Could The ICC Stop Another Chemical Attack?

If diplomatic talks fail, and an outright attack is off the table, is there a third option to stop another chemical weapons attack in Syria? It may be the International Criminal Court. Host Michel Martin talks with the former ICC chief prosecutor, Luis Moreno Ocampo.

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MICHEL MARTIN, HOST:

I'm Michel Martin, and this is TELL ME MORE from NPR News. There are just a few weeks left until the next phase of the Affordable Care Act takes effect. We know that many people still have questions; we've been trying to answer them all summer. Today, we're going to focus on how the act will affect those already using the two big government health insurance programs, Medicare and Medicaid. That conversation is later in the program.

First, though, we're going to focus again on Syria. President Obama has asked Congress and the American people to support a military strike on Syria, after the regime allegedly used chemical weapons against its own people last month. But polls show widespread and growing resistance to the idea; and this resistance remains despite the fact that most people - America's national leadership and the United Nations - say crimes against humanity are being committed in Syria. Our guest today says that there is a third way, though, between military force and doing nothing. Luis Moreno Ocampo is the former chief prosecutor of the International Criminal Court, and we spoke with him earlier today.

MARTIN: Thank you so much for speaking with us.

LUIS MORENO OCAMPO: My pleasure.

MARTIN: Now, as we are speaking in the mix right now, there's an option that Russia offered yesterday to place Syria's chemical weapons under international control. Syria says that it is considering this idea. President Obama is skeptical, at least in part because the Syrians previously said they didn't have chemical weapons. But I wanted to ask if you view this as a positive development?

OCAMPO: I think it's very important that President Obama took a firm stand. Without that energy - without that will - nothing would happen today. In the last month, nothing happened. So that's first point - very important President Obama moving. What the world will do what the Obama administration should do is to discuss it. The idea that something should be done is the first point. Look, I was nine year prosecutor in international criminal court. I was 18 time Security Council. In those days I never could talk about what they should do because I had a judicial role. Now I am pleased to try to help. OK, there is new things - new idea to do.

And one important thing I published was Russia is not the enemy. Russia vetoed resolutions because Russia is against mid-interventions and Russia's against regime change. But Russia would not sponsor terror states now. We are not in the Cold War time. And I think it's interesting that President Obama forced Russia to propose something. And that's a good development. It's enough? No. We should do more. And that is why I was trying to explain how the intervention of an international criminal court can help here.

MARTIN: Well, I think many people are clearly attracted to the idea of a third way, but what would actually happen? Would President Bashar al-Assad be brought up for charges before the International Criminal Court? I mean, and what -

OCAMPO: No, it has to be a little more subtle. That's why I presented the idea. Because in a national setting when the neighbor steals your bike you go to the police, and the police go a neighbor and investigate and rescue the bike. Here it's more complicated because no one has a right to go to Syria. It's a sovereign state. That's why sometimes the International Criminal Court in the past have made decisions - indicted President al-Bashir for genocide - but no one can go and arrest him. The new thing here is how we can combine better the political negotiation but make stronger and more serious with intervention from ICC and military options.

So, my idea is use the International Criminal Court as a future threat. So my idea is tell me all the actors, because it's not just Assad. People say it's Al Qaeda - other groups committing crimes, OK. Everyone, the idea will be you have to understand from the first of January 2014, the International Criminal Court will investigate any crimes. So, stop the crimes now or you will be prosecuted.

And to make this threat serious, we have to say and we will enforce the arrest warrant issued by the International Criminal Court. Whoever is indicted will be arrested and we will find a way to arrest them. So that could make the difference. That I think could happen.

MARTIN: If you are just joining us, I'm speaking with Luis Moreno Ocampo, he's the former chief prosecutor of the International Criminal Court. Of course, we're talking about Syria and we're talking about a piece he wrote earlier this month called, "Between Bombing or Doing Nothing". You know, President Assad continues to maintain that he is not responsible for the chemical weapons. And, in fact, remember we had an interview with veteran journalist Charlie Rose earlier this week and I just want to play a short clip from that conversation when he was asked what he would say to President Obama. Here it is.

(SOUNDBITE OF INTERVIEW)

PRESIDENT BASHAR ASSAD: Present what you have as evidence to the public. Be transparent.

CHARLIE ROSE: And if he does - if he presents that evidence...

ASSAD: This is why we can't discuss that evidence because he doesn't have. He didn't present it because he doesn't have - Kerry doesn't have. No one in your organization has. If they had it, they would have presented it to you as media from the first day.

MARTIN: And, of course, Charlie Rose is going on to say that the U.S. government believes it has presented very compelling evidence that these weapons were used and the effects that they had. There is a third choice here, which is what German media are reporting that the German intelligence seems to support the idea that there were rogue members of the regime acting without Assad's permission. I don't know if you credit that. But I think the whole question of this alleged evidence, what additional evidence can be presented?

