Institute for War and Peace Reporting | Giving Voice, Driving Change

Mochochoko Awestruck by Rise to the Top

As a boy he was a cattle herder in Lesotho - today he steers the world court.
By Katy Glassborow
Phakiso Mochochoko, from the small African country of Lesotho, is an unassuming man with a gentle demeanour, yet exudes calm authority. The man, who as a boy was a cattle herder among Lesotho's towering, snow-capped mountains, has been a key figure in shaping the launch of the four-year-old International Criminal Court, ICC.



Mochochoko is the senior legal advisor in the ICC’s Registry, where he heads a team advising the court on its operation and administration, as well as how to forge diplomatic relationships with countries where prosecutors are attempting to carry out investigations.



Until four years ago, he worked at the United Nations in New York where he had been posted as senior legal advisor to the Lesotho delegation. He was a member of the African group at the UN that called for the early establishment of a permanent independent criminal court. He chaired preparatory meetings for the 1998 Statute of Rome that set the ICC in motion and whose 76 pages of tight legal jargon are the court's rulebook. He was one of the first five people sent to The Hague to set in motion the ICC which now employs 600 people, including eight judges from every continent.



Mochochoko had a more modest start in life, growing up in a village in the Lesotho district of Quthing, where he spent half the day looking after cattle and the rest of the day in school.



He was sponsored through his education by the charity Save the Children at a time when most of the boys from his village would leave school at fifteen to work in the gold mines of South Africa - the main source of employment for the people of deeply impoverished Lesotho. But the Mochochoko family had loftier ambitions for their children and explored every route possible towards higher education.



The future senior lawyer at the ICC was brought up by his grandmother, as is the custom for first-born sons in Lesotho. And while his peers headed to the mines, he did well in high school and studied law at the University of Lesotho where his fees were paid by the Christian Council of Lesotho.



After graduating, he was articled as a clerk in private practice in Lesotho and qualified as a lawyer. Mark Webber, Mochochoko’s partner in the practice, told IWPR that from the beginning he possessed a quiet, firm, but completely unthreatening authority. “If he says something contrary to what the hearer wants to be hearing, he does not come over as aggressive, and is therefore persuasive,” said Webber.



THE STREET LAW PROJECT



But Mochochoko's passion was human rights law, and he became involved in the Street Law project designed to demystify the law for young people. He staged mock trials to teach them how the criminal justice system works.



He also worked with the Women and Law in Southern Africa Research Project, producing reports on how traditional laws affect women across the continent. Moving to South Africa in 1992, he collaborated with the University of Durban in the Natal Community Law Centre, teaching law to community groups.



The times were troubled before South Africa's first all-race elections in 1994, with fighting flaring regularly between the African National Congress and the Inkatha Freedom Party. Thousands of people died in turf battles, with Durban and its KwaZulu-Natal Province hinterland in the eye of the storm. “We tried to settle land disputes, as fighting was triggered by the smallest things,” said Mochochoko. “Even a goat grazing on the wrong side of the road could spark violence.” He worked in the human rights field with Lawyers for Human Rights in Durban, training people in villages so that pensioners could secure sound legal advice.



LESOTHO MISSION



In 1994, he was approached by the Lesotho government to work for its mission to the UN in New York, advising the government about international legal issues.



“Everything is done through negotiation at the UN, so I attended meetings and spoke on behalf of Lesotho in debates,” he said. Through these forums, he tried to galvanise southern African countries to work together. “As a small country, it is thought that your word is not worth much. But the southern African countries worked together as a group, and agreed on positions we would take so that we carried much more weight.”



Richard Dicker, international justice director of Human Rights Watch in New York, told IWPR that Mochochoko was one of three legal advisors from southern African states who played central roles in the negotiation process to establish the ICC. “He is a good listener and a thoughtful person, and this is clear to his interlocutors," said Dicker. "They sense that they are dealing with an intelligent person who respects different points of view.”



ROME CONFERENCE



In 1998, Mochochoko was one of the vice chairmen of the Rome Conference, mediating negotiations over the statute governing the workings of the ICC, which was finally adopted and is known as the Rome Statute.



Back in New York, Mochochoko chaired further working groups given the task of ironing out practicalities for the ICC when it finally began work. “I was the facilitator tasked with finding consensus, which is hard with people from different countries, motivations and attitudes who all wanted to shape the court in different ways,” he said.



Dicker said that Mochochoko’s greatest skill was in focusing on the merits of argument, not on threats or implied threats, “There may be a connection with coming from a small state in terms of relying on logic and the power of the argument. He combined these qualities with intelligence and straightforwardness and honesty.”



CALM AND UNFLAPPABLE



At this time, China, Russia and the United States - all countries that have refused to ratify the Rome Statute - actively participated in negotiations about the ICC and contributed to the shaping of the statue. In his quiet diplomatic manner, Mochochoko said, “There were difficulties as some countries tried to put restrictions on how the court would operate.”



