Interview with Luis Moreno-Ocampo, Chief Prosecutor of the International Criminal Court

Luis Moreno-Ocampo was elected as the first Prosecutor of the International Criminal Court in April 2003; his nine-year term ends this June. Mr. Moreno-Ocampo has a storied history as a prosecutor, and was involved in precedent-setting prosecutions of military commanders in Argentina during the military junta trials between 1984 and 1992. In 1992, he established his own law firm, Moreno-Ocampo & Wortman Jofre, which specialized in corruption-control programs for large firms and organizations, and criminal and human rights law.

In this interview with the Global Observatory, Mr. Moreno-Ocampo spoke about the recent surge in the Court’s workload. “The ICC is doing much more than we expected,” he said. “In a few years, we have turned the Court into an institution that is part of the international landscape.”

These changes, he said, are far reaching and have long-lasting consequences. “What is happening today is there is a rule; very clear,” Mr. Moreno-Ocampo said. “Political leaders cannot gain or stay in power committing massive atrocities.” The Court cannot, of course, achieve this on its own, but “is a little piece of the new global system, which is establishing a rule to protect citizens in the world.”

Not everyone fully appreciates this new reality, and, particularly in peace processes, tensions have sometimes arisen as a result of the interaction between peace and justice. Mr. Moreno-Ocampo made clear, however, that “People have to understand, before the ICC, the way to control crimes was to negotiate.” Now that the ICC exists, “some people were thinking the ICC could be like a new threat for force negotiations; one that could be taken away. This is not the ICC. The ICC is a judicial system.” Mr. Moreno-Ocampo also sought to clarify a misconception concerning the role of the Court in peace processes. “It’s not us affecting the peace process. The criminals are affecting the peace process, because what they like to do is to use the negotiations to protect themselves.”

Looking ahead, Mr. Moreno-Ocampo expressed optimism about his successor, Mrs. Fatou Bensouda from the Gambia. “The appointment of Fatou is great for the office, because it ensures a smooth transition.” Mr. Moreno-Ocampo stressed that “the Court itself is managing the challenges of international criminal law. We manage well.” The system around the Court responsible for implementing and enforcing its decisions can still improve, he said, as the international relations challenges are still there.

The interview was conducted on January 20, 2012 by Till Papenfuss, a Policy Analyst with the International Peace Institute.

Listen to interview (or download mp3):

Interview Transcript (edited version)

Till Papenfuss (TP): I’m sitting here with Luis Moreno-Ocampo, the Chief Prosecutor of the ICC since 2003. Thank you, Mr. Ocampo, for joining the Global Observatory today.

After an interim period of skepticism, particularly in Africa, the last two years the ICC has witnessed a new sense of dynamism, as evidenced by the Libya referral, the transfer of Cote d’Ivoire’s former President Laurent Gbagbo to The Hague, and widespread calls for also referring the situation in Syria to the ICC. What is your take on the growing role of the ICC and which factors contributed to this development?

Luis Moreno-Ocampo (LMO): I disagree with your question. There is no basis to suggest that in the first years of the ICC there was nothing. Perhaps in the beginning of its activities cases attracted less attention from the media, but for instance our cases in Uganda forced the Joseph Kony killings to stop; 1.1 million were displaced, and because Sudan in 2005 agreed to arrest Kony, Kony left Sudan; similarly, the cases in Congo were critically important to keep Congo under more peaceful conditions. And there’s also the case against Jean-Pierre Bemba, former Vice President of Congo. So there was not just inactivity. On the contrary. The Court was always up and running. We are always in the front pages? No. We don’t need to be in the front pages. So, perhaps it’s more a perception from New York that you express, but in practice it is different.

TP: I agree with the notion that you express, and I would not in any way say that the Court has been inactive. But it just seems that after the initial start-up phase, there has been a new sense, a more mainstream acceptance of the Court, which I think is a positive factor, building on what you have achieved in the build-up phase.

LMO: That is a good reshaping of your question. I think though this is more a feeling felt in New York. While not based in New York, we are very active. In fact, because we have acted in Congo and Uganda, doing big cases, cases which are ignored, the Darfur situation was referred to the Court by the UN Security Council. It is regrettable that the genocide in Darfur is not controlled.

