NEW YORK: Luis Moreno Ocampo, the first prosecutor of the International Criminal Court whose term ended in June 2012, said the ICC can provide an alternative to the dilemma of either a military intervention or doing nothing that faces the Security Council in managing some conflicts.
He suggested that referrals to the ICC could follow a staged approach and said that, in the case of Syria, this would be a “ticking bomb” for President Bashar Assad. And in the absence of a Security Council agreement, he said that if a new Syrian government was formed and internationally recognized, it could request the ICC intervention.
In a long interview conducted in New York and published, in part, by The Daily Star, Ocampo reflected on Palestine’s request before the ICC and on the cases of Libya and Sudan.
TDS: A few weeks ago, 57 countries called for the Security Council to refer the situation in Syria to the ICC. What in your opinion are the possibilities and obstacles regarding such a referral, especially in view of the Libyan referral when you were still the prosecutor?
LMO: First I think that the request to refer the case of Syria to the ICC reflects a new rule in the world. And this rule is at the basis of the Arab Spring: Leaders cannot commit massive atrocities in order to gain or retain power.
Sometimes, as in Libya’s case, the rule was expressed by the referral to the ICC, even though Gadhafi was later executed without trial after his arrest. In Syria the rule is also working in the Arab League’s position that Assad has to go because of the crimes he committed. And I think it is very important that the Arab League took this position.
However, the ICC cannot take the initiative to intervene in Syria because Syria never accepted to be a party to the court. So the only way to intervene is if the Security Council refers the situation in Syria to the ICC. The Security Council can, for the sake of peace and security, take such a measure in accordance with Chapter 7 of the U.N. charter. It did that by referring the situations in Darfur and Libya and before the establishment of the ICC the Security Council created the tribunals for Yugoslavia and Rwanda.
Now the decision in the Security Council is a political one, and there are probably many reasons why there is no agreement on Syria. But I think that one important reason is that Russia felt betrayed by the attitude of some leaders like [U.S. President Barack] Obama, [U.K. Prime Minister David] Cameron and [former French President Nicolas] Sarkozy who after the Security Council resolution to refer Libya to the ICC, started to call for a regime change. Russia would never have accepted that. Russia voted in favor of the intervention of the court but not for regime change. And I think that South Africa and India were in a similar situation.
So this excess, the call for regime change in Libya, has created a problem in handling the Syrian situation. Interestingly enough, I believe that some people in the U.S. are also not enthusiastic about the referral of Syria’s situation to the ICC, because they think that the ICC intervention in Libya reduced the options for negotiations. And they don’t want to repeat this in Syria.
TDS: In the absence of any agreement in the Security Council on this issue, is there another channel for the ICC to intervene, for example, if a new Syrian Government is formed?
LMO: In the present situation, the Security Council is the only channel. But things could be different if a new Syrian government is formed and recognized. This government could then make a sovereign decision to either become a member of the ICC or to request its intervention.
In the first case the ICC can take action without a request. And in the second, it will take action in response to the request, because any state can accept the jurisdiction of the court without being a member. For example, Ivory Coast is not a member state; however it requested the court intervention.
TDS: What if Russia and China don’t recognize such a new government? Would that affect the position of the ICC?
LMO: Syria is not like Palestine in 2009 where we had to look into whether it is a state or not. No doubt Syria is a state. The issue is only who represents the state. If this government is recognized by the United Nations then it does not matter if this country or that didn’t recognize it.
TDS: Are there any other ICC-related options for the situation in Syria?
LMO: There are many ideas. You can look at the ICC as the Empire of the Law because 120 states accepted its intervention. And you can look at it as used by the Law of the Empire which is the Security Council acting as a collective Empire imposing the ICC intervention on countries that are not members like Libya and Sudan.
In any case, whether the ICC’s intervention is a sovereign decision by the country or imposed by the Security Council, the legal work is the same and the main concept is that people who are victims of massive atrocities should be protected and in particular if the state is attacking them.
What’s happening in the case of Syria is that the Security Council is appointing mediators with no real power in their hands to negotiate. This happened first with Kofi Annan and it’s happening now with Lakhdar Brahimi.
