CREDIT: Propeller Films & The Unofficial Man
CREDIT: Propeller Films & The Unofficial Man

"Watchers of the Sky": Film Screening & Conversation with Luis Moreno-Ocampo

Apr 2, 2014

What are the challenges facing the International Criminal Court? How can it be more effective? Former ICC prosecutor Moreno-Ocampo explains.


EDDIE MANDHRY: Good evening, everyone. Welcome to the Carnegie Council. My name is Eddie Mandhry, and I am a member of the Carnegie New Leaders program. We are tremendously honored to be here for this event and to have Luis Moreno-Ocampo here.

We are going to start today's event with a screening of a couple of segments of the film Watchers of the Sky, a film by Edet Belzberg. We are very honored actually to also have the producer of the film, Amelia Green-Dove, here with us.

This film won the Special Jury Award at the Sundance Film Festival. The entire film will be airing at the Human Rights Watch Film Festival in June, and it will also be opening in theaters near you sometime in October. So, hopefully, you will get a chance to see it.

We are going to begin with a couple of segments of the film and then we will get into a conversation. Thank you.

[Film presentation]

Thank you, everyone. Thank you, Amelia, for this wonderful film.

We are honored to have here with us today Mr. Luis Moreno-Ocampo, former chief prosecutor of the International Criminal Court (ICC), a position he held for nine years.

It is a tremendous pleasure to have you here. Welcome to the Carnegie Council.



EDDIE MANDHRY: You were the prosecutor at the Junta trials at a very young age, 32. Pardon the analogy, but it is like winning an Oscar after your first film. [Laughter]

What did it feel like after the close of the trial? Were you thinking to yourself, "What next? How do I top this?"

LUIS MORENO-OCAMPO: Nothing. All my life I was thinking, "The Junta trial was the most important case I have as a lawyer. I cannot have a bigger case as a lawyer than crimes against humanity. There will not be another one in Argentina." So I felt very relieved: "I did my best. I am 32. Whatever I do now is okay. So I will do many different things."

I was very happy in 2002, going to Harvard to be a visiting professor there. I was very happy with that. But then I received a phone call telling me that my name was on a list to be the ICC prosecutor and now my name was at the top. But they did not know if I wanted the job.

I was at a meeting here in New York with the German ambassador. He was looking at the people. I mentioned to my wife, "They will never appoint me." I was very happy at Harvard.

Then they appointed me. So I left everything and I go there.

EDDIE MANDHRY: Coincidentally, next week we are commemorating the 20th anniversary of the Rwandan Genocide, Sunday, April 6. In 1944 Raphael Lemkin coined the word "genocide" and looking back at the last 20 years, if you were to give us a scorecard on how we have done on our collective effort to prevent mass atrocities, what grade would we get?

LUIS MORENO-OCAMPO: What do you think?

I think this movie is very important because it is showing how the world is moving—very slowly, but it is moving—because it is showing the beginning of the idea, at least of having this global law. That's new, in fact.

One of the characters who appears in the movie is Ben Ferencz, who was the prosecutor at Nuremberg—younger than me; he was 26 at Nuremberg. I was 32 at the Junta.

What this shows is that the world is evolving. The base is very low. In 1945, when we prosecuted the Nazi regime at Nuremberg, there was no law, in fact. One of the reasons that in civil law countries they had a problem with Nuremberg was that the law was not established before.

When Rwanda happened, the law was there, but there was no tribunal.

When the genocide by Bashir happened, the law was there and the ICC was there.

The next step is implementation. That is a difficult next step, implementation.

I will always remember what Pascal Lamy said. He was the director of the World Trade Organization. I was mentioning how difficult it is to reach global agreement. Imagine, bridging back to the movie, about how Lemkin was lobbying to convince states to sign this Genocide Convention. It was really remarkable.

Then Lamy said something very interesting. He said, "Look, it is true what you say. It is very difficult to reach agreement on the law; what is impossible is to implement it." He said, "In the World Trade Organization, we agree on free trade, but not in my place, not today, not in my industry." And it is the same with genocide: "We agree we are against genocide, but not today with Bashir, not today that I have oil business here. It is complicated for me."

