One of the most rewarding aspects of writing in the public domain is the feedback and commentary it generates — even, perhaps especially, when it’s critical. In response to my earlier post on former chief Prosecutor Luis Moreno-Ocampo’s record at the International Criminal Court (ICC), a few commentators have replied that there is far more that needs to be included for any accurate judgement to be made of the first decade of the Court’s existence than Moreno-Ocampo’s role alone.
Errol Mendes, a professor of law at the University of Ottawa, for example, commented that “while I agree with much of what you say, the failures of the ICC [are] also due to lack of co-op[eration] by states, UN etc.” I completely agree and should have clarified that the original post was not intended to produce an authoritative account of all of the reasons that explain the troubles the ICC faced in its first decade, but rather to assess one part of that record: the role and responsibility of the chief Prosecutor. There are no doubt structural constraints and limitations that the ICC confronts — and JiC posts raise them regularly, certainly far more often than commentary on Moreno-Ocampo — but the ICC is the type of institution that is deeply affected by the personalities at its helm. Moreno-Ocampo’s tenure is a case in point.
The initial blog post also generated an important and insightful comment from Wanda Boker, who worked as Moreno-Ocampo’s outreach advisor at the ICC from 2003-2004, in defence of Moreno-Ocampo’s tenure. Like Mendes, Boker is absolutely correct in her argument that any authoritative account of the failings (and, I would add, successes) of the ICC must look beyond attempts to discredit Moreno-Ocampo. Her comment deals with the alleged failures of ICC investigators and other staff to understand the situations they were working as well as the wider context in which the Court functions. Boker’s response is important and should be highlighted. So here it is, in full and without edit:
I worked for Prosecutor Moreno-Ocampo as his outreach advisor from 2003-2004 and later founded Interactive Radio for Justice, an outreach project which operated where the OTP investigated between 2005-2011. I agree completely with Paul Seils when he says “I’m not at all sure that international courts really are set up to understand the realities of the conditions they’re investigating,” but you are mistaken when you put the blame for that squarely on the shoulders of Moreno-Ocampo. What I saw consistently over the years I worked in and with the OTP is that investigators, prosecutors, colleagues in the registrar…tried do to their assigned work as they would have in their home country environment, without understanding just how much they needed to change in order to be effective working at the ICC, particularly in regions where the Court investigates. I can’t speak for Kenya because I didn’t work there, but in DRC (Ituri and Kivus) and RCA and Uganda, ICC teams would try to work while maintaining complete isolation from the local communities. The reason why cases were weak was because investigators relied too heavily on local informants because they didn’t go into neighborhoods, IDP camps, demobilization camps etc. themselves to understand where they were and who they were dealing with. If you don’t work in the community, don’t socialize and live there and build trusting relationships there, but only pay someone to bring you people to speak with from ethnic group Z…..how in the world do you know if you’re really talking with people from ethnic group Z, and not from group Y? That’s not Moreno-Ocampo’s fault. It took five years of him insisting, to finally be allowed (because of security concerns)to visit Ituri and speak directly with an unrestricted (meaning anyone interested in coming to the meeting could come) public meeting which we organized and broadcast over community radio stations. The chief defense lawyer for the Lubanga case was also invited to the meeting and she fielded questions as well, it was clear that she knew the terrain, because she could do her job with minimal restrictions, much better than the entire OTP contingent combined. I knew when ICC teams were in town, from any branch of the Court (save for the defense teams), because they were only allowed to eat in two places in town, only allowed to drive on a couple of main roads and spent their days in an air conditioned office within the guarded MONUC (later MONUSCO) compound. Their outreach teams would visit our radio partners to ask if they could speak with our focus groups because they didn’t have the local contacts to develop their own. I write this because it seems too easy to critique the ICC by targeting a personality who made people uncomfortable – Moreno Ocampo was not the reliable conventional prosecutor true, but it’s incorrect to blame all of the weaknesses of the ICC on him because he didn’t play by the same rules that a Chief Prosecutor would play in Canada, for example. He couldn’t play by the same rules at the ICC and he was the first in his position, he was exploring ways to approach his challenge to end impunity globally for the crimes under the Courts’ jurisdiction with no guidelines that seemed sufficient. His ideas about networks and creating cultures of deterrence were well worth trying, and the failures weren’t necessarily failures because they were bad ideas, there were a lot of structural and personality driven obstruction which had nothing to do with Moreno-Ocampo, that all but guaranteed failure in many situations.. It didn’t help matters at all to have lawyers and investigators saying “but I wasn’t expected to do that in the UK (Belgium, Canada, etc) and I don’t want to try it here” or the Registrar or the UN saying “you can not investigate without an entourage of vehicles, without notifying all UN , local military and local police beforehand”…..My point is if you’re going to write a frank report on the failings of the Court you really do need to look beyond your thinly veiled eagerness to discredit Moreno-Ocampo.
