International Criminal CourtPosted by The Writer 02 Feb, 2009 15:12:46
After nearly seven years and after wasting hundreds of millions of Euros of taxpayers' money (mainly from Europe, Canada and Japan) the first trial in the history of the ICC finally got off to a kind of start last week. Thomas Lubanga, an insignificant local warlord from Eastern Congo who has been waiting nearly three years in remand prison for his trial to start, is the only person the ICC so far has been able to bring before a trial judge.
I wrote "kind of start" because as usual at the ICC and as usual when Prosecutor Luis Moreno-Ocampo is involved it was more like a sputter when the first trial got under way.
Eastern Congo has seen horrible crimes in the past 15 years and there are credible estimates that some three million human beings have been killed directly or indirectly as a result of a succession of wars and armed conflicts in the area.
So is Thomas Lubanga one of the major brains behind this wild murder spree? Is he a national political leader in the Congo? Does the charge sheet cover all the crimes committed by the militia he operated?
Unfortunately, the answer is "no" to all questions. Lubanga is small fish in the conflict in the Congo and even though more cases may come before the Court
(don't be too sure, if the confusion at the ICC continues) none of those who are the main perpetrators have yet been brought to justice. And the only crime he is accused of is to have forced children (mainly teenagers, in fact) to become soldiers in his private army.
The trial started with a sputter, as I wrote. However, nobody is very surprised.
In December last year Chief Prosecutor Luis Moreno-Ocampo (of Argentina) fired the highly experienced German trial lawyer who has been working on the case for five years. Ekkehard Withopf, a former judge and prosecutor from Germany, never attempted to hide his disdain for his much less experienced and much less competent boss. They repeatedly clashed in open meetings and the vain chief prosecutor no doubt could not live with having one of his most fierce internal critics run the first trial.
The trial has instead been handed over to Deputy Prosecutor Fatou Bensouda (of the Gambia). Deputy Prosecutor? But then she must of course be in the top class of lawyers, highly experienced, with vast academic and practical experience? Not so, unfortunately. Bensouda was elected Deputy Prosecutor mainly because she is an African, and a woman. Her legal experience, mainly working with the UN Rwanda tribunal, is limited. She was derided even by her own staff who would regularly bypass her with complaints to Moreno-Ocampo.
The trial started with Moreno-Ocampo strenuously reading an opening statement for the prosecution. "Strenuously", because Moreno-Ocampo has a problem reading even a simple phrase in correct English. Press reports were not favourable. "Ocampo Underwhelms in Landmark Trial", wrote Lisa Clifford from the respected legal newsletter IWPR. Much of his statement actually wasn't about child soldiers, but about rape and other sex crimes against girls and women. Lubanga's defence lawyer immediately bit back and protested: rape is not included in the charge sheet against Lubanga. "She makes a good point", wrote Lisa Clifford in her comment, it is "unreasonable for Lubanga to answer charges that were never issued".
But the real disaster came on the third day of the trial, after the initial statements were over. By now the inexperienced Bensouda had taken over the trial, while Moreno-Ocampo had flewn to Davos to rub shoulders with the high and mighty.
The first witness, an alleged former child soldier, was giving testimony from behind a screen and with his voice distorted. At first, he said he was snatched by Lubanga's militia on his way home from school. But some time later he recanted everything, denying his first account and saying he was told to lie by staff from a humanitarian NGO.
To read the transcript from the first real trial day of the ICC is truly hilarious. The curtain to the galleries goes up and down when the judge intervenes with the amateurish Bensouda, the court is either in closed or open session and then suddenly comes the moment (it's on page 40-41) when the witness decides to take everything back. Even through the dull transcript it's palpable how the atmosphere in the court room must have been, with the embarrassed Bensouda completely thrown off balance when the witness recants everything he has said before.
"A shambolic opening day's testimony", wrote The Times of the UK the next day under a title proclaiming that "Chaos reigns at International Criminal Court Trial of Thomas Lubanga".
