. 21
( 54 .)


nandez had long been associated with development of the ICC in her
capacity as legal adviser in the Argentine Foreign Ministry delegation, ¬rst
to the Preparatory Committee meetings (she was one of two vice chairs of
the Prep Com prior to the Rome Conference), then to the Rome Statute
Conference, and then in the PrepCom. At Rome she was one of two vice
chairs of the Committee of the Whole. During the PrepCom period fol-
lowing the opening of the Statute, she headed the Working Group on the
Crime of Aggression, and in the period just before the Statute came into
force, she was involved in negotiations on behalf of the PrepCom with
Dutch authorities over ICC premises and the ICC“host state agreement.

ICC, ˜˜Statement made by Mr. Luis Moreno Ocampo at the ceremony for the solemn
undertaking of the Chief Prosecutor of the ICC™™ (June 16, 2003).
114 Building the International Criminal Court

The OTP that appeared in the fall 2003 report to the ASP was quite
different from the OTP planned by the 2002 PrepCom report. The Imme-
diate Of¬ce of the Prosecutor was expanded to twelve professionals (instead
of the previous six), divided into an ˜˜External Relations and Complemen-
tarity Unit™™ and a ˜˜Public Information Unit.™™ Reporting to the Immediate
Of¬ce were the Services Section (Languages Unit and Information and
Evidence Unit), the Legal Advisory and Policy Section, and the Knowledge-
Base Section. The two Deputy Prosecutors (investigation and prosecution)
would report to the Immediate Of¬ce of the Chief Prosecutor. The Chief™s
chef de cabinet, Fernandez de Gurmendi, was also the head of the External
Relations and Complementarity Unit in the Immediate Of¬ce, and it was to
this unit that incoming information and referrals were to be channeled, not
to the Deputy Prosecutor (investigations) and preliminary examination
team that the Bergsmo group had proposed. The communications intake
work had thus been shifted from a unit de¬ned by legal and criminal
expertise to a unit de¬ned by diplomatic (external relations and comple-
mentarity) expertise.
Moreno Ocampo continued to consult with legal and management experts
about how to structure the of¬ce and was advised to keep the Immediate
Of¬ce of the Prosecutor small and allocate responsibility for jurisdiction and
complementarity screening to a separate division. Fernandez de Gurmendi
became both chef de cabinet and head of the newly created Jurisdiction,
Complementarity and Cooperation Division (JCCD). Jurisdiction meant that
the unit would examine referrals to determine whether their allegations met
the Statute™s jurisdiction criteria.28 Complementarity implied both the eva-
luation of whether a state was able and willing genuinely to prosecute (if
crimes were suspected) and, more positively, the scope for Court support for
state efforts. Cooperation meant making arrangements for cooperation
between states and organizations and the ICC OTP. Skeptics about the role
of JCCD called it the OTP™s political of¬ce.
No ¬nal OTP rules of operation were publicized. Critics of the reorgani-
zation were concerned that a shift had taken place from primarily legal
criteria driving the evaluation of referrals to a more political process, and one
no longer outlined in speci¬c, publicly available OTP rules. The draft rules
remained posted on the OTP Web site, not modi¬ed, ¬nalized, or replaced (as
of June 2007), although an undated ˜˜annex™™ described the JCCD setup.29

ICC, OTP, ˜˜Annex to the ˜Paper on Some Policy Issues before the Of¬ce of the Prosecutor™:
Referrals and Communications™™ (2004).
Building the Court

The Legal Advisory Section, headed by Bergsmo, shrank from seven of¬cials
in 2004 to three in 2005, and at the end of the year, Bergsmo left the ICC for
a post at the University of Oslo.

Referrals Pour In
As soon as the Court came into existence in 2002, communications ¬‚ooded
in requesting the ICC™s attention to alleged crimes. During the ¬rst year of
existence, the Court received 472 communications. The Of¬ce of the
Prosecutor reported that ¬fty of these referred to crimes that had taken
place before July 1, 2002, and were thus not under ICC jurisdiction; thirty-
eight referred to claims of state aggression, a crime not yet under ICC
jurisdiction; sixteen claims were about U.S. actions in Iraq, but since neither
Iraq nor the United States was a member state, the ICC had no jurisdiction.
There were two communications about Israeli actions vis-a-vis Palestinians,
but again, neither territorial nor national jurisdiction applied. Complaints
outside the Court™s jurisdiction were also received about alleged crimes in
the Ivory Coast and about non-U.S. coalition forces in Iraq; some com-
plaints pertained to crimes not under ICC jurisdiction, such as international
drug crimes. On July 16, 2003, Chief Prosecutor Moreno Ocampo
announced that he had decided to follow up reports of crimes taking place
in Ituri, Democratic Republic of the Congo, a party to the Statute.30

