Push-and-pull: Ocampo on how he dealt with ICC suspects from East Africa
The cover of Loius Moreno Ocampo's book, War and Justice in the 21st Century: A Case Study on the International Criminal Court and its Interaction with the War on Terror .
Louis Moreno Ocampo was always going to write a book about his nine years as the founding prosecutor of the International Criminal Court (ICC), but the 650-page tome that landed in 2023 is more than just a memoir.
War and Justice in the 21st Century: A Case Study on the International Criminal Court and its Interaction with the War on Terror is a fusion of legal philosophy, international diplomacy and biography. It captures the intricate attempt to unify a fragmented international legal system and the subsequent legal and political clashes that emerge from putting in place a global system of justice to punish the most heinous crimes.
The ICC’s shadow has loomed large over East Africa and the Great Lakes region for the past 20 years, with cases in the Democratic Republic of Congo, Uganda, Sudan, Kenya, Central African Republic and Burundi. Ocampo’s book reveals previously unknown details about the delicate push-and-pull negotiations that have shaped the search for accountability for violence in the region.
The pursuit of justice is cast in sharp relief against the backdrop of emergent contradictions from the war on terror, with the former prosecutor challenging experts and scholars to connect principles with reality, and thus propose new and integrated legal solutions for managing international violence.
Ocampo, a feisty lawyer who had prosecuted military juntas in his native Argentina, was plucked from the classroom at Harvard University to head prosecutions at the ICC. He had established his law firm, was teaching, and had his focus on family: He had just remarried and was raising his teenage son and daughter from his first marriage.
When Prince Zeid, the Jordanian President of the Assembly of States Parties, called to offer him the job, Ocampo was sceptical, but still contacted Argentina’s new president, Eduardo Duhalde. He learnt that Argentina had presented a supreme court’s justice as a candidate for judgeship at the ICC and so would neither promote nor oppose his appointment. States were pushing for the appointment of their candidates, and it was difficult to imagine that Argentina would have both a judge and the chief prosecutor.
A decade earlier, Ocampo had learnt how complex the process of appointing an international prosecutor could become. After the United Nations Security Council created the International Criminal Tribunal for the former Yugoslavia (ICTY) and informally settled on him as the first chief prosecutor, the Argentinian government refused to nominate him. At home, his government considered Ocampo a political enemy after he led several investigations into public corruption.
He was sceptical about his chances of being appointed, and thought that the Swiss prosecutor Carla del Ponte was a better fit. In the end, the Argentine candidate for ICC judgeship was not elected, and Ocampo was invited to discuss the possibility of his appointment. He would commute every month for nine years to visit his wife and children.
His responsibility entailed building the institution by identifying the most critical issues and defining priorities. It would be a high-wire balancing act of juggling diplomacy, international criminal law and politics.
The Cold War had frozen support for international criminal justice support after the Nuremberg Trials, and it was only the horror of the genocides in Rwanda and the former Yugoslavia that jolted the UN Security Council to establish the ICTY and the International Criminal Tribunal for Rwanda (ICTR). The ad hoc tribunals paved the way for discussions leading up to the Rome Conference in 1998.
At the signing of the Rome Statute, the treaty that created the ICC, then UN secretary-general Kofi Annan said: “We have an opportunity to create an institution that can save lives and serve as a bulwark against evil. So, let us rise to this challenge. Let us give succeeding generations this gift of hope.”
Ocampo’s experiences confirm a common fear: The United States has always been the fly in the ointment of international justice. American angst in shielding its soldiers from criminal investigations, laid bare when the US Congress prohibited cooperation with the ICC and even authorised an eventual invasion of the Netherlands to rescue US prisoners, has undermined the dream to create a universal justice system.
Since the end of the Second World War, the US adopted a national defence strategy focused on protecting “home” through military deployment “abroad.” The strategy exposed US soldiers to investigations abroad, thus opening a confrontation with a permanent ICC operation.
Although President Bill Clinton signed the Rome Statute in 2000, he did not submit it to Congress. His successor, George W Bush, not only blocked the ICC but curtailed its operations using its veto in the UN Security Council. The trans-Atlantic controversy aggravated following the promulgation of the American Service-members Protection Act. The Bush administration promoted the signing of Bilateral Immunity Agreements (BIA) worldwide, which bound nations to accept that current or former US government officials, military and other personnel, and nationals would not be transferred to the ICC jurisdiction.
