Mr Moreno Ocampo is the Chief Prosecutor of The International Criminal Court.However a candid report from Kenya Law monthly revealed that Ocampo is more of a rolling stone that gathers no moss than a Robin Hood .Is it ?
Well I pray it is not going to be overwhelming .Many thought Moreno Ocampo was only dealing with the Kenyan case but it seems he is such a busy man .
He is in Libya , Ivory Coast, Sudan …. dealing with International crimes
Does this mean he may not give due attention to the Kenyan case ?
It is prudent for the ICC to break the One Man /Morachical system that there is one Sherlock Holmes for the whole world .Of course he works with a team of prosecutors.
The position of Prosecutor should consist of a group of people whose aim is to inevstigate and proescute those accused of international crimes.
Yet the One Man in Chief could be the better option.Maybe the monarchical system helps in reducing bribery claims .If so , then Ocampo should serve on a performance contract and that is what the article below sheds light on: Ocampo’s performance.
Below is the article and how response on the issue which we wrote some time this year.It is from our sister website, LexRexLegReg (Law is King) where we comment on Law and Justice and Politics.
MORENO OCAMPO —- IS HE A ROLLING STONE THAT GATHERS NO MOSS ?
Louis Moreno Ocampo is at it again . He is now set to target Gaddafi for war crimes.However an interesting article put out in Nairobi Law monthly politely yet candidly questions Ocampo’s competency .
The authors paint Ocampo kind of an unsuccessful prosecutor .Is it on purpose that he fails to have successful prosecution proceedings for the benefit of the rich elite who support and order the suspects or better still use the suspects as scapegoats ?
What ever the case , the people of Africa do not want Hollywood , they want justice .And this yearning of justice is not based on the fact that they as Africans cannot manage their own affairs but that they do not trust their institutions.
If Ocampo’s failure is due to his own inompetence the ICC should insitutue perfomance contracts for the rposecutiors.
But if it is due to the rich man ‘s lawyers always win , then he is doomed and we are doomed.
Ocampo:The good, the bad and the ugly Published 30/04/2011
A portrait of the complex man the world has given the job of tackling impunity
By Eric Kimani and Mike Owuor
In an article in the London Review of Books written before he took up Kenya’s admissibility challenge at the International Criminal Court (ICC), British lawyer Geoffrey Nice offered an unflattering assessment of the international court system.
“All court systems that function well do so because they are well supervised: by governments, parliaments and, most important, by a vigorous press. The international courts established by the UN, and the permanent International Criminal Court set up in 2002, are effectively free from these controls. The UN is not a governmental institution willing to analyse critically the work of its courts,” wrote Sir Geoffrey.
“Within the UN, criticism is unwelcome. The General Assembly is not a Parliament where a member may publicise a particular judicial failing. As for the media, international criminal courts are mainly of interest in the country where the alleged crimes were committed and where the perpetrators and victims lived… There is a real need for critical, even skeptical journalists to oversee war crimes trials.”
Sir Geoffrey could hardly have been more correct on the dearth of press interrogation of the ICC. The Kenyan case is illustrative. Although the ICC has been involved in the country for the last three years, there has hardly been any exhaustive coverage of the institution, its processes, its past and the central figures involved in the Kenya case.
Of all the players in this saga, few have been more prominent than Mr Luis Moreno-Ocampo, the 58-year-old Argentine that became, in 2003, the first ever chief prosecutor of the ICC.
The characterisation in the media has been of Mr Moreno-Ocampo as the indefatigable jurist that “will slay the monster of impunity” in the country. Mr Moreno-Ocampo’s image beams down from the back of matatus, his name is uttered with awe in restaurants up and down the country and the media cast him as an unstoppable force that will help tackle the impunity of the political class.
Some elements of that depiction are correct. Mr Moreno-Ocampo had a glittering career as a prosecutor in Argentina before taking up the ICC job. His convictions rate was reasonably high. His personal integrity had never come in doubt. His fame was such that Latin American stars in distress, including colourful football legend Diego Maradona, turned to him for legal representation when they were in trouble.
But Mr Moreno-Ocampo is a slightly more complicated figure than the characterisation created so far. He is as imperious as he is impressive. His legal record before taking up the ICC job was impressive. But his time at the ICC has drawn considerable criticism, not least from the judges of the chamber with whom he has a highly charged and testy relationship. Most importantly, he has yet to secure a conviction after eight years in the job.
First the positives. Mr Moreno-Ocampo rose to prominence in 1985 as Assistant Prosecutor in the ‘Trial of the Juntas’ with Chief Prosecutor Julio César Strassera. This trial was the first time since the Nuremberg Trials that senior military commanders were prosecuted for mass killings.
