This record is a partial extract of the original cable. The full text of the original cable is not available.

C O N F I D E N T I A L SECTION 01 OF 03 THE HAGUE 001016 
 
SIPDIS 
 
DEPARTMENT FOR S/WCI - PROSPER/RICHARD, L - WTAFT, L/UNA - 
MATHIAS/COGAN, L/AF - GTAFT 
 
E.O. 12958: DECL: 10/13/2010 
TAGS: PREL PGOV KAWC
SUBJECT: ICC: OTP, STILL A WORK IN PROGRESS, LOOKING AT 
AFRICA 
 
REF: A. KINSHASA 707 
     ¶B. WWW.ICC-CIP.INT/PHP/NEWS 
 
Classified By: Legal Counselor Clifton M. Johnson per reasons 1.5(b)-(d 
). 
 
¶1.  (C) Summary: The International Criminal Court (ICC) 
remains very much in a nascent stage even as the Office of 
the Prosecutor (OTP) considers whether to open formal 
investigations of situations in northern Uganda and the 
Congo, based on referrals from Kampala and Kinshasa (refs). 
The lack of any formal investigation -- let alone indictments 
or cases -- has allowed the competing visions of the 
institution to develop into policy and personality disputes 
within its organs and among its senior leadership, though at 
this stage it is difficult to tell whether such disputes are 
merely early growing pains or something else.  Early signs, 
however, are that Chief Prosecutor Luis Moreno-Ocampo is 
firmly stamping his vision on the OTP.  End summary. 
 
¶2. (C) The ICC is, as one UK colleague reports, "very much a 
work in progress."  It is growing both in terms of staff and 
workload, though the former is outpacing the latter.  Each of 
the four organs of the ICC -- the Presidency, Chambers, 
Registry and OTP -- has been focusing for the past year on 
organization and recruitment, while the senior management 
also engages in substantial outreach (speeches, travel, 
etc.).  Most of the personnel growth is occurring in the OTP, 
which envisions a staff of over 100 by the end of 2004.  The 
senior leadership interacts through a Coordination Council 
bringing together the Prosecutor, Registrar and President, or 
their respective deputies or chiefs of staff, who work on 
items of mutual concern. 
 
------------------------------ 
Form and Substance Mesh in OTP 
------------------------------ 
 
¶3. (C) Structurally, the OTP is becoming the most 
sophisticated and complex of the ICC organs, as the judges 
bide their time by working on regulations to govern their 
work (nb: unlike the ICTY, the judges of the ICC have no 
power to promulgate Rules of Procedure and Evidence, a power 
which rests with the ICC Assembly of States Parties) and the 
Registry works principally on infrastructure and 
administration.  The OTP has organized itself into an 
Investigations Division, headed by a deputy prosecutor from 
Belgium, Serge Brammertz; a Prosecutions Division, whose 
division chief position remains vacant and likely to be 
filled in September; and a unique Jurisdiction, 
Complementarity and Cooperation Division (JCD), headed by 
Chief Prosecutor Luis Moreno-Ocampo's chief of staff, Silvia 
Fernandez. 
 
¶4. (C) The OTP structure is revealing, particularly as the 
JCD points not only to a complicated set of relations among 
the key personnel in the office but also to the way in which 
Ocampo sees the OTP's role.  At this time, the JCD is a small 
section largely staffed by former foreign ministry-type 
lawyers and other analysts, whereas the other divisions 
involve small numbers of prosecutors and investigators from a 
mix of national jurisdictions and international tribunal 
(mainly ICTY) experience.  As described to embassy legal 
officer, the JCD is the entry point for any communications 
claiming criminal violations within the jurisdiction of the 
ICC (approximately 700 received since July 2002) and is the 
first stop for analysis of whether available information 
provides a basis for initiating investigation.  Its two 
principal analytical questions are, first, whether the 
information on its face falls outside ICC jurisdiction, and 
second, whether a national jurisdiction may already be in a 
position to handle the allegations in its own criminal 
justice system.  As a result, Ocampo has put complementarity 
-- i.e., the question of national competence and capacity to 
try crimes domestically rather than at the ICC -- in a 
priority place in his office structure. 
 
¶5. (C) The primacy of the JCD, particularly at this early 
phase of the OTP's development, rankles the other sections of 
the OTP, especially the investigators, who see their role of 
assessing and developing information as a primary one for the 
OTP.  According to an embassy contact, the investigators and 
JCD officers do cooperate and the distinctions between their 
functions have not led to strict firewalls.  Nonetheless, JCD 
officials have the lead role in the current phase of OTP 
work.  Moreover, JCD officers tend to see investigators as 
unnecessary at the current phase, preferring instead regional 
experts and political analysts who can assess the reliability 
of information. 
 
¶6. (C) In matters of perspective, key JCD officers also 
differ from others in OTP.  This derives not only from their 
non-prosecutorial background but also from some officers' 
previous positions in governments that had substantial 
information-sharing programs with the ICTY.  For example, two 
key officers are from the UK Foreign Office and Canada's 
DFAIT, respectively). In part as a result of their 
backgrounds, these officers see it as essential to the OTP's 
success to develop positive relationships with 
information-providers, particularly governments.  They are in 
the process of holding 'educational' discussions with key 
governments, particularly in Africa but also with major ICC 
supporting governments such as the UK. 
 
