Guest Lecturer: Louis Moreno Ocampo

A report on the visit to the Faculty by the former Prosecutor of the International Criminal Court

Hagai Carmi

Photos: D. Guthrie

Louis Moreno Ocampo, the former Prosecutor of the International Criminal Court (ICC), is no stranger to criticism. At a lecture given by Ocampo in May at the Mount Scopus campus of the Hebrew University, a member of the audience asked whether he agrees that the ICC focuses excessively on Africa. Ocampo’s reply made it obvious that this was not the first time he has been asked this question. “I’ve heard that claim on several occasions. People wonder why we only investigate things that happen in Africa and claim that this is just a new form of imperialism. It always surprises me that they focus on the activities of the ICC, instead of asking why there is so much violence in Africa.” A question regarding the small number of cases heard by the ICC also provokes a ready-made response: “You can’t measure everything just in terms of the number of people prosecuted. The main function of the ICC is not to prosecute people, but to play an active role in creating law and defining laws. As I see it, success should be measured in terms of the definition of clear boundaries for what is permitted and prohibited, rather than in terms of the prosecution of some specific number of war criminals.”

The Early Years of the International Criminal Court
Ocampo was invited to Israel as the guest of the Faculty and the Fried-Gal Transitional Justice Initiative, which supports projects under the auspices of the Transitional Justice Program of the Law Faculty and the Minerva Center for Human Rights at the Hebrew University. He gave two lectures during his visit. In the first, entitled “The Challenge of the Early Years in the ICC,” Ocampo described the developments in international law from the Nuremberg trials through the prosecution of the heads of the Argentinian junta, and on to the establishment of the ICC. He argues that the Nuremberg trials had a tremendous influence on the formation of the ICC, since they marked the first time that the possibility was discussed of imposing personal criminal liability as a means of creating a deterrence against crimes and an incentive to keep the peace. The option of criminal prosecution complemented the only two options that had previously been available – going to war or refraining from taking any action.

In the early 1990s, after several decades of stalemate due to the Cold War, criminal law once again became a key player in international law with the formation of the tribunals in Yugoslavia and Rwanda. The growing strength of international criminal law led to the drafting of the Rome Statute in July 1998 and to the establishment of a permanent international criminal court – the ICC – in 2002. Ocampo was appointed Prosecutor of the ICC in April 2003 and was forced to confront the difficulties inherent in entering a new position: “When I assumed the position of Prosecutor, the ICC building in The Hague had six empty floors and 18 judges waiting for some work. I had three employees available to assist me, a handful of historical precedents – Nuremberg and the international tribunals – and the provisions of the Rome Statute. Meanwhile, outside in the real world, America was attacking Iraq and President Bush declared that he would not agree to the ratification of the Statute due to concern at possible suits. The international organizations were also suspicious and questioned the capability of the ICC. At this point I had to decide what to do first: consult with others? Establish the court’s infrastructure? Or maybe launch a prosecution – and if so, of whom?” Five months after entering the position, Ocampo announced that he had acquiesced to a request by the Congo to open an investigation into crimes committed in its territory. The investigation ultimately led to the trial of the militia leader Thomas Lubanga – the first trial undertaken by the ICC.

Ocampo returned to the subject of the trial of Lubanga in response to a question about the role of victims and their relatives in the legal process. He explained to the audience that the evidence collected in the investigation did not suggest that Lubanga was a central figure in the crimes; his importance was only apparent from the victims’ testimonies. He later admitted that the ability of the ICC to help the victims is limited due to the formal character of the court. A conviction may help victims sue for compensation, but a more comprehensive response to their needs requires intervention by additional bodies. A member of the audience asked Ocampo whether he found it difficult to cope with the traumatic images and stories that form part of his work. He replied that the problem he faced is of a different nature: “The victims I meet are grateful for the attention they receive and appreciate people coming specially to hear their stories. It is not the encounter with the victims that is difficult, but rather the encounter with the world outside the court. It is difficult when I visit New York and face the hypocrisy and insensitivity of those in power. I was told several times during official meetings with ambassadors and senior dignitaries that I am too emotional and that I shouldn’t take things to heart.”

