International Labor Organization Rules Against Moreno-Ocampo (Again)

by Kevin Jon Heller

The case involves Luis Moreno-Ocampo’s decision to remove Ekkehard Witkopf, then a Senior Trial Lawyer with the OTP, from Lubanga.  The following paragraphs from the ILO’s judgment best summarize what happened:

On 15 December 2008 the Deputy Prosecutor informed  the  complainant orally that the Executive Committee had decided that he would no longer lead the trial of the Lubanga case on which he had been working since he joined the Court in 2004. Having asked for explanations, the complainant met with the Prosecutor and the Deputy Prosecutor later that day. The Prosecutor told him that the Executive Committee no longer trusted him to present the position of the Office of the Prosecutor in the Lubanga trial. He added that the decision to remove him from the case was final. The three of them met again the following day and agreed that the Executive Committee would inform the members of the team working on the Lubanga trial that the Deputy Prosecutor would replace the complainant and lead the team and that the complainant would inform the victims and the defence counsel. The minutes of that meeting, which they signed on 16 December, indicate that they also agreed that the Human Resources Section would be tasked to find a solution to ensure that the complainant receive adequate compensation for all the extra hours he had worked during the last four and a half years. On 17 December 2008 the decision to remove the complainant from the Lubanga case was reported in an international newspaper. Thereafter, there were several meetings and exchanges of e-mails between the complainant and the Deputy Prosecutor regarding the Executive Committee’s decision, the handover of the Lubanga case and the complainant’s next assignment. By an e-mail of 11 February 2009 the Deputy Prosecutor notified the complainant that he was assigned to another case, the “Uganda case”, as a Senior Trial Lawyer.

The complainant wrote to the Secretary of the Appeals Board on 13 February 2009 requesting a review of the decision to take him off the Lubanga case. He specified that the Deputy  Prosecutor had notified him on 16 January 2009 that this decision was final. By a letter of 13 March the Prosecutor replied to the complainant that the contested decision was not an administrative decision breaching his terms of appointment or applicable rules and regulations and thus was not open to review. He added that his request was time-barred as it had not been submitted within 30 days from the date on which the decision was taken, i.e. before 15 January 2009. He further  stated that, by signing the “agreement” of 16 December 2008, the complainant had accepted his removal from the Lubanga case. On 24 March 2009 the complainant filed a first appeal with the Secretary of the Appeals Board, challenging the decision to remove him from the Lubanga case. In its report of 13 August the Board held that the appeal was receivable  ratione temporis, given that the contested decision was two-fold: the first part consisted of removing the complainant from the Lubanga case (as indicated in the minute of 16 December 2008 and confirmed on 16 January 2009) and the second part consisted of assigning him to another case (as indicated in the  e-mail of 11 February 2009). According to the Board, the complainant could not fully assess the consequences of his removal from the Lubanga case until he was informed of his new assignment, and the time limit for lodging his request for review therefore began to run only from 11 February 2009. It also found that the  appeal was receivable ratione materiae, because a violation of his terms of appointment could not be excluded prima facie. On the merits, the Board found that the contested decision amounted to demotion and that it affected the complainant’s reputation and career prospects. It recommended that the reassignment decision be “revised” to ensure that his level of responsibility remained the same, and that measures be taken to restore his reputation. The Board further recommended that he be awarded moral damages.

In the meantime, on 10 March 2009 the complainant wrote to the Chief of the Human Resources Section seeking the payment of 145,759.73 euros in compensation for the extra hours he had worked between 1 July 2004 and 15 December 2008. He recalled that, during the meeting of 16 December 2008, the Prosecutor had promised that he would be granted “adequate compensation” for overtime work. The Chief replied on 20 March 2009 that the Court did not grant overtime payments to staff at the professional level and that the statement made in the minutes of the meeting of 16 December was meant to refer to the taking of special leave with pay. On 17 April the complainant filed a request for review of that decision, which the Prosecutor rejected on 15 May on the grounds that, according to Staff Rule 103.15, payment of compensation for overtime work is limited to General Service staff. He also denied having promised to grant the complainant monetary compensation for overtime work. The complainant filed a second appeal with the Appeals Board on 12 June 2009, contesting the Prosecutor’s refusal to review the decision of 20 March.

