I Think It’s Time to Remove Moreno-Ocampo

by Kevin Jon Heller

I don’t make that claim lightly.  Despite my belief that Moreno-Ocampo has been a disaster as a prosecutor, I have consistently opposed calls for his removal, whether because of his retaliation against an employee for accusing him of sexual harassment or because he decided to pursue genocide charges against Bashir.  I even opposed his ouster when his misuse of confidentiality agreements threatened to destroy the Lubanga trial, because I believed there was a difference between a prosecutor being stupid (by trying to keep documents not only from the defense, but from the judges, as well) and a prosecutor committing the kind of “serious misconduct” or “serious breach of duties” that would justify his removal under Article 46 of the Rome Statute.

Moreno-Ocampo’s latest offense, however, is a different story.  Here is how Dov Jacobs explains it at Spreading the Jam (his emphasis):

Yesterday, Trial Chamber I of the International Criminal Court ordered another stay of proceedings in the Lubanga case because the Prosecutor is consistently refusing to apply orders made by the Court to disclose to the Defense the identity of an victims intermediary, following claims of misconduct. The Chamber had found that there was no security risk for the intermediary in the event of a partial disclosure to selected persons, confirmed by the Victims and Witnesses Unit. Despite this, the Prosecutor argued that:

The Prosecution is sensitive to its obligation to comply with the Chamber’s instructions. However, it also has an independent statutory obligation to protect persons put at risk on account of the Prosecution’s actions. It should not comply, or be asked to comply, with an Order that may require it to violate its separate statutory obligation by subjecting the person to foreseeable risk. The Prosecutor accordingly has made a determination that the Prosecution would rather face adverse consequences in its litigation than expose a person to risk on account of prior interaction with this Office. This is not a challenge to the authority of the Chamber, it is instead a reflection of the Prosecution’s own legal duty under the Statute.

To which the Chamber answered:

27. No criminal court can operate on the basis that whenever it makes an order in a particular area, it is for the Prosecutor to elect whether or not to implement it, depending on his interpretation of his obligations. The judges, not the Prosecutor, decide on protective measures during the trial, once the Chamber is seized of the relevant issue, as regards victims, witnesses and others affected by the work of the Court, and the prosecution cannot choose to ignore its rulings. It is for the Chamber to determine whether protective measures are necessary (following consultation with the VWU under Article 68(4) of the Statute); their nature; and whether they are consistent with the accused’s right to a fair trial. These are issues for the Court, and the Court alone, to determine, having heard submissions and having considered all the information the judges consider necessary and relevant. The Prosecutor now claims a separate authority which can defeat the orders of the Court, and which thereby involves a profound, unacceptable and unjustified intrusion into the role of the judiciary.

28. The Prosecutor has chosen to prosecute this accused. In the Chamber’s judgment, he cannot be allowed to continue with this prosecution if he seeks to reserve to himself the right to avoid the Court’s orders whenever he decides that they are inconsistent with his interpretation of his other obligations. In order for the Chamber to ensure that the accused receives a fair trial, it is necessary that its orders, decisions and rulings are respected, unless and until they are overturned on appeal, or suspended by order of the Court.

As a consequence:

31. Therefore, the Prosecutor has elected to act unilaterally in the present circumstances, and he declines to be “checked” by the Chamber. In these overall circumstances, it is necessary to stay these proceedings as an abuse of the process of the Court because of the material non-compliance with the Chamber’s orders of 7 July 2010, and more generally, because of the Prosecutor’s clearly evinced intention not to implement the Chamber’s orders that are made in an Article 68 context, if he considers they conflict with his interpretation of the prosecution’s other obligations. Whilst these circumstances endure, the fair trial of the accused is no longer possible, and justice cannot be done, not least because the judges will have lost control of a significant aspect of the trial proceedings as provided under the Rome Statute framework.

This is completely unacceptable — and I think there is little doubt that Moreno-Ocampo’s actions would justify the Assembly of States Parties removing him from office.  Rule 24 of the Rules of Procedure and Evidence defines “serious misconduct” and “serious breach of duties” as follows:

1. For the purposes of article 46, paragraph 1 (a), “serious misconduct” shall be constituted by conduct that:

(a)      If it occurs in the course of official duties, is incompatible with official functions, and causes or is likely to cause serious harm to the proper administration of justice before the Court or the proper internal functioning of the Court, such as:

(i)       Disclosing facts or information that he or she has acquired in the course of his or her duties or on a matter which is sub judice, where such disclosure is seriously prejudicial to the judicial proceedings or to any person;

(ii)      Concealing information or circumstances of a nature sufficiently serious to have precluded him or her from holding office;

(iii)     Abuse of judicial office in order to obtain unwarranted favourable treatment from any authorities, officials or professionals; or

(b)      If it occurs outside the course of official duties, is of a grave nature that causes or is likely to cause serious harm to the standing of the Court.

