6 February 2014

Kenya: Ocampo Exclusive

Photo: UN Photo/Eskinder Debebe
Louis Moreno-Ocampo, Prosecutor of the International Criminal Court.

Last month Luis Moreno Ocampo gave his first media interview on the Kenyan trials since leaving office at the International Criminal Court, where he held the position of chief prosecutor from 2003 to 2012.

Questions were crowd-sourced from followers of the Facebook page of The Hague Trials Kenya (THTK) and the interview was produced by RNW. The interview took place on 22 January 2014 at a hotel in Amsterdam.

THTK: What do most people know you for?

Luis Moreno Ocampo (LMO): Probably because I was the chief prosecutor of the International Criminal Court. I'm well known in some countries and in legal circles. In Argentina, I was well-known because I was a prosecutor against our generals.

THTK: What do you do now?

LMO: Now, I'm a lawyer working in New York, teaching at Yale University and trying to see my kids and my family more, being with my family more.

THTK: What is your background?

LMO: I am a lawyer. My first case as prosecutor was against the top generals of my country: three former presidents. And suddenly my world was different. I was trained to face people in power. So I'm a lawyer who was always working against powerful people.

THTK: Would you say your background prepared you to be the first ICC prosecutor?

LMO: No one prepares you to be the chief prosecutor of the ICC. Interestingly, I was the deputy prosecutor of the Junta trial when I was 32. In fact, that was my first trial. I was totally not prepared for that, but I learned a lot. And the rest of my life, I was thinking the most important work of my life was when I was 32 because I would never have a bigger case than my Junta trial. And then, when I was 51, I was appointed chief prosecutor of the ICC. The Junta trial was my training.

THTK: Some of our FB followers commented on your eyebrows. Did they give you a sense of seriousness as a prosecutor?

LMO: I never was thinking this way. I don't think my eyebrows define something. It's the only black hair I have, so I'm very happy, but that's it.

THTK: How do you feel about children in Kenya being given your name?

LMO: The fact that in Kenya and other countries, people put my name to their sons is showing how useful the idea of the International Criminal Court was for them. My view is, as a chief prosecutor, I was basically a lawyer of the people who were victims of these massive atrocities. The fact that some of them recognized that and gave me the honor to put my name to their sons is showing that we achieved something there.

THTK: Do you follow the Kenyan cases nowadays?

LMO: I don't have the information I had when I was prosecutor. I follow the media about the Kenyan cases. So I know something.

THTK: How do you feel when you hear about the Kenyan cases now?

LMO: How I feel anout the Kenyan cases? I feel the Kenyan cases show the possibilities and the limits of international justice because in some way, we helped Kenyans to have peaceful elections in 2013, mostly peaceful. People were killed but not so many. And that was the big worry before. Everyone was worried in 2009, 2010, everyone was worried about the next election. In some way, we helped it to have a peaceful election. The outcome was unexpected. But it showed that international justice is not just about judges and prosecutors. You need political leaders because basically what I see in Kenya is Kenyatta and Ruto were allegedly killing each other, their groups, and then they were smart. They made an alliance and they presented themselves as the reconciliation process. And Odinga, who was the other candidate, said no word about post-election violence or about ICC. So the only candidate who addressed really important issues before Kenyans were Kenyatta and Ruto. And that's why people voted for them, in addition to the tribal affiliation. So I think it's a good example of how you can help but you cannot transform Kenya into Sweden. That was exactly my thinking when I was in the Junta trial. When I started, my dream was that Argentina would become Sweden. It has not become Sweden. But we never went back to the massive violence. I hope in Kenya, it's the same. The problem is showing that the countries need a political leadership. And I hope Mr. Kenyatta, as a new leader, elected by his people can understand that and help them to move ahead.

THTK: How efficient do you think the Waki Commission was?

LMO: I think the Waki Commission collected interesting evidence in the Ruto case. It was less successful in the killings committed, allegedly led by Mr. Kenyatta. It was more difficult because in the time of the Waki Commission, Mr. Kenyatta was part of the government so it was probably more difficult for them to collect evidence. In our investigation, when we started, we had much more evidence against Mr. Ruto than against Kenyatta. But then, at the end of the process, we had more evidence against Kenyatta than against Ruto. Then, these things are evolving because sometimes a witness changes their mind or we have problems. I don't know. The situation now is complicated. Mrs. Bensouda said the witnesses are withdrawing, and this is related with the idea that people have fears.

THTK: Could anything have been done to prevent witnesses withdrawing now?

