Pursuing International Justice: A Conversation with Luis Moreno-Ocampo

Thursday, February 4, 2010

JOHN BELLINGER (CFR): My name is John Bellinger. I am a adjunct senior fellow in international and national security law here at the Council on Foreign Relations, and I want to welcome you all here to tonight's discussion with the ICC prosecutor, Luis Moreno-Ocampo.

Tonight is the inaugural event of a new series of events in a Council on Foreign Relations program on international justice that is being directed by me and Matthew Waxman of Columbia University. And we have got a generous grant from the MacArthur Foundation to support this. We expect over the next two years to have a series of events focusing on the international criminal tribunals and issues like universal jurisdiction.

And we also hope to produce very quickly a council special report on the U.S. negotiating role as we go into the Kampala review conference for the ICC. This is the 10th anniversary of the International Criminal Court. And there is a review conference in May and June of this year. So we will be producing, we hope in fairly short order, a special report on how the U.S. should approach that.

My friend Judge Stephen Schwebel is going to introduce the prosecutor in just a moment. Most of you know Steve, but for the few of you who don't, I have to say Steve is one of the most respected international lawyers and jurists in the world. I am particularly proud of the fact that Steve started in the Legal Adviser's Office, where he worked for many years, and rose to be deputy legal adviser.

In 1981, he was nominated and elected to be the U.S. judge on the International Court of Justice in The Hague, where he served for 19 years, including from 1997 to 2000 as the president or the chief justice of the International Court of Justice.

So we're very honored to have him here tonight. I have to say given the venue, most important, though, Steve has been a member of the Council on Foreign Relations for 54 years, since 1956.

Judge Schwebel.

STEPHEN SCHWEBEL: Thanks, John, for emphasizing how old I am. (Laughter.)

It's a great pleasure to welcome you to this meeting of the Council on Foreign Relations. Members of the council from around the world, around the nation and the world are participating in this meeting via teleconference.

Please, before we begin, turn off your cell phones, BlackBerrys and the like, to avoid interference with the sound system. This meeting is on the record. And there are some guests present as well as members of the council.

We're fortunate to have a dialogue this evening with Mr. Luis Moreno-Ocampo, who is the first prosecutor of the International Criminal Court. Before his election by the Assembly of States Parties to the Rome Statute as prosecutor, Mr. Moreno-Ocampo had a most distinguished and courageous record as a prosecutor in Argentina, notably as prosecutor of Argentine generals who were in control of the Argentine state for some years and who prosecuted the so-called Dirty War.

Mr. Moreno-Ocampo first of all will make some remarks about the International Criminal Court and his role as prosecutor in it. Then I'll ask him a few questions and then we'll move to questions from the audience.

Mr. Moreno-Ocampo, please.

LUIS MORENO-OCAMPO: Thank you very much.

I prepared a long speech, so you have the papers; you can read it. I was receiving clear instructions I should not read. And my idea is to summarize the ideas and then we can discuss.

I'd like to present three ideas here, or better, one idea is the idea how to prevent -- how to prevent those crimes that we thought over and over would never happen again, only to see they occur again and again before our eyes: genocide, crimes against humanity, and war crimes.

And what I would like to talk with you is something new here, and it's called international legal institutions who are trying to deal with the problem. And for me it's interesting because in this country, it's difficult to believe that you'll be protected from outside for legal institutions, but not the same for other countries.

And that's what I'd like to present to you, because basically this may be able to motivate three regions: Europe, Africa and South America. And the common ground is that all these regions suffered these massive crimes, and they learned that no country can control these crimes alone.

Europe suffered in the Nazi regime and the Balkans. South America and Africa suffered during the Cold War. And lastly I would mention the Rwanda genocide. But this lesson today -- I was talking with a friend of mine who's an international lawyer. I asked him, what do you know about the Congo wars? He had no idea that -- existing Congo wars.

And in the Congo wars, 4 million people died. And it was a consequence of the Rwanda genocide, as you know, because the roots are, people moved from Rwanda to Congo and then the Congo was destabilized, and 4 million people died. Sixteen countries were involved in these two wars.

And that's what they learn. They learn that it's not possible to control these massive atrocities alone. And there are other countries, from other regions, who also understand this idea, like I would say Canada and Mexico, Australia and New Zealand, Japan and South Korea, Jordan and Afghanistan. All these are the state parties. So this is the idea.

And to emphasize this idea how the law is protecting them, I'd like to quote a Costa Rican ambassador, because we had a meeting with him a month ago at Harvard. And then he was explaining why Costa Rica was so active in the Darfur case during the tenure -- during Costa Rica's tenure in the Security Council.

And Costa Rica explained it's about national interest. For Costa Rica, enforce and promote international law to protect countries is in the national interest; and it's beyond, because, I say, there are 26 countries in the world with no army, and Costa Rica is the biggest. So they have the responsibility to lead, exactly. Costa Rica has no army, yes, you are leading in the area, use the law to protect themselves.

