Colonel Muammer Gaddafi was rumoured to be fleeing south across the Sahara in a heavily armed convoy when the man whose job it is to jail him emailed me with a date for lunch.
It has been a busy time for Luis Moreno-Ocampo, chief prosecutor of the International Criminal Court (ICC), the independent court set up in the Hague almost a decade ago to investigate genocide, war crimes and crimes against humanity. As well as half a dozen ongoing African cases and fresh investigations under way, the Argentine lawyer now has Libya’s elusive, fallen dictator in his sights. In June the court issued arrest warrants for Gaddafi, his son Saif al-Islam and his intelligence chief Abdullah al-Senussi, who are accused of orchestrating a bloodbath in response to the Libyan uprising.
Bagging Gaddafi quickly would make for a coup in the court of global public opinion, which Moreno-Ocampo has played to assiduously since his appointment as the court’s first chief prosecutor in 2003. The trial of a high-profile tyrant would press home the message that was explicit in the ICC’s founding treaty, the Rome statute, but was always going to be tough to realise: that the world no longer tolerates the industrial-scale slaughter of civilians nor grants impunity to its authors, however powerful.
By the time I got to The Hague, however, Gaddafi’s whereabouts were once more a mystery. It seemed more likely he would evade capture, or be subjected to a drawn-out desert death, than be arrested and sent to stand trial in front of Moreno-Ocampo and the world.
The venue the 59-year-old prosecutor has chosen for us is one of Holland’s top-rated restaurants, the Hotel Savelberg, in an elegant former farmhouse in Voorburg, outside The Hague. It is round the corner from the not so elegant, fortified tower block that houses the ICC. He says he comes quite often with visitors. Henk Savelberg, the proprietor, has received a Michelin star four times during 29 years as a chef.
We are seated at an elegant corner table by a waitress whose father happens to run a fund for witnesses at the ICC. There is discreet banter, soft jazz and views over delicately manicured gardens. It is a world away from the killing fields and torture chambers at issue over lunch.
The ICC’s short history has been filled with uncertainties such as those surrounding the fate of Gaddafi. When ratification by a 60th state brought the ICC into existence in 2002, Kofi Annan, United Nations secretary-general, described it “as a giant step forward in the march towards universal human rights and the rule of law”. Nine years and around $1bn later, the court’s record in living up to such aspirations, made urgent in the last decade of the 20th century by the horrors of Yugoslavia and Rwanda, is mixed.
It has yet to secure a single conviction. And so far it has yet to open a single case outside Africa. This has fed the perception among Africans that it is being used as a political whip in western hands to beat the continent with.
The most advanced case now awaiting a verdict is that of the Congolese warlord Thomas Lubanga, who is accused of recruiting child soldiers into the militia he led in 2004. At one point, the case narrowly avoided being thrown out by judges amid criticism of corner-cutting by the prosecution in the collation of evidence, some of which involved confidential UN reports withheld from the defence.
Meanwhile Omar al-Bashir remains Sudan’s president, flouting his indictment in July 2008 for genocide and war crimes during the Darfur conflict. And Joseph Kony, the quasi-mystical Ugandan guerrilla and leader of the Lord’s Resistance Army, is still terrorising the African bush, years after he was charged.
Much of the criticism of the court is levelled at Moreno-Ocampo himself and the tactics he has employed in building his cases. To be fair, however, the institutional foundations of the court were decidedly shaky. Wrapping a cool, confident exterior in Latin charm, he is quick to shrug off the attacks. He describes the legal environment in which the court has to operate much of the time as “primitive” and in still in the painful early stages of evolution. The court depends to a large extent on the co-operation of states for which international relations have historically been about “negotiating or bombing” but nothing much in between, law for instance.
He singles out the proceedings against politicians allegedly involved in planning post-electoral violence in Kenya in 2008, now in its first phase in court, as a singular success. He also suggests that the ICC’s existence is altering the behaviour of combatants in war. As a result of the Lubanga case, for example, Nepalese guerrillas have demobilised all their child recruits.
“We have selected the gravest cases. We have focused the evidence on the most responsible. And we are efficient. The rest is opinions. I have to make five difficult decisions each day. On each different topic there are 20 opinions, some in agreement with me, some not,” he says.
