The Remarkable Arrogance of the ICC Prosecutor

by Kevin Jon Heller

Two items worth noting.  First, as Julian pointed out the other day, Moreno-Ocampo’s refusal to comply with the Trial Chamber’s order to disclose the identity of an intermediary to Lubanga’s defense team has led the Trial Chamber to order Lubanga’s release pending appeal.  (The OTP filed the appeal today). It is bad enough that the “independent statutory obligation” to protect witnesses upon which Moreno-Ocampo is relying does not actually exist.  Even worse is that the organ of the Court most responsible for protecting witnesses, the Victims and Witnesses Unit, does not even agree with him.  Here is paragraph 17 of the Trial Chamber’s decision:

17. On 8 July at 13.51, the VWU informed the Chamber that the disclosure of the name of 143 to the defence under the conditions ordered by the Chamber does not pose a threat to the intermediary.

It takes a special kind of arrogance to think you know better than both the Trial Chamber and the Victims and Witnesses Unit.

Second, and equally troubling, is an editorial that Moreno-Ocampo published yesterday in The Guardian about Bashir’s genocide charges.  A snippet (emphasis added):

The genocide is not over. Bashir’s forces continue to use different weapons to commit genocide: bullets, rape and hunger. For example, the court found that Bashir’s forces have raped on a mass scale in Darfur. They raped thousands of women and used these rapes to degrade family and community members. Parents were forced to watch as their daughters were raped.

The court also found that Bashir is deliberately inflicting on the Fur, Masalit and Zaghawa ethnic groups living conditions calculated to bring about their physical destruction.

Bill Schabas explains what is wrong with these statements:

This is quite misleading. The Court did not find ‘that Bashir’s forces have raped on a mass scale in Darfur’. The Court did not find ‘that Bashir is deliberately inflicting on the Fur, Masalit and Zaghawa ethnic groups living conditions calculated to bring about their physical destruction’.  The Court did not – and would not – do anything to suggest the issue of whether or not genocidal acts had taken place was actually decided.  It merely issued an arrest warrant.  The Court applied a test set out by the Appeals Chamber, based upon article 58.  It said that there were ‘reasonable grounds to believe’ that rapes were perpetrated.  This test is significantly lower than the ‘substantial grounds’ test of article 61.  It is much lower than the ‘beyond reasonable doubt’ test of article 66.  Experts familiar with the Rome Statute and criminal lawyers generally will understand this point.  But the average reader of the Guardian may well be misled by the Prosecutor’s words into believing that the Court actually reached the conclusion that Bashir’s forces raped on a mass scale in Darfur, or that Bashir was deliberately inflicting conditions calculated to bring about the destruction of ethnic groups.

It is unconscionable for Moreno-Ocampo to mislead readers this way.  Indeed, he is simply repeating, in inverse fashion, the mistake that the Pre-Trial Chamber made in its original decision — assuming that Article 58 required the commission of genocide to be the only reasonable inference from the OTP’s evidence, when it only had to be one reasonable inference.  The Pre-Trial Chamber concluded that because non-genocidal inferences were possible, Article 58 was not satisfied.  Moreno-Ocampo is now assuming that because Article 58 was satisfied, no non-genocidal inferences are possible.  But the whole point of Article 58’s low “reasonable grounds” standard is to acknowledge that the OTP is entitled to an arrest warrant even if it is reasonable to infer from the OTP’s evidence either that a crime has occurred or that it has not.  Deciding which inference is the correct one comes later, when the relevant standard is “substantial grounds” (confirmation of charges) or “beyond reasonable doubt” (trial).

It has been a very bad week for Moreno-Ocampo.  I’ll say it again: if things don’t get better in a hurry, the Assembly of States Parties needs to consider removing him.

5 Responses

  1. Looks like those who were concerned about the problems inherent with the prosecutor’s office were correct. I look forward to hearing the “yes, but…” arguments of  those who think the United States needs to join this farce.

  2. How can they let him get away with this?  It’s outrageous.

  3. Yesterday in The Guardian? The article is dated 15 June.

  4. July

  5. Sorry, was off by a couple of days.

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