Founding ICC chief prosecutor Luis Moreno-Ocampo talks about war crimes trials and trying to deter genocide: past, present and future.
By YONAH JEREMY BOBFounding ICC chief prosecutor Luis Moreno-Ocampo(photo credit: REUTERS)
BUILDING GLOBAL institutions is the key to preventing genocide, and if we fail there is no future for humanity, former International Criminal Court Chief Special Prosecutor Luis Moreno-Ocampo warns in a wide-ranging interview with The Jerusalem Report ahead of a conference of international jurists in Krakow, Poland in May that will mark the 80th anniversary of the coming into effect of the Nuremberg Race Laws and the 70th anniversary of the Nuremberg Trials.Ocampo will participate “Ministers of Justice Panel” that will address the theme “The Holocaust, Genocide, and Human Rights: Universal Lessons for the Preventing and Combating of Mass Atrocity in Our Time” and will also include Ocampo; Israel’s Justice Minister Ayelet Shaked; former French Justice Minister Robert Badinter, and will be moderated by Prof. Irwin Cotler, the Chair of the Raoul Wallenberg Center for Human Rights and a former Canadian justice minister and member of parliament.“It’s important to remember the Holocaust, the biggest tragedy of the 20th century. We need to learn to keep moving to avoid similar problems,” says Ocampo, who was the first ICC prosecutor from 2003-2012.Noting that the Nuremberg Trials were the first time that there was a global effort to prosecute crimes against humanity, Ocampo says that the world has yet to learn how to prevent such crimes happening in the first place.“After the Holocaust,” he says, “the world adopted the Geneva Conventions and international accords started to work, but we don’t yet know how to prevent crimes. It is a new area...we keep evolving, reforming a benevolent desire to help into real operational principles to prevent genocide.”He describes Nuremberg as the “beginning of international tribunals, the beginning of international justice,” which were later built on by the International Criminal Tribune for the former Yugoslavia (ICTY) and the International Criminal Tribune for Rwanda (ICTR) and then the permanent International Criminal Court, which he describes as the future of international justice.“But Nuremberg was the first time in human history,” he says, “that criminals were prosecuted by the entire world, by the international community, by humanity as one community.”Despite Moreno-Ocampo and many others declaring the success and groundbreaking nature of the Nuremberg trials, one shortcoming that is widely agreed on is that even as the global community established an International Court of Justice (ICJ) already in 1945, it did not establish an International Criminal Court (ICC).Though the ICJ and the ICC are often confused, the ICJ has no powers or process for handling criminal issues, handling only civil issues or giving advisory rulings about general principles of international law.
That meant that from 1945 until 2002, there was no court in the world that could try any crimes against humanity. The reasons that Yugoslavia, Rwanda and other ad hoc war crime tribunals were established in the 1990s after new genocides occurred, was precisely because no comprehensive global alternative existed.Asked why Nuremberg, historic as it was, not only did not end genocide, but also did not bring about a permanent version of itself like the ICC, Ocampo says one of the key factors was the Cold War.“Nuremberg was a complete change, a global court, representing all of humanity, and the world was not ready for it. There were conventions [essentially] requiring [the founding of an] international criminal court, but the Cold War stopped the conversation,” Moreno-Ocampo explains.“The idea of Nuremberg was that humanity was united against these crimes,” he continues, “but during the Cold War, the Soviet Union and the United States were protecting their own allies when they committed crimes.”Ocampo gives Cambodia and the atrocities of Pol Pot’s Khmer Rouge regime as an example.“In Cambodia, what happened was China and the United States protected the government in a weird way. During the Cold War, there was a weird dynamic. World leaders would tolerate mass atrocities because of their global alliances,” he elaborates with frustration.From 1975-1979, an estimated 1.7 to two million Cambodians were slaughtered by the Khmer Rouge. No ad hoc war crimes tribunal was set up to investigate the genocide until a joint national-UN tribunal was set up in 2003.Cambodia was one of a long list of countries where the US, the Soviet Union and China clashed over trying to support various sides to an internal conflict.Asking rhetorically why the ICC finally came into being in 2002 after its Rome Statute was ratified in 1998, he answers his own question with the simple reply, “The end of the Cold War.”“At the end of the Cold War, there was [the ICTY handling war crimes in] Yugoslava and [the ICTR handling war crimes in] Rwanda and people then wanted to do it permanently and not just ad hoc,” says Ocampo.