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Luis Moreno-Ocampo: the world’s prosecutor - May-26-12
Source: The Times - Law
The controversial lawyer pursuing warlords and dictators at the International Criminal Court is about to step down – having secured just one conviction in a decade. But have his critics missed the point?
In a couple of weeks, Luis Moreno-Ocampo, 59, will put on a black robe and walk from his office to a courtroom in The Hague to demand the maximum sentence for a man he says has committed a crime as terrible as genocide: turning children into murderers. Witnesses flown to the Netherlands from Africa for the trial of Thomas Lubanga will watch from behind bulletproof glass as Moreno-Ocampo describes how the Congolese warlord trained child soldiers to beat, rape and kill, and how in the process he destroyed their lives.
To have got this far in the Lubanga trial is an achievement. On day one of the prosecution, a witness was so terrified by the sight of the defendant sitting opposite him in the dock that he recanted his entire testimony. It was reported as a humiliating setback, but that is not how Moreno-Ocampo remembers it. “You have to keep cool,” he says. “Come on. Everything happens all the time.”
In the big, white headquarters of the International Criminal Court, about five miles from where Holland slips into the sea, Moreno-Ocampo is top dog: chief prosecutor, the man who picks the villains. Unlike any other lawyer in history, he can pick them from almost anywhere. Since the end of the Cold War, the atrocity-mongers of Rwanda, Sierra Leone and the former Yugoslavia have been pursued by one-off international tribunals set up in response to UN Security Council resolutions and supported by UN member states. The ICC is different. Though also backed by the UN, it was founded by treaty and is funded only by the 121 countries that have signed it – including most of Europe, but not the US, Russia, India or China. It is the only permanent criminal court with international reach enforcing international law. The world, in short, is Moreno-Ocampo’s crime scene. He is about to leave his post after nine years of unending controversy, but that controversy means that long after he dies he will be associated with the brave dream of bringing the rule of law to places that have scarcely heard of it.
When asked if he knew the job would make him the de facto face of international justice, he replies: “Yeah. I knew. Of course… It’s normal, because the media is about good guys and bad guys. [And] because the bad guys are so bad in my court, I will always be the good guy.”
He is rugged, bearded, slightly paunchy. He talks fast, with a slight lisp and a strong accent from his native Argentina. Admirers do tend to think of him as a hero because, in addition to fighting evil the world over, he looks like a well-aged George Clooney and wears white suits on field trips to Africa. In person he is charm itself. But the “always the good guy” claim is best taken as ironic, even if it isn’t meant as such.
The Lubanga sentencing will be the first in the life of the court, and will take place on Moreno-Ocampo’s last day in office. In nine years he has secured just one conviction. For some who hoped the ICC would be the triumphant expression of a universal yearning for justice, his tenure has been a grievous disappointment. Others say he has made the court real and relevant when it could have been little more than a talking shop, but there is no hiding from the criticisms that have been made by former staff and fellow jurists of his style, his strategy and even his personal life.
A case in point is his attempt to prosecute President Omar al-Bashir of Sudan for genocide in Darfur. Other international lawyers have said Moreno-Ocampo failed to prepare his case with adequate groundwork and blundered by seeking an open arrest warrant for al-Bashir in 2009 when the chances of enforcing it were close to nil. Diplomats have accused him of actively impeding the search for peace by turning al-Bashir into a fugitive whenever he travels outside Sudan.
In person, Moreno-Ocampo manages to sound genial whatever the subject. In the transcript of our conversation, he can seem quite cross. “People who make opinions on my cases, they don’t know my cases,” he says. “They don’t know my evidence. No one knows my evidence, so how can they talk?” On the specific question of why he didn’t interview witnesses on the ground in Darfur, he points out that, unlike others who did, he has to give his witnesses’ names to the defence, and this could endanger their lives. On the diplomats and others trying to stop the killing by negotiation, he says they don’t know the details. “We try to explain to them, but it’s difficult because they don’t have to engage in crimes. They don’t like to know about crimes. They like to engage in peace, not crimes, but then they miss the point. You are not dealing with people who are trying to make peace. You are dealing with people who are trying to exterminate people.”
We are talking in a corner of the ICC’s ground-floor canteen. Bright young things from every country on Earth (by the sound of it) come here to eat and talk about turning their ideals into reality. Some aren’t so young. An ex-judge who’s joined the EU bureaucracy pauses to pay his respects to the prosecutor and say how much he misses the straightforward mission of the ICC. Which is? “To prevent future crime,” Moreno-Ocampo says. The court’s main purpose is to deter, “to end impunity”. As he interprets the ICC’s mandate, retribution for individuals on behalf of their victims and society – a central purpose of national criminal justice systems – is important, but secondary.
Above the canteen there are seven floors of ICC courtrooms and offices. Two floors are for investigators. Two more are for prosecutors. Below them there is an evidence vault and space for translators who between them speak every language of the 121 countries that have signed the court’s founding document, the Rome Statute of 1998. Above them, the chief prosecutor and his immediate team have a floor to themselves. He has a tapering corner office with views towards Rotterdam, and a rented house in the old town.
