The International Criminal Court (ICC) is regularly criticised for being too selective or too slow in the pursuit of war criminals. Here, its prosecutor gives his side of the story, explaining how the court goes about its work, and answering his critics on the cases concerning Sudan’s President Omer el Beshir, Ugandan rebel Joseph Kony and Congolese former warlord Jean-Pierre Bemba – with a combination of patience and passion for seeing justice done.
The Africa Report: Over the past six years, what progress have you made in establishing an international criminal justice system??
LUIS MORENO OCAMPO: We have transformed the project into a reality. The court is a reality. We have all the staff, 80 judges, we have four prisoners, two trials, and we are connected with the entire world.
The court is establishing the idea that there is no more impunity. Before, I was teaching at Harvard and a colleague of mine told me: “It’s an honour [to be appointed ICC prosecutor], but reject it because you will be nine years at the Hague doing nothing. Without US support you cannot investigate, you cannot arrest.” Six years ago, the challenge was – can a court without a state operate? Now the issue is how the states and other organisations will react to the global court.
??Is the court a deterrent to those committing war crimes?
The legal advisor of NATO (North Atlantic Treaty Organisation), the most important military organisation, told me that they told their staff to imagine: in 15 years you are retired as a two-star general, on the beach with your family. Suddenly you’re surrounded by policemen who handcuff you and you go to the ICC and the evidence is documentation from NATO. You have to be aware that if you commit crimes, you could be prosecuted. So that’s it. Armies all over the world are adjusting to this.??
How much is the failure of the US, Russia, China and Israel to join the court hindering its work? Will this change??
Joining the court is a national decision but, in the meantime, we are working with them (the non-members). Russia sent communications to us over crimes committed in Georgia, showing that Russia factored in the existence of the Rome Statute when they started operations in Georgia. With China, we have working relations. With the US, I would say that some members of the current administration respect the court.
What about the African Union, which voted at a summit in Sirte, Libya, not to cooperate with the court over the arrest warrant for the President of Sudan, Omer Hassan el Beshir??
After the meeting in Sirte, the next Tuesday I was in Addis Ababa meeting the high-level panel on Darfur, presided over by ex-President Thabo Mbeki. I regularly talk to Kofi Annan, who represents the AU in Kenya. We are meeting presidents of countries from all over the region.??
Is the court being accepted more widely?
International humanitarian law started in the 19th century. Newspapers sent journalists with cameras to the Crimean War. This changed perceptions. Now with Twitter and YouTube, people are taking pictures and videos. Young people, particularly, watch this and they say: “Something has to happen here.”?
Legal scholars of my age are still thinking of constitutional systems in nation states, but we’re living in a new world. Two days ago, South African lawyers representing a group of Muslims came to my office with a case in Gaza that involved a South African working for the Israeli Defence Force. This is a new world that needs connected institutions and global institutions such as the ICC.
How do you answer the criticism that the ICC is unduly targeting Africa and that’s why the AU decided to suspend cooperation over the warrant to arrest President Beshir?
It’s propaganda. Surveys show that in African countries, 75% of people support Beshir’s arrest. Arab countries, between 35-55%. Why focus on cases in Africa? Because there were serious crimes there and the leaders requested our intervention.
We are not in Sri Lanka or Burma, because those governments have not signed the treaty and are not requesting our intervention.
Are there other ways you can work in conflicts such as those in Afghanistan, Iraq, Sri Lanka and indeed Israel and Palestine?
I am not the world prosecutor. I am the 110 state prosecutor (i.e. the member states of the ICC). So, I have jurisdiction in state parties such as Congo and Uganda but not in Sri Lanka, Burma or Iraq, which are not state parties. I am involved in Sudan (which is not a state party) because the UN Security Council referred the Darfur case to the ICC.
So you can investigate actions by member states – such as Britain – in Iraq, even though Iraq is not a state party?
We collect information about allegations of crimes committed by some of the 25 state parties who are involved in Iraq. In three countries, we found information about nationals involved in tortures or willful killings. In all three, the responsible states were conducting an investigation against them. So assuming they are doing it, we should not do it.
African states stay
loyal to the ICC
Although you’re a trained lawyer, are you becoming a politician at the ICC?
On the contrary. I am putting a legal limit to the politicians. That’s my job. I police the borderline and say, if you cross this you’re no longer on the political side, you are on the criminal side. I am the border control.
Is the decision to prosecute the President of Sudan a political or legal one?
No one is saying Beshir is innocent. The political aspect is something for the UN Security Council and the government of Sudan, and then the AU and the Arab League. They debate the political aspects, not me. No one is saying my case is wrong, my evidence is wrong. It took almost 18 months to present my case and the human rights leaders were criticising me, saying: “He’s doing nothing, he’s so cautious.” I’m sorry, I had to collect evidence. Without evidence, I don’t present cases.
Why didn’t you interview witnesses inside Darfur?
It’s my legal obligation. I have a duty to protect my witnesses. I have no way to protect people in Darfur. I have to provide all the names of my witnesses [but] as soon as I provide the name of the witnesses, they could be killed.
