Global Policy Forum

Human Rights:


By David Pallister

August 18, 2008

A coalition of human rights lawyers, academics and leading non-governmental organisations (NGOs) has begun openly to criticise the competence and conduct of the prosecutor of the international criminal court, the Argentinian Luis Moreno-Ocampo. Their concerns follow his announcement last month that it is to seek an arrest warrant for genocide against the Sudanese president, and the collapse of the five-year-old court's first trial.

Supporters of the court fear that Moreno-Ocampo's style of management is damaging the court's credibility and its ability to prosecute those responsible for crimes against humanity. He has been accused of alienating senior staff and seriously misreading the situation in Sudan. One academic has called for the court to consider removing him. The concerns have been compounded by the way in which Moreno-Ocampo dismissed his media adviser, who made a complaint against him of sexual misconduct with a South African female journalist. That complaint, denied by Moreno-Ocampo and the woman involved, was dismissed by the court as "manifestly unfounded". But last month the adviser, Christian Palme, was awarded two years' salary as compensation for wrongful dismissal and €25,000 (£19,700) in moral damages by a tribunal of the International Labour Organisation. It found that the prosecutor had not followed due process and had "seriously infringed" Palme's rights. The NGOs which support the court are likely to call for a new oversight mechanism as a result.

Speaking to the Guardian, Moreno-Ocampo dismissed the criticisms of him as one-sided. "I believe in due process," he declared, and defended the way he had handled the two controversial cases. There have been muted rumblings within the human rights community about the prosecutor for a couple of years. He was unanimously elected to the job in 2003 by the 70-plus signatories to the Rome Treaty, which set up the court in the face of fierce opposition from the Bush administration. The prosecutor came to prominence at the height of the "dirty war" by the Argentinian junta against its opponents between 1976 and 1983. From being a clerk in the solicitor general's office, he was thrust into the spotlight at the age of 31 in 1984. A year after the military regime collapsed he became junior prosecutor in the historic trial of senior figures responsible for gross human rights abuses including the "disappearance" of 30,000 people. He was then appointed public prosecutor in Buenos Aires, where he was involved in the trial of the army officers responsible for the 1982 Falklands war and those who fomented military uprisings in the 1980s.

Moreno-Ocampo has been praised by some. Geoffrey Robertson, the British QC who sat as an appeal judge in the special court for Sierra Leone, calls him "a careful, respected lawyer with a fine record in prosecuting inhumane Argentinian generals." But a high turnover of experienced staff has been seen as a symptom of underlying problems. "We are concerned about the phenomena of burn-out among experienced investigators who have left the office since 2005," said Richard Dicker, director of Human Rights Watch's international justice programme. "There are simply not enough to handle the rigorous demands of these investigations and there is the perception that their efforts are not sufficiently valued."

But it is the events of the last month that have flushed out critics. First, there was a pre-trial judgment against Moreno-Ocampo, which ordered the release of the first war crimes suspect to appear before the court. The judges ruled that the Congolese warlord Thomas Lubanga could not have a fair trial because the prosecutor had wrongly used confidentiality agreements to withhold evidence that might have pointed to his innocence on charges of conscripting child soldiers. "I disagree with the judges," Moreno-Ocampo said. "I have a strong case. That is why I am appealing the judgment."

Then last month he announced he was seeking an arrest warrant for genocide and war crimes against the Sudanese president, Omar Hassan al-Bashir, for the five years of carnage and pillage in Darfur. It was a historic decision - the first against a serving head of state - and unusual because normally warrants are only announced once the court's pre-trial chamber has formally agreed. It was immediately denounced by the African Union and the Arab League and opposed by Sudan's ally China.

"I came out of the press conference in a state of shock," said Alex de Waal, the British academic formerly seconded to the African Union mediation team in Darfur. "He painted a picture no scholar would recognise. He was basically calling for regime change, making a political statement, which is surprising coming from the chief prosecutor of the ICC. "By presenting his case in such stark terms, 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." Antonio Cassese, chair of the UN international commission of inquiry on Darfur, which dismissed the charge of genocide, has described the decision as "puzzling". Mark Klamberg, a Swedish academic who has worked in the court, says it should consider removing the prosecutor. Moreno-Ocampo thinks he did the right thing. "I cannot choose the easy way," he said. "No one knows what my evidence is. Let the judges decide."

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