Annotation of
“Case Closed: A Prosecutor Without Borders” by Julie Flint and Alex de Waal. World Affairs. Spring 2009.
In their extensive assessment of the International Criminal Court (ICC), and specifically its Prosecutor Luis Moreno Ocampo, researchers Julie Flint and Alex de Waal detail the multitude of striking problems facing the once promising global institution.
“[The ICC] promised to be a turning point in the struggle for human rights and against impunity, a landmark in the advance of global ethics.”
According to Flint and de Waal, little progress has been made in achieving justice under the mandate of the ICC. Despite hopeful rhetoric from UN officials, the last six years have witnessed meager progress in prosecuting offenders such as Thomas Lubanga Dyilo, a Congolese militia leader, and perhaps most importantly, Omar al-Bashir, President of Sudan. Significantly, as illustrated by in-depth commentaries from Office of the Prosecutor (OTP) staff, Moreno Ocampo has routinely undermined the progress of the Court through his rash decision making. Moreover, in his position as Prosecutor, Moreno Ocampo has focused on creating a “sexy court” that for many critics is based on public opinion rather than justice for victims.
“Lawyers and investigators who served in the OTP, and who count among the brightest and the best in their profession, say they believe the Court’s reputation, and perhaps even its life, is at risk.”
Citing organizational and management problems under Moreno Ocampo, countless ICC Office of the Prosecutor staff have left the institution, and many blame Moreno Ocampo for its limited success. Additionally, some high level UN officials fear that if left to his own devices, Moreno Ocampo will continue to undermine the progress of the ICC, and more specifically, its promise of achieving international justice and accountability. For Flint and de Waal, it is necessary for the international community to reassess the role of Moreno Ocampo as Prosecutor in order to best position the ICC to be able to exercise its mandate and address the violent conflicts and pressing human rights violations witnessed across the globe.
These issues and others are considered in this month’s Roundtable.
Monday, May 4, 2009
Editor's Introduction - May 2009
Case Posed: But Can the Prosecution Rest?
by Charli Carpenter, University of Massachusetts-Amherst
“Many other international organizations have had rocky starts only to emerge down the line, with some tinkering, as powerful forces for good…”
Julie Flint and Alex de Waal have published a damning article about the ICC prosecutor Luis Moreno Ocampo which reads, by extension, as a trouncing of the entire institution. I’m not in the loop with the court’s day-to-day politics well enough to offer an informed counter-argument, so instead, by way of playing devil’s advocate, let me agree for argument’s sake with a number of the authors’ claims, hyperbolic and partisan though they sound at places, and then (again for argument’s sake), push back on the assumptions the authors make about the implications of those claims.
1) Let us assume that Moreno-Ocampo erred, as has been ably described, in failing to launch a full-scale investigation of the atrocities in Darfur. But why single out Darfur as uniquely deserving such an investigation? After all, ten to twenty times as many people have died in Democratic Republic of the Congo—the country whose conflict yielded the first indictee to be tried by the court, Thomas Lubanga Dyilo.
2) Let us assume that the indictment of President Omar Bashir and Joseph Kony by the court are, as Flint and de Waal say, toothless acts that only undermine peace processes on the continent. At worst, are the authors not accusing the ICC simply of upholding its mandate to prosecute the law? From a policy perspective, the authors are absolutely right. But the ICC is not a political institution; it is a judicial institution. By issuing indictments that can only be realized through third party state action, the ICC is refusing to become politicized, refusing to serve as a substitute for political action, and is passing the buck back to governments in whose hands, ultimately, the enforcement of international law lies.
