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Now on BBC News, it's time for HARDtalk. | :00:00. | :00:10. | |
Welcome to HARDtalk. 12 years ago, the International Criminal Court was | :00:11. | :00:21. | |
set up to be the scourge of war criminals and mass killers | :00:22. | :00:23. | |
everywhere. There would be no impunity for the worst of crimes. | :00:24. | :00:32. | |
How does the court's record stack up against that grand ambition? All of | :00:33. | :00:35. | |
its cases have come from Africa thus far. Two convictions have been | :00:36. | :00:37. | |
handed down from the Hague. My guest, Luis Moreno`Ocampo, was the | :00:38. | :00:45. | |
ICC chief prosecutor for a decade. Why has the court failed to deliver | :00:46. | :00:47. | |
on its promise? Luis Moreno`Ocampo in Washington, | :00:48. | :01:20. | |
welcome to HARDtalk. Thank you very much. Perfect time to talk to you. | :01:21. | :01:25. | |
We live in desperate times. The world is full of violence and | :01:26. | :01:28. | |
turmoil involving state actors and nonstate actors too. But the reality | :01:29. | :01:36. | |
of the International Criminal Court and its failure over 12 years to | :01:37. | :01:39. | |
deliver justice for the most egregious of crimes is very | :01:40. | :01:49. | |
disappointing, isn't it? No. I think what is happening today, the old | :01:50. | :01:52. | |
model, sovereign national state, is cracking and a new model, the 21st | :01:53. | :01:55. | |
century model, where we live together in this national state but | :01:56. | :01:57. | |
with supernational organisations, is being born. People like you | :01:58. | :02:13. | |
your experience cannot see the new model emerging, and that's my | :02:14. | :02:16. | |
conversation with you, I will try to explain. The goal of the court was | :02:17. | :02:27. | |
ending impunity to contribute the prevention of future crimes. | :02:28. | :02:36. | |
Contribution. But the other actors should contribute. The court can do | :02:37. | :02:38. | |
it well in some cases. In others, the state do nothing | :02:39. | :02:42. | |
genocide in Darfur. 's The court is a new tool and institution to deal | :02:43. | :02:50. | |
with problems. Interesting you say part of the point of the court was | :02:51. | :02:56. | |
to be preventative. To act as a deterrent to future mass killings | :02:57. | :03:00. | |
and human rights abuses. That hasn't worked. We see so many mass killings | :03:01. | :03:05. | |
in the world today. Maybe it hasn't worked because people judge the | :03:06. | :03:09. | |
court on its record. In over 12 years, all we have seen is two | :03:10. | :03:12. | |
convictions handed down from the Hague. Do you know how many cases I | :03:13. | :03:22. | |
promise? Zero. It is a big failure. On the day of my swearing in, in | :03:23. | :03:27. | |
June 2003, I said the best outcome of this court would be no case. No | :03:28. | :03:35. | |
case means, first, there is no genocide, or if there is one, the | :03:36. | :03:38. | |
country, the national system will deal with it. Colombia today, you | :03:39. | :03:43. | |
aren't talking about Colombia, paramilitary, guerillas, organised | :03:44. | :03:52. | |
crime. They have a peace agreement with the oldest guerrilla in the | :03:53. | :03:59. | |
them and they are discussing how much time they have to serve in | :04:00. | :04:09. | |
prison. That is a good case to see. This never went to court. Almost a | :04:10. | :04:12. | |
decade, you were chief prosecutor until 2012, you lived through | :04:13. | :04:14. | |
terrible violence in parts of the world and obviously we could look at | :04:15. | :04:18. | |
Afghanistan and Iraq, we could look at Colombia or we could look at Sri | :04:19. | :04:22. | |
Lanka. We could look at a host of countries around the world. I come | :04:23. | :04:31. | |
back to the point and it is echoed by a legal expert at Stanford, David | :04:32. | :04:35. | |
Davenport, who says that for all of the resources, the billion dollars | :04:36. | :04:38. | |
and more spent on the ICC, the thousand staff in the Hague, the | :04:39. | :04:41. | |
