Is the ICC Prosecutor in Trouble?

by Kevin Jon Heller

The Guardian seems to think so:

A coalition of human rights lawyers, academics and leading non-governmental organisations (NGOs) has begun openly to criticise the competence and conduct of the prosecutor of the international criminal court, the Argentinian Luis Moreno-Ocampo. Their concerns follow his announcement last month that it is to seek an arrest warrant for genocide against the Sudanese president, and the collapse of the five-year-old court’s first trial.

Supporters of the court fear that Moreno-Ocampo’s style of management is damaging the court’s credibility and its ability to prosecute those responsible for crimes against humanity. He has been accused of alienating senior staff and seriously misreading the situation in Sudan. One academic has called for the court to consider removing him.

The concerns have been compounded by the way in which Moreno-Ocampo dismissed his media adviser, who made a complaint against him of sexual misconduct with a South African female journalist. That complaint, denied by Moreno-Ocampo and the woman involved, was dismissed by the court as “manifestly unfounded”. But last month the adviser, Christian Palme, was awarded two years’ salary as compensation for wrongful dismissal and €25,000 (£19,700) in moral damages by a tribunal of the International Labour Organisation. It found that the prosecutor had not followed due process and had “seriously infringed” Palme’s rights. The NGOs which support the court are likely to call for a new oversight mechanism as a result.

It’s an interesting article, well worth a read.  I have never been a fan of Moreno-Ocampo’s, and I’ve criticized him a number of times on this blog — for his obsession with body counts when deciding which situations to investigate, for his abuse of Article 54 during the Lubanga investigation, and for his disinterest in investigating crimes committed by States instead of by rebels.  But I’m still deeply troubled by calls to remove him, especially when they seem to be based on disagreement with the way he has used his prosecutorial discretion:

Then last month [Moreno-Ocampo] announced he was seeking an arrest warrant for genocide and war crimes against the Sudanese president, Omar Hassan al-Bashir, for the five years of carnage and pillage in Darfur. It was a historic decision – the first against a serving head of state – and unusual because normally warrants are only announced once the court’s pre-trial chamber has formally agreed. It was immediately denounced by the African Union and the Arab League and opposed by Sudan’s ally China.

[snip]

Mark Klamberg, a Swedish academic who has worked in the court, says it should consider removing the prosecutor.

Although it is reasonable to disagree with Moreno-Ocampo’s decision to indict Bashir, it is not reasonable to claim that the decision — which the Security Council had to envision was a possibility when it referred the situation in Darfur — is grounds for the Court to remove him, no matter how ill-advised it might have been.  (An open question, at best.)  Moreno-Ocampo was elected unopposed in 2003 by more than 70 countries, and he can be removed from office during his nine-year term only for “serious misconduct or a serious breach of his or her duties” (Article 46), such as concealing information, abusing his office to receive favorable treatment from public authorities or officials, or harming the standing of the Court through his non-official action (Rule 24).  I have not seen anyone suggest that Moreno-Ocampo’s treatment of the media advisor warrants his dismissal — and it is clear that his indictment of Bashir does not.

I look forward to the next Prosecutor taking office in 2012, and I hope that scholars and activists will continue to scrutinize Moreno-Ocampo’s decisions until then.  I know I will.  But unless he clearly violates Article 46, the calls for his scalp should cease.  Removing him for political reasons would be a cure far worse than the disease.

http://opiniojuris.org/2008/08/30/is-the-icc-prosecutor-in-trouble/

3 Responses

  1. I cannot help but think that the real conflict here is between lawyers who believe the court should do what it “can” do rather than those cases it “ought” to do.

  2. Professor Heller, I just read and interesting article regarding Moreno Ocampo. ( in spanish ). In it, it is stated that:”The Hague can only take action against individuals”. Would that be a reason why he shows no “interest” against States?
    Anyways, there will be a report from his and Baltasar Garzón’s visit to Colombia. I did like what he said to the Colombians: “The victims should not worry. If the Colombian justice doesn’t act, we  will”

  3. Shrek,

    By “State” I mean state agents — government officials and members of the military — not the State itself.

    As for Colombia — I’ll believe it when I see it…

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