And so for them, it's a matter of domestic security. It's not a principle. For Canada, it's a principle. For Costa Rica, it's different.

And, okay, another example I'm quoting in my written -- in my paper -- is Liechtenstein, who is -- Liechtenstein is today -- the ambassador, Christian Wenaweser, is the U.N. ambassador for Liechtenstein, is ambassador of Liechtenstein at the U.N. in New York, and is the current president of the Assembly of States Parties to the Rome Statute. So Liechtenstein is our leader.

And they say, he say state parties are under the protection of the court. That's the concept and is a cornerstone of the international criminal justice system they developed: the rule of law as a protection.

This is, for me, the first idea, an idea I'm not sure if I can convey to you and if you in this country can understand this idea, but that's what these 110 states are thinking: protect themselves.

This was idea, in the paper, in (1999 ?) they adopted. And in 2003 they gave me the responsibility to put this idea in motion. And the mission is defined by the statute. My mission is to end impunity for these crimes in order to contribute to the prevention of future crimes. So the goal is prevention here. That is the mission.

And I have three different types of activities. My mandate is to select the situations to investigate, and it is pretty unusual, because in Yugoslavia, in Nuremberg, in Rwanda, the state defined where to investigate. Here I can do this; I can select the situation. And that was a big issue in Rome. Then I have to investigate. I have to prosecute the cases.

In the paper you will see the criteria tells you where you start it. I have to first assess jurisdiction. So I have jurisdiction, according to the treaty, when the crimes are committed by nationals of state parties or in the territory of the parties. And therefore, Sri Lanka, Iraq, Lebanon, Burma, Zimbabwe, Nepal or Somalia are not state parties. Whatever crimes are committed there, I could not be involved without Security Council referral, because they are not state parties.

Second, I have temporal jurisdiction in crimes committed after July 1st, 2002.

Third, subject matter jurisdiction is crimes against humanity, war crimes and genocide. For instance, (as to conflict ?) in Venezuela, we'd reject Venezuela, because whatever you think about Venezuela, these crimes are not committed there.

Fourth -- and it is important to understand -- my first duty is not to investigate when the national states are conducting investigations. I have to respect genuine national investigations, because that is the interesting model developed in Rome. It's a model based in coalition of states who are committed to prosecute themselves the case, but they accept that if they don't do it, I will do it, the ICC will do it.

So my first duty is to respect what they are doing. So I have to assess if there are national proceedings. And Colombia, you will see in the paper, is the best example of a case in which there are crimes allegedly under my jurisdiction; however, because they are conducting a national investigation, I should not interfere there, assume they are doing the cases.

Then another requisite I have to respect is the threshold of gravity, because we have -- crimes against humanity and genocide number massive crimes; and war crimes, we have to work on them, in particular where they are committed as part of a plan or a policy or as part of a large-scale commission. Therefore, we assess the (ethnic ?) crimes committed by national state parties in Iraq, because I had jurisdiction on them; we found -- in three different cases we found tortures and willful killings, but we decided we should not intervene, because -- were isolated crimes, not committed as a policy. Therefore, it's an example of what we cannot do.

And the sixth requisite is something very vague. The statute says I can -- I have authority to decide not to proceed with an investigation or prosecution if it is not in the interest of justice. And we are trying to refine what is justice, but what's clear for us is "interest of justice" is not the interest of peace or interest of security. That's a Security Council matter. I could not replace Security Council, and I -- for me, it's very important to keep my judicial work, not be involved in political work.

It's interesting, because the president of the court says the court is a judicial institution operating in a highly political environment. That's our life. And what I do, I respect my legal limit, but in particular my policy is to -- not to stretch the interpretation of the law. What I do to facilitate the political actors is to inform them in advance what I will do, hoping that they will take this in consideration. (Chuckles.)

Not always happen. When I requested the arrest warrant of President Bashir, one ambassador in the U.N. told me: Prosecutor, how you can do Bashir without informing us in advance?

I said, I'm sorry, but for the last year, I (kept hearing ?) six months. I was telling you I would prosecute the person who protect the minister. How many people can protect the minister? How many can order a minister? That's what I said. And the ambassador told me, yes, yes, you say that, you say that; but we did not believe you will do it. (Laughter.)

So my capacity to inform in advance is not working very well, and that's something -- one of the reasons I'm here is trying to understand better how to communicate with this diplomatic environment, who is crucial for me, because basically, at the end of the day, the impact of my cases will be defined by them, not by me. But -- so it's not easy to explain to them what we will do.

In addition to these possibilities, I mentioned the Security Council can refer to me a case, any case in the world. So they can give me a case as an ad hoc basis, as they did in Darfur; and a state can accept jurisdiction for a case, for a situation, and that's what Palestine is attempting.

So these are the rules of selection of situations. So, basically we are working in cases in Congo, Uganda, Central African Republic, Darfur, and now we are requesting the judges' authorization to start an investigation into Kenya.

