The Appeals Chamber Says Goodbye to Moreno-Ocampo…

In early May I discussed the OPCD’s motion to disqualify Moreno-Ocampo for making a number of inflammatory statements to the press concerning Saif Gaddafi’s guilt.  On June 12, just four days before the end of Moreno-Ocampo’s tenure as prosecutor, the Appeals Chamber rejected the motion — but not without emphasizing that he had, in fact, acted unethically.  The decision focused on an interview that Moreno-Ocampo gave to Vanity Fair, in which he made, inter alia, the following statements:

“We have information that before February 15, Qaddafi met regularly with al- Senussi and Saif to plan the operation.”

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“Saif’s name first appeared because he was involved in the recruitment of soldiers from outside, particularly from Chad, because they distrusted the Libyan army.”

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“Saif was personally hiring people, he was financing the operations. . . . and then al-Senussi went to Benghazi, and Senussi was in charge of the killing and the shooting.”

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“Of course he cannot call Senussi to stop […] He was in the planning with al- Senussi.” Moreno-Ocampo believes the logistics were in place well before the Benghazi demonstrations erupted.

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What [the Prosecutor] did know, and what he did care about, is that “[Mr Gaddafi] is involved in the operation to kill the civilians on the streets … that he was deliberately and with knowledge organizing the system”.

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[With reference to Mr Gaddafi’s apparent statement that there was a “confrontation” between demonstrators and government forces:] “He’s lying,” said Moreno-Ocampo. “In some places there were confrontations. In Benghazi it was just shooting,” with al-Senussi ordering heavy weapons to be targeted on a funeral procession. “There was no battle. It was people going to a funeral. That’s a crime against humanity.” Moreno-Ocampo cited other episodes: of killings in supermarkets, of snipers shooting worshippers as they left their mosques.

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“We know the meeting and we know the acceptance, discussing the planning operations, and we have information about Saif heading the transport of the soldiers coming from Chad.” There were documents “confirming his involvement, confirming his leadership role.” There was evidence that “when Saif talks and threatens, things happen after.”

[…]

There was no ambiguity. Did Moreno-Ocampo buy the notion that Saif was at a personal crossroads, that the speech could have gone a different way? “No, that is not what my evidence is saying. The information shows that he was involved well before that, that he was involved from the beginning, in the planning before the 15th of February”.

Here is what the Appeals Chamber said about the statements:

31.    The Appeals Chamber finds that, with respect to the Vanity Fair interview, the content of which has been summarised above, the Prosecutor did not exercise sufficient caution, either in the marmer in which the interview was conducted or in the content of his statements. The Prosecutor discussed the case in depth and specific evidence against Mr Gaddafi. For nearly three hours, the Prosecutor and Mr Sands reviewed and analysed a 38 minute speech of Mr Gaddafi, with the Prosecutor frequently commenting on the veracity of Mr Gaddafi’s statements or on the evidence against him. The Appeals Chamber considers that this detailed discussion of evidence was inappropriate in the context of a media interview. The in-depth discussion of evidence should generally be left to the courtroom. In relation to the content of the Prosecutor’s statements, the Appeals Chamber notes that, on several occasions, the Prosecutor stated, as fact, material elements of the allegations against Mr Gaddafi or Mr Al-Senussi, saying, for example, “There was no battle. It was people going to a funeral. That’s a crime against humanity”. Prosecutor passed judgment on the credibility of Mr Gaddafi’s statements, stating, point blank, “He’s lying”. The Appeals Chamber finds that the Prosecutor’s statements on these sub judice matters were inappropriate in that they gave the impression that factual issues yet to be determined by the judges had been determined or could not be contested.

32.  The Appeals Chamber is also concerned with the way in which the Prosecutor’s statements and the interview are recounted in the Vanity Fair interview. There is no indication that the Prosecutor clarified that the case was at an early stage or that it would be up to the Pre-Trial Chamber to decide whether to confirm charges and, if charges were confirmed, for the Trial Chamber to decide on Mr Gaddafi’s criminal responsibility. To the contrary, the Vanity Fair interview says that it is the  Prosecutor “who may decide [Mr Gaddafi’s] fate”.  While the Prosecutor did not publish the Vanity Fair interview himself, the Appeals Chamber considers that it appears that the Prosecutor failed to exercise due caution in how his interview was reported.

33. For the aforementioned reasons, the Appeals Chamber finds that the Prosecutor’s behaviour was clearly inappropriate in light of the presumption of innocence. Such behaviour not only reflects poorly on the Prosecutor but also, given that the Prosecutor is an elected official of the Court and that his statements are often imputed to the Court as whole, may lead observers to question the integrity of the Court as a whole.

Strong words for a prosecutor just days away from retirement.  But wholly deserved — there was no justification for Moreno-Ocampo’s reckless statements.  I get the feeling that the Appeals Chamber isn’t going to miss the ICC’s first Prosecutor…