– A Comment In Defence of Luis Moreno-Ocampo
– Kenya’s President Rips into New York Times Article Largely Favourable to Him
– The New York Times Shoots Back, Won’t Apologize to Kenyatta for ICC Story
– As New York Times – Kenya Controversy Continues, Kenyatta Suspends Four Staff
– It Continues… Kenyatta’s (Suspended) Communications Staff Threatens to Sue New York Times
In her thinly-veiled eagerness to excuse LMO from blame, Boker overlooks a central fact: it is the Prosecutor’s responsibility to ensure that his investigators do their job correctly. If the OTP’s staff did not adapt to the realities of international investigation and prosecution, that is the Prosecutor’s fault. Full stop.
Dear Kevin, perhaps I wasn’t clear — the regulations which control the behavior of the team in the OTP , for example that they need to inform the UN and local military and police when they investigate, that they must adhere to UN regulations on travel and comportment in the field, and can not travel if security is denied by the UN and Registry, (both are required) are not under the Prosecutor’s control. The Prosecutor could not travel to the DRC for example without the UN (via MONUSCO) agreeing to protect him, and the coordination for witness protection and victim’s participation and protection is an excellent example of how the Prosecutor may not be able to decide operations in the field and yields to the Registry. These regulations allowed team members to not think outside their boxes, they had an excuse and used it to full advantage to stay isolated. Anyone who knows me, even today in the OTP and Registry, will tell you that I am a fan of LMO, he was virtually the only person in the Court in 2003 who understood why dynamic, interactive outreach would be important to the OTP and as an outreach person I hold him in high regard professionally and I certainly don’t deny that – but the blanket “full stop” accusation you give is simply not appropriate when trying to find out, in earnest, what goes wrong at the ICC and what can be changed so that the Court is more viable, more relevant, in years to come.
I have been traveling overseas and just reading the NYTimes article today – and there is so much to comment on – but I would like to comment briefly and narrowly on Wanda Boker’s comments. Since 2003, I have strongly warned – with tragically little support – that the 100% importation of the UN procedures and policies of the international civil service system needed to be reconsidered, and the ICC, as an independent and genuinely ‘sui generis’ international organisation needed to adopt its own ‘sui generis’ civil service procedures and policies. The ICC governing body still needs to do this, hopefully in concert with ICC staff and people like Wanda advising. Not only cannot investigations be properly conducted under the UN rules and procedures – and this is existential in importance – but I am convinced by experts that you cannot hold proper outreach with the victim communities, so-called ‘in-situ’ judicial proceedings are essentially impossible, and effective regional organisation offices and representation, proper situation country offices, witness protection, and a thousand other aspects of making the Rome Statute system work are undermined by the UN procedures – as Wanda described. The average citizen cannot imagine the UN restrictions -that are probably good for much of the work of the UN – but, that handcuff the ICC in a thousand ways.
There are tremendously important lessons-learned from the last 22 years of the post-Nuremberg advent of international justice institutions, courts, and investigations. My organisation hopes the ICC and Rome Statute system are the revolution in the rule of law vs. the rule by law in the international legal order, that allows humanity and governments to hope that a central purpose of the UN Charter – preventing WWIII – can be assured by ending – as law can only do – impunity for the worst crimes in international or supra-national law – crimes against humanity – and thus preventing these crimes in most instances.