We have four prisoners in jail. The trials are now moving. And in addition, we are assessing if we have jurisdiction in different situations in the world, including Colombia, Cote d'Ivoire, Afghanistan, Guinea. We have this Palestine -- request for Palestine. And that's it. And Georgia.

So that's my last point. This is what we are doing.

My last point. I don't know how to do this short, because basically what I have to explain to you is, yes, criminal lawyers focus on what happens inside the court (and of course ?) have to be perfect in court. And I will use some example of what we do. We almost -- for a different reason, we were going to lose the first case the court was trying to do, because I had a duty to respect confidentiality, and then when an organization provided to me information, I had to respect confidentiality, but also I had to disclose information who is material for the defense. And I told the judges, look, I have this information I cannot disclose but could be material for the defense. They just said, okay, show it to us.

I cannot do it, because the rules say I cannot do it. So the judges said, okay, prosecutor, but then we stay the proceedings and we free Lubanga. And I say, okay, do it.

So, basically I think it's a good example how the court was ready to lose the first case but not to compromise in our legal duties: I, in my legal duty to respect confidentiality and respect the right of the defense to see the material, but there was a contradiction; and the judges in their respect for a fair trial. And I think in the long term, this is exactly what happened -- had to happen, because the court, to be respected, should be a serious court.

However, my point is, even with the best court in the world, the issue is not what the court is doing; the issue is how the court will impact. And the impact is not just about ourself.

I mentioned here -- at Harvard, they normally -- we talk about the shadow of the court. And this is basically an idea of a Professor Mnookin, who developed a paper years ago talking about the -- something normal, family courts, who are making -- deciding on divorces, but then the lawyers use the same rules to make divorces without the judges' involvement. And the idea was, okay, these people are working under the shadow of the court.

And the other day -- this is very important, in particular in my court, who will do two or three cases in the next three years. The shadow, who could be global, is the most important part, because that was the concept; the concept is because the system is based on the idea the national court will do it. Few cases in The Hague could have a tremendous impact not just for the court; for other actors. And that's the point I was trying to make.

First, political leaders. Political leaders are critically important here, in particular when we are prosecuting people like President Bashir, because they've (already had the clue ?) last year. And interestingly, in this case even Bashir was trying to collect support, because the indictment against him produced that he had to collect support for him, and he was campaigning. However, South Africa, for instance -- and this is very remarkable -- told him, we invite you for the opening ceremony of inauguration of President Zuma, but if you come here, you will be arrested.

And then Uganda, Nigeria, Venezuela, even Turkey, said that. Sarkozy says to cancel an Arab-French meeting because President Bashir would be -- is going to be there. So President Lula, President Kirchner of Argentina, refused to meet him in this Arab-South America summit. So there are different initiatives. The Arab -- the leaders have taken this in consideration.

And the Guinean case, another example I mention in my paper showing how the impact, the preventative impact we have on the leader of Guinea, but also how even Morocco was afraid not to appear protecting a war criminal. So this is happening well.

The second idea that is working well is armies. Armies all over the world are adjusting their standards, their training and the rules of engagement to the ICC. And that, for me, is the perfect impact, because that's a way to ensure that the use of the force will be in accordance with the rules. And that is a way to change the use of violence. This is happening.

The third point is mediators. This is -- (depends ?). So negotiators are critically important, because at the end of the day, they have to find solution or try to find solution for the problems. I have a good example, who is Kofi Annan, in Kenya, managing very well. He had to stop violence during the post-election, but also he keep working, always promising justice had to be done.

In other cases you see examples, for instance, when we prosecuted -- in the first case of Darfur, we prosecuted Mr. Harun. And basically the arrest warrant was ignored. And it was neither good for the -- it was not good for the -- neither for the mediation nor for justice. Nothing happened. Situation was worst. So I found this area of negotiation is an area who had to be developed. And maybe that's why I like to give you the message clear here.

We have the very sophisticated army rules. Armies are very sophisticated. As you know, they have very strict rules on collateral damage, on everything. Judges and prosecutors are complicated because you have all these evidence rules, and suddenly the negotiation became so basic and primitive. I have information we cannot discuss now; really, normal negotiators don't know exactly what happened there, they have not enough information, they are not well trained. And this is catastrophe.

Of course, when you have Kofi Annan -- or I would say Richard Williamson -- things work well. But it's not yet clear rules and protocols of what they should do, what they should not do. One ambassador, when I explained this idea you can do much better, one ambassador in New York told me, it's a problem for us because we have two tactics -- bombing or appeasing, nothing. So when they are not doing what we want, we threaten with the bombing. As soon they accept whatever we want, they're appeasing. So nothing between bombing or nothing. And that's a problem for us. I think that is something to be developed.

And my last two points are about victims who are participating with us, and even as a witness they're exposing themselves; and citizens. And I will say we need citizens, because if not, the political leader will not take this in consideration. So political leaders need support to take the different decisions they have to take. And therefore, we need citizens.