I think that is the next step, because after the Holocaust we had this idea of "never again." In fact, it has happened again and again and again. I believe that's why the film is important.

So for me one of the reasons I came here, I think, is, one, it is interesting to be in the Carnegie Council: Carnegie was a visionary; he saw this. So there is now going to be a movie about the story.

What they did, they are preparing these little models for schools. So they have an agreement with Facing History and Ourselves and then teachers could use this movie in class.

And then each of you could do something. It's not, "What can I do about genocide?" "It's for Ocampo." No. Each of you could do something now. You can show this film and invite the Facing History people to your school, to the school of your kids. That's your contribution, nothing else. But if we do it massively, people will learn. I think that is what we need now.

We need to understand what happened, and we need people in New York, particularly, thinking on these issues, because in this world that we are living in, things matter when the local people are concerned about it. If there are New York people pushing for that, the Security Council—here you have the ambassador of Lebanon, who can explain that—ambassadors in the Security Council will listen.

So I believe what we shall do is take advantage. This movie was seven years in the making. There were seven movies about the ICC. This is the second one. Normally, they film 100, 150 hours. For this film, they have like 800 hours. So it is a huge effort that they made.

It is a beautiful movie. I think it is not just a beautiful movie, it's a tool for us to do something for ourselves.

Lemkin is an incredible character. He said, "I define that my mission in life will be to convince nations from all over the world to pass a law to protect humanity." That was the life mission he adopted for himself. He said, "I took the obstacles that I found in the fulfillment of my mission as a test of my moral strength." He was insane, absolutely. [Laughter] But he did it.

So it's not just people like Lemkin, but I think each of us can do something. I believe this combination to be here in the Carnegie Council with the movie. I think it is a great location to just think on that, how to use this material, how to present it.

Here is a difficult job, because in the schools it will be welcome. In the UN system it's complicated.

EDDIE MANDHRY: A bit more complicated.

LUIS MORENO-OCAMPO: Because the UN people have as their role to make agreements all the time. That's their job.

But they need to meet in the morning about genocide, in the afternoon about the budget, the next day they are appointing someone. So they have completely different tasks each week. So it is difficult for them to engage substantially. That's why it is complicated. That is why there is a friction between the prosecutor's office and the diplomatic people.

They don't like improvisation. So I learned that you could go there to meet them before the meeting and explain what you will say, and then we discuss, and then the meeting adjourns.

For me this shock between the diplomatic and the prosecutor was—I was meeting with one of the ambassadors when I was leaving. He's a very nice guy. He said, "Okay, Luis, I will see you tomorrow, but please next time be more professional." I said, "What?" He said, "Yes, because sometimes you are not professional. You are emotional. You are very emotional sometimes."

I said, "Can you explain to me when am I emotional?"

"When you talk about this girl who was raped, all these things, it is not professional. It is not for us." They like to keep distance, they like not to be so much involved, because they have to manage complicated things. They have mandates, they have the capital telling them what to say. So if they are desperate, it's like a different world.

So if he can find a way to use this material to discuss with them—we can prepare like a little case study—what to do in a case like Darfur, because the real issue is now we have the law, because the question was—I am answering your question now—the question was how do we rate on a scorecard.

Because of Lemkin we have the law. Now we have the court. Now the next thing is implementation.

Yes, the most difficult case is when the head of the state is indicted. You cannot imagine the police will arrest him.

I remember an ambassador telling me, "Look, Mr. Prosecutor, when you were in Argentina, we visited the generals and tried to convince them not to kill so many. But now you are asking us to go to the country and tell them to go to jail. It's more difficult."

A French minister, I remember—she was lovely—told me, "You ruined my two days in Sudan. In my first meeting, I talked about arresting the Minister Harun, and it was a disaster."

So I think we need to find a solution for that, because it is not about the moral thing; it's about how we can transform this into operations. That is for me what we need to do.

But in the meantime, teaching our kids is the part we can do. For me I will be delighted if at the end of this meeting to have some ideas of how we can do that.

