Institutional Challenges that Ocampo Must Overcome

The powers and functions of the Prosecutor under the Rome Statute are reflections of US proposals to the first draft of the ICC Statute. To provide some background, in Rome, the US believed that the Court would not be well served by a Prosecutor w ith power to initiate investigations, and prosecutions of crimes, in the absence of a referral of an overall situation by either a State Party of the UN Security Council. This is owing ot the fact that the UN Security Council has the primary responsibility for the maintenance of international peace and security under the UN Charter. Hence, these are safeguards on the powers of the Prosecutor.

The fact that the Prosecutor has to defer cases to the Security Council where it so requests, presents one challenge to the Prosecutor. There are no precise limits as to cases in respect of which the Security Council may invoke the power of deference. Giving power to the UN Security Council was contentious in Rome. This is because some permanent members of the UN Security Council, often construe resolutions passed the Security Council to achieve undesired goals. It is possible that this same approach may be used in implementing resolutions deferring cases that otherwise fall within the jurisdiction of the Court. The Security Council can extend its deferral for extended periods of time. This position is further aggravated by the fact that two of the five permanent members of the Security Council, namely, China and the United States, are not signatories to the Rome Statute.