International Criminal Court and Wikileaks

The International Criminal Court moves to centre stage in the latest Wikileaks releases. The headline in today’s Guardian says ‘Sudan leader “stashed $9bn in UK banks”’. The claim originates with the Prosecutor of the International Criminal Court, Luis Moreno-Ocampo”. The cable in question also reports that Moreno-Ocampo suggested that assurances ought to be given to China that is access to oil was not in jeopardy. Here it is:

C O N F I D E N T I A L USUN NEW YORK 000306 

EO 12958 DECL: 03/23/2019 

TAGS PGOV, PREL, UNSC, PHUM, SU, XW 

SUBJECT: (C) ICC'S OCAMPO ON SUDAN: GO AFTER BASHIR'S MONEY AND CALL FOR HIS ARREST; REASSURE CHINA

Classified By: Ambassador Alejandro D. Wolff, for reasons 1.4 b/d

1. (C)  International Criminal Court Prosecutor Luis Moreno-Ocampo told Ambassadors Rice and Wolff on March 20 that Sudanese President Bashir needed to be isolated. Ocampo suggested if Bashir’s stash of money were disclosed (he put the figure at possibly $9 billion), it would change Sudanese public opnion from him being a ‘crusader’ to that of a thief. Ocampo reported Lloyd's Bank in London might be holding or knowledgeable of the whereabouts of his money. Ocampo suggested simply exposing that Bashir had illegal accounts would be enough to turn the Sudanese against him, "as with Pinochet."

2. (C) Ocampo said Bashir invents conflict to create a better negotiating position, and thought Bashir was using the expulsion of the NGOs to divert attention away from his arrest warrant. Ocampo suggested the U.S. and the international community also needed to push for Bashir's arrest to isolate him. Ocampo likened Bashir's situation to "a bleeding shark being surrounded by other sharks," with no loyalty, only greed, motivating those competing for power. By promoting the possibility of Bashir's arrest, Bashir would be further marginalized within Sudan's ruling elite, Ocampo thought.

3. (C) Ocampo suggested it would be beneficial to reassure China that its access to oil would not be jeopardized. If China believed Bashir was becoming a destabilizing influence, Ocampo said China might be more open to his removal as long as his replacement would guarantee support for China's economic interests.

Wolff

To my knowledge, Moreno-Ocampo has never made this claim publicly. The Guardian claims Lloyds denies everything.

Other materials released by Wikileaks suggest that the assertions of Moreno-Ocmpao are not always reliable. A dispatch from Alberto M. Fernandez of the Khartoum embassy, dated 11 December 2008, reports on a 7 December briefing by UNAMID's Joint Special Representative Rodolphe Adada. Under the sub-head ‘Ocampo’s Imaginary Numbers’, Fernandez writes:

7. (C) Adada ppoured scorn on the "wildly inaccurate" recent statements of ICC prosecutor Luis Moreno-Ocampo that "5,000 people were being killed each month in Darfur." He added that who would be so naive and ill-informed to believe such a thing" He noted that this would be over a hundred people a day being killed, a level of violence not seen in Darfur for several years (Note: probably not since 2005). Even the horrific Kalma camp massacre of August 25, 2008 which killed 33 innocent people was "one crime on one day, this doesn't happen very often." He mused that such patently absurd and false information put out by Ocampo doesn't make him look very credible in the eyes of those who actually know something about the reality of Darfur.

There’s still more of interest in a report on a visit by a senior Chinese official to Khartoum. The US diplomat says that Chinese concern about the issuance of an arrest warrant against President Bashir was ‘well-founded’, ‘useful and helpful’.

Thursday, 04 September 2008, 10:56

C O N F I D E N T I A L SECTION 01 OF 02 KHARTOUM 001354 

SIPDIS 

DEPT FOR AF A/S FRAZER, S/E WILLIAMSON, AF/SPG 

NSC FOR PITTMAN AND HUDSON 

ADDIS ABABA FOR USAU 

EO 12958 DECL: 08/12/2018 

TAGS PGOV, PREL, KPKO, UNSC, AU-1, SU, CM 

SUBJECT: CHINA COUNSELS SUDANESE ENGAGEMENT, U.S. RESTRAINT 

IN ICC PROCEEDINGS AGAINST BASHIR

Classified By: CDA Alberto M. Fernandez, for reasons 1.4 (b) and (d)

1. (C) Summary: During his recent visit to Sudan, Chinese Special Envoy Zhai Jun strongly counseled the GOS to remain prudent in dealing with the threatened arrest warrant for President Bashir and to continue to engage with the international community, according to Chinese Ambassador Li. Zhai even suggested that Sudan contact the ICC itself. Li encouraged the USG to consider shared interests in Sudan,s stability and not to veto a UNSCR postponing the ICC proceedings. CDA Fernandez thanked China for its helpful message to the GOS, and reported that the USG has made no decision whatsoever regarding an Article 16 vote. He emphasized that the USG's primary concern remains tangible improvements in the situation in Darfur, the recent violence by the regime in Kalma Camp was a setback, and thus far the USG sees no reason to postpone ICC action. End Summary.