docket of actual cases brought before the judges is, in his words, | :04:42. | :04:43. | |
embarrassingly small. That's a point. There are many professors | :04:44. | :04:54. | |
with different opinions. That's why I am devoting my time to explain | :04:55. | :04:57. | |
better, that they can improve their analysis. This court is the synod to | :04:58. | :05:01. | |
having almost no cases. It is helping countries to take seriously | :05:02. | :05:13. | |
their obligations. But, Mr Ocampo, that surely is an absurd position to | :05:14. | :05:16. | |
take. In the future, if you were to act as a deterrent court, that might | :05:17. | :05:21. | |
be valid. I am talking about what has happened in the world over the | :05:22. | :05:26. | |
last decade. We have seen civilians suffer in the most terrible ways in | :05:27. | :05:32. | |
so many countries. We have seen suspects emerge, people appearing on | :05:33. | :05:35. | |
the face of it to have conducted terrible crimes against civilians, | :05:36. | :05:48. | |
but your court hasn't touched them. When I started, there were 78 | :05:49. | :05:51. | |
states, members of court. I wasn't a war prosecutor, I was the prosecutor | :05:52. | :05:57. | |
of these 78 states. When I finished, there were much more, 50% more, 121 | :05:58. | :06:02. | |
member states. That is a huge revolution. Including Tunisia. One | :06:03. | :06:08. | |
of the few Arab countries as member of the court. I wasn't a war | :06:09. | :06:14. | |
prosecutor, I was a prosecutor of the countries who accepted the | :06:15. | :06:21. | |
jurisdiction of the court. I am not the owner of the state, I was the | :06:22. | :06:25. | |
prosecutor, with a legal mandate. You mention Sri Lanka? I had no | :06:26. | :06:28. | |
jurisdiction there or in Iraq or Palestine, Israel, in those days. It | :06:29. | :06:40. | |
is different now. I had no jurisdiction in Zimbabwe. In the US. | :06:41. | :06:44. | |
It is like blaming a German prosecutor because he isn't making | :06:45. | :06:47. | |
judgements in Sri Lanka. It isn't a question of blame but of assessing | :06:48. | :06:50. | |
whether the ICC has come anywhere near fulfilling its original | :06:51. | :06:53. | |
ambition to end impunity for human rights abuses wherever they might be | :06:54. | :06:57. | |
in the world. It's obvious you have fallen terribly short. No, I am | :06:58. | :07:04. | |
sorry. You are missing the point. First, you are blaming me for a | :07:05. | :07:08. | |
thing the prosecutor cannot do, it would be huge... I am a lawyer. I | :07:09. | :07:13. | |
can't invent my jurisdiction. I can't prosecute crime because you | :07:14. | :07:16. | |
believe it's wrong but I have no jurisdiction. That's the first | :07:17. | :07:21. | |
point. The second and more important point is the importance of courts | :07:22. | :07:24. | |
aren't just the cases they are dealing with, the shadow of the | :07:25. | :07:29. | |
court is important. Example, divorce courts make divorces. Many couples | :07:30. | :07:35. | |
go to lawyers and they use the rules of the court to organise a private | :07:36. | :07:42. | |
divorce, that is a shadow court. That is what the ICC was doing, | :07:43. | :07:50. | |
expanding its shadow. If I may interrupt, to many people the shadow | :07:51. | :07:53. | |
of the court appeared very much to focus on Africa. The Chatham house | :07:54. | :07:57. | |
report on the workings of the ICC last year said the focus on Africa | :07:58. | :08:00. | |
in this court, when many powerful states act with impunity elsewhere, | :08:01. | :08:03. | |
isn't consistent with the universal aspirations of international | :08:04. | :08:13. | |
criminal law. We have had so many African leaders and representatives | :08:14. | :08:15. | |
of the African Union say that there was a basic and profound unfairness | :08:16. | :08:19. | |
in the way in which the court when you were chief prosecutor focused | :08:20. | :08:35. | |
all of its efforts on Africa. It is very interesting and I think it is a | :08:36. | :08:38. | |
