On Friday 10 November 2017, The Fifth International Meetings of the Defence adopted the so-called Common Code of Professional Conduct for all Counsel appearing before the International Criminal Tribunals (Common Code). Aside from being a non-binding document (I hesitate to call it a code since it is nothing of the kind), it is flawed and hubristic. Indeed, it may be that everything you need to know about the arrogance of the document and its creators can be divined from the declaration that it is to be “referred to as the 2017 Nuremberg Code.”
The ADC – the first and without a doubt the most accomplished association of its kind – was not involved in the drafting of the Common Code. The ADC sent its members a copy of the “Proposed Code,” informing them that it received the draft relatively late in the process. After the ADC Executive Committee and Disciplinary Council made an initial assessment of the Proposed Code, and without circulating it to the ADC membership (for reasons that become obvious from the available correspondence and discussed below), it decided that the ADC could not sign the Proposed Code as presented. Continue reading “The Common Code of Professional Conduct: flawed and hubristic – Part I”
A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.
Rome Statute, Article 127(2)
It was coming for some time. On 27 October 2017, Burundi became the first State Party to withdraw from the International Criminal Court (ICC). The reasons for Burundi’s withdrawal are not important, though not a mystery. Motivated by a desire to shut down an investigation and to avoid the potential of having the powerful and elite charged and dragged to The Hague to be tried, Burundi bid farewell to ceding its jurisdiction to the ICC to investigate and prosecute crimes falling under the Rome Statute – whenever Burundi (as other States Parties) refused or was incapable of doing so. Continue reading “Burundi’s withdrawal from the ICC nixes ongoing OTP investigations: coming to grips with reality”
Despite these challenges, the announcement of the two arrest warrants in the last eight months – one for crimes committed during 2011 and the other for crimes perpetrated more recently – should clearly demonstrate that my Office continues to be fully engaged in Libya and is determined to contribute to achieving real progress towards a culture of accountability for crimes under the Rome Statute committed in Libya.
There has been lots of excitement and speculation since Madame Fatou Bensoudaannounced that after a “meticulous preliminary examination” she has decided to formally request the International Criminal Court (ICC) Pre-Trial Chamber (PTC) to grant her authorization to open an investigation concerning war crimes and crimes against humanity, which she believes have been committed “since 1 May 2003 on the territory of Afghanistan.” Her investigation would also cover “war crimes closely linked to the situation in Afghanistan allegedly committed since 1 July 2002 on the territory of other States Parties to the Rome Statute.”
Anyone following the news since the United States (US) went after the Taliban in Afghanistan, would be hard pressed not to have noticed the plethora of mass atrocities that have taken place in, around, and in relation to what has been characterized as the war on terror in Afghanistan and elsewhere. One would have also noticed the same sort of war crimes and crimes against humanity play out in Syria and Iraq. Whether a “meticulous” preliminary investigation that spanned over a decade was necessary to come to this rather obvious conclusion (at least for the sake of seeking authorization to investigate) is questionable. Unless, of course, the real target all along were US armed forces and operatives of the US Central Intelligence Agency (CIA). And when you strip the bark off Madame Bensouda’s request to the PTC, that is what this seems to be all about. Continue reading “Bensouda’s Decision to Investigate Afghanistan: milestone or diversion”
Occasionally the best defense is an offense. More often, however, the best defense is to keep silent, admit nothing, be circumspect in word and deed – at least until all facts are known (the good, the bad, and the ugly).
Many under investigation – especially those who have tasted raw power and have enjoyed the esteem and adulation of their peers, of the influential, and of the beautiful cause-driven socialites – have gone on to be charged, and have made their defense much more challenging, if not outright impossible, by indulging their ego and sense of self-importance.
Many of the powerful and popular tend to think that because of their present position or past accomplishments, or because of their confidence in their brimming gravitas (why else would they be on Mount Olympus while the rest of us are mere yeomen toiling in obscurity), or because of who they are, they can make unpleasant and inconvenient truths disappear. All they need do is talk, to explain away. Continue reading “MORENO OCAMPO’S TACIT ADMISSION TO BENSOUDA “
I never did something wrong because I am very careful. I don’t like to work on things that are awful. I reject cases for million dollars if I don’t like the case. I believe in my career, fighting people committing crimes from power.