The prosecution team did fairly well. Nine senior commanders, including three former heads of State, were prosecuted and five of them were convicted. He served as District Attorney for the Federal Circuit of the City of Buenos Aires from 1987 to 1992, during which time he prosecuted the military commanders responsible for the Falklands War, the leaders of two military rebellions, and dozens of high-profile corruption cases. The prosecutions earned him many enemies, including his own mother with whom he would not be talking terms for some time. One of the suspects, as it were, was his uncle.
He also successfully argued for the agreement of United States prosecutors to extradite General Guillermo Suárez Mason to Argentina.
According to Mr Moreno-Ocampo’s biography on the ICC website, he was born in Buenos Aires in 1952 and graduated from the University of Buenos Aires Law School in 1978. From 1980 to 1984 he worked as a law clerk in the office of the Solicitor-General in Argentina.
He was a prosecutor from 1984 until 1992 when he resigned and established a private law firm, Moreno-Ocampo & Wortman Jofre. He defended many controversial figures, including Mr Maradona, former Economics minister Domingo Cavallo, and a priest accused of sexually abusing minors. He represented the victims in extradition proceedings against Nazi war criminal Erich Priebke, and also in the trial of the murderer of Chilean General Carlos Prats.
During this time, he was also an associate professor of criminal law at the University of Buenos Aires and a visiting professor at Stanford University and Harvard Law School. Apart from his roles in academia, he has acted as a consultant to the World Bank, the Inter-American Development Bank and the United Nations. He is a former member of the advisory board of Transparency International and a former president of its Latin America and Caribbean office.
Mr Moreno-Ocampo was unanimously elected chief prosecutor of the ICC in June 2003. His tenure since has been a difficult one indeed.
The prosecutor has come in for praise from human rights advocates for his relentless pursuit of the prosecution of senior Sudanese figures over the atrocities in Darfur. Time magazine called him ‘the Don Quixote of Sudan’ after the character in the novel by Spanish author Miguel de Cervantes whose main character spent many years pursuing heroic adventures.
A movie was even made about his pursuit of the suspects, and movie stars, including Mr Brad Pitt and Ms Angelina Jolie, attended the launch of Darfur Now.
While Mr Moreno-Ocampo’s zeal in pursuing justice is laudable, the way the actual trials were conducted was little short of disastrous.
Take the case of Mr Bahr Abu Garda, formerly of the Justice and Equality Movement (JEM) in Sudan. The prosecutor accused him of masterminding the attack that killed 12 African Union peacekeepers in Haskanita in 2007.
When the case went to the Pre-Trial Chamber II – a similar stage to where the Kenya cases are at the ICC – the judges issued a scathing verdict, which faulted the prosecution for bringing a case with insufficient evidence.
One of the judges hearing the case, Justice Cuno Tarfusser, who is also on the Bench dealing with the Kenya matter, took the unusual step of filing a separate opinion criticising the prosecutor for bringing a case which he felt should never have come before the court.
“‘The lacunae and shortcomings exposed by the mere factual assessment of the evidence are so basic and fundamental that the Chamber need not conduct a detailed analysis of the legal issues pertaining to the merits of the case,” Justice Tarfusser said. “It is a pre-trial judge’s duty to decline to confirm the charges and to refrain from conducting a detailed legal analysis of the facts… There is no point in wasting precious judicial resources in making determinations which, however impeccable and sophisticated from a theoretical and legal standpoint, serve no purpose in properly adjudicating the case at hand.”
This is a summary of the main findings of the judges:
“The Chamber finds that the evidence tendered by the Prosecution in support of its allegations is so scant and unreliable that the Chamber is unable to be satisfied that there are substantial grounds to believe that Mr Abu Garda participated in any meeting in which a common plan to attack the MGS (Military Group Site) Haskanita was agreed upon.
“Despite the reference to the alleged orders issued by Mr Abu Garda to the ‘combined forces’… the Prosecution links Mr Abu Garda’s contribution to one JEM splinter group and not to any ‘combined’ rebel forces.
“Other evidence tendered by the Prosecution in support of the allegation that Mr Abu Garda exercised effective control over an organised armed group prior to and at the time of the attack on Haskanita includes a July 2007 statement of the ‘Interim-Military Council’. Whilst this document might indeed serve as evidence of a split in JEM as early as July 2007, the Chamber notes that Mr Abu Garda’s name does not appear among the 72 individuals who signed the document. Therefore, the document is of little relevance to the present issue.
“It is unclear whether or not the Prosecution is claiming that Mr Abu Garda directly participated in the attack on the MGS Haskanita… At the confirmation hearing, the Prosecution continued to claim both that Mr Abu Garda directly participated in the attack and that he did not.