While the US had concerns about the statute, it nevertheless signed its founding document. But the Bush administration has since refused to ratify it, a significant setback for the fledging court. Washington went further, threatening to withhold trade and aid to a raft of countries unless they agreed not to hand over US nationals for trial at the ICC.



The Rome Statute finally came into effect in July 2002. Mochochoko became one of its first employees, one of five individuals to arrive in The Hague to work out the logistics of the start-up operations. “We used to ask ourselves what the court would be like in three years’ time, and really had no idea. We had to think of where the court would be located and how many people would work there. We didn't realise at the time that we were probably making history,” he said.



From the early days, people started to send letters of complaint alleging crimes against humanity under the statute. “People were alleging instances of war crimes, but of course there was not a prosecutor here yet, so we had to classify them in accordance with regions and send out letters of acknowledgement,” he said.



THE AFRICAN DYNAMIC



The first four cases investigated by the court's first chief prosecutor, Argentina's Luis Moreno-Ocampo, have concerned African states - Uganda, Sudan, the Democratic Republic of the Congo and the Central African Republic. “Phakiso's knowledge of the African dynamic has been a very useful tool for him,” said his old law partner Webber. "Being 'of Africa' helps him understand what makes people tick.”



Dicker told IWPR about a conference on the ICC in Senegal in 1998 for African heads of state, for which Mochochoko arrived exhausted from New York as there had been delays to his flights, “Although he was fighting to stay awake, he attended the conference because he realised the importance of having African lawyers and officials represented at senior levels, and that African states were crucial in bringing the ICC into effect.”



Questionnaires at IWPR seminars in Africa on the ICC demonstrate huge areas of ignorance about international justice even among professionals who should have some kind of expertise. Mochochoko is a regular guest at these seminars, patiently and quietly spelling out the possibilities and limitations for Africa of the young court.



He counsels countries where ICC investigations are in progress, quietly advising that court investigators must not be harassed or arrested, and that their documents are privileged and cannot be seized.



DELICATE BALANCE



A frequent criticism of the ICC in Africa is that it is biased towards governments who have referred cases of gross human rights abuses by its citizens to The Hague. The critics allege that those governments, on which the ICC depends for support and protection, are often equally guilty of war crimes and crimes against humanity, and sometimes of genocide.



“It is a delicate balance, as the chief prosecutor needs to look at the whole situation,” said Mochochoko. “In the case of the [rebel] Lord's Resistance Army, the prosecutor is investigating the situation in the north of Uganda to ascertain which crimes were committed and by whom. He will always follow the evidence where it takes him.”



In October 2005, the top five leaders of the LRA became the first people for whom the fledgling ICC issued arrest warrants. LRA leader Joseph Kony and his top four aides are charged with 33 counts of war crimes and crimes against humanity. So far, Kony and his men remain at large.



“We do not have a police force or army, and so we cannot force any country to cooperate. All we can do is report the government to the ICC's Assembly of States Parties and the UN Security Council, and it is up to them to take action,” said Mochochoko.



He pointed out that even if the ICC did have the muscle of its own police force, it would still need government cooperation before it could enter any country.



State laxity in implementing ICC arrest warrants once issued has been propelled into the international limelight following amnesty offers by President Yoweri Museveni’s Ugandan government to the LRA - despite the fact that Museveni himself asked the ICC to act in the first place



Mochochoko said that the negotiation of peace does not mean the LRA leaders cannot later be arrested, and that under the Rome Statute Uganda is still obliged to arrest them.

“Under the statute and international law there is no amnesty for these international crimes. The warrants of arrest are still out there, and they should be enforced,” he said.



The court was not originally designed to act in areas where war remains in progress. In such circumstances, it is difficult to protect investigators and witnesses. But Mochochoko said the ICC cannot afford to wait, “If we did, then witnesses would be killed and we would lose their evidence. The conflict could go on for years, and our mandate is to end impunity [for gross war crimes and crimes against humanity].”



One of the most important parts of Mochochoko's work is securing protection for witnesses who have been victims of or seen some of the most horrific crimes known to mankind. “The success of the court depends on the evidence, and if witnesses are afraid to come forward the ICC needs to offer protection," he said.



Mochochoko admits he is a bit awestruck at having progressed from looking after cattle in a small African country, completely surrounded by South Africa, to negotiating with the UN on behalf of the ICC.



“I was sitting by a pool in Korea at a conference and my friend, who also grew up in southern Africa, asked me, ‘Did you ever, when you were looking after cattle in the mountains, think that one day you would be sitting by a pool in Korea?’



“I said, ‘Never in my dreams!’ I thought in those days I would look after the cattle and then end up being a mine worker."



Following his father's example, Mochochoko strongly encourages his children to study. He describes his wife Mary as his "anchor", a constant support to him throughout his life and career. The couple have four children. A son and daughter have continued their studies in New York. Another daughter is studying in the English city of Bristol, and their youngest daughter is now at school in The Hague. “Instead of leaving a will, I am giving them an education, which no-one can take away from them,” said the African lawyer who helped form the ICC and get it working.



Katy Glassborow is an IWPR reporter in The Hague.

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