10.05.11

‘Prosecutor’ Star Makes His Case

International Criminal Court chief prosecutor Luis Moreno-Ocampo is the subject of the documentary Prosecutor, premiering Oct. 9 on the Documentary Channel. He talks to Marlow Stern about going after war criminals Muammar Gaddafi and Sudan’s Omar al-Bashir, and why he can’t intervene in Gaza.

Boasting 118 member states representing approximately 2.4 billion people, the International Criminal Court is a tribunal whose mission is to prosecute individuals for genocide, war crimes, and crimes against humanity. It operates out of The Hague in the Netherlands, and since coming into being in 2002, the ICC, which is governed by the Rome Statute, has opened investigations in seven places: the Democratic Republic of Congo; Uganda; the Central African Republic; Darfur; Kenya; Libya; and Côte d'Ivoire.

The ICC can take action only if the crime took place in a member state or if the United Nations Security Council refers the case. And since 2003, Argentine lawyer Luis Moreno-Ocampo has served as the ICC’s chief prosecutor, overseeing all its cases.

Despite the ICC’s noble premise, many have been critical of the court for its inability to bring criminals to justice—it can’t send forces to apprehend criminals—even though the court has spent nearly $1 billion in member states’ money. Part of the problem, it seems, is that the ICC’s jurisdiction isn’t recognized by the U.N. Security Council’s five permanent members: the United States, the United Kingdom, China, France, and the Russian Federation. The highest-profile cases, however, have been referred to the ICC by the Security Council, including charging Sudanese President Omar al-Bashir with genocide, war crimes, and crimes against humanity in Darfur, and, recently, charging Libyan dictator Muammar Gaddafi and his son Saif al-Islam with war crimes and crimes against humanity for their actions during the ongoing Libyan revolution.

Moreno-Ocampo is the subject of a documentary, Prosecutor, that will premiere on the Documentary Channel on Oct. 7. In an interview with The Daily Beast, he talks about why he charged Bashir and Gaddafi with war crimes, how he can’t intervene in Gaza despite Palestine’s pleas, why he doesn’t need the U.S., and more.

Your job in the documentary is described as “a salesman of social justice.” Do you agree with this description?

I am a prosecutor, and my job is to investigate war crimes. And the money is coming from 118 states with 2.4 billion people, so a prosecutor has to reach the citizens he’s serving. How do you reach 2.4 billion people? With movies. It’s the only way to do it. The meaning of justice is not just for the judges; I need my citizens to understand what we are doing. The Nuremberg trials were very important, but what people really understood was the movie about the trials [Judgment at Nuremberg]. Movies are the way to reach a massive number of people.

How much harder is your job, given that the U.S. doesn’t recognize the ICC?

This International Criminal Court is the creation of small states, so all the big countries who are protected by big armies don’t need the law. It’s the first time that a multilateral institution was created without the big countries, and only the smaller countries. And it’s working.

Does it bother you that the U.S. isn’t involved?

No. It’s normal.

There’s a question posed in the documentary about charging U.S. soldiers with war crimes in Afghanistan, since Afghanistan recognizes the ICC. However, it clearly poses a huge problem, since the U.S. does not.

Any person committing crimes of humanity or crimes of genocide in Afghanistan could be prosecuted by the ICC. The issue is: there should be crimes committed, and there should be no national proceedings. Those are the two limits.

Much of the documentary focuses on Omar al-Bashir and the atrocities in Sudan. It was seen as a very controversial move when you charged him with genocide, crimes against humanity, and war crimes in Darfur back in 2008.

The decision to do justice in Darfur was not introduced by me. It was the Security Council’s decision in March 2005. For me, it took two years to collect the evidence, and we charged first the minister of state for the interior, Ahmed Haroun. We proved his role in the massive campaign surrounding villages in Darfur—shooting, killing, raping, and forcing the displacement of 4 million people. After that, President Bashir said he would not hand over Haroun because he was following his orders. So we kept investigating Haroun and Bashir, and how [Bashir] was giving him instructions, and when I had the evidence I informed the Security Council that I would proceed, and I proceeded. That’s my job. Basically, it’s a matter of time before Bashir faces justice. The problem is that in the meantime, the genocide is ongoing.