When, in March 2003, the US led an international military intervention in Iraq, it multiplied its efforts to undermine the system that created the ICC. The US would use its veto power to force the UN Security Council (UNSC) to adopt resolutions under Article 16 of the Rome Statute to protect its personnel from any ICC investigation.
“The War on Terror model perceives only friends or enemies and therefore included between the enemy tag those proposing multilateralism; justice; and in particular, the ICC. Years later, Fatou Bensouda, the second ICC chief prosecutor, announced an investigation on US crimes in Afghanistan and was designated, a sanction applied to drug dealers and terrorists. The War on Terror and the Rome Statute are two opposite models,” Ocampo writes.
American fears are not entirely unjustified. The bulk of the communications received when Ocampo took office involved allegations that the US committed a crime of aggression in Iraq. A US professor visiting Ocampo’s office told him, “There is so much pressure that you should be paralysed.”
Within the US administration, however, Ocampo’s friends who tried to make a case for the ICC faced rough winds: “Louis,” one friend told Ocampo, “your place is radioactive!”
“As soon as I mentioned the words ‘International Criminal Court,’ people turned away and let me talk alone,” he writes.
From the outset, the Democratic Republic of Congo and Colombia appeared to be the gravest situations where the numbers of victims of alleged crimes under ICC jurisdiction had been committed. At the time, at least 5,000 people had been killed in the same period in each country.
Uganda was next, with approximately 2,500 killings and a similar number of abductions.
There were national proceedings in Colombia that required further analysis, whereas there were no investigations of the DRC crimes.
The UN Security Council passed Resolution 1493 on July 28, 2003 focused specifically on Ituri and two other provinces, and provided a mandate for peacekeeping troops.
During the Assembly of States Parties in 2003, Ocampo invited all state parties to refer to the DRC situation to the ICC. A few weeks later, he asked Uganda to refer its own situation.
He received the referrals and opened a DRC investigation in June 2004, and in Uganda the following month, thus triggering the court’s operations without controversy. These first steps would build confidence for the referral of Darfur in Sudan.
DRC’s President Joseph Kabila had explained that his country was unable to carry out investigations and expressed his government’s willingness to cooperate with the court. The other relevant case, against Calixte Mbarushimana, related to the Hutu militias working in the Kivu provinces, and the ICC’s failure to confirm the charges against him affected the court’s reception in Rwanda.
Ocampo followed a policy to invite states referral for the first time in DRC. Its implementation in Uganda generated significant criticism and the labelling of “self-referrals.” The US National Security Strategy set out by President Barack Obama in 2010 presented self-interest as an explicit policy: “We are supporting the ICC’s prosecution of those cases that advance US interests and values.”
In March 2005, nine state parties in the Security Council referred the Darfur situation to the ICC. After three months of a preliminary examination, the ICC opened an investigation in Darfur.
Obama took advantage of the ICC’s arrest warrants against President Omar al-Bashir to increase his leverage in a negotiation to facilitate South Sudan’s independence and boost Sudan’s support in the War on Terror.
“The Obama administration was integrated by people fully committed to Darfur’s victims, but it decided that stopping the genocide was not its priority – the inaction by nations in arresting individuals abroad.”
The Uganda case would be a 10-year dance. After receiving the confidential referral, Ugandan President Yoweri Museveni invited Ocampo for a meeting during his official visit to London at the end of January 2004. Ocampo’s goal was to convince Museveni to lift the confidentiality of the referral. The UK’s International Development area informally intimated that the ICC intervention could interfere with the ongoing negotiations with the Lord’s Resistance Army to reach a ceasefire.
Ocampo met Museveni on the eve of a scheduled meeting the Ugandan leader had with Prime Minister Tony Blair and his cabinet members. The United Kingdom was offering financial assistance to Uganda to fight terrorism in Africa.
In June 1999, the DRC had sued Uganda and Rwanda at the International Court of Justice (ICJ), alleging “acts of armed aggression.” As a consequence, Uganda was worried about ICC plans to open a DRC investigation.