An outsized ego may be an additional complicating factor for the ICC’s chief prosecutor. His supposedly overbearing management style has led to resignations by senior lawyers on his team, some of whom have expressed discomfort privately at his readiness to leap into the public spotlight before all his legal ducks are in a row. He shrugs this off too.
The hirsute Moreno-Ocampo evidently enjoys holding centre stage. And in his presence I am soon reminded of a joke Chileans tell at the expense of their Latin neighbours: why do Argentines run outside in thunder and lightning? Because they think God is taking their picture.
As we begin eating hamachi with fennel and east Indian cress he reaches for a quick anecdote about how he defended an FT colleague who was under fire in Argentina for exposing bribery. He builds his own case and that of the ICC’s record, mostly chronologically and over several courses of distracting haute cuisine and various attempts by me to steer the conversation in different directions.
His own career began when, as a young lawyer in the 1980s, he helped put nine generals behind bars for their part in the disappearance of 30,000 Argentines. That experience, he tells me, and the attitude of his own family members towards his role as deputy prosecutor, gave him legs for the treacherous terrain he covers now.
“You have to understand that we are working in deeply divided societies. In Argentina, when I was prosecuting the junta, my own mother was against me,” he says, swallowing another amuse-gueule, cucumbers filled with spicy tomato, maïs cake and piccalilli.
“Justice is about fair process. In the end fair process convinced my mother better than her son [that going after the generals was the right thing to do].”
Later, when taking on Argentine corruption cases, he says he learnt the importance of carrying public opinion when politicians have a vested interest in stymieing efforts to punish crimes committed by the elite. This is pertinent, given the confluence of international relations and human rights law at which the ICC is situated.
The court, which has no police force to carry out arrests, often finds itself on virgin legal and political terrain. It is caught between competing agendas: the shifting priorities of member states, the rigid morality of human rights activists and, for much of its life, the opposition of three of the five permanent members of the UN Security Council: the US, China and Russia.
We both order the main menu starting with fried scallops, beetroot and capers and Moreno-Ocampo tells a string of anecdotes that expose the fickle nature of western countries’ support for ICC prosecutions, blowing hot and cold case by case, according to where their interests lie. One minute they want the Sudanese president indicted, the next they don’t, for example. Public opinion, he says, is an important factor in keeping justice on the agenda of diplomats.
He is fond of using elaborate metaphors to illustrate his points. One in particular recurs, told to him by a former colleague at Harvard, where he taught law before taking on the job in The Hague. The colleague had warned him that his role would be thankless because the court was toothless. “A national prosecutor is like a brave dog helping the guardians, who are the political leader, to control the yard. The politicians need a brave dog to create prevention but not so brave it bites their own hands,” he narrates. “Your problem, my friend said to me, is that you are not such a big dog [at the ICC]. You have no political guardian. On the contrary, the guardians will say: who put this dog in my yard?”
In those states where crimes are committed, issues of sovereignty are indeed fraught. The court has jurisdiction only in states that are signatories to the Rome statute, are unwilling or unable to carry out their own prosecutions, request an investigation or where the UN Security Council orders one.
People say you need a big fish in jail to show how important you are. But when they are in jail they are a small fish
Moreno-Ocampo’s initial way round this dilemma was to encourage governments to invite him into the yard. He succeeded in doing this in the Democratic Republic of Congo and Uganda – two states where the most serious offences were being committed at the outset of his nine-year term. Not so in Sudan, where victims of the violence in Darfur have arguably been most seriously short-changed by lack of progress in bringing perpetrators to justice.
He draws again on his experience in Argentina – and reaches for a few more metaphors. “In my country my investigation was about how the generals implemented a plan to control what they called ‘subversives’. They used this metaphor of Mao’s, who had said guerrillas had to move in a society like a fish in the water. They arrested people and conduct tactical interviews, which is how they described torture, to get to know if this guy was a fish or a piece of water. But sometimes water was abducted and tortured.”
He believes the Sudanese government’s attempts to quell the insurgency that broke out in the western province of Darfur in 2003 were based on a similar analysis but more brutal methods. In his interpretation this led to genocide. “In Argentina they were trying to make a distinction between the water and the fish. In the Darfur case the concept was to eliminate the water. That is why they displaced 4m people.”
The case against Sudan’s president Omar al-Bashir has angered some African leaders, who believe it has undermined prospects for peace by cornering one of the main protagonists central to delivering it. The prosecutor is unapologetic and says the evidence of responsibility at the highest level is compelling.
