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Momentum Builds Behind Powerful Prosecutor

A growing number of nations is supportive of an 'ex officio' prosecutor who can initiate proceedings on his or her initiative, according to delegates and NGOs following the negotiations for an International Criminal Court (ICC) this week.

Yet the United States, which has spoken out increasingly strongly against any independent actions by an ICC prosecutor, is holding firm in its stance, while other nations - newly joined Monday by Kenya, which backed down from its previous support of ex offico powers - are also pushing to keep the post's independence limited.

The breakdown of countries among the 159 delegations currently present here favours those who support independent prosecutorial efforts; during a debate in the Committee of the Whole on Monday, for example, 15 out of 28 nations leaned toward granting the prosecutor the ability to conduct investigations, normally after being cleared by a proposed pre-trial chamber.

Most significantly, Mexico - which previously had spoken against granting ex officio powers - declared its support for a pre-trial chamber as a guarantor against biased prosecutions. If that signifies that Mexico is shifting toward supporting prosecutorial independence, that would be a significant victory for the "like-minded" camp that backs ex officio powers, said Jelena Pejic, a senior official for the Lawyers Committee for Human Rights.

Nations who want ex officio powers balanced by a pre-trial chamber now hold the numerical advantage, Pejic said. That could be crucial, since the issue is one of several key controversies which, Pejic contended, will likely only be resolved later by a vote.

Still, the number of countries who have moved from wariness over the prosecutor to gradual support of the post's independence is an impressive one. In recent days, Brazil, Mexico, Venezuela, France and Syria have all made that shift.

French Foreign Minister Hubert Vedrine, for example, asserted Paris's support for "a joint decision of the prosecutor and the pre-trial chamber to initiate proceedings", and praised the acceptance of its pleas for judges to examine ICC cases in their preliminary phase.

The growing support for the prosecutor's ex offico powers among such nations has left the United States and other "usual suspects" like China and Cuba seeming more isolated, Pejic argued. "There has been more support than was expected" for ex offico powers, added Bill Pace, convenor of the Coalition for an International Criminal Court.

"One year ago, they were saying there was no chance for an independent prosecutor." Now, he argued, although it remains early in the debate, that very option commands the support of the majority.

That is not a prospect that pleases the United States, whose UN Ambassador, Bill Richardson, called the proposal for ex officio powers "unrealistic and unwise" and added, "The Court cannot and should not address every crime that goes unpunished, no matter how horrific or atrocious it may be."

At the root of the US complaint, repeated by Ambassador David Scheffer Monday, is that the ICC could become flooded with complaints that would hinder its investigation into the most serious crimes. As Richardson argued, "The only way the office of the prosecutor could manage such an onrush would be by making decisions that inevitably will be regarded as political." Not only has that argument not swayed human rights groups, but it has not commanded as much support from Southern countries as had been expected. 

Kenya, in fact, was one of the rare countries that backed down from its earlier support of an ex officio prosecutor, arguing Monday that "the twin triggers of (recommendations from) states and the UN Security Council ... are sufficiently wide" to suffice for starting investigations.

Washington, however, is far from backing down. On Tuesday, the US delegation is expected to issue a special paper on the topic of the prosecutor, a prospect Pejic found "extremely unfortunate".

Yet that is not the only battle ahead in the next several days. Tuesday is also expected to be dominated by debate over the role of the Security Council, sure to be a divisive topic given that both Britain and France - two of the five permanent Security Council members - now seem to back a compromise that would limit Council control over an ICC.

Vedrine last week mentioned the Singapore compromise - in which the Council can positively vote to remove items from the ICC's agenda for discrete periods of time but cannot control the Court's docket - without mentioning France's explicit posture toward it. 

However, in a subsequent briefing with NGOs, the foreign minister clarified that France would back the compromise, as long as the Council could remove items from the ICC docket for 12-month periods, a proposal also favoured by Britain.

Many rights activists find the 12-month span too long, and in debate on the Council on Monday, several countries, notably including Jordan and Costa Rica, also objected to the length of the suspension. But many delegates have found the splintering of the permanent Council members' opposition to an ICC independent of its oversight to be well worth the compromise. Farhan Haq

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