I had a responsibility to build an institution. In 2003, when I arrived, there were two public officers in my office and eighteen judges waiting for cases. So of course after eight years, we have much more cases, much more activity. It’s a normal result.

But the problem what I see today is not the ICC itself. The ICC is doing much more than we expected. When you read what people expected—I was at Harvard teaching when I was appointed. One of my colleagues told me “Luis, refuse the job, refuse the position, it will be a shame for you. Without US support, you cannot arrest, you cannot investigate, it will be a shame, it will be nine years doing nothing in The Hague.” It’s a completely different framework now; in a few years, we have turned the Court into an institution that is part of the international landscape. The Court is working very well with 120 States Parties. Naturally, at times its role is more complicated in Darfur or Libya, both referred by the Security Council; the Security Council is a political body with at times different views. But then I would suggest, you reframe the question, in the sense that the Court did its job, and this active Court changed completely the global dynamic.

What is happening in the world today is there is a rule, very clear. Political leaders cannot gain or stay in power committing massive atrocities. It has happened in countries that are States Parties to the Rome Statute, with immediate punishment, with legal consequences. When it happens in other States, that could be Yemen or Syria or Libya, the Security Council will decide, when to do justice, as in Libya, or when to look for different solutions. It’s a new world. We are no longer in the Cold War; there’s not one superpower; it’s a multipolar interaction where regional organizations have a critical role. The Arab League was crucial to allow a referral to Libya. The Arab League is today not pushing for a referral in Syria, but they condemn Syria. It’s a huge development. In South America the States manage conflicts; when Colombia, Ecuador, Venezuela had a conflict a couple of years ago, all the Latin American States reacted. So what you see, the Court is a little piece of the new global system, which is establishing a rule to protect citizens in the world, that leaders cannot commit atrocities. That’s what we are doing.

TP: Of course, an interesting benchmark I would say is the Review Conference in Kampala, which in a way reaffirmed that the Rome Statute system is working. I think that has been reaffirmed at the highest political level, very recently. But to switch gears a little bit and focus on your work, that is the work of the Office of the Prosecutor. Your work is under most intense scrutiny and is frequently criticized by many people. Some have criticized the selection of cases, others have criticized the policy of your office to conduct focused investigations and prosecutions, some found sequential investigations of various groups inappropriate, and the list goes on. What is your assessment of the success of your prosecutorial strategy so far and what, if anything, do you think can be strengthened, or changed, or adapted?

LMO: I received criticism because I was too slow in Sudan, too fast in Libya; too comprehensive in one case, a very small case in Lubanga. That is the life of the Prosecutor. I’m not in a popularity contest. I respect my legal mandate; standards were fully respected. In 1998, the Court was established and a huge challenge was the Prosecutor’s independence to open situations. That was never done in the past. Because, Nuremberg, Yugoslavia, Rwanda, States, or the Security Council, decide where to act. Here, the Court will decide. That was a huge issue. It changed international relations. We opened seven situations and there’s zero conflict in that. No one is challenging that.

We solved the big issues; in other aspects people will always have their opinions. Do they know the facts? Not always. Human Rights Watch questioned how many cases we are doing, without mentioning the policy we adopted in 2003. It’s my fault? No. But it’s okay. People make comments. I think it’s showing the interest in the Court. I’m not trying to please people. I’m trying to respect the law. And on this, no one can say I’m doing illegal things. That’s why I’m proud. I managed to open seven situations, fully respecting my mandate. No one can challenge that my cases are not grave enough, or my cases are including the most serious crimes. We had to challenge, to discuss, to appeal, but we are winning our cases. So, I’m doing what I have to do, and respect for people who have different views is part of my duty.

TP: Much has also been said about the alleged tension between the aims of justice and of peace. The discussions were heated when Joseph Kony in Uganda made his participation in peace talks conditional upon the removal of ICC arrest warrants, many were afraid of the fallout that would result from the arrest warrant against Sudanese President Omar al-Bashir, and some worried that the indictment of Muammar al Qaddafi might prolong fighting in Libya. What is your view on these tensions?

