The ICC’s lead prosecutor on the Court’s first arrest warrant for a sitting head of state, why his Court is nobody’s instrument but the law’s, and how he got his mother to see the light.
The International Criminal Court’s Luis Moreno Ocampo calls himself an impartial prosecutor of the law. But if you ask his opponents, the ICC’s move to issue the first arrest warrant for a sitting head of state on March 4 was beyond impartial; it was irresponsible. The warrant calls for the arrest of President Omar Hassan al-Bashir of Sudan, charging him with war crimes and crimes against humanity. It leaves out the genocide charge that international rights organizations, Congressional Democrats, and even members of the Bush administration (Colin Powell) have all cited, a genocide alleged to have cost the Darfur region in the west of Sudan over half a million souls.
From Sudan came a predictable belch of defiance. In response to the warrant, crowds in Khartoum burned photographs of the gray-haired prosecutor with red x’s scratched across his bearded face; the government vowed not to cooperate and revoked the licenses of Oxfam, Save the Children, and eleven other international NGOs. China and the African Union warned the indictment could jeopardize the peace process between the government and its former opponents in South Sudan, where war raged for twenty years. Even the British Sudan expert Alex de Waal, on Democracy Now!, took exception to the warrant. “UN data indicate about one hundred and fifty people are being killed every month in Darfur. And that’s bad. But that does not amount to an ongoing genocide. So why the urgency of rushing this thing through at this moment, when a huge humanitarian operation is providing life-giving assistance and we are imperiling that?”
While relatively young, the International Criminal Court is perhaps one of the more reviled institutions in the world. The developing world sees it as a “Western court,” claims Mahmood Mamdani in The Nation. The Bush administration, ironically, feared the opposite—that the developing world would use it as a political tool to harass and hamper the world’s only superpower. (Thus, before it could be ratified by Congress, the Bush administration un-signed the statute.) Such fear from both poles can only mean one thing: the Court must be doing something right. But those perceptions could also go very wrong. In the same episode of Democracy Now!, de Waal also warned that while the Court may not be a tool of the so-called West per se, the perception that it was could do it enormous harm.
Mere months after the genocide in Darfur began in early 2003, Luis Moreno Ocampo became the Court’s first prosecutor. In some ways he was an unlikely choice; an Argentine who made his career by tirelessly prosecuting the generals who executed Argentina’s “dirty war,” his English is less than smooth. Yet his job requires him to make the case for the Court, so to speak, and galvanize those, via the public relations game, who oppose it. Incidentally, his French, the other language he may try the Court’s cases in, is far worse than his English.
One important reason the prosecutor must win over world sentiment on behalf of the Court is that it has no power to arrest its slowly lengthening roster of war criminals; it relies on governments themselves, which may be inspired to comply (though that is unlikely) or may arrest indicted members of previous administrations; or the Court relies on other countries who may nab an unwitting villain as he chases a little sun or adventure overseas (as happened to Chilean dictator and Kissinger pal Agosto Pinochet in Europe).
What becomes clear in talking with Moreno Ocampo is that while he is undoubtedly impartial when standing before the judges, he is far from dispassionate about the Court’s place in history, which is to say in the lives and times of humans and would-be victims of atrocities. When twenty-one-year-old linguistics student Raphael Lemkin asked why Armenians were unable to have Mehmed Talat arrested for the Armenian genocide, he was told, “Consider the case of a farmer who owns a flock of chickens. He kills them and this is his business. If you interfere, you are trespassing.” Famously described in Samantha Power’s A Problem from Hell, Lemkin went on to coin the word genocide, which led to the UN Genocide Convention. Moreno Ocampo sees his Court as the forum by which the conundrum of the chickens and the farmer will be continued and finally overcome. He insists over objections, [Bashir] “will face justice.” In “two years or twenty, he will face justice.” “The law is powerful,” he goes on. “The law changed the system in Argentina.” The law can change the system? If you don’t believe him, you can ask his mother.
I spoke with the prosecutor by phone days before the warrant was issued, when he apparently still hoped genocide would be included in the Court’s indictment. The warrant does allow him to bring evidence of genocide, should the case go to trial.
—Joel Whitney for Guernica
Guernica: How strong is the case against Bashir?
