Luis Moreno-Ocampo - Chief Prosecutor, ICC (2003 - 2012) HARDtalk

Now on BBC News, it's time for HARDtalk.

Welcome to HARDtalk. 12 years ago, the International Criminal Court was

set up to be the scourge of war criminals and mass killers

everywhere. There would be no impunity for the worst of crimes.

How does the court's record stack up against that grand ambition? All of

its cases have come from Africa thus far. Two convictions have been

handed down from the Hague. My guest, Luis Moreno`Ocampo, was the

ICC chief prosecutor for a decade. Why has the court failed to deliver

on its promise? Luis Moreno`Ocampo in Washington,

welcome to HARDtalk. Thank you very much. Perfect time to talk to you.

We live in desperate times. The world is full of violence and

turmoil involving state actors and nonstate actors too. But the reality

of the International Criminal Court and its failure over 12 years to

deliver justice for the most egregious of crimes is very

disappointing, isn't it? No. I think what is happening today, the old

model, sovereign national state, is cracking and a new model, the 21st

century model, where we live together in this national state but

with supernational organisations, is being born. People like you

your experience cannot see the new model emerging, and that's my

conversation with you, I will try to explain. The goal of the court was

ending impunity to contribute the prevention of future crimes.

Contribution. But the other actors should contribute. The court can do

it well in some cases. In others, the state do nothing

genocide in Darfur. 's The court is a new tool and institution to deal

with problems. Interesting you say part of the point of the court was

to be preventative. To act as a deterrent to future mass killings

and human rights abuses. That hasn't worked. We see so many mass killings

in the world today. Maybe it hasn't worked because people judge the

court on its record. In over 12 years, all we have seen is two

convictions handed down from the Hague. Do you know how many cases I

promise? Zero. It is a big failure. On the day of my swearing in, in

June 2003, I said the best outcome of this court would be no case. No

case means, first, there is no genocide, or if there is one, the

country, the national system will deal with it. Colombia today, you

aren't talking about Colombia, paramilitary, guerillas, organised

crime. They have a peace agreement with the oldest guerrilla in the

them and they are discussing how much time they have to serve in

prison. That is a good case to see. This never went to court. Almost a

decade, you were chief prosecutor until 2012, you lived through

terrible violence in parts of the world and obviously we could look at

Afghanistan and Iraq, we could look at Colombia or we could look at Sri

Lanka. We could look at a host of countries around the world. I come

back to the point and it is echoed by a legal expert at Stanford, David

Davenport, who says that for all of the resources, the billion dollars

and more spent on the ICC, the thousand staff in the Hague, the

docket of actual cases brought before the judges is, in his words,

embarrassingly small. That's a point. There are many professors

with different opinions. That's why I am devoting my time to explain

better, that they can improve their analysis. This court is the synod to

having almost no cases. It is helping countries to take seriously

their obligations. But, Mr Ocampo, that surely is an absurd position to

take. In the future, if you were to act as a deterrent court, that might

be valid. I am talking about what has happened in the world over the

last decade. We have seen civilians suffer in the most terrible ways in

so many countries. We have seen suspects emerge, people appearing on

the face of it to have conducted terrible crimes against civilians,

but your court hasn't touched them. When I started, there were 78

states, members of court. I wasn't a war prosecutor, I was the prosecutor

of these 78 states. When I finished, there were much more, 50% more, 121

member states. That is a huge revolution. Including Tunisia. One

of the few Arab countries as member of the court. I wasn't a war

prosecutor, I was a prosecutor of the countries who accepted the

jurisdiction of the court. I am not the owner of the state, I was the

prosecutor, with a legal mandate. You mention Sri Lanka? I had no

jurisdiction there or in Iraq or Palestine, Israel, in those days. It

is different now. I had no jurisdiction in Zimbabwe. In the US.

