How did you first get involved with international law?
My first case as a prosecutor was the trial of the top commander of my country, Argentina, whom I prosecuted in 1976. In Argentina, the proposal to investigate had come from one of the candidates in a presidential election, and 52 percent of the country voted in favor of [that candidate]. It was very unique to have the entire country discussing the topic in this manner. When he was elected, the president presented the case before the judges, the truth commissions were created, and a year and a half later, we started trying the top commander.
My grandfather was a general, so my mother loved generals, and she was furious with me when I started prosecuting. Talking to her over lunch at her house, I never could convince my mother that I was right, but when the trial started, within two weeks she called me and said, I still love General Videla, but you are right—he has to be in jail. And so the entire country changed. There were some attempted coups after I prosecuted the case, but Argentina had no coups d’état and no more popular support for the military dictatorships.
Then, one day, I got a phone call from the ambassador of Jordan, Prince Zeid Ra’ad Zeid Al Hussein. He was the President of the Assembly of State Parties to the Rome Statute and he was in charge of looking for the first prosecutor of the International Criminal Court (ICC). He told me that my name was at the top of the list. I had just been appointed a visiting professor at Harvard, which was like a dream come true to me. I told my wife [and assumed] they wouldn’t appoint me, but I went to meet Prince Zeid in New York, and three months later I was appointed to the ICC.
What do you think is the principal function of the ICC?
For me, the ICC is a piece of a system. It’s like the Supreme Court in the United States, where the Rome Statute is a global constitution adopted by 124 states, all of which are committed to preventing and punishing massive atrocities. If they fail to act, they accept the independent intervention of the ICC. In this way, the role is minimalistic. Ideally, there would be no cases before the court. Zero cases would mean that either there are no massive atrocities, or at least that the national authorities are prosecuting them.
So think of a constitution with 124 states. The signatories to that constitution form one system, a justice system, whereas outside is a political system with no [established structure for] justice. Within the constitution’s system, the ICC can act independently. Beyond it, the court can only intervene after the UN Security Council decides it should.
Prevention is an important part, but there should not be just prevention. The Rome Statute is a commitment to do things differently. In all these countries, the armies adjust the rules of engagement to the norms of the ICC. The impact is prevention in the long term, and in this sense, it’s a huge revolution. The problem is that in really hot areas like Syria and Iraq, there is no legal system—there is just killing. Still, whatever you think about the ICC system, it’s better than having no system.
The best outcome of the system is demonstrated by Colombia. We never brought a case in Colombia, but because Colombia signed the treaty, it’s hearing cases. In 2005, Colombia made an agreement with the paramilitaries to demobilize almost 30,000 paramilitaries, and 2,000 of the leaders went to jail. Now, in 2016, the government is signing an agreement with the Revolutionary Armed Forces of Colombia (FARC), the oldest militia in South America. They are demobilizing 7,000 guerrilla members. This time, the guerrilla leaders accepted having some restrictions on their liberties for eight years. I was involved in Colombia since 2003, but my duty is to not intervene if [government officials were] already intervening, and in Colombia they were prosecuting the paramilitaries. So I never opened a case, but I opened an investigation to review what they were doing. I asked the president why he was prosecuting the paramilitaries and guerilla fighters, but not the army. Soon, they started to prosecute army members as well, and when they were discussing this 2016 agreement with the paramilitaries, I sent a letter to Congress urging prosecution, and that’s why this agreement ended with eight years of punishment.
Then, in 2015, I got in touch with the leaders of FARC, and I spent a weekend in a small room with five leaders of FARC discussing the meaning of international criminal law. Why should they go to jail? What happens? It was amazing to me that these guys were discussing international law.
How do you respond to concerns that the jurisdiction of the ICC compromises some countries’ sovereignty?
The intervention of the ICC is the consequence of a sovereign decision. The prosecutor never goes into a country that is not a member of the Rome Statute. The precondition is that the state first accepts, signs, and ratifies the treaty, making a sovereign decision to reduce their own sovereignty [with respect to an international institution]. In fact, in the ICC member states, no one can have immunity. In Norway, the king is the head of state and had total immunity, so the king had to abdicate some of his powers to allow Norway to become a member of the Rome Statute. However, doing so was a sovereign decision.
