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 Ocampo((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))
Someone is trying to blackmail me using illegally-obtained information
Louis Moreno Ocampo((As 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.((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). )) 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.
Oh, how the mighty, the incomparable, the talented Moreno Ocampo has fallen. And with all this bad publicity (here, here, here) it is tempting to dismiss Moreno Ocampo’s contributions to combating impunity when he was the ICC Prosecutor. It seems unfair. He is flawed, but not without accomplishments. As one commented to my previous post:
Whatever Mr Moreno Ocampo’s failings and weaknesses may be, there is no question in my mind, that his dogged pursuit of Kenyan alleged suspects in the Post Election Violence cases of 2007/8, played a major role in preventing similar violence in the subsequent elections five years later.
Probably so, though his dogged pursuit was a mixture of passion, subjectivity, incompetence, and egocentricity. And in the end, what were the results of the Kenyan cases before the ICC? All cases were unceremoniously dismissed at various stages of the proceedings.
Now, thanks to these leaked documents, we have learned that Moreno Ocampo, after leaving the ICC, surreptitiously tried in 2012 to have the charges that were confirmed by the ICC Pre-Trial Chamber against President Uhuru Kenyatta dropped. According to the Daily Nation, Moreno Ocampo reached out to former UN Secretary General Kofi Annan to send an emissary to the ICC to cajole the ICC (presumably the ICC President, the Judges involved in the case, and the ICC Prosecutor Madame Fatou Bensouda) to drop the charges against President Kenyatta, giving him an “honourable exit.”
So, after putting President Kenyatta and others through the ICC judicial meat-grinder at the cost of millions of dollars to the charged persons (not to mention the ICC budget), Moreno Ocampo, after departing the ICC, sought outside help to interfere with an ongoing case, which he had initiated. In so doing, Moreno Ocampo also interfered with the independence and integrity of his successor, Madame Bensouda. Why did Moreno Ocampo not dismiss the charges when he was the ICC Prosecutor – especially after his embarrassingly dismal performance in questioning President Kenyatta during the confirmation hearing – and more importantly, after it became obvious to him that the evidence he claimed to have against President Kenyatta was wanting?
If anything, the Kenya cases are a text-book case study for the Office of the Prosecutor (OTP) on how not to investigate and pursue (doggedly or not) the targets the ICC Prosecutor has in his or her cross-hairs.
Moreno Ocampo’s accomplishments – as a prosecutor in Argentina fighting corruption and “people committing crimes from power” and as the first ICC Prosecutor – should not be discounted. Neither should he be given a pass because of his past accomplishments. However the ICC reputation may suffer as a result of any inconvenient truths of inappropriate conduct by ICC staff who may have come under Moreno Ocampo’s shadow of influence, this should not deter the ICC from getting to the bottom of all these unpleasantries. This is not the time to circle the wagons((To prepare to defend against an attack or criticism. The phrase originates from the practice of drawing the wagons of a wagon-train into a circle to protect against attack, and also to keep cattle and other livestock within.)) and adopt strategies of obfuscation.
And little consideration should be given to any damage to the ICC’s reputation that may result from the inconvenient truths of inappropriate conduct by ICC staff who may have come under Moreno Ocampo’s shadow of influence.
Thus far, the ICC and the current ICC Prosecutor, Madame Bensouda, seem to have their heads in the sand. Their focus is on the leaks or alleged hacking of the documents that have come to light about Moreno Ocampo. According to the short statements issued on 5 October 2017, the Court has no knowledge of how the leaks were obtained or the hacks of the Court’s email system happened, and vows to do everything to secure the integrity of the Court’s sensitive information. In relation to the allegations that Moreno Ocampo owned offshore bank accounts when he was the ICC Prosecutor, the Court stated that it “was not aware of any of his private financial arrangements while he served as Prosecutor.” A financial disclosure system, which requires the senior management to submit an annual disclosure of asset form, was only set up in 2015, three years after Moreno Ocampo left the OTP. More on this fiasco of an oversight below.
According to her statement, Madame Bensouda views and takes the allegations “very seriously.” She stated that she has engaged an Independent Oversight Mechanism (IOM) to investigate the allegations implicating the two ICC staff members. Madame Bensouda warns us that “[p]ending the results of the investigation … speculation should not be entertained.” As for Moreno Ocampo, the OTP “has not initiated contact, sought advice or collaborated with the former ICC Prosecutor, Mr Ocampo, in relation to any of the situations or cases” since Madame Bensouda became the Prosecutor of the ICC. Madame Bensouda reminded us that in the past, she asked Moreno Ocampo “in unequivocal terms, to refrain from any public pronouncement or activity that may, by virtue of his prior role as ICC Prosecutor, be perceived to interfere with the activities of the Office or harm its reputation.” But what about cozy trysts and naked use of ICC staff to provide him with inside information or in assisting him in achieving a desired result for his handsomely-paying clients?