“The Chamber is not satisfied that there are substantial grounds to believe that, at the time of the attack on the MGS Haskanita, Mr Abu Garda exercised control over at least one of the organised rebel groups which are alleged to have carried out the attack.
“The Chamber is not satisfied that there are substantial grounds to believe that Mr Abu Garda can be held criminally responsible as either a direct or indirect co-perpetrator for the commission of the crime.”’
In an article filed after the ruling, the veteran journalist and filmmaker Julie Flint said the withering judgment should have been followed by changes in the prosecution team.
“It is an astonishing tale of incoherence, inconsistency and poor legal practice, surely unprecedented in a court of this stature, that raises two fundamental questions: Should (Mr) Moreno-Ocampo, whose shortcomings (are manifest), continue to lead the Office of The Prosecutor, already so damaged by his tenure? And how did (Mr) Abu Garda ever get into the frame, since the witnesses produced by the prosecution, in the opinion of the ICC judges, failed to substantiate any of the accusations levelled against him?”
Mr Moreno-Ocampo would probably not have the stain of being accused of not managing a trial to its conclusion in his entire tenure at the ICC if the prosecution of Congolese militia leader, Mr Thomas Lubanga, had been handled better.
Mr Lubanga faced accusations of committing war crimes by conscripting children. The trial was twice stopped by judges who ordered Mr Lubanga’s release because, they said, the prosecution erred in dealing with evidence and refused to carry out their ‘unequivocal orders’, making a fair trial impossible.
Both times, appeals judges ordered the trial resumed and errors redressed. But tensions over a range of issues between the prosecution and the judges continued.
Last year, deep into the trial, the defence produced new evidence that may have undermined the entire case, by raising questions about the methods of the prosecuting team in assembling witnesses.
According to a November 2010 article in the New York Times, the manner in which the trial was handled exasperated even staunch supporters of the ICC.
“The whole trial has been a nightmare since the disputes between judges and the prosecutor began in 2008,” Mr William A Schabas, who teaches human rights law at the National University of Ireland, Galway, and follows the court told the New York Times. Relations between the Bench and the prosecution have become “ugly and unhealthy”, he said. “There appears almost a breakdown between the two sides.”
Lorraine Smith, a lawyer monitoring the trial for the International Bar Association (IBA), said: “It’s still not clear to me if this is a strong case, if all this time and effort was worthwhile. The substance of the case got lost in the procedural tangle; even the record is not clear because transcripts are missing or blacked out.”
Other critics said that the prosecution had erred by not bringing rape as one of the crimes Mr Lubanga faced.
“Congo has among the highest sexual violence in the world — it’s unfathomable that they brought no such charges,” said Ms Bridgid Inder of the Women’s Initiatives for Gender Justice, one of the rights groups following the trial, according to the New York Times. She said that from the start, her group had brought cases of rape in military camps and villages to the attention of the investigators but that it was ignored.
“This was the chance to address the constant raping of the girl soldiers,” she said. The panel of three international judges heard regularly about rape from witnesses for both the defence and the prosecution. But defence lawyers stopped further questioning about it, saying it was not part of the charges against Mr Lubanga.
Ms Fatou Bensouda, the court’s deputy prosecutor, told the New York Times that the trial intended to focus on child conscription as a whole, because it was a serious problem in many places. Mr Lubanga was charged with child conscription, she said, “because that is where we had the best evidence at the time”.
Lawyers in The Hague, however, said they are puzzled that the first trial, dealing with a single issue, has taken so long. They pointed to more than a decade of experience in international tribunals dealing with Rwanda, Sierra Leone and the former Yugoslavia.
“Instead of learning from their mistakes or adopting their best practices, this court has tried to reinvent the wheel,” said Ms Smith of the IBA.
The process of evidence collection and its disclosure to the defence was the prosecution’s weakest point. According to the judges, the investigators for the prosecution collected evidence from United Nations staff members and rights groups in Congo and gave assurances that they would not disclose the identities of the sources. While the prosecution tried to insert much of that anonymous evidence in its case, the rules dictate that such material can be used only if its sources are disclosed to the judges and the defence.
“Those investigators have now left, but we’ve spent three years undoing the damage and getting permission from sources,” said one prosecution official.
Another problem arose because investigators had worked with outside intermediaries in Congo, who served as local contacts and introduced possible witnesses. Prosecutors said such people were indispensable in a place where they had no office and were not familiar with the territory and the culture. But judges were furious when prosecutors refused orders to provide the names of some intermediaries because they had to be moved first to a safer place.
This fiasco earned the chief prosecutor many critics. Writing in The Guardian, the legal analyst, Mr Joshua Rozenberg, said: “After more than seven years as prosecutor at the International Criminal Court – with no convictions, or even completed trials – (Mr) Luis Moreno-Ocampo still does not understand that it is the job of a prosecutor to bring charges, and the job of a court to decide whether or not the defendant is guilty.”
