Groningen Journal of International Law

International Law Under Construction

How Ocampogate harms the International Criminal Court

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By Tjitske Lingsma |allrise@xs4all.nl

A series of revelations about the activities of former prosecutor Luis Moreno Ocampo of the International Criminal Court (ICC) cast doubts about his integrity. But the allegations also boomerang on the court.

The last two months have seen an avalanche of revelations about Luis Moreno Ocampo, the former prosecutor of the International Criminal Court. They are based on 40,000 documents obtained by the French journal Mediapart focusing on the prosecutor’s activities during and after his time in office.

In a statement on the website of his consultancy firm, Ocampo says that he has been the target of a ‘cyber-attack.’ This admission suggests that the information disclosed by the EIC network is correct.

Confidential information

Among others, the revelations cover his actions in his capacity as prosecutor. In one incident described by the EIC network, Ocampo, who loved to surround himself with celebrities and business people, contacted actress Angelina Jolie. The prosecutor had rejected the request of the Palestinian authorities to investigate crimes of Israeli occupation and asked Jolie for advice on how to communicate this news to ‘normal people.’ Ocampo added: ‘just in case, I am attaching the decision I will take. It is confidential.’ In other words, Ocampo shared confidential information with an outsider. He also disclosed details on strategy and reports on his conversations with the presidents of Rwanda and Democratic Republic of Congo to other VIPs.

Minimalistic view

The research by the EIC network has also led to a broader evaluation of Ocampo’s policy. Reacting to the revelations, Kenneth Roth, director of Human Rights Watch, said that ‘the most important criticism’ on Ocampo’s work, ‘is that he had a minimalistic view on criminal investigations.’ The former prosecutor did not apply the long-term evidence strategies necessary to build strong cases, Roth stated. The HRW director also pointed to the lack of timely witness protection, which contributed to the collapse of cases against Kenyan president Uhuru Kenyatta and vice-president William Ruto. Roth’s remarks resonate with the criticism of Ocampo’s approach expressed over the years by experts and judges: small investigative teams lacking professional quality; one-sided-prosecutions; the narrow focus of charges; and delegating investigative responsibilities to local intermediaries who allegedly pushed witnesses to make false statements against Congolese suspect Thomas Lubanga Dyilo.

Campaign against control

It is telling that Ocampo actively fought against the introduction of mechanisms that could have guided, controlled and punished him and his staff. The prosecutor refused to have a code of conduct for his office, states Morten Bergsmo, former OTP legal adviser, in ‘Historical Origins of International Criminal Law: Volume 5.’ In a footnote, without further explaining but setting off alarm bells, Bergsmo writes that he left the OTP ‘to preserve [his] integrity.’ Ocampo also opposed the establishment of the Independent Oversight Mechanism (IOM), which investigates allegations of misconduct by ICC staff and elected officials. The Assembly of State Parties (ASP) created the mechanism in 2009, but it was only after Ocampo’s departure that the IOM’s powers were adopted, becoming fully operational in 2017.

Libya

After Ocampo left, he continued to cross paths with the ICC. One of the EIC network scoops concerns his work for Hassan Tatanaki. In 2015, the Libyan businessman hired Ocampo for three years (for the eye-watering sum of $1 million a year and a daily allowance of $5000) to gather evidence of war crimes and to send the material to the ICC or Libyan authorities. However, Tatanaki proved to be highly controversial as he has close connections with Libyan warlord Khalifah Haftar, whose men were accused of being responsible for the death of civilians and the torturing of prisoners. While working for the Libyan businessman, Ocampo’s team received a secret message from the OTP’s advisor for international cooperation, who violated the rules as she warned them that Tatanaki was on the radar of her colleagues investigating crimes in Libya. Instead of distancing himself from his client, Ocampo initiated activities to protect Tatanaki against possible OTP investigations.

Standards

The public, rightly, expects a legal institution that prosecutes perpetrators and presents itself as a symbol of justice to apply the highest standards to its own practices. The picture that emerges, however, is that of the first ICC prosecutor behaving in a transgressive way leading to doubts about his integrity, ethics and professionalism, and who even might have acted unlawfully. This behaviour does not correspond with the definition of a ‘high moral character’, the prerequisite for a prosecutor as described in the Rome Statute.

The scandal boomerangs also back to the court and its wider community. There are questions about why the Assembly of State Parties (ASP) had elected Ocampo, whether the revelations are just the tip of the iceberg, what exactly happened at the OTP during his term, how it is possible that two of his staff possibly violated rules to help their former boss, and what imprint he left on the organisation, which was slow to implement the necessary control mechanisms.

Such questions create doubts about an institution, which is already in a difficult position. The ICC is operating in a complex political environment. It depends to a great extent on governments for matters ranging from getting a mandate and permission to investigate, to witness protection and its budget.

A considerable number of countries sought to undermine the institution. In 2002, the USA adopted the American Service-Members’ Protection Act, authorising the president to use all necessary measures, including military force, to liberate any American held by the ICC. African governments have been attacking the court for being ‘racist’ and ‘imperialistic’ as the ICC has so far only prosecuted Africans. Last year, the court experienced a crisis when three African countries announced their departure. In the end, South Africa and Gambia did not pull out, but Burundi’s withdrawal came into effect on 27 October 2017. Although the ICC judges decided at the last minute to allow the prosecutor to open investigations into crimes in Burundi, it is clear that its government will not cooperate.

While concrete results also contribute to reputation, the ICC can hardly be seen as very successful. So far the court has convicted four perpetrators for committing international crimes, while nine cases have failed. (Five persons have been found guilty of bribing witnesses.)

The Ocampo scandal therefore comes as another blow to an institution which is already facing many problems, further harming its reputation and making the quest for justice even more difficult.


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Tjitske Lingsma is a senior freelance journalist and award winning author based in The Netherlands specialising in matters of international justice. She brings years of experience, including overseas assignments. On 6 September 2017 the international edition & update of her book ‘All Rise! The high ambitions of the International Criminal Court and the harsh reality’ was published.

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