For nine years, Moreno-Ocampo has commuted here every month from Buenos Aires – one week there, three weeks here, with a 16-hour flight in between. His second wife, with whom he has two of his four children, has visited but never made the move here. He represents a citizenry of 2.4 billion people and receives a constant flow of visitors including, about twice a year, the movie star and sometime UN goodwill ambassador Angelina Jolie, whom he describes as “very serious, very devoted and very, very intelligent”.
A Jolie/Moreno-Ocampo joint education venture could be in his professional future, but even before his appointment to the court he was well known. In the mid-Eighties he was plucked from academia to help prosecute the Argentine military junta that killed perhaps 20,000 dissidents between 1976 and 1983. Some died in prisons; others were pushed from helicopters into the South Atlantic. This was impunity on a grand scale, but well after the advent of democracy many people in Argentina – including Moreno-Ocampo’s mother – wanted to pretend it never happened.
He speaks often and affectionately of his mother, even though her family supported the dictatorship while his father’s was active in radical opposition politics. “I couldn’t convince her with argument, but she was convinced by the trial,” he says. “That’s why I love trials. It changed my country. The junta’s crimes were exposed and people like my mother learnt what the military did.” One uncle, however, a colonel in the Army, never changed his mind and never forgave his nephew. “He refused to reconcile. When he died I went to his house and his wife was very nice, but she also insisted that I was wrong.”
In 1982, Argentina’s generals over-reached themselves. They invaded the Falklands, and the rest is history. He won’t be lured into an argument over the islands’ sovereignty (“I was against the war; I don’t like wars…”) but he has no difficulty seeing the junta’s collapse from Britain’s point of view. “Because they were dictators they could not negotiate on sovereignty… and that way they were defeated,” he says. “But for us, Thatcher liberated the country of dictatorship.”
Later, in private practice, Moreno-Ocampo agreed to investigate corruption in Argentina’s pensions industry. When one of his lawyers was shot dead at close range it was, he says, the worst day of his professional life. It was also formative, and a constant reminder that he has grappled with rougher stuff than most lawyers ever have to. One way or another, Argentina equipped him with a worldliness that seems to have helped him survive the ICC.
In early 2009, when his first witness against Thomas Lubanga changed his story, the trial nearly collapsed. To make matters worse in the eyes of the press, Moreno-Ocampo wasn’t even there. He was at the World Economic Forum in Davos. “Chaos reigns…” the Times headline began.
He is unrepentant. “I opened the case, but then after that my job is not to be in court. Davos was great because I met five or six presidents whose cooperation I needed... It was fantastic.”
The trial did not collapse and a Congolese warlord is about to face justice 4,000 miles from the crime scene. Meanwhile, Moreno- Ocampo has learnt more than most about how backgrounds shape opinions on the mechanics of international justice. “The fact that I have to convince political leaders was something I knew from Argentina, but if you’re from Sweden or Germany, it’s incredible,” he says. “Why is the prosecutor talking to political leaders? In a mature country you perceive that a prosecutor should never be involved with a political actor because he is contaminated, and, in fact, in Sweden it’s not needed. In Sweden, to confirm the law you don’t need to talk to people, because people know the law is there.”
Where the law can’t fend for itself, someone needs to fight for it and the people it is supposed to protect. In broad terms, that is why Moreno- Ocampo chose to threaten al-Bashir with arrest over Darfur four years ago. The court’s indictment for war crimes and crimes against humanity was the first issued for a serving head of state. It did not include the genocide charges that Moreno-Ocampo wanted because the ICC’s pre-trial panel of judges said he didn’t have the evidence. Even so, all hell broke loose. The Arab League and the African Union condemned the warrant. Al-Bashir expelled foreign charities that were bringing aid to nearly 5 million refugees in Darfur, and he made plans to travel to ICC signatory countries where he would either be arrested or, more likely, mock the court by not being arrested.
The trickiest challenge to the court’s reputation was an invitation to al-Bashir from President Museveni of Uganda to an African Union summit in Kampala. Moreno-Ocampo flew there to persuade Museveni to retract it.
The trickiest? Not quite. The day before telling the press that he planned to go after al-Bashir, Moreno-Ocampo had received unwelcome news from an International Labour Organisation tribunal. It had awarded nearly €250,000 in compensation to a former ICC media adviser who had been fired after accusing Moreno-Ocampo of forcing himself sexually on a South African journalist. The allegations were colourful, involving a Cape Town conference, some car keys and a walk on the beach. They were dismissed as “manifestly unfounded” after an internal investigation led by a British judge, but the tribunal didn’t buy Moreno-Ocampo’s lawyer’s claim that he was the victim of a malicious smear. And reporters were intrigued by the timing of the al-Bashir announcement. Why so soon after the embarrassing compensation award? A 5,000-word hatchet piece in the World Affairs journal, in particular, noted that Moreno-Ocampo’s headline-grabbing over Darfur “obscured” the Cape Town story.
