“Mr Prosecutor, Am I Next?”: Hopes and Fears surrounding the ICC

by Kennedy Graham

We certainly are getting our moments, here in Kampala, with the International Criminal Court.

The thing about the ICC is that, without intending anything of the sort, it has become a glorious mix of human foible. And so all of ours are on display. It is the court of the naked human. While it evokes all the vision and hope that lie within the human breast, it is actually a highly honed professional institution. In our modern Faustian world, emotion and rigour negatively correlate. That is why there is so much, innocent, misunderstanding, including here at the conference.

Prosecutor Luis Moreno Ocampo is nothing if not controversial. He essentially carries one of the most powerful jobs in the world. He can launch an investigation of you. He can then decide whether charges are appropriate. If he convinces a few others that he is right, he can then prosecute you. If you are found guilty, you may spend a considerable time in prison, in The Hague, or elsewhere. Far away from home.

Lest we think this is dreaming out of Africa, let us recall that our Kiwi soldiers are, right now, liable to any charge of war crime or crime against humanity should s/he slip from grace and slaughter a civilian or two – in Afghanistan, in East Timor or wherever John Key’s cabinet chooses to send them. That includes our ‘elite’ SAS. At least, the soldier is liable in theory. In practice the Prosecutor tends to go easy on Joe (Josephine) Soldier, seeking out the commander in the field, for reasons that are themselves controversial.

It is an arresting thought, and it clearly ignites emotion among people – especially if the personal prospect is closer to reality than theory.

So, let’s recognise the professional dimension of this. The Prosecutor of the ICC has broad competence (read prosecutorial power) over the global citizenry for criminal justice. But it is strictly limited, in time and space. His power is circumscribed in the following ways:

1. It is proactive, from 1 July 2002 – anything you may have done before then, you are not liable.
2. You must be a national of one of the 111 countries that have joined the Court. Or, if not, you must have committed the crime (anyone for genocide?) on the territory of one of those 111 countries. If you a national of, or committed the crime on the territory of, any of the 81 other countries, you are safe. Unless, that is, the UN Security Council thinks you ought not be, and refers you to the Prosecutor. The group of 81 recalcitrants includes, at present, the US, China, Russia, India, Pakistan, Iran, Iraq, Israel, and Egypt (anyone for war crimes over there?).
3. The Prosecutor would need to have the drop on you – sufficient evidence that you have done something dreadfully wrong (such as a crime against humanity). And he will need to convince a pre-trial chamber of three judges.
4. Even if your luck ran out on all the above, it may also happen that the Security Council thinks you are such a wonderful human being that it requires the Prosecutor to defer investigation for 12 months.

So, Mr Ocampo’s powers are limited.

Yet he does nonetheless have a presence. When he walks into the room, you know that he represents the global reach of criminal justice, and that you shall want to be on your best behaviour.

Which brings us to Musa Sirma.

Mr. Sirma is a cheerful looking fellow. He comes from Kenya. In fact, he is a Member of Parliament there. He is an articulate gentleman. And his passions are aroused.

For, as I have said earlier, the Africans are aware that it is only they, to date, who have been in the dock. The Prosecutor is Argentinean. The President of the Court is Korean. All defendants are African.

And Kenya is next up on the docket. The first three cases were self-referrals. The Ugandan Government was first out of the blocks, referring the leaders of the Lord’s Resistance Army. If you know what the LRA got up to over the past decade in the name of Christ, you’ll understand why. The DR Congo self-referred too, as did the Central African Republic. Then the UN Security Council referred Sudan, and the Prosecutor, having indicted one guerrilla leader and one cabinet minister, then went for the President himself. So, the way the Africans see things, Mr Ocampo knows no fear.

But the Kenyans know fear, at least Mr Sirma does. Because of the violence surrounding their last election when 1,220 people died. Because a group headed by former UN Secretary-General Kofi Annan, recommended to the Prosecutor that he initiate investigations of crimes against humanity. And because Mr Ocampo is doing just that.

So, here at the PGA Conference in Kampala, Uganda, we found ourselves acting as uncomfortable witness to a new global drama – an African citizen, standing at the lectern three meters away from the ICC Prosecutor who is a Latin American, expressing fear over being investigated, and possibly indicted, by him in Europe.

“We do not know whom you are investigating”, he says expressively. “We do not know what your mandate is. We do not know what your sources of evidence are. All we know is that, one day before long, some of us may well be charged. How do I know it will not be me? Mr. Prosecutor, am I next?”

We all laughed. But it did not come from the belly. It was more of a nervous titter.

Luiz Moreno Ocampo smiled.

I made a few discreet enquiries later in the day. Seems our colleague originated from Moi Youth. They are the subject of investigation. Mr. Sirma, the story goes, argued against the violence.