Interview with Luis Moreno-Ocampo, Prosecutor for the International Criminal Court

Mr. Moreno-Ocampo talks to reporters after briefing Security Council on Sudan (June 2009).

5 June 2009 – Luis Moreno-Ocampo rose to prominence in his native Argentina prosecuting top officials accused of masterminding the “dirty war” (1976-1983), in which thousands of civilians disappeared. Nine senior officials were prosecuted in the junta trials, including three former heads of State, five of whom were convicted. Since becoming ICC Prosecutor in 2003, he has opened investigations into war crimes and crimes against humanity in Uganda, the Democratic Republic of the Congo (DRC), the Central African Republic (CAR) and Sudan’s Darfur region. ICC judges have issued arrest warrants for 13 people, including Sudanese President Omar Al-Bashir. The UN News Centre spoke with the Prosecutor ahead of his briefing to the Security Council on 5 June, when he provided an update on investigations into alleged crimes in Darfur.

UN News Centre: As a young law student in Argentina, what sparked your desire to become a prosecutor?

Luis Moreno-Ocampo: I was interested in different areas of the law. My first job was as a clerk for the Solicitor General, and I was helping prepare opinions on cases connected with criminal law, because as a student I specialized in criminal law.

I was there when the junta trials opened against the Argentinean generals and other authorities accused of human rights crimes in the late 1970s and early 1980s. In Argentina, the prosecution system was patterned on a European model using one prosecutor before each chamber and then they were tThat’s why the job is so fascinating, we are conducting trials but we are also learning how to prevent crimes.hinking they needed to strengthen the prosecutor’s office. Because I was a lawyer doing these criminal trials in the Solicitor General’s office, they asked me to help the prosecutor, so I was appointed as a deputy prosecutor. In fact, the junta trial became my first case as prosecutor.

UN News Centre: The junta trials were the first prosecutions of top commanders for the mass killing of civilians since the Nuremberg Trials. How did those trials shape your view of the power of the law in prosecuting human rights violators?

Luis Moreno-Ocampo: The junta trials completely changed my life because at that point I was more involved on the academic side of the law and I learned everything was different in reality. The criminals were the authorities. The police were committing the crimes.

In fact, most citizens, including my own mother, were supporting the criminals. They thought that the junta had been protecting them from the guerrillas.

So, it was very challenging, and also, of course, due to the massive scale of the crimes, we presented 800 witnesses. It was a huge issue in terms of changing my perception of the law and also a huge exercise in how to present massive amounts of evidence before the judges.

I had to lead a group of 10-15 young lawyers who conducted the investigation because we could not rely on the police to run the investigation since the police were involved in the crimes. We basically organized a system to investigate the victims without using the police. We called the victims ourselves.

Before the trial began we had the truth commission – one of the first in the world, before Chile and before South Africa. The commission identified 3,000 victims. We selected some of them. We looked for witnesses and documents proving abduction and then we proved torture of some of them and we proved the killing of some of them.

The first case was against some of the top commanders of the junta, including the former president, so we started right at the top.

It was the most significant trial because basically, as I said, people like my mother thought I was wrong. I could not convince my own mother, so it was not easy. But when the trial started, the most interesting lesson I learned was that the trial educated the entire population. In fact, my mother called me two weeks after the trial started and said “you were right, I was wrong. I still love General [Jorge Rafael] Videla but he has to be in jail.”

The first lesson learned from Argentina is that it is a good idea to start with the top people and the next lesson is that it will take a lot of time to prosecute more. It is a long process.

UN News Centre: You later ran your own law firm specializing in anti-corruption, and criminal and human rights law, and you pursued cases concerning political bribery, journalists’ protection and freedom of expression. Has that experience had an impact on your current position as ICC Prosecutor?

Luis Moreno-Ocampo: After I was involved in the prosecution of the military during the dictatorship, I replaced my superior. I was the District Attorney in the Federal Circuit for the city of Buenos Aires. I organized my office to prosecute corruption. So I was deeply involved in corruption cases involving the abuse of power in the State.

In 1992 I resigned and worked as an inspector general for big companies. I did pro bono work for some NGOs and I also defended some journalists, and I defended Maradona, the football player, who had some problems with journalists.

