ICC Pre-Trial Chamber Criticizes Prosecutor

Even when Moreno-Ocampo wins, he loses.  Pre-Trial Chamber II recently rejected a request by Mohammed Hussein Ali, one of the six Kenyans for whom the OTP has sought summonses, to submit “observations” on the investigation  That was an easy call; nothing in the Rome Statute permits a suspect to participate in the investigative process so early.  The Pre-Trial Chamber nevertheless made it clear that it was very unhappy with Moreno-Ocampo’s decision to release the name of the six Kenyans before it had approved the summons request.  Here are the relevant paragraphs:

21. Lastly, the Applicant argues that he has suffered negative publicity due to the Prosecutor’s decision to publicly name the persons for whom he had requested the issuance of summonses to appear. The Applicant therefore contends that, given this circumstance, he has the right to make observations on the Prosecutor’s application under article 58 of the Statute.

22. The Chamber is cognizant of the concerns of the Applicant with respect to the prejudice suffered due to the public disclosure of his name made by the Prosecutor. However, the Chamber is not of the view that such publicity caused could ground a construction of the proceedings of article 58 of the Statute in adversarial terms, contrary to the legal instruments of the Court. While it is not the Chamber’s role to comment and advise the Prosecutor on his interaction with the press and media, the Chamber nevertheless is concerned if his actions have the potential to affect the administration of justice and the integrity of the present proceedings before the Chamber. In this respect, the Chamber expresses its deprecation regarding the Prosecutor’s course of action in the present case, as it has unduly exposed the Applicant to prejudicial publicity before a determination of the Chamber pursuant to article 58 of the Statute has even been made.

The language is relatively mild, but it needs to be read against the backdrop of the withering criticism Moreno-Ocampo has received (see, for example, Antonio Cassese here) for publicly revealing the arrest warrant for al-Bashir instead of keeping it sealed until al-Bashir traveled somewhere he could be arrested.  I am generally supportive of the ICC’s investigation of the Kenyan situation, but Moreno-Ocampo clearly should have waited to release the six names until the Pre-Trial Chamber granted the summons request.  After all, the Article 58 standard for issuing a summons is extremely low, requiring only “reasonable grounds to believe that the person committed the crime alleged.”  It is thus difficult to avoid the conclusion that naming the suspects was a purely political move on Moreno-Ocampo’s part.

In related news, the ICC has convened a search committee for Moreno-Ocampo’s successor.  His term expires in June, 2012.  Any nominations?

UPDATE: James Gathii (Albany) has a similar reaction here.  James is running a blog dedicated to the ICC and Kenya; interested readers should add it to their RSS feeds!