“War is 5,000 years old, diplomacy is four centuries old, and international justice is two decades old,” says the first prosecutor of the International Criminal Court (2003-2013), Luis Moreno Ocampo (Buenos Aires, 71 years old), to explain the fragile wickerwork of the world order. “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 political world has been the creation of the Court [Penal Internacional]. 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 the example of the urgency of the challenge,” she says.
He was a 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 made them simulate roles. He had played 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 [Benjamín] Netanyahu now feels it is the new Holocaust and supports him. Everyone has lost people. I was years ago in one of the kibbutz that they attacked. And my Palestinian friends are desperate. One of them told me that his 88-year-old uncle doesn’t want to move, he waits for them to kill him.”
Moreno Ocampo has just returned from the University of São Paulo, where he holds a professorship on world order innovation, and at the University of California he teaches classes on war narratives for film students. “Twenty million people have seen the film. Argentina 1985″, where the first trial – he was a deputy prosecutor – of the Argentine dictatorship is narrated. He keeps 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.” He attends EL PAÍS by video call from Buenos Aires.
Ask. In common language, we speak of the “horror”, the “massacre”, the “war” between Israel and Gaza… In the language of international law that the world was equipped with after the Second World War, how What is happening called?
Answer. What happened on October 7 is a 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, a war crime. That’s all what Hamas did. Israel’s response is also criminal, regardless of who bombed the hospital [Al Ahli al Arabi, el martes pasado], there are two acts that are crimes: one is the absolute blockade of Gaza. It depends on the intentions, but it is an objective element of genocide to create conditions that will produce the destruction of a group. Not allowing water, food, gasoline to pass through… is transforming all of Gaza into an extermination camp. And forced displacement is a crime against humanity, just like bombing the civilian population.
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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?
R. The prosecutor of the International Criminal Court has decision-making capacity and jurisdiction, although part of the crime was committed in Israel and another in Gaza. Netanyahu is not the leader to trust in justice because he is escaping justice, but it is time for the international community to stand firm. It is not about asking for humanitarian cordons; Israel cannot commit genocide 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 it heard. With the war on terror it received a lot of immigration, it became more complicated, and with the war in Ukraine fear increased. Borrell [Josep, alto representante de la política exterior de la UE] He is the one who speaks best, but Europe has remained very tied to US policy, which is closely linked to military primacy. 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 of refugees after the Second World War was broken in 2009 and continues to rise. We are 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 ISIS people [Estado Islámico, en sus siglas en inglés] was the torture at Abu Ghraib [cárcel estadounidense en Irak tras la invasión de 2003]. 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 I’m not saying it, the general says it [Stanley] McChrystal, who was the military chief in Afghanistan, and explained the mathematics of the insurgency: “There are ten terrorists, you kill two, how many are left? Twenty”.
“When Spain was fighting against ETA, it did not surround and bomb a city knowing that there were ETA members there”
Q. Hamas’s brains are not in Gaza.
R. Exact. 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, 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 ETA, it did not surround a city and bomb it knowing that there were ETA members there.
Q. Israel has signed the Convention for the Prevention and Punishment of Genocide and also the Geneva Convention, but, like the United States, it does not assume the jurisdiction of the International Criminal Court. What can they do then?
R. This is what happened with [el presidente ruso, Vladímir] 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 has happened to her?
R. In 2009 the Palestinian Authority came to see me at the Prosecutor’s Office to take on their case. I had to tell them no because they were not a State. In 2012, Palestine achieved recognition by the United Nations [como Estado observador]. In 2015, they joined the Rome Statute [el tratado fundador de la CPI]. 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 a territory under the Court. 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, as some parties in Spain request, for another State to bring Israel before the court?
R. 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, he already has an open investigation.
Netanyahu encourages Hamas because Hamas allows him to be tough
Q. And looking back, could what is happening now have been avoided or prevented?
R. 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 another occupied one, for years. That is his strategy: occupy and ignore any peacekeeping efforts, thereby destroying Palestinian moderation and encouraging Hamas. Because Hamas allows him 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 International Court 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?
R. Basically, allowing them to fund them.
Q. Does Israel have the capacity to prevent it?
R. Israel and the Arab countries could agree. 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 they surrender and not leave them in the routine of killing each other.
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