Do you think that countries in the African Union are likely to follow through on discussions of leaving the ICC? What impact would this have on the court?
When I started my tenure at the ICC, I had cases from three continents to consider. First, it was three months after the Iraq intervention, and [I was asked] to prosecute in Iraq. However, Iraq was not a state party to the Rome Statute, [and neither] was the United States. The United Kingdom was a state party, but the crime of aggression was not a crime yet under the ICC, so I had nothing to do in Iraq. Instead, I decided to take on the most serious cases, which at that point were in Congo and Colombia. Because Colombia had national proceedings already, the place to go was [the Democratic Republic of the] Congo.
Meanwhile, I saw that the most innovative authority that the ICC provided me was the authority to be an actor in international relations. Martin Shapiro, a professor at Berkeley, offered me the following analysis: prosecutors are like a dog, helping a homeowner control their yard. The dog has to be aggressive enough to induce fear in a potential trespasser, but not so aggressive that it bites the hand of the homeowner. The problem is that the ICC is a huge dog with no homeowner. The homeowner would say, who put this dog in my yard? Following that [metaphor], what I did was to go to the fence, bark, and wait for the homeowner to invite me in. Therefore, I publicly invited the Congolese government to refer the situation to me.
This decision had a nonlinear impact. Uganda was worried about my decision to go to Congo because it was involved in the war in Congo, so they came to my office to explain that Uganda had nothing to do with international crimes and that they were willing to provide me with evidence. I said okay, but what about the crimes in northern Uganda? Could they refer that situation to me? Six months later, Uganda referred the situation to the ICC. As a result, I started my first two cases at the invitations of two African presidents.
Then came Darfur, which was referred to the ICC by a Security Council vote, including three votes in favor from African countries. The next case was in the Central African Republic, which was referred to me without me even inviting it.
The fifth case was Kenya. When I invited them to refer the situation to the ICC, the president told me, ‘you will end up prosecuting my people. Therefore, I cannot refer this case to you, but if you decide to open it, we will cooperate with you.’ I opened the case myself, and Kenya cooperated. The case was stopped because they managed to tamper [with] the witness, but at least it resulted in an election. That was the only case in which I personally decided to intervene.
[Côte d’Ivoire] held elections and the new president begged me to intervene, even though the Ivory Coast was not a state party to the Rome Statute. Libya also referred a situation to the ICC. Where, then, is the bias in this selection of cases?
What happened in Sudan is that when we indicted the president, he started to claim that the court was biased and was attacking Africans because they are black. It is so interesting because in Darfur, President Bashir’s troops were attacking three tribes that are also similar to them but all racially distinguished, saying that ‘these people are blacks and we are not.’ So, this guy who was killing people because they are black alleges that he was indicted because he was black. Of course, other leaders in Africa who are also afraid of the ICC have picked up this argument about ‘African bias.’ This is shocking because when President Bashir started with this argument I thought that the UN Secretary-General would say that this is not about Bashir being black—this is about genocide. But after eight years, no journalists talk about Bashir’s genocide; instead, they talk about African bias. So it’s a very effective propaganda that Western media was just repeating.
Of course, if a national court were to prosecute just black people, it would be weird. But, in the case of the ICC, the cases [we were tasked with investigating] happened to be African by chance, and all of the cases were basically initiated upon request by their respective countries, with the exception of Kenya’s case. So I don’t know what would happen if African countries decided to leave the Rome Statute.
What do you think is the biggest human rights challenge the world is facing today?
The problem today is that the idea of human rights is connected to the idea of the nation-state—but it’s not a problem with the design, it’s a problem of how it is implemented. If
the army took over Paraguay and abused power and then went back to democracy, the [former] system would go back. Compare it to the United States’ situation: yes, you have police brutality and bias, but its not a problem of design, it’s a problem of how it is implemented. One problem, then, is that national systems and local systems are working badly.
What I see as a more complicated problem is global terrorism. There is no design and no system, so we are improvising the solution. It is not working because ISIL is a much more complicated organization. It’s an organization that has total control but is not a country, and does not care about the UN charter. They don’t care about Western values. In fact, the more Western values they attack, the more popular they are in the Arab world, where many people feel affected by Western intervention. They feel threatened by the situation and that is why many of them feel proud of ISIL when they see them fighting Western forces. Killing is not the solution for that. Of course, we need a security situation, but this group controls territory using a very old and fundamentalist approach. They are extremists, not Muslims. They also combine old ideas with new tools, like social media, to disseminate them, and that’s why killing is not enough. For instance, you bomb in Iraq, but you don’t bomb in Paris. What is the legitimacy for that?
