Luis Moreno-Ocampo, The Hague, January 2012
Luis Moreno-Ocampo, the former chief prosecutor of the International Criminal Court. Photo by AP
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In the dysfunctional state of Israeli-Palestinian relations, the “nuclear option” for the Palestinians would be joining the International Criminal Court as a member state and exercising that membership to launch war crimes investigations against Israel. At least, that’s the view of many in Israel, which, like the United States, is not a member of the ICC.

But to judge by comments made by the ICC’s former chief prosecutor, Luis Moreno-Ocampo — who, even two years after leaving his post in The Hague, remains the controversial court’s most persuasive advocate — Israel has little to worry about. 

Last week, on his first visit to Israel, Moreno-Ocampo was full of praise for the local legal system and eager to point out that joining the ICC could backfire for the Palestinians. “Being here in Israel is not liking talking about international justice in Boston or Sweden,” said Moreno-Ocampo, who was here as a guest of the Fried-Gal Transitional Justice Initiative at the Hebrew University of Jerusalem’s law school. “The issues here are not academic.”

But he isn’t at all sure that if the Palestinian Authority were to join the ICC — or if Israel were to join, for that matter — the international court would actually play an active role in the conflict.

The ICC’s job is to investigate and prosecute only in cases in which the local legal system is not performing. “In a dictatorship they can make you disappear and kill you,” said Moreno-Ocampo. “But here, even if the situation is awful, you cannot disappear; you have the rule of law.”

He is wary of being yet another foreigner who “comes here and says I can solve your problems.” Saying Israel has “great lawyers here,” the former chief prosecutor said if Israel’s Supreme Court could find a way to win the Palestinians’ trust, perhaps it could adjudicate claims the Palestinians want to bring before the ICC. For the ICC to rule on Israel’s activities, he said, “the Palestinians have to prove that the [Israeli court’s] decision was to shield the defendants. They would have to prove that it wasn’t a fair proceeding.”

Moreno-Ocampo rejected a Palestinian request that the ICC launch a war crimes investigation against Israel after its May 2010 raid on a Gaza-bound flotilla, which ended in the deaths of nine Turkish nationals. “I told them that I can’t offer you success because you are not considered a state,” the former chief prosecutor recalled. “First go to the United Nations and when they recognize you, come back.”

The Palestinian Authority did go to the United Nations, and its status has since been upgraded to non-member observer state, making it eligible to join the court. All the same, Moreno-Ocampo said ICC membership could be a double-edged sword for the Palestinians, since it would also open them up to investigation for alleged war crimes, such as rocket fire and bombings targeting Israeli civilians.

“The ICC could help the Palestinians, but it could also increase the conflict,” said Moreno-Ocampo. “And the Palestinians should ask themselves how they would do it, because if you want to include everything since 2002 [when the ICC was established], that could include things done by the Palestinians. Another alternative is to start from 2015, not investigate past events and now that Hamas is part of the government, that would prevent them from committing more crimes.” 

Moreno-Ocampo’s warnings may seem strange to those who see the ICC as an interventionist organization of busybodies, but he doesn’t see the international court as an institution that should necessarily be conducting many global investigations.

Twelve years after the international court was founded, it is hard to find many supporters. In addition to Israel, the United States, Russia, China and India have not signed or ratified the treaty that established the ICC. The small number of indictments that have led to trials have all been focused on Africa, leading to accusations of bias. There are also indications that the court has not been particularly effective.

Sudanese President Omar Bashir, who in 2008 became the first sitting head of state to be indicted of war crimes and genocide, has become the ICC’s most high-profile case, but he seems no closer to trial five years after the court issued a warrant for his arrest. Likewise, the ICC’s attempts to participate in the prosecution of senior members of the former Libyan regime have been rebuffed by the new rulers in Tripoli, and the court has not taken any substantive steps toward involvement in prosecuting Syrian President Bashar Assad, though he is directing the murder of tens of thousands of civilians in Syria’s civil war.

Moreno-Ocampo has no doubt that “Bashar will face a court” one day. “Who thought that one day Gadhafi would be brought down, or that his son or [Muammar Gadhafi’s intelligence chief Abdullah] Senoussi would be put on trial.” When I remind him that Gadhafi was brutally lynched and that the ICC has been kept out of the Libyan trials, he replies that the international court served its role by launching an investigation and issuing a warrant for Senoussi’s arrest.

“They [the Libyans] were grateful for what we did because we showed them the world didn’t accept him and they want to show that they can do better themselves,” said Moreno-Ocampo. “We are changing the world in that sense. We didn’t prosecute a case in Colombia, for example, but they changed the way they do things and prosecuted cases themselves because of the ICC. The world needs different tools to manage conflicts.”

The former chief prosecutor is certain the ICC’s impact will be felt over decades, not necessarily because of the cases that actually go through the court but because it is drawing a line between war crimes that can only be prosecuted by an international forum and cases that will be increasingly dealt with by the countries where the war crimes took place.

“Law enforcement is national, but acts of terror need global investigations,” said Moreno-Ocampo. “We’re living in a new age when people under 25 from Argentina, Italy and Russia are communicating around the world with each other and are very similar. This is the global community which will demand common standards.” The best outcome of for the ICC, he said, is that “there will be zero cases. That is the best because it means we are having an effect. The law is not for judges; it’s for people.”

The success of the ICC, maintains Moreno-Ocampo, should not be measured by the number of its successful prosecutions, but by the change its very existence is making in the way governments investigate their own security forces. He is certain that even the Israel Defense Forces “changed its orders just because of the ICC.”