I think the Security Council can be smarter and take advantage of the existing institutions. For example it can adopt a resolution saying the conflict in Syria threatens peace and security and give the parties a time limit – say three months for example – to reach an agreement, end hostilities and form a new government. If they don’t abide by this time limit, the resolution would also provide for the ICC to start its investigations. Next the Security Council can prepare a plan to implement the eventual arrest warrants the ICC would issue.
You see the sequence. Basically, this will give time for negotiations and provide leverage for the mediator by telling the parties that if you don’t cooperate the ICC will start to investigate in three months, and if during these three months you don’t cooperate, then the Security Council implementation plan will be carried out. That will be a different game plan.
Such a resolution could serve as a model resolution for the Security Council in other conflicts too. And I think that we, lawyers, should remind the political actors that they now have a new instrument in their toolbox, which is the ICC, and that it could be better used to protect civilians.
In the case of Syria, as soon as Assad receives such a clear message, it’s a ticking bomb.
TDS: Why would the major powers today agree on such a resolution?
LMO: Because it’s an alternative to the dilemma of either a military intervention or doing nothing. And what I’m saying here is that ICC can be something between bombing and nothing.
TDS: Some people argue – and you’ve mentioned that earlier – that referring a situation to the ICC could compromise negotiations and the possibilities of finding a political solution. How do you comment on that in view of the Libya and the Sudan cases?
LMO: First, there is much confusion here. No ICC investigation blocked any peace process. On the contrary the intervention of the court could help trigger a peace process.
For example, when the court issued an arrest warrant against [Ugandan warlord head of the Lord’s Resistant Army] Joseph Kony, Sudan reached an agreement with the prosecutor’s office to implement the warrant. This is one of the reasons why Kony left Sudan and went to Congo and requested a peace process.
The same happened in Sudan. A few months after the court issued an arrest warrant against [then minister of state for the interior, holder of the Darur file Ahmad] Harun, the U.N.-African Union peace negotiations started between Jan Eliasson and Salim Ahmad Salim.
They resigned in June 2008 after the failure of the negotiations.
And in July 2008, I issued a new arrest warrant and after that a new peace process lead by Qatar started with the Arab League and the African Union. So contrary to what people say, the court helped in launching peace processes.
In any case, the Security Council has the power to defer ICC intervention and give the space to the negotiations. So ICC will never be an obstacle to a real negotiation.
TDS: Do you think that indicting Gadhafi helped in initiating a peace process and ending the bloodshed?
LMO: The prosecutor’s mandate is to investigate the facts with impartiality and to apply the law. It does not include political negotiations. But the political negotiator would have to adjust to the presence of a judicial actor.
It’s always complicated to negotiate a conflict. If you’re trying to negotiate with the top guy who commits the crimes, you have problems. But there should be new strategies where negotiations are conducted with second level officials. In this case, a judicial investigation helps. And that’s why we need more sophisticated negotiating tactics.
In Gadhafi’s case for instance, I remember some people in Misrata telling me that if there were negotiations with Gadhafi and he were allowed to keep Misrata under his control, “we’ll be exterminated, Gadhafi will finish us all. The fact that you indicted Gadhafi, gave us a new life.”
In this sense, yes, I think indicting Gadhafi helped end the conflict.
In fact, it’s difficult for people like Gadhafi – Hitler, Kony – to negotiate, because as soon as they negotiate they lose power. We should understand that.
If you are involved in Libya to protect civilians, you cannot negotiate with Gadhafi and allow him to stay in power. No way. The problem with people like Gadhafi is that they cannot stop committing crimes, because if they stop, they will be thrown out. They cannot suddenly start respecting elections and freedoms. They are killers. That’s the problem. It’s not just a legal issue. If your negotiations aim at protecting people and stopping massive atrocities, you should find a different tactic.
Same applies to Seif [al-Islam Gadhafi]. Unfortunately some people had an illusion that Seif would be a better replacement. They didn’t know the facts. Sometimes negotiators don’t want to see the facts. I remember when there were negotiations with Kony and we informed the negotiating team about his crimes in the Central African Republic, they said it’s time to talk about negotiations not about crimes. But if you don’t acknowledge the crimes how can you negotiate?