A New Vision of Complementarity
As shown by the expansive tasks articulated in his inaugural speech, Chief
Prosecutor Moreno Ocampo believed that the ICC in general, and the OTP
in particular, could ¬ght impunity in a variety of ways, and that state
cooperation in his efforts would be crucial. His concept of complementarity
implied more than that the ICC was only a backup to national jurisdiction.
The ICC should, if possible, gain state cooperation, even that of the state(s)
in which crimes were taking place, when it investigated a con¬‚ict situation.
The ICC should encourage and support domestic authorities to act against
impunity, but if a state could not conduct needed investigations and pro-
secutions, ideally, the state itself would refer its own situation to the Court,
smoothing cooperation and reducing or eliminating the possibilities that the
state would challenge the ICC™s jurisdiction or cases™ admissibility.31 It was

ICC, OTP, ˜˜Communications Received by the Prosecutor since July 2002™™ (2003).
Interviews, 2005, 2006 with NGO and present and former OTP personnel.
116 Building the International Criminal Court

a novel view of the ICC™s relationship with states, and one that provoked
widespread skepticism among the ICC ˜˜old hands.™™ Nonetheless, the ¬rst
situations that the Court pursued were in countries that had joined the
Statute. Having met with OTP personnel, the governments of Uganda in
December 2003 and the Democratic Republic of the Congo (DRC) in April
2004 requested that the ICC pursue investigations in their countries, saying
they were unable to carry out necessary processes against suspected per-
petrators of international crimes.
The con¬‚icts in the Congo and Uganda were producing millions of
casualties that had begun before the Court came into being but were con-
tinuing. The OTP™s rationale for involvement based on government
declarations of ˜˜inability™™ to prosecute struck some observers as prob-
lematic, but from the ICC OTP™s standpoint, suf¬cient cause existed to
begin investigations (see Chapter 7).
By initially pursuing cases in the (DRC) and Uganda at the governments™
requests, the OTP focused on important international crimes but avoided
challenging state sovereignty as it would have by opening the investigations
proprio motu (under the Prosecutor™s own authority). The third situation in
which the OTP opened an investigation, in Darfur, western Sudan (in
March 2005), skirted the issue of the Prosecutor acting proprio motu from
an entirely different but also unexpected direction, a UN Security Council

A Complementarity Spectrum
Moreno Ocampo™s claim in his inaugural speech that the absence of ICC
trials caused by state prosecutions would be a success for the Court shocked
some observers, including some ICC judges: It sounded like a before-the-
fact excuse for not being able to bring cases to Court. However, behind the
statement was a creative idea. Moreno Ocampo and some JCCD of¬cials
proposed that encouraging national systems to improve their capacities to
prosecute crimes that might fall under ICC jurisdiction by sharing infor-
mation, training staff, and providing other forms of assistance could be
included in the idea of ICC complementarity. They called the idea ˜˜positive
complementarity,™™ as contrasted with the ˜˜negative complementarity™™ of
taking over prosecution when states proved unwilling or unable genuinely
to do so themselves.
Complementarity can be imagined as a spectrum. On the negative end,
suspecting that a state is not pursuing prosecutions in good faith, the Court
carries out investigations, issues warrants, gains custody, and prosecutes
Building the Court

suspects. At the positive end, the Court communicates its concerns about
crimes, establishes legal and judicial training and cooperation mechanisms
to bolster a weak justice system, and then monitors local judicial processes
undertaken for crimes that would otherwise fall under ICC jurisdiction.32
Critics have derided the positive complementarity idea as reimagining
the Court as a (judicial) development assistance organization; however,
enthusiasts argue that positive complementarity could become an important
part of the ICC™s work to counter impunity and would be a constructive
and restorative measure, in contrast to the purely punitive orientation of
traditional justice mechanisms.

ICC Prosecution Innovations
Because of ICC complementarity (as opposed to tribunal primacy), the ICC
Chief Prosecutor pursued state cooperation differently than had the tribu-
nals™ prosecutors. Because of the tribunals™ perceived shortcomings “ such
as their initial focus on too low-level suspects, their inadequate linkage of
investigations to prosecution plans, and their unduly long cases caused by
large numbers of charges against individual suspects “ the Court™s OTP
implemented a series of innovations aimed at improving states™ cooperation
with the Court, tightening connections between investigation and prose-
cution, and focusing charges against suspects. The trials envisioned by the
OTP would be optimized not only for bringing suspects to justice but also
for demonstrating to observers that justice would and could be done

Seek Suspects Most Responsible for Crimes
At the beginning of the ICTY™s operations, Prosecutor Richard Goldstone
had brought Dusko Tadic to trial, transferred fortuitously from Germany,
and had declared it policy to begin with lower-level transgressors and move
up the ranks. Later, Goldstone and the tribunal were lambasted for failing
early to grapple with those people at the top of the political and military
hierarchies who were most responsible for the crimes that took place in the
former Yugoslavia. Goldstone and his defenders pointed out that beginning
with lower-level transgressors allowed the tribunal time to develop its
procedures and pursue further investigations. Goldstone™s successors,
Louise Arbour and Carla del Ponte, focused increasingly on higher-level
suspects, and as efforts were initiated to wind down the tribunal™s

