Jordanian Bar Association Wants Moreno-Ocampo Removed

The Jordanian Bar Association (JBA) is on a roll.  In addition to participating in the seminar I discussed in my last post, the JBA has also asked the Jordanian government — Jordan is one of three Arab states that have ratified the Rome Statute — to formally request the ICC’s Assembly of States Parties (ASP) remove Moreno-Ocampo from office because of his investigation in Darfur:

“We expect Jordanian government especially Minister of Justice Ayman Awda to respond as the Jordanian government stance led by King Abdallah supporting Sudan”, said Dean of Sudanese Bar Association Dr Fathi Khalil.Khalil appreciated the stand taken by Jordanian Bar Association for their solidarity with Sudan. He added that Jordanian Bar Association made that request, as it is a member in the ICC and their request comes in the framework of Arab lawyers’ solidarity with Sudan.

He pointed out that this appeal is based on solid ground as Ocampo behavior contradicts with his position.

Khalil described the move as courageous and successful and it is one-step of many, which have been made by Arab Lawyers associations.

“Solid ground” is, not surprisingly, something of an overstatement.  Although Article 46 of the Rome Statute provides that the Prosecutor can be removed by the ASP if he “[i]s found to have committed serious misconduct or a serious breach of his or her duties under this Statute,” Rule 24 of the Rules of Procedure and Evidence limits those categories to conduct that “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.”  I won’t reproduce Rule 24’s illustrative examples of such misconduct here, but they make clear that the the exercise of prosecutorial discretion, no matter how legally or politically disagreeable to the ASP, is not the kind of “serious misconduct” that justifies removing the Prosecutor.

We should always feel free to criticize Prosecutor’s decisions, momentous as they usually are.  I have certainly been very critical of Moreno-Ocampo here and in my scholarship.  But it also behooves us to defend the Prosecutor’s prosecutorial independence — the cornerstone of the ICC — just as passionately.  If I may paraphrase what Voltaire said to Rousseau about free speech: “I may disapprove of your decisions, Mr. Prosecutor, but I will defend to the death your right to make them.”