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Former ICC Chief Prosecutor traces the evolution of international criminal law

November 08, 2017

By Jenna Wang C’19

On November 6, Luis Moreno Ocampo spoke at the University of Pennsylvania’s Perry World House about global justice systems and the International Criminal Court (ICC).

The event, titled “The Global Order and War on Terror: Exploring Options,” was moderated by Penn Law professor Beth Simmons and Perry World House Director and Law School professor William Burke-White. Ocampo, the first Chief Prosecutor of the ICC and a Senior Fellow at Harvard’s Carr Center for Human Rights Policy, spoke for an hour on the implications of the U.S. war on terror in the international realm.

The lecture was part of Professor Simmons’ Global Research Seminar: “International Humanitarian Law and International Criminal Law: The Colombian Armed Conflict and the Peace Agreement.”

A prominent figure in politics and law, Ocampo reflected on his long career from his beginnings as an assistant prosecutor in Argentina to his nine-year term at the ICC. He touched upon his hallmark accomplishments such as the Junta Trials in 1985 and his indictment of Sudan President Omar al-Bashir in 2008.

Ocampo illustrated main concepts of international criminal law and played clips of his own trials as a prosecutor in the late 20th century. He used an analogy that compared major advancements in institutional governance to “softwares,” such as the world’s first democracy in Greece, the U.S. Constitution, and the European Union.

Ocampo defined a new model of international justice that arose in the 21st century from the U.S. war on terror. This model involved some countries pursuing justice on a global scale, such as the United States in Afghanistan and Iraq, while others opted out.

“We need to understand how to develop new software for the world,” he said about international justice in the modern age. “Who will do it?”

Some challenges of being Chief Prosecutor of the ICC that Ocampo reflected on included the element of uncertainty in decision-making and the obligation to stay neutral in highly political situations. As Chief Prosecutor, Ocampo was responsible for balancing prosecutor authority and political interest, and was often solicited by opposing parties that tried to tell him how to do his job.

One example Ocampo shared with the audience was his prosecution of Sudanese President Omar al-Bashir in 2008. Ocampo recalled receiving complaints from China against indicting Bashir, as well as conflicting demands from other parties. Then, the game changed when then-U.S. President George W. Bush decided he was adamantly against Bashir, and Ocampo’s decision suddenly became more favorable in the international eye.

“You are playing the game, and nobody knows how the other is playing,” Ocampo said. “The prosecutor cannot define the game. The prosecutor has to stay the line.”

Ocampo also spoke about some limitations of the ICC, such as incomplete areas of jurisdiction and the slower supply model of justice. When asked why the ICC hadn’t intervened in Syria, Ocampo simply pointed to a world map that showed all 133 member states of the ICC in blue. The ICC only has power in its member state territories, although it is also able to charge non-member states if the crimes they committed happened in the territory of a member state.

“This is not a revolution, this is an evolution,” Ocampo said about the speed of international criminal law. “[The] ICC is a piece of the justice supply.”

Looking into the future, Ocampo suggested a system imposed by the United Nations Security Council that consisted of a global prosecutor office, with secondary judges in international circuits that would practice a commonly accepted set of international laws. He acknowledged the audience’s concern that this setup would be a monumental challenge, but certainly an ideal system for future challenges such as dealing with North Korea, or climate change.