Prosecutor
still had to develop the process by which these would be implemented, what
the OTP™s main focus would be, and how best the OTP could avoid the
hindrances that slowed the tribunals™ cases.

The ICTY resolution passed in February 1993, and in April 1995, the trial of Dusco Tadic
commenced. In November 1994, the UNSC chartered the ICTR, and the ¬rst trial, of Jean
Paul Akayesu, began in January 1997.
110 Building the International Criminal Court

Selecting where and how to involve the Court entails some of the most
sensitive decisions that confront the ICC. Its actions needed to serve the
antiimpunity and justice mandates of the Court, be legally defensible under
the Statute, and, preferably, be politically palatable to the Court™s con-
stituencies. States, NGOs, international organizations, activists, and inter-
national lawyers held a variety of views about how best to implement the
Prosecutor™s duties. When the Prosecutor set up the OTP, he created what
some observers consider to be a more politically, as opposed to legally,
based decision structure for determining which situations to pursue and
how to pursue them.

Protocols for Evaluating Jurisdiction, Admissibility, and Cooperation
Work to design the Of¬ce of the Prosecutor had begun well before the
Rome Statute Conference convened, and the shape of the OTP was a major
focus of negotiation at the Conference. Once the Statute was complete, the
PrepCom took up the discussions in its development of the Rules of Pro-
cedure and Evidence. The original outline for the OTP, contained in the
June 2002 PrepCom report on the coming year™s budget and program,19
proposed that the of¬ce consist of an Immediate Of¬ce of the Prosecutor
with a deputy, two special assistants, a spokesperson, and secretarial staff,
along with an administrative unit made up of a budget of¬cer, a personnel
of¬cer, a programmer/analyst, and a language coordinator. This Immediate
Of¬ce would supervise two divisions, one for investigations (with an
information and evidence section, an investigation section, and an analysis
section) and the other for prosecution (including a prosecution section, a
legal advisory and policy section, and an appeals section). When the Statute
came into effect, the advance team immediately began receiving commu-
nications seeking ICC investigations into alleged crimes. All the team could
do was log in the communications and promise their senders that the Court
would look into their claims. Meanwhile, planning continued in anticipa-
tion of the arrival of a Chief Prosecutor.
During the yearlong interim between the Statute™s coming into force and
the Chief Prosecutor™s appointment, of¬cials in the OTP developed draft
regulations for how to proceed. Upon taking of¬ce, however, the new Chief
Prosecutor suspended those early plans, and crafted a model for his of¬ce™s
operations that appeared to take diplomatic-political considerations into

United Nations, Assembly of States Parties to the Rome Statute of the International
Criminal Court First Session (2002), 265“70.
Building the Court

more immediate account than would have the implementation of the draft
regulations, as outlined in the next section. The differences connote tension
and a fundamental divergence of approach and analysis of how the Court
should operate.
In August 2002, Morten Bergsmo joined the advance team from being
legal adviser in the OTP of the ICTY. He had previously served as legal
adviser to M. Cherif Bassiouni™s Commission of Experts on the war crimes
in former Yugoslavia, and went to the ICTY Prosecutor™s Of¬ce when it
came into being. Beginning in 1996, he served as an adviser and represen-
tative of the ICTY to the ICC Preparatory Committee, the Rome Confer-
ence, and the Preparatory Commission.
As the senior legal adviser and coordinator of the process to establish the
ICC OTP, Bergsmo enlisted four international experts to develop draft
regulations for the OTP. Adhering to the notion that the operation of the
of¬ce should be as transparent as possible, and regarding decision criteria as
being primarily legal in nature, the draft regulations assigned to the Deputy
Prosecutor (investigations) the initial responsibility for examining incoming
information ˜˜in close co-operation with the Deputy Prosecutor (Prosecu-
tions).™™20 Once the new information was duly registered by the manager of
the services section, the Deputy Prosecutor (investigations) would establish
a ˜˜Preliminary Examination Team,™™ which a legal adviser would instruct
on ˜˜relevant legal issues, in particular on questions of jurisdiction, admis-
sibility and other relevant legal matters, such as the contextual elements of
the crimes.™™21 The team would then assess the credibility of the informa-
tion, describe the crimes, identify suspects, recommend investigation tar-
gets, and evaluate the likelihood that the investigation could be successful.22
The team would report to the two Deputy Prosecutors.
If the deputies agreed that a matter did not merit starting an investigation,
they would terminate the process. If the deputies agreed that the situation
merited an investigation, they would develop a draft investigation plan23 and