Do you wish you had a police force to actually bring these criminals to trial?

No. It would never work. We cannot invade. Look, it’s a matter of evolution. In the 19th century, in this country, the Supreme Court ruled that the state of Georgia passed a law against the Cherokees in this country that was unconstitutional. Then a journalist went to President Andrew Jackson and asked, “How are you going to enforce the Supreme Court’s decision against Georgia?” And the president said, “The Supreme Court decided it, and the Supreme Court will enforce it,” basically ignoring him. That was at the beginning of this country, but now, nobody challenges the Supreme Court. It’s a matter of time. The international criminal court of Yugoslavia has 18 years of activity now. Do you know how many war criminals they’ve indicted? 161. How many remain fugitives? Zero. It took a lot of time, but it’s a matter of time. At the end, they faced justice.

Interpol recently moved Libyan dictator Muammar Gaddafi and his son Saif al-Islam to the top of its "Most Wanted" list, at your request.

Yes, this was at my request. Libya is a case where it’s working very well. Gaddafi, who has a lot of power, suddenly started to kill civilians, and the media showed that. The crimes were committed on Feb. 17, and just days later the Security Council referred the case to the ICC. In Darfur, it took two years to decide to refer the case to the ICC. The world is evolving. After that, I had the mandate to investigate the crimes of Gaddafi, I presented my case three months later, the judge issued a warrant in June, and now Gaddafi is a fugitive. And Saif al-Islam and Muammar Gaddafi should be arrested.

What about Côte d'Ivoire? I read that you’re currently investigating it.

We requested to open an investigation in the Côte d'Ivoire, and we hope that in a few days we’ll get the authorization. But we say that when in December, Charles Blé Goudé was inciting young people to commit crimes, we said publicly this could be a crime, and then they would stop it, but then they started again after. When we say we’re going to do an investigation, we’ll do it.

"Before we clarify if Palestine is a state, we can do nothing."

The Palestinian National Authority has openly recognized the jurisdiction of the ICC and is pleading with the court to investigate war crimes in Gaza, but it’s a very tricky situation.

The problem is the legal issue. The Rome Statute says “a state” can recognize your jurisdiction, but is Palestine a state? OK, that’s an issue that’s now being debated. Before we clarify if Palestine is a state, we can do nothing. I’m a prosecutor; I’m not an activist. I must appreciate the legal limits.

Your term is over in nine months. What do you really wish to accomplish during the rest of your time at the ICC?

We’ll finish two trials, and I hope we can move the Côte d'Ivoire case forward and arrest some of the fugitives. To me, the most important thing is that we build an institution. When I arrived eight years ago, I had two employees, six empty floors, nothing. Now I have 300 people working around the world, and I can pass this institution to the next prosecutor. We’re building an institution to do justice for the worst crimes in the world.

Is it a lonely job?

It’s very difficult and full of problems. I love stress. No, I’m kidding. I’m Argentinian and I’m trained on cows. In Argentina, I was a prosecutor against the military juntas and corruption, and it’s a country in which you have to be firm to establish the law, and in the international world, you have to be firm to establish the law. But you feel it’s very rewarding, knowing that you’re doing something for victims around the world.

What measures would you take to make the ICC more effective?

It has been effective. The power of the ICC is the power and the commitment of the state parties. It’s not just about what the judges are doing. We have to do a good legal job, but the commitment is also in the states enforcing these decisions. There are some problems with Bashir, a head of state, and Joseph Kony [head of Uganda’s Lord’s Resistance Army], who is a militia leader, so it’s complicated to arrest him. We can do better, but it’s working.

What’s next for you after the ICC? Golf?

I have another nine months! Let me finish, and then we’ll talk.