“The end of the Cold War transformed the system back to the idea of a consensus against these crimes. Yugoslavia and Rwanda showed consensus, and the ICC was another move forward.”Is the ICC, as much as a move forward as it is over ad-hoc temporary tribunals in single countries, truly effective? Can international law, which the ICC is part of, can really stop genocide? Though it has experienced some recent victories, including the March conviction of Jean-Pierre Bemba Gombo for war crimes in the Central African Republic and obtaining the admission of Ahmad Al Faqi Al Mahdi for destroying historical and religious monuments in Mali, the ICC has also suffered some embarrassing and damaging losses recently.In June, South Africa, a member state of the ICC that is bound to arrest anyone who the ICC issues an arrest warrant for, thumbed its nose at the ICC when ordered to arrest visiting Sudanese President Omar al-Bashir.This means there has been no accountability for one of the largest genocides after the Holocaust.Regarding Syria, the ICC has been unable even to criminally investigate the genocide there, because Syria is not part of the ICC and the UN Security Council, under pressure from Russia, refuses to refer the case to the ICC.In December 2014 and on April 5, several major cases against top Kenyan leaders who were accused of massive war crimes during Kenya’s 2007-2008 civil war, were dropped by the ICC.The ICC Prosecutor’s Office made a formidable argument that the cases were only dropped because its witnesses were killed or intimidated to the point that much of its planned case could no longer stand.Whatever the reasons, whether the ICC prosecutor’s allegations are correct or not, the ICC was again effectively ignored by a member state where it had invested huge resources in the cases over several years.Faced with these facts, Moreno-Ocampo says, “We are progressing, but there are still a lot of things to do. That is the point. There are still discussions about the war in Syria.There are problems with protecting witnesses in the Kenya case. South Africa has political problems. Some African leaders are using the Africa idea to be connected, but South Africa’s judges ruled to arrest al-Bashir, so we are still moving forward…changing, it’s not yet consolidated.”Moreno-Ocampo notes that while it was founded in 2002, the ICC has only recently moved into its permanent premises in the The Hague, in the Netherlands; the official opening in fact took place April 19.But now, the court, he says, “is there to stay.”“The problem is we need to build around the rest, to see how the world unites against these crimes, that is the next step,” he adds.Getting animated, Ocampo encourages people to take a stand.“If you see a threat, you need to make an effort, not just have principles, it is a challenge,” noting with confidence though that “it is working, it is moving.”Asked to back up his optimistic talk with a concrete example where international law and the ICC prevented, halted or substantially reduced genocide, Ocampo refers to Colombia in South America.From 1958 until 2012, an estimated 220,000 people were killed in Colombia in a conflict between guerrillas, right-wing paramilitary groups supporting the government and government security forces. There are estimates that as many as 80% of those killed were civilians.Colombia ratified the ICC’s Rome Statute in 2002 with the ICC potentially having jurisdiction of war crimes perpetrated after 2009, though Colombia itself is supposed to get first crack at bringing war criminals to justice.Peace negotiations started in 2012 and were finalized in September 2015 after serious ups and downs, including violations of ceasefires.Part of what was unique about the peace deal struck between the sides was that all sides accepted that while certain crimes would receive amnesty, the most serious crimes would carry criminal liability. Moreno-Ocampo has said that to date, high-ranking officers, including colonels, have even faced culpability for alleged crimes, though the ICC has still criticized the side for failing to bring charges against generals and the most high-ranking officials.Discussing the ICC’s success in preventing or halting genocide, Moreono-Ocampo says, “The best example is the Colombia situation.Colombia is negotiating with guerrillas who respect international law, and the guerrillas accept that international law must be respected.”Giving a bit of a personal interlude, he recalls, “I met with them [the two sides] in Cuba and they [the guerrillas] understand this concept.That is best example where we are succeeding.The country is negotiating with violent groups, moving into respecting international law.”He adds that the guerrillas understood they were living in a new world where political crimes might be excused in a peace process, but not international war crimes.Honing in on the future, I ask Moreno-Ocampo to put an end date on genocide – whether it be five years, 25 years or even 50 years out.Of all of the questions, the former ICC chief prosecutor struggles the most with this one, wanting to emphasize a positive message, but also feeling that he needs to strike a realistic tone.“The United Nations was founded by 30 countries, now everyone is there. Forming global institutions is quite complicated and takes time,” he says.International institutions like the UN and the ICC are “amazing institutions and take amazing efforts, but we are not finished – it is a work in progress.”Pressed again about giving a concrete end date, he laughs nervously, saying “I hope it is very soon, because if not, if the world still attacks groups, we have no future for humanity.”The 28th March of the Living will take place on May 5th. The live stream of the main ceremony can be seen at: http://motl.org/livestream/