Seminar explores policies of the ICC’s first prosecutor

This January, in a seminar taught by Dean Martha Minow and Associate Clinical Professor Alex Whiting, 15 students at Harvard Law School discussed the policies and strategies of the prosecutor of the International Criminal Court. Also in the classroom: the man most directly connected to those policies, Luis Moreno-Ocampo, the ICC’s first prosecutor.

Two-thirds of the way through his nine-year mandate, Moreno-Ocampo came to Cambridge from The Hague to participate in the seminar, in which students reviewed policies and proceedings of the first permanent, independent international court set up to hear cases involving genocide, war crimes and crimes against humanity. Discussion ranged from the court’s approach to gender crimes and charging policies, to the role of victims, and the power of what Minow called “the shadow”—outside actors who magnify the court’s impact.

In a presentation to the class, Helen Beasley ’11 described the prosecutor’s approach to charging as focused, selective and aimed at deterrence. 

Naira Der Kiureghian ’11, who interned last summer at the International Criminal Tribunal for the former Yugoslavia during the trial of former Serb leader Radovan Karadzic, recalled how prosecutors struggled under the pressure to narrow their case. “I think they wanted to hold Karadzic accountable for everything he had done and didn’t want to leave out any pieces of the story.”

Beasley said the narrow approach to charging “is connected to the policy the ICC has adopted of not trying to write history.”

Minow commented that although there may be great pressure for courts like the ICTY and the ICC to write history, the criminal framework is only roughly appropriate to the task.

“It’s of course focused on the defendant,” she said, “connecting the defendant to specific harms, not telling the whole big story.” In fact, one critique of the Nuremberg Trials, she said, “was that they were boring, with too many documents and no room for the victims.” There was a desire for a trial that gives people a chance to tell the story. But maybe, said Minow, that’s not what should be expected from the trial process.

Moreno-Ocampo agreed, saying that although trials have a historical dimension, to bring charges, he needs sufficient evidence, and too often he just can’t get it within the necessary time frame. “So if l am writing history, it is wrong history,” he said.

One student asked the prosecutor about the genocide charges he brought against the president of Sudan, Omar al–Bashir. Although the ICC pretrial chamber in March of last year issued an arrest warrant for Bashir for crimes against humanity and war crimes, it declined to include genocide.

Whiting—a former senior trial attorney at the ICTY—urged the class to consider the risk of not convicting. And why charge genocide at all, Minow asked, when you might be able to get Bashir on a lesser charge, the way AI Capone was convicted of tax evasion? “What’s wrong with that?” she probed.

Moreno-Ocampo insisted that charging genocide was a legal decision. “It’s not that we are writing history but we are representing the evidence we have,” he asserted. Bashir, he said, is holding millions of refugees from specific ethnic groups in camps under genocidal conditions. By the beginning of February, ICC judges seemed closer to agreeing with him, when the appeals chamber ordered the pretrial chamber to reconsider the genocide charges.