“War is 5,000 years old, diplomacy is four centuries old, and international justice is two decades old,” says Luis Moreno Ocampo, the former First Prosecutor of the International Criminal Court (ICC), who served in that capacity between 2003 and 2013. “The printing press generated a change, but it took three centuries. Today artificial intelligence produces them in one day. After Facebook came YouTube, Instagram, TikTok. Phones became smart. Meanwhile, the only innovation in the realm of politics was the creation of the [International Criminal] Court. We invest trillions in wars, almost nothing in justice and peace. It is necessary to create technology for that, to promote the revolution of the moderates. Israel and Gaza are an example of the urgency of the challenge.”
The 71-year-old native of Argentina has also been a visiting professor at the Hebrew University of Jerusalem. “One day, one of my students told me that he couldn’t continue with the class because he couldn’t resist it emotionally. I was making them play roles. He was playing a member of the Israeli Parliament, speaking about Palestine. The problem is that Israeli moderates do not talk to Palestinian moderates. And when that happens, the extremist narrative prevails.” In recent weeks, he has spoken with friends on both sides of the conflict. “Some Israelis who participated in protests against [Benjamin] Netanyahu now feel that it is the new Holocaust and they support him. Everyone has lost people. Years ago I visited one of the kibbutzim that were attacked. And my Palestinian friends are desperate. One of them told me that his 88-year-old uncle doesn’t want to move, he’s just waiting for them to kill him.”
Moreno Ocampo has just returned from the University of São Paulo, where he holds a chair on world order innovation, and he also lectures at the University of Southern California where he teaches classes on war narratives for film students. “Twenty million people have seen the film Argentina, 1985,″ he says, alluding to a movie that explored the true story of the first trial against the Argentine dictatorship, when he was assistant prosecutor. Ocampo says he retains faith in change, in young people. “When you deal with these kinds of issues, you never really win, but if you keep fighting, you never lose.”
The following interview took place by video call from Buenos Aires.
Question. In common language, we talk about “horror,” a “massacre,” about a “war” between Israel and Gaza… In the language of international law that the world was equipped with after War World II, what is the word for what is happening?
Answer. What happened on October 7 was genocide because Hamas’s intention is to destroy the Israeli people. Furthermore, it is a crime against humanity, a massive attack on the civilian population. And the taking of hostages is a war crime. Those are all things that Hamas did. Israel’s response is also criminal; regardless of who bombed the hospital [al-Ahli al Arab, last Tuesday], there are two facts that are crimes: one is the complete blockade of Gaza. It depends on the intentions, but there is an objective element of genocide when you create conditions that will produce the destruction of a group. To not allow water, food and fuel through is to turn all of Gaza into an extermination camp. And forced displacement is a crime against humanity, just like bombing the civilian population.
One of the most important mechanisms for recruiting ISIS people was torture at Abu Grahib. And now people are going to see massacres in Gaza
Q. And what can the International Criminal Court, the European Union, the United States do, besides give their opinion?
A. The prosecutor of the International Criminal Court has decision-making capacity and jurisdiction, although some of the crimes were committed in Israel and others in Gaza. Netanyahu is not the leader to trust in the justice system because he is escaping justice himself, but it is time for the international community to stand firm. It is not about asking for humanitarian cordons; Israel cannot commit genocide in order to defend itself. The United States believes that the way to defend itself is to have the best military in the world. The European Union has a different, pact-oriented vision and has to make itself heard. With the war on terror the EU received a lot of immigration, things became more complicated, and with the war in Ukraine fear has increased. [Josep] Borrell [the EU high representative on foreign policy] is the one who speaks best, but Europe has become very tied to U.S. policy, which is closely linked to military supremacy.