racist comment. It is based on a basic racist idea. Who's challenging | :08:39. | :08:46. | |
today that we should do something with ISIS? No`one. They are Arab | :08:47. | :08:52. | |
people. No`one challenges that they should be controlled. I have to | :08:53. | :08:59. | |
investigate Bashir for his crimes in Darfur. We listen to President | :09:00. | :09:05. | |
Bashir and those supporting him and talking about African bias, the bias | :09:06. | :09:08. | |
is of commentators who are ignoring the African victims. If I may say so | :09:09. | :09:24. | |
I think you are looking at it from the wrong end of the telescope. It's | :09:25. | :09:32. | |
not because you wanted justice for crimes committed in Africa that | :09:33. | :09:34. | |
Africans were worried. They were worried because they saw it as | :09:35. | :09:37. | |
selective justice because they couldn't see you apply the same | :09:38. | :09:39. | |
prosecutorial integrity to issues, conflicts and problems beyond | :09:40. | :09:43. | |
Africa. They wondered why it always comes back to African countries? | :09:44. | :09:49. | |
Whether Sudan, DRC, Uganda, Kenya, when there were so many other | :09:50. | :09:52. | |
problems that it seemed the ICC could be looking at but wasn't. | :09:53. | :10:05. | |
That's interesting. We can agree I should act on the genocide in | :10:06. | :10:08. | |
Darfur, I should act against Joseph Kony who was abducting children. You | :10:09. | :10:19. | |
cannot abduct children in Congo. Violence in Kenya was not | :10:20. | :10:24. | |
acceptable. These were one of my crimes. All of them included | :10:25. | :10:27. | |
hundreds of thousands of killings, rapes and millions displaced. We | :10:28. | :10:38. | |
agree on that. The issue is why I didn't go to a different place. Why | :10:39. | :10:43. | |
I didn't go to Colombia. My first point is that all of my cases are | :10:44. | :10:47. | |
the most brutal and secondly, no`one was investigating them. To | :10:48. | :10:53. | |
intervene, I need two conditions, massive atrocities and no state | :10:54. | :11:00. | |
activity. In Colombia, that was the best example, there were massive | :11:01. | :11:03. | |
crimes committed, similar to Congo, but the difference is that Colombia | :11:04. | :11:05. | |
was investigating and is investigating and convicting all of | :11:06. | :11:11. | |
their leaders. That's why I didn't intervene in Colombia and I did | :11:12. | :11:19. | |
intervene in the Congo. The issues how to go outside Africa isn't about | :11:20. | :11:22. | |
the prosecutor, it is about the state failing to act and other | :11:23. | :11:25. | |
states, including Sri Lanka or the US, joining the court and then the | :11:26. | :11:34. | |
court has jurisdiction. Weren't you worried that Jean Ping, as head of | :11:35. | :11:37. | |
the African Union in 2011, said they aren't against the ICC, they are | :11:38. | :11:51. | |
against Ocampo's justice. Many believed you only had eyes for the | :11:52. | :11:57. | |
crimes committed in their continent. It wasn't they didn't want to give | :11:58. | :12:01. | |
those crimes a pass, they wanted to believe it would be non`selective, | :12:02. | :12:04. | |
the way that you applied the power of the ICC. I just apply the rules. | :12:05. | :12:13. | |
I am a lawyer. I apply the rules and I win my cases. Applying rules to | :12:14. | :12:18. | |
powerful people is dangerous. Remember, in your country, the | :12:19. | :12:21. | |
prosecutors of King Charles I were executed by Charles II. In the US | :12:22. | :12:28. | |
and Washington, the prosecutor of Nixon was fired. A few years ago, a | :12:29. | :12:39. | |
judge in Spain, the same who indicted Pinochet and others was | :12:40. | :12:41. | |
removed because he was investigating corruption. Investigating those in | :12:42. | :12:51. | |
power is dangerous and complicated. Isn't the brutal truth that maybe | :12:52. | :12:54. | |
because of the way the ICC works and its relationship with the Security | :12:55. | :12:57. | |
Council at the UN, it is easier and was easier for you to go after these | :12:58. | :13:01. | |
