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Joshua Rozenberg
Thursday 15th October 2009
Japan backs down over International Prosecutor

The prosecutor of the International Criminal Court, Luis Moreno-Ocampo, has seen off a damaging challenge to his powers from the country that makes the biggest contribution to the court's budget.

The Japanese government has withdrawn an accusation that the length of his term of office could lead to "abuse of power". It has also softened a proposal under which the prosecutor might have lost control of his budget.

As I reported on Tuesday, there had been rumours that Japan wanted the prosecutor's term of office to be reduced from nine years to five years. I also reported that a paper to be circulated to other governments at the court's forthcoming review conference made no mention of such a proposal.

This was true; but it is not the whole truth.

The proposal to clip the prosecutor's wings was put forward by the Japanese earlier this year in what they described as a "provisional non-paper". It was removed from a more recent draft, referred to as "Japan's contribution paper".

Paragraph 4 of the court's governing statute says: "Unless a shorter term is decided upon at the time of their election, the Prosecutor and the Deputy Prosecutors shall hold office for a term of nine years and shall not be eligible for re-election."

A proposal in the earlier version of the Japanese paper pointed out that

whereas a single judge, who is also elected for a nine-year term, does not have full power over the affairs of the presidency or a chamber on his or her own, the prosecutor is given full authority over the conduct and management of the OTP [Office of the Prosecutor].

The nine-year term is quite long in comparison to those of other domestic and international prosecutors and has a risk of creating inflexibility or leading to abuse of power.

We thus recommend amending Rome Statute, Article 42, paragraph 4, to shorten the terms of office to five years and to allow re-election once.

That proposal and another relating to the nomination of judges have been removed from the version of the paper circulated among the court's state parties.

The other important change in the second draft of the paper relates to the prosecutor's budget.

Both versions propose that the prosecutor's independence should not go beyond what was intended by the Rome Statute, adding that the prosecutor's independence should not free his office from budgetary limits and scrutiny.

The first version recommends adding a provision to the statute or the rules. This would make it clear that the Registrar, as the court's principal administrative officer,

has the necessary mandate and responsibilities to prepare and present the overall budget of the International Criminal Court, regardless of the independence of the Office of the Prosecutor.

It then adds a further damning sentence:

This should include the Registrar's mandate to examine the Office of the Prosecutor's budget and to cut what is necessary.

That sentence has been removed from the later "contribution paper".  And the earlier phrase "regardless of the independence of the Office of the Prosecutor" has been softened to "including that of the Office of the Prosecutor".

We can only imagine how Moreno-Ocampo would have reacted when the first draft was circulated. His authority would have been badly undermined if a major state party had formally supported cuts to both his term of office and his budget.

What we do not know is who persuaded the Japanese to soften their proposals before finalising their paper - and why. Surely this cannot have been part of a deal to have their candidate elected as a judge?

If so, the Japanese should simply wait until Kuniko Ozaki wins her seat on the court and resume their campaign to clip the prosecutor's wings. Moreno-Ocampo would be damaged - but he is already unfit to remain in office for the reasons I have explained in many previous blogs. And his departure would strengthen the court immeasurably.

  • Update  I was delighted to receive a comment on this blog from Shingo Yamagami, head of the political section at the Japanese Embassy in London.
He tells me that Japan's "contribution paper" was developed for the purpose of making a constructive contribution to the administration of the International Criminal Court. Thus, he says, "it is absolutely irrelevant to the assessment of the performance of any particular individual".

Mr Yamagami also tells me that "the drafting of the contribution paper and the candidature of Ms Ozaki are two separate issues and are therefore totally unconnected".
 
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About Joshua Rozenberg

Joshua Rozenberg is an independent legal commentator who presents Law in Action on BBC Radio 4.

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