Do you think you would have been more likely to have arrested Sudan’s minister of humanitarian affairs Ahmed Harun and Janjaweed leader Ali Kusheib if you had issued sealed arrest warrants to be acted on when they travelled to a member country of the ICC?
In each situation I assess the best way to do it. There were allegedly some trips by Harun, who has health problems. At the same time, in those days, we were exploring the possibility that the Sudanese regime would let Harun go to the Hague to face justice.
There were public conversations in Sudan to adopt this strategy, to let Harun go to the Hague. It was an avenue [we explored].
How would you reply to the wider questions – that no one is going to arrest President Beshir, that you’ve reinforced the hard-core security people in the Khartoum regime, that you prompted the expulsion of aid agencies from Darfur and undermined any attempts at peace talks there?
Look, I am Argentinian. In 1976, the military junta took power supported by international institutions. Just nine years later, they were in the dock, I was the prosecutor.
Things change, power is not permanent. It’s a matter of time. Beshir’s destiny is to face justice. Secondly, reinforcing hardliners is exactly the problem that the UN Security Council and the AU have to deal with, by having legal decisions respected. If not, they will promote the hardliners.
Beshir blocks humanitarian assistance to the people in the camps, he removes them from the villages, he destroys the water systems. Expelling humanitarian assistance is confirming the criminal intentions. It’s Beshir killing the people, not me. Today, what’s happening in the camps is genocide.
In Uganda, how do you respond again to the argument that the warrant against Joseph Kony is undermining attempts to negotiate with the Lord’s Resistance Army (LRA)?
What peace? Kony was abducting children in the Central African Republic and talking about peace. Kony killed Vincent Otti because he was involved in the peace process. So what peace are you talking about? Kony is using the same trick. When he’s weak, he calls for peace. Kony uses the peace process to get money, weapons, food, to strengthen and then to attack again. That’s what he has done five times and wants to do again.
Kony has to be arrested and we have to mobilise efforts to arrest him because Kony has forcibly displaced more than 200,000 people. Kony is very dangerous.
If President Museveni wants to suspend the arrest warrant on Kony – does that change anything?
I can do nothing else than prosecute Kony now. When the court requests an arrest warrant, it’s a judicial activity. The judges decide. It’s not my decision. And the judges cannot take into account political factors, the judges consider evidence and it has to be lawyers presenting evidence.
The judges cannot review an arrest warrant based on political considerations. It’s a court.
You have been criticised for doing too little in the Democratic Republic of Congo. For example, some argue your case against Thomas Lubanga should have gone way beyond the recruitment of child soldiers?
I think [recruiting] child soldiers is a very serious crime. Many of them can never recover. It’s an awful experience, a terrible experience. Girls were systematically raped and beaten, forced to kill, forced to be raped, it’s a horrific experience. It’s one of the most serious crimes I’ve had to deal with. It’s important that the first case of the International Criminal Court was about child soldiers. And I will request a very high punishment for Lubanga.
Why did you choose to charge Congolese political leader Jean-Pierre Bemba with crimes committed in the Central African Republic when his main arena of operation was Congo?
In the Bemba case, the number of rapes outnumbered the number of killings by far. They were looking for the boss of the neighbourhood and when they found him, he was raped publicly to humiliate him. Of course there are allegations of Bemba committing other crimes. My business is to investigate massive crimes, I cannot present all the crimes committed in the courtroom because then the case would never finish.
What is the role of the ICC in the Kenya crisis? You met with a delegation of Kenyan politicians in July and that seemed to blur the ICC’s position.
I think the meeting was pretty good. They informed me that they are committed to ending impunity and said if we cannot do national proceedings we will refer the case to you. And in the meantime we will provide information to you. Two days earlier, I received, here in the Hague, the boxes with the Waki Commission evidence [Kenya’s official commission investigating political violence]. My feeling is that Kenya today shows how well this new idea is working. It’s a common effort between Kenya, AU representatives like Kofi Annan and the ICC to end impunity. If we do nothing today, the next election will be a disaster.
Do you think the ICC is in danger, that it might not survive?
This is propaganda. A few months ago, Chile joined the court. South America is complete. Czech Republic, a few months ago, joined the court. Europe is complete. When I started it was 78 countries, today it’s 110. The US Secretary of State, Hillary Clinton, says she regrets that the US is not a member of the court. We have just finished the discussion on the budget of the court. The states are paying, no problem. This idea is changing the way in which the world is managing violence.
As in any beginning, it’s complicated. When the anti-slavery movement in the 19th century was trying to present the case, they were called trouble-makers, they were called impossiblists, [but] it succeeded. This is the time for this idea. We are living in a global world. We need agreement between many states and we need rules. This rule is so basic that no one is against it. The rule is don’t commit massive crimes. That’s it. And every-one has to agree on this. If not, we cannot live together. It’s very simple. It is not idealistic, it’s realistic.
Interview: Luis Moreno-Ocampo, ICC Prosecutor
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