So that’s why one thing that I believe we should do is evaluate how we can better integrate the political with the military with the judicial. People believe that justice is naïve, but we can use this approach to international relations. For example, any prosecutor in New York dealing with organized crime will first follow the money. [I think] in the ISIL case, we already know where the funding is coming from. Turkey is supporting ISIL by buying oil, and Saudi Arabia is also supporting ISIL. The problem is that politically, the United States is not willing to do something against Turkey and Saudi Arabia. Unfortunately, what is really utopian is this idea that bombing, while ignoring the financing, will work. Instead, we need to mix the tools and use more justice. That is why I visited Iraq to see the Yazidis. ISIL attacked the Yazidis, a small group of 800,000 people living in Iraq and who are not Muslim. ISIL basically exterminated them; they took the girls and women as sexual slaves and they transformed the kids into soldiers. I visited them and for me it was amazing how these Yazidi people needed to label it as genocide in order to understand what had happened to them. They were in shock, and they had no idea what happened to them. They needed intervention from the ICC to feel engaged with the world and to define what happened as genocide.
To me, it is shocking that the states—including the United States—that signed the Genocide Convention and committed to doing something, have done nothing. I think that we are missing the opportunity that the ICC provides. Russia is against referring Syria and the United States would be against referring Iraq, but if we just referred the case against ISIL, then Russia and the United States together could focus on finishing the problem. But, again, we are not thinking of new tactics; we are using old tools. We are fighting ISIL through proxy forces. Everyone knows we are going nowhere but no one is able to think differently.
Even if you exterminate ISIL, you still have the Sunnis fighting with the Shi’a, and the Sunnis fighting with the Kurds and the Kurds fighting with the Shi’a, and the Kurds fighting with the left Kurds, and the Kurds fighting with Turkey. There are already so many conflicts in the region and we are fueling this tribalism. In summary, because there are no institutions to solve the problem of international terrorism, we are moving backwards into tribalism.
There are no rules, and everyone is just out for themselves. The United States is a country that organized itself in a way that allows different tribes, different religions, and different races to live together in accordance with the law. That’s the model we need, but the United States is not thinking of how to export this model.
This generation has inherited a world that is really unique—a world with no Cold War, but with cell phones and the Internet. Yet you have to now face the struggle of how to design global institutions to face issues that require some kind of global coordination: [for instance on] climate change, taxes, international terrorism.
How can we design the future of human rights?
We should celebrate the innovation in global institutions like we celebrate innovation in technology, because institutions protect rights. You have direct democracy in Athens, in the sixth century BC. Then you evolve to the 18th century, when the United States and France invented [modern] representative democracy. All the people in the country would be protected under representation,and that’s it. The last invention for protecting rights is not the United Nations, which is a political body, but the ICC. The ICC represented the first time human rights appeared in a global organization, and that’s why it is so disruptive and so innovative.
Some international relations theorists believe law is utopian, but law creates power. For instance, I had this enormous power to open an investigation to pursue a head of state, and it was the law that gave it to me. We need to integrate international relations people with law. What it comes down to is that the law is the constitution. The law is not just for the judges—it’s for people, so people have to learn how to use it. For example, when Turkey organized a flotilla to affect [Israel’s blockade of] Gaza, one of the lawyers understood that if one of the ships carried a flag from a state party, then the ICC would have jurisdiction. So a few weeks before the intervention, they gave the biggest ship the flag of Comoros, which is a state party. So that is why the ICC is reviewing what to do in this intervention, and I think that is something we should emulate. It’s not about justice in court. When I was discussing with the Palestinians, who just became a state party to the Rome Statute, I told them to use the law to improve the situation with Israel. Meanwhile I told Israel that it should not dismiss Palestine, because Palestine is now legally committed to not commit crimes. That, I think, is the missing part. Lawyers focus so much on what happens in the courtroom, but not the other parts of the law, which is the constitution.