(L-R) Andrew Max (2L), Renu Mandhane (Director of the International Human Rights Program), Dean Mayo Moran, Luis Moreno-Ocampo (Prosecutor of the International Criminal Court), Andrea Russell (Executive Director of the Dean’s Office, instructor in International Criminal Law).
During his visit to the Faculty of Law on November 14, 2011, International Criminal Court Prosecutor Luis Moreno-Ocampo had a candid discussion with student Andrew Max, and faculty from the International Human Rights Program (IHRP), on the challenges that lie ahead for the ICC, Canada’s contributions to the Court, and advice for law students. Below is an edited excerpt from that conversation.
Challenges for the next Prosecutor
Andrew Max (2L): When you arrived at the International Criminal Court, there were no cases and plenty of empty offices. Now the Court is busy, the docket is full, and there have been multiple UN Security Council referrals. It’s been said that relevance is no longer a problem facing the Court and many have attributed that success to you. What are the challenges that the next Prosecutor will face?
Luis Moreno-Ocampo: Because of the success of the first term, the next Prosecutor will have a difficult life because, for many years, we were flying below the radar. We were settling the Court. The environment was not as complicated.
Now we have become more and more involved in big issues and the Court is an actor in big conflicts in the world and now the States parties (states) understand that. So it will be an interesting phase. It will be complicated because you have to keep the judicial line in order to keep the Court working as a court. We are perceived as an important actor some states will try to control.
Now we are involved in Libya, Palestine, Afghanistan – in all the big crises. Normally international relations are not about courts, they are about states. So that’s why I think the next era will be highly complicated.
Professor Patrick Macklem: It’s going to be a challenge for the Prosecutor to maintain his or her autonomy. The Prosecutor is never going to go below the radar again. One concern would be to make sure that the Prosecutor doesn’t become a tool of the Security Council.
LMO: That is an interesting comment. It is so funny: at the beginning of my tenure we thought the best way to be legitimized would be to have a Security Council referral. I remember my international relations adviser telling me [a referral would be] ‘impossible.’ Two years later, the Darfur referral came, and now the Libya referral. But now people are starting to say what you say, that in fact it isn’t good for the Court to receive these referrals because we are the judiciary and they are tainting us.
Suppose the Security Council is totally political and they are just using the Court as a tool. Is this bad? For me, if we keep our judicial activities, it is okay because the people in Libya deserve justice. And what we should do is keep a judicial path. The Security Council has to know that if you give the Court a referral, the Court will act as a court. The Security Council knows that now. In fact … the Court is now exposing how primitive and political international relations really are. The Court is creating new debate.
The challenge will be to keep the judicial autonomy of the Court. You have to understand: states will never say it is bad to prosecute Muammar Gaddafi. The methods they will use to control the institutions are: staffing, oversight and budget. So, [for example,] they use voting methods. They will try to impact the autonomy of the Court, so we need legal experts watching them.
The Future of the Court
AM: Where would you like to see the Court at the end of the next Prosecutor’s tenure? Would you be happy if he or she maintained what you have created, or are there things you didn’t have a chance to do that you would like to see the next Prosecutor tackle?
LMO: I think we have to highlight not just what the Court will do, but how the system surrounding the Court will react. That’s why for me, in order to protect the judicial autonomy of the Court, we have to discuss with the different actors how they can adjust to the new model and learn to deal with it. That is what we need--for international actors to understand the game has changed and adjust to it. It is not just about the Court, it is about the rest.
Canada’s contribution to the Court
AM: Has Canada played a significant role in, or contributed to the Office of the Prosecutor or to the International Criminal Court? What else can Canada contribute to the Court?
LMO: The role of Canada in 1998 was really important. Canadian Philippe Kirsch [who served as a judge at the ICC and was its first president] was very important for the Court for six years. We have a lot of Canadian interns, like you were Andrew, but also Canadian prosecutors coming to us. Canada’s approach is consistent with the idea of the Court. Therefore, it is natural for Canadians to share the Court’s goal. And that is very important for me.
But this is not just about the prosecutor’s office, but about the role of Canadian universities. The fact that you have a specific course on international criminal law [taught by Andrea Russell, executive director of the Dean’s Office, present] is crucially important, to build a new framework. Canada could help a lot with this education. It is beyond the government, it is the different aspects of society. And the next step is education. When we hear the Lubanga decision, how will the primary schools in the world adjust? How can we teach the young kids in the schools about child soldiers, about international organizations, about the skills to manage conflicts? That is going to be the next challenge.
Advice for students
AM: What advice do you have for a young law student or lawyer who is interested in a career in at the International Criminal Court?
LMO: My career was so unpredictable I cannot give any advice. I would suggest that, 80 percent of your time, you will be working. Whether or not you are successful, you will work most of your time in the future. So do something that you like.
Read media coverage of the Prosecutor's visit to the Faculty of Law.
