The Prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo has earlier this week applied for an arrest warrant against the President of Sudan Omar al-Bashir for genocide, crimes against humanity and war crimes. Even though the application of the Prosecutor is to be welcomed, there has appeared doubts during the last days concerning the credibility of Moreno-Ocampo and thus also the Court.
We must first agree that the establishment of the ICC is the most important and encouraging event in international law since the establishment of the UN in 1945. Therefore it is important that the Court's credibility is safeguarded by its friends. It is with great sorrow I can observe that the Prosecutor is not meeting up to the expectations. Three issues that appear to be independent question the appropriateness of Luis Moreno-Ocampo to his function.
The ICC has never issued an arrest warrant against a President in office, even less for the most serious international crime, genocide. The Prosecutor's application for an arrest warrant is very controversial and may have a significant impact on the peace negotiations concerning Darfur. It is encouraging that political leaders no longer are protected by immunities. A trial concerning al-Bashir's responsibility for the situation in Darfur is beneficial.
I have on other occasions voiced the opinion that the situation in Darfur amounts to genocide, ultimately under the control of al-Bashir. However, the time and mode of Prosecutor's application for an arrest warrant is strange. The application has become public before it has been reviewed by the Court's pre-trial chamber, in contrast to the normal procedure. Furthermore, it appears that the coordination between the Prosecutor and the UN who has personnel on the ground in Darfur is non-existing, which creates genuine problems concerning the security of UN personnel and aid to the civilian population.
Early July this year, the ICC Trial Chamber decided to release Thomas Lubanga Dyilo, a Congolese party/militia leader allegedly responsible for the war crime of enlisting children. He is the first to be charged before the Court and his trial was supposed to start in June. The reasons for the decision of the trial chamber was that the Prosecutor denied disclosure of evidence originating from the UN vis-à-vis the defence at the same time as he intends to use thereto associated evidence against the accused. The Trial Chamber made an accurate ruling that a fair trial is impossible under such circumstances. The same problem may also appear in the Court's second case against Katanga and Chui. The decision to release Lubanga is under appeal, the Prosecutor has succumbed to the pressure and through media declared that the evidence will be disclosed.
Even more serious is the Prosecutor's lack of proper leadership and conduct. On the 9th July 2008 a judgement was delivered by the labour court of the UN and international organisations (ILOAT) where the Prosecutor lost a case against his former public information adviser Christian Palme, ex-journalist at Dagens Nyheter. The background to the dispute at ILOAT is very serious for the Prosecutor and thus also for the ICC. In accordance with rules concerning complaints, Christian Palme filed to the presidency of the ICC a confidential complaint and evidence against the Prosecutor concerning rape or in alternative other sexual crimes.
As a result the Prosecutor summarily dismissed Christian Palme. The disciplinary advisory board of the Court determined that the dismissal was incorrect due to the bias of the Prosecutor. The Prosecutor ignored this finding and maintained his decision. It is important to stress that the guilt or innocence of the Prosecutor has not yet been settled, but an official at such position should avoid coming even close to such allegations. The ILOAT established that the evidence submitted by Christian Palme could be probative in a criminal proceeding, that there was reasonable grounds for his complaint and that the Prosecutor was biased when he dismissed Christian Palme. Accordingly, the ILOAT set the decision of dismissal aside and awarded Christian Palme approximately 180 000 Euro in damages. There is no appeal against the decision. In other words, it is a full rehabilitation for Christian Palme and a massive indication of lack of confidence towards the Prosecutor.
Even more serious is that the Prosecutor's actions damage the credibility of the entire Court. Is it a coincidence that the world top news item on the Prosecutor's application for an arrest warrant against the Sudanese President appeared only a few days after the ILOAT judgment? Is there a connection between the fact that senior and experienced employees used to think for themselves have left the Prosecutor's office and the unfortunate administration of the Court's first case? According to the ICC Statute the Prosecutor may be removed if it is found that he has committed serious misconduct or a serious breach of his duties. It is time consider this option in order to save the credibility of the Court.