The Common Code of Professional Conduct: flawed and hubristic – Part I

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.”

By happenstance, I heard that the Association of Defence Counsel practising before the International Courts and Tribunals (ADC) was consulted on this initiative. Having a particular interest in professional responsibility and ethics, I reached out to get a copy of the Common 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”


Burundi’s withdrawal from the ICC nixes ongoing OTP investigations: coming to grips with reality

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”


ICC Prosecutor to UNSC on the situation in Libya: yes we can, but how can we? 

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.

ICC Prosecutor Fatou Bensouda, Statement to the United Nations Security Council on the Situation in Libya, 8 November 2017

ICC Prosecutor Fatou Bensouda at the United Nations Security Council

On 8 November 2017, International Criminal Court (ICC) Prosecutor Fatou Bensouda delivered a speech before the United Nations Security Council (UNSC) on the situation in Libya.  Considering UNSC Resolution 1970, which referred the situation in Libya to the ICC Prosecutor, she offered an update, sprinkled with tidbits on international relations, state-building, and transitional justice. The speech should rate highly as a measured and balanced assessment of her office’s efforts in dealing with crimes associated with the situation in Libya. Perhaps, but considering other factors, is Madame Bensouda being irrationally exuberant in her expectations? Continue reading “ICC Prosecutor to UNSC on the situation in Libya: yes we can, but how can we? “


Bensouda’s Decision to Investigate Afghanistan: milestone or diversion

There has been lots of excitement and speculation since Madame Fatou Bensouda announced 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”


Bensouda’s Folly: It depends upon what the meaning of the word “is” is

We would like to restate for the record the fact that the Office of the Prosecutor has not sought advice, communicated or collaborated with the former Prosecutor.

Fatou Bensouda1As quoted in Sven Becker and Dietmar Pieper, The Ocampo Affair: Current ICC Chief Prosecutor Weighed Down by Predecessor, Der Spiegel, 17 October 2017.

Fatou Bensouda, the International Criminal Court (ICC) Prosecutor, has some explaining to do.

In my last post, I mused whether she would take the necessary action to get to the bottom of what is now being referred to as OcampogateLuis Moreno Ocampo’s potential illicit activities in his offshore companies and large transfer of funds through and to tax havens while acting as the first ICC Prosecutor, and the unusually lucrative consulting deal he struck with Libyan oil billionaire (and past Muammar Gaddafi associate) Hassan Tatanaki – for whom Moreno Ocampo condescended himself by inappropriately soliciting assistance and inside confidential information from ICC staff.

Madame Bensouda was quick to distance herself from her former boss, issuing a statement that she had no contact with him since he left the ICC. In doing so, she obviously wanted to shield herself from any Ocampogate blowback. Continue reading “Bensouda’s Folly: It depends upon what the meaning of the word “is” is”


Footnotes   [ + ]


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  “


Moreno Ocampo’s Game: and the sordidness keeps coming

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”


Footnotes   [ + ]

The Moreno Ocampo identity: hubris abandoned


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.

Such is a story reported about the first and former International Criminal Court (ICC) Prosecutor Luis Moreno Ocampo’s seedy (and greedy) conduct involving Hassan Tatanaki – a client who forked over USD $750,000 to Moreno Ocampo for what Moreno Ocampo characterized as “consultancy services” on the use of international law in reducing the ongoing violence and securing peace in Libya. Continue reading “The Moreno Ocampo identity: hubris abandoned”


The Human Rights Watch Report on the Ongwen Case and Beyond: Who should represent the victims at the ICC?


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

ICC court decisions have repeatedly articulated the need to “ensure that the participation of the victims, through their legal representative, is as meaningful as possible, as opposed to purely symbolic.” 2Human Rights Watch, “Who Will Stand for Us? Victims’ Legal Representation at the ICC in the Ongwen Case and Beyond”, August 2017, p. 9 quoting Prosecutor v. Ruto and Sang, ICC-01/09-01/11-460, Decision on victims’ participation and representation, 3 October 2012, para. 59

Victims’ choice matters because it can be a way for the victims represented to develop confidence that the counsel who stands for them before the court will represent their views, in turn building confidence in the court process itself. 3Human Rights Watch, “Who Will Stand for Us? Victims’ Legal Representation at the ICC in the Ongwen Case and Beyond”, August 2017, p. 11

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.

Many Counsel representing, or on the List to represent, victims before the ICC perceived, rightly or wrongly, that they, along with their clients, were being disenfranchised. Perceptions count, especially if the purpose for introducing victims’ participation was to permit victims to present “their views and concerns”4Rome Statute of the International Criminal Court (“Rome Statute”), Art. 68(3). and make the proceedings more relevant and meaningful for the victims. Continue reading “The Human Rights Watch Report on the Ongwen Case and Beyond: Who should represent the victims at the ICC?”


Footnotes   [ + ]

The Mahmoud Mustafa Busayf Al-Werfalli Indictment: Picking low-hanging fruit or chasing windmills


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.

As cases go, this is a prosecutor’s dream. For the OTP, this must have been one of those cases that is just too good to pass up. But is it? The 33 victims deserve justice, but is the ICC able to deliver it? And at what cost? Continue reading “The Mahmoud Mustafa Busayf Al-Werfalli Indictment: Picking low-hanging fruit or chasing windmills”