The European: Mr. Ocampo, does the International Criminal Court (ICC) lack credibility given the recently suspended case against Sudan’s President Omar al-Bashir?
Ocampo: There is a confusion. Al-Bashir is still indicted for genocide, and his Minister of National Defense, Abdel Raheem Muhammad Hussein, is still indicted for crimes against humanity. These two and other leaders of the crimes committed in the Sudanese region of Darfur are wanted. Why should the ICC open a new investigation when you already have the most important guys indicted? Why should the ICC issue new or other arrest warrants? The already existing arrest warrants have to be executed – go and arrest them! You cannot blame the court for the lack of execution: That is not its mandate.
The European: You can hardly call it a success if there is an arrest warrant and nobody seems to care about it.
Ocampo: Again, this is not the ICC’s failure. This is a failure of the states that are ignoring the genocide in Darfur. We did our job.
European: Does the international community fail to respect the ICC’s work?
Ocampo: No state has the obligation to send troops in order to arrest people outside their own country. Germany, for example, only has the obligation to arrest someone coming to Germany. The system is working.
“States just manage their own hypocrisy”
The European: Even so, we still imagine that it feels like a personal setback seeing the investigation on hold.
Ocampo: The setback is for the victims and for humanity.
The European: From a victim’s perspective, there’s not too much of a difference, whatever the reason is: The trial is still not going to happen.
Ocampo: There is a lack of action from the states to stop the genocide. No state says one word against the ICC. They just manage their own hypocrisy. They do nothing to implement our arrest warrants, so you have to challenge them for their inaction.
The European: Al-Bashir can travel – not freely, but he has been to China and Chad, for example. I imagine that must be frustrating to witness.
Ocampo: This is frustrating for the victims of genocide. The strange thing is that people don’t feel frustrated towards the states for doing nothing to protect the Darfur victims, but frustrated towards the ICC.
The European: What lies at the heart of the problem?
Ocampo: States’ interaction. Check how much money al-Bashir is receiving today from the European Union or from the World Bank. We are feeding the genocide.
The European: The case in Darfur was referred to the ICC by the UN Security Council, so one would imagine that the latter has a certain interest in supporting the court’s investigation.
Ocampo: When the Security Council involved the court everything was much more complicated, because the state in question did not sign the Rome Statute and doesn’t feel any obligation. And the Council is doing nothing. But the court’s work has an impact nevertheless. Even if al-Bashir wasn’t arrested in Chad, he cannot go to many countries in Africa. He cannot go to South Africa; he was stopped trying to go to Malawi, he was stopped trying to go to Uganda, and in Kenya he fled because he was afraid of being captured.
The European: When picturing all the obstacles facing the ICC, one could get the idea that international criminal prosecution is a utopian idea to a certain point.
Ocampo: It isn’t! Only 30 percent of the people we want are still on the loose. Keeping in mind that we are targeting only the people most responsible – this is an amazing score.
The European: Friends and foes alike describe you as very ambitious.
Ocampo: That is the only reasonable way to be the Chief Prosecutor of the International Criminal Court. The International Criminal Tribunal for Yugoslavia worked for years, but the last indictee was only captured in 2011. It takes more time than expected – but in the end it is moving.
“I won that battle”
The European: So we need to be more patient?
Ocampo: We need to focus. If we do so, then we can see that the problem is not the ICC. The problems are states that have no idea of how to implement our arrest warrants. When I was a prosecutor, I had to make a decision: Should I go for a sitting president knowing that I would be alone or should I do nothing?
The European: You decided to go all in.
Ocampo: Exactly. I teach at Harvard University and asked my students what they would have done in my position. 50 percent said “go for it”; 50 percent said “don’t do it”. That is my point: Whatever you do, half of the audience will say you’re wrong.
The European: Do you have the feeling that a spectacular case like that of Sudan was good for promoting the Court’s ambition in the early days?
Ocampo: Darfur was not my choice; it was a UN Security Council decision. When I took office, expectations were low and the Bush administration was very hostile to the court. The court could be closed or I would sit around in The Hague for nine years doing nothing. Now we discuss cases, now we are getting the ball rolling. I felt that it was my responsibility to build this institution.
The European: What were your first steps in doing so?
Ocampo: My first decision was to make sure that my actions were understood by everyone. The first two days in my office I presented my draft policy plan to diplomats, NGOs, academics and so on. I invited everyone and we had two days of discussions so that they could understand my agenda. And then, in September 2003, I presented my plan.
The European: The first cases were the situation in the Congo and Uganda.
Ocampo: The most serious cases under my jurisdiction! In those days, the perception was: We will never have a call from the Security Council. So the referral of the situation in Darfur was in some ways perceived as a big success. The ICC became part of the international scene. When I took office, U.S. President George W. Bush was totally against us, and two years later, he had to accept the court.
The European: Still observers try to undermine your case in Sudan, arguing that your charges of genocide can’t be proven without access to Darfur.
Ocampo: Do these people know my evidence? No one does, because it is confidential. It was a battle and I won that battle. The Court issued the arrest warrants for genocide. But people talk and they do so for their own reasons.
The European: Did you ever have the feeling that your job was more that of a diplomat than that of a lawyer?
Ocampo: I was a stateless prosecutor and I have to ensure cooperation from states; I was not an activist. The ICC prosecutor has a legal mandate. The Security Council has a peace mandate and can suspend any investigation. If they really believe it should be suspended, they should do it. The court cannot do it. My policy was clear: We as prosecutors could not make political decisions. We make legal decisions.
