Is the Prosecutor of the ICC Forced to Play Dr. Jekyll and Mr. Hyde?

No, I am not talking about Prosecutor Luis Moreno-Ocampo in person, but of the Prosecutor of the ICC as an institution, and by extension of the entire Office of the Prosecutor (informally known as the OTP).

A recent submission by Mr. Callixte Mbarushimana’s lawyer, Mr. Nicholas Kaufman, has once more raised the issue of the neutrality of the Prosecutor, a matter that has been recurrent in submissions to the Court by Defence Counsels for at least the past six months.

Mr. Callixte Mbarushimana, an alleged leader of the Force Démocratique pour la Libération du Rwanda (FDLR), was arrested only a few weeks ago in France, in accordance with a warrant of arrest issued under seal. Mr. Mbarushimana is suspected by the International Criminal Court of crimes against humanity and war crimes allegedly committed in the Kivus in the DRC in 2009. Following his arrest, both the Registry and the OTP of the ICC issued press releases expressing satisfaction.

It is with the latter that Mr. Mbarushimana’s lawyer takes issue.

In his filing, Maître Kaufman asserts that the “self-congratulatory press release emanating from the Office of the Prosecutor […] made no attempt whatsoever to respect the principles of fair judicial reporting or to remind the general public that the charges against Mr. Mbarushimana are, at present, no more than allegations.” (§5), and argues that the Prosecutor has failed to respect his “assigned role of an impartial functionary tasked with assisting the Court in determining the truth“, reminding that the accused is entitled to the presumption of innocence (both in §6). The submission also criticizes the OTP’s press release for assimilating Mbarushimana to a génocidaire involved in the Rwandan genocide, even though no such charges have been brought against him (§7).

As I previously mentioned, it is not the first time that the Prosecutor has come under fire for not respecting his obligation of neutrality implied by article 54(1) of the Rome Statute. An editorial signed by Luis Moreno-Ocampo and published in the British newspaper The Guardian on 15 July 2010 had already come under fire, and had been the object of two filings requesting the Pre-Trial Chamber to sanction the Prosecutor (see the latest filing, by the OPCD here), but in each case, to no avail.

Perhaps more interestingly, a few months ago, Ms. Le Fraper du Hellen, then Head of the Jurisdiction, Complementarity and Cooperation Division of the Office of the Prosecutor (she has left the Court since), was “condemned” by Trial Chamber I for strong and unequivocal remarks made in an interview that were deemed by the Judges, among many other things, “prejudicial to the ongoing proceedings” (§41), and that Ms. Le Fraper du Hellen had “seriously intruded on the role of the Chamber” (§49) by her careless assertions on different issues pending before the Chamber, including Mr. Lubanga’s guilt.

Mr. Mbarushimana’s Defence Team cites Trial Chamber I’s decision in its recent filing (at §11), even though the circumstances surrounding the Lubanga Trial, explicitly mentioned in the ruling, make it difficult to consider the judgment as a precedent. But it will be interesting to see how Pre-Trial Chamber I addresses the issue, if it chooses to.

As for the Prosecutor and his Office, it is true that in each case, they could have been far more careful about their choice of words, especially with regards to the presumption of innocence, which applies not only to Prosecution but to everyone. These repeated violations – and The Guardian article was a clear example of that – are borderline grotesque.

But it does raise the question as to how a Prosecutor, with a clear prosecution strategy, can at the same time play his or her role in trying to get individuals convicted of alleged crimes, and maintain in public a form of neutrality. Personality obviously has a lot to do with it, and it appears that Luis Moreno-Ocampo has adopted a very strong and unequivocal stance against the people he prosecutes, but is asking the Prosecutor to be both Dr. Jekyll and Mr. Hyde – manner of speaking, of course – too much to ask?

I do not have a clear opinion on the matter – it is a very fine line to walk – but it is a recurring debate that I will keep my eye on.

Follow me on Twitter @xrauscher_!


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  1. #1 by Dov jacobs on 2 November 2010 - 17:13

    Hi Xavier,
    I haven’t been very active in commenting recently… I never thought having a real job would actually take up so much of my time!

    I agree with you about the ambiguity both in the role of the prosecution and how we approach it legally, irrespective of the actual personality of the Prosecutor. I personnally think that however “grotesque” some statements coming out of the OTP have been, there is in my opinion nothing wrong with them. As I posted back in July (, I completely disagree with the decision relation to Le Fraper Du Hellen, because no actual fair trial requirements were breached.

    Of course it is too much to ask of the Prosecutor. In fact, I hope he thinks that the persons he’s prosecuting are guilty, if not that would make him incompetent… Where the problem lies is where the Statute actually requires him to “investigate incriminating and exonerating circumstances equally” (art. 54). This is where the schizophrenia takes place. What the drafters could have done (if anything) is just require a minimum standard of diligence on the part of the OTP, that he refer exonerating circumstances to the defense.

    Looking forward to hearing your opinion, when you come up with it!

