Challenges ICC Prosecutor Ocampo Must Overcome to Arrest Suspects in Waki's List

The year is 2000, two years after the establishment of the International Criminal Court, and my last year in law school. I am in my final year of law school and was required to write a thesis to complete my Bachelor of Laws requirements. My thesis topic: "The International Criminal Court: Operational Challenges."

My analysis focused on two main topics from the Charter of the International Criminal Court. First the jurisdiction of the Court. Second, the Office of the Prosecutor, in this case, Ocampo's Office. These are the two main areas that, in my informed view, posed (and still pose) the greatest challenge to the effectiveness of the International Criminal Court., and the Office of the Prosecutor in particular.

This thesis, was a novelty really, there was not much of a Court at the time, just the Charter and an international community willing, finally, to use the Court to try national tyrants who harassed, terrorised, or killed their innocent people. At this time, there was not much literature on this subject. It was trouble enough determining what experts in this area thought. My interest in this subject was driven in part by my observations and convictions, as a Kenyan who who had lived in the Moi era when even the mention of the President's name was enough to subject one to terror chambers in Nyati House or Nyayo House, that no leader should lord over a nation. That nothing should justify the indiscriminate killing of innocent people. Leaders, including presidents, are servants of the people. They should lead with humility and wisdom. But alas, this had not been the case in Kenya or in many other countries. Many who had crossed Kenya's President or his associates were swiftly eliminated. But I digress.

In my examination of the Office of the Prosecutor, Ocampo in this case, I analyzed the provisions of the Charter on the Prosecutor's investigations into commission of specified crimes; and carrying out the prosecution thereof. In my view, these two areas presented great challenges to the Prosecutor's success.

In the recent weeks, as the threat of Kenya's electoral violence suspects being hauled to the Hague generated interest, I was reminded of my 2000 thesis and my concerns about what Ocampo can or cannot do. Kenya's case is interesting. The Waki Tribunal, created by Parliament, basically performed the first of Ocampo's functions, investigations into the commission of crimes. The list of suspects contained in the report handed to Kofi Annan, was a result of this effort. The first task more or less done, Ocampo's main role was then relegated to that of prosecuting the Waki suspects.

I discuss this next.