International court under fire for prosecution policy

The chief prosecutor of the International Criminal Court (ICC) Luis Moreno-Ocampo has not only been accused of sexual misconduct but faces criticism about the way his office operates. The final of NRC’s three-part series into the ICC looks into the way the prosecutor selects cases to investigate.

Since March 2006, Congolese warlord Thomas Lubanga has been in a Dutch prison cell awaiting trial at the International Criminal Court in The Hague. He is accused of recruiting child soldiers to fight in the Democratic Republic of Congo's brutal five-year conflict which ended in 2003.

An attempt to start his prosecution in September failed because the ICC judges refused to accept the prosecution’s wish to withhold part of the evidence to protect sources. This week the prosecution agreed to drop this restriction and the trial is now due to start on January 26. It will be the ICC’s first case.

Professor William Schabas, author of the book Introduction to the International Criminal Court, says it is incomprehensible that chief prosecutor Luis Moreno-Ocampo has not been able to build up a criminal case during the two years Lubanga has been in custody. “They are working incredibly slowly,” says Schabas.

Authoritarian and unpredictable

Former colleagues of Moreno-Ocampo say the delay is largely due to the prosecutor’s authoritarian and unpredictable management style. “Because of his experiences with corruption in Argentina he has become totally paranoid. He doesn’t even trust the police who work at the court,” says one European colleague who worked with Moreno-Ocampo for two years. “That is why he meddles with every decision and that causes delays,”

Former colleagues may be angry, but so are those left behind. The problems with the Lubanga case are the result of the incompetence of those who no longer work on it. This is the view of the American Christine Chung who worked on an investigation into crimes in Uganda for three-and-a-half years. “Moreno-Ocampo may not be perfect but no-one is better qualified to make the court a credible institution,” says Chung.

Soft targets

One of the ICC’s biggest problems is that it depends on third parties to arrest suspects. The “Europeans” are in favour of a prosecution process involving sealed indictments so that suspects are not aware that they are about to be arrested. “However Moreno-Ocampo likes to make things public. He is always talking about the impact his approach is having and how it acts as a deterrent,” says a close colleague.

Professor Schabas says he has the feeling that the prosecutor prefers to go for “soft targets such as an African tyrant. He could also, for example, choose to investigate the behaviour of the Russians in South Ossetia or the British in Iraq.”

But staff in the prosecution office say that political considerations play absolutely no role in their work.

Difficult work

The trial of Joseph Kony, leader of the Ugandan Lord’s Resistance army (LRA), should have been the ICC’s first criminal case, says Béatrice le Frapper du Hellen who is in charge of international relations at the court. An attempt to arrest Kony in 2006 failed, resulting in the death of eight United Nations peace-keepers. This illustrates how difficult the court’s work is, she says.

“The charges brought against [the president of Sudan] Omar Al-Bashir was not a choice but a duty,” says Le Frapper du Hellen. The investigation was launched at the request of the UN Security Council. “The evidence we collected pointed so clearly at him that we had to take action. Our mandate is to prosecute the biggest criminals.”

Le Frapper du Hellen points out that the ICC is also carrying out investigations in countries such as Afghanistan, Georgia and Columbia.

The Dutch foreign affairs ministry, located just one kilometre from the ICC, is satisfied with the work of the tribunal. “It is understandable that the prosecutor goes for a careful approach rather than speed,” a ministry spokesperson says.

The ministry is currently preparing a new building for the court which is due to be ready in 2014. “The ICC is a crown jewel but still has to prove itself,” says a top civil servant.

Moreno-Ocampo himself was not prepared to comment.