Then I took a sabbatical from my law firm. I received some invitations to teach in the United States. I was a business professor at Stanford University and then at Harvard University.

I was thinking that the peak of my career was the junta trials, which I prosecuted at 32. But then it became my training. The junta trials were the best experience for me because it taught me about investigating massive crimes, how to present the charges.

The other cases gave me an understanding about the complications of financial involvements. Financial and corruption investigations make you a more sophisticated prosecutor. My work with the companies also helped me to understand organizations and my work with NGOs helped me understand how to involve civil society.

In some ways Argentina gave me a wide range of experiences and I feel I need all of them as prosecutor of the ICC, because you have to represent different legal systems and you have to understand that people vary in different countries and under diverse political systems. It’s fascinating.

UN News Centre: When you took up your position as Prosecutor for the ICC in 2003, what was your vision for the ICC and your role?

Luis Moreno-Ocampo: I was not involved in the creation of the Court. They called me in 2002 to ask if I was interested in the job. Of course, it was an honour, but I was thinking I would not accept the offer because I was happy teaching at Harvard. But the job was an extremely exciting opportunity.

What I saw immediately is that this is not just a court. It’s like an agreement. It’s like a federation of States coming together to punish and prevent massive atrocities but it’s a federation with no government. It’s an alliance of States with one court. So I resigned from Harvard, sold my law firm to my former partners, closed everything and went to The Hague. I think it’s the most fascinating legal institution ever created.

UN News Centre: What did you think when the first ICC trial began against former Congolese warlord Thomas Lubanga Dyilo?

Luis Moreno-Ocampo: It was very good, but in fact for me the big deal was when we arrested him and the Democratic Republic of the Congo transferred him to The Hague. When he arrived as the first prisoner… that was for me something we achieved because for normal criminal lawyers the conflict starts when the person appears in court. When the person appears in court, we’ve done 90 per cent of the work, because the most difficult part for us is to collect the evidence, to investigate and to arrest the person.

It was very difficult because we have to investigate massive crimes during ongoing violence and we have to protect all the witnesses and investigators.

I focused on the top people – because of my experience in Argentina I knew we could not prosecute middle- ranking officers, which made our lives more difficult. First we got Lubanga and then we got Katanga, both of whom were the ringleaders of their organizations. Then Ngudjolo and Bemba were also arrested. So we have four leaders of rebel groups in jail awaiting trial. That for us is a great achievement.

UN News Centre: Last July, you presented evidence against Sudanese President Omar Al-Bashir for alleged war crimes in Darfur, with the ICC’s pre-trial chamber issuing an arrest warrant for him in March. What is your reaction to the judges’ decision, especially not to indict on the charge of genocide?

Luis Moreno-Ocampo: The most important issue is to prove that what happened in Darfur is a massive campaign against the civilians orchestrated by the top leader of the country, because that has important consequences. Because Al-Bashir is involved in the crime, that explains why the UN and the international community had to be involved and why the Security Council had to be involved. They [Darfur’s civilians] were attacked by the same people who are supposed to protect them.

Also, we are highlighting that the crimes are committed in different ways. In the beginning, in 2004-2005, there were massive attacks against the villages inhabited by these people. Then the international community went to Darfur and protected people and provided humanitarian assistance.

Then the second phase was Al-Bashir using Ahmad Harun, the Minister, to hinder humanitarian assistance. In the first phase, Harun was the Minister of the Interior and coordinated the attacks on the people in the villages. In the second phase, he was the Minister of State for Humanitarian Affairs, hindering humanitarian aid to these people. Then after the decision of the judges in March, Al-Bashir – confirming his criminal intentions – decided to expel humanitarian organizations. Again, he appointed Harun to manage this humanitarian trick to conclude the extermination of these people.

The judges indicted him on seven charges, including five crimes against humanity, of which extermination was one. The judges considered extermination proved. So the difference between extermination and genocide is very small. The difference is that extermination is against a civilian not against a specific group. A specific group means genocide. There was a 2 to 1 decision. One of the judges said yes this is genocide.