2.        For the purposes of article 46, paragraph 1 (a), a “serious breach of duty” occurs where a person has been grossly negligent in the performance of his or her duties or has knowingly acted in contravention of those duties. This may include, inter alia, situations where the person:

(a)      Fails to comply with the duty to request to be excused, knowing that there are grounds for doing so.

(b)      Repeatedly causes unwarranted delay in the initiation, prosecution, or trial of cases, or in the exercise of judicial powers.

I have bolded what I think are the most relevant provisions.  In terms of the first, it is difficult to imagine conduct that more directly threatens “serious harm to the proper administration of justice before the Court or the proper internal functioning of the Court” than refusing to comply with a court order — especially one that a Trial Chamber believes is necessary to protect a defendant’s right to a fair trial.  In terms of the second provision, given Moreno-Ocampo’s earlier grossly negligent misuse of confidentiality agreements, I think it is fair to say that he has now “repeatedly” caused unwarranted delay in the Lubanga trial.

I have no idea whether the Assembly of States Parties will even consider removing Moreno-Ocampo because of his latest travesty.  But at this point, it certainly should.

http://opiniojuris.org/2010/07/09/i-think-its-time-to-remove-moreno-ocampo/

8 Responses

  1. …ICTY errors in Tadic pale in comparison…

  2. Lubanga is finished, so is Bemba. The only conviction that they could probably achieve is in Katanga. Good job, OTP!

  3. There is a danger of over-simplification and putting the full blame on the Prosecutor. The matter is highly complex. The issue of conflicting duties is not unusual. There is case law available in which prosecutors in national trials have not complied with court orders, especially because of this issue of protecting individuals involved in criminal proceedings. I think prosecutors can legitimately make such determinations, without this having to amount to an offence against the administration of justice. But in the national cases I know
    they had the pay a high price: termination of proceedings. The key question is whether this is now becoming the inevitable outcome in Lubanga as well. It may be moving in that direction, but even if this would be the case one should not jump to conclusions. I believe the matter requires more research, including a proper analysis of applicable sources of law.

  4. I really think that you might wish to check the record before careening to such precipitous–and erroneous–conclusions. In this case, the defense had alleged NO reason to believe that this particular intermediary had done anything wrong.  In other words, this was a total fishing expedition by the defense.  And let us remember that the intermediaries are not the witnesses.  Conditions are so dangerous on the ground in the DRC that it is difficult for the prosecution to talk to witnesses without endangering their safety.  Bona fide intermediaries, as this one (even according to the defenses’ best arguments) put child soldiers–witnesses against and victims of the most vicious of war criminals–in touch with the OTP, which seeks to find justice for them.  The OTP objected to disclosure, since the intermediary was not a witness & there was NO evidence to suggest that he had done anything wrong.  The TC ruled against the OTP.  The OTP wanted to appeal; the TC said no go.  So the OTP said that it would disclose the name after the intermediary and his family had been relocated.  The victims and witness unit concurred in the belief that the intermediary and his family had to be relocated.  But there were delays in the process.  So the OTP asked for a 2 week delay in disclosure pending the putting in place of protections for the intermediary.  It was at this point that the TC threw its brat fit.  Both the OTP and Chamber have an statutory obligation to protect witnesses.  All that was involved was a potential delay of 2 weeks.  (There are other circumstances that are relevant, such as allegations that the defense’s investigators are too cozy with those who might harm the intermediary).  In any case, there were plenty of remedies available to the TC short of holding that justice could not be done if the intermediary’s name was not disclosed for 2 weeks.  He was not even a witness!

    I suggest that you look a little closer at the judges’ performance at the ICC.  Just check the record.  It is all there for you, if you would take the time to check.

  5. J. O’Sullivan,

    It is completely irrelevant whether the judges are mistaken.  Prosecutors do not get to ignore court orders.  Period.  If they do, they should be held in contempt and, if the relevant rules provide, removed.

  6. Goran,

    I agree with much of what you have to say, but I’m not sure what relevance national case-law has.  The primary sources of law that apply here are, of course, the Statute and RPE.  As I said in the post, given Rule 24, I think the ASP would be well within its rights to find that Moreno-Ocampo committed serious misconduct or serious breach of duties and remove him.  That does not mean, of course, that they have to.

Trackbacks and Pingbacks

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