BRIDGET CONLEY-ZILKIC: Welcome to this month’s episode of Voices on Genocide Prevention. With me today is David Kaye, who’s the executive director of the international human rights program at UCLA’s School of Law. David, thank you for joining me today.
DAVID KAYE: Thanks for having me.
BRIDGET CONLEY-ZILKIC: So we’re going to talk today about the international criminal court, and the discussion is prompted somewhat by an article you recently published in Foreign Affairs called “Who’s Afraid of the International Criminal Court.” And I guess we’ll find out who is afraid. Now, in your article you raised several concerns with how the court has moved from its initial promise of a global institution for accountability and then into its life as a living, breathing tribunal, active and functioning court. One of the areas that you mentioned as a moment to sort of recapture the initial energy behind it is in the upcoming change in prosecutor. Currently the chief prosecutor is Luis Moreno-Ocampo, and he’s expected to step down, and there’ll be a new prosecutor named. Can you provide an assessment of the Ocampo years of the court? Where do you think he made mistakes? Where do you think the court has made progress?
DAVID KAYE: Sure. I think-- I mean, Luis Moreno-Ocampo is a complicated figure. I think it’s important to start with the place where I tried to start in the article, and that is that the ICC as a startup institution was bound to face a number of problems. It was bound to be resisted by countries that would be subject to ICC investigation and prosecution. There’s no question about that. And it was also bound to face the same kinds of problems the ICTY and the ICTR faced-- for example, in terms of cooperation they would get from both unfriendly and friendly governments.
Ocampo was really entering into a situation where he faced-- I’m sure he realized that he would face a certain amount of struggle. I think there are two areas in particular where he deserves some credit. The first is he created very early on a small organization, a small office within his office, that’s called the Office of Jurisdiction, Complementarity, and Cooperation. It’s a mouthful, but essentially the idea of this office was to encourage national jurisdictions to do what they should in order to pursue their own war criminals and those responsible for crimes against humanity and genocide.
The other positive thing I think that he’s done is he certainly has raised the profile of justice on the international stage. He is a somewhat charismatic figure, in part because of his job, but also because of his style, which is, in some senses, brash, and that can be a good thing in international politics. Everybody knows the name Luis Moreno-Ocampo, because he’s put it out there. Those two things I think shouldn’t be taken away from him.
But in a range of other areas, I think he hasn’t served the court all that well. The first is sort of a management kind of issue, which I wouldn’t want to spend too much time on because it’s slightly in the weeds, but every big institution, every startup institution, needs to be well managed. The people need to be-- the personnel in the office need to believe that they’re working toward a mission, that they are valuable. The leaders need to work together in order to fulfill the mission that they’ve been asked to fulfill. And particularly, a prosecutor needs to manage the cases well. I think on those fronts, it has not been a huge success for Moreno-Ocampo. For one thing, many of the top prosecutors left early on because of the sense of micromanagement, which I understand continues today.
BRIDGET CONLEY-ZILKIC: And what is the record of the ICC under Ocampo in terms of bringing cases to-- bringing indictments and then bringing cases to trial?
DAVID KAYE: The way the process works is the prosecutor can’t just bring an indictment. The prosecutor has to ask the court to approve the issuance of an arrest warrant. And so he did that in 2005 against the key leaders of the Lord’s Resistance Army, a really brutal, terrible organization in Northern Uganda at the time. There are a couple of those who were indicted. There were five who were indicted and probably died since then. But the leader of the LRA, Joseph Kony, remains alive and actually is quite active now in remote areas of the Congo, especially where there have been several massacres of hundreds of people that really have been laid as his responsibility. That case has really gone nowhere. It’s been essentially frozen in time since it was brought in 2005.
He’s brought a number of cases against local militia leaders in the eastern part of the DRC, the Democratic Republic of the Congo. He’s brought cases-- he is currently pursuing a case in Kenya related to the election violence from 2007, early 2008.
His highest profile arrest warrant and situation has to do with Sudan and Darfur, of course, where the Security Council in 2005 actually referred the situation in Darfur to the ICC for investigation and possible prosecution. Moreno-Ocampo took that on with eagerness, and it seemed to be the right fit. He initially sought arrest warrants and was able to get the court to issue arrest warrants for two senior-level members of-- well, one a member of the government and one a member of the-- a senior person in the Janjaweed, the militia that committed many of the atrocities in Darfur. But he didn’t get any help from the Sudanese government, even though the ICC was having discussions and had kind of a modest relationship with the Sudanese at the time.