And I quote the example of "invisible children." I don't know if you know this group, this amazing group, is basically three 20-years-old boys from San Diego who were studying filmmaking, and they went to Uganda. They filmed -- they saw these children walking each night, to be protected, they filmed them. And they start to show the movies here, and they developed a network of thousands of young people from the U.S. supporting this, developing schools in Uganda.

And now they are promoting a law -- passing a law in the Congress to request the arrest of Joseph Kony. So -- and this is three kids. Today they're 27. They're three young kids from San Diego who built this vision called "invisible children," who are promoting this global citizen idea.

So that's political leaders, armies, negotiators, victims and citizens. That's what we need to promote. And that is the opportunity.

So let me find -- let me end with a -- conclude with a non-party like U.S. What I saw in my six-year tenure is more and more state -- non-state-parties are cooperating with us. Russia is -- was providing to us 3,000 communications on crimes committed in Georgia. China say they are a non-state-party partner. Egypt, Qatar are working very well with us.

And the U.S. also was very supportive. And John Bellinger will explain much better than me what the U.S. is doing and was doing. But I will say U.S. adopted positive -- after 2005, adopted policy of positive engagement supporting some of our cases; in particular Uganda, and, I would say, a lot Darfur. And now they are supporting us in Kenya, also.

And I think that is the way to keep working together, you know? The court has to keep doing legal work, but we need to increase the support of these different actors. And that will be at least a way to build a system which -- (inaudible) -- massive crimes. And that is a good beginning, because that's for me the idea.

I see U.S. is normally saying that you need a -- this country feel that you need efficient multilateral organizations, and you feel sometimes that when you are not leading, the other countries are not -- are doing nothing. Okay, this is a case in which 110 states are doing something. And you have to decide what to do (with this effort ?).

Thank you very much. (Applause.)

SCHWEBEL: Thank you so much.

Mr. Moreno-Ocampo, under the Rome Statute, the prosecutor acts independently and cannot seek or receive instructions from any external source. Is it appropriate for the prosecutor, before reaching a decision to prosecute, to consult with governments and U.N. officials about the possible diplomatic impact of bringing a prosecution?

MORENO-OCAMPO: Let me answer that with my story. When I arrived to The Hague, everyone was asking me to intervene in Iraq because it was -- (inaudible). But Iraq is not state party, U.S. is not state party, so I could do nothing. So I (would say I will dismiss this ?), I will manage expectations, clearly, but I think I have to choose a case. So we looked. The worst cases were Colombia and Congo. But in Colombia, there were national prosecutions; nothing in Congo. So we decided it's Congo.

And then I say to my -- I have an international relations adviser. And I ask her, okay, how to start a case in Congo supported by states? And she said, okay, what you got to do is go to do consultations with different diplomats and different leaders, and then you get support, and then you start with their support. I said, okay, but what happens if they don't support that? (Laughter.) If they say no? Oh, if they say, no, you cannot do it. So I said, okay, but we are prosecutor, we cannot give the decision to others.

So from those days we started this method to be informing what we will do and then do it. So the first decision is judicial. Okay, this is a case, what to do, have to select a case. We inform, hoping that they will follow. And that -- some they follow, sometimes it is more difficult, but at the end they are moving. But basically, yes, I cannot consult, because then I became a politician.


MORENO-OCAMPO: And then sometimes it will be hard, sometimes no, but that's my job. So that's -- the answer is that. So what to do -- the decision is judicial, and then inform and try to get support.

SCHWEBEL: Well, one hears that there's been some grumbling in African circles that the ICC has concentrated unduly on Africa. Do you have any comment on that?

MORENO-OCAMPO: Yeah, many. (Laughter.) Now, first, I think it's a measure of success; we produce fear. I like that.

SCHWEBEL: (Laughs.)

MORENO-OCAMPO: Yeah. We have to -- we are producing fear that if you commit a crime, you will be prosecuted. That's a good idea.

And in fact, you see, there are 30 African state parties. None of them leave the court. And as I say, South Africa clearly say: Bashir, you come here, you'll be arrested.

So they are not a legal state party who are saying that; there are others saying that. And in fact, it's Bashir who's promoting this idea. So, basically propaganda.

Interestingly, if you remember, when Rwanda happened, in Africa people were complaining that -- why they are not interested in the African people killed, and you are working on Yugoslavia? Then the U.N. had to create the Rwanda tribunal.

In my case, I care about the African victims. Basically, that's the point. Yes, Bashir is African, but he's killing thousands of African people. His victims are African. So you have to choose a side. I'm the prosecutor. My side are the victims.

SCHWEBEL: Now under the statute, the crime of aggression is within the jurisdiction of the ICC, but it hasn't been actively so, pending agreement on a definition. Is there anything you can say about the desirability or undesirability of the court taking on prosecutions for aggression?

MORENO-OCAMPO: No, I am the prosecutor. You look at the law. I got -- I know my -- I have so many problems; I'm not focusing on the problems who are not my problem. This is not my problem. (Laughter.)

SCHWEBEL: What -- (laughs) -- I noted in the text of your speech that there are some 800 staff between the registry and the prosecutor's office.

