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The first prosecutor of the International Criminal Court says the court is breaking the cycle of impunity
October 23, 20159:00AM ET
Richelle Carey: You've just recently returned from Iraq. The Yazidis have appealed to the International Criminal Court [ICC].They wanted the ICC to do something about the genocide that they say that is happening to them because of ISIL [the Islamic State in Iraq and the Levant]. What can the ICC do?
Luis Moreno-Ocampo: If you are a victim of this type of crime [and] you are in Iraq, where [do] you go? Iraq cannot do it. So who else will protect you? So people keep moving, asking [the] ICC to intervene. The problem was, Iraq is not a state party, so the territory's not under the jurisdiction of International Criminal Court.
What they had to prove to open a case at the ICC is that members of [ISIL] are nationals from third parties. They collect[ed] information showing that they're 2,000 Tunisians, 1,500 Jordanians and more than 2,000 Europeans leading ISIL. The Yazidis, NGOs and the government went to The Hague, and they present[ed] communication to the prosecutor asking her to start to work in the genocide case.
And do you think the Yazidis will get some sort of justice?
Yes, I think that's a big first step. Iraq does not like to be a member ICC because there are still many conflict[s] there and they're afraid. But Baghdad can decide [to] just accept jurisdiction for the Sinjar Mountains, just since August 2014, just the area where the genocide was committed. That will allow ICC to intervene by [a] different way.
Sometimes, is it just a matter of there being the political will to do it?
Totally. Not just sometime, sometimes.
All the time. All the time. Political will is now the next phase.
Is there a role that the international court has in what is happening in Syria?
Political agreement is a condition. In fact, yes, Russia veto[ed] a resolution on Syria. Before that, the U.S. was not interested to send the case to the ICC. They did it just at the end to shame Russia, but not at the beginning. The U.S. was proposing, you remember, striking because of chemical weapons. That will be a wrong policy. Because it's not about just killing people with chemical weapon. You cannot kill people. So, yes, we lost opportunities. But that's why I believe the Yazidis' genocide case is a good chance to unite the world.
‘[The U.S. is] against independent justice. That's the problem. They don’t like independent procedure deciding to open investigation without their consent.’
The U.S. is not part of the ICC. How much of a challenge is that?
We won the challenge. When I request[ed] indictment against [Sudanese President Omar al-]Bashir, my biggest supporter was President [George W.] Bush. He said, "OK, I don't like the court, but President Bashir had to be [held] accountable."
Then when President [Barack] Obama came, it start[ed] a sea change. Then China remain[ed] quiet because that [is] its strategy. China's very clear. It's not against justice. China believe[s] in stability [to] protect people.
Well, the U.S. would say that they're not against justice either.
They are against independent justice. That's the problem. They don't like an independent procedure deciding to open investigation without their consent.
Do you think it'll change?
With time — I hope before everyone is killed in this country, in this world. Yeah, I hope [it] will change. The problem is, [the] U.S. is the biggest country in the world. They don't like something checking them. That's it.
This awful thing that has happened in Kunduz with the hospital, the Doctors Without Borders hospital being bombed. Is that a war crime?
Look, I believe that will depend on the facts.
The case is showing how wrong the policy [is]. It's not [just] that this is illegal. It's wrong. Bombing people is wrong. You're not gaining them. This conflict with Taliban or Al-Qaeda or [ISIL] is not about two countries fighting. It's about ideas.
Are there actions that the U.S. can be still held accountable for — whether it's torture, things that have happened in Guantánamo? Is there anything that you see that the U.S. should be held accountable for?
No. The only institution who can review that decision is [the] ICC for alleged crimes committed in Afghanistan. The rest is — the rest, I would say no. What happened in Iraq or what happened in Guantánamo, it's just [the] U.S. No one else has jurisdiction.
So there's no follow-up to that.
For that, no. There are no institutions for that. The only possible case is what happened Afghanistan. And eventually, there are some agreements in Poland, in some countr[ies] that accepted to torture people — Poland and these countries are members of ICC.
Using drones has increased markedly under President Obama, often killing innocent people.
OK, legally, again, the only possibility's what's happened Afghanistan, the only country where the ICC would have jurisdiction.
What were the early days [at the ICC] like?
Six empty floors, two employees. Everyone's thinking it would be closed.
Thinking it wouldn't last.
Everyone was thinking it would be closed. In those days, I was at Harvard, teaching. And one colleague of mine advised me not to take the job, said, "Look, Luis, it's great honor. But you have to reject it." I said, "Why?" "Because you will be nine years at The Hague doing nothing and receiving a salary. Because without the Americans, you cannot investigate. You cannot arrest. So for me, it was a good advice. Because I said, "OK. I will do it in my own way, with no Americans." The court now is up and running. We have people in jail.
This year, they are integrating a new building, $400 million building at The Hague. So the court is there. How relevant will be, that's the next game.
Why did you take the job?
How you cannot take the job? Come on.
Why did you?
For me, [it’s] the best job in the world. Nothing is better than that. I mean, it's a great mission. They were paying me to help people. To use the law to control power. To assist those who no one cares [about]. We're very proud of what we did. We are breaking the cycle of impunity.
There are, of course, successes in Africa. But what do you say to critics who say that Africa has been unfairly targeted by the ICC?
That is Bashir comment. That [is] Bashir campaign.
No, it's not only Bashir.
No. All of you repeat it. That's the point. When I indict[ed] President Bashir, I remember some of them saying, "Oh, it's against Africa." And everyone would say, "No, it's a genocide." Six year later, no one is talking about Darfur genocide. And people repeat this alibi, based on former colonial past. He pretend[s] he's the victim of a colonial court. Come on. That's funny. And the journalists repeat the story.
Let me put it to you this way. Do you feel that the ICC has been evenhanded in their prosecution?
Yes. Because I cannot investigate the U.S. because U.S. [is] not a party. I cannot be in Nepal. It's not possible to go to some place[s]. That's one of the limitations. And second, most of the massive atrocities are committed in the Arab countries or in African countries. Except Tunisia and Jordan, no other country is a member. Then you have massive atrocities in Colombia. But Colombia is conducting national proceedings. And as such, when they are conducting national proceedings, [the] ICC should respect it. And I'm working for African victims. I don't care [about] African leaders. I care about African victims.
Because Uganda, Congo refer[red] their own case. The Ivory Coast request[ed] intervention too. The Security Council referred two — Libya and Darfur.
What has the law taught you about people?
The law's critical to understand people because massive atrocities are not committed by evil persons. They are committed by people who say they are protecting their own community. That's the issue. I kill my enemies. The enemy kill my people. So that is the dynamic. In a national setting … institutions help to stop this activity between groups. But at the global level, there are no institutions. That [is] why we need to build a law. That [is] why the ICC [is] such a sea change in the world organization.