Luis Moreno-Ocampo (Photo: Jerry Lampen / Reuters)
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.