EDDIE MANDHRY: Right. You do raise some very important points about individual responsibilities and the imperative to try and do something collectively, rather than leaving it to the ICC prosecutors—

LUIS MORENO-OCAMPO: You know what? That's what you need. You need an institution dealing with the problem. You cannot be judge of all the problems in the world. So in one way I understand, you have your own life to live.

But this is a crucial issue, because we are living in a new world where issues are connected, and if we allow leaders to committ massacres against their own people, the world will be in the hands of these people in five years. Organized crime will control the world.

So it is not something with reason. It is self-defense. So I believe we need to do more. People have the power now. That is a problem today. People have a lot of power. Political leaders are checking all the time what people think. That's why, if we include in the thinking that we have to do something on genocide, something will happen. I don't see any other solution.

EDDIE MANDHRY: A lot of the cases at the ICC are focusing on issues in Africa, atrocities or crimes committed in Africa. The ICC was created with a lot of support from African countries. African countries constitute the biggest bloc of countries that are parties to the Rome Statute. After you left the ICC, we have a new prosecutor who was your deputy for a few years and is from Gambia, Fatou Bensouda, doing a remarkable job there. But at the same time, there is still this perception that the ICC has a bias against Africa.


EDDIE MANDHRY: We look at our papers in Kenya, we look at the blogs, the Twittersphere.

But that's not to say that Kenyans were not supportive. I remember one time driving through Nairobi. I was driving by a bustling bar and restaurant. But what struck me was that the name was Ocampo's Bar and Restaurant. [Laughter] And it was bustling, it was really busy. People were having a good time.

So it's not to say that there wasn't a moment where the ICC was something everyone was rallying behind in Kenya. People were saying, "Don't be vague, go to the Hague."

But I'm just wondering, on the issue of perception around the world—

LUIS MORENO-OCAMPO: Again, that's a problem. It's an issue of leadership. You know who started the bias thing? It was Bashir. When we indicted Bashir, he started a campaign.

I remember the first meeting with the chairperson of the African Union and Ban Ki-moon, Ban Ki-moon told him, "Look, it's not about African bias; it's about genocide."

But the problem is six years later no one is talking about the genocide in Darfur. Each journalist that interviews me talks about the African bias. So it is incredibly good for Bashir because no one is talking about genocide. Why should I explain that it is good to prosecute Bashir for genocide? I have no excuses for that. It was moral, it was right.

The problem is you have this colonial past in Africa. It's funny, because Bashir's people were killing people and saying, "You are black," and he pretends that indicting him is a colonial move.

And the problem is the journalists follow him, and you ask me about that, not about genocide. You don't ask me about genocide. Your question is about the African bias. It's interesting, because something is wrong here. It was not the prosecutor.

So can you explain to me why you are asking about the African bias?

EDDIE MANDHRY: Yes. I've wondered about the same thing. I think it's an important question.

LUIS MORENO-OCAMPO: But it's funny, because it is such a naiveté.

Look, let me present one story. President Kikwete of Tanzania, he was desperate about what happened in Kenya because he said, "Look, you will open a case in Kenya because, if not, in the next election Kenya will collapse. If Kenya collapses, Tanzania collapses, because there will be 1 million refugees from Kenya in Tanzania and the economy will collapse. So please do something."

We had to do something in any case. So we did the case. Everything was okay, until the moment I presented the names. "It's not about the prosecution, it's about my friends that cannot be prosecuted. That's the point." So when I indicted Mr. Kenyatta, who was the deputy prime minister, it was a big deal.

So President Kibaki went to the African Union requesting support. I talked to Kofi Annan, who was managing the Kenyan mediation, and I said, "Look, Kofi, can you talk to President Kikwete from Tanzania?"

He said, "I did, Luis, and he supports it. Don't worry."

"Okay, great, that's what we need, the president supporting us."

Then, the next day, President Kibaki talked and after him the minister of foreign affairs of Tanzania. "How can the president support Kenya? The ICC is incredibly bad, blah, blah."

I was furious. So I called. I said, "What happened there?"