    • #2 by Xavier Rauscher on 2 November 2010 - 22:21

      Hi Dov,

      Thanks for taking the time to comment, I was starting to worry when I saw no reaction to my previous post on Kenya ;-).

      I agree with most of your points, if not all. I just believe that outside the Courtroom, the Prosecutor must be careful with the presumption of innocence. What was grotesque in the Guardian editorial this summer was not only his violations of that important principle, but his presentations of the Pre-Trial Chamber’s decision to issue an arrest warrant against Bashir on the count of genocide as a finding of culpability…

      • #3 by Dov jacobs on 3 November 2010 - 14:10

        I was worried to when you didn’t pick up on my Wenaweser bashing…

        I think we can all agree that the Prosecutor’s statements in the Guardian were just ridiculous, especially the one on Bashir being found guilty because of the issuance of an arrest warrant… But his conduct in Lubanga, as you’ve made clear in previous posts, is definitely where there is room for sanctions. I haven’t followed the follow-up of the AC judgment in Lubanga. Has the TC decided anything yet?

        On Kenya, I quite agreed with you. I’ve been planning to post on the constitutional challenge against ICC proceedings under way in Kenya… quite interesting questions on the interaction between legal orders… I might wait until the decision to do so.

  2. #4 by Xavier Rauscher on 3 November 2010 - 14:17

    The TC in Lubanga has decided (orally, at the first hearing following the AC’s decision) that the four-month suspension was sanction enough and that they would not push for further sanctions this time.

    There is a recurring story in the Courtroom about Prosecution getting represented by a Queen’s Counsel (forgive me if I cannot remember the name) for the abuse of process charge, but I have never quite understood what that referred to, and they have never elaborated so far in any filings or hearings I have come across or attended. So I’m a bit puzzled about that, and will keep an eye out for further information.

    As for the Kenya story, it also raises the question of complementarity and how that could work after the ICC decides to open an investigation. That being said, from what I’ve heard (let me stress that part – from what I’ve heard), the Kenyan authorities have committed themselves to cooperating with the Court, and it seems the Kenyans themselves are fairly supportive of ICC intervention.

    So it’ll be interesting to follow. On a slightly related topic, there’s a fascinating study that came out last week on the AU’s concerns regarding Article 16. I finished reading it yesterday, and will blog about it in the week.

    Oh, and for the record, I completely approve of your Wenaweser bashing!

  3. #5 by Mark Kersten on 4 November 2010 - 09:21

    Dov – interesting perspective but I think you miss something fundamental.

    I think your point that “I hope he thinks that the persons he’s prosecuting are guilty” is fine, but that the problem is “where the Statute actually requires him to ‘investigate incriminating and exonerating circumstances equally'” is a very legalistic view. Undoubtedly many of those bothered by the issues Xavier raises, especially legal observers, consider this issue.

    However, I think what bothers others is that by presuming guilt and saying so publicly, the OTP acts as a fundamentally political actor rather than a legal institution. It enters the fray it claims to stay above/apart of, namely that of international politics. Rather than building legal cases it builds a political case for public consumption. A wise observer may argue that this is fine – the OTP, whatever it says, is political, but it performs good politics. I think the problem is that not everyone would be convinced with that assertion.

    • #6 by Dov jacobs on 4 November 2010 - 10:41

      Hi Mark,

      Thank you for your remark. Of course I see the political ramifications beyond the legalistic perspective. However, I’m not too sure how claiming publicly that Lubanga is guilty turns the OTP into a political actor, short from saying that everything is political… It’s communication – yes, rash – yes, but political, I wouldn’t say so, even if other stakeholders might pick up on it and use it politically afterwards. In that case, isn’t that true of any statement, even “neutral” legal ones? Of course there’s going to be a political dimension to a case for public consumption, whatever the Prosecutor and however neutral he appears to remain. An arrest warrant against an acting head of State is a political act as well as a legal one.

      Where I do draw the line on the other hand, and I’ve said this before, is where Ocampo publicily compares the reelection of Bashir to the election of Hitler.

      Fundamentally, I approach the problem the other way around. Ocampo acts as a political actor because we allow him to do so, or perceive him as being one. It’s a circle of expectations which we need to break. In other words, stop acknowledging his political statements and go back to the “legalistic” sphere where it is legitimate to discuss his actions and say that he’s incompetent…

  4. #7 by Mark Kersten on 6 November 2010 - 13:48

    I think we largely agree on these issues. In my response, I was thinking more about the Op-Ed in the Guardian then comments re: Lubanga.

    It’s an interesting clash of approaches, though – how legal-based observers versus non-legal based ones consider these issues. My work looks specifically at the politics of international law and while perhaps not everything is political, more of what the ICC does is political than I think most lawyers would like to accept. Of course, I don’t think that’s necessarily bad. There is a lot to say about international law being good politics.

    I understand and respect your approach of judging the law through the legalistic sphere – judge those by the game they play. I agree, but given that I don’t see the separation between law and politics as starkly as some, I believe there are grounds to judge on both political and legal levels.

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