LMO: People have to understand, before the ICC, the way to control crimes was to negotiate. Eventually, when national leaders were committing crimes, the States’ threat was bombing.

Now we have the ICC. Some people were thinking the ICC could be like a new threat to force negotiations; one that can be used and then be taken away. This is not the ICC; the ICC is a judicial system. When a system is in motion, the judicial process should have its course. And, the responsibility of peace is not part of the judicial responsibility. It’s for the Security Council. The Security Council has all the power when they consider we are a threat to peace, they can stop us. It’s not my business to be involved in peace processes. I have to keep my judicial role.

What I see is a lack of accuracy. We never interrupted any peace process. In fact, reality shows that the Court’s intervention has been used to launch peace processes. The Juba talks with Joseph Kony were launched after Joseph Kony was forced to leave Sudan, because we made an agreement with Sudan to arrest Joseph Kony. It’s a pity to the international community did not manage to arrest him and stop the crimes; he got more money, more weapons, and attacked again. He killed 2,000 people in Congo afterwards. So that’s a pity. Kony tricked the international community. And similar in the Sudan situation, when we requested a warrant for Harun, this launched a peace process led by Jan Eliasson and Salim Salim. This process failed in June 2008. In fact, I think it was a pity the international community did not use well the Harun case to force a stop to the crimes. Then we presented the case against Bashir, and a new process started. With Qatar and [Djibril] Bassolé as the negotiators. What I see in the Bashir case, is that negotiations depend on how much energy countries put. When Bush was firm to push for ending impunity, it was a different negotiation. Afterwards, it was softer. So, if we are to understand what is happening, see the facts. The facts are clear. It’s not us affecting the peace process, the criminals are affecting the peace process, because what they like to do, is to use the negotiations to protect themselves. Imagine if Gaddafi’s in power today, with a peace process. Would it be good? No, a disaster. So the Court’s intervention stops intentions to ignore victims and appease the criminals. When people are committing massive atrocities to stay in power, Hitler, or Gaddafi, or whoever, it’s difficult to let them in power without committing crimes, because they will fall.

TP: You already mentioned the Security Council, and this is of course, one of the most complex relationships, I mean the relationship between the ICC and the Security Council, in the wider context of peace and justice. How is this cooperation working so far and where do you see gaps?

LMO: What I see is a huge evolution. When I started, the Security Council distrusted the Court. They passed an Article 16 resolution to prevent the Court from intervening in the peacekeeper’s areas. Just two years later: 3 months of discussions, 11 votes, Darfur referral. In 2011: a 1-day debate, the role of the Court was clear, 15 votes, consensus, Libya referral. That’s evolution. Today, the breakfast discussion [organized by IPI] was interesting; the Prosecutor is controlled by the judges in what is individual criminal responsibility; the Security Council is in charge of peace, and it can stop the Prosecutor and the Court if its wants to. So, that is the system. It’s a huge change in international relations.

TP: What can you tell us about the progress of investigations and prosecutions in the various situations before the Court? It seems that progress is uneven. For example, in the Cote d’Ivoire, the DRC, and Kenya situations, things seem to be moving along more quickly and progress is somewhat visible, but not as much has happened recently in the cases of Darfur and Uganda. What are the reasons for this?

LMO: In Darfur, just in December, we requested another warrant against the current Minister of Defense, so maybe you also need to have better facts. Our information shows that that the current Minister of Defense, when he was Minister of Interior in 2003, he was in the middle of the chain of command between Bashir and Harun. We identified his criminal responsibility. The judges will decide on that. In both cases, Sudan and Uganda, the issue is not the Court. The issue is implementing the arrest warrants, and it’s like—what country are you from? Germany. A judge in Germany issues a warrant and the police not implementing. It’s not the judge’s responsibility; it’s the police’s responsibility. Here, the international community decided to do justice in these cases and how to implement it.

Let me give an example. For me, it’s fascinating how the NGO Invisible Children promotes the law, pushing for action by the US administration against Joseph Kony. Now, members of the US Army are advising and supporting the Ugandan effort to arrest Joseph Kony. That is unique, but it’s funny that it was the consequences of a group of citizens from San Diego, not the consequences of one of the 120 members of the Rome Statute. So, that’s something.

