Luis Moreno-Ocampo is still in the game. The former chief prosecutor of the International Criminal Court (ICC) is involved in a human rights NGO in Libya and, more recently, has worked to bring a case forward to the ICC alleging that the Islamic State (ISIS) has perpetrated genocide against the Yazidis in northern Iraq. In light of his recent efforts, Moreno-Ocampo recently gave a lengthy interview to Richelle Carey of Al Jazeera America in which the former prosecutor ripped into America’s record in supporting the Court – and the project of international criminal justice.
In a segment regarding ongoing crimes perpetrated by ISIS, Moreno-Ocampo was asked if there was any role for the ICC to play in Syria. In response, he almost immediately turned to blaming Washington’s flip-flop policy on an ICC intervention:
In fact, yes, Russia veto[ed] a resolution on Syria. Before that, the U.S. was not interested to send the case to the ICC. They did it just at the end to shame Russia, but not at the beginning. The U.S. was proposing, you remember, striking because of chemical weapons. That will be a wrong policy. Because it’s not about just killing people with chemical weapon. You cannot kill people. So, yes, we lost opportunities.
These comments are honest and welcome, if a bit surprising coming from Moreno-Ocampo. But the former chief prosecutor is absolutely correct in observing both the inconsistent position of the U.S. and the Obama administration’s unfortunate manipulation of its eventual support for a referral as a means to blame Moscow. Following the May 2014 failure to pass a UN Security Council referral of Syria to the ICC, U.S. Ambassador to the UN Samantha Power delivered a highly questionable speech explaining why Washington had changed its mind on an ICC investigation of war crimes in Syria. Power decried the fact that it was possible for the Court to be active in Africa but not Syria and then blamed Russia and China not only for vetoing the 2014 referral but for Washington’s decision not to previously push for an ICC intervention. In doing so, Power exposed the hypocrisy behind the U.S. position on the ICC in Syria and beyond. As I argued at the time, Power’s comments smacked of a state jumping on the justice bandwagon late in the game only to be the first in line to bully those who hadn’t yet joined.
But Moreno-Ocampo wasn’t done there. He subsequently delivered a fierce assessment of the U.S.’s general position on international criminal justice:
They are against independent justice. That’s the problem. They don’t like an independent procedure deciding to open investigation without their consent…
…With time — I hope before everyone is killed in this country, in this world. Yeah, I hope [it] will change. The problem is, [the] U.S. is the biggest country in the world. They don’t like something checking them. That’s it.
That is a devastating, unprecedented and remarkably forthright critique of the American position from a former chief prosecutor whose tenure is widely viewed as being pro-U.S. It remains unclear what led Moreno-Ocampo to so scathingly criticize Washington. Perhaps he simply let loose. But again, Moreno-Ocampo has tended to be very careful when it comes to American interests. Indeed, in the same interview, he describes how the U.S. came round to supporting the Court in response to a question regarding whether the U.S. being a non-member state of the ICC posed a challenge to the Court:
We won the challenge. When I request[ed] indictment against [Sudanese President Omar al-]Bashir, my biggest supporter was President [George W.] Bush. He said, “OK, I don’t like the court, but President Bashir had to be [held] accountable.”
Then when President [Barack] Obama came, it start[ed] a sea change.
Rather than being celebrated, the U.S. relationship with the ICC and international justice needs to be critically assessed. As Moreno-Ocampo’s quote above suggests, the Court and its proponents often view the U.S.’s move away from antagonizing and undermining the ICC as an institutional success story. But Washington has an inherently unsustainable position when it comes to the Court. As a fully engaged but non-member state without any real obligations to the ICC, Washington’s policy is to pick and choose when it supports the ICC and when it doesn’t. It has one-foot-in, one-foot-out. The result entrenches rather than alleviates the perception that the Court and the project of international criminal justice more broadly is inherently selective. If Moreno-Ocampo’s harsh message helps to galvanize a more honest debate about the relationship between the U.S. and the ICC, it will undoubtedly have been worth it.