Former chief prosecutor: Expand ‘the shadow’ of the International Criminal Court

While there are limitations on the authority of the International Criminal Court (ICC) to investigate and prosecute cases of genocide or crimes against humanity, that court has made significant strides in the 10 years since its establishment in 2002, said its first chief prosecutor, Luis Moreno-Ocampo, in a talk at Yale on Jan. 28.

Moreno-Ocampo was on campus to deliver the Yale Law School’s inaugural Gruber Distinguished Lecture in Global Justice. He spoke on the topic “The Office of the Chief Prosecutor: The Challenges of the Inaugural Years.”

The chief prosecutor of the ICC from its founding until he stepped down from the post in June 2012, Moreno-Ocampo described how early doubts about the viability of the ICC and outright opposition to its existence have since given way to growing trust in the institution’s work and increased cooperation from the international community.

Only one person has thus far been convicted by the court (militia leader Thomas Lubanga of the Democratic Republic of the Congo, who was found guilty of recruiting, conscripting, and using child soldiers in armed conflict), Moreno-Ocampo acknowledged. However, he told the packed audience about the success of the court in investigating and bringing charges in international crimes over the past decade in countries including Afghanistan, Colombia, Venezuela, Korea, Uganda, Kenya, the Central African Republic, Libya, the Ivory Coast, Darfur, and Mali, among others.

Furthermore, he said, “the U.N. Security Council has moved from deep distrust of the court to referring the Libya situation to the court by consensus.”

He also described how President George W. Bush, who challenged the very existence of the ICC in 2002, was a main supporter — five years later — of Moreno-Ocampo’s decision to request an arrest warrant against President Omar al-Bashir in Sudan for genocide in Darfur. In December 2012, he noted, the U.N. Security Council “called upon the peacekeeping force in Mali to support the International Criminal Court in efforts to bring the perpetrators (of international crimes there) to justice.”

Moreno-Ocampo noted that 121 nations have now ratified the Rome Statute, the 1998 treaty (originally ratified by 60 nations) that established the ICC to prosecute the crime of genocide, crimes against humanity, war crimes, and the crime of aggression.

The former ICC chief prosecutor acknowledged, however, that challenges to the ICC’s authority remain. The United States is among the nations that never signed the Rome Statute, which gives the ICC the authority to independently investigate and prosecute crimes in states that signed the treaty. The international court can only investigate international crimes in non-signatory states with the authorization of the U.N. Security Council.

“The challenge today is no longer to overcome the doubts about the viability of the court, or to discuss U.S. ratification, but it is to go beyond an ideological debate,” Moreno-Ocampo said. He noted that there is still no framework for arresting leaders and other criminals who are surrounded by militias, such as Joseph Kony, or for arresting heads of state who have committed crimes that fall under the ICC’s domain.

“The challenge is to assist diplomats and international relations experts to adjust to the legal framework, to expand the shadow of the court,” he continued.

Moreno-Ocampo called upon law students and legal scholars at Yale to help analyze and develop a global framework to improve the interaction between the ICC, the U.N. Security Council, and “stakeholders that usually having competing goals, such as human rights activists, diplomats, and military officers” so as to protect, among others, victims of violence in Syria or girls and women who are being raped in Darfur.

Emphasizing the importance of the ICC’s judicial independence in order to remain impartial and apply the law, Moreno-Ocampo invited law students to join him in meetings with other legal advisers to help bring clarity to some of the outstanding legal debate about the role of the international court — which, he noted, is the same age as Facebook and just five years younger than Google. The ICC, like those relatively young and still-evolving enterprises, he said, is “here to stay,” adding, “Global justice won’t disappear.”

Moreno-Ocampo’s full speech at the Law School is available on Livestream.