But then in 2008, Moreno-Ocampo sought an arrest warrant for the president of Sudan, Omar al-Bashir. He initially sought the arrest warrant on grounds of war crimes, crimes against humanity, and genocide. The war crimes and crimes against humanity charges were not terribly controversial, but the genocide charge was, in part because it’s simply very, very difficult to prosecute a genocide claim, because genocide requires-- as many of your listeners would probably know-- requires finding that the person, the alleged perpetrator, had a specific intent to destroy, in whole or in part, a particular community, that’s enumerated in the statute of the ICC and in the Genocide Convention of 1948.
I think this has sort of laid some seeds of doubt in many people’s minds about Moreno-Ocampo. It’s been very controversial, because people wonder why he didn’t go for simply the relatively easy charges, where it’s clear that the government of Sudan bears responsibility, and possibly Bashir himself bears responsibility for massive atrocities. But whether they’re genocide is simply a very controversial issue. It might be genocide, but it’s simply hard to prove. I think it’s important for people to understand that to say that there is genocide in Darfur may be accurate, but to actually prove that a particular person committed it is a much, much more difficult proposition.
For that reason, I think, it set back Moreno-Ocampo’s efforts in Sudan, and has really-- it sparked quite a bit of opposition within Africa and sort of leads into a number of areas that we could talk about also, which is Moreno-Ocampo’s position within Africa and his ability to get the things done that he needs to get done in Africa.
BRIDGET CONLEY-ZILKIC: Let’s talk about that a little bit more. There are a lot of people who view international justice as an absolute-- at least the promise of justice. Obviously it cannot be applied equally everywhere, but the idea that when it is applied that it’s not a tool among any other political tools, that it belongs in a higher category of ways of responding to conflicts, that all victims are entitled to justice. Now, how that plays out though with an actual court with an actual prosecutor, as you’ve talked about, in real situations, where there are political negotiations going on, where the ICC doesn’t have its own capacity to arrest indicted persons, and also in the context that all the cases brought forward thus far are in Africa; they’re in one continent. And the court’s been criticized on all those fronts. I wonder if you could address your view of how the court has and how perhaps it should understand its role in this complex political landscape.
DAVID KAYE: Right. That’s a great question. In some respects it’s difficult to answer right now, only because-- I mean, if we’re looking forward, the clear mandate for both the current prosecutor and the next prosecutor is not to step away from the cases that have already been brought, but to see them to completion. It’s hard to imagine anything worse from stepping away from them at this point, in terms of undermining the credibility of the court as a judicial institution.
But I guess I would answer that question in a few ways. The first is to step back, and I think, as you started, to think a little bit about the place of justice in international politics. I think there are a couple of things to think about there. The first one is that as important as justice is-- and I’m a believer in justice in the context of international affairs-- it’s not necessarily the first item on every government’s agenda. Justice is one of many priorities. For most governments, the first priority might be ending conflict. I think it’s important simply for any prosecutor, any judge, any member of the ICC or any of the international tribunals, to see their role not as above any other actor in international politics or that it should have a priority over any other actor’s priorities, but that it’s one of many priorities. In some ways I think the court’s most important challenge is to preserve the idea of justice and to preserve the possibility of justice even in a context where other actors see an initial priority of ending conflict. It’s really not the place that the court wants to be if it’s seen as standing in the way of ending conflict. So that’s just one sort of general issue that I would mention.
And a second issue is to think about international justice as including not just prosecution, but to think of it in terms of, in some ways, a multi-step process. So what I mean by that is we can think of justice as involving not just that end-state of investigation and prosecution, but also interim steps. I mean, there are things that the Holocaust Museum is really keen on especially, which is preserving history and memory. There are actors out there who do that in a variety of places, whether we’re talking about Cambodia or Bosnia or many other places. In some respects, the international community needs to support those efforts, simply to preserve the ability of justice down the road, even if justice isn’t available as a first step. Truth and reconciliation commissions can serve that purpose as well. I think it’s important for the court to see that those processes can both complement-- not necessarily substitute-- but maybe supplement their own work. So there’s a couple of sort of-- taking a step back and thinking about where justice fits in.