The ICC and Madame Bensouda issued statements only after being contacted by journalists for comments. Surely, this was not news. Interestingly, while the Court’s statement vaguely remarked on the veracity of the leaks, Madame Bensouda gave no indication as to whether she intends to investigate Moreno Ocampo’s offshore goings-on or his alleged dealings with Libyan oil billionaire Hassan Tatanaki, who reportedly was part of former Libyan President Muammar Gaddafi’s inner-circle and was supporting General Khalifa Haftar (a military commander of Mahmoud Al-Werfalli, who was recently charged at the ICC for having committed or ordered 33 murders).
Concerning whether it is premature for Madame Bensouda to announce that she intends to investigate Moreno Ocampo, and, if appropriate, charge him for any alleged crimes or offenses, here is a summary of just some of what has been reported by Der Spiegel.
- Incompetence in criminal investigations
The first ICC case almost fell apart because of Moreno Ocampo’s incompetence to investigate and put on a legally solid case. As one of the former ICC Judges Hans-Peter Kaul remarked, “He presented us with problematic witnesses who had nothing to contribute and knew nothing. In addition, the legal argumentation was often tenuous.”
The second most important case for the ICC, the situation in Libya, was handled in the same way. In an internal meeting in March 2011, Moreno Ocampo’s investigator advised him to conduct on-site investigations in Libya “to obtain forensic and documentary evidence.” Moreno Ocampo was opposed to the idea, preferring instead to focus on “what other parties [journalists and defectors] can produce for us.”
- Playing along with political interference
Moreno Ocampo entered into agreements with British and French officials as to whom to pursue in the investigations in Libya and supported the West’s intervention in Libya. According to Der Spiegel, the warrants of arrest, although never executed, did serve a purpose in “helping to justify the West’s intervention in Libya.”
According to a dispatch in 2011 by a French official: “The prosecutor clearly conceives his function not as an independent prosecutor’s office, but as a judicial body in accordance with the instructions of the Security Council of the United Nations.”
- Revealing confidential information about ongoing investigations
Moreno Ocampo revealed the names of suspects to the cabinet chief of the French Foreign Minister: “Gadhafi, one or two of his sons and three or four Libyan dignitaries.” The names were soon leaked to the media, forewarning the suspects. None of the arrest warrants were executed: Muammar Gaddafi was killed; his son, Saif Al-Islam Gaddafi, was captured by a militia; and the former Libyan Intelligence Chief, Abdullah Al-Senussi, fled to Mauritania. (For a discussion of what happened after, and how Gaddafi’s son and Al-Senussi were tried in Tripoli, see my posts here and here).
On 6 April 2011, Moreno Ocampo wrote to the British ambassador in The Hague that he viewed Gaddafi last Foreign Minister, Moussa Koussa, at this stage “as a cooperating witness rather than a suspect to be charged.”
- Accepting a conflict of interest
In May 2015, when Moreno Ocampo reportedly entered into a contract for a $3,000,000 retainer with Tatanaki, Madame Bensouda announced that she intended to investigate incidents of indiscriminate attacks in Benghazi and Tripoli, and expressly mentioned the offensives conducted by General Haftar.
Around the same time, Moreno Ocampo was warned about the consequences of the Tatanaki consultancy by his assistant:
He is seen as backing one political side, backing Haftar and backing violence as a solution to the political situation. No one seems to trust him because he is so rich and was close as well to Gaddafi, even if it was to protect his business interests. There are some strange things on the TV channel. And now everyone thinks that Ocampo has taken a side in the Libya conflict, and by extension, the ICC.
- Relying on insiders’ information to ensure that his client is isolated from prosecution
The ICC Libya investigator passed on information that the OTP learned “some concerning things about Tatanaki” to Moreno Ocampo’s employee, who in turn passed that information to Moreno Ocampo.