Luis Moreno Ocampo: We are judging a head of state, so we cannot make a mistake. If you ask me, yes, we have strong evidence.
Guernica: Can you give a brief overview?
Luis Moreno Ocampo: We collected the Minister of Defense plan on the attacks, and we interviewed, in Khartoum, a general in charge of Darfur. We identified witnesses who’ve escaped Darfur in eighteen countries. We took a hundred testimonies. [This information showed] that in 2003 and 2004, the army of Sudan, with the support of the Janjaweed militia, basically attacked the civilians in the Darfur region, focused attacks in particular in the villages of the Fur, the Masalit, and the Zaghawa tribes. We can show in the first case the attacks in four localities conducted under the leadership of the Janjaweed militia leader called Ali Kushayb. But we [can] also show the role of the [then] Minister of State for the Interior, Ahmed Haroun, who coordinated all these attacks in the Darfur region. That’s the first case. We have also defined that most of the crimes are now [being] committed in the camps of displaced people. Most of the people from these groups are displaced in camps and the [militias] attack them. The government is providing no assistance to them as they [languish] in the desert with no food and no water. And the government is actually hindering relief, and also members of the government and the Janjaweed militias are even raping women in and around the camps. These are different forms of genocide. That’s why we [began] this second case against Mr. Bashir for genocide, war crimes, crimes against humanity. And we have a third case against the rebels who’ve attacked the bases of the peacekeepers. These are the three cases in Darfur.
Guernica: Genocidal intent, one of the conditions for proving a claim of genocide under international law, would seem like a hard thing to prove. But the laws on this suggest that intent does not have to be directly stated, right?
Luis Moreno Ocampo: Right. Hitler never signed a document saying “Kill all the Jews; kill all the gypsies.” So we can construe that the attack was a consequence of the intention.
Guernica: What are the specific facts that tie Bashir to the Janjaweed?
Luis Moreno Ocampo: [Surprised] Oh, he was personally involved in the recruitment of them; the Janjaweed were paid by the army; the Janjaweed were under the command of the army; Ahmed Haroun the Minister, again, was basically coordinating all the activities. So the Janjaweed are part of the army, [aka] the Popular Defense Forces. That is the trick they are doing; they use the militia to spread the idea that they are autonomous. It’s amazing how easy it is for Bashir to play with the international community. He promised Kofi Annan to demobilize the Janjaweed militia, in accordance with a resolution of the Security Council. But he immediately said that the Popular Defense Forces are not the Janjaweed militia. They are the Popular Defense Forces.
Guernica: What is your mandate for arresting these criminals you have warrants for? What can you do to arrest them?
Luis Moreno Ocampo: Like any prosecutor in the world, the prosecutor must rely on the police or army to arrest people. We rely on national police and national armies… So as part of my job in a new institution, I have to galvanize national efforts to arrest these people. In fact, in the Haroun case we requested [that] the Sudanese government arrest him. We [don’t rely on] any invasion or foreign interventions.
Guernica: Bashir said in an interview that the ICC had tried to hijack a plane?
Luis Moreno Ocampo: No, no, no. Some states were following information. Haroun was traveling outside Sudan and some state was planning an arrest operation in their country. It was not me.
Guernica: Bashir spoke a lot, too, about the importance of following Sudanese law. If Bashir is the law, and the government has members [including him now] accused of fostering genocide, this is really a campaign to win over the other members of government, no?
Luis Moreno Ocampo: We are asking the Sudanese government to arrest him.
Guernica: It’s up to his own government?
Luis Moreno Ocampo: The government has to do it. Whether they do it, it’s their business. It’s not my business; they have to do it.
Guernica: I’ve heard you say this is slow and thorough work. Meanwhile, there are deaths continuing in the Sudan. What could happen structurally or institutionally to speed your work?
Luis Moreno Ocampo: No, no. I have to make thorough investigations. But in the Darfur case, we’re investigating massive crimes committed by thousands of people against millions of people without visiting the scene, and that’s in two years. So our investigation is not slow. Any competent investigation in any national system will take at least one to two years. We’re very fast in terms of investigations, by any national or international standards. We’re investigating massive crimes in ongoing conflicts in Darfur without visiting the country.