MORENO-OCAMPO: Yeah. Yeah. Yeah.

SCHWEBEL: That's about 20 times the number of staff of the International Court of Justice. What are so many people doing?

MORENO-OCAMPO: Oh, my goodness. We are like a Boston prosecutor office, okay? We are like a Boston prosecutor office. I have 150 investigators to investigate all my cases. I have around 40 lawyers going to different cases in court. I have around 30 lawyers working in international cooperation.

Then the (receiver ?) has -- they have to run a prison. They have to run six field offices. They have to run the witness protection system. They have to run the office for the lawyers, for the public -- not the public, the lawyers for the defense. The victims have lawyers too, victims' representatives. So there are different departments. There have victims' -- it's an area to receive the victims who want compensation. The courts have systems.

We have translations. We have to translate French, English, Lingala, Swahili and different -- in -- just in Darfur, there are four languages. So it's a complex operation.

SCHWEBEL: That would -- it is complex.

MORENO-OCAMPO: Yeah. And as you -- (here it's funny ?) -- because you receive the -- you are -- do nothing; you just receive and read and decide. Here you have to -- I have to go through cases.


MORENO-OCAMPO: And we are working in a difficult environment.

But our size is the Boston prosecutor office and -- but they have the FBI. It's not in the budget. I have to do my -- to get it myself. So we are (very cheap ?).

SCHWEBEL: Well, let's open things up now to questions from the audience. The gentleman just here, please. Please state your name and affiliation and speak into the microphone which is being brought to you.

QUESTIONER: Thank you. My name's Travis Atkins. I'm with the International Foundation for Electoral Systems, and also I served as a humanitarian worker -- aid worker in Darfur 2004 and '5, so also a witness to the atrocities there.

So my question for you, Mr. Moreno-Ocampo, is that given the overwhelming amounts of evidence of systemized attacks, the use of rape as a weapon of war, racialized attitudes and targeted toward specific ethnic groups, why do you think it's been so difficult to meet the threshold of proving intent when it comes to charges of genocide, and also given the news of yesterday's lowering of the threshold in terms of indictments versus prosecution? Thanks.

MORENO-OCAMPO: Okay. The -- first, the judges approve the charge of extermination as a crime against humanity. So what happened in the camps is contemplated as a crime of extermination.

The issue, they say, was not evidence about the targeting of the specific groups; that is, genocide. They use a standard -- in my application we say we have so much evidence that it's the only possible inference, so we have beyond rational -- beyond doubt. And they say no, it's not true; this is -- there are other inference possible, and they dismiss our request.

But the problem is, we say that, but we say -- but this "beyond doubt" is for the conviction. We are requesting a warrant, and the standard is "reasonable basis to believe," and we are far beyond that.

So the judges basically use the standard of conviction for the standard of our warrant. And that was yesterday at the chamber rectified. So it was a legal discussion, and then we won the discussion. Now we are going back.

And I agree with you; it's a genocide. And I think we will get it.

SCHWEBEL: Yes, please.

QUESTIONER: Eugene Marans with the law firm of Cleary Gottlieb. Have you noticed at all any evidence of a deterrent effect of potential prosecution before your court? Maybe that's a silly question under all the circumstances, but in the criminal justice system, deterrence is one of the elements that helps succeed.

MORENO-OCAMPO: Yes. No, okay, I have many stories. It's very difficult to show causal relation, because, for instance, in the Joseph Kony case, because the Sudan was involved in the Joseph Kony attacks, they were trying to be sure we are not prosecuting them, so they signed an agreement with us saying that they will arrest Joseph Kony and they will conduct an investigation against -- themselves.

And as a consequence of this agreement, Joseph Kony had to leave. He left Sudan and moved to Congo. And basically the Ugandan crimes stopped in Uganda. So this is something you can see. And I can show you a graph; the killings were reduced in all our cases. Since we start to work, the killings were reduced.

The problem is, in Darfur, the displacement is huge, and it's a different type of crime. And the problem in the Joseph Kony case -- the killings were reduced in Uganda, but now last year he was killing (people ?) in Congo. So at the end of the day, we -- why we need to arrest him. It's not enough.

But I can mention different stories. For instance, in Colombia it's clear the paramilitary were saying they were -- they were -- they'd like to be involved in the national system because they don't like to face the ICC. And in Somalia I have many stories about -- in Somalia the warlords were threatening each other to (denounce ?) their cases before the ICC.

And interestingly, that's why for me the shadow, the impact is so important. The U.N. Special Representative for Child Soldiers says she went to Nepal, and she saw that in Nepal they released all the child soldiers as a consequence of the Lubanga trial, who was in Congo. And Nepal even is not a state party.

So we're collecting these type of stories. So I have the stories. I have no numbers for -- for an economic mind, I have no number to show. I have some stories.

I think yes, it's -- of course -- and that's the point. If we arrest Joseph Kony, the (deterrence then ?) will increase; if President Bashir is isolated and arrested -- will increase. That's why the impact is not just about the court; it's about the system working in the shadow of the court.

