Tuesday, November 8, 2011

ICC Prosecutor Ocampo Admits Double Standards at ICC

One of the most problematic aspects of the ICC is the role assigned to the security council (UNSC) to refer situations to the Court (art 13) and to suspend proceedings before the Court for a year (art 16).

Whatever its justification, it is problematic because it preserves the politicized role of the UNSC in a judicial body and projects the selectivity of the UNSC when acting to create ad hoc criminal tribunals in the past.

From an African perspective, the African Union has cited the role of the UNSC in its accusations against what it regards as selectivity on the ICC's part. One has to note that this accusation against the ICC may appear unfair because in situations where the court cannot act because a matter cannot get to the court either through a state referral or proprio motu initiative by the prosecutor only the UNSC can trigger jurisdiction. The problem however, is not that the UNSC can, and has in fact referred some situations to the court - Darfur and Libya - but that it has acted selectively. Commentators and the AU point for instance to possible war crimes committed during Operation Cast Lead in Gaza within the same time frame. Some go as far as Iraq and Afghanistan.

Until now, the ICC has been mum about the potential political role of the UNSC in the court. The ICC's supporters for their part have been quick to dismiss this as a minor issue, noting that once a matter gets to the court, only legal criteria become relevant. While this is true, it has to be acknow3ledged that the manner in which the UNSC has evolved not only in referrals but also in refusing to defer (esp Darfur) has had an impact on the international legitimacy of the ICC. In any case, the statutorily protected prosecutorial role in charging suspects is another site for potential politicisation but has received but limited attention until now.

In a surprising turn of events, the outgoing Prosecutor Moreno-Ocampo (perhaps emboldened by his impending departure and can now afford to be frank) has admitted that there is a double standard at the ICC.

Read his recent comments reported by Opinio Juris here.

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