Five thousand people die each month in Darfur. It’s a genocide. It’s a massive attack today. Wake up. People are in denial of these massive crimes. I’m sorry. I cannot be part of the denial.
Guernica: But the feeling with the public is that the killings continue, and even escalate with the warrant.
Luis Moreno Ocampo: Yeah, but the problem is that while the court adjusts its speed in a more complex effort, you need also a collective effort because I’m doing just the investigations. But arresting is not something I can do.
Guernica: Won’t these men escalate their killings, as members of the international community have warned, now that they’re wanted by the Court? Won’t they block peace in the south? Won’t they make humanitarian aid harder to allocate, as a kind of protest against the Court? You have responded that this is more about ending impunity. Why is that more important than the humanitarian aid, the progress made in the South?
Luis Moreno Ocampo: This is my mandate. I have a mandate to investigate crimes and that’s what I’ve done. My mandate is from the Rome Statute in ending impunity to contribute to the prevention of these crimes. Indicting Bashir, Haroun means ending impunity because they will face justice. In two years or in twenty years, they will face justice. But the constitutional prevention of future crimes requires a collective effort and the problem is we are seeking the truth. So the idea that Haroun or Bashir will provide a settlement now, that the crimes [can be solved] by them is an illusion. Keeping Haroun today in place as Minister of Humanitarian Affairs controlling the lives of the same people he’s displaced… keeping them in charge is like keeping the arsonist in charge of the firefighters.
Guernica: So the possibility of escalating the killings, as a result of this warrant, that’s not part of your mandate? That’s not something you have to worry about? More lost lives?
Luis Moreno Ocampo: Five thousand people die each month in Darfur. It’s a genocide. It’s a massive attack today. Wake up. People are in denial of these massive crimes. I’m sorry. I cannot be part of the denial. The crimes are occurring today and it is my duty to say that. If this [feels] uncomfortable, it’s better. The world has to feel uncomfortable. The problem is the leaders of the country are attacking 2.5 million people. And that is why the state cannot control the crime. Bashir is the state. And that is the reason why the Darfuris are leaving the national community. That was the lesson learned after Auschwitz. After the second World War, the Security Council was created with the possibility to use Chapter VII of the UN Charter to restrict sovereignty when this happens. And what we need to know is how the world will stop massive crimes. That is the question today. The judges [have confirmed] my request that this is a massive crime. Now how will the world react? That is the issue. We promised never again. We failed in Rwanda. Will we fail again? What’s at stake are the lives of 2.5 million people.
Guernica: You have four African countries on your docket. Let me read something from The Nation: “The fact of mutual accommodation,” [Mahmood] Mamdani writes, “between the world’s only superpower and an international institution struggling to find its feet on the ground is clear if we take into account the four countries where the ICC has launched its investigations: Sudan, Uganda, Central African Republic, and Congo. All are places where the United States has no major objection to the course chartered by ICC investigations. Its name notwithstanding, the ICC is rapidly turning into a Western court to try African crimes against humanity. It has targeted governments that are U.S. adversaries and ignored actions the United States doesn’t oppose, like those of Uganda and Rwanda in eastern Congo, effectively conferring impunity on them.” How are cases chosen?
Luis Moreno Ocampo: The law defines the criteria; it has to be war crimes, crimes against humanity, genocide. There should be no investigation in the national system. And gravity. So I used these as my criteria. Congo was the gravest situation under my jurisdiction. Colombia was similar, in terms of the number of killings. The difference is, in Colombia they are attempting to investigate the crimes. So that is why I decided to investigate Congo… an investigation at the invitation of the Congolese president. [Another] choice was Uganda, and I invited them to refer the case to me and they did it, so in Uganda and the Congo, I invited them but then the president of the countries invited the Court to intervene. So it’s not an intrusion. We are working with them. And we’re working to protect African victims. The Central African Republic was different; I did not invite the president. The president referred the case to me directly without my intervention. So those are the cases we have in Africa. They invited me to [take] them. Darfur is different; the Security Council decided to do it. In all cases, the national head of state invited me to do it or the Security Council, representing key members all over the world, including Africa, South America—they requested me to intervene.
Guernica: Who are some of the notable states who are not members?