"Don't worry about this. It's just words. We love you."

You know what? He explained to me the following: "Look, in the African Union there are at least 10 African leaders who are afraid of you. It's very good. They have to be afraid so they don't stop it because they are Kenyan people. But because they have 10, they are so worried that the beginning of the African news is always about you. If we say no or try to defend you, it's a mess, we lose the entire meeting. So we say yes, we criticize you, and we move."

But in fact, there are still new African countries joining the ICC. Each time they say, "Oh, everyone will withdraw from the ICC." No one withdrew.

So is it stupidity on our side? People had this question. The ambassadors who are worried about this African thing—it is stupidity, it is not the case. ICC knows exactly what they should do, and we are very happy that in Africa there are some people worried about that, because helping Africa to move—in fact, Kenyatta is financing our case in Kenya. Mr. Kenyatta was leading the people who were killing the Mr. Ruto people, and Mr. Ruto was leading the people who were killing the Kenyatta people.

But then they met in the ICC, they made an alliance, and they presented as a peace agreement—

EDDIE MANDHRY: The Unity Peace Government.

LUIS MORENO-OCAMPO: Yes, and they offered peace, and no one had to talk about the issue, so they won the election, so we created a ticket. It's okay. That happens in other countries too.

But that's why we have to understand that the ICC is not just about doing cases. It is the law, and the law says there was no violence in 2013, it was a peaceful election. That was the good outcome of this.

What can we do to avoid this question?

EDDIE MANDHRY: You are tired of answering this question.

LUIS MORENO-OCAMPO: Yes. But nothing changed, that's the point.

EDDIE MANDHRY: Nothing has changed, yes.

LUIS MORENO-OCAMPO: So what would you do?

EDDIE MANDHRY: We are going to try and do what we can, but we need to think about it first.

LUIS MORENO-OCAMPO: I mean before. You have to do a campaign, I guess.

EDDIE MANDHRY: A campaign.

LUIS MORENO-OCAMPO: Yes. We need a campaign against each journalist asking the stupid question. We should attack it.

There's also another issue. You have to distinguish between the words and the facts. I went to Uganda.

EDDIE MANDHRY: You just came back from there.

LUIS MORENO-OCAMPO: Yes, on Tuesday. I was in northern Uganda with the victims. The only thing that makes me feel we did our job is when I go to the places, the victims always ask. We work for the victims and the victims recognize that. I went to Uganda. The victims were requesting justice.

I went to Barlonyo Camp. Barlonyo Camp is a camp in northern Uganda. Joseph Kony attacked it. We have records. The reason Joseph Kony attacked Barlonyo was because he was planning to organize a peace deal, because he used the peace deal to get money. But in order to have leverage, he decided to win the media first. But to be in the BBC—and that's the record we have—he said, "We need to kill more than 200 to be in the BBC." So he went to Barlonyo and he killed 301.

I went there. I was talking to some of the people there. They said, "Look, we understand your disappointment, but we don't understand why you would be here when the army here did not protect us. And we don't like the person who came. He put this plaque, but the plaque says 178 died. In fact, 301 died. So why are they ignoring 123?" This is the basic question they have.

So if we use this movie or—I offered to be their lawyer, to define exactly how many people died here. I called the minister at home and said, "Can you come and change the plaque? That means you have no problem?"

So some of the solutions are not requiring to go arrest Bashir. Some of the solutions require just to be a little concerned about the people, listen, and communicate. It helps. That is why we need to do more than just think of convictions.

EDDIE MANDHRY: To the question of Joseph Kony and Uganda, this week the U.S. government announced they are sending more military hardware into the Central African Republic in pursuit, to capture Joseph Kony. We have a situation where you have arrest warrants and some people say the warrants are toothless. Is there, do you think in your estimation, a need for military capabilities to enforce some of these arrest warrants?

LUIS MORENO-OCAMPO: But it's happening. In fact, the American troops are using drones, special drones, in the bush. You know what the Lord's Resistance Army (LRA) calls the drones? They call them "Obamas."