Luis Moreno Ocampo1As quoted in Svan Becker, Marian Blasberg and Dietmar Pieper, The Ocampo Affair: A Former ICC Chief’s Dubious Links, Der Spiegel, 5 October 2017
Someone is trying to blackmail me using illegally-obtained information
Louis Moreno Ocampo2As quoted in Barney Thompson, Former ICC Prosecutor in Row Over Lucrative Consultancy Work, Financial Times, 6 October 2017
The cat is out of the bag.3A colloquial phrase for when a secret is made known. The phrase originates from the fraud of substituting a cat for a piglet at markets. If you let the cat out of the bag you disclosed the trick – and avoided buying a pig in a poke (bag). By now, the world over, titillating information – facts beyond change, inferences drawn from circumstantial evidence, and speculations based on rumor and innuendo – has surfaced concerning Luis Moreno Ocampo’s conduct and activities while serving as the first Prosecutor of the International Criminal Court (ICC) and thereafter.
The image that emerges is a picture of a marginally competent, appreciably unethical, excessively greedy, cheekily narcissistic, and deeply flawed Shakespearian figure who sees himself as the victim of untruths, allusions, and distortions.
Trickle, trickle. Many of the facts based on the leaked 40,000 documents (internal documents from the ICC, contracts, diplomatic dispatches, bank records and emails) remain unknown. But from what has been revealed thus far, it is not a pretty picture. And with each new revelation, Moreno Ocampo must be feeling the effects of Chinese water torture – drip, drip, drip. Continue reading “Moreno Ocampo’s Game: and the sordidness keeps coming”
As quoted in Svan Becker, Marian Blasberg and Dietmar Pieper, The Ocampo Affair: A Former ICC Chief’s Dubious Links, Der Spiegel, 5 October 2017
As quoted in Barney Thompson, Former ICC Prosecutor in Row Over Lucrative Consultancy Work, Financial Times, 6 October 2017
A colloquial phrase for when a secret is made known. The phrase originates from the fraud of substituting a cat for a piglet at markets. If you let the cat out of the bag you disclosed the trick – and avoided buying a pig in a poke (bag).
Doubt, benefit of the doubt, reasonable doubt. These are words embedded in the DNA of all defense lawyers. Whether championing a client’s case or reading a salacious story in the press, doubt is always front of mind. Defense lawyers are trained not to prejudge, not to form opinions without knowledge of all the facts, and without testing the evidence. And since facts can get in the way of a good story, it’s impulsive to accept as accurate and true what is reported in the news without question. Occasionally, however, there comes an article that so shocks the conscience that it’s too difficult not to take it at face value, or muster the kind of skepticism that is our professional default.
The quality of the legal representation victims receive is essential to their meaningful and effective participation in ICC proceedings. 1Independent Panel of Experts, “Report on Victim Participation at the ICC”, July 2013, para. 12
Last year, in a post following the establishment of the International Criminal Court Bar Association (ICCBA), I raised an issue which, quite evidently, was on the mind of many Counsel who are on the ICC List of Counsel: the Office of Public Counsel for Victims’ (OPCV) taking over the legal representation of victims, and the subordination of (and running roughshod over) Counsel selected by the victims to the OPCV.
On 15 August 2017, the International Criminal Court (ICC) issued an arrest warrant for Libyan military commander Mahmoud Mustafa Busayf Al-Werfalli, accused of having committed or ordered 33 murders in Benghazi or surrounding areas from June 2016 to July 2017. The supporting evidence suggests that the Office of the Prosecutor (OTP) has overwhelmingly met the rather low threshold of “reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court” (Article 58(1)(a) of the Rome Statute) in charging Al-Werfalli. Should this case to go to trial, Al-Werfalli will find that he has stacked the deck against himself: video footage of him conducting summary executions of captives published on social media.