Imagine a referee in football who moves the goal according to whether it [belongs to] his friends or enemies. There’d be no more football. And that’s our role here. We have to respect the law in order to stop these massive crimes.
Luis Moreno Ocampo: The ICC has all of Western Europe and most of Eastern Europe, most of America, except Chile, which is coming, and some Central American countries, Canada, Australia, New Zealand, seventy percent of Africa; in Asia, the biggest countries represented are Mongolia, Japan, and Korea.
Guernica: And the United States un-signed under the Bush administration.
Luis Moreno Ocampo: Yes, the U.S. is not a member.
Guernica: Do you have any hopes for the U.S. to join under the Obama administration?
Luis Moreno Ocampo: I personally don’t get involved; it’s a national decision.
Guernica: So if I goaded you to make an appeal to the American government, or the American people, to join, you wouldn’t because you don’t see that as part of your job?
Luis Moreno Ocampo: Exactly.
Guernica: But you describe your work above as galvanizing a collective effort. Wouldn’t there be advantages in the United States joining?
Moreno Ocampo: I don’t know. Ask the American Society for International Law.
Guernica: The permanent Security Council is three-fifths “Western”—France, the U.K., and the U.S. Do you agree that this is a structural problem that biases the cases the Court may be referred?
Luis Moreno Ocampo: I don’t make political analysis.
Guernica: Ok, now what about Israel’s alleged war crimes, alleged by the Palestinian Authority?
Moreno Ocampo: Israel is not a state party. But last month, the Palestinian Authority came to my office and they made a declaration accepting the Court’s jurisdiction in Gaza. So now I am doing an analysis. The Palestinian Authority are promising to show me a report proving they have all the authority. As I told the Palestinian leaders, the only thing I can promise you is my impartiality and respect for the law. That’s it. That’s my job.
You have to start with the law, when for five thousand years the law was never a factor in international relations.
Guernica: In the broad range of your work, when you talk about impartiality, we’re talking about the worst things humans can do to humans, the worst crimes and the most clever and devious criminals on the planet. How do you remain impartial?
Luis Moreno Ocampo: I have a responsibility to be the first prosecutor [of this court], so I have to build the institution. And respect for the law will make a difference. Imagine a referee in football who moves the goal according to whether it [belongs to] his friends or enemies. There’d be no more football. And that’s our role here. We have to respect the law in order to stop these massive crimes. That’s my job and I will act according to the law. That’s my only consideration, the only thing I have to do.
Guernica: Who is someone you admire or look to for inspiration?
Luis Moreno Ocampo: Giovanni Falcone [the Italian magistrate killed for prosecuting the mafia].
Guernica: Does your job put you at risk? Have you ever been threatened?
Luis Moreno Ocampo: I was a prosecutor in Argentina on these types of cases; risk is normal. You are trying to define the legal limits in a very dangerous game. My role is to come and do my work and show the legal limits. And the law is very powerful. The law is very powerful. I know that. In Argentina, the law changed the system.
Guernica: What are the qualities that you need to do your job?
Luis Moreno Ocampo: It’s a fascinating job, because you have to understand very well a new law which is a combination of civil law and common law traditions, in a global arena. I am also manager. The Court is made up of three hundred people from sixty countries working together in a very complicated manner. We have very strict rules of disclosure. You present something and the judges say you cannot do it and so you have to find a way to comply with the judges’ request. In addition, you have to start with the law, when for five thousand years the law was never a factor in international relations. And we have to do it not just in one country like in Yugoslavia, Rwanda, or Argentina, but everywhere in the world. And this is why we have to explain to political leaders, Ok, this is the law. And I cannot be a politician. I have to inform them in advance of what I will do and explain to them that it is just the law. So these are different aspects of my work.
Guernica: But you are the public face of the Court? Is that something you embrace?
Luis Moreno Ocampo: The role of the prosecutor is to be active in collecting support for the investigations. And that’s how I’ve acted. But the final word will be the judges’ decision. The prosecutor can make comments, but the final decision is the judges’. That’s it. For me, this is very important because in my experience, the trial, the discussions are so important. I always say, In Argentina when I was prosecuting the generals… I could not convince my own mother for months. And then when the trial started, two weeks later, my mother called me and said, “Okay, you were right, I was wrong. …He has to be in jail.”
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