It's not very difficult to poke fun with the chaos in the court room (which is, of course, just a vague reflection of the complete chaos behind the scene, in the office of the prosecutor). But this is about much more than two incompetent prosecutors: it's about a court that costs tax payers 102 million Euros per year to pay for almost 600 staff members, including 18 overpaid judges and three equally overpaid prosecutors and deputy prosecutors.
And again the question must be: for how long will the governments of the 100 plus member states accept circus Moreno-Ocampo in the ICC? When will a coalition of states finally take the elevator up to the 12th floor and tell Moreno to fly home to Buenos Aires for the last time?
There will be more. Watch this blog and follow news reports on www.article42-3.org. To make a comment (anonymous, if necessary) hit "Kommentera" just below the article.
International Criminal CourtPosted by The Writer 02 Nov, 2008 08:01:05
One aspect of the Morenogate scandal is its wider implications for the entire system of multilateral, suprastate organisations - from the UN to the EU. Friends of multilateralism make these organisations out to be based on a global idealism that transcends the egoism and shortsightedness of the nation state. From global warming to global peace, the solution to the problem, according to the these proponents of a "new world order", is to drop the nation states and the concept of state sovereignty, first codified in the Peace of Westphalia 360 years back.
The ICC, when its statute was finalised in Rome in 1998, was to be the embodiment of these ideals. Not egoistic politicians, but elevated judges and prosecutors, recruited on principles of competence only, would rule this new court.
How far from these ideals is the ICC of the real world, operating today. Indeed the very election of the prosecutor five years ago violated these principles. Instead of a highly competent lawyer with an outstanding academic career the organisation was forced by member states in the third world to take on Luis Moreno-Ocampo, a controversial celebrity lawyer from Argentina representing the "South" (as opposed to the developed, mature democratic states of the "North").
Article 42.3 of the Rome Statute proclaims that the prosecutor must be a highly competent lawyer, with high moral integrity who speaks and writes English and/or French fluently. Moreno-Ocampo's legal competence is very much in doubt, there are numerous questions about his moral integrity and as everyone who has met him knows he is unable to put together even a simple phrase in correct English (and his knowledge of French is nil).
Today the prosecutor stands accused of withholding evidence from an indicted person that could be exculpatory, or (in normal language) show that the accused was innocent. For this Moreno-Ocampo has been criticised in the strongest possible terms by the ICC itself. He has shown the worst possible judgment in an internal labour case, where a whistleblower was dismissed on grounds that were found to be completely wrong. As a result a labour tribunal has awarded the whistleblower record damages of 248,000 Euros - paid by the ICC, with funds coming from the tax payers of the member states. Most importantly he has been "on reasonable grounds" (to quote the ILO labour tribunal) suspected of sexual assault against a female journalist while on a mission to South Africa in 2005. That case was dismissed because of conflicting evidence, but the "reasonable grounds" are still there, as is the evidence against him. If anyone doubts this, just look at the quote from the labour tribunal in the masthead of this blog. He is also accused of treating his staff in the worst possible way and forcing competent managers to defect in droves.
Would anyone believe that a high official in a mature democracy, like the UK Attorney General, the Belgian Federal Prosecutor or the National Prosecutor (riksåklagaren) in a Scandinavian state would be able to cling to his office with all this against him ("mature democracy" obviously doesn't mean a country like Argentina or Somalia)? The answer to the question is a screaming "obviously not". In any stable democracy a person like Moreno-Ocampo would have been hounded out of office months ago. The press, parliamentarians, ombudspersons, trade unions, political parties and other oversight mechanisms of a democratic system would have made sure that a dysfunctional official like Moreno-Ocampo would be removed from office before you could pronounce the word "accountability".
Not so in the essentially undemocratic system of international organisations. At the ICC, with weak oversight mechanisms, lack of democratic control and more than one hundred member states ("states parties" in ICC jargon) who meet only once per year (and then only represented by chinless diplomats, the worst cowards in the entire world of civil servants) a person like Moreno-Ocampo can cling to his office and pretend as if nothing happened.
The nation state and national sovereignty might not be the most perfect of systems, but if the alternative is corrupt organisations like the ICC there is no doubt what I prefer. We might need international organisations, but it's very much in doubt if we need essentially unaccountable entities like the ICC.
