“Case Closed: A Prosecutor Without Borders.” By Julie Flint and Alex de Waal.
World Affairs Journal, Spring 2009
Kofi Annan spoke for many when he said, “Until now, when powerful men committed crimes against humanity, they knew that as long as they remained powerful no earthly court could judge them.” The Nuremberg trials were victors’ justice—the prosecution of those already fallen from power. The ICC is different: it promised to be a turning point in the struggle for human rights and against impunity, a landmark in the advance of global ethics. Some of the world’s most committed lawyers and investigators converged on The Hague, relishing the challenges that lay ahead. The ICC’s mandate was not only to identify the perpetrators of the worst crimes ever codified in international law; it was to arrest and prosecute them. Yet the Court had no police force, three of the Permanent Five at the Security Council did not support it, and the UN Department of Peacekeeping Operations didn’t want its overstretched and vulnerable peacekeepers conscripted as ICC enforcers. It also had Luis Moreno Ocampo as its lead prosecutor.
Despite the challenge of building and operating an institution in an uncertain and evolving field of law, Moreno Ocampo had a strong wave to ride—the goodwill of publics across the globe, including a powerful American human rights constituency, and some of the ablest legal minds in the business. But three years into his tenure, many in the Office of the Prosecutor (OTP) were questioning his ability to do the job. A further three years on, and the Court is in trouble—a trickle of resignations has turned into a hemorrhage, and cases under prosecution and investigation are at risk of going calamitously wrong. The Lubanga trial has come to court under a cloud of controversy over the Prosecutor’s handling of evidence and charges, and an arrest warrant issued for Sudan’s president, Omar al-Bashir, has set in motion a chain of events that threatens a humanitarian disaster for the victims of the war in Darfur.
Moreno Ocampo is a man who diminishes with proximity. Six years after he became Prosecutor, the priceless human capital invested in his office is draining away. Lawyers and investigators who served in the OTP, and who count among the brightest and the best of their profession, say they believe the Court’s reputation, and perhaps even its life, is at risk. Their desire to make a success of the court remains as strong as ever it was—but not under the current Prosecutor. “My time in the ICC was a mixture of a fascinating time and a terrible time,” one of these exiles said shortly before Moreno Ocampo demanded Bashir’s arrest. “The Prosecutor was erratic, so irrational sometimes that you felt despair. He uses his charisma in a negative way. Everyone in the OTP felt disrespected. But I still have a dream that one day—along with some other good people—I will be able to return.”