During the meeting, they presented the argument that Ugandan personnel were not involved in DRC crimes. They explained that Uganda withdrew its soldiers from the DRC even before it ratified the statute. Consequently, no Ugandan soldier engaged in the Ituri conflict after the Rome Statute came into force. In any case, they offered access to all the information they had presented before the ICJ.
On January 29, 2004, Ocampo was seated with Museveni at a small press conference in London, making a public announcement of the referral received in December. No pictures or videos were taken. He recalls: “I don’t know what would have happened if I had refused to be at the press conference. But Uganda’s Parliament took more than two years to amend the Amnesty Act, triggered by the issuance of the ICC arrest warrants.
On February 21, 2004, the LRA attacked the Barlonyo camp for displaced people, killing more than 200 persons. The UN Security Council did not comment. Instead, it reacted in less than one hour to an al-Qaeda bombing in Madrid in March 2004 that caused a similar number of deaths.
“I wanted to focus the world’s attention on how to stop the crimes.”
In May 2004, the ambassador of a Scandinavian country highly supportive of the court went to Ocampo’s office asking to stop our intervention in Uganda. The ambassador considered that the Ugandan army could not defeat LRA leader Joseph Kony and, if indicted, Kony would retaliate against civilians.
Then he added, “Do you need evidence? Let me present my evidence: I am trying to talk with Kony — I am calling him, and he is not taking my call. That is my evidence.”
In the meantime, the Central African Republic referred its own situation to the ICC, encouraged by the International Federation of Human Rights (FIDH).
Criticism had begun to mount for the prosecutor’s decisions. Civil society organisations and local communities opposed the prosecutor meeting Museveni to receive Uganda’s referral publicly, raising concerns about the propriety of contact with a political leader considered a suspect of the crimes to be investigated.
But, from all around the world, there were growing demands to open investigations against individuals from the US, Iraq, Israel, Sri Lanka, Zimbabwe, or Sudan. Still, those states were not parties to the Rome Statute, and, consequently, were outside the ICC’s jurisdiction.
“I encouraged some of them to keep speaking openly against us as a unique way to protect themselves, but I wanted to be sure they understood our mandate.”
Nine months after opening an investigation into northern Uganda, the prosecution requested and obtained an arrest warrant against Joseph Kony and his four top commanders. In July 2005, Pre-Trial Chamber issued all the arrest warrants requested. Ten years later, in January 2015, Dominic Ongwen appeared before the ICC, but he did not challenge the court’s jurisdiction.
Earlier, in 2010, Ocampo had invited Kenya’s president to refer the situation in the country after the post-2007 election violence to the ICC. Kenya played all sorts of games to stave off ICC involvement.
Congolese Vice-President Jean-Pierre Bemba had tried similar prevarication tactics, so Ocampo felt he was much the wiser.
A government delegation visiting The Hague to negotiate a delay in ICC intervention made a small tactical error, as Ocampo recalls: “One of my assistants heard the attorney-general’s conversation with his staff in the corridor of my own office, debating the best way to control my decisions.”
After that, Ocampo knew that he would not wait to be outmanoeuvred and announced the start of his investigations. Later, Kenyan leaders objected to the suspects’ selection and joined the African bias campaign.
Ocampo reckons that by accepting to lead the War on Terror’s regional efforts in Somalia, Kenya’s leaders obtained support from the US and UK. Although Cote d’Ivoire was state non-party to the statute, it accepted the court’s intervention in its post-election violence.
During Ocampo’s term, the Congolese warlord Thomas Lubanga was convicted for recruiting and using child soldiers and sentenced to 14 years in jail.
The book also addresses the preliminary examinations not to open investigations in Venezuela, Iraq, and Palestine, as well as the ones in Honduras, Korea, Guinea, Nigeria and Georgia, and provides reasons why the ICC could not proceed further in Afghanistan. A full chapter is dedicated to Muammar Gaddafi and the Libya case.
After Ocampo’s tenure, Comoros, Mali, Gabon, Palestine, and Venezuela referred their own situations. In September 2018, for the first time, a group of states parties (Argentine, Canada, Colombia, Chile, Paraguay, and Peru) referred to the ICC the situation of another state party: Venezuela.
Rendered in professorial tones, the legal arguments are peppered with anecdotes from real-life experiences that make this book a useful resource for law and international relations scholars as well as ordinary readers.
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