Soon afterwards, the ICC Libya investigator contacted Moreno Ocampo directly, detailing the allegations against his client Tatanaki: that (1) a commander of Haftar’s air force had recently said on Tatanaki’s TV channel Libya Awalan TV that anyone who was not fighting on Haftar’s side should be “slaughtered as traitors”; and (2) a wiretapped telephone conversation between Saif Al-Islam and Tatanaki suggests that Tatanaki is still working with the regime.
Based on this inside information, Moreno Ocampo took action to protect his client, Tatanaki, from investigation: “In an email to a Tatanaki employee, he proposed, first, that Tatanaki should ensure that Haftar’s army ‘is neither committing’ nor inciting to commit crimes.’ Second, he pointed out that ‘it should be impossible to conclude that Hassan and his channels are supporting crimes.’ And third, he wrote, ‘I would suggest to develop a comprehensive plan to ensure that Hassan and the forces he is supporting are not the target of ICC prosecutions.’”
Misunderstood crusader or avaricious pretender
Moreno Ocampo sees himself – and craves to be publicly appreciated – as a fearless crusading human rights fighter in the mode of Robin Hood; extracting high fees from rich clients – such as tobacco companies or Tatanaki – to finance his pro bono work, while jet-setting in first class around the globe and staying in five star hotels (which may also account for his need for offshore banking in countries known for their flexible banking services and opaque practices). And who can fault him for his opinion of himself or for his affection for extravagance? It must be intoxicating for Moreno Ocampo to be reminded of his charm and his Clooney-like looks, and to be adulated by the likes of Angelina Jolie, who appears to have been willing to be an alluring honey-pot in trying to snare reputed Ugandan warlord Joseph Kony. How James Bondish (From Russia with Love, Live and Let Die, Casino Royale, Quantum of Solace – take your pick).
The revelations reported by Der Spiegel and other news outlets seem to betray Moreno Ocampo. If what is being revealed is accurate and true, at best, Moreno Ocampo was indiscrete, unethical, and unprofessional during his tenure as the ICC Prosecutor, and in no small measure, interfered with an ICC OTP investigation by manipulating ICC staff to provide him with inside confidential information.
Moreno Ocampo either does not understand, or is in denial – unwilling to account for any wrongful behavior. When faced with criticism of his consultancy for Tatanaki, Moreno Ocampo refused to recognize the journalists’ concern: “What I did was not just legal, but also right. Helping Tatanaki was a good idea.” According to Moreno Ocampo, he and Tatanaki had to “fix Libya.” Reportedly, he is “‘shocked’ that the reporters are unwilling to see the ‘real issue’ and remain stuck on ‘details.’”
In a follow-up email after the Der Spiegel interview, Moreno Ocampo’s attorney stressed that Moreno Ocampo “attaches great importance to the statement that his consulting services for Tatanaki were ‘unconnected to the work he undertook as ICC prosecutor in 2011.’”
Unsurprisingly, Moreno Ocampo rejects the allegations of him taking instructions from French and British officials concerning investigations in Libya as “absolute lies” (fake news, as United States President Trump would put it). Maybe the documents are fake, or just maybe – and more likely – Moreno Ocampo doth protest too much.
In relation to his offshore activities, Moreno Ocampo claims: “You are trying to present those facts as if I did something wrong. I did not do anything wrong.” Fair enough. Then how about a bit of sunshine – the best of disinfectants for the truth, according to U.S. Supreme Court Justice Louis D. Brandeis.
As for Moreno Ocampo’s financial dealings and the mysteries that lie behind them, they do beg the question: why did the ICC wait until 2015 to require ICC Officials, such as Moreno Ocampo, to disclose their financial holdings, assets, and business dealings?
In the end, Moreno Ocampo may have legitimate explanations for his offshore bank accounts, for the source of the money in those accounts, and for his predilection for circuitous transfers of large (and yet-to-be publicly accounted for) sums of money.
Lost in the scrum, however, is just how sloppy and lax the ICC has been as a judicial institution that was promised to be the vanguard, the guardian of the moral imperative, the trail-blazer in setting standards for other judicial institutions – national and international – to emulate.
Considering the stakes involved, the need for transparency, and the expectation that judges and prosecutors at international tribunals be like Caesar’s wife (i.e., above suspicion and beyond reproach), it is inconceivable that as part of the selection process a financial disclosure followed by a proper vetting would not be required, and that it would take twelve years before such practices would be instituted.
The ICC (and its founders, the Assembly of States Parties) may wish to engage in some sobering introspection and self-criticism. This may be one of the many silver linings to come out of the Moreno Ocampo affair.
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I think you said it best when you called Moreno Ocampo a Shakespearean character.