Ocampo and the Dean of the Faculty, Professor Yuval Shany
(Photos by D Guthrie)

Lecture at the Fried-Gal Colloquium on Transitional Justice
“Transitional justice” was the central theme of Ocampo’s second lecture, given the day after his first speech. The lecture formed part of the Fried-Gal Colloquium on Transitional Justice, moderated by Visiting Professor Ruti Teitel, and focused on transitional justice in the context of the Israeli-Palestinian conflict. Ocampo was serving as the Prosecutor of the ICC at the beginning of 2009 when the Palestinian Authority asked the court to recognize its jurisdiction over incidents in the Palestinian Territories. Three years later his office issued a statement declaring that the request had been rejected. The statement explained that the Palestinian Authority’s status as an independent state remains unclear, and accordingly it cannot assume permanent or ad hoc judicial authority. Following this decision, the Palestinian Authority appealed to the United Nations to be admitted as a member state, and in November 2012 the General Assembly approved the recognition of the Palestinian Authority as a “non-member observer state” by a large majority. In his lecture Ocampo considered what has changed following this recognition. Although he did not state so explicitly, it was clear from his comments that Ocampo believes that the current conditions permit the Palestinian Authority to turn to the ICC: “There are two facts that cannot be ignored. Firstly, the International Criminal Court exists; and secondly, the Palestinian Authority has received the status of an observer state. As future Israeli attorneys, I ask you: what do we do with this? What would you recommend to Israel in such a situation? I don’t necessarily have a good answer to this question, but I hope to encourage you to think seriously about it. Your goal is to put some good options on the table, and in order to do that you first of all have to imagine what the Palestinians are going to do, and then you have to prepare some options according to that scenario.” At this point Ocampo turned to the students in the hall and asked them whether they thought it would be a good move for the Palestinians to turn to the ICC. After hearing several opinions, he offered an optimistic summary: “Although many people in Israel see an appeal to the ICC as a negative development, you should note that the ideal scenario for the Palestinian side also puts Israel in a pretty good position. Accepting the Palestinian Authority’s request and recognizing the ICC’s jurisdiction over the Occupied Territories will very probably lead to pressure to halt violence by Palestinians, since once the ICC enjoys jurisdiction, it is empowered to investigate any violations committed by either side in the conflict. Reducing the level of violence in the framework of the appeal to the ICC is undoubtedly of value to Israel.”

Ocampo and Visiting Professor Ruti Teitel at the Fried-Gal Colloquium on Transitional Justice 
(Photos by D Guthrie)

Louis Moreno Ocampo was born in Buenos Aires in 1952 and completed his studies at the Faculty of Law in the University of Buenos Aires in 1980. He gained fame as the assistant prosecutor in the “trial of the juntas” pursued several years later and went on to become chief prosecutor of the Buenos Aires federal circuit. Before his appointment as Prosecutor of the ICC, Ocampo established his own law firm and continued to be active in the field of criminal and human rights law. In 2012, after nine years in the position, he retired in order to return to private practice. He also lectures regularly at several universities, including Yale in the US, and serves as an advisor to international non-governmental organizations. 

Ocampo’s period of office as a prosecutor in Argentina shaped his attitude toward an academic filed that was beginning to receive increasing attention at the time: the field of transitional justice. “My encounter with transitional justice did not come through academic research,” he emphasizes, “but through the reality of Argentina in the 1980s, when kidnapping and guerilla warfare were a routine occurrence. I remember that in one indictment I wrote, “the state is forbidden to torture its citizens.” Although this sounds obvious to us today, that sentence became a newspaper headline. The status quo is not always consistent with legal ideals, and in Argentina the gap was particularly wide.”"

(Photos by D Guthrie)