The least interesting ICC prosecutor in the world?

I just attended a panel at NYU Law tonight where ICC Prosecutor Luis Moreno-Ocampo spoke about Sudan sat at the end of the table without saying anything for the first 90 minutes, and then proceeded to dodge questions and ignore key issues.

Uncanny.

The event was titled “The Gender of Atrocity: Accountability v. Peace in Sudan and Beyond” and the accompanying description was a little confusing. It sounded like two events smushed into one, but that didn’t matter to the audience. The house was packed.

José Alvarez (NYU law professor and moderator for the evening) gave some brief introductory comments on the “alleged choice between accountability and making peace.” He noted that the evening’s panel skewed toward the accountability side, and insinuated that the midtown peaceniks at the UN were too chicken to show up.

Next up was Catharine MacKinnon, who discussed the relationship between gender and atrocity. (What follows is a rough summary of her argument.)

She started by describing the history of the prosecution of atrocity as a crime without regard to gender, and the parallel development of gender discrimination as a civil issue. She sees these two strands coming together with the Rome Statute establishing the ICC, which explicitly criminalized gender crimes.

However, a gendered analysis requires more than simply understanding how atrocities impact women as a specific demographic group; a complete gender analysis requires also looking at the violence inflicted on women during times of so-called peace. Women have a gendered stake in ending impunity for atrocity because they are disproportionately subjected to it. When the war and atrocity stops though, women are still subjected to violence, with the perpetrators often facing little accountability. So the distinction between war/peace is really just a question of when men are fighting other men. Women suffer throughout. Looked at in gender terms: justice is a peace process.

MacKinnon likened Joseph Kony and Omar al-Bashir to “mass batterers” — with “domestic violence” having the double meaning of “within the home” and “within the country.” She went on to say that those who argue that justice should be delayed for peace are following the same psychology of battered women who seek to appease their abusers.

She noted that the use of gender crimes is evolving and growing, just as the international community is expressing greater concern. The obvious explanation is that the international community is more concerned because the crimes are more prevalent. But she flipped that causality, arguing instead that perpetrators are seeing the concern as an incentive to commit more atrocities. That gives them leverage when bargaining for concessions. Amnesty plays into this as well: once that possibility is on the table, the perpetrators of violence have no reason to stop, because they have nothing else to trade if they do.

(My comments: Tying together different kinds of violence (that inflicted in war, and that inflicted daily on women in many societies) is conceptually interesting, but not that useful from a policy or programmatic standpoint. The argument that the possibility of amnesty/peace induces greater atrocities is plausible, but it’s undermined by the lack of alternatives offered. If amnesty/peace were taken off the table, would that give Kony a reason to put down arms?)

Piet de Klerk, a member of the Netherlands mission to the UN, was very diplomatic. He described how peace and justice must go hand-in-hand. There’s no single route for either of them. The Netherlands supports truth commissions, local justice mechanisms (e.g. Gacaca courts), institutional reforms, justice sector strengthening, peacekeeping, reconstruction — the whole shebang.

Then Luis Moreno-Ocampo … said nothing. He just sat there while the moderator turned to the audience for questions. After a few questions and almost 90 minutes into the event, Moreno-Ocampo finally leaned forward to discuss the efforts to arrest Joseph Kony. Moreno-Ocampo was more active for the rest of the evening, but still didn’t offer much interesting.

The highlight of the evening came when Carne Ross* put a concrete policy choice in front of the panelists: with the upcoming referendum on the independence of South Sudan, should the international community emphasize all the elements that will be necessary to ensure a smooth process, or should it instead emphasize bringing al-Bashir to justice? I would agree with Ross that you can’t do both simultaneously. A similar question came later from an NYU law student, who asked whether Paul Kagame should be prosecuted for war crimes.

The panelists refused to take either question head on. Moreno-Ocampo even punted things out to the audience: he’s looking forward to bright young students at NYU and other schools to figure out how to integrate these ideas, overcome the contradictions, and present a clear framework and the political will to implement it. Aw, isn’t that inspiring?

But wait a second — isn’t that your job? Or as Ross retorted: “That’s not good enough. A choice has to be made.” Moreno-Ocampo’s defense was that the choice was made in 2005, by the UN Security Council, when they referred the case to him — the classic above-my-pay-grade argument. He went on to assert that, “The removal of Bashir is a matter of political will and leadership. If we had consensus around the world, he would leave office in a day.” (Rough quote.) With regard to Kagame in particular, Moreno-Ocampo declared that the ICC’s work is to establish a principle that leaders cannot gain or maintain power by committing atrocities, but that the efforts to establish the principle don’t dictate how it should be applied in specific cases. MacKinnon chimed in to say that the peace/diplomacy side of the international community would have to recognize that the justice/indictment side is part of the picture now. In the end, she comes down on the side of justice.

MacKinnon and Moreno-Ocampo were disappointing tonight because they refused to acknowledge the tough policy choices necessary. I don’t fully blame them for this. This was a very public event and they hold a particular role in the discourse on these issues. I’m sure that behind closed doors we could get more nuanced views out of them. A couple bottles of Dos Equis would probably help.

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* I was able to chat briefly with Carne Ross on the way out. He runs a fascinating organization called Independent Diplomat. See his recent TED talk here.

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[UPDATE: I’ve been informed that The Most Interesting Man in the World is not as well known as I thought. I recognize that having to explain a joke is evidence of its failure, but lest you remain confused, I give you the marketing genius of Dos Equis below.]