LMO: I don't think you could do anything to avoid the problem we have now because we protected our witnesses. We transferred them from Kenya to different places. But in some cases, we know families in Kenya were affected or threatened. When we investigate, we don't need to disclose who are the witnesses. But when you arrive at trial time - and that's the difference between the ICC and human rights groups - we should disclose our witnesses. And then the defense has the right to know them. And after that, it's much more difficult because they can go to see them in London or wherever they are. And people can threaten their families. So, it's part of the process.

THTK: Some of our followers suggested that there was bribery of the witnesses. Did the Office of the Prosecutor bribe any witnesses?

LMO: The prosecutor cannot bribe witnesses. He has no budget for that. The prosecutor cannot bribe witnesses. There were allegations that someone was bribing them. Yes, I had some evidence on that in my time, and I suppose now that there are more problems.

THTK: Did you coach witnesses?

LMO: No, people have to understand. We have very clear protocols on how to treat witnesses. They are very complex. First. it's about security. So we have a very complex protocol on how to protect before we are even in touch with them. And then in particular with those victims, those witnesses who were victims, we have a psychological assessment before we interview them to protect them. And then for interviews, there are a lot of protocols too. You have to start the interview explaining to the witness what is the ICC, the meaning of the ICC, then the meaning of a trial. You have to ask them to tell the truth. You have to ask them to be detailed. So there are a lot of protocols that we follow. Because also this will be scrutinised by the judges and the defense can challenge So it's a very complex and rigorous process.

THTK How were the Ocampo Six chosen?

LMO: The standard is: I asked my investigators: give me clarity - who are those most responsible? They collected the evidence and made the first call. They presented me their evidence, and these are our candidates. I challenged them: do you have evidence against this or that? In this way, we reached the conclusions. The information is coming from the investigators, and it's about the evidence they collected.

THTK: What isn't Raila Odinga one of the accused?

LMO: We have no information about Mr. Odinga being involved in the killings.He was part of the Ruto alliance, but we have information that Ruto was allegedly involved in organizing the attacks, but nothing about Odinga himself.

THTK: Why isn't Mwai Kibaki?

LMO Same. Zero. There were zero allegations that Kibaki himself was involved. There were some people talking about his wife, but it was marginal. But zero about Kibaki.

THTK: The police were seen as having committed mass atrocities during the violence. Why were they not prosecuted?

LMO: We presented a case against the chief of police. The judges said the evidence was not enough. But we tried.

THTK: What was the biggest challenge you encountered in the investigation?

LMO: In Kenya, the biggest challenge was to collect the evidence in a free way because the Kenyan government was really worried and there were people in the Kenyan government who were involved in the crimes. We had evidence against Francis Muthaura. The evidence was not enough to go to trial, but we had evidence against him. And Muthaura was one of the most powerful persons in Kenya in those days. So it was very difficult to collect evidence against them. And then when we tried to interview people, the Kenyan government was asking us for a very formal process, where we were going nowhere. When we extracted witnesses from there and we put people outside the country, protection was a big issue because it's difficult to be protected. Imagine a Kenyan person living in a European country. Some of them became drunkards. Some of them had problems with our security people. So it's a very complex process. That's why I think we are very proud that at least we can confirm the charges against most of the suspects before the elections and people can have clarity. People voted. It was not my business. There were some diplomats asking me to do something more to prevent Kenyatta or Ruto to run in the elections. And I said, it's not my job. Judges in Kenya should do that. And if they authorize them to run, people will vote. And if people vote for them, we have nothing to say.

THTK: What constitutes evidence to a prosecutor?

LMO: You need physical evidence. So in some cases, there were doctors' reports about rapes. And they were collecting physical evidence. There were some pictures. There were sites - so a church burnt down. We did some site analysis. And witnesses, victims, explaining what happened to them. And inside witnesses because part of the crimes were allegedly committed by the Mungikis. Some of the witnesses were Mungiki members. Mungikis are using violence and committing crimes. It's complicated because then people can say the Mungikis are criminals. You cannot trust them. So that's why we tried to have very high standards, to evaluate if they were saying the truth or not. So we compared the information with other information we had. And we selected those who we believe could stand on trial.

THTK: What criteria do you apply to name someone a suspect?

LMO: In our type of crimes, you first analyze what happened and you find their patterns. And you see that something was not spontaneous. It was ordered. The question is who ordered it? In one case, the evidence we had in those days was that Mr. Ruto was planning the attacks and organizing a group to do it. And as a consequence, Mr. Muthaura and Mr. Kenyatta, in accordance with our evidence, were involved in the retaliation. That's everything we had in those days. Now this issue should be checked in court. Ruto is on trial. He has a right to present his evidence and the judges will decide. I don't know what will be the outcome of the trial. We are presenting the case. The defence also has the right to present their own case. The judges are impartial. They have to make a decision. So it's a very high threshold. We see what happens.