Look, I think this example of Joseph Kony is a perfect example of how people can do something. This Invisible Children group who was pushing for Joseph Kony, they are not Lemkin, but there are three guys, 21 and 19, that went to northern Uganda. They saw the conflict. They started to film it. They met with a guy of their age, Jacob, who was crying.

They said, "What's happening?"

"I was abducted and I lost my family. I have no future. I cannot be educated."

They said, "We will help you."

They were thinking six months. They were thinking they would come back to the United States, show their movies, everything would change, and Jacob would be safe.

Of course they came back. No one cared about their movies and nothing happened.

So they decided to organize well to show their movies and raise money with their movies. They send roadies, they send kids to the schools, show their movies, invite volunteers, collect money, build schools, help Jacob to go to school. Jacob now is finishing his second year of law school.

Invisible Children keep filming. Then, when we issue a warrant against Joseph Kony, we have an agreement with Sudan to arrest Kony. Then Joseph Kony left Sudan. That stopped the crimes in Uganda.

But Joseph Kony requests Juba talks to stop the procedure. This Invisible Children group was thinking, "Okay, we'll do a film about the Juba talk. So we need to film Ocampo, who is the stupid guy blocking the exit, to show the stupid guy and the Juba talk."

They came to me. I told them, "Look, that is a disaster, because Kony did this four times. Kony is weak. He calls for peace agreements, receives money, and then refuses to stop."

One year later they saw Ocampo was right, and they decided we need to arrest Kony. Again, they went to Washington to see if they could arrest Kony. And they laughed. So they decided to organize a campaign to pass a law in the U.S. Congress to arrest Joseph Kony. The law passed and Obama signed it. As a consequence of that, Obama said, "Do something."

But they saw that is not enough. So these Invisible Children kids went to the closing of the first trial of Lubanga. They saw that no one knew Lubanga. That's why it's not a big thing. They turned Joseph Kony into the most talked-about criminal in the world, and they did a video, Kony 2012, that became the most viral video in the world, 120 million viewers in six days. Lady Gaga took 18 days to reach that—yes, it is amazing. They defeated Lady Gaga. Now Obama is really, really pushing.

So I don't need police; I need Invisible Children. I need people. It's not me. The institution needs people, they don't need police, What we need is to go beyond the questions, understanding institutions, not just bureaucrats or people around supporting. That is what we need to build.

That is where Carnegie can help.

EDDIE MANDHRY: In Syria we have a situation where massive crimes are being committed and not much is being done. President Obama drew a red line, and the line was crossed. We also have a situation where Obama today is in Saudi Arabia. He is meeting with the king of Saudi Arabia. They are trying to figure out if there is a way that the United States can support militarily the opposition in Syria.

In your estimation, there are countries in this world that have a lot of power—the Russians. You have gone on record saying that the Russians are not against justice. And China has a lot of influence on the Security Council. What role can they play in the pursuit of justice in the international system—China, Russia?

LUIS MORENO-OCAMPO: We have to understand that the world is not just one country. There are many countries. For instance, if you think of Crimea now, you read the official website of the Russians, the purpose of human rights is to protect Russian people. So for them the people in Crimea are Russians, because they are Russian. They are Russian because, even if they are born in that place, they are Russians, because Russia is not where you are born, it is who is your family.

So you have to understand the others and play with them. That I think is something we can do. I do not think bombing is a good idea.

Also, for instance, the red line you mentioned. It's a consensus crimes against humanity; it's a consensus. Using chemical weapons are just to protect—what is the meaning? The allegations are the government has killed almost 100,000 people, 2,000 of them with chemical weapons. So a red line on chemical weapons, it is not a good red line, because then Assad could say, "Okay, I'm stopping, I'm a good guy, I'm stopping the use of chemical weapons. I will just kill them with bullets." "Oh, okay, [claps hands], very good."

That is why the idea of the law that Lemkin is trying to impose is so important. There is a convention against genocide signed by Russia and China, and the United States, which was difficult because the United States has nice values but doesn't like conventions.

So we have to understand the world. You cannot be just one. We have to understand everyone—that's where the Council could play a role—and we have to be smarter about how to play the game, just to be more precise on Syria.