He flinches momentarily when the subject comes up. It was right for the investigation to “go deep”, he says, but now it’s over. He doesn’t want to repeat gossip. “It’s regrettable, and it’s not nice to be accused publicly that you commit crimes, but it’s part of the job.”
Is the job lonely? “Oh, it’s lonely,” he says, grateful for the kind of softball question he no longer expects from Brits. “You have to be alone. You have no friends here… But I am a public servant doing controversial issues so your reputation is at risk.”
Whatever did or did not happen at the conference hotel, the significance of the story for Moreno-Ocampo watchers is that he survived it. Since then the pace and number of ICC cases has picked up. The United States has quietly swung behind the court. Alleged atrocities are being investigated in Kenya, Ivory Coast, Uganda (where the target is the grotesquely violent Joseph Kony of the Lord’s Resistance Army), the Democratic Republic of Congo and the Central African Republic as well as Darfur. “Preliminary examinations” to establish whether there is a case to answer are under way in eight more countries including Colombia, Afghanistan and North Korea.
These examinations may not lead to trials or convictions, but Moreno-Ocampo insists they serve the larger purpose of deterring crime. He’s especially excited about Colombia, where the mere possibility of ICC action has goaded the Colombian criminal justice system into overdue action of its own against Farc guerrillas; and Korea, where his staff are looking at two attacks by the North that killed civilians in the South. “If the [northern] generals know that they will be prosecuted, they will think twice,” he argues.
Moreno-Ocampo’s vision of the court’s potential is expansive, and all the more so as he winds down. Looking back, he sees “a beautiful boat, the ICC”, with no maps or crew; just instructions to find a crew, feed it and sail well. Looking forward, he sees justice for all, everywhere, by any means possible.
He grabs his coat, goes downstairs and walks to the court car park talking about historical arcs, from national to global governance; from the Treaty of Westphalia (which ended the Thirty Years War) via Nuremberg to the ICC; from war to law as humanity’s default mode of conflict resolution. In the end his work is not about trials, he says. “It’s about changing the behaviour of the world.”
Moreno-Ocampo gives me a lift to the station in a BMW too clean inside to have carried many kids, but kids (though not his own) are on his mind. He is appalled that I haven’t heard of Invisible Children, a San Diego-based charity that has forced Joseph Kony’s use and abuse of child soldiers up the US political agenda with a 28-minute YouTube video viewed by 100 million people in just 6 days.
The YouTube 100 million is, he believes, his core constituency; young, international and technologically empowered. But it’s only the start. “We need to educate two billion kids in these issues now. The fall of the Berlin Wall gave new chances to prioritise justice. It’s easy to lose focus with the economic crisis, but it’s crucial because this is about the protection of humanity.”
He’s off to meet the Colombian ambassador. I retreat to a hotel to watch a Canadian documentary that depicts him as a rumpled crusader for the oppressed. It’s a persuasive film, but was shot back in 2010, so it misses an interesting scene that unfolded earlier on the afternoon when I met Moreno-Ocampo. It was the day on which Charles Taylor, the former President of Liberia, was convicted a few blocks away by the Special Court for Sierra Leone on 11 counts of aiding and abetting war crimes and crimes against humanity, including arms trafficking in return for “blood diamonds”. David Crane, an American law professor and former international prosecutor who masterminded Taylor’s arrest, dropped by to talk about old times and receive Moreno-Ocampo’s congratulations.
Remembering his application for an arrest warrant in 2003, Crane says he wanted to prove “with a stroke of my pen” that the most powerful warlord in Africa could be removed from power. Six weeks later, he was. Unlike Moreno-Ocampo’s warrant for al-Bashir, Crane’s was sealed, until the eleventh hour. Unlike Moreno-Ocampo’s, Crane’s worked. At least the two are able to agree that justice can be done in many ways. In fact, this is a claim Moreno-Ocampo can now support by pointing to Libya.
Colonel Gaddafi did not live long enough to be brought to The Hague, but he was indicted swiftly and with full UN backing by the ICC once fighting broke out in Tripoli last year. Last month, Moreno-Ocampo went to Misrata. “And people there say, ‘Prosecutor, you have no idea of the meaning of your request for an arrest warrant. We are surrounded by the tanks of Gaddafi, the rockets falling on our heads, and in the middle of this disaster you appear saying Gaddafi is committing crimes against humanity. For us it was… we won. It was victory.’?”
On June 16 Moreno-Ocampo will be replaced by Fatou Bensouda, a former Gambian justice minister who has been his deputy at the ICC since 2004. She will be perfect, he says. (She will certainly enjoy warmer relations with the African Union.) In the meantime, he likes to talk about changing paradigms. He even invokes the struggle against slavery as an analogy for what he thinks he’s doing, and if you suspend cynicism for a moment, you can see why. “I saw the change of the world,” he says. “I started this job when the Iraq war started – one model, go to war – and I ended with Libya. Justice was a part of it; a completely different scenario, and that’s the future for me.”
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