War is today an obsolete mechanism because nuclear weapons make it not viable. And how long will it take the terrorists to have them? It is not an issue of left or right, but of survival. The record for refugees after World War II was broken in 2009, and it continues to rise. We are now at 100 million refugees and displaced people in the world. We must prevent crime and support justice. What is going to destroy Israel is war, because it will generate the reaction of the Arab world against Israel and terrorism will return throughout the world. One of the most important mechanisms to recruit people for ISIS [Islamic State] was torture in Abu Ghraib [the U.S. prison in Iraq after the 2003 invasion]. And now people are going to see massacres in Gaza. After 9/11, the United States, instead of arresting Bin Laden and putting him on trial, waged a war that lasted 20 years and lost it. The war on terrorism is not working. And it’s not me saying it: General [Stanley] McChrystal, who was the military leader in Afghanistan, explained the mathematics of the insurgency: “There are 10 terrorists, you kill two, how many are there left? Twenty.”
Q. The brains behind Hamas are not in Gaza.
A. Exactly. We should demand an arrest warrant against these people, ask them to surrender to avoid the massacre. But that is not Netanyahu’s style. Israel has the right to defend its territory and attack to kill Hamas fighters, but not to starve Gaza and bomb civilians. It is true that terrorists are hiding among the population, but you cannot bomb everyone to eliminate them, especially when it is impossible to completely eliminate Hamas. When Spain was fighting against [the now-defunct Basque terrorist group] ETA, it did not surround a city and bomb it knowing that there were ETA members in there.
Q. Israel has signed the Convention for the Prevention and Punishment of the Crime of Genocide (CPPCG) and also the Geneva Convention, but, like the United States, it does not accept the jurisdiction of the ICC. What can be done then?
A. This is what happened with [Russian President Vladimir] Putin in Ukraine. The Court issued an arrest warrant against Putin. There is a dissociation between politics, military and judicial strategy. We are not harmonizing those three things. In Putin’s case, the states fighting against him make no efforts to arrest him. Maybe Putin cannot go to Brazil, to South Africa… he is limited, but that is not yet a powerful tool because the States are not using it. Today’s problem is not the Court, it is whether States respect legal limits and take seriously their duties to prevent genocide, activating peaceful mechanisms such as justice to prevent conflicts.
Q. The International Criminal Court already opened an investigation in 2021 into events in Gaza, the West Bank and East Jerusalem. What happened to that?
A. In 2009 the Palestinian Authority came to see me at the Prosecutor’s Office to take on their case. I had to refuse because they were not a State. In 2012, Palestine achieved recognition by the United Nations [as an observer state]. In 2015, they joined the Rome Statute [the founding treaty of the ICC]. In 2021, it was decided that Gaza, East Jerusalem and the West Bank are territories of Palestine and that the Court therefore has jurisdiction there and an investigation was opened. That is, the current siege of Gaza is in a territory under the Court’s jurisdiction. It is not yet known what happened to that investigation.
Q. And can the Court now expand this investigation, act ex officio, or in this case is it necessary for another State to bring Israel before the court?
A. The prosecutor is independent and the normal procedure is for him to open the investigation, not for a State to request it. In this case, you already have an open investigation.
Q. And looking back, could what is happening now have been avoided or prevented?
A. This is a structural problem. Netanyahu’s policy has been to strangle the people of the West Bank, transferring members from one occupying country to an occupied one, for years. That is the strategy: occupy and ignore any peacekeeping efforts, thereby destroying Palestinian moderation and encouraging Hamas. Because Hamas allows Netanyahu to be tough. He hopes to destroy the entire Palestinian people, but that is not going to happen. It is a path of extermination that goes nowhere. But to prevent a genocide, a judicial conviction is not necessary. Creating the ICC is not enough, States have to integrate justice into their policies. Interests must be harmonized, the rules must be respected.
Q. How does Israel encourage Hamas?
A. Basically, by allowing it to receive financing.
Q. Does Israel have the capacity to prevent it?
A. Israel and the Arab countries could come to an agreement. Let the Arab countries act as peacemakers. They can do more than mediate, assume leadership. Almost everyone has already recognized the State of Israel. We must protect the Palestinians from Hamas, demand that Hamas surrender and not leave them in the routine of killing each other.
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