Moreno-Ocampo and the future of the ICC

The International Criminal Court started its work in 2002 with great fanfare and expectations. The hopes of its many supporters around the world (but concentrated particularly in rich western countries) was that this new court could bring a new day of “accountability” to the perpetrators of some of the most heinous mass crimes of our day.
Sadly, those hopes have not been realized. And not just because of the complete inability of the ICC to even start grappling with Pres. Bush’s perpetration of a monstrous Crime Against the Peace in 2003, and his administration’s perpetration of numerous serious war crimes subsequent to that big original crime.
But beyond that big lacuna, the way the ICC itself has gone about its business since 2002 has also been deeply, perhaps fatally, flawed… And one person who has certainly contributed to these mistakes has been the Chief Prosecutor, Argentina’s Luis Moreno-Ocampo.
Tragically, one of the main problems for this court that was meant to usher in this new era of “accountability” has been that the degree to which the court’s own major organs are– or even, can be– held accountable to the public they purport to serve is extremely limited; or, almost non-existent.

At least, in a national jurisdiction, the governance system of which any court is a part has a demonstrably strong degree of responsibility for the wellbeing of the community it serves. (As has been amply codified in the whole concept of a “Responsibility to Protect.”) And it is as part of that broader sense of responsibility that the governments or prosecutors who work in those systems devise their strategy of prosecutions. After all, in any national jurisdiction, a large proportion of all crimes that are committed are never prosecuted, for many different reasons. But one reason, most certainly, is that the responsible state authorities judge that it is “not in the national or community interest” to bring a prosecution. (Anti-sodomy laws in Virgina, anyone?) And then, such decisions can always be challenged– through the political system of the country concerned; and thus, the court system’s accountability to the wellbeing of the national community is ensured in a number of different and complementary ways. Preferably, of course, this would happen through the working of democratic mechanisms. But whether through democracy or not, the nation-state system does contain a significant degree of responsiveness– that is, accountability– to the public good.
Not coincidentally, within a national jurisdiction, prosecutions are brought in the name of the sovereign entity served. In the US, the citizenry is considered sovereign, so prosecutions are brought in the name of “The People vs. Al Capone”, or state level (in for example, Virginia), “The Commonwealth vs. Al Capone.” In the UK, prosecutions are brought in the name of the monarch, whether Rex or Regina. But he or she is certainly serving in that slot the function of “representing” all the British people.
In the ICC, by contrast, the only direct accountability of the court’s organs, including the office of the prosecutor, is to that unwieldy body, the Assembly of States Parties (ASP.) Not surprisingly, when prosecutions are brought, they are brought not in the name of that body, but in the name of the prosecutor himself.
This places a huge responsibility on the prosecutor. The ASP and supporters of the court everywhere are asked, in essence, simply to “trust” the prosecutor to do the right thing.
Which lays a heavy responsibility on the court’s first and, until now, only chief prosecutor. So what has Luis Moreno-Ocampo been doing?
He evidently decided early on that he wanted to issue some significant indictments as soon as possible. Surely this was from a genuine desire to use the court to end the commission of atrocities. But maybe it was also a matter of trying to justify the court’s large annual budget (including the salaries and pension plans for himself and his highly paid staff.) Maybe it was a matter of trying to “put the ICC on the map”… But human motivations being what they are, it was probably from a broad mix of such motivations.
So he jumped right in, and apparently early on made a determination that the actions that most “shocked the conscience of humanity” (as the Rome Statute describes the court’s purview) were actions being carried out by parties to various complex civil wars in sub-Saharan Africa.
Of course, people’s consciences can be “shocked” by any number of things. Personally, mine is deeply shocked by the actions of western leaders who impose completely unfair terms of trade on the citizens of sub-Saharan Africa and other deeply impoverished countries, destroying their livelihoods by subsidizing rich-country farmers, and imposing “structural adjustment” on them– and then turn round and harshly criticize these Africans for engaging in civil wars to fight over the few crumbs the international “system” has left for them. My conscience is shocked by grossly over-armed governments that despatch armies half way around the world to depose distant governments against whom they have nothing approaching a valid “casus belli” and then stay on to dismantle those other states’ entire internal administration.
And I, too, am a member of humanity…
But whether a person’s conscience is “shocked” or not is largely an esthetic question. When I hear reports of rapes, mutilations, mass killings, cannibalism, sexual enslavement, etc., as occurring within civil wars, I am somewhat “shocked.” But mainly, I’m deeply saddened at what has become of all those people who’ve been so deeply wounded by the atmosphere of violence, and what has happened to the communities that at one time nurtured all of them, ‘perpetrators’, ‘victims’, ‘victim/perpetrators’, and ‘perpetrator/victims’, all alike.
So. Moreno-Ocampo, sitting in The Hague, and his rush to prosecute. That’s the first thing. Number Two: the decision to focus on certain conflict-riven areas in sub-Saharan Africa. (A development that caused my friend Ramesh Thakur to use the term “judicial colonialism” to describe the court’s actions.)
So how on earth do you actually do a proper forensic investigation in a country that is (a) physically and culturally very distant from your own? and (b) still either at war or living in live fear of a relapse back into a recent state of war?
That’s one challenge he set out to deal with.
But there’s another set of questions that he didn’t even really consider at all to be within his purview, namely those concerning the effects this prosecution will have on the situation in the country being investigated.
That would be where the real accountability of the court to the people in whose community it is acting would come to bear. I note that in the case of the two “precursor” ad-hoc tribunals to the ICC, both of which were established by Security Council resolution rather than through a voluntary agreement amongst a number of governments, the founding SC resolutions did make significant mention of the hope/aspiration that the actions of the court in question (first ICTY then ICTR) would “contribute to peace and reconciliation” in the war-torn areas they covered.
But the ICC doesn’t have any geographic focus or any geographic responsibilities. Even more significantly, no mention is made in the Rome Treaty of peace or reconciliation, only of judgment, punishment, and an abstract version of “accountability.” The ICC does not see itself as having any special responsibility to the people of Uganda (including its conflict-riven north), or the people of DRC, or the people of Sudan (including Darfur). It sees its responsibility as being, in a quite undefined and unenforceable way, to “all of humanity.” In practice, this has led to most of its officials seeking to make careers doing cutting-edge work in pushing forward the jurisprudence of “international criminal law”, rather than feeling themselves accountable to the peoples of the war-zones whose lives and political futures their court can deeply affect.
Right.
I have written a lot about that problem earlier, with special reference to the situation in Uganda. (Portal, here.) No need to rehearse all those arguments and analyses here again.
But what I do want to discuss quickly are a few other things:

1. This question of how you carry out a criminal investigation in a country that’s distant and still reeling from ongoing or recent war;
2. How, in those circumstances, you can conduct investigations into sex crimes that are both respectful to the survivors of those crimes and have value in a western-style courtroom;
3. The immense and continuing responsibility of the prosecutor to have exemplary character, including in those areas of human life of material interest to the court; and
4. The responsibility Moreno-Ocampo has to be “like Caesar’s wife” regarding his relations with women.

Regarding the first two of these questions, the Institute for War and Peace Reporting published a fascinating and well-researched investigation by Katy Glassborow, back in mid-October.
She wrote:

Former court employees and rights groups say a flawed approach to investigating sexual violence crimes at the International Criminal Court, ICC, has meant many atrocities are going unpunished.
Ex-ICC investigators told IWPR that not enough analysis and effective planning has been done ahead of investigative missions to uncover human rights abuses in Uganda, the Democratic Republic of Congo, DRC, and Sudan.
Gender justice groups say this approach means the most appropriate charges are not always brought against suspected perpetrators of war crimes. They also argue that too few sexual violence charges – which are often complex and difficult to prove – are being issued…
[B]ecause there is great pressure on the ICC to intervene in countries embroiled in, or emerging from, conflict, investigators say they are being sent in to investigate before an adequate analysis of this information is complete.
Because they arrive in the country already focused on gathering evidence of a particular set of crimes, committed in specific locations and on specific dates, they say this means other atrocities are often overlooked.
… A major problem cited by former ICC investigators is that they were sent to countries to gather evidence without sufficient time to review information already gathered from other sources operating on the ground.
As a young institution, the ICC is under enormous pressure to prove itself and bring justice to countries which cannot or will not prosecute grave war crimes domestically.
As a result, former investigators say that prosecutors have pushed them into situations before they have thoroughly collected and analysed existing information.
“We didn’t have sufficient time to do the preliminary collection of information,” said Martin Witteveen, who worked as an ICC investigator in Uganda, the first country to be investigated by the fledgling court.
“The prosecutor wanted indictments issued within a year, but the success of investigations depends on the first phases of information collection and analysis.”

She also wrote this:

Former investigators agree that sexual violence crimes are extremely difficult to prove because victims are often reluctant to testify.

Crimes of sexual coercion certainly are hard to prosecute successfully, even within most national jurisdictions, because of the shame factor and the reluctance of rape survivors to testify. And they’re usually much harder to “prove” successfully in an international court– though I think procedures have gotten somewhat better in international courts since the time in the late 1990s when some judges at the ICTR openly joined the accused in laughing at the confusion of one rape-survivor witness in the case being tried there.
But Moreno-Ocampo’s difficulties at the ICC have not all stemmed from the tough external circumstances in which he has operated. He has also made some serious mistakes of his own, in both his professional and his personal life. They have been well chronicled by Joshua Rozenberg of The Daily Telegraph, in a series of four articles that ran between July and mid-September (1, 2, 3, 4.)
In the first and fourth of those articles, Rozenberg chronicles the extremely serious mistakes Moreno-Ocampo made in his conduct of the case against one-time DRC rebel leader Thomas Lubanga. The big mistake was that he failed to turn over to Lubanga’s defense attorneys more than 200 items of evidence that were potentially exculpatory for Lubanga.
In July, Rozenberg wrote about what had happened back in June:

Lubanga was due to be tried by a court of three judges, headed by [Britain’s] Sir Adrian Fulford. Mr Justice Fulford, as he is styled when sitting at the Old Bailey, is far and away the most experienced trial judge at the International Criminal Court.
But, just days before the start of the trial, he and his fellow judges announced that the trial would be “stayed”.
As I reported briefly at the time , this was because evidence that could have exculpated Lubanga had not been disclosed by the prosecutor— either to the court or to the defence.
…The court found that Mr Moreno-Ocampo had incorrectly relied on a provision in article 54 of the statute, under which he may agree not to disclose confidential information obtained “solely for the purpose of generating new evidence”.
His approach, according to the court, “constitutes a wholesale and serious abuse” of an exception that allows prosecutors to receive evidence which is not, in itself, admissible — but which could to lead, in turn, to usable evidence.
No prosecutor who knew anything about miscarriages of justice such as the cases of Birmingham Six or the Guildford Four could have been any doubt about how an English judge would respond to a prosecutor who had withheld “a significant body of exculpatory evidence” from a defendant for the best part of a year.
“The trial process has been ruptured to such a degree that it is now impossible to piece together the constituent elements of a fair trial,” Judge Fulford’s court ruled on June 13.

Negotiations ensued between Moreno-Ocampo and Fulford. At a follow-up court session in September, however, Fulford’s bench ruled that there was still, “no assurance that the prosecution will be able to afford adequate disclosure of all the exculpatory materials in the event that the chamber concludes that documents should be provided to the defence.”
Rozenberg, who had previously noted Moreno-Ocampo’s unfamiliarity with the procedures of the “adversarial” kind of court the ICC was designed as, concluded that M-O had already made two serious errors of judgment by that time. And this:

The third misjudgment would be for Mr Moreno-Ocampo to ignore the trial chamber and pin his hopes on winning the appeal. If the five members of the appeals chamber overrule their most experienced trial judge, the International Criminal Court will lose all credibility. The judges must surely understand what is meant by a fair trial, even if that concept is beyond the prosecutor’s grasp.

In Rozenberg’s third article, he raised some very serious criticisms of Moreno-Ocampo’s July 14 decision to bring an indictment– including on charges of genocide–against Sudan’s President Omar al-Bashir, and to do so very publicly indeed.
He includes this reaction, from the veteran analyst of African affairs Alex de waal, who was also co-author with Julie Flint of the recent book Darfur: a new history of a long war, to the press conference at which M-O announced the indictment against Bashir and his intention to seek an international arrest warrant against him:

“I left the press conference stunned,” said Alex de Waal…
“For 19 years, President Bashir has sat on top of a government that has been responsible for incalculable crimes. Hundreds of thousands of Sudanese citizens have died in violence, or been starved or rendered homeless, or have been tortured or otherwise punished. The head of state must bear much responsibility for these countless crimes committed by those who profess their loyalty to him.
“Two weeks ago, Moreno-Ocampo succeeded in accusing Bashir of the crime for which he is not guilty. That is a remarkable feat.”
Dr de Waal, who has studied human-rights issues in Sudan for 20 years, does not recognise the prosecutor’s picture of a president in absolute control, dedicated to destroying entire ethnic groups in Darfur. He believes Mr Moreno-Ocampo’s “political misjudgments” have made life easier for Bashir and harder for the court.
“By presenting his case in such stark terms,” Dr de Waal says, “the prosecutor has made it easy for his critics to dismiss him as ill-informed and driven by a desire for publicity, and has made it harder for the advocates of justice in Darfur to pursue the challenge of calling to account those responsible for crimes no less heinous than genocide.”

Rozenberg’s second article, published in July, concerned Moreno-Ocampo’s personal behavior, in the case of an un-named female South African journalist who made– and subsequently withdrew– an accusation that Moreno-Ocampo had coerced her into having sex with him while he was on an official mission to her country.
(Oh yes, let’s remember that it is frequently hard to persuade rape survivors to testify against their assailants.)
Soon after the alleged incident, the journalist made a distressed phone call to a member of M-O’s press office saying that M-O had taken her car keys and she had consented to have sex with him in order to get them back. The officer made an audio tape of the call, and shared it with her or his boss, the prosecutor’s spokesman Christian Palme, who then submitted an internal complaint to the court’s administration alleging that M-O had engaged in “improper conduct.”
The South African woman then withdrew her allegation. But three months later M-O summarily fired Palme. Palme appealed his firing before an intra-UN administrative court run by the International Labor Organization in Geneva, which found that he had been improperly fired and ruled that the ASP should pay him damages of 200,000 Euros.
So: do we see here a man of the degree of personal and professional judgment required to occupy this position at the ICC? I tend to agree with Joshua Rozenberg that we do not.
The real problem of accountability at, and of, the ICC is, as I noted above, very much deeper than just one flawed prosecutor. I do now tend to think that establishing the court in the way it was established– that is, in the complete absence of any accountable international legislative body to which the court itself could be accountable– was probably a mistake… One of those many excellent intentions with which the road to an uncertain hell is paved. But the poor judgment exercised by Moreno-Ocampo seems to have made matters at the court much worse than they need have been.
By the way, you can find links to the articles references above and to a number of fascinating other articles– including this one by Alex de Waal on “celebrity humanitarianism” over Darfur,– at a new web portal called Article 42-3.org – Facts about Morenogate