Luis Moreno-Ocampo one of the prosecutors in the trial that convicted the heads of the Argentine dictatorship, is a prominent reference within global justice. Between 2003 and 2012 he was the first prosecutor of the International Criminal Court and from that position he investigated more than a dozen world leaders for serious crimes in Syria, Afghanistan, Libya, Sudan and other countries. Years later, the Argentine was in charge of collecting evidence, at the request of the OAS, about possible crimes against humanity committed by the Venezuelan Nicolás Maduro and the case is now in The Hague. From Malibu, California, where he now resides and is a teacher, Moreno Ocampo spoke with Clarion about the war crimes that are being committed in Ukraine and the chances that the Court will impeach Russian President Vladimir Putin.
What is a war crime?
In war, soldiers can kill soldiers, but they cannot kill civilians, they cannot kill prisoners, and they cannot destroy certain historical sites or civilian places. To connect it with Ukraine, a war crime would basically be an attack on civilians or an attack on civilian places, as was the case for example in the theater that was bombed. But in addition to the crimes that are committed during wars, there is the crime of “making” war. At Nuremberg the main charge against the Nazis was the crime of aggression, of having started a war. This is very important to understand, because starting a war is worse. That is why the crime of waging war is a crime of aggression, it is the most serious crime. It means using the forces of one state against the sovereignty, territorial integrity, or political independence of another state. That is the most serious crime committed in Ukraine and that is the crime that Putin clearly committed. Unfortunately, he is not going to be tried for that crime.
Because this crime requires that both the aggressor and the attacked country be members of the International Criminal Court and Russia is not. But, if it is not, the alternative is for the United Nations Security Council to send the case to the prosecutor of the Court. That is not going to happen because Russia has veto power in the Security Council. Both Russia, the United States and the 5 countries that have veto power in the Security Council can block that decision. Although there is a law that describes the crime of aggression and there is an International Criminal Court – something that did not exist in Hitler’s time – this crime against the Russians cannot be investigated.
And can Putin be prosecuted for any other crime than aggression?
Yes, exactly what the current prosecutor is doing. Ukraine accepted the jurisdiction of the International Criminal Court already in 2013. The prosecutor is going to investigate crimes committed since 2013, because there were conflicts in Ukraine in 2012, but they are going to include current crimes. The prosecutor was in Lviv two days ago, he is very active and says that he will be impartial. He is going to investigate the Russians, but also the Ukrainian forces and the militias. There are many high-security militias that are active and the prosecutor announced that he is going to investigate all of them.
So the Court can investigate possible war crimes committed by Russians in Ukraine.
Yes. For example, this theater bombing in which civilians were killed is already clearly a war crime. But who committed it is history because who ordered that bombing we don’t know. Whoever ordered that bombing knowing there were civilians in there may be responsible. If it is a mistake, it will be more difficult to condemn it. In principle, what happened in this theater is a war crime, but it must be investigated.
If there had been a military chief who purposely ordered the bombing of that theater, could the Court try and sentence him in that case?
Yes, I could. The Court is in the initial process, is investigating. The prosecutor has to gather the evidence of the facts and has to have evidence that an officer was the one who ordered the crime. After that, an arrest warrant issued by the Court is requested and it must be implemented. Of course, if the person the prosecutor is accusing is a Russian general who is in Moscow, it is very difficult to arrest him. If he is a Russian captain who is in the Ukraine it is different. If it is a Russian captain who is already imprisoned in the Ukraine, it is very easy. It depends on which person the prosecutor selects is the difficulty or the ease of arresting him. Without an arrest there is no trial. There is no trial in absentia at the International Criminal Court. But today’s goal is to stop this violence and what the prosecutor could already do is try a case against a captain or lieutenant who is already arrested by Ukraine, send him to the Court and deal with that case. Why is it important ? Because it would serve as a preventive impact for the other Russian officers who are in Ukraine: they cannot kill civilians because they can be tried.
If any of these soldiers say that they acted on a superior order, on Putin’s order, for example, can’t the Court do anything either?
Yes you can. Before the Criminal Court there is no immunity, not even a head of state. The issue is the lack of evidence because I do not believe that Putin himself gave the order to bomb the theater. But if he did it, the Court can do it. The issue is to get this evidence that Putin is personally involved in war crimes. There is a crime called forced displacement that is a war crime, but also a crime against humanity in which it would have to be shown that the Russian strategy was displacement. There are currently three million displaced people and it would have to be shown that this is part of a Russian strategy ordered by Putin. That is possible, plausible that it is so. But you have to prove it too. The prosecutor has to look for the evidence, without the evidence he cannot.
Could the United States or any member of NATO help in that investigation by providing evidence?
Any country can help in the investigation. Ukraine is asking for it, the Court is there to help them. The prosecutor went to Ukraine and was received by the president and everyone is at his disposal. There are 39 states that have asked the prosecutor to investigate the Ukraine case and those are all the European states, Costa Rica, Canada.
US Secretary of State Anthony Blinken claimed that there are war crimes in Ukraine.
The complicated United States issue. The North American political strategy is that they support the International Criminal Court in the cases that interest them. pure pragmatism.
The US is also not a member of the Court.
They have no obligation. It is a purely political situation. So the US strategy is: we support the International Criminal Court in the cases that interest us. In my time they supported us a lot in Uganda, in Kenya, in Darfur and of course they didn’t want to know that we would get into Iraq or Afghanistan. That argument would lead me to think that they should not support a case against Russia, because Russia is not part of the Court like the United States, therefore, there is a kind of legal and political dilemma that they are evaluating. Faced with these conflicts, we have a problem of institutional design. There is no solution to the conflict because the only world institution that can deal with crime is the International Criminal Court. The UN Security Council is not going to get involved because it has the veto power and then there is no more. There are no world institutions to manage the conflict and that is what we are seeing. So the alternative is war or frustration. On the side of frustration, the only thing there is is the judicial effort and the diplomatic effort, nothing more.
But is there any hope?
Ukraine is very frustrating, but there is an opportunity to learn and improve. The new generations, especially the young, have to learn that the technological advance that allows us to communicate has not yet reached the management of violence. Technological advancement is used to make better drones or weapons to kill, but not to improve peace issues. It seems to me that we have to use this conflict to learn. Nelson Mandela, the South African leader, said “I never lose, I win or I learn”. Ukraine is the chance for humanity to learn to manage conflicts.