cases in Africa than to go after cases in Afghanistan or one could | :13:02. | :13:04. | |
argue Ukraine, where the interests of the permanent five on the | :13:05. | :13:07. | |
Security Council meant you would be thwarted and blocked in an attempt | :13:08. | :13:30. | |
to achieve justice by you. I am sorry. The UN Security Council is a | :13:31. | :13:37. | |
global legal system created in 1945. Many don't like it and it probably | :13:38. | :13:40. | |
has lots of mistakes. It's one of the few legal systems we have. ICC | :13:41. | :13:48. | |
was created 53 years later. It's different, completely. Both work | :13:49. | :13:56. | |
together. I understand that. In this interview, I don't seek to apportion | :13:57. | :14:02. | |
blame. I want an honest assessment of how effective or otherwise the | :14:03. | :14:07. | |
ICC can be. Now that you aren't the chief prosecutor, maybe you are free | :14:08. | :14:10. | |
to be frank with me and say that, yes, geopolitics does interfere with | :14:11. | :14:13. | |
the way the ICC works and there is something selective about the way | :14:14. | :14:16. | |
the court in practical terms must work. | :14:17. | :14:23. | |
I am writing a book on that, so I must reflect on that. For nine years | :14:24. | :14:40. | |
I was envolved in the 20 biggest world crises. I was a participant in | :14:41. | :14:43. | |
the decisions, and I saw the other actors, and my feeling is that what | :14:44. | :14:47. | |
you are missing is, the problem is not the court, the court did its | :14:48. | :14:53. | |
job. Sometimes the other actors did not. Sometimes the actor would ask | :14:54. | :14:57. | |
me to do my job, but when I had my indictment, they would ask why I am | :14:58. | :15:00. | |
indicting this president, we need to do business with him. The problem | :15:01. | :15:04. | |
is, my challenge was to build an institution. When I arrived in | :15:05. | :15:16. | |
office, I had two employees, six floors empty. They were waiting for | :15:17. | :15:20. | |
us. When I left the office, there were 300 employees in seven cities, | :15:21. | :15:22. | |
analysing crimes committed around the world, so the court is up and | :15:23. | :15:29. | |
running. Pursuing cases, as I say, only in Africa. Let me just push you | :15:30. | :15:33. | |
on one particular conflict, and case where you were asked to get involved | :15:34. | :15:41. | |
and where you refused. There I am thinking of Gaza, of the Palestinian | :15:42. | :15:44. | |
appeal to the ICC after Israel's Operation Cast Lead, where the | :15:45. | :15:47. | |
Palestinians made it quite plain that they wanted you to get involved | :15:48. | :15:50. | |
in an investigation of the conduct of Israel's military operations, | :15:51. | :16:01. | |
corporations, and you refused. And many authors, including David Bosco, | :16:02. | :16:04. | |
who wrote a book called Rough Justice, say that you were put under | :16:05. | :16:07. | |
enormous pressure by the US Government, and the Israeli | :16:08. | :16:09. | |
Government as well, not to undertake an investigation in Gaza. Is that | :16:10. | :16:20. | |
true? Palestinians were asking me to do it, pressure is normal. If you | :16:21. | :16:25. | |
are a prosecutor of the ICC, pressure is normal. But for me, the | :16:26. | :16:33. | |
only way it to respond to pressure is to respect the law. And that is | :16:34. | :16:42. | |
what I said, exactly, to the Palestinians when they came into my | :16:43. | :16:49. | |
office. You know, the Palestinian Authorities came to my office five | :16:50. | :16:53. | |
days after the first incident at Gaza in 2009. And he explained to me | :16:54. | :16:56. | |
how difficult it was for him to convince both the Palestinian | :16:57. | :16:59. | |
Authority, and then the Arab League. Because I was in the middle of the | :17:00. | :17:02. | |
case prosecuting Bashir. And, I got the support of the Arab world to | :17:03. | :17:12. | |
come here, and chat to you. I said OK, thank you very much, but I | :17:13. | :17:15. | |