SCHWEBEL: Professor, please.

QUESTIONER: Doug Cassel from Notre Dame. You have mentioned both President Bashir and Joseph Kony, both of whom are among the most prominent -- perhaps the most prominent -- people indicted but not arrested.


QUESTIONER: My question to you -- and perhaps you can't comment on it, but if you can -- do you have any requests or suggestions that you would like to make to the diplomatic community and the powers that have the military forces necessary as to what should be done in regard to arresting either or both of them? Thank you.

MORENO-OCAMPO: Yeah. They are different, because in the case of Joseph Kony, what we need is a special force operation. Legally it's perfect. Politically it's perfect. Everyone is in agreement. But we have no one providing special forces to do it.

Uganda is the only country in the world who is willing to attempt to do it, but they are planning normal war operations, and they bomb the camp first, and they attack with -- like an army, and then if Kony always escape and then if they kill 300 soldiers, he does not care, because are childs -- kids abducted, so he go and abduct more.

So we need to change the approach. And yes, we need special forces -- I publicly can say that -- and, I hope, can devote -- special forces can devote one operation for this. It will save thousands of lives.

It's -- one of my problems is working in Africa when -- in Georgia, there are three -- 300 -- the crimes in Georgia, alleged crimes in Georgia -- there was 30,000 people displaced. Joseph Kony himself, in the last year and a -- in the last year, displaced 280,000 people just in Congo and killed 1,200 people. I have him indicted. I should not do a second case. But no one knows the crimes he's committed here in Congo.

So yes, we need desperately special forces to arrest Joseph Kony.

President Bashir is different, because I don't believe he should be arrested (militarily ?). It's a -- it's a political process, no? I think -- I had a discussion with China ambassador last time he was -- I was telling him -- because I studied a lot the principle of China, and China pay particular attention to the national sovereignty concept.

So I told the ambassador: Ambassador, my approach is Chinese.

Why do you say that?

Because, see, Bashir -- (explain to me ?) -- (chuckles) -- we request the arrest warrant against President Bashir and we requested Sudan to arrest President Bashir. So we utterly respect national sovereignty. We respect this -- the national country to arrest his own president -- its own president.

So that was what we are thinking. I think it's a matter of what happened -- (what makes here ?) a different type of crime. You need political control, and then he will be -- he cannot be a fugitive president, in fact, because he needs protection. So he basically cannot be the president of the country. But it will take time.

So we need two different type of approach: special forces for Joseph Kony, because it's legally totally perfect and politically okay; a political strategy for President Bashir.

SCHWEBEL: The gentleman over there, please.

QUESTIONER: Hi. (Profil ?) Argentina. In Argentina, 23 years ago, when you were prosecuting the military junta, there was a famous word there that we used to use, to call the "Obediencia Debida." That means that the courts were following orders from top.


QUESTIONER: So there was a moment that there was a limit -- and maybe you can explain much better than me, probably -- (chuckles) -- that you cannot follow more in the lower ranks because they said that they were following orders.


QUESTIONER: How this apply to all the cases that you are following?

MORENO-OCAMPO: Yeah. Since Nuremberg, the obedience is not accepted as excuse. In Argentina it was the wrong title; the -- (so then ?) courts say it's just is like a partial amnesty, basically.

In our court what we do is, because I had to select a few cases, I focus in the most responsible people. But we are not providing impunity for the others, because the court is complementary. So after we do the top -- after -- for instance, now, with President Mbeki, President Mbeki's promoting the idea to do more cases in Sudan. Perfect. We do President Bashir and Harun Ali Kushayb. The rest -- all will do it.

So we focus in few cases, top people, because that will increase the deterrency impact. And the national system should do it after. Argentina is a good example, because 30 years after, there's still judges doing a case in Argentina against generals. So -- still working. It's a long time, but it's working.

So we focus in the more responsible, but the others are also responsible and have to face charges.

SCHWEBEL: The gentleman over there, please.

QUESTIONER: I have a few questions.

SCHWEBEL: One question, please.


QUESTIONER: Sorry. I'm from -- Fatar Ahmad (sp) from embassy of Sudan.

SCHWEBEL: Speak into the microphone, please.

BELLINGER: There we go. Okay.

QUESTIONER: Here -- in your first point here, you mentioned the principle of complementarity.


QUESTIONER: And this is not applied in the case of Sudan. We have -- and is our system -- the system of Sudan, the justice system, is a well recognized and capable system to serve the justice. So it is not applied in the case of al-Bashir.

The other principle of -- the international principle of sovereignty and -- of the country and sitting president -- the warrant of interest -- of arrest here for the president is violating this principle.

The other -- you mentioned here that you want to serve the -- when there is a -- serve of the interests of justice. So do you think this will serve the interests of the justice in Sudan to issue a warrant of arrest for the president, sitting president, right now, where there is peace processes and there is democratization and many things going on and the system of justice is working?