¶7. (C) With this background in mind, JCD officers believe 
that governments are unlikely to share sensitive information 
with the OTP in the absence of strong protections against 
their further disclosure without consent.  According to one, 
however, they are facing a significant hurdle with 
investigators and Chambers, which is said to be ready to 
adopt regulations that would require the OTP to disclose 
potentially exculpatory information to a trial chamber even 
if the information derives from a provider that does not 
consent to such disclosure.  This dispute, which rings 
similar to the long-running but almost nearly resolved 
questions of whether the ICTY's Rule 70 (information-sharing) 
trumps its Rule 68 (exculpatory information), is putting some 
JCD officers in the position of having to tell potential 
information-providers that they cannot guarantee at this 
stage that sensitive information would not also be shared 
with an ICC trial chamber.  This fact leaves JCD uneasy and 
concerned that governments will be hesitant to share the most 
sensitive lead and background information with the OTP. 
 
¶8. (C) Finally, the backgrounds of the respective officials 
in the OTP continually play a role in how they see the OTP's 
mission.  The former government lawyers, for instance, do not 
appear to see their missions in strictly prosecutorial terms. 
 As one JCD official put it, when looking at a situation for 
possible investigation, he needs to consider not merely 
whether a crime occurred and whether a particular person or 
persons may be subject to prosecution; he also needs to 
consider whether prosecution would promote justice more 
generally, just as Article 53(2)(c) of the Rome Statute 
provides that the Prosecutor may decide not to proceed with a 
prosecution that is "not in the interests of justice". 
Ocampo is said to see his role in similar terms.  The 
investigators reportedly do not see it the same way; rather, 
they see their role as following the information and evidence 
wherever it leads.  They are ready to scour potential crime 
sites for evidence before the assessment is made as to 
whether an investigation/prosecution would likely be 
permitted, whereas the JCD officials see it is as 
fundamentally important first to gain the trust and 
cooperation of those potential governments in whose territory 
crimes might have been perpetrated. 
 
---------------- 
Uganda and Congo 
---------------- 
 
¶9. (C) The result of the JCD-investigators divergent 
perspectives is seen, to some extent, in the early efforts to 
gather information from Kampala and Kinshasa.  The Presidents 
of both countries have now made referrals to the OTP.  The 
referrals on their own, however, do not require the OTP to 
open a formal investigation, though Emboff contacts all 
believe that formal investigations will be opened over the 
next several months. One reliable source has reported that 
the OTP is operating on the assumption of investigating three 
situations in 2005.  Both JCD and investigative officials 
have made numerous trips to both capitals in an effort both 
to encourage cooperation and begin the process of collecting 
information.  Investigators have gone on these trips prepared 
to begin the process of information-gathering, whereas the 
JCD officials have been taking a go-slow approach, using the 
visits more to build relationships with responsible 
government officials. 
 
------------- 
Personalities 
------------- 
 
¶10. (C) It remains difficult to assess, from the Embassy's 
distance, the impact of the key personalities on the ICC's 
early work.  Some trends evident, however, and chief among 
them is that the three principals -- President Philipe 
Kirsch, Prosecutor Ocampo, and Registrar Bruno Cathala -- eye 
one another with a mixture of suspicion and bemusement. 
Ocampo is seen to be the wildcard by some on his staff -- a 
seemingly laid back Argentine who is less concerned with the 
details than "the vision" and his mission.  The meetings 
between this rumpled-suit prosecutor with a half-shaved 
beard, the smooth, pinstriped Kirsch and the voluble, dynamic 
Cathala are said to be comic in appearance -- but not 
settings for clear understanding.  Cathala, emboffs are told, 
has committed some misdemeanors of overreach, seeking to use 
his control of infrastructure issues as a wedge into what 
Kirsch sees as his turf.  For one thing, Cathala's early 
vision of a flexible institution able to contract and expand 
according to the demands of the proceedings, appears to have 
been shelved in favor of a more traditional, solidly 
growth-oriented agenda.  For his part, Kirsch seems to be 
presiding over a restive set of judges, many of whom come 
from distinguished backgrounds and are now simply waiting for 
OTP to give them something real to do (and move beyond 
development of what is described as a several-inch thick set 
of judicial regulations). 
 
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Comment 
------- 
 
¶11. (C) Comment:  One year after they joined the ICC, the 
principal ICC officials continue to work on shaping and 
building their institution.  It should be expected that any 
such process will cause strains, particularly against the 
backdrop of healthy egos, ambitious junior officials, the NGO 
and States Parties' microscope, and an unclear mandate. 
Still, two factors of particular strain have come to the fore 
at the OTP.  First, unlike other international tribunals, the 
ICC lacks a specific geographic and temporal charge that can 
give its investigators and prosecutors some sense of the 
possible.  The result, in part, is that the sense of mission 
is somewhat diffuse -- in contrast to the ICTY's early 
rallying call of bringing an end to crimes in Bosnia the ICC 
mission at present is more to find a case or cases that can 
demonstrate the ICC's seriousness and value. 
 
¶12. (C)  Here, then, is the second problem for the ICC -- a 
difficulty in defining what "seriousness" and "value" mean. 
Investigators and prosecutors are said to see it as meaning 
that the ICC should be in a position to prosecute serious 
crimes.  But the Chief Prosecutor himself seems to see the 
ICC's role as, perhaps principally, ensuring that domestic 
jurisdictions have the ability to prosecute cases in their 
own systems.  He has said numerous times that a sign of ICC 
success would be when domestic jurisdictions, and not the 
OTP, prosecute cases -- a line that seems to zero out the job 
of investigators and prosecutors.  The early prominence of 
the JCD seems to concretize this point, which appeared merely 
rhetorical at first.  As the OTP heads towards more formal 
investigations into the Congo and Uganda, the outcome of this 
internal maneuvering will likely become clearer.  End comment. 
SOBEL