OPCD Moves to Disqualify Moreno-Ocampo

Things are getting ugly at the ICC.  The Office of Public Counsel for the Defence, which has been appointed to protect Saif Gaddafi’s interests at the Court, has now moved to disqualify Moreno-Ocampo from Saif’s case on the ground that he “lacks the requisite impartiality to direct the investigations and prosecutions” because of his “repeated failure to respect the presumption of innocence and rights of the defendant under the Statute, and an objective appearance that [he] is affiliated with both the political cause and legal positions of the NTC government” (paras. 28, 29).  The motion is very long; here, I think, are the critical paragraphs:

39. On various occasions throughout the proceedings, the Prosecutor has given high profile media interviews in which he has described Mr. Gaddafi, without any qualification, as “lying”, having committed a “crime against humanity”, being “‘involved in the recruitment of soldiers from outside”, “personally hiring people […] financing the operations”, being “ready to crush the demonstration”, and “involved in the operation to kill the civilians on the street”, ‘threatening people’, and having personally committed crimes with his own hands through the execution of persons.

43. In many press statements, there is also no clear demarcation between the position of the ICC Prosecutor, and that of the Libyan authorities. For example, the Prosecutor has stated that “They will show they are able to prosecute Saif (al-Islam Gadhafi), who they believe is today the face of the old regime.” […]The rebellion in Libya started as a fight for justice, so they want to show they can do justice in the Saif case”. In so doing, the Prosecutor appears to endorse the narrative that firstly, the rebellion was a ‘fight for justice’, and secondly, that the present Libyan government is an extension of this rebellion, and ‘fight for justice’.

44.Subsequently, the Prosecutor observed that “it was critical for Libyans who fought against the injustices of the Gaddafi regime to now show they could “respect justice for a person like Saif.” Again, the Prosecutor appears to identify the current Libyan government and judiciary with the rebels, and to endorse their cause by describing it as a fight against “the injustices of the Gaddafi regime”. The phrase ‘a person like Saif’, in this context, appears to situate the defendant within his general description of the ‘injustices of the Gaddafi regime’.

48. Although there have been calls to investigate allegations of grave detention related violations allegedly committed by the Thuwar in Misrata, the Prosecutor did not indicate that he would investigate such allegations, instead appearing to excuse the plight of the thousands of detained persons (some of whom are alleged to have been tortured) as being ‘complicated’, on the basis that these persons were potentially responsible for crimes. Although the investigation had just commenced, the Prosecutor announced that he would focus on high level officials, who are outside of Libya (many whom, are potential Defence witnesses, seeking asylum from the Libyan government).

54. The Prosecutor has also repeatedly stated that if the case is referred back, the ICC would not monitor the fairness of the proceedings in Libya which appears to be abrogating the responsibility of the Prosecution to ascertain whether, during the course of proceedings in Libya, new facts may have arisen, which negate the initial finding of inadmissibility. Given that the Defence does not have the right to invoke Article 19(10) of the Statute, any potential abrogation of this responsibility can be extremely deleterious to the rights of the defendant.

I have mixed feelings about the motion.  On the one hand, its timing is questionable — after all, it’s unlikely that Moreno-Ocampo will still be the Prosecutor when the Pre-Trial Chamber rules on Libya’s admissibility challenge, and he will clearly be gone from the scene by the time Saif is eventually prosecuted (whether in Libya or at the ICC).  Fatou Bensouda is very unlikely to make the kind of statements complained of in the motion.  Moreover, although Article 42(7) of the Rome Statute provides that “[n]either the Prosecutor nor a Deputy Prosecutor shall participate in any matter in which their impartiality might reasonably be doubted on any ground,” the motion stands little or no chance of success. It is true that, as the motion notes, “[u]nlike some national systems in which the Prosecutor might exercise a more partisan role, Article 54(1) of the Rome Statute enjoins the ICC Prosecutor to act as an independent and impartial Minister of Justice, who is dedicated to establishing the truth, and respecting the rights of all persons under the Statute, including the defendant.”  The motion also does a good job citing jurisprudence from the European Court of Human Rights and other international criminal tribunals that suggests statements like Moreno-Ocampo’s are problematic.  Still, there is no question that the proceedings against Saif are now at a fundamentally adversarial stage — an arrest warrant having been issued — and Moreno-Ocampo’s statements about Saif’s guilt, however imprudent, don’t seem fundamentally different from the kinds of statements national prosecutors make all the time about defendants facing charges, even in in civil-law systems.

That said, there is little question that many of Moreno-Ocampo’s statements are indeed objectionable.  It would clearly be better for him not to opine on Saif’s credibility or make categorical statements concerning his guilt, for all the reasons mentioned in the motion.  An occasional “Saif is presumed innocent” wouldn’t hurt, either.  Moreno-Ocampo has also clearly gone too far in vouching for the effectiveness of the Libyan justice system — which is questionable — and Libya’s right to prosecute Saif in a national court.

Indeed, the scope of that right is the most fascinating aspect of the conflict between the OTP and the OPCD. To be sure, the principle of complementarity is based on the idea that, whenever possible, states should prosecute international crimes domestically.  So there is nothing objectionable about the OTP encouraging Libya to prosecute Saif.  But there does seem to be at least a tacit assumption in the Rome Statute that once the OTP has decided to seek an arrest warrant for a suspect, it will oppose a state admissibility challenge insofar as there is any question about the state’s willingness and ability to bring the suspect to justice.  Viewed in that light, Moreno-Ocampo’s statements are deeply problematic, because they suggest that the OTP is not playing an active role in monitoring Libya’s ability (willingness doesn’t seem to be a problem) to effectively prosecute Saif.  The problem for the motion is that the OPCD is not interested in ensuring that Libya effectively prosecutes Saif; it want to ensure that it prosecutes him fairly.  Yet that is not the OTP’s responsibility — as I have explained before, the absence of due process is not a grounds for admissibility.

In the end, then, the motion seems more like a political statement than a serious legal argument.  The OPCD has to know that the Pre-Trial Chamber is unlikely to kick short-timer Moreno-Ocampo off the case.  But that is not a criticism of the motion: the OPCD is well within its rights to remind the Court of Moreno-Ocampo’s well-documented tendency to make inflammatory and counterproductive statements about pending cases.  The best outcome, then, would probably be for the Pre-Trial Chamber to deny the motion but admonish Moreno-Ocampo to keep his mouth shut for the remainder of his tenure in office.