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Con¬‚ict Background
In March 2000, United Nations Mission in the Central African Republic
(MINURCA) peacekeeping forces departed the Central African Republic,
having assisted in maintaining order through economic upheaval and
mutinies against the government of President Felix Patasse. Patasse had ¬rst
´ ´ `
been elected in 1993 and was reelected in September 1999. In May 2001, he
had enlisted the aid of militias from Libya, Chad, and the Congolese
Movement for the Liberation of the Congo (MLC) to quash an attempted
military coup. Another coup attempt in 2002 led to Patasse™s removal from
of¬ce in March 2003, and his replacement by the coup leader, former CAR
Army Chief of Staff Francois Bozize.
According to the FIDH, in the fall of 2002™s ¬ghting, Patasse, ˜˜suspicious
of his regular army of which a great number of members left with the
former putchists, . . . surrounded himself for protection with a few well
armed Libyans, with the support of Jean-Pierre Bemba™s [MLC] men and
with troops of the Chadian mercenary, Abdoulaye Miskine.™™179 The FIDH,
supported by the Central African League for Human Rights, learned of
what it called ˜˜¬‚agrant violation of the laws and customs of war™™ during
the ¬ghting, constituted by large-scale rapes and murders. The FIDH™s
February 13, 2003, report was the ¬rst it sent to the ICC, arriving well
before a Chief Prosecutor had been appointed. In September 2003, Amnesty
International sent a research team to Bangui, CAR, and carried out its own
study of the con¬‚ict and, like the FIDH, reported ˜˜widespread and sys-
tematic rapes™™ primarily carried out by MLC members.180

Antonio Cassese uses the term ˜˜exceedingly prudent,™™ in a negative sense, in his
introduction to International Justice Tribune, ICC in 2006: Year One: Legal and Political
Issues Surrounding the International Criminal Court (2007), 13.
FIDH, News Release, ˜˜War Crimes in the Central African Republic: FIDH Formally
Brings Its First Case before the International Criminal Court™™ (2003).
Amnesty International, ˜˜Central African Republic: Five months of War against Women™™
The First Situations

On December 22, 2004, the government of the Central African Republic
referred the con¬‚ict in its territory to the ICC OTP for investigation, fol-
lowing a ¬nding by its high court (Cour de Cassation) that the national
justice system would be incapable of prosecuting the crimes. In January
2005, the Court™s Presidency assigned the CAR situation to Pre-Trial
Chamber III. The Of¬ce of the Prosecutor indicated that it was undertaking
informal investigations in the CAR. It took from the time of the CAR™s
referral in December 2004 until late May 2007 for the OTP to decide that
events in 2002“3 warranted a formal investigation. Once again, a PTC
sought to speed the OTP™s considerations.
On September 27, 2006, the Registry forwarded a request to PTC III
from the CAR ˜˜including, inter alia, a request that the Prosecutor provide
information on the alleged failure to decide, within a reasonable time,
whether or not to initiate an investigation,™™ and on November 30, the
judges requested information from the OTP on the status of its preliminary
examination of the CAR situation. About two weeks later, the OTP
responded, arguing that there was no prescribed period of time within
which the conclusion of a preliminary evaluation should be expected, and
that the CAR situation had some unique characteristics that explained the
elapse of time. It noted, moreover, that the referring state had the right to
question a decision about whether to proceed or not, but that no decision
had been made, so that there was no OTP duty to report.181
Nonetheless, the OTP reported to the Chamber that it had received
communications from the FIDH alleging crimes, and the OTP was evaluating
these and other information. It sought and received further information from
the CAR authorities, and the OTP™s Jurisdiction, Complementarity and
Cooperation Division was analyzing the material received. Representatives
from the OTP had traveled to Bangui, Central African Republic, particularly
to evaluate domestic proceedings, and met with CAR representatives, NGO
representatives, and local diplomatic missions. A report had been drafted in
the OTP in July 2006, but then further allegations were communicated to the
OTP, and new information was conveyed that dealt with the period 2002“3.
The OTP indicated to the PTC that it was ˜˜committed to completing its
analysis of the CAR situation as expeditiously as possible and informing the