ICC, ˜˜The Management of Preliminary Examination, Article 53(1), Evaluation, and Start
of Investigation,™™ Draft Regulations of the Of¬ce of the Prosecutor (annotated), Book 3,
Part 2 Section 2, Regulation 3.1.
Ibid., Regulation 4.1.
Ibid., Regulation 4.5.
Ibid., Regulation 6.5. The ˜˜draft investigation plan shall address and elaborate on, to the
extent possible and appropriate, and in a tentative manner,the following: (a) an assessment
of whether there is a reasonable basis to believe that a crime within the jurisdiction of the
Court has been or is being committed (article 53(1)(a) of the Statute); (b) the relevant
background of the situation, placing alleged offences in a broader geographical, social and
cultural context; (c) an explanation of why the alleged offences warrant a full investigation
112 Building the International Criminal Court

submit it with supporting material to the Chief Prosecutor.24 They would
recommend to the Chief Prosecutor whether to proceed, ˜˜paying speci¬c
attention to the interests of justice as speci¬ed by Article 53(1)(c) and Rule
48,™™25 and if the Chief Prosecutor decided to go ahead, the case would be
submitted to the Pre-Trial Chamber for approval to commence an of¬cial
investigation. If the deputies didn™t agree on whether to proceed, they would
go to the Chief Prosecutor before devising the investigation plan, and the
Chief Prosecutor would decide whether to proceed.26
In the proposed process, the ¬rst question to be answered was whether it
appeared likely that crimes under the jurisdiction of the Court had taken
place and whether the situation would be admissible under the Statute.
Then a recommendation including a preliminary evaluation of the ˜˜interests
of justice™™ would be developed. The question of state cooperation was
embedded in the evaluation, but not at a high priority.

Enter the Chief
At his inaugural ceremony, Moreno Ocampo pledged that the OTP would
˜˜undertake a participatory dialogue both in the policy-setting process and
in the actual implementation of its policies.™™ As he repeated in many venues
in subsequent years, he was open to advice, hoped to hear from all con-
stituencies “ NGOs, state representatives, legal experts, and his fellow

against the backdrop of other alleged offences where such a step might not be
recommendable; (d) an identi¬cation of the crime base incidents to be investigated and a
description of likely suspects, together with the overall aim of the investigation; (e) a
tentative indication of possible charges, modes of liability and potential defences,if any as
provided for in article 31 of the Statute; (f) an explanation of the role and place of these
likely suspects in the relevant chains of authority; (g) the whereabouts, if known, of the
possible suspects and the likelihood to arrest them; (h) an assessment of the admissibility of
a possible case under article 17 of the Statute; (i) a preliminary indication of resources, time
and staff likely to be required to complete the investigation; (j) a preliminary indication of
the main categories of evidence and the amount of evidence that is likely to be required to
prove the possible charges; (k) matters of State co-operation and security; (l) an explanation
of how the investigation and prosecution of the alleged crimes or perpetrators is expected to
¬t in with the broader context of cases pursued by the Of¬ce; (m) potential dangers to the
integrity of the investigation or the life or well-being of victims and witnesses that could
arise once the victims are informed of the intention of the Chief Prosecutor to seek
authorisation, in accordance with rule 50(1) of the Rules of Procedure and Evidence; (n)
any other mater that may be of relevance for a decision to start an investigation in the light
of the speci¬c situation.™™
Ibid., Regulations 6.3, 6.5, and 6.7.
Ibid., Regulation 6.7.
Ibid., Regulation 6.4.
Building the Court

international prosecutors “ and he wanted and needed help in developing
ideas for how to operate this new international mechanism. Startling some
observers, he said that the principle of complementarity ˜˜means that
whenever there is genuine State action, the Court cannot and will not
intervene™™ and therefore ˜˜the absence of trials before this Court, as a
consequence of the regular functioning of national institutions, would be a
major success.™™ He paid tribute to NGOs™ contributions to the creation of
the Court and asserted that the OTP ˜˜needs to maintain the same level of
interaction with civil society, through a policy of ongoing open dialogue.™™
Re¬‚ecting his experiences pursuing corporate and government corruption in
Argentina, he called upon business interests to help ˜˜improve, respect and
defend human rights, peace, and social justice, and to work against vio-
lence™™ and noted that the media could contribute crucially by ˜˜exposing
injustice and violence.™™ In his closing remarks, he declared that protecting
victims ˜˜is the objective of our mission,™™ and that the attack on the Twin
Towers in Manhattan showed that people™s safety could not be protected
solely by the state, but required that the international community be based
on the rule of law. ˜˜We must learn: there is no safe haven for life and
freedom if we fail to protect the rights of any person in any country of the
Moreno Ocampo immediately began consultations about how to struc-
ture the of¬ce, and he rapidly began building his team. The OTP that
emerged contrasted dramatically with Bergsmo™s proposal. Critics of
Bergsmo™s proposal saw it as too rigid; critics of the Moreno Ocampo OTP
say it™s too political.
Upon becoming Chief Prosecutor, Moreno Ocampo hired as his chef de
cabinet fellow-Argentinian diplomat Sylvia Fernandez de Gurmendi. Fer-


. 20
( 54 .)