Special Envoy Zhen,s Message to Khartoum

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2. (C) On September 3, Chinese Ambassador Li Cheng Wen briefed Charge Fernandez on Chinese Special Envoy and Assistant Foreign Minister Zhai Jun,s recent visit to Sudan. Zhai, who is responsible for Africa and the Middle East, inaugurated the new Chinese consulate in Juba and discussed the possible ICC indictment of President Bashir with GOS officials in Khartoum. On the latter issue, Li stated that Zhai expressed grave concern about the negative effect an ICC indictment would have on resolving the Darfur crisis. Zhai found Bashir to be quite receptive.

3. (C) According to Li, SE Zhai praised the GOS for its calm handling of the matter thus far, and encouraged GOS officials to continue to mobilize internally and engage the international community, including the UN Security Council and especially the P-5. Zhai also made a "friendly suggestion" that the GOS consider communicating with the ICC itself, either directly or indirectly. Li expressed hope that such contact could influence and perhaps "curb the next steps" in the ICC process. He stated that the GOC views ICC indictment not only as a political, not a legal matter. As such, it is encouraging the GOS to pursue both legal and political solutions to the problem.

ICC Action Threatens Darfur Progress

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4. (C) Li stated that the GOC is extremely worried about how the ICC indictment will affect in Darfur, asserting that it has hardened the rebels' stance towards peace. He believes that GOS officials now understand the gravity of the situation they have created over the years, and hopes they will heed GOC advice continue to engage with the international community. "Not heating up this matter is in the interest of all parties," he said.

5. (C) CDA Fernandez thanked Li for China,s helpful and useful message to the GOS. He noted that while the United States shares GOC concerns about Sudan,s stability, its primary focus is achieving tangible improvements in the situation in Darfur, especially in regards to humanitarian access. He continued that while GOS contact with the ICC might influence P-5 members France and theUK, it does not by itself concern the United States, which is not a party to the ICC.

6. (C) Li concurred that the GOS could do more to speed up humanitarian access and take other positive actions but cautioned that "only pressuring the Sudanese government is no use." Continued antagonism serves to strengthen the suspicions of hardliners within the NCP that the West is plotting against Sudan, he said. Rather, "we need to engage with them" to help solve the Darfur crisis. Both agreed that there is some anecdotal evidence of regime infighting about what is the best strategy: cooperation or escalation.

7. (C) Li expressed puzzlement at perceived British and French support for ICC Chief Prosecutor Luis Moreno-Ocampo. He stated that "whoever had a role in creating this problem will bear responsibility" if Sudan descends into chaos as a result of the ICC indictment, adding that such an outcome could have been easily forecast. He declared that destabilization of Sudan is in no one's interest, adding that "to help Sudan is to help ourselves. I hope the British and French understand this philosophy." He observed that French companies have oil interests in Sudan as well as in Chad. . CDA Fernandez agreed that an ICC indictment will present great challenges to achieving peace in Darfur, but commented that the decision to indict President Bashir was may bave been made by an overzealous prosecutor and is not the result of "high politics" or a conspiracy by the West. He noted President Bashir's sweeping claims to want to change the situation in Darfur for the better, "we want to see tangible results, not words or process."

U.S. Should Not Block Delaying ICC Action

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8. (C) CDA Fernandez' meeting with Li followed a flurry of erroneous media reports that China is expected to "veto" the issuance of an arrest warrant for President Bashir. (Note: For example, the newspaper Akher Lahza ran a story with the headline "China Does Not Rule Out Veto To Invalidate Ocampo's Allegations," which noted that "President Bashir received a verbal message from his Chinese counterpart expressing a his country's support for Sudan regarding Ocampo's allegations," but that "Peking denied reaching the stage of using a veto to invalidate the ICC prosecutor's procedures because the case is still in its primary phase." Another daily, Al-Rae'd, ran a headline "Chinese veto awaits Ocampo." End Note.) Li acknowledged that these reports suggest a fundamental misunderstanding of role of Article 16 of the ICC Statute by the Sudanese public, and that it is a P-3 veto of a deferral of the ICC proceedings that GOS must worry about. He urged the USG to think of its and Chinese "mutual interests" in Africa when making a decision. "Stability is in the interests of all parties," he said. "It's what we should work for in the New World Order."