The European: Even though you don’t see yourself as a political actor, you are acting in a politically dominated environment.
Ocampo: Exactly. That explains what happened with the Kenyatta case in Kenya. The witnesses started to recant their testimonies. The ICC could do nothing. But there is a positive aspect: namely, the ICC’s contribution to crime prevention. Elections were always violent in Kenya, but in 2013 we saw the first relatively peaceful one. That’s a good outcome of the ICC intervention.
The European: You have argued that this could be the case in the Middle East as well, after Palestine recently joined the ICC.
Ocampo: It is an opportunity for Israel to overcome the problem. Palestine signed the Rome Statute and it is now committed not to commit crimes. That is a big deal!
The European: Israel’s Prime Minister Benjamin Netanyahu certainly does not agree.
Ocampo: That is Israel’s problem. They have to learn how to treat the situation differently, because Palestine has committed itself to not acting violently, and Israel could take advantage of it. Now they have to review what they did during last year’s war in Gaza and should investigate it themselves. That’s the way to escape the ICC.
The European: That doesn’t sound too realistic.
Ocampo: It is an opportunity that will probably be missed.
The European: Is justice a prerequisite for peace?
Ocampo: In 1945, Robert Jackson, the prosecutor from the Nuremberg trials, said that the contribution to international law is individual responsibility. That was something new, something between frustration or war. He said that now there is an option between bombing or nothing: it is individual responsibility. This is just one aspect of how justice contributes to peace processes and that is what came into play when I presented the al-Bashir case – even though I knew it would send messages that states wouldn’t like.
The European: And they didn’t.
Ocampo: I didn’t know it back then, but Bush decided after I did my indictment that he would support it. Those were his last six months as president. Interestingly, Bush’s decision moved France and Great Britain to support the court as well. And fascinatingly, China refrained from the notion that al-Bashir means stability because everyone was against him.
The European: Bush made the case for you.
Ocampo: Yes, he put the pressure on. After the arrest warrants were out, UNAMID was deployed and the assistance to the camps increased three times because of Richard Williamson, Bush’s Special Envoy to Sudan. One and a half years ago, after I had given a speech, he told an audience: “First: I don’t like the ICC. Second: I told Mr. Ocampo that he shouldn’t do the indictment because it is complicating my negotiations. Third: when he indicted al-Bashir I took advantage of it.”
The European: That’s Machiavellian.
Ocampo: It is smart political thinking. But when Obama came into office, he decided to use the al-Bashir indictment to put pressure on him to let South Sudan go – and they became independent. But the Darfur genocide continued.
“The ICC is like a child with no parents”
The European: Did you recognize a shift in U.S. opposition to the ICC through the years?
Ocampo: The Bush administration could not kill the court, and they decided to use it. In accordance with U.S. law, the U.S. could not accept the ICC except when we’re prosecuting someone like Slobodan Milošević or Saddam Hussein. If Washington doesn’t like the indicted person, they will support the court. If they find the case useful, they will support it.
The European: Which again illustrates the political sphere that courts are entangled in.
Ocampo: For them it is political. That is the point: I’m drawing the lines in a crazy world. It is complicated but still working. The ICC is like a child with no parents that grows anyway.
The European: The biggest advantage of the court is its perceived impartiality. Do you fear that the court is becoming a political weapon?
Ocampo: Political actors can do that. Palestine did that. That is normal; it’s what the police does with criminals. If you commit a crime, they will prosecute you. That is how the law works.
The European: What are the biggest obstacles for the court in the coming years?
Ocampo: We need to improve the interaction between the law and international relations. For example, when I was appointed, my international relations advisor told me that I have to consult diplomats before I request an arrest warrant so they would support me. But I cannot consult them in advance, because I am a prosecutor. I never consulted. I decided that I could inform them in advance, letting them adjust to the legal system. So before I requested arrest warrants for al-Bashir, I told the Security Council – so they had the chance to stop me if they wanted. After our request, an ambassador asked me how I came to prosecute a sitting head of state without informing them in advance. I answered: “Mr. Ambassador, what do you mean? I announced it twice at the UN Security Council on the record.” He replied: “You said that, but we didn’t believe you would do it.” That is because in the diplomatic protocol, you have to agree before you act. It’s like two different languages.
The European: So there is in fact a certain diplomatic aspect to your job.
Ocampo: As soon as we crossed the door of our building we were in international space. I need to ensure coordination with states. No one would say that I am diplomatic. I am now taking the liberty to advise diplomats on how to be more efficient. One and a half years ago, I reasoned that the best way to end the war in Syria would be a delayed referral of the case to the ICC. The Security Council should announce this decision and that it would take place six months later. This would give time to negotiate and stop the crimes. The UN could send in Kofi Annan to bring everybody to the negotiating table again but with some leverage.
The European: Such a move had no political support.
Ocampo: In those days, they were looking at the negotiations saying: No justice! Justice will only complicate the situation because Syria’s President Bashar al-Assad would be driven into a corner. The delayed referral was and is still an option to make a more robust negotiation. And it could be complemented with the study of arrest options. If President Obama is willing to strike because of the use of chemical weapons, then he could also give more clout to an arrest warrant.
The European: Do you miss your time being a prosecutor?
Ocampo: Definitely not. I enjoyed each day but it’s like swimming through an ocean. Once you have reached your goal, you don’t want to swim back.