It is like blaming a German prosecutor because he isn't making

judgements in Sri Lanka. It isn't a question of blame but of assessing

whether the ICC has come anywhere near fulfilling its original

ambition to end impunity for human rights abuses wherever they might be

in the world. It's obvious you have fallen terribly short. No, I am

sorry. You are missing the point. First, you are blaming me for a

thing the prosecutor cannot do, it would be huge... I am a lawyer. I

can't invent my jurisdiction. I can't prosecute crime because you

believe it's wrong but I have no jurisdiction. That's the first

point. The second and more important point is the importance of courts

aren't just the cases they are dealing with, the shadow of the

court is important. Example, divorce courts make divorces. Many couples

go to lawyers and they use the rules of the court to organise a private

divorce, that is a shadow court. That is what the ICC was doing,

expanding its shadow. If I may interrupt, to many people the shadow

of the court appeared very much to focus on Africa. The Chatham house

report on the workings of the ICC last year said the focus on Africa

in this court, when many powerful states act with impunity elsewhere,

isn't consistent with the universal aspirations of international

criminal law. We have had so many African leaders and representatives

of the African Union say that there was a basic and profound unfairness

in the way in which the court when you were chief prosecutor focused

all of its efforts on Africa. It is very interesting and I think it is a

racist comment. It is based on a basic racist idea. Who's challenging

today that we should do something with ISIS? No`one. They are Arab

people. No`one challenges that they should be controlled. I have to

investigate Bashir for his crimes in Darfur. We listen to President

Bashir and those supporting him and talking about African bias, the bias

is of commentators who are ignoring the African victims. If I may say so

I think you are looking at it from the wrong end of the telescope. It's

not because you wanted justice for crimes committed in Africa that

Africans were worried. They were worried because they saw it as

selective justice because they couldn't see you apply the same

prosecutorial integrity to issues, conflicts and problems beyond

Africa. They wondered why it always comes back to African countries?

Whether Sudan, DRC, Uganda, Kenya, when there were so many other

problems that it seemed the ICC could be looking at but wasn't.

That's interesting. We can agree I should act on the genocide in

Darfur, I should act against Joseph Kony who was abducting children. You

cannot abduct children in Congo. Violence in Kenya was not

acceptable. These were one of my crimes. All of them included

hundreds of thousands of killings, rapes and millions displaced. We

agree on that. The issue is why I didn't go to a different place. Why

I didn't go to Colombia. My first point is that all of my cases are

the most brutal and secondly, no`one was investigating them. To

intervene, I need two conditions, massive atrocities and no state

activity. In Colombia, that was the best example, there were massive

crimes committed, similar to Congo, but the difference is that Colombia

was investigating and is investigating and convicting all of

their leaders. That's why I didn't intervene in Colombia and I did

intervene in the Congo. The issues how to go outside Africa isn't about

the prosecutor, it is about the state failing to act and other

states, including Sri Lanka or the US, joining the court and then the

court has jurisdiction. Weren't you worried that Jean Ping, as head of

the African Union in 2011, said they aren't against the ICC, they are

against Ocampo's justice. Many believed you only had eyes for the

crimes committed in their continent. It wasn't they didn't want to give

those crimes a pass, they wanted to believe it would be non`selective,

the way that you applied the power of the ICC. I just apply the rules.

I am a lawyer. I apply the rules and I win my cases. Applying rules to

powerful people is dangerous. Remember, in your country, the

prosecutors of King Charles I were executed by Charles II. In the US

and Washington, the prosecutor of Nixon was fired. A few years ago, a

judge in Spain, the same who indicted Pinochet and others was

removed because he was investigating corruption. Investigating those in

power is dangerous and complicated. Isn't the brutal truth that maybe

because of the way the ICC works and its relationship with the Security

Council at the UN, it is easier and was easier for you to go after these

cases in Africa than to go after cases in Afghanistan or one could

argue Ukraine, where the interests of the permanent five on the

Security Council meant you would be thwarted and blocked in an attempt

to achieve justice by you. I am sorry. The UN Security Council is a

global legal system created in 1945. Many don't like it and it probably

has lots of mistakes. It's one of the few legal systems we have. ICC

was created 53 years later. It's different, completely. Both work

together. I understand that. In this interview, I don't seek to apportion

blame. I want an honest assessment of how effective or otherwise the

ICC can be. Now that you aren't the chief prosecutor, maybe you are free

to be frank with me and say that, yes, geopolitics does interfere with

the way the ICC works and there is something selective about the way

the court in practical terms must work.

I am writing a book on that, so I must reflect on that. For nine years

I was envolved in the 20 biggest world crises. I was a participant in

the decisions, and I saw the other actors, and my feeling is that what

you are missing is, the problem is not the court, the court did its

job. Sometimes the other actors did not. Sometimes the actor would ask

me to do my job, but when I had my indictment, they would ask why I am

indicting this president, we need to do business with him. The problem

is, my challenge was to build an institution. When I arrived in

office, I had two employees, six floors empty. They were waiting for

us. When I left the office, there were 300 employees in seven cities,

analysing crimes committed around the world, so the court is up and

running. Pursuing cases, as I say, only in Africa. Let me just push you

on one particular conflict, and case where you were asked to get involved

and where you refused. There I am thinking of Gaza, of the Palestinian

appeal to the ICC after Israel's Operation Cast Lead, where the

Palestinians made it quite plain that they wanted you to get involved

in an investigation of the conduct of Israel's military operations,

corporations, and you refused. And many authors, including David Bosco,

who wrote a book called Rough Justice, say that you were put under

enormous pressure by the US Government, and the Israeli

Government as well, not to undertake an investigation in Gaza. Is that

true? Palestinians were asking me to do it, pressure is normal. If you

are a prosecutor of the ICC, pressure is normal. But for me, the

only way it to respond to pressure is to respect the law. And that is

what I said, exactly, to the Palestinians when they came into my

office. You know, the Palestinian Authorities came to my office five

days after the first incident at Gaza in 2009. And he explained to me

how difficult it was for him to convince both the Palestinian

Authority, and then the Arab League. Because I was in the middle of the

case prosecuting Bashir. And, I got the support of the Arab world to

come here, and chat to you. I said OK, thank you very much, but I

cannot promise success. I can promise impartiality, and respect

for the law. And talking about the law is complicated, because the law

says you should be a state, and it is not clear that you are a state.