So this aspect of the decision has been appealed and we are waiting to be granted permission to present the case before the Appeals Chamber. But the important aspect is that yes, the people of Darfur are victims of extermination and yes, Omar Al-Bashir is in charge.

UN News Centre: As well as Mr. Al-Bashir, Sudanese officials like Ahmad Harun and Ali Kushayb (a Janjaweed leader) have been indicted but remain at large. What should the international community do to ensure these men are brought to justice?

Luis Moreno-Ocampo: The best solution here would be the Sudanese Government itself applying the law. Of course, if Al-Bashir travels to a country that’s a member of the Rome treaty, he will be arrested. But, in the meantime, the important thing is for the international community to send a strong message that this cannot happen, a head of State cannot commit crimes against his own citizens, and he has to be stopped. Omar Al-Bashir has to face the Court.

UN News Centre: What do you say in response to the charges of double standards that the Court only pursues African leaders while other ‘big fish’ in the West and elsewhere remain free?

Luis Moreno-Ocampo: I think it’s propaganda. I cannot work in Iraq because Iraq is not a party [to the Rome Statute]. I cannot investigate the US because the US is not a State Party.

I apply scrupulously one standard – the law. And the law says I need a State which signed the treaty to apply the law in that country. So I can work in the Congo because the President of the Congo requested me to do it. I can work in Uganda and the Central African Republic because in both cases the Presidents signed the treaty and requested me. That’s why I’m working with them.

If not, the Security Council can refer a case to us as they did in Darfur. But I cannot jump into a country that is not a State party. I cannot do that.

UN News Centre: Over 100 countries are party to the Rome Statute, but dozens are not. Does this hinder your work in any way?

Luis Moreno-Ocampo: When I took office there were 80 countries and now there are 108 countries, including countries like Japan which was closely monitoring what we’re doing and then joined the Court. And this was important because one of the lessons learned in Japan about Hiroshima and Nagasaki was that we can avoid this happening again. So Japan’s accession is very important, not just because of the size of Japan, but because they found the Court would help to avoid the repetition of what they suffered in Hiroshima and Nagasaki.

It will take 20 or 30 years but I believe in the near future all countries will be part of the Court.

UN News Centre: How do you respond to criticism that the ICC impinges on state sovereignty?

Luis Moreno-Ocampo: I do cases in the Congo, Uganda and the Central African Republic, three countries which are members of the Rome Statute, and the President of the country invited us to go there [in each case]. So where is the infringement on sovereignty? And I’m working with Colombia and other countries just to see how the work is done in agreement with them, and they invited us.

The only case in which we were working against the Government is in the Sudan, basically because the Head of State is committing the crimes. There is no sovereign right to commit genocide or crimes against humanity.

Secretary-General Ban Ki-moon and Mr. Moreno-Ocampo meet at UN Headquarters in New York (August 2007)

UN News Centre: How has the UN-ICC relationship evolved? How would you like to see this relationship develop, especially in difficult cases such as with Mr. Al-Bashir?

Luis Moreno-Ocampo: I think for us it’s very important. I worked with Kofi Annan and Ban Ki-moon and both are really very serious and understand the UN role and also our role. We respect the independent mandate of UN peacekeeping forces. For instance, we’ve never requested peacekeeping forces in the Sudan to arrest individuals.

We respect very much the humanitarian organizations. We are not requesting any information from them. At the same time, we are delighted at how the UN respects the Court’s mandate, the justice mandate. The UN is very clear on the need not to grant amnesties in relation to cases before the ICC. And the UN is very clear on how to sever relations with individuals sought by the Court. So I think it is a very respectful interaction between two different institutions, and I think it is working very well.

UN News Centre: Have you encountered much resistance in the course of your work, and what are the biggest challenges you face in your role as ICC Prosecutor?

Luis Moreno-Ocampo: Each day is a new challenge. In the beginning it was how to start the investigation, how to select cases, how to recruit people, how to put people together, how to present the evidence to the judges, how to cooperate with the States and the UN system.

Each day is new and different, and there are many challenges. But I think that’s why the job is so fascinating. We are conducting trials but we are also learning how to prevent crimes.

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