More will come. Watch this space and find background information on this site: www.article42-3.org
MorenogatePosted by The Writer 31 Oct, 2008 09:46:47
News from Maanweg in The Hague and the headquarters of the
International Criminal Court talk of desperation and anguish. On the
12th floor the besieged prosecutor Luis Moreno-Ocampo remains huddled
in his corner room with the view over the dull suburb of Voorburg.
The fuehrer's last days in the bunker seems like a fitting metaphor.
For how long will this tragedy be allowed to continue?
the inside talk of a score of new defections among senior managers in
the OTP (office of the prosecutor). Defections of course started early
and some dropped out even while negotiating a contract, realizing that something was not quite sound in the office. In less than
five years more than a dozen managers and high-level staff in the OTP
have run screaming away, rather than continue working in the anarchic
climate of the Moreno-Ocampo OTP.
Since Moreno-Ocampo arrived in
The Hague in the spring of 2003 he has lost his legal advisers Morten
Bergsmo and Gilbert Bitti, both veterans of the process to create the
court. His chief administrative officer Paulo Rajao also left early and
was one of the first defectors, before the scramble to get out gained
real speed. Others who left were the OTP external relations adviser
Darryl Robinson and the chef de cabinet Silvia Fernandez, also both
veterans of the process to set up the court.
Among the trial
lawyers on the 10th floor there has also been a series of defections,
like the extremely qualified Andrew Cayley, the less so (and internally
highly controversial) Christine Chung, and most recently the head of
the appeals section Fabricio Guariglia (who is initally on extended leave). Moreno-Ocampo's spokesperson
Yves Sorokobi didn't last more than 16 months in the office and his
position has never been filled after he left in 2005. Instead
Moreno-Ocampo has elevated a general service employee, a translator
from the Acholi language in Uganda, to a position as "public
information coordinator". Journalists in The Hague report that she
doesn't even know the meaning of the term "off record", but on the
other hand she apparently has other "qualities" that are satisfying to
the boss in the corner room.
Among investigators there are many
who returned to work in national jurisdictions, rather than work with
the ICC, like Dutchman Martin Witteveen and Frenchman Bernard Lavigne.
Some investigators have even returned to the Yugoslavia tribunal, which
is soon to close, rather than continue working with the prosecutor of
the permanent war crimes court. The most recent defection from the OTP
is Scotsman Paul Seils, who headed the preliminary analysis section.
The most prominent defector is of course deputy prosecutor Serge
Brammertz who departed already at the end of 2005, after only just over
two years in the service of the ICC. Serge Brammerts has all the
qualities that Moreno-Ocampo lack, high academic and professional
competence, a brilliant career and wide support among the member states
(known as "states parties" in the jargon of the court). When
Moreno-Ocampo was just a celebrity lawyer in distant Argentina
Brammertz, then only in his early forties, was federal prosecutor in
his homeland Belgium. And while Brammertz speaks four languages (Flemish, French, German and English) fluently, Moreno-Ocampo struggles even with simple phrases in English.
It's not a secret that Brammertz left the OTP
in desperation over Moreno-Ocampo. At lunchtime in the ICC canteen he
used to entertain colleagues with long litanys of the erratic behaviour
of his boss. Moreno-Ocampo on one occasion almost literally "kidnapped"
Brammertz on his boat, taking him for a five hour long trip around the
canals of The Hague and refusing to let him step ashore, while mounting
a rambling and incomprehensible defence of his "strategy".
latest twist in the tragedy of the ICC is also quite remarkable.
Moreno-Ocampo now apparently is resorting to brute force to silence his
critics (not surprising for a person who on occasion has expressed admiration
for Josef Stalin). In the past weeks Moreno-Ocampo's new legal adviser
Hans Bevers (one of the few remaining lapdogs in the office) has begun
sending letters to former staff members who have been quoted in the
media with critical comments about the ICC and threatening them with
legal action if they don't shut up.
No arguments left, time to bring in the Yezhovs and the Yagodas.
Continue to watch this place. For documents and media reports about Morenogate go to www.article42-3.org