Comment

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9. (C) Li's concern that the issuance of an arrest warrant for President Bashir could have profound destabilizing effects are well founded. Combined with the end of the rainy season and renewal of rebel activity on both sides of the Chad-Sudan border, the ICC indictment could set off a chain reaction of violence and instability. China's encouragement of GOS internal mobilization and international engagement, including with the ICC, is both useful and helpful, but its unclear whether the NCP even has the capability, let alone the willpower, to take any action towards solving the crisis if it can decide what those steps should be.

FERNANDEZ

Another story on the Wikileaks materials, in the Guardian, indicates US unease about Moreno-Ocampo when he was first elected. Unease was expressed because of the suggestion that the Prosecutor might proceed with an investigation in Iraq, but adds that ‘privately’ he had indicated he was not planning to go ahead.

One cable, sent in July 2003, three months after Luis Moreno-Ocampo was elected as chief prosecutor, offered an "early glimpse" into his stance and reveals American unease about the possibility that he could pursue cases over British actions in Iraq.

"Less clear are [Ocampo's] views on Iraq," the cable states. "Ocampo has said that he was looking at the actions of British forces in Iraq -- which … led a British ICTY prosecutor nearly to fall off his chair."

"Privately, Ocampo has said that he wishes to dispose of Iraq issues (ie. Not to investigate them.)"

The cables also attempt to cast off early remarks about Iraq by Ocampo – who is from Argentina – as a language issue. "Some Embassy contacts also suggest that Ocampo's mediocre English skills may have given his public remarks a less nuanced … tenor than intended," the cable states.

I could not find the cables to which this report refers. That the Prosecutor would signal to American  diplomats that he planned to avoid proceeding with charges in Iraq is, if true, very disturbing.

Finally, there is a report from the US Embassy in Brussels on a briefing by the Ambassador for War Crimes Issues, Steve Rapp.

Friday, 08 January 2010, 15:40

C O N F I D E N T I A L SECTION 01 OF 02 BRUSSELS 000023 

SIPDIS 

STATE PASS S/WCI RAPP AND ANDERSON, AF/C, AND EUR/WE 

EO 12958 DECL: 12/22/2019 

TAGS PREL, PGOV, CG, BY, RW, SL, BE 

SUBJECT: AMBASSADOR RAPP DISCUSSES COURT FOR SIERRA LEONE AND THE DRC WITH BELGIAN MFA

BRUSSELS 00000023 001.2 OF 002

Classiires Richard M. Eason for' (D).

...

4. (C) Ambassador Rapp told Legal Department DF Rietjens that the U.S. was proud to regain its observer statuts at the ICC and said that the U.S. was currently producing a review of its ICC policy. He noted, however, that U.S. ratification of the ICC treaty was not likely. Ambassador Rapp underscored that the U.S. believed only the UNSC should be able to refer cases of crimes of aggression to the ICC and was confident that other UNSC members, including the European members of the P5, France and the UK, would agree. He said the U.S. hoped for consensus in this discussion, and he expressed understanding for Belgian, German, and Greek efforts to push for a broader ICC mandate on crimes of aggression. Rientjens acknowledged U.S. concerns on crimes of aggression, but said that Belgium would continue to push for the ICC to have an independent authority to initiate trials on crimes of aggression. Rietjens praised the U.S. return to observer status at the ICC. He said Belgium and other European nations were excited to be able to have diplomatic discussions with the U.S. about the ICC once again.

5. (U) Ambassador Rapp cleared this message.

EASON

Of course, the US overestimated the determination of France and the UK to resist proposals that would give the Court the authority to proceed with prosecutions for the crime of aggression absent Security Council authorization. At the June Kampala Review Conference, article 15bis of the Rome Statute was adopted. When it enters into force, probably in 2017, the Prosecutor will be empowered to proceed with an aggression case even if the Security Council is inactive.
Some people have said that there is little that we do not know in the Wikileaks materials. But today's batch is full of information that provides helpful insight into the position of the United States and China, not to mention the activities of the Prosecutor.