ICC, PTC III, ˜˜Prosecution™s Report Pursuant to Pre-Trial Chamber III™s 30 November
2006 Decision Requesting Information on the Status of the Preliminary Examination of the
Situation in the Central African Republic™™ (2006).
244 Building the International Criminal Court

relevant parties in a timely fashion,™™ but it could not say when this was likely
to occur.182
At the November 2006 Assembly of States Party to the Rome Statute, the
Chief Prosecutor indicated that his planning was based on the idea that an
additional situation would come under formal investigation during the
coming year, and on May 22, 2007, he announced initiation of a formal
investigation into the CAR situation, estimating that it would take
approximately eighteen months to complete. Moreno Ocampo stated that
the massive sexual crimes of 2002“3 ˜˜cannot be ignored under interna-
tional law™™ and that since current conditions in the country were deterio-
rating, his of¬ce supported efforts by the UN and others to stabilize the
situation. He expressed the hope that the Court™s involvement would help
to deter future violence and to promote enduring regional peace.183 Inter-
national human rights organizations, including Human Rights Watch and
Women™s Initiatives for Gender Justice, welcomed the emphasis on sexual
crimes, particularly in the wake of their disappointment that similar crimes
had not been charged in the DRC and Uganda cases.184 Some activists
remained disappointed that the Court had taken so long to act,185 although
HRW™s Richard Dicker pointed out that the OTP, with four situations
under investigation, was understaffed.186
The CAR investigation announcement demonstrated the crucial con-
nection between NGOs and the ICC, and in particular their role in drawing
attention to sexual crimes. The long delay in the Prosecutor™s announce-
ment might best be attributed to a triage strategy wherein the OTP, with
limited resources and still developing its capacities and routines, sought to
address ¬rst the crimes that it considered to have the greatest gravity. The
CAR announcement showed that the NGOs™ efforts at the ICTR, and Judge
Pillay™s evocation of women™s testimonies in the Akayesu case (see Chapter 2),
had irreversibly altered the terrain of international prosecutions.


In annual reports to the Assembly of States Parties and in comments to the
press, the OTP indicated that it had other situations under review. Court

ICC, ˜˜Prosecutor Opens Investigation into the Central African Republic™™ (2007).
Glassborow, ˜˜CAR Case to Focus on Sexual Violence™™ (2007).
Polgreen and Simons, ˜˜Hague Court Investigating Rights Violations in Central African
Republic™™ (2007).
Human Rights Watch, ˜˜Central African Republic: ICC Opens Investigation™™ (2007).
The First Situations

personnel and observers have repeatedly pointed out that all the situations
currently under investigation and prosecution are in Africa, and some
NGOs have gone so far as to indicate that, in order to demonstrate balance,
the Court should consider situations elsewhere. The OTP™s response has
been that it proceeds according to its ˜˜gravity™™ criteria, which, simply put,
boil down to casualty levels, and that the con¬‚icts in Africa at present
overwhelm any others over which the Court (by virtue of territorial or
national jurisdiction) might extend its purview. Nonetheless, Court of¬cials
have been in frequent contact with of¬cials in Colombia, and the OTP and
other personnel have visited there several times.187
Communications to the OTP, of course, have covered crimes from many
parts of the world. On its Web site, the OTP has twice summarized and
categorized requests for investigation and in some cases has indicated why it
decided not to pursue them.188 In particular, it responded to suggestions
that it investigate crimes in Venezuela and in Iraq by detailing reasons why
they did not constitute admissible situations, in public statements posted on
its Web site. Regarding accusations in Venezuela, the OTP indicated that its
jurisdiction could be triggered, since Venezuela is party to the Statute, but
that the allegations did not appear to be of the nature or level of crimes that
would require ICC examination.189 Regarding Iraq (where, since Iraq is not
an ICC signatory, only crimes committed by a party state “ namely the
United Kingdom “ would fall under its consideration), the OTP did not ¬nd
that crimes had taken place that would justify an investigation.190


The ICC generally, and the Prosecutor™s of¬ce most directly, faces contra-
dictory compulsions. To gain situation states™ cooperation, close interac-
tions with governments are necessary, but these governments also seek to
use the Court to their own advantage. Working too closely with situation
governments risks destroying the appearance of the Court™s impartiality;
too distant a relationship might scupper prosecutions. In the ICC™s case in
Uganda, although LRA depredations appeared more serious than those of
the UPDF, observers wondered whether the ICC would bring a case against
government of¬cials. Particularly because of Chief Prosecutor Moreno

ICC, OTP, ˜˜Update on Communications Received™™ (2006).
Ibid., Annex, Venezuela Response.
Ibid., Annex, Iraq Response.
246 Building the International Criminal Court

