Near 4 many years in the past, the then-32-year-old Argentine lawyer was thrust into the worldwide highlight because the deputy prosecutor of the “Trial of the Juntas,” beating Argentina’s former army dictatorship within the courts — a landmark case that was made into an Oscar-nominated movie launched final yr. He went on to have a protracted and storied profession in international justice, changing into the inaugural chief prosecutor for the nascent ICC in 2003. There, he indicted each Libyan chief Moammar Gaddafi and Sudan’s Omar al-Bashir, although neither lived to face trial.
Now 71, Moreno Ocampo completed serving on the ICC 11 years in the past. Nonetheless, he’s nonetheless lively on the planet of worldwide humanitarian legislation and has been carefully watching the struggle in Israel-Gaza. He spoke to Immediately’s WorldView this week, not lengthy after the workplace of present ICC prosecutor Karim Khan confirmed that the courtroom had jurisdiction over the battle in Israel-Gaza.
The dialog came about the identical day because the strike on al-Ahli Hospital, although he mentioned it was too early to speak “with precision about this particular incident as a result of we don’t know the information.” Moreno Ocampo spoke on the telephone from Brazil, the place this month he took up a brand new educational function. “I’m in São Paulo as a result of I spent six years at Harvard,” he mentioned later. “American thinks of America options. That was the Second World Warfare. Now the world is totally different.”
The next transcript has been edited for size and readability. Hyperlinks have been added the place acceptable.
Immediately’s WorldView: First off, given what you’ve been seeing and your individual time as chief prosecutor of the ICC, how possible is it that we’ll see the ICC open prosecutions within the Israel-Gaza struggle?
Moreno Ocampo: Properly, that’s completely on the discretion of the prosecutor. And he also can determine the place to analyze, what crimes to analyze and when to current fees. What is evident is that after a protracted course of, beginning in my time, Palestine grew to become a state get together in 2015. In 2021, the courtroom’s judges confirmed to the prosecutor, that Gaza, the West Financial institution and East Jerusalem, are a part of the territory of Palestine.
Due to this fact, that signifies that any genocide, crimes towards humanity or struggle crimes dedicated in that territory may very well be investigated by the ICC and the investigation is open.
Q: And this implies the ICC can prosecute Palestinians, too, for crimes dedicated outdoors of these territories, proper?
A: Completely. The [Oct. 7] Hamas assault was completely dedicated from Gaza, so it’s completely below the jurisdiction of the courtroom. It’s completely clear that the ICC might say, okay, we’ll begin with the crimes dedicated by Hamas. The prosecutor might select for his first case to be the Hamas case.
Q: By way of potential crimes that the ICC would examine — crimes towards humanity and struggle crimes — what have you ever seen to date that stands out?
A: Properly, the Hamas assault is clearly a criminal offense towards humanity, that means a widespread and systematic assault towards a civilian inhabitants. Taking hostages can be a struggle crime. It’s additionally presumably genocide as a result of Hamas has the intention to destroy Israelis.
The issue is that the response from Israel … it’s difficult. Simply the blockade of Gaza — simply that — may very well be genocide below Article 2(c) of the Genocide Conference, that means they’re creating circumstances to destroy a gaggle. There’s compelled displacement, one other drawback. Right here, it’s extra difficult. Israel has the fitting to defend itself, even to assault those that assault Israel from a distinct territory. I agree with that.
However Israel has a proper to kill Hamas members. It can not kill civilians and it can not forcibly displace civilians from that. And that’s an issue. I believe, after all, Hamas is utilizing the Palestinians as shields. Due to this fact, it’s very troublesome to discriminate between civilians and combatants. However that doesn’t give [Israel] allow to kill combatants and civilians on the identical time. It’s important to discriminate. Israel can not fake it’s simply destroying Hamas as a result of within the meantime it’s killing plenty of civilians. That could be a crime for a criminal offense.
These are struggle crimes, presumably a criminal offense towards humanity. After which there’s the hunger in Gaza, additionally presumably a genocide.
Q: How might Israel keep away from these accusations?
