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.
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