3) Let us assume that Flint and de Waal have accurately depicted the Chief Prosecutor of the ICC as a hopelessly abrasive, procedurally obtuse, and personally corrupt individual whose behavior has undermined morale at the ICC. Must it therefore follow that his conduct has damaged the ICC’s legitimacy beyond repair? I doubt it. Given that prickly, self-important curmudgeons abound in leadership positions of international institutions, it’s hard to for me to see the sort of broad implications of this that the authors describe. Should Moreno Ocampo be replaced, if this picture is accurate? Probably. Would the court function more smoothly, would the ICC staff be happier with a more charismatic, able figurehead? Certainly. But will the court’s legitimacy as an institution be dependent on this? I’m not so sure. Many other international organizations have had rocky starts only to emerge down the line, with some tinkering, as powerful forces for good—the defunct League of Nations and its successor come to mind. Judges at the ICTY routinely fell asleep on the job, and those in Arusha were known to laugh at rape victims, but these institutions with all their flaws managed to bring justice to many (including landmark convictions for sexual violence) and will be remembered by most as significant steps on the road to greater accountability for war crimes. It remains to be seen how States Parties will react to the excesses of Moreno Ocampa during the 2010 Review Conference of the Rome Statute. Let us not, however, throw out the baby with the bathwater.
Charli Carpenter is an Assistant Professor of Political Science at University of Massachusetts-Amherst. Her teaching and research interests include national security ethics, the laws of war, transnational advocacy networks, gender and political violence, war crimes, comparative genocide studies, humanitarian affairs and the role of information technology in human security. She is the author of Innocent Women and Children: Gender, Norms and the Protection of Civilians, and the editor of Born of War: Protecting Children of Sexual Violence Survivors in Conflict Zone. Dr. Carpenter blogs about international politics at Duck of Minerva and about asymmetric warfare at Complex Terrain Lab.
The International Criminal Court
by Mark Gibney, University of North Carolina-Asheville
“The ICC certainly can play an important role in the protection of human rights, but it is essential to recognize the limitations that the Court has been placed under.”
I believe I speak for many when I say that the International Criminal Court (ICC) has not been anywhere near the institution that it was anticipated as being, and the latest manifestation of the ICC’s shortcomings is the humanitarian disaster that has ensued after the Court issued an arrest warrant against Sudanese President Bashir. Since no other UN action is anticipated, all that remains is to count the ever-growing number of Sudanese deaths that will result from what now appears to be a purely symbolic act that was all-too predictable.
Yet, the problems with the ICC go much further and much deeper than this. Certainly, a large part of the blame rests with the Prosecutor Luis Moreno Ocampo. There is every reason to believe that the careful and analytical lawyer that had been advertised was in so many ways anything but the truth. However, even with the perfect prosecutor in office, it is by no means clear that the ICC could be doing much better than it has. But perhaps this was the intended result all along.
The biggest problem is the canyon-like gap between a world rife with human rights violations and a Court that really has not achieved much of anything—but more importantly, it has given every indication to the world that it does not have the slightest interest in doing so. As poorly thought out as it was, the Bashir incident at least served as a reminder to the generation that had such high hopes for this institution that the ICC actually still exists. However, the real fear is that after serving this notice that it intends to be a “player,” the ICC will retreat back into its deep slumber mode—meanwhile, violence continues unabated, and those responsible are never held accountable for their actions.
The ICC certainly can play an important role in the protection of human rights, but it is essential to recognize the limitations that the Court has been placed under. The problem in a nutshell is that the Court was promoted as providing Salvation (of sorts)—but then given no police force, slight Security Council support, and an ineffective and seemingly megalomaniacal Prosecutor. This seems to be a recipe either for pure disaster or total inertia. Take your pick.
But rather than simply piling on Moreno Ocampo or the ICC itself, perhaps some broader lessons can be learned. One of these is that the creation of the ICC truly has served to whet the world’s appetite for accountability. Before this, it was rather readily assumed that this was simply not in the realm of the possible. To its credit, the ICC has changed our thinking on this matter, even if it has not come anywhere close to delivering on these expectations.
But the ICC’s greatest contribution might come in understanding and accepting the reality that it will be hard pressed to ever make a great contribution. Rather than shoving aside (whether intentionally or not) other possible actors and avenues, the ICC should actively promote, assist and nurture state and regional efforts at establishing accountability in the form of money, expertise, evidence, and so on. In addition, the Court should view the proposal by the Special Rapporteur on Torture (Manfred Nowak) for the creation of a World Court of Human Rights as a complement and not a competitor.