The other thing is that you said that you -- point here that there are legal limit. You seem to -- appear in many, many events that is -- as if you are doing political campaign, which is that -- if that serve the interests of the justice? Thank you.

MORENO-OCAMPO: Okay. On complementarity, you know, I received the Security Council referral, and for three months I did not open the investigation. I check -- I checked if Sudan was doing national proceedings, and we found they were not. That's why I started the investigation. So I check complementarity.

But after that, I keep checking complementarity. And your country invite me to Khartoum. So I visit and interview all the judges, all the prosecutor of Sudan. And basically they did no case connected with Darfur. And this was confirmed in September 2008 for the Afghan Union, who sent the reports on Sudan saying there were seven cases that you comment on this topic, and the worst, the most -- the most -- the gravest case was a policeman who killed a person at demonstration -- so nothing to do with the massive campaign we did.

So we basically fulfill absolutely our duty to complementarity, and more.

In November 2006, before I presented my case to -- about the president, Mr. Harun, I met with your -- the -- your government, and I said to them: Look, I will move my case. You have to show me if you are doing cases or not, because you do to the -- you do the case, I will not present my case and I will check your case out generally. Basically, they did -- they did not -- case. So that's why I moved. So I fully respect the idea.

On immunity, as you know, the judge could be more clear than me, but it's clear jurisprudence on international law saying that there's no immunity for head of state before international courts. So these are one argument, and we have presented this.

President Bashir has a right to think differently, but he has to go to court, and we'll discuss in court.

On the interest of peace, it's very interesting, because I presented the case of President Bashir in July 2008. In those days, there were no peace process. The peace negotiator resigned in June 2008. Today they are -- peace process. As you know, today in Doha, they're discussing, as they are requested -- in fact, my request, three -- a lot of efforts -- contrary to what you say -- three efforts to achieve peace. African Union appoint with the U.N. a new special envoy, a new negotiator; and Arab League and African Union appoint a Qatar prime minister as a special -- in charge of this process; and today in Doha they are discussing this.

So on the contrary, in some way they requested the court, on my request, to get discussions. Of course it's not yet a solution, but at least the negotiation for -- to solve the conflict and in parallel with the ICC decisions.

I have no problem to -- if your court represent Bashir. I have no problem not to talk more about this issue, because I have no more need. If you are not arresting President Bashir, I have to explain why it's important to arrest him here

SCHWEBEL: The gentleman on the aisle there, please.

QUESTIONER: I'm Welby Leaman from the Treasury Department. I want to ask you a question that maybe years ago would have been called the Pinochet problem, and in the future may be called the Mugabe or Bashir problem or something like that. To what degree should international prosecutors defer to the decision of a country that, being the principal victim of the crimes of its own leader, decides in one way or another not to, so to speak, press charges, but rather reach a grand political bargain that shields the leader from blame in return for a democratic transition?

MORENO-OCAMPO: The concept in the (IC is ?) never, so we are -- we say no national amnesty can (oppose again ?) to us. So our -- the laws say we should prosecute them, and that's what I am doing. So this concept is gone.

There's no -- on the contrary, the principle today -- there is no blanket amnesty, in particular for leaders. They cannot be pardoned. So that's a new -- the principle who's operating.

And this is a new evolution -- this -- imagine, 40 years ago this was not existing, but now this is standard. U.N. -- Ban Ki-Moon a few months ago issued a very strong guideline for the U.N. negotiators on that. So there is no blanket amnesty. No more Pinochet (case ?).

SCHWEBEL: The gentleman there, please.

QUESTIONER: My name is Ahmed Abu Zayd (ph) from the embassy of Egypt. I have two questions. In fact, the first one is building on your comment regarding the peace process in Darfur. Should I understand from what you're saying that if there were or there was a credible peace process in Darfur, you would not have proceeded with the President Bashir case, or not?

The second question is, what do you think about the Mbeki report, the idea of balance between peace and justice, and approach to have a local reconciliation and to apply justice through local reconciliation? Do you accept this notion? Do you think it is acceptable to you? Thank you.

MORENO-OCAMPO: No, maybe I wasn't clear. I have to prosecute people. That's my -- that's my job. That's the law. So I prosecute President Bashir because I have evidence that he's responsible for the crimes committed in Darfur. Of course, at the same time, there have to be negotiations, but President Bashir had to face charges. So you have to find negotiations. You have to negotiate with him or whoever, but he had to face charges. That's it.

And all the concept of the Rome Statute is that people learned that appeasing criminals is not -- was not working, was not working in Munich treaty, not working with Kony, not working with President Bashir.

So in Rome (the hundred ?) -- 36 states who decided that -- decided that there would be no more appeasement for leaders who commit massive crimes. They have to know they will be prosecuted. And that's the rule we're establishing now.