Ocampo™s appearance with President Museveni, the Court was suspected
of bias.
In the DRC, the Lubanga prosecution raised questions about the OTP™s
focus. Particularly as the transitional government carried out elections in
which some candidates (for example, Jean-Pierre Bemba) had been sus-
pected by human rights organizations of crimes similar to Lubanga™s, it
appeared that political considerations might have trumped ICC neutrality.
These kinds of dilemmas had faced the ad hoc tribunals, and they will
continue to be facts of life for the ICC. Chief Prosecutor Moreno Ocampo
faced the same problem in Uganda and in the DRC that his ICTR coun-
terparts Carla del Ponte and Hassan Jallow faced in Rwanda: The need for
government cooperation cuts hard against investigation and indictment of
suspects closely connected to the government.
The problem of cooperation in the Sudan situation is even more com-
plicated, since the Sudanese authorities do not recognize the ICC™s right to
be involved at all. The Security Council™s referral of the Sudan situation to
the Court demonstrated limits to U.S. opposition to the Court, but because
of major states™ economic and security interests, little international leverage
was exerted either to promote Sudan™s cooperation with the Court or for it
to end the Darfur violence. Sudan™s willingness to accede to the OTP™s
requests for meetings in Khartoum to discuss the status of national judicial
measures, however, was perhaps a weak indicator of pressure to appear
respectful of the Court. Partial and dilatory as this cooperation was, it could
be evidence to support the constructivists™ idea that shame has some com-
pelling international effect.
The necessary secrecy of prosecution investigations makes evaluation of
criticisms dif¬cult. Nonetheless, credible critics such as Louise Arbour and
Antonio Cassese argued in the Sudan situation that the OTP could have
taken measures that would likely have accelerated investigations and per-
haps also served positive humanitarian purposes. The OTP™s operational
code is still a work in progress. The Prosecutor consistently maintains that
he is proceding with due speed, given the requirements for legality, but
critics argue that more could be done faster, even, as in Sudan™s case, facing
situation state opposition. In the Uganda situation, critics question the lack
of warrants for UPDF of¬cials. In the DRC, they ask why only Lubanga,
and why are the charges so narrow? In Sudan, even with the spring 2007
warrants for Harun and Kushayb, the Prosecutor was criticized for not
aiming at the highest levels of responsibility.
In all four situations, NGOs were vital to the ICC™s investigations and
outreach, but they also pursued their own visions of Court operations
The First Situations

sometimes at cross purposes with each other and with the Court. In Uganda
and Sudan, humanitarian, peace-oriented NGOs worry that arrest warrants
will damage the possibilities for peace, while human rights organizations
call for rigorous implementation of the law. Humanitarian and legal
imperatives may converge over the longer run, when threats of arrest may
help deter crimes. In the short run, however, peace and justice appear to
remain in tension.
Inside the ICC, the division of labor and the balance of prerogatives
between civil-law-like oversight of the Prosecutor by the Pre-Trial Cham-
bers and the Prosecutor™s independence were slowly being established by
precedent. The OTP was pushed to accelerate and deepen investigations, on
the one hand, while also being required to accept an expansive role for
victims and their representatives at early stages of the con¬rmation process.
In all four situations, the Court™s involvement was only a part “ and
perhaps a small one “ of efforts to ameliorate con¬‚ict. Issuing warrants in
northern Uganda added pressure to the LRA and provided a vehicle for
Sudanese“Ugandan cooperation, but the changing constellation of relations
between Sudan, Congo, and Uganda made progress against the LRA pos-
sible. In the Congo, the gradual development of the transitional mechanisms
that led to democratic elections would have proceeded regardless of the
Court; the threat of ICC action, however, appears to have accelerated
efforts to reconstruct the domestic justice system. The Lubanga case will
test the Court™s ability to ef¬caciously carry out trial procedures; mean-
while, additional warrants against high-pro¬le suspects might improve the
Court™s reputation. In the Sudan, everything appears to hinge on the
amount of outside pressure that can be brought to bear on the government.
In the Central African Republic, the Prosecutor noted that the ICC was
working within the context of other UN organizations in efforts to stabilize
the country, and that the Court hoped to contribute to the deterrence of
additional crimes.


The Politics of the International Criminal Court

Flowing from sources traceable back at least to the Old Testament and


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