THTK: What do you say in response to a Facebook follow who identifies as a victim and asks: will I get justice?

LMO: Justice is a long journey. I'm Argentinian. We're pretty successful but it took seven years to have a trial against the top commanders. Then there were the rebellions. The trial was stopped. And almost 15 years late, the trials started again. I did the best I could to move the cases. Fatou Bensouda is doing the same now. How far the International Criminal Court will arrive? I don't know. And probably the victims will keep asking justice for many years in Kenya. But justice is not just putting people in jail. For me, it's a shame that there are still people displaced in Kenya. And people who are not receiving some kind of help for the crimes they suffered. So, justice includes reparations for the victims. Justice includes truth. There are different types of justice, and I hope Kenyans will get justice. I know it will be a long journey.

THTK: A lot of our followers expressed disappointment at the fact that you "retired" at the peak of the Kenyan cases and they think you left unfinished business. Why did you leave the ICC when you left?

LMO: I left because I had to leave. It was my job. So I had a tenure for nine years and in June 2012, I had to be replaced. I could not stay. The law says I should go. That's why I was very pleased that I could finish the confirmation of charges. But after that, it's institution. It's not my place. Fatou Bensouda was with me, so she knew the cases very well. And she did the best she could. I could not do it better than Fatou.

THTK: Do you ever wish that you could take over the Kenyan cases again?

LMO: No, I cannot. Look, my responsibility was to build an institution. You build institutions doing cases, and that's what I did. But it's not my place. My heart is with the Kenyans. I always think about how much they suffered and probably they are disappointed. I understand that. I did the best I could. I know it's a long journey. And I know at the end, there will always be people who are disappointed.

THTK: What do you say to Kenyans who feel resentment towards you?

LMO: I suppose there are many Kenyans who feel frustrated and could express anger against me because for them I was a big hope. The fact that they had a peaceful election is probably not enough for them. And the fact that Ruto is on trial is not enough for them. So, I understand that. I did the best I could. I started the cases. I investigated the cases. I reached the confirmation of charges. After that, I could not run in the elections in Kenya. I was thinking, OK, I finish the ICC, I go to be the prime minister of Kenya. I cannot. So you need Kenyan politicians. We cannot rely on one person. We should prepare many persons in Kenya. And there are many good people in Kenya. But it's still complicated. But at least we move from a catastrophic situation to a situation... It's bad but it's not catastrophic. So it's an evolution. Is it enough? No.

THTK: And how do you think Mrs. Bensouda is handling the cases?

LMO: Perfect. Fatou Bensouda is doing a perfect, great job. Fatou Bensouda cannot define the elections in Kenya. She cannot define the attitude of the government. She cannot avoid that the witnesses are receiving bribes or threats. She cannot stop that. But she is very tough, very firm. There was a lot of pressure because as soon as Kenyatta became the president, the international community wanted to please him. So I read in newspapers that there is a lot of pressure on Mrs. Bensouda. And she was very firm, staying the line. During the last Assembly of States Parties, there was a lot of discussion, and Fatou Bensouda was firm. But as a lawyer she cannot go to trial with no evidence. So that's why she decided not to go to trial. But I think Fatou Bensouda was perfect.

THTK: And the challenges that she has now, do you feel that she inherited them from you or are they new challenges?

LMO: The International Criminal Court always faces new challenges. When I started, the challenge was to put the system in motion. Imagine, when I started it was the Iraq war. Many of the judges were thinking that the court would close in two years. So just arresting Lubanga was a huge achievement. But now it's nothing because our expectations are also growing. That's good. So in my time the main challenge was to put the system in motion. So now Fatou has to consolidate, and it's always complicated.

THTK: Is it harder for Miss Bensouda now that she has to deal with a president and a deputy president?

LMO: For us, we don't care. The fact that Mr. Kenyatta is president or vice president or Mr. Bashir was president or Mr. Ghadaffi was the president of Libya, we really don't care. We don't think in this way. We, criminal prosecutors, we look for the evidence, and we try to follow the evidence, and we prosecute the most responsible. That's our policy. What I found is OK, but that should not just be the policy of the prosecutor. It should be the policy for the states. Diplomats have different relations. They relate with states. They respect head of states. So for them it's different. But for prosecutors, we follow the case, really.

THTK: Do you and Miss Bensouda have any type of personal relationship?

LMO: I know Fatou Bensouda since 2004. She's very smart, and she's also very gentle. Very, very nice person, and very gentle. So it's very difficult to fight her because she's very gentle. I'm always ready to help if she needs me. The last time I was in New York, she was there, so I invited her for dinner, for instance. We have a nice conversation. And occasionally - once or twice a year - she calls me to comment on some issue. But this is her business. Fatou Bensouda is the prosecutor, I'm the former prosecutor. They had enough Ocampo for 9 years. They have to be rid of Ocampo.