A: Properly, a very powerful half is to cease the crimes. That’s difficult as a result of Western politicians should not speaking about stopping the crimes, they’re speaking about opening a humanitarian hall. That’s not the issue. This isn’t a pure catastrophe. That is due to the choice of Israeli officers. So they need to put stress on Israeli officers to not commit crimes.
And look, it’s not simply because its unlawful or authorized. Historical past ought to train us however humanity isn’t studying. When People have been attacked within the twin towers, if we didn’t assault Afghanistan, they may have had prosecutions. Ship the troops to arrest Bin Laden, arrest his folks after which prosecute them. That’s authorized. However as a substitute, President Bush decides struggle. As a result of struggle sounds extra highly effective — but it surely’s not.
Afghanistan is a superb instance, as a result of 20 years later the Taliban is again in energy. Al-Qaeda has allies world wide now. Stanley McChrystal, the pinnacle of U.S. troops in Afghanistan, mentioned that if you kill massively, you create retaliation. It’s “insurgency math” — you have got 10 terrorists, you kill two and you find yourself with 20. You multiply the fighters. And clearly, that can occur right here.
Q: What function can international establishments just like the United Nations or the ICC play?
A: The U.N. Safety Council is split due to Ukraine, so they are going to do nothing right here. The case is exhibiting how primitive our international institutional system is. We noticed the identical in [Nagorno-Karabakh] simply two weeks in the past. Azerbaijan dedicated genocide towards Armenia and nothing occurred. We actually want to regulate our establishment and invent new issues.
Proper now, the one invention is the ICC. And the one one who can examine in the present day is the ICC. However even when they do, will probably be too late. We have now to forestall the crimes. We have to oppose the cycle of violence. That’s the lacking half.
Q: What sensible points do you assume that the ICC will face in any investigation into the battle? Israel isn’t a celebration to the Rome Statute that based the courtroom. And Gaza is managed by Hamas, who don’t appear more likely to cooperate both.
A: It’s not simply concerning the courtroom itself, it’s about how states assist courts. There are Hamas leaders in Doha, Qatar, for instance. If the Arab nations agreed, they may push these leaders to give up themselves to the courtroom, to argue their instances. In case you are prepared to die, you ought to be prepared to face justice.
Q: However do you assume that might occur? And even when that occurred, would Israel cooperate?
A: No. Look, I’m telling you what ought to occur. After I was a prosecutor, for 3 years I used to be concerned within the Israel-Palestinian battle. Ultimately, I dominated that when Palestine turns into a state acknowledged by the U.N., it might come again.
Throughout that point, I had a dialog with a high-ranking Israeli official as a result of they have been pissed off it took me three years to make their determination. He advised me: Look, we imagine that you’re neutral. We imagine in your impartiality. The issue for us is that we don’t like impartiality. We like partiality. I’ve the lifetime of my children in danger. I don’t wish to put the lifetime of my children within the palms of an neutral individual. I like a partial individual.
That concept, that its simply me towards the others, has created this not possible battle. The Palestinians really feel the identical.
Q: There’s rather a lot occurring it the world now for the ICC. Outdoors of Israel-Gaza, there’s the state of affairs in Nagorno-Karabakh. There’s the prosecution of Russian President Vladimir Putin and the struggle in Ukraine. There’s loads of different conditions the place the ICC may become involved, such because the struggle in Ethiopia.
A: Sure, Sure. There’s Sudan, India and Pakistan …
Q: There’s so many. How can the ICC presumably do every little thing it ought to do? How will it have the bandwidth?
A: Properly that’s the purpose. We want extra. We have to hold evolving and creating different programs to create options to conflicts. We did nothing else [after the ICC]. As a result of there are not any international options, the world has change into extra tribal. In every single place, tribal leaders are flourishing. They promise to guard their very own folks and other people want safety. The dearth of world options is shifting the world towards tribal options.
The issue is politicians have a distinct mandate. So we’ve received an issue. And the Gaza-Israel battle is only a very unhealthy instance of an issue.