He takes heart, more broadly, in the increasing number of signatories to the ICC across the world, up from 60 to 117. “Facebook started at Harvard in 2003. Today they have 750m people. In 2003 I was at Harvard. Today, with the Philippines [who will become the latest state party to the treaty on November 1) we have 2.4bn covered by our system. We are growing faster than Facebook,” he says, in one of his stranger analogies.
The recent conflict in Libya has, he says, marked something of a watershed in the evolution of the attitude of the UN Security Council towards the court. The US position on the ICC was already softening. But China and Russia, who like the US feared the court would be used to prosecute their own citizens, both voted to refer Libya to the ICC when the danger of a massacre in the rebel-held city of Benghazi was imminent.
“When you compare the Libya referral with the Darfur referral you can see the evolution,” says Moreno-Ocampo. “With Darfur the Council debated for three months. There was agreement there had to be justice. But the issue was who will do it.
“Six years later, the Libya case came. There was no discussion. Instead there was consensus that the court should do it. So in just nine years the court became the permanent institution of justice that the world needs [in order] to be less primitive.”
His single term tenure ends next year. How important is it to him that he gets Gaddafi behind bars beforehand?
“The funny thing,” he says, mopping up the last of the crispy pan-fried cod main course, “is people say you need a big fish in jail to show how important you are. The problem is when they are in jail they are a small fish. They become just original characters, no longer powerful. It is not about individuals, it is about the institution.”
For war criminals who think they can escape justice in the long run, he points to the salutary lesson lent by the International Tribunal on the former Yugoslavia, which provided some of the jurisprudence underpinning the ICC. There were more than 100 indictments, he says, and since Ratko Mladic was arrested earlier this year all alleged criminals have been arrested.
“It is only a matter of time,” he says.
William Wallis is the FT’s Africa editor
Oosteinde 14, Voorburg, Netherlands
Lunch Menu x 2: €116
Hamachi with fennel and east Indian cress; Cucumber filled with spicy tomato and maïs cake with piccalilli; Fried scallops, Lardo di Colonnata and San Daniele ham; Salad of beetroot and capers; Dry fried cod with pasta salad
Bottle sparkling water €7
Double espresso x 2 €3
Total (including service) €134
From Göring to Gaddafi: war criminals on trial
Nuremberg Trials, 1945-1949
The International Military Tribunal at Nuremberg tried 22 people on charges against peace, war crimes and crimes against humanity, writes Maria Howard. The IMT defined the latter as “murder, extermination, enslavement, deportation … or persecutions on political, racial, or religious grounds”. Twelve of those convicted were sentenced to death, among them Reich marshall Hermann Göring.
Trial of the Juntas, 1985
This trial of the members of the military government that ruled Argentina from 1976 to 1983, conducted by a civilian court, was the first trial against a former dictatorship since Nuremberg. A total of 833 witnesses testified, helping to prove the charges of forced disappearance, torture and murder of thousands. Luis Moreno-Ocampo was assistant prosecutor to Julio César Strassera and helped to sentence Jorge Rafael Videla and Emilio Eduardo Massera (first junta) to life imprisonment.
International Criminal Tribunal for the former Yugoslavia, 1993
Set up by the UN to deal with war crimes against members of various ethnic groups in Croatia, Bosnia and Herzegovina, Serbia, Kosovo and the former Yugoslav republic of Macedonia. More than 60 individuals have been convicted and more than 40 are currently in proceedings before the Tribunal in The Hague. On May 31, the Bosnian Serb commander Ratko Mladic became the latest to be extradited. He is accused of being responsible for the Srebrenica massacre of more than 7,000 Muslim men – the largest mass murder in Europe since the second world war.
International Criminal Tribunal for Rwanda, 1994
Set up by the UN Security Council to charge those responsible for the genocide of 800,000 Rwandans in 1994. So far, 50 trials have been completed and 29 convictions have been secured. Former presiding judge Navanethem Pillay said, “From time immemorial, rape has been regarded as spoils of war. Now it will be considered a war crime.”
The International Criminal Court, 2002-present
The court can exercise its jurisdiction only when national courts are unwilling or unable to prosecute such crimes. There are 117 states that are signatories to the treaty. The trial of Thomas Lubanga, former rebel leader in the Democratic Republic of Congo for “conscripting and enlisting children to participate actively in hostilities” is close to ending with judgment pending.