By a memorandum of 14 September 2009, which is the decision impugned by the complainant in his first complaint, the Prosecutor notified the complainant that he had decided to reject his first appeal as time-barred and hence irreceivable. In his view, the Board had committed an error of law in that only one administrative decision had been taken with regard to his position as Senior Trial Lawyer on the Lubanga case, and that decision had been communicated to him on 16 December 2008. On 5 October 2009, referring in particular to the decision of 14 September, the complainant tendered his resignation.

[snip]

On 30 October the Appeals Board issued its report on the complainant’s second appeal. Noting that professional staff regularly work extended hours in the ordinary course of their duties, it considered that the complainant could not expect to be compensated for each and every minute he had worked beyond ordinary business hours. Moreover, the complainant had not provided sufficient evidence Judgment No. 30795 that the Court’s promise to compensate him for the overtime he had worked referred wholly or primarily to financial compensation. The Board recommended that his claim for 145,759.73 euros in
compensation should be rejected, as well as his claim for costs. Nevertheless, it pointed out that the nature of the “adequate compensation” had never been determined, and it therefore recommended that the Prosecutor award the complainant “realistic, and preferably mutually agreed, compensation” without restricting this a priori to compensatory time off under Staff Rule 103.15. On 26 November 2009 the Prosecutor informed the complainant that he had decided to endorse the Appeals Board’s recommendation not to grant him the relief claimed. He added that, since the complainant had signed the agreement of 5 October, the recommendation to award him “realistic” compensation had become moot. The complainant impugns that decision in his second complaint.

The ILO rejected Witkopf’s first claim, that his transfer was arbitrary, largely on procedural grounds (that his appeal of the decision was time-barred).  But it agreed with his second claim, at least in part, that he was entitled to compensation for the overtime that he had worked on the Lubanga case.  It thus ordered the OTP to pay Witkopf 40,000 euros in damages, plus costs.

Although the overtime issue isn’t particularly interesting, the judgment sheds a great deal of light on the inner workings of the OTP under Moreno-Ocampo.  Simply put, the judgment makes Moreno-Ocampo look terrible: petty, vindictive, authoritarian, dishonest.  And, of course, this is the second time that the ILO has found that he abused his power — the first involving Moreno-Ocampo’s wrongful dismissal of the head of the ICC’s public-relations division for relaying allegations to the President of the Court that he had sexually abused a female journalist.  (The ICC later concluded that the allegations were unfounded.)

On the other hand, the ILO judgment makes the Prosecutor-Elect, Fatou Bensouda, look very good.  As the ILO summarizes the events involving Witkopf, Bensouda went out of her way — unsuccessfully, in light of Moreno-Ocampo’s actions — to ensure that Witkopf was treated fairly.  Here is the relevant paragraph from the Judgment:

Steps were taken soon after the meeting of 16 December  2008 to inform the various persons concerned that the complainant was no longer leading the Lubanga trial team. The complainant also took steps to hand over the case to the Deputy Prosecutor. The handover was completed on 9 January 2009. In the meantime, the complainant had several further conversations with the Deputy Prosecutor who, although a member of the Executive Committee, was not happy with the decision to remove him from the Lubanga case and undertook to speak to the other members with a view to persuading them to reconsider the decision. In the course of her conversations with the complainant, the Deputy Prosecutor requested him not to shred his personal papers relating to the case and he refrained from doing so. On 13 January 2009 the complainant enquired of  the Deputy Prosecutor as to the outcome of her discussions with the other members of the Executive Committee. She informed him on 16 January 2009 that, despite her efforts, they were not prepared to alter their decision. She undertook to continue her efforts in the hope that there would be a change of mind prior to the start of the trial on 26 January. There was no such change and the trial commenced as scheduled.

There are two takeaways from this ugly case.  The first is that the end of Moreno-Ocampo’s tenure as Prosecutor cannot come soon enough.  The second is that the Assembly of States Parties has made a very wise decision in selecting Fatou Bensouda to replace him.

http://opiniojuris.org/2012/02/10/international-labor-organization-rules-against-otp-regarding-overtime/

One Response

  1. Fascinating stuff.

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