cannot promise success. I can promise impartiality, and respect | :17:16. | :17:24. | |
for the law. And talking about the law is complicated, because the law | :17:25. | :17:27. | |
says you should be a state, and it is not clear that you are a state. | :17:28. | :17:39. | |
In fact the UN considers you not a state. He was very smart, and told | :17:40. | :17:42. | |
me fair enough, prosecutor, let us brief to you why you should consider | :17:43. | :17:46. | |
us a state. And that took place for three years. And in those three | :17:47. | :17:48. | |
years, everyone was afraid. I made my decision ` thank you for the | :17:49. | :17:52. | |
briefing, I still consider that in order to accept your situation, you | :17:53. | :17:55. | |
need to go to the UN, ask to be treated as a state, and come back. | :17:56. | :17:58. | |
Many legal authorities believe you made the wrong decision. | :17:59. | :18:10. | |
Nevertheless you made that decision. Things have changed in that the UN | :18:11. | :18:13. | |
has granted the Palestinians non`member status, so that has been | :18:14. | :18:25. | |
upgraded. Also Hamas has now officially declared its support, a | :18:26. | :18:27. | |
national unity government, seeking again to go through the ICC to have | :18:28. | :18:30. | |
the latest military confrontation in Gaza investigated. So again, in the | :18:31. | :18:33. | |
spirit of frankness, now that you are no longer chief prosecutor, can | :18:34. | :18:37. | |
you tell me that you believe, if you do, that the ICC should now get | :18:38. | :18:40. | |
involved in investigating what happened in Gaza? I was always | :18:41. | :18:42. | |
frank. In the same frankness, before 2012, we did not consider Palestine | :18:43. | :18:46. | |
a state. Now it should be considered a state. So Palestine had to decide | :18:47. | :18:49. | |
to request an intervention. They are threatening to do that. That is the | :18:50. | :18:52. | |
funny thing. They are using their power to negotiate better with | :18:53. | :18:55. | |
Israel. That is what they're doing today, as they told me ` look, we | :18:56. | :19:00. | |
have one`bullet, enemies. When you have one`bullet enemies, you shoot. | :19:01. | :19:06. | |
That is what you are doing. That is showing how they work. We are short | :19:07. | :19:14. | |
of time. Let us be very simple. Do you right now, given the new | :19:15. | :19:17. | |
conditions, believe that the ICC should undertake an investigation in | :19:18. | :19:20. | |
Gaza of what happened in 2008 and 2009, but more particularly what has | :19:21. | :19:23. | |
just happened in the most recent military confrontation. Palestine | :19:24. | :19:28. | |
have to request it. If they do ` I have spoken to Palestinian leaders | :19:29. | :19:31. | |
on this programme who have said they are going to formally request it. If | :19:32. | :19:37. | |
they request it, should the ICC respond with an investigation? | :19:38. | :19:45. | |
What's happening is, now they are a state. And the next step is, if they | :19:46. | :19:49. | |
are a state, and they accept jurisdiction of the court, the | :19:50. | :19:51. | |
prosecutor normally will open an investigation to decide she should | :19:52. | :19:54. | |
open or not a case. That would be the process. It is a legal process. | :19:55. | :19:58. | |
And I am sure they would follow the process. All right. What we have | :19:59. | :20:05. | |
seen in the last couple of weeks is the collapse of the case against | :20:06. | :20:08. | |
Uhuru Kenyatta of Kenya, a case which you built over years. It does | :20:09. | :20:12. | |
suggest that you made some fundamental mistakes when you | :20:13. | :20:14. | |
approached that case, and you believed, presumably, that an | :20:15. | :20:17. | |
individual who had become a head of state could still effectively be | :20:18. | :20:27. | |
prosecuted. It turns out that was a misjudgement. I am sorry, that is | :20:28. | :20:30. | |
the law. The law says there's no immunity for head of state. But when | :20:31. | :20:41. | |
I prosecuted, they were not members ` they were not president. But | :20:42. | :20:48. | |