In fact the UN considers you not a state. He was very smart, and told

me fair enough, prosecutor, let us brief to you why you should consider

us a state. And that took place for three years. And in those three

years, everyone was afraid. I made my decision ` thank you for the

briefing, I still consider that in order to accept your situation, you

need to go to the UN, ask to be treated as a state, and come back.

Many legal authorities believe you made the wrong decision.

Nevertheless you made that decision. Things have changed in that the UN

has granted the Palestinians non`member status, so that has been

upgraded. Also Hamas has now officially declared its support, a

national unity government, seeking again to go through the ICC to have

the latest military confrontation in Gaza investigated. So again, in the

spirit of frankness, now that you are no longer chief prosecutor, can

you tell me that you believe, if you do, that the ICC should now get

involved in investigating what happened in Gaza? I was always

frank. In the same frankness, before 2012, we did not consider Palestine

a state. Now it should be considered a state. So Palestine had to decide

to request an intervention. They are threatening to do that. That is the

funny thing. They are using their power to negotiate better with

Israel. That is what they're doing today, as they told me ` look, we

have one`bullet, enemies. When you have one`bullet enemies, you shoot.

That is what you are doing. That is showing how they work. We are short

of time. Let us be very simple. Do you right now, given the new

conditions, believe that the ICC should undertake an investigation in

Gaza of what happened in 2008 and 2009, but more particularly what has

just happened in the most recent military confrontation. Palestine

have to request it. If they do ` I have spoken to Palestinian leaders

on this programme who have said they are going to formally request it. If

they request it, should the ICC respond with an investigation?

What's happening is, now they are a state. And the next step is, if they

are a state, and they accept jurisdiction of the court, the

prosecutor normally will open an investigation to decide she should

open or not a case. That would be the process. It is a legal process.

And I am sure they would follow the process. All right. What we have

seen in the last couple of weeks is the collapse of the case against

Uhuru Kenyatta of Kenya, a case which you built over years. It does

suggest that you made some fundamental mistakes when you

approached that case, and you believed, presumably, that an

individual who had become a head of state could still effectively be

prosecuted. It turns out that was a misjudgement. I am sorry, that is

the law. The law says there's no immunity for head of state. But when

I prosecuted, they were not members ` they were not president. But

Bashir was a president. And the law is clear, it said there was no

immunity for a head of state. Of course the law says that, but what I

am saying to you is if you go after these individuals when they are

heads of state, it is no surprise when the state machinery refuses to

co`operate, and as your successor has now found, that makes a

successful prosecution impossible, and it ends up looking ` leaving the

ICC looking as though it is toothless and powerless, and

actually undermines the credibility of the ICC. I'm sorry. The efforts

that they are making to avoid the ICC, is showing the power of the

ICC. In Kenya, first, contribution to official crimes. Everyone was

worried about the 2012, 2013 elections in Kenya. Everyone was

worried there would be new violence. This time there was no violence. Not

zero, but a low level of violence. The interesting thing is, because we

prosecuted the leaders of the two different groups killing each other,

and they make an agreement. And they presented as a ticket. No`one else

was talking about the violence. So they won. So the ICC could not be

alone. You need also the parliamentarians supporting the law,

and the people supporting the law. In Kenya they made a decision. They

wanted candidates to present the ideas of Kenyatta and Ruto, they

won. We are almost out of time, I confess that during this

conversation you have continued to tell me that you believe the ICC is

effective, and is proving to be a very real deterrent. I would say the

state of the world today, and the fact that the ICC has only delivered

two convictions over 12 years, suggests quite the contrary ` that

all of the optimism that we saw a decade ago about transnational

justice has been deeply disappointed by the unfolding reality. That is a

problem, because if you believe in the values of respecting the court,

and law, you keep promoting the idea, but we need states joining the

court. States have two strategies, we have to understand, with Islamic

State, and Islamic State probably committing genocide. But we need the

law. We need both, within the combined special forces and the law.

We need legitimacy. The law makes a difference between a terrorist and a

soldier. The law makes a difference between a criminal and the police.

That is what we need to export to the world. And we're in the process,

full of contradictions and setbacks, but we are moving ahead. And in a

word, the fact the US, China, and Russia ` none of them have ratified

the treaty which governs the ICC, does that not undermine the

credibility of the ICC? On the contrary, it shows the law is to

protect weak people, or weak countries. The biggest countries,

countries with big armies ` they a new law, they just shoot you. So we

defend candidates who suffer crimes, like in Europe, South America, and

in Africa, small countries. Costa Rica is our champion. We have to end

there. Thank you for being on HARDtalk.

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