When you read the history of this country, you see how Lincoln, for instance, used the law to make policy. Lincoln adopted a Lieber Code with a military code in order to allow him to receive the black slaves from the South and release them, because in accordance with the American law, if the army of Lincoln received black slaves, they cannot release them because American law said they are still slaves. So Lincoln adopted this Lieber Code, a military code, that includes some pieces saying "according to international law, these people are not slaves anymore." It changed completely, because of course it created a lot of tension in the South, because the slaves start to rebel, and Lincoln had a big army of black people. So he's a smart guy using the law to achieve his goals.

That's what we need now. It's not about "be tough," it's about "be smart," because the law is the idea to use others.

So how to use the law in a smart way in Syria today? The Security Council could meet, and everyone here has to know that in six months the ICC will have jurisdiction. So whoever commits crimes in six months could be indicted by the ICC. To be sure the message is clear, we are asking all the states to prepare military plans to implement that requirement. So it will not just be a court decision; it will be enforcement.

Now we are sending Brahimi or someone to negotiate. But it is a different negotiation because they have real strength. Then the incentives are that if you stop committing crimes, then you are not indicted. That is the way to use the law. That's why he can have a role, to start to combine the idea of political negotiation with more understanding of how the law could help. That is what I think we are missing.


QUESTION: Good evening. I have two questions for you. First, thank you for coming and being quite candid. You are clearly very passionate.

The first is: What would you have done differently as prosecutor for the time that you served?

The second question is: When you talk about people, I appreciate what you say about how even the term "genocide" took a long time, the law took a long time. Getting people on board will take a long time because that's how things go. But you have to bring people along with you.

Just to go back to the Kenya example, simply because it is in front of us and I myself am Kenyan, it was quite stark how things changed. So I'd be curious to sort of go away from the whole conversation about targeting of African nations and all of that, or people, but more about how the Court can try and keep people along with it. Clearly, there was an appetite for it and there was support. But what could have gone differently there, I think is my question.

LUIS MORENO-OCAMPO: We need good Kenyan leaders competing for the elections. That was what I was expecting. Look, we were sure the Kenyans knew about what was happening in Kenya before the elections. So I ran to have my confirmationl charges. The case was confirmed before the elections.

And then it's about the Kenyan leader saying, "I stand here. I am against this guy. I cannot compete to be president of Kenya. So I need a Kenyan leader."

No Kenyan leader talked about the possibility of violence during the elections, except Kenyetta and Ruto. That's the point.

So my point is it is not about the Court; it is about the other actors, how we can help our teachers to teach about Lemkin, how he can make it into a film, how Kenyans can have candidates who fight politically. That's what was missing. So it's not just about prosecutors.

When I was there in Argentina, before that, there were NGOs claiming there was injustice. People voted. Fifty-two percent of the votes were for the political leader who proposed new trials. That's why we had trials. So it was not just the prosecutor and judges. It was a social movement, people voting, and then the leaders being leaders. Without that, don't ask the ICC for miracles.

QUESTIONER: How about my first question—what would you have done differently as prosecutor for the time that you served?

LUIS-MORENO OCAMPO: It's not the focus of ICC. ICC did its job. ICC did the cases they had to do. I don't see the failure in ICC. I see the failures outside of ICC. That's a major point.

Our achievement was when I took office there were six empty floors. The UN was lobbying against the ICC. My friends told me, "Don't take the job. It will disappear." So that was the scenario 10 years ago.

Now the ICC has grown so much that people ask, "Why are you here?" All the criticism is because the ICC exists and is making noise, and that's what it should do. A court dealing with genocide and crimes against humanity in the world today not making noise is not working.

The court is an up-and-running institution. That's amazing. In 10 years we established an institution. The problem is the rest.

The world is not ready to really do something on genocide. In Rwanda, we did nothing basically. We abandoned the Rwandans. In Darfur ,we are not talking about Darfur; we are talking about the African bias. So we are doing nothing, simply. And the Court is doing its job.

