By Luis Moreno Ocampo
For more than 30 years, I have been investigating people with political, military or financial power and I learned that I had to be prepared to be attacked. I received threats to my life, secret services spied on me and in 1997 a lawyer from my private firm was killed.
Sometimes my decisions were also strongly criticized by honest people with different opinions. My uncle, a colonel, considered that the investigation against the Military Junta in Argentina was affecting the honour of the institution that he loved and, as a result, he stopped talking to me.
At the International Criminal Court, each decision I took generated a wave of different opinions on what the Prosecution should do. Requesting an arrest warrant for Joseph Kony was then considered by some experts as a threat to an ongoing peace process. We were criticized for being slow to investigate in Darfur, Sudan, and very fast in the Muammar Gaddafi case. The criticism could come from different fronts and truth is becoming irrelevant, perception is what matters. Everyone dismissed the African bias argument when Omar el-Bashir was indicted and now it is widely quoted despite its utter lack of foundation. Been publicly criticized is part of my professional career and I tried to respect the opinion of those who disrespected me.
But now I am facing something new: I have been the target of a cyber-attack by an unknown secret agency. Hackers illegally obtained 40,000 unauthenticated documents, including confidential diplomatic cables, emails and bank records relating to my personal and professional activities as well as the activities of the Court and of its staff members. In the past, individuals like Edward Snowden stole information from state organizations considering that the “public interest” justified their actions.
My case is quite the opposite, a secret agency targeted my private and confidential information. I am investigating who did it but it is clear that there was no “public interest”. A secret agency was targeting me to attack the Court.
The information illegally obtained was provided by the hackers to Mediapart and the EIC network of 20 journalists from 11 countries. The secret agency is using the journalists as a weapon of choice to taint not just me but the entire Court.
The EIC network do not explain how they obtained the stolen information but have used it to analyze “the criminal policy instituted by the first prosecutor of the International Criminal Court (ICC), Luis Moreno Ocampo” throwing “light on how his actions deeply tainted and discredited this international court.”
The EIC network is openly aiming to create distrust for the Court. This is for me the biggest problem: they are disseminating erroneous information against me while pretending that the entire Court has substantial problems — like a blind person describing the similarities between an elephant and a snake because he is touching the elephant’s tail.
I will assume that the EIC journalists, like my uncle, believe that it is right to attack me and the Court. But their “analysis” of the Prosecution’s policies has no professional quality. They do not analyze our policies, they do not even mention the “policy paper” issued in September 2003 that describes the main policies, the subsequent policy “on the interest of justice” and the other publicly available strategic documents. There was no need to hack me and my colleagues if the goal was to analyze our policies.
I am now surprised that some lawyers are welcoming this campaign and using false, unauthenticated and illegally obtained information to make conclusions against me and the Court.
It is a campaign of character assassination aiming to infect the entire Court and its officers. I should not transform it into a personal battle. For that reason, I refused to answer questions from the EIC network of journalists.
I felt sad for victims who trusted us, like a woman in Kenya who lost everything and had hopes in our intervention. I also regret that one of my private clients, who tried to promote investigations of the crimes committed in Libya since 2014 and invested his own money in such an endeavour, is presented without any basis as part of those crimes. Neither the ICC nor any other court investigated my client and the journalists did not present any information showing that he violated any law, but in order to attack me they tainted him. Sadly, my client was right and the impunity in Libya is exacerbating the conflict and has transformed the country into a failed state.
After the end of my tenure I never visited the Court again and I never acted professionally before it. I never abused my previous position to obtain any insider information. I provided to the first journalist of the network that interviewed me a document showing that my opinion on the possible ICC investigation of General Haftar was based on public discussions at the UN Security Council. The journalist twisted my comments and ignored the truth. Since then, I decided not to legitimize any of their questions by answering them. I should not be part of a campaign aimed at denigrating the Court.
The campaign should be ignored because it is diverting attention from the real problems. In 2003, there were doubts about the viability of the ICC. In 2017, the Court is in full motion and a consolidated piece of the international landscape. The Prosecutor is developing new ways to prove cases using cyber evidence; she obtained the surrender of suspects; and in one case his admission of guilt; the judges are establishing a solid jurisprudence; and the Registry is fulfilling its complex duties. The Court’s existence is not at risk — the Rome Statute’s relevance is in question as is the relevance of international law to manage conflicts. The Court is just the face of the Rome Statute system and the current challenge is how the rest of the system works.
The ‘War on Terror’ is affecting the goal of the Rome Statute. Omar el-Bashir was able to trade the Sudan’s cooperation on intelligence and its army’s intervention in Yemen for his impunity and the lifting of sanctions against the Sudan. President Uhuru Kenyatta’s intervention in Somalia consolidated his international support. The conflict in Iraq and Syria created a refugee catastrophe affecting millions of victims and destabilizing the Arab world and Europe.
There are leadership problems. Many states parties recognized the Yazidi genocide, congratulated Nadia Murad and ignored her demands for justice. Burundi is promoting a criminal policy against Hutu moderates and Tutsis, and the African Union could not stop it. Darfuri and Kenyan victims are being neglected. The “never again” promise is disappearing.
There are also interesting developments. The Organisation of American States is creating a new process to cooperate with the Court in the Venezuelan situation, Colombia adjusted its peace process to the Rome Statute requirements, Gabon used the ICC to control its post-electoral violence problem. The states parties are planning a year-long campaign to strengthen global support for the court and justice to celebrate the upcoming 20th anniversary.
The real question that this campaign is diverting from is: how to organize a global campaign to support these states efforts? How to take care of Darfuris, Kenyans and all the other victims? How to uphold the rule of law in the face of widespread atrocities worldwide? We need a global network working for justice.
Mr Luis Moreno Ocampo, the first Chief Prosecutor at the ICC(2003-2012), is currently in private practice and Senior Fellow, Carr Center for Human Rights Policy, Kennedy School of Government, Harvard University.