For the prosecutor, him or herself-- whether the current prosecutor or the future one-- I think that there are a couple of things that that person should take into account. One is expectations. Moreno-Ocampo, shortly after the Security Council referred to him for investigation in the Libya situation in February, made this bold promise that there will be no impunity in Libya. That’s everybody’s hope, but that’s not necessarily how it’s going to play out. It’s important for a prosecutor to manage the expectations, not only of the international community in terms of governments and diplomats who might not be as familiar with how the ICC works, but also in terms of the expectations of victims, who should realize that high-level accountability in a place like Libya or any of the other places that the court is looking into is very difficult and may not necessarily result in accountability for those who are really responsible for crimes. It’s important for that expectation to be managed well, and for the sights, in some respects, to be lowered a bit. And I think the prosecutor has a key role in doing that.
I think the last thing is just-- in terms of Africa-- is that there’s no question that Africa is the scene of some of the worst atrocities in current international life. You can look across the continent from east and west and north to south and see that. But the problem is that the court really has to be an international court, and there are atrocities that have occurred elsewhere. To the extent that the prosecutor has been seen-- and I think it’s fostered the view through his case selection-- of being really focused on Africa almost exclusively, at least in terms of the investigations and prosecutions that have resulted in potential cases-- that he needs to a do better job managing that.
He needs to look at other places where, and not just as a political matter -- find a country that needs justice and pursue an investigation there. But really in those places like Colombia, for example, where justice has really not been pursued strongly, he should raise the profile of those kinds of investigations and make the argument that the court is not just about Africa, as important as it is to focus on some places in Africa, but it’s also about places around the world, including places like Colombia or places like Sri Lanka or Burma, where he doesn’t have jurisdiction to investigation now, but conceivably the Security Council could refer to him cases there, if they wanted to help him out and broaden the appeal of the ICC.
BRIDGET CONLEY-ZILKIC: And as you look around the corner, the prospect of a new prosecutor, and then sort of longer-term too of the larger movement towards accountability as an international commitment, where do you see the ICC going? What do you think needs to be done, and where would you like to see it move?
DAVID KAYE: These kinds of questions are going to be focused on the search for the next prosecutor. So Ocampo, he’s not being pushed out. His term ends basically about a year from now. The election for the next prosecutor will be in December. Those who will be participating in that election are only the member governments of the Rome Statute. So for example, the United States, Russia, China-- they won’t be involved in that election. Although I think given the United States’ much more supportive attitude toward the ICC in the last several years, I think that the U.S. may be able to play a little bit of a influence-- have a little bit of a role in that selection.
The next prosecutor I think is going to have to weigh a couple of things. One is, sort of first and foremost, a case of management-- case management. So it means finishing the cases that are outstanding, and recruiting and retaining the best prosecutors, investigators, and others out there. And I think rebuilding morale in that sense is going to be something really top of the agenda for the next prosecutor.
The second thing I think is to, in some ways, going back to the question of managing expectations, to restate and be the spokesperson for international justice. But do it in a way that is perhaps a little bit more understated -- if I can put it that way-- is a little bit more focused on relating how international justice can support stability, how it can support security, how it has a long-term positive impact. Rather than focusing on sort of the slogans of “There will be no impunity.” I think there needs to be a real argument about not just international justice as a tool to end atrocities, as important as that is, but to really make the case that international justice can have a positive, and in some ways unique, impact on states that are looking for stability.
I think that means being a spokesperson who comes off as being a bit modest, both personally and institutionally, but also one who might be engaged a little bit more in the lives, the concerns of victims and sort of what’s happening in their communities and countries. Given the fact that the ICC is really focused, as the other international tribunals have been, on the most senior levels of those responsible for the worst crimes, the next prosecutor really needs to make the case to communities that that work connects somehow to their lives, and I’m not sure that victims really see that right now.
BRIDGET CONLEY-ZILKIC: David, thank you very much for your time?
DAVID KAYE: You’re welcome. Thanks for having me.
NARRATOR: You have been listening to Voices on Genocide Prevention, from United States Holocaust Memorial Museum. To learn more about responding to and preventing genocide, join us online at www.ushmm.org/genocide.