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