Interviews, 2006, JCCD personnel.
118 Building the International Criminal Court

operations, lower-level cases were increasingly dismissed, plea-bargained
off the docket, or referred to newly created local tribunals as part of the
overall completion strategy. ICTY President Claude Jorda™s 1999 declara-
tion that the tribunal should focus on the transgressors ˜˜most responsible™™
eventually became policy in both ad hoc tribunals (see Chapter 2).
The ICC OTP™s 2003 policy paper announced the Court™s intentions to
˜˜focus its investigative and prosecutorial efforts and resources on those who
bear greatest responsibility, such as leaders of the state or organization
allegedly responsible for those crimes.™™33 The ICC™s ¬rst arrest warrants “
for leaders of the Lord™s Resistance Army (LRA) in Uganda Joseph Kony
and his four top henchmen “ showed in October 2005 that the pursuit of the
most responsible leaders, at least in this situation, was indeed the OTP™s

Pursue Representative Cases of the Greatest Gravity
Having observed the problems of ICTY and ICTR prosecutions of individual
suspects on large numbers of criminal charges, the ICC OTP intends to focus
on small numbers of the worst crimes of its suspects, using carefully devel-
oped investigative and prosecution strategies to focus on representative,
rather than comprehensive, criminal charges. In practice this means that the
OTP analyzes information from con¬‚ict situations and ranks crime by
gravity “ from worst to less severe “ and seeks ¬rst to investigate the worst
crimes. Connecting the worst crimes to the persons most responsible, the
OTP strategy is then to choose from among the individual incidents com-
prising such crimes to ¬nd a representative small sample and seek to develop
information on those cases for which proof of the standard of ˜˜beyond a
reasonable doubt™™ can most likely be obtained. As the Chief Prosecutor put
it, he intends to proceed ˜˜sequentially,™™ which means working on a very
limited number of cases from each situation, pursuing them one at a time.
Although the Chief Prosecutor espouses this strategy as an ef¬ciency
measure, some victims™ advocates have challenged it, arguing that all rele-
vant charges and, if appropriate, multiple perpetrators should be pursued in
order to show respect to the victims and to demonstrate the serious nature
of an appropriately broad range of crimes. In particular, NGOs have argued
in connection with the ¬rst case to come to Court, that of Thomas Lubanga
Dyilo from the DRC, that prosecuting him for child recruitment but not
mass rape and other gender crimes ˜˜reduces the number of victims able to

ICC, OTP, ˜˜Paper on Some Policy Issues before the Of¬ce of the Prosecutor™™ (2003), 7.
ICC, OTP, ˜˜Statement by the Chief Prosecutor on the Uganda Arrest Warrants™™ (2005).
Building the Court

obtain justice for the suffering or claim reparations.™™35 Since the cases for
warrants and charges come to the Pre-Trial Chambers from the OTP,
Chambers too could question the OTP on the breadth of charges. The OTP
will, however, generally be in the position to argue that it is pursuing those
crimes for which it has most accurate information, and has decided what
cases can best be made.

Aim Toward Ef¬cient Cases through Effective Data Management
The inef¬ciencies of the ICTY and ICTR were notorious to the ICC™s
Statute negotiators. At the ICTY, Morten Bergsmo had helped bring order
to the chaos of paper record keeping at the core of the ICTY™s inef¬ciency.
By the time the ICC became operational, the technologies of computer and
Internet-based data management capabilities far outstripped what had
originally been available to the tribunals. Bergsmo set about developing
data management systems that would avoid the kinds of problems the ICTY
had encountered. By the time of his departure from the ICC in December
2005, work on the Case Matrix data management system was largely
complete, and the ICC was announcing that it would be made openly
available to law enforcement organizations. Case Matrix is a data man-
agement system that provides a template for investigators to record, cate-
gorize, and cross-reference evidence in order to directly link it to elements of
crimes for prosecution. Thus, when adequate evidence to demonstrate an
element of crime has been accumulated, an investigator will know to move
to another area for investigation, and when trial attorneys seek evidence to
support a particular charge, the evidence will already be categorized and
recoverable under the terms of the charges. ICC prosecutions should be
much more ef¬cient than those of the ICTY.

Integrate Investigation and Prosecution
The draft regulations for the OTP show that people involved in thinking
about the ICC certainly recognized weaknesses produced by the separation
between the ad hoc tribunals™ investigation and prosecution teams. As a
consequence, already during the transition phase prior to arrival of the


. 21
( 54 .)