This humbling but important work will never occur so long as the ICC presents itself as it does. For sure, prosecuting a relatively small number of high-level political operatives could help make an enormous difference. No institution is as well placed to do this as the ICC, and let us hope that the body is able to achieve some success at some point toward this end.
But there is more that the Court could and should be doing. The comparison that is always made is with the Nuremberg proceedings. But what is easy to forget are the other proceedings in Germany, later in time and certainly less visible and less known, but which had a more profound effect on the German state and its people. To my mind, then, one of the legacies of Nuremberg concerns the limits of Nuremberg-like proceedings and the need to adopt a battery of strategies intended to establish accountability that are much closer to the victims themselves. The ICC would do well to acknowledge and to learn from this lesson.
Mark Gibney is the Belk Distinguished Professor at the University of North Carolina-Asheville. His most recent book publications include International Human Rights Law: Returning to Universal Principles (Rowman & Littlefield, 2008) and the edited volume The Age of Apology: Facing Up to the Past (University of Pennsylvania Press, 2007). He also has two forthcoming books. The first (with Sabine Carey and Steve Poe) is The Politics of Human Rights (Cambridge) and the second is an edited volume (with Sigrun Skogly) Human Rights and Extraterritorial Obligations (University of Pennsylvania Press).
Character Assassination in the Court of Public Opinion
by Tyler Moselle, Harvard University
“To what extent is the ICC relevant in the context of human rights and international ‘justice’ juxtaposed with the hard realism of political treaties and negotiations?”
Alex de Waal and Julie Flint employ character assassination on Luis Moreno Ocampo in their World Affairs article “Case Closed: A Prosecutor Without Borders.” Ironically, they are guilty of the same crime they accuse Ocampo of: being overly occupied with the court of public opinion. Or perhaps, that is the only court they as Sudan specialists, and Ocampo as the ICC’s first Prosecutor, have recourse to when attempting to right the wrongs of injustice.
De Waal and Flint view Ocampo’s indictment of Sudanese President Omar al-Bashir as poorly conceived and damaging to humanitarian missions and negotiations. Then they work backward from this central argument to characterize Ocampo as obsessed with the public spotlight, inept in matters of legal detail and argument, micromanaging, and potentially morally repugnant (noting specifically: rape charges and pursuing wealth as a lawyer for odd client combinations).
They present their argument in the opposite format however, arriving at the Bashir indictment as the zenith of Ocampo’s misdeeds. What do they use as evidence for their overall critique? They quote former ICC staff members, compare his presentations and numbers with other organizations and datasets, and use interviews with individuals previously associated with his activities as a lawyer in Argentina (as the Catholic Priest case demonstrates).
What is the indictment of de Waal and Flint? As their title suggests, it is an air-tight verdict of “case closed” that Ocampo is not the right man for the job.
But do the authors, in their desire to support a long-term and sustained commitment to Sudan’s peace process which supposedly excludes “sexy” spotlight antics, come to paradoxically endanger an institution that should be supported? Do not de Waal and Flint undermine human rights sensibilities by assassinating the character of Ocampo, just as they similarly critique Ocampo for doing to al-Bashir? Are they not indicting a man, and the something of the institution he represents, with shoddy evidence?
De Waal and Flint argue that Ocampo should not have indicted al-Bashir because it may make him more resistant to international negotiations and peace treaties and thus erode prospects for long-term solutions in Sudan and perhaps even threaten the ICC itself. Simultaneously, de Waal and Flint indict Ocampo which may make him more resistant to changing the way he approaches his position as Prosecutor of the ICC.
This argument makes me more skeptical of their core concern which is latently present but never articulated: indictments of heads of State and other internationally prominent individuals, and perhaps even the ICC itself in practice though not theory, are not useful if one wishes to pursue a “humanitarian agenda.” In fact, the globe-trotting, flashy lawyer spotlight of the ICC may be harmful to a true humanitarian agenda.