The court is an incredible change in the management of conflict. Yet the Security Council retains the power even to negotiate with killers. The ICC does the legal work. The Security Council is not a court, it has the power to suspend investigations by the ICC and give space to the killers to escape. In this sense it can provide them immunity. Of course it will not do it for no reason ... for example, had Gadhafi decided to leave Libya, there would have been a possibility that the SC stops the investigation. The Security Council can make a political move not the ICC.
TDS: Are the situations in Sudan, Libya and Syria comparable? What about the cases of Gadhafi, Sudanese President Omar al-Bashir and Assad?
LMO: There are many factors at play in each situation. The Gadhafi case worked well because there were a lot of efforts to stop him; ICC intervention, strong media coverage, international support and very clever and strong rebel activities. This combination produced results in a very short time. And in some ways, the ICC intervention helped define the game.
In Darfur we had the opposite situation. Bashir used the ICC indictment to put more pressure on the West regarding the agreement on South Sudan. So there was a court of justice saying Bashir is committing genocide in Darfur but its indictment was used as a bargain tool to negotiate the independence of the South.
TDS: Can you elaborate on this point, especially that there was a strong international push against Bashir?
LMO: I think that the U.S. had three interests in Sudan: The South, Darfur and collecting intelligence on Al-Qaeda, and it privileged the South over Darfur. So basically the U.S. spent its capital on the independence of the South and after that it lost interest in Darfur.
The problem is that when the U.S. loses leadership, no one replaces her. So that was basically the end of the international pressure on Darfur.
This is bad. This is wrong. ... Because the information I have is that nothing has changed in rapes, nothing has changed in the conditions of the camps. It’s worse.
Yet, eventually in five years or 10 years, Bashir’s destiny is justice but in the meantime many people will die. The time is not good for the victims. Justice can wait but the victims cannot.
TDS: Can justice really wait?
LMO: The court is permanent. It can put Bashir on trial next year, in two years, in five or even in 10 years.
However, Bashir learned that it is easier to kill through starvation. That’s what he is also doing in Kordofan and Blue Nile in the south. He is killing in this less noisy way. The story is repeated, the same tactics: bombing civilians, using militias, raping, starving, and the same actors.
Not just Bashir. Abdel-Rahim Hussein [who was interior minister when indicted] is the defense minister; Harun is the governor of South Kordofan. These guys are the ones who committed the crimes in Darfur, and now they are committing the crimes in Kordofan. This shows that, unfortunately, without U.S. leadership no one is taking action on Darfur.
TDS: Early 2009, during the Israeli war on Gaza; the Palestinian Authority requested your intervention. Your office issued a statement saying that the prosecutor had no jurisdiction over the Palestinian territories until the U.N. recognized Palestine as a state. Now that Palestine has been granted an observer status by the General Assembly, will the court proceed with the Palestinian request?
LMO: I’m no longer the prosecutor, but for me, the Palestinians have to decide whether they will follow on the request or not. ... I think the rules are clear; the General Assembly has pronounced itself on the question of statehood. It’s up to Palestine to proceed or not. Palestine can decide to become a state party or it can accept the jurisdiction of the court.
TDS: This raises a question on double standards. Notwithstanding the issue of Palestinian statehood, the Security Council could have referred the situation in Gaza to the ICC even though Israel is not a member. It didn’t. And the same council that referred the situations in Libya and Darfur is not referring Syria’s. How do you read that?
LMO: The world has double standards and this is not a mere perception. However, for the 122 states which are members of the ICC Rome Treaty, the standard is the law. That is what I called the Empire of the Law. They have accepted ICC jurisdiction ... But there are 72 states that are not members of the ICC and the court cannot intervene in them.
Only the Security Council can permit that. Here we get to the political aspect. Sometimes the Security Council members are in agreement like on Libya, sometimes they are not like on Syria and Palestine.
Of course changing reality in the whole world is complicated and will require time. But I can say that justice improved in the last 10 years more than it did in the previous 20 centuries. The last 10 years witnessed an incredible leap forward ... And during my tenure I learned that more and more regional organizations are gaining importance and the Security Council is taking that into consideration.
For example, when it decided to refer the Libya case to the ICC, it was very critical for a country like China that the Libyan ambassador, supported by the representative of the Arab group in the council. was requesting the referral.
No less important than the Arab league’s role is that in the wake of the Arab Spring more individual states join the ICC. Tunisia did. Libya expressed its intention to do so. And I hope that Egypt will follow.