QUESTION: I'm Cornelia Steiner. I first want to say I'm really happy that you're so overly emotional, because that gives me a lot of hope for my own career, since I'm being accused regularly of being absolutely ridiculous in how I handle myself.

Today I just have a very boring question, but I think an important question. Are there any interesting developments regarding the prospects that maybe the United States of America will ratify the ICC statute now under the second term of the Obama administration? And, if not, in your view what can be done so that the United States will eventually ratify and actually become a part of the ICC?

LUIS MORENO-OCAMPO: This country for historical reasons is against it. This country was founded by people who distrusted their own government. That's the basics. So how can they trust an international organization? It's impossible. So these 30 rules are against accepting a super-national organization. So forget it.

The issue is not about the United States joining us. The issue is the United States being smarter in how it plays with us.

Sometimes they do it. In the case of Joseph Kony they do it very well. So it depends on the cases.

What the United States can do is reform this law that you cannot cooperate with the ICC. The law says the United States cannot cooperate with the ICC.

QUESTIONER: I have a follow-up question, because there are numerous organizations in the United States—one is based here in New York, which is the American Non-Governmental Organizations Coalition for the ICC. So what do you tell those people?

LUIS MORENO-OCAMPO: Be smarter. We have to be smart. Lemkin was very smart not just in insisting, he was smart how he did it. He went to the small states. He moved around. The United States used to lead but in this case cannot lead.

The United States will not be a member of the ICC for the next 40 years. What has happened is in 40 years the scenario will be that everyone will be part of the ICC except the United States and China. Then it's okay. They have no way to go, so they should join probably. But it will take 40 years.

In some way the United States is doing that.

When you talk about the ICC, when I started, I remember I talked to my expert on international relations. I said, "Look, the best-case scenario will be if we receive a case from the Security Council."

He said to me, "Luis, you have no idea. You have nine years' tenure. There will be nothing that the Council refers in your nine years. Forget it."

He was right. I was wrong. But two years later, Bush abstained and the Darfur case came, and after 9/11, the Libya referral was by consensus. That was for me the peak in terms of building the institution, when the ambassador was there.

So it is not about joining ICC. It is about playing smarter.

QUESTION: Alex Woodson from the Carnegie Council.

You talked a lot about Joseph Kony and the situation in Uganda. Are there any other situations and conflicts in the world right now that you find yourself thinking about more than others?

LUIS MORENO-OCAMPO: No. I am an expert on massive atrocities.

I have a friend of mine who came back from Israel. I asked him, "What do you think about Israel?"

"Oh, it has beautiful browns." He's a painter. He went to Israel and saw brown, the color brown.

I go to Israel, I see the Intifada and Palestine and conflict.

So I know conflicts. The world has conflict.

Colombia is the most interesting thing now. In Colombia they are trying to fix some of the problems in a funny way. That for me is interesting. In Colombia we never had a case, but we're building friendship. That is a new concept we have to understand. It's not about cases in court; it is about using the law.

I don't know if you have visited Berlin. In Berlin you go to the subway, and there is no barrier. You just go and can go to the train. But everyone pays for a ticket. I have a German guy and a French lady working in my office in Brussels. They were late to a meeting, so they were running to the subway. The train was coming. At the gate, "Go."

"No, we cannot take it."

"Why not?"

"The ticket office is closed."

So the French lady said, "Come on, we pay later."

But that is the law. The law is not for judges. The law is for people. That's what we need to understand and keep moving. It is not just about putting Bashir in jail. It is about protecting the people and doing something smart with that. That's what it is about.

So my question is: What can Carnegie do for the movie?

EDDIE MANDHRY: I work with an educational institution, NYU. That's where I actually work. So I don't work with the Council, but I am part of the New Leaders program. We bring in people like yourself to give us insight into some of the contemporary challenges we are dealing with.

I take your point not lightly at all, the fact that we have to be involved in trying to understand how we can influence the implementation of some of these laws that can transform our own societies, in Kenya or wherever else we come from.

I'm from Kenya. I think the International Criminal Court is an important institution. There are a lot of people who hold that view, and there are others who have a contrary view.