Bashir was a president. And the law is clear, it said there was no | :20:49. | :20:51. | |
immunity for a head of state. Of course the law says that, but what I | :20:52. | :20:56. | |
am saying to you is if you go after these individuals when they are | :20:57. | :20:58. | |
heads of state, it is no surprise when the state machinery refuses to | :20:59. | :21:01. | |
co`operate, and as your successor has now found, that makes a | :21:02. | :21:04. | |
successful prosecution impossible, and it ends up looking ` leaving the | :21:05. | :21:07. | |
ICC looking as though it is toothless and powerless, and | :21:08. | :21:09. | |
actually undermines the credibility of the ICC. I'm sorry. The efforts | :21:10. | :21:16. | |
that they are making to avoid the ICC, is showing the power of the | :21:17. | :21:24. | |
ICC. In Kenya, first, contribution to official crimes. Everyone was | :21:25. | :21:26. | |
worried about the 2012, 2013 elections in Kenya. Everyone was | :21:27. | :21:38. | |
worried there would be new violence. This time there was no violence. Not | :21:39. | :21:45. | |
zero, but a low level of violence. The interesting thing is, because we | :21:46. | :21:48. | |
prosecuted the leaders of the two different groups killing each other, | :21:49. | :21:51. | |
and they make an agreement. And they presented as a ticket. No`one else | :21:52. | :22:04. | |
was talking about the violence. So they won. So the ICC could not be | :22:05. | :22:08. | |
alone. You need also the parliamentarians supporting the law, | :22:09. | :22:17. | |
and the people supporting the law. In Kenya they made a decision. They | :22:18. | :22:20. | |
wanted candidates to present the ideas of Kenyatta and Ruto, they | :22:21. | :22:23. | |
won. We are almost out of time, I confess that during this | :22:24. | :22:26. | |
conversation you have continued to tell me that you believe the ICC is | :22:27. | :22:30. | |
effective, and is proving to be a very real deterrent. I would say the | :22:31. | :22:33. | |
state of the world today, and the fact that the ICC has only delivered | :22:34. | :22:36. | |
two convictions over 12 years, suggests quite the contrary ` that | :22:37. | :22:39. | |
all of the optimism that we saw a decade ago about transnational | :22:40. | :22:42. | |
justice has been deeply disappointed by the unfolding reality. That is a | :22:43. | :22:45. | |
problem, because if you believe in the values of respecting the court, | :22:46. | :22:48. | |
and law, you keep promoting the idea, but we need states joining the | :22:49. | :22:51. | |
court. States have two strategies, we have to understand, with Islamic | :22:52. | :22:54. | |
State, and Islamic State probably committing genocide. But we need the | :22:55. | :23:08. | |
law. We need both, within the combined special forces and the law. | :23:09. | :23:19. | |
We need legitimacy. The law makes a difference between a terrorist and a | :23:20. | :23:28. | |
soldier. The law makes a difference between a criminal and the police. | :23:29. | :23:31. | |
That is what we need to export to the world. And we're in the process, | :23:32. | :23:36. | |
full of contradictions and setbacks, but we are moving ahead. And in a | :23:37. | :23:40. | |
word, the fact the US, China, and Russia ` none of them have ratified | :23:41. | :23:43. | |
the treaty which governs the ICC, does that not undermine the | :23:44. | :23:46. | |
credibility of the ICC? On the contrary, it shows the law is to | :23:47. | :23:49. | |
protect weak people, or weak countries. The biggest countries, | :23:50. | :23:52. | |
countries with big armies ` they a new law, they just shoot you. So we | :23:53. | :24:00. | |
defend candidates who suffer crimes, like in Europe, South America, and | :24:01. | :24:06. | |
in Africa, small countries. Costa Rica is our champion. We have to end | :24:07. | :24:09. | |
there. Thank you for being on HARDtalk. | :24:10. | :24:44. | |
We have heard disrupt the storms through Friday. `` disrupt it. There | :24:45. | :24:50. | |
is still | :24:51. | :24:51. |