Mr Rozenberg adds: “There is a chance that the prosecutor, (Mr) Luis Moreno-Ocampo, will have concluded just one trial during his nine-year term of office, which ends in June 2012.” (See separate story.)
Of course, the blame for these fiascos cannot solely be laid at the door of Mr Moreno-Ocampo. Some of the problems with the ICC and other international tribunals are institutional. The tribunal on Rwanda, for example, has degenerated into a farce due to the long time it takes to secure convictions and its repeated demands for extensions of its mandate.
These institutional problems, including battles with some of the prominent financiers of the court, are summarised in a review by Sir Geoffrey of journalist Judith Armatta’s book, Twilight of Impunity: The War Crimes Trial of Slobodan Milosevic.
Sir Geoffrey, who was the lead prosecutor in the trial, recalls particularly having a problem with a key American witness.
“The evidence of General Wesley Clark presented peculiar difficulties. He gave evidence under the auspices of the US government as a result of arrangements made years earlier with the Prosecutor’s Office (OTP). Although he had written a book that discussed nearly everything we wanted him to give evidence about, he was unable to give it without American consent, or so it was argued.
“His evidence was initially taken in private and not released to the public until it had been ‘crawled over’ in Washington for passages that were to be excluded on security grounds. Every other witness who was concerned about security relied on the 30-minute delay between the evidence being given in court and its transmission by video, which allowed their lawyers to have anything sensitive redacted.”
The unique ‘privilege’ Gen Clark enjoyed, argues Sir Geoffrey, showed the power certain governments held over the court.
Sir Geoffrey also points to the high-stakes international politics that sometimes intrudes into a prosecutor’s life.
Close to the end of the prosecution of the case, he says, he was instructed together with another British lawyer to keep from Mr Milosevic information to which he was absolutely entitled.
“We were completely compromised in a way that makes clear the advantages to legal systems of the independent advocate – such as we have in the UK – and the vulnerability to corruption of the institutional prosecution lawyer. Although our duty of disclosure was clear, we also had to obey line management instructions from Chief Prosecutor Carla del Ponte, who said that if we were not prepared to keep silent ‘there are plenty of lawyers who would do as they were told’,” Sir Geoffrey says, adding that at some stage he decided to seek the advice of professional colleagues on how to proceed.
“I turned to the senior UK government lawyer for these purposes, the FCO ‘legal adviser’, and got him on the phone in Tanzania. Could he require the court he had in part created to follow the rule of law? ‘You’re on your own,’ he said. The Bar Council of England and Wales was more constructive. Its Professional Conduct Committee – there is nothing comparable in the UN system – told me that I must leave the case immediately if things could not be put right, something I already knew.
“At a meeting between other senior lawyers and (Prosecutor) del Ponte, there was nervous support for my view. But when I walked out of the meeting, none of the others followed me. I then circulated to all the relevant judges at the ICTY a memorandum that set out my position: this broke the log-jam. A filing was made that allowed a token amount of disclosure to (Mr) Milosevic and left us looking faintly respectable as we abandoned the rest of the prosecution witnesses and ‘closed our case’, before revealing in public the information we had now provided to Milosevic. Experiences like this cast doubt on the UN’s suitability to conduct criminal trials of individuals.”
This summary of events shows that Mr Moreno-Ocampo cannot alone be blamed for the problems the court has faced in convicting international war crimes suspects. But the criticism of the prosecutor also shows that he is far from perfect. When he was appointed, Richard Dicker of Human Rights Watch said: “We expect him to become a champion for justice.”
In many ways, Mr Moreno-Ocampo has tried. He has relentlessly pursued those he suspects of causing untold suffering to many millions in Africa’s many conflicts.
But his record as a prosecutor has been less than impressive. His office’s penchant for publicity and his reluctance to abandon the love of the cameras he displayed as the star of a reality television programme, Fórum, la corte del pueblo, in which he arbitrated private disputes, has not stood him in good stead with the judges, who have repeatedly criticised such behaviour.
One of his members of staff, Ms Le Fraper du Hellen even lost her job after giving an interview to a website devoted to the trial of Mr Lubanga in which she described her boss as “a very accurate and fair prosecutor” and said of the defendant: “Mr Lubanga is going away for a long time.”
That was viewed as sub judice. All these shortcomings aside, Mr Moreno-Ocampo knows he will be judged on the success of the new cases he has taken up, including the Kenya one and on how the other trials are concluded.
Interesting times lie ahead in the next few months. But then, the one thing Mr Moreno-Ocampo’s tenure cannot be faulted for is a lack of drama.