And I think some people argue that this just gives them more time to use these weapons again or to harm more people.

OCAMPO: OK, nothing will stop him if you are not serious. And exactly what you say, you don't have to understand what happened, we will need an impartial court to define that. And that's what we have. The funny - the interesting thing now - the world today has an international criminal court ready to act. So we can investigate that. And in addition to that, we should investigate chemical weapons used. But also, we should investigate any other crimes against humanity committed against civilians because it's not that we are saying, oh, Assad, you cannot kill civilians with chemical weapons, but if you kill civilians with bullets it's OK. No problem, go ahead. No. We say, no leader in the world can kill massively in their own country thinking it will be impugned. No. So the intervention of the International Criminal Court could present an impartial organization to check in the evidence. But also the real line is, no killing of civilians with chemical weapons, with bullet, in any way, and you cannot kill civilians. It's prohibited.

And that was Nuremberg. That is International Criminal Court. That is a new way. So that's a concept. We can use, as a national setting, we can use a traditional system to check the evidence and to define who is responsible. But for me, in addition to that - and that is different in an international setting because today, the International Criminal Court could not intervene in Syria because Syria is not a state party of the ICC. So the way to include the International Criminal Court is a Security Council resolution. The U.N. Security Council could decide. So the idea I'm discussing is, if the U.N. Security Council decide to do it in the next three months - so we will start the adjudication in three months - then you create a different environment because if you're not stopping the crimes, you go to jail. And people in Syria are committing crimes to gain power. So if they know they go to jail, they will stop. So we have to make a credible threat with the International Criminal Court. That is what I'm trying to present. Maybe I'm not very clear.

MARTIN: But is part of the issue here that the International Criminal Court does not now have the standing in the community of nations now to be a credible threat? I mean, just today, for example, Kenya's deputy president William Ruto's trial begins today at the ICC. Now this is the first sitting official to show up and stand trial. You brought the case against him for instigating post-election violence in 2008. But Kenya's parliament has just voted to withdraw from the ICC. So...

OCAMPO: OK. But still, Ruto is still - we see what's happening in Kenya, and it's a different thing what happened in the trial. The issue - just the existence of the court and it's in Libya, all the Security Council member, including China, Russia, U.S., India, supported to include the International Criminal Court. After what happen in trial, it's a different thing for the individual responsibility. But here, what we are saying - talking about how to stop the crimes. How can you use different ideas to have alternatives between bombing or doing nothing. That is what I am presenting, OK?

We can use International Criminal Court to stop the crime if we are smart. And that's what I am proposing. Be smart, combined - we, in the past, in the Darfur case or in the Libya case, the Security Council never discussed how to execute their warrant. And that's what means in use idea.

If Obama administration is ready to strike, should be ready to discuss with Russia and China how to execute their warrant. And if they agree on that, you stop the crimes in one day. If China, Russia and U.S. agree how to execute avenge without a warrant, and Assad knows, they will implement their warrant - it finish. And it's not just Assad - Al Qaeda, everyone doing crimes here because that is an interesting thing. It's not just about chemical weapons, it's not just about Assad. There are many actors committing crimes and there are people using normal weapons. We have to stop everything. That is a possibility now. And that is created because Obama's decision. So Obama decided to do something. It's a nice, interesting time to discuss what the world can do.

MARTIN: Do you feel that the International Criminal Court would be an appropriate enforcement mechanism in conjunction with this Russian-U.S. proposal to put these chemical weapons under international control? Would that be an appropriate - or do you just think that that's a separate matter?

OCAMPO: That's important. Let me summarize the important things. Obama will - very important - Obama will provoke Russia to help and assist with the chemical weapons. Now that we have this conversation, we have to move forward and create a more permanent solution. International Criminal Court blast enforcement could be a solution, but has to be an agreement, not just send the case to the court, be ready to back the court decision. Be ready to arrest individuals if the court decide to do that. That is a combination I'm proposing. Great Obama decision, great Russians now on board helping move forward to end the conflict. Not just about chemical weapons, not just about Assad. Everyone has to stop killing civilians. That's a concept. And international criminals - yes.

MARTIN: What reaction are you getting? We only have about a minute or so left. What reaction are you getting since you floated this proposal?

OCAMPO: That's OK. People in the court are talking about that. I think it's - I'm very happy that in few days, because Obama took this step, Russia answered and now we're in a different dialogue. What I saw as a prosecutor, when the world is united, they can stop the crimes. If China, Russia, U.S. and everyone is united, they can stop the crimes in Syria. So we have to build this community. And in some way, President Obama triggered this new moment. We have to take advantage of the moment.

MARTIN: Luis Moreno Ocampo is the former chief prosecutor of the International Criminal Court. We reached him in Cambridge, Massachusetts where he's working on a book. Thank you so much for joining us.

OCAMPO: Thank you.

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