The scene is the Guardian Stage – a large marquee – at the Hay Festival at Hay on Wye in Wales. The audience has chosen to come to this particular interview out of a choice of five events dotted around the festival site. All begin at 5.30pm on this Sunday 24th May.
The interviewer has asked a question and the guest, Luis Moreno-Ocampo, answers. He says, “You ask what would happen if the U.S., the E.U., Russia, and China could agree to bring pressure on Sudan to stop the extermination in Darfur? It would stop in one day, in one day.”
That answer was given by Luis Moreno-Ocampo, the prosecutor for the International Criminal Court (ICC) in The Hague. For a moment he looked very dark and he bowed his head and looked to one side.
A few minutes before, in a self-deprecating and humourous way, he had explained to us in the audience and to the interviewer, Philippe Sands, how he came to be chosen as the prosecutor to the ICC. He explains what is expected of him and what he expected from the job.
Now with is dark comment on the situation in Darfur, the hall was silent for a long moment.
The International Criminal Court
The International Criminal Court was established under a treaty between the signatory countries from around the world. The signatories effectively agreed to a certain standard of justice that applies everywhere.
What they agreed was that they would prosecute, at a national level, the most serious crimes. They agreed that they would not allow themselves to turn a blind eye or look the other way in respect of crimes that were committed by the state itself or by powerful forces in government or otherwise.
And further, that if they did not do so, then they would submit the cases to the jurisdiction of the court they set up – the International Criminal Court.
It is easy to see the pragmatic reasoning behind the treaty. If a country that was a signatory to the treaty fell into the hands of a regime that murdered its opponents, then, of course, that regime would not bring cases of murder perpetrated by itself before the national courts. Nor would it allow its opponents to do so.
But an international court, safely situated in the Hague – that court could bring cases and in doing so it could pursue justice and in the wider political context, hasten the end of the regime.
The specific remit of the court is set by the Rome Statute and under Article 5 of the Statute the jurisdiction of the Court extends to:
- The crime of genocide
- Crimes against humanity
- War crimes
- The crime of aggression
The ICC is not to be confused with the court set up by the United Nations specifically to prosecute serious crimes committed in the former Yugoslavia.
That court is the ICTY – its full title being ‘The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991’.
The ICC on the other hand is a permanent body set up by the 108 states who have signed and ratified the Rome Treaty, and thus the ICC is completely independent and separate from the United Nations.
But in the real world, as Luis Moreno-Ocampo explained, trying to bring a case is difficult without UN support for the kind of cases the court brings.
Nonetheless it is the prosector of the ICC who decides who he will prosecute and who he will prosecute first. He is not beholden to any person or body in that decision but on the other hand his department has no police force at its disposal, so the prosecutor is dependent on the national police force of the country concerned to arrest the accused.
Unless, of course, the accused strays into the territory of another signatory country.
Luis Moreno-Ocampo is currently prosecuting a serving head of state, Omar al-Bashir of the Sudan. Sudan is a signatory to the Rome Treaty, which is why the ICC can bring the prosecution.
And it is on account of that indictment that President Omar al-Bashir is unable to travel to any other country that is a signatory to the treaty, because if he did he would be arrested.
As to the significant signatories, the United Kingdom, France, Germany, Italy and other European countries as well as Australia and New Zealand have signed and ratified the treaty.
The United States and Russia have signed but not ratified the treaty and in 2002 the United States indicated that it does not intend to ratify the treaty – an act which the U.S. describes as ‘unsigning’ the treaty.
China opposes the treaty as a breach of the sovereignty of nations.
Becoming the Prosecutor to the ICC
Philippe Sands asked Luis Moreno-Ocampo about his background and he explained that he was a prosecutor in Argentina, prosecuting military commanders and former government ministers who had ordered the ‘disappearance’ of political opponents, and that he had also lectured in criminal law at the university in Buenos Aires, and had had a private law practice.
Then in 2003, when he was teaching in Stamford University for a year, he received a telephone call inviting him to take up a nine-year appointment as the prosecutor to the ICC.
He recounted how a friend had told him the offer of the job was a great honor, but he should refuse the offer because it was certain that whoever took the job would sit in an empty office for nine years with no cases to prosecute.
But Luis Moreno-Ocampo saw the job as an obligation and he was determined that he would prosecute cases. So he sold his law firm, resigned his position at the university, and quit his job as prosecutor in Argentina.
Philippe Sands asked him how he had been vetted for the job and he answered that he did not think the member states had spent too much time thinking about it. He was top of a list and he was hired. He knew he wanted to carry out his responsibilities and having been directed to an empty office in the Hague he had to decide which were the most serious crimes and who he should prosecute.
And then on to the subject of Darfur: Luis Moreno-Ocampo stated that Sudanese planes had repeatedly bombed and even now continued to bomb villages in Darfur and that the Janjaweed militia then attacked the villages, raped the women and attempted to drive the villagers into the desert to die.
The Rome Treaty specifies that if a member state prosecutes an offender, then the ICC cannot. Luis Moreno-Ocampo asked Sudan whether it would prosecute the man who appeared to be the initiator and organizer of the attacks on Darfur – Ahmad Harun, Minister of State for the Interior in Sudan.
In response, the president appointed Ahmad Harun as the Minister of State for Humanitarian Affairs.
When it became clear that Sudan was not going to prosecute Ahmad Harun, Luis Moreno-Ocampo issued an arrest warrant against him, accusing him of organizing the Janjaweed militia and being complicit in the deaths of many thousands of civilians in Darfur.
He was met with the defense that he was following the orders of the president – which the president confirmed, and in consequence, Luis Moreno-Ocampo issued an arrest warrant against the president Mohammed al-Bashir.
And so it was that, as this article began, Philippe Sands asked Luis Moreno-Ocampo what would happen if the United Kingdom, Russia, China, and the U.S. were to bring concerted pressure on Sudan to end the violence.
In his professional life as a prosecutor, both in Argentina and at the ICC, Mr Moreno-Ocampo must have seen and sifted through the evidence of the most violent and terrible crimes.
It is not fanciful therefore to see the sadness and the dark parts of his memory that he seemed to be visiting when he stated that if those nations were to bring concerted pressure on Sudan to end the violence, it would end in one day.