Of course, it's difficult, because it's like when you decide to stop to smoke. It's a good idea, but the first two weeks are complicated. And this happened here. So it's a beginning, but if we can move from this (bad equilibrium ?) in which leaders can kill people and nothing happens, to an idea in which whoever committed massive crimes will be prosecuted, that will make a transformation of the world. That's what we are trying to do -- move these things and (we're in ?) this process.

SCHWEBEL: The gentleman in the rear row, please.

QUESTIONER: Thank you. It's Pierre Ghanem, a member of the media from Al-Arabiya. A question about the -- Gaza and the allegations and the Goldstone report.


QUESTIONER: Are you discouraged by any means by the American attitude that this issue should not be brought to the ICC or before you? What is the next move on this?

MORENO-OCAMPO: Okay. In January 2009, so one year ago, the minister of Justice of Palestine came to my office and lodged a declaration accepting jurisdiction for Palestine. He told me that he will come a few months later to give me legal arguments. So a few months later he came back and explained to me: Look, the Rome Statute say a state can accept jurisdiction. We don't like you discussing if Palestine is a state or not, because it's a controversial matter, and there are different opinions. But we like your understanding for your role, for the criminal jurisdiction, we have enough capabilities, because we have criminal jurisdiction in Palestine. Therefore, we can transfer to you our criminal jurisdiction.

That was the argument.

And I told him: Okay, it's a very interesting argument. But according with the Oslo treaty, you have jurisdiction for Palestine people but not against Israeli soldiers, Israeli people. So you cannot transfer to me something you have not, because basically you have no jurisdiction to prosecute Israeli citizens.

Then we come -- we'll be back to you. So they come back in October. And the argument is, it's true the Oslo agreement restricts our jurisdiction, but that proved that we have jurisdiction, because we have jurisdiction, we restrict it in the same way that the U.S. is requesting Article 98 agreements, requesting other countries to restrict their own jurisdiction. This is proof that we have inherent jurisdiction here, and that's why we are providing to you, because with the Oslo agreement, we are enabled to accept jurisdiction, and the Israelis are unwilling to (lose ?) jurisdiction. That's why you have to do it.

So that's the legal argument they are presenting. And they're coming in March again with more arguments because they'd like to show me some case law they have about normal cases. So that's what we're doing. I received the complaint, and I let them to give all the arguments.

I received hundreds of communications, half of them saying I had to reject immediately this request, because obviously they are not a state, and the other half of the hundreds of communications we've received saying that I have to immediately accept this request.

SCHWEBEL: (Laughs.)

MORENO-OCAMPO: In both cases, I am doing my job, letting them to come with the argument.

But in the meantime, I told them: Okay, I will do my jurisdictional analysis to see -- I promise you impartiality and respect for the law that -- and I will listen to you. But in the meantime, where are your national efforts? Because you are telling me that you have jurisdiction in Palestine. Why you're not using your jurisdiction? Why you're not investigating the Palestinian people? Why you're not doing investigations -- Israeli soldiers? Because they cannot prosecute Israeli soldiers, but they can investigate Israelis.

So we'll see.

The Arab League is playing a very constructive role here. The Arab League a few -- a few weeks after Palestine came to my office, they created a fact-finding commission, led by Professor Dugard from South Africa, and they produced the first fact-finding report before Mr. Goldstone's report. And now they are working to convince Hamas that they have to also allow to be investigated.

So I believe this Palestine move, in my (eyes ?), I feel it's very important for the court, because Palestine is looking for justice in the court, but also it's changing the dynamic, because they are starting to discuss that they are -- they cannot use any means. They cannot use crimes to try to solve the problem, and that, in this sense, I think, is important.

What I will decide, it will depend -- and we'll see -- but that's what I'm doing now. I had to be sure that I had jurisdiction, but in the meantime I have -- asking them: What do you -- what is your homework? Where are your investigations?

SCHWEBEL: We'll have one last question. It will be from the gentleman in back, please.

QUESTIONER: Thank you very much for giving me this opportunity. My name is Peter (sp) from Kenya embassy. I just -- (chuckles) -- I just wanted to get your take on -- we have two Americans who have decided to oppose what you are doing. What is your take on that? Thank you.

MORENO-OCAMPO: I think Kenya is a great example how the court is helping to stabilize the situation now, because in Kenya they had this violence in the election, the last election, and now they managed very well with great maturity their -- but now they are preparing themselves for the 2012 election, and they have to be sure there is no violence.

And then we are, in some way, an independent part of the Kenyan justice system, so we are helping them to (adjust this/justice ?).

The system is, we have to request authorization with judges. The judge can receive any comment, but this comment will be irrelevant -- so I believe the case is clear, and the judge will authorize in due time. But (there are clear ?) information.

But I believe Kenya case could be a good example of how the other Rome Statute is working and helping countries to move ahead, preventing violence.

SCHWEBEL: Well, thank you so very much, Mr. Moreno-Ocampo. We're most grateful to you.

MORENO-OCAMPO: Thank you very much. (Applause.)

SCHWEBEL: The meeting is closed. Please remember that it has been a meeting that is on the record and therefore there are no restrictions in referring to it. Good night.

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