Wednesday 05 Aug 2020 | 03:32 | SYDNEY
Wednesday 05 Aug 2020 | 03:32 | SYDNEY

ICC Prosecutor talks to The Interpreter


Fergus Hanson


2 April 2008 10:55

I recently interviewed the Prosecutor of the International Criminal Court, Dr Luis Moreno-Ocampo (pictured left). In the post below he points out the significance of having Japan on board as a new member and says eventual US membership is inevitable. He talks about Australian cooperation with the Court since his visit here last year and kicks off with a comment on the importance of the Court's latest arrest.

Prosecutor: With the arrest and transfer of Mathieu Ngudjolo Chui on February 7, the Court now has three accused in custody at the ICC Detention Centre. The arrest of Mathieu Ngudjolo is of particular significance. While Thomas Lubanga Dyilo and Germain Katanga were already in detention in the DRC before their surrender to the Court, Mathieu Ngudjolo was a free man; a man who was part of the demobilization process and a man who had benefited from an amnesty in the past. He was a Colonel in the Congolese army.

This was the first real arrest in the DRC and for the Court, and it was performed with the cooperation of the DRC authorities, the UN and Belgium, which provided the plane for transportation to The Hague. The Office of the Prosecutor is now moving on to a third investigation in the DRC, with other applications for arrest warrants to follow in the coming months and years.

Enforcing arrest warrants is perhaps the most critical and difficult issue of the system created by the Rome Statute. Under the Statute, States Parties have the responsibility for arresting suspects and delivering them to the Court for prosecution.

The OTP can help galvanise efforts. To this effect, we ask for States Parties political and public support: in any bilateral meeting, in any multilateral activity, in any development program, the States Parties should automatically mention the need to respect and implement the ICC judges’ decisions. We also seek the marginalization of the individuals sought by the Court to facilitate their arrest. Criminals such as Joseph Kony, the leader of the Lord’s Resistance Army in Uganda, or Ahmed Harun, Minister for humanitarian affairs of the Sudan, against whom we have issued arrest warrants, are fugitives.  No support, no supplies, no financial aid should reach them. They have to be isolated within their own communities and arrested.

There are difficulties, as our indictees are often protected by Governments, by armies or by militias. Arresting them requires tough political and operational decisions. But it is a fantastic opportunity. Arresting them will send clear messages to perpetrators of atrocities worldwide.  It will be key in preventing further atrocities.

States have made a commitment in Rome to apply the new law: lasting peace requires justice. They made a very conscious and calculated decision to create a new tool to mange violence. They must live up to this commitment. They must use this opportunity.

I am confident that the destiny of Kony and the other three indicted LRA commanders, as well as Ahmad Harun and Ali Kushayb in the Darfur case is the courtroom in The Hague. We are a permanent Court, and we can wait. But victims cannot wait.

Fergus: Japan recently acceded to the Rome Statute becoming its 105th member. Do you think that will provide any significant impetus to the global giants – the US, China, Russia and India who have so far held out on the Court – signing up?

Prosecutor: We hope Japan will play a leading role in the Court. Japan has a tradition of consistency in its international commitments.

With the ICC, States have established a new law, a new tool to manage violence. Lasting peace requires Justice. They committed to end impunity for massive crimes.  Five years later, this new law, this new court is operational. Investigations have been carried out in ongoing conflicts, criminals have been arrested, the first trial is about to start. What we need now is for States Parties to live up to their commitments and to maintain consistent and vocal support to the Court. 

Of course the more states that join the Court the stronger and more effective the Court will be. This month Madagascar became the 106th state to ratify the Treaty of Rome, while we know many others are in the process of joining. In 1998, States committed to use the law to prevent atrocities. They created a new permanent institution to enforce the law.  They committed to support the Court whenever and wherever it decides to act, whether in the DRC or Uganda or Darfur. States demonstrated their understanding and firm support to this new design by the tremendous speed of the ratification process; less than 4 years after its adoption in Rome, the Statute entered into force. In 20 years, all States will want to join the Court and it will be universal.

Fergus: There have been some signs more recently that US opposition to the Court is softening. For example, its insistence on bilateral immunity agreements seems to have weakened, and larger states such as Australia have managed to avoid committing to them. Do you have any indications the US position might change after the 2008 election?

Prosecutor: As I said earlier, I believe that in 20 years the Court will be universal. With the Rome Statute we have built more than a Court, a new criminal justice system defined by the interaction of States, international organization, and an emerging civil society with the ICC. It has a powerful new design, made to address the challenges of the 21st century where no nation can protect its citizens if the international community does not uphold the rule of law.

Fergus: Last year you visited Australia as a guest of government where officials expressed considerable interest in strengthening cooperation with the Court. Has this yet translated into concrete assistance and do you see this assistance expanding given the recent election of a new government in Australia?

Prosecutor: During my visit to Australia in early August 2007, I was able to meet with key decision makers, as well as prominent members of civil society, and to discuss with them the need for Australia to have a firm and consistent voice of support and cooperation for the ICC, bilaterally as well as in regional and international fora.

I was very grateful that at the following UN General Assembly in October 2007, Australia called on the Sudanese Government to execute the Court’s arrest warrants against Minister of State for Humanitarian Affairs, Ahmad Harun, and militia leader Ali Kushayb, both wanted for horrendous war crimes and crimes against humanity, and hand them over to the Court. This “full and unequivocal support” for the International Criminal Court is essential for us. We are an independent and impartial Court. Our only strength is our legitimacy and Australia helps us build such legitimacy in Asia in particular.

Australia has also been one of the most active voices in the campaign for ratification of the Rome Statute. During my 2007 visit, the Department of Foreign Affairs and Trade hosted to promote the ICC in the Asia-Pacific region and highlight the potential benefits of ratification or accession. The 65 participants from 16 countries included ministers and senior government officials from Bangladesh, Cook Islands, Indonesia, Japan, Laos, Malaysia, Nepal, Papua New Guinea, the Philippines, Samoa, Solomon Islands, Thailand and Vietnam.

On a more operational level, representatives of the Australian Federal Police marked their presence at the 1st Working Meeting with War Crime Units organized by the OTP in February 2007 in The Hague, initiating a trend based on the exchange of information and best practices helpful to the investigative and prosecutorial activities of this Court.