But I think there is an imperative for the leaders—like you said, leadership—in trying to mobilize popular support for these institutions and maintaining that support, with an understanding of why justice is important, why the noncommittal of mass atrocities is important.

LUIS MORENO-OCAMPO: Yes. But in fact, one impact in Kenya is no one now is committing atrocities. I feel bad for the victims, because the victims are still people displaced in Kenya. That is for me the priority. Those should be the big themes, and we should talk to that. Education is not just about what the Court is doing; it is about the big themes.

QUESTION: Andrew Thomson from Columbia Law School.

As I take it—I have a limited understanding of the endeavors of Lemkin—but he was concerned with preventing as much as anything. So when we talk about criminal accountability, international criminal accountability, what about there's a scenario where there is a conflict, and it's raging, and it is clear that someone, a leader, is probably liable or has committed the types of crimes that would qualify as an international criminal. My question is: Is there any room for having a waiver, if you will, of immunity, or shall I say some kind of a waiver from accountability, if that could mean that you could obtain a truce to a conflict?

LUIS MORENO-OCAMPO: The Security Council can always suspend any litigation. The Security Council is in charge of peace. So the institution in charge of peace is the Security Council. Recognizing that, the Rome Statute provides them with the power to suspend any litigations. So they can do that.

But the problem is I think it is such a new thing to have the law. People and diplomats are not used to the law.

When I indicted Mr. Haroun of Sudan, I remember a conversation with an ambassador in New York, telling him: "Look, Ambassador, you lobby now and the Security Council puts pressure on President Bashir to arrest Haroun, you really stop the crimes in Darfur, because if Haroun, who was the leader on the ground, is in jail, no one will do it."

The ambassador told me, "That's a great idea, but we cannot do it."

"Why not?"

"Because we don't know how to do that." He said, "We have two strategies: bombing or nothing."

In those days I was thinking it was a joke. It's not a joke. That is the reality. But that is why we are so slow in learning about each other.

Robert Jackson, the prosecutor at Nuremberg, he said that. He said, "Establishing individual responsibility is a way to overcome the impossible relations with states. We cannot stop a state. With the states, we are between impotence and war."

It's exactly right. He said individual responsibility will be a way to change that. That is why he seemed to be against this idea of peace and justice. Individual responsibility is the way to change this behavior. But we need to understand how to do it. We need to be like Lincoln, using the law to foresee goals. That is what lawyers have to also help international relations people to understand how to play. That is my advice.

QUESTIONER: My follow-up question would be: In a case where the prosecutor under the proprio motu ("on one's own initiatve") provisions makes a decision as to whether or not to begin the indictment process, is there a big role for thinking about how is this going to make the conflict or the situation better or worse?

LUIS MORENO-OCAMPO: That was a discussion we had with Joseph Kony. When we indicted Joseph Kony, everyone was saying, "You are ruining the peace," and all these stories. So we presented our policy paper saying, "We are not in charge of peace. The law says we are in charge of justice, justice is our business."

Basically we have to be firm. Then they can negotiate. You always can offer asylums There is always a political solution. But the law should be the law. That for me was always the line of the prosecutor. That's why I prefer the criticism that we were tough or we were blocking that over saying, "Oh, they are just political." They say both in fact.

But in any case, our vision was we build a judicial institution who is taking care about the crimes. If the law says it is a crime, we just say that, and that's it. But it's such a new thing, justice in the Roman scenario, that people managing international relations are not integrating well.

Columbia should probably help.

EDDIE MANDHRY: In the interest of time, we have to end here. We'd like to thank you for a really interesting and provocative conversation, emotional at the same time as well. With Columbia, NYU, I think you have managed to rally a few people to your cause. So thank you very much for joining us.

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CREDIT: <a href="">Jared Cuffe</a> (<a href="">CC</a>)

JUN 26, 2012 Article

Dealing with "Enablers" in Mass Atrocities: A New Human Rights Concept Takes Shape

Because mass atrocities are organized crimes, crippling the means to organize and sustain them--money, communications networks, and other resources--can disrupt their execution, writes George Lopez.

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