THTK: What do you think that the world can learn from how the Kenyan trials are evolving at the ICC?

LMO: I don't know. In terms of the judicial process, I think we did the best we could. The problem of the witnesses is difficult to control. Probably we can do better investigation to avoid tampering of the witnesses. I believe the Kenya cases require a strong commitment from the international community. But in some way, the Kenya case is moving well in the sense that Kenya is evolving. Look at what happened in Darfur. Nothing is moving well. In Sudan, nothing us working well. In Kenya, it's going better. Of course, it's not enough. Answering your question better, I don't know. I think it's early to draw lessons. We need more time to see how this is evolving, if the efforts of Kofi Annan and the efforts of the ICC were enough or not. But one lesson we can learn from Kenya is that international justice is not just about prosecutors and judges. It requires national leadership. And that was the missing part in Kenya.

THK: Do you think that Kenya's present day justice system could handle the trials without the ICC?

LMO: Kofi Annan helped the Kenyans a lot to reshape their institutions, and they have a judiciary which is much more respected. It is difficult for any country to investigate their own president. Even in the US, it was very difficult to prosecute President Nixon, who also won the elections after Watergate. And also fired the prosecutor when he was requesting evidence. So it's difficult to investigate your own people. That's why the ICC can play a role. I don't know. I don't see that there's a case in Kenya yet. So I don't see Kenya case. But I believe that institutions in Kenya evolve and help more the people.

THTK: Do you think the outcome of the Kenya cases will affect how the ICC is viewed by the world in future?

LMO: I think the Kenyan case was very important because it shows something different. And in the Kenyan case, the crimes were by militias or by brutal authoritarian regime like the Bashir regime. The Kenyan case was a case where the politicians were using massive killings to get power. And Ggbagbo case is similar, the Ivory Coast case. So showing them that there is a problem - if you use violence to get power, you have a problem - I think was an important lesson for the world and Africa too.

THTK: Why are only Africans being judged by the ICC?

LMO: The ICC is there to protect those victims when no one else protects them. And in these seven cases we opened in Africa, that happened. In Colombia, there are massive atrocities, but there there are judges and prosecutors investigating the cases. They don't need us. So for me, the ICC is not about popularity or prejudices or media information. It's about clear standards. When there are massive atrocities and no investigations, we are there. It's funny because Bashir was the one who presented that there was an African bias to cover his genocide. He's winning this battle. Journalists like you are asking me about African bias and not about genocide in Darfur. I think that is something that journalists have to improve. But ICC, precisely because we are in Africa. We are proud to be in Africa. We are serving African victims and we are working in Africa because the African leaders decided to be part of the ICC.

THTK: Is there something you can do to make sure that the perpetrators are brought to justice?

LMO: What I'm trying to do now, in particular from Yale, is to analyze how the other actors should respect the law. The law is not for judges and prosecutors. The law is for people. People have to follow the law and leaders have to follow the law. It's not to put people in jail. It's not I'm a leader, I can kill people. I can steal money. These are two basic rules. The law is for them. I think that is the missing part in the diplomatic area. At the UN, political leaders, they don't see the law as a limit for them. They tend to make agreements, and it's not working well. Sometimes I use an example: you go to Berlin and you take the subway. You don't take a train without paying a ticket because no one is controlling you. People pay. Even one of my staff, he went with a French colleague to a Brussels metro and he said, "we cannot take the train. Why not? Because the ticket office is closed, so we cannot take the train." So that is the meaning of the law. People understand the law. And that for me is the main goal of the ICC. It's not about cases. It's about everyone understanding when there are massive atrocities, end of the game. Whoever committed the crimes has to be out and investigated. And that rule is still complicated. You see what is happening with Syria today. It's still debating, options, negotiations because it's against Al Qaeda or maybe it's a good idea. So all of this should change. When someone commits massive atrocities, out of the game.

LMO: The only thing I want to do now in my next ten years - I hope to live 10 years more - is to help teachers around the world to educate on peace and justice. We have a new generation coming. They are born in a global world, and they have to be educated on the connection between crimes affecting Kenya or if you live in San Diego or Washington or The Hague. And that is my new idea. Not new because I was doing this in Argentina, but now I'd like to promote globally to help teachers around the world to educate on peace and justice.

THTK offers Kenyans and other interested audiences an independent online forum to share their experiences, thoughts and questions about the three cases before the ICC relating to Kenya's post-election violence of 2007-2008. THTK is a project of RNW in partnership with This is Africa.

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