The Bashir case is different. Because it’s complex, I think Bashir was able to transform the Southern Sudan problem into his alibi to escape from responsibility on Darfur. I think his destiny is to face justice. It’s a trend. The Yugoslavia tribunal indicted 161 persons, they have zero at large after 18 years. It took time, but they have not escaped justice. And it’s not just international justice. In South America, during the 1980s, Argentina, Chile, and Uruguay, suffered similar crimes. In ’85, I was prosecuting crimes in Argentina; in Chile, Pinochet was in power, and in Uruguay they had a referendum deciding not to investigate crimes. So, three completely different situations at the time. Now, 27 years later, the three States are in similar situations; the top responsible generals were indicted. So, at the end of the day, the world is changing. From the institutions that we developed in the 1940s, to learn what happened to avoid the Second World War; now we have to adjust to the new conflicts of the 21st century. The ICC is the only new 21st century institution to help.

TP: Another current situation that is of particular interest is, of course, and we touched upon it before, is Libya. The Libyan authorities have yet to provide information about the status of Seif al Islam having missed the first deadline. Are you confident that the trials of the former intelligence chief Abdullah al Sanussi and of Seif al Islam can be held in Libya according to international standards? Could Libya be a model of the application of the principle of positive complementarity and how is Libya different from Kenya where national proceedings were not seen as credible?

LMO: In Kenya, what happened is they never investigated the same people for the same charges. In Libya, they have Saif al Islam in jail and they say they will investigate him. Libya is a complex situation. Libya’s emerging from a civil war. So, they are trying to build a new system after 40 years of dictatorship. We continue our investigations; the cases are still before the Court, and I keep on doing my work. We are particularly investigating the gender crimes, trying to find who committed them. And of course, Al Sanussi should be arrested. That’s a big challenge, because Al Sanussi apparently is still conspiring against Libya. These are the real issues. We are also trying to see if we are going to do other cases. There are serious allegations against the rebel forces, there are people talking about the NATO forces, so a UN Commission of Inquiry is now preparing a report in March. After, we will decide; in May I brief the UN Security Council.

So Libya was a successful story in terms of stopping the crimes. Now, it’s a new scenario, highly complex, but I think the ICC is still providing an important service, because we will ensure justice in Libya, whoever will do it. The judges will decide. I don’t know who will do it, and what will happen, but there will be justice in Libya.

TP: Finally, I was wondering what your thoughts are concerning the future of the ICC, now that your term as Prosecutor comes to an end, and what you would like to recommend to your successor and close collaborator of many years, Fatou Bensouda?

LMO: We started an Office. We are working in transition now, but Fatou was part of the Office when we defined operational standards and policies. So in some way, the appointment of Fatou is great for the office, because it ensures smooth transition. At the same time, she will keep adjusting the rules we are using, but in a way she knows, because she was part of the process. I think the Court was a success; it had nine successful years doing its job, and we have to keep doing it. But the real challenge is for the rest of the system. The real challenge is for the States. How can we do better with Bosco? He is still at large. How can the international community do better with Kony? Finally, in Darfur, how does the international community address the genocide? So, the challenge is not for the Court. It’s more for the States. And because the problems are difficult, I believe one risk is that States that cannot stop the crimes, such as in Darfur, might say it’s okay, we’ll stop the Court. And that’s why for me, the biggest challenge is States trying to manipulate the Court, affect its independence, that’s a huge risk. Staffing, budget, and oversight are three tools States normally use to control organizations. If they try to do this with the ICC, they will kill the ICC. And that for me is a challenge. Another challenge is the tension that criminal law produces in international relations. The Court itself is managing the challenges of international criminal law. We manage well. The Court is up and running, doing its job. The judges condemn the prosecutor when they feel they have to do so. We fight, we appeal. It’s normal. We’re a normal court.

International relations challenges however are still there. We are learning, it’s fascinating. But this, still, it’s a big challenge.

TP: Thank you very much for speaking with the Global Observatory today.