Letter to the Editor: Response to Luis Moreno Ocampo on Comparisons to Holocaust Denial

On Monday, Just Security posted a piece by former ICC Prosecutor, Luis Moreno Ocampo. In his piece, Ocampo argued against a longstanding critique among African leaders, according to which the ICC’s Office of the Prosecutor has been biased against Africans. This critique has recently led to the withdrawal of South Africa, Gambia, and Burundi from the Court, a development that was the direct trigger for Ocampo’s rebuttal.

We do not agree with Ocampo, but this debate is an old one and we have nothing in particular to contribute at this stage (see here for a useful source on the bias). We would however like to express our concern about a particular sentence Ocampo wrote, according to which “The African bias is a cover up argument like the denial of the Holocaust.” Within its context, it seems Ocampo makes the following bizarre suggestion: just like Nazi supporters aimed not only to protect Nazis from accountability by denying the underlying acts, but also to perpetuate anti-Semitism, so too do African leaders aim to protect contemporary perpetrators of genocide, crimes against humanity, or war crimes.

It is hard to decide whether to take such an assertion seriously (and hard to deny that it veers towards the comical). If taken seriously, it is tantamount of accusing, e.g., the South African President, Jacob Zuma, of secretly supporting systematic acts of murder. Needless to say, there is no evidence of such support. Worse yet, the accusation potentially attaches to a vast number of concerned citizens in Africa and outside of Africa, who believe that the bias exists. It is worth recalling that a considerable number of states, including three permanent UNSC members, have not ratified the Rome Statute. One might agree or disagree with their decision, but we would be reluctant to liken it with Holocaust denial. Dealing with a political disagreement by demonizing the opponent is polarizing, dangerous, and irresponsible.

The other option is that Ocampo was consciously exaggerating in an attempt to draw traffic to his article. This too is rather offensive. Whatever one thinks about the ICC (and we both share a good part of the critique), this institution was founded to provide accountability for acts of genocide such as those perpetrated in the Holocaust: “the most serious crimes of concern to the international community as a whole.” For a former ICC prosecutor to invoke this category so lightly diminishes any remaining credibility the project of international criminal justice still has. Moreover, we believe in the value of blogs such as Just Security and online media as facilitators of the debates of the international legal community. However, there is a significant distinction between accessibility and rapid response to unfolding events and indulgence in the worst aspects of online commentary reflecting a ‘click-bait’ mentality.

In the bottom line, Ocampo’s reference to the Holocaust mirrors one of the critics’ main arguments, unwittingly illustrating that they might indeed have a point. Accusing his critics of desecrating the holiest symbol of 20th Century atrocities, he instrumentalizes its memory within the mundane power-politics surrounding the status of the ICC. This is not only hypocritical (and totally unnecessary). It is also an apt example of how many of the Court’s critics feel “developed” countries have instrumentalized the Court more generally. According to this view, prosecution at the ICC for morally-heinous acts has become a way of deflecting attention from the very real political conflict of interests that exist between the world’s richest and the world’s poorest countries; between former colonizers and the formerly colonized.

It is no great secret that in academic debates freedom of expression and editorial choices co-exist in a peculiar balance. Therefore, and given the reckless nature of Ocampo’s language, we believe that Just Security should not have published this particular sentence.

  

About the Author(s)

Itamar Mann

Senior Lecturer in Law at the University of Haifa

Ntina Tzouvala

Postdoctoral Fellow with the Laureate Program in International Law at the Melbourne Law School