What core evidence do the authors present for their position? None. They have a tentative hypothesis which they try to slip in under the guise of assassinating Ocampo’s reputation. They present no solid evidence that Ocampo’s indictment of al-Bashir has had serious deleterious effects on the humanitarian crisis in Sudan. Perhaps they should have spent more time performing serious research and collecting serious data to prove their claim just as they criticize Ocampo for failing to pay attention to details in preparing for cases.
The authors believe in theory the ICC should survive—only with a more competent and savvy Prosecutor. But in the meantime, they certainly throw a wet blanket on those who applaud the effort of the ICC, through Ocampo, to live up to its inspiring origins and for the first time, indict a head of State who has presided over a…Civil War?
The article induced me to think of three questions which need to be answered: 1) To what extent is the ICC relevant in the context of human rights and international “justice” juxtaposed with the hard realism of political treaties and negotiations?; 2) How can the ICC adequately indict heads of state for egregious crimes and what types of evidence have been used most successfully in other similar circumstances?; and 3) If de Waal and Flint do not think Ocampo is fit for the ICC Prosecutor position, who is and why? How do we know they are qualified? How will they use the office of the ICC?
Until we are able to answer those basic questions, debate over the ICC’s role may remain an unresolved verdict.
Tyler Moselle is a Research Associate at Harvard Kennedy School’s Carr Center for Human Rights Policy.
Adjudication for the Adjudicators?
by Rebecca Otis, University of Denver
“This is a tremendously exciting and ambitious time for the UN in the creation of new legal interpretations and precedents for the fair governance of the global community.”
Coming from the perspective of one who roundly agrees with Kofi Annan that the creation of the International Criminal Court was “a gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law,” it is deeply troubling to read reports of corruption within the body of the UN. Julie Flint and Alex de Waal’s piece this month judiciously exposes yet another facet of questionable activities, namely at the heart of the ICC. Flint and de Waal’s piece quickly deepens into a long list of allegations against the personal behavior and professional misconduct of the ICC’s Lead Prosecutor, Luis Moreno Ocampo. Without a doubt, the unveiling of evidence against Ocampo is yet another testament to way the way in which certain UN officials appear to act according to a personal and highly subjective set of rules, which are often in contradiction to the fundamental mission of the UN.
More broadly, Flint and Waal’s piece casts light on questions concerning UN accountability and issues of impunity. Recently allegations of sex abuse and other crimes of misconduct by UN peacekeepers in eastern Congo come to mind. As recently as this month, the Cambodian Khmer Rouge trials are similarly plagued with allegations of corruption among the tribunal staff. These and other issues of misconduct have dogged UN operations since 1948, causing much of the world to disdain the organization founded upon the principle of universal governance and protection of human rights.
Of course, despite the criticisms of isolated UN personnel such as Ocampo, Flint and Waal also go to great lengths to demonstrate that the founding of the ICC was necessary as a baseline for the establishment a universal framework for adjudicating crimes against humanity. They add that the Court “promised to be a turning point in the struggle for human rights and against impunity, a landmark in the advance of global ethics.” Similarly, Kofi Annan reflected that the establishment of the ICC meant that no single individual, however powerful, could operate above the law. Despite its infancy, the ICC has become a revolutionary place of accountability, attracting the best and brightest legal minds to forge a new path in the art and application of this new area of adjudication. The presumption is that the UN attracts deeply committed lawyers, who believe in upholding and fostering the normative foundations upon which the UN was established. Yet what happens to the sanctity of the ICC when one of its own, no less the Lead Prosecutor himself, allegedly behaves as if the rules of his own court do not apply to him?
In response, I would say that this is a tremendously exciting and ambitious time for the UN in the creation of new legal interpretations and precedents for the fair governance of the global community. That said, it would seem obvious (if not unfortunately overdue) that the UN go to great lengths to hold its adjudicators to the same standards as it holds those who commit crimes against humanity. In this case, they are one in the same.
Posts
