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.
Having drunk excessively over the years from the well of panegyric hyperbole of the très important personalities at conferences and star-studded social galas, these current or once powerful (and très, très important) office-holders and personalities, often lose sight of reality. Aside from believing their own press, some become afflicted with hubris syndrome.
Enter Luis Moreno Ocampo, first Prosecutor of the 50-year awaited International Criminal Court (ICC). On the web page of his eponymous consulting firm, he boasts:
Moreno Ocampo consultancy helps companies and individuals to face problems with transnational dimensions. We are a specialized team focused on anti-corruption, assisting victims of mass atrocities and biased judiciaries. We are highly selective in accepting new clients; we work only for what we consider to be good causes.
Accepting Hassan Tatanaki as a client with a remit to isolate and protect him from an ongoing investigation by the ICC Office of Prosecutor (OTP), does not exactly square with Moreno Ocampo’s avowed mission statement. Cynical and hypocritical as it may seem, it also does not bode well ethically.
Moreno Ocampo confabulates when he professes on his consultancy web page that he only takes clients with good causes. He accepts exorbitant fees from past associates of the late Muammar Gaddafi, who, by any account, was a notorious violator of human rights. But, succumbing to greed by cynically embracing hypocrisy, distasteful as it may be, is neither criminal nor unethical. Also, anyone targeted by an ICC OTP investigation, such as Tatanaki, should, by all means, seek the very best legal representation money can buy – provided, of course, the representation is within the acceptable ethical margins.
And therein lies the rub.
Moreno Ocampo agreed to represent Tatanaki, even though as the ICC Prosecutor, he would have been exposed to sensitive and confidential information potentially related to any ongoing investigation touching on activities or associations to which Tatanaki could be linked. Moreno Ocampo would have known that ethical eyebrows would be raised once it became known that he was representing Tatanaki. But even if Moreno Ocampo can explain away any conflicts of interests, he assuredly crossed a glaringly bright ethical line (and may have acted criminally) when he used his connections within the ICC to obtain classified information to game the investigative process in which Tatanaki featured.
In his letter to Madam Bensouda, Moreno Ocampo seems to have made a critical admission: acknowledging the authenticity and reliability of the documents revealing his covert actions with his ICC collaborators. The question that begs answering is whether Moreno Ocampo committed, at a minimum, Article 70 offenses under the Rome Statute. While the Internal Oversight Mechanism (IOM) engaged by Madame Bensouda is independent from the ICC and cannot investigate Article 70 offenses,((See Assembly of States Parties, Establishment of an independent oversight mechanism, ICC-ASP/8/Res.1, adopted 26 November 2009, para. 6(a)-(d). See also Assembly of States Parties, Independent Oversight Mechanism, ICC-ASP/12/Res.6, adopted 27 November 2013, para. 30. )) this does not necessarily preclude the possibility of an Article 70 investigation by the ICC OTP based on the results of the IOM investigation and the underlying documents. Indeed, the ICC Assembly of States Parties has directed the IOM to “hand over the results of the investigation to the Court,” where there is reasonable suspicion of criminal activity by ICC elected officials and staff members.((See Assembly of States Parties, Independent Oversight Mechanism, ICC-ASP/12/Res.6, adopted 27 November 2013, para. 41. ))
I have previously urged that we should give Moreno Ocampo the benefit of the doubt, and afford him the full presumption of innocence. I also cautioned that it would be in his best interest to refrain from making public statements which could be used against him. And though he is a lawyer by training, I further advised that he “lawyer-up,” which he has done according to his Der Spiegel interview.
In his haste to get ahead of the story, to explain away, he tacitly acknowledges in his letter to Madam Bensouda certain facts pointing to, if not verifying, his misdeeds. Moreno Ocampo (or the lawyer who drafted the letter to Madam Bensouda) seems perilously clueless when it comes to the admission of evidence in a potential Article 70 proceeding. In his opening salvo to Madam Bensouda, Moreno Ocampo claims:
Even though I am not and I could not be under the Internal Oversight Mechanism (IOM) investigation I want to support the inquiry. By the IOM own standards, it cannot take into consideration information obtained by criminal means, but I can provide some documents and explanations to clarify the allegations. (emphasis added)
How unsagacious. While the IOM cannot make use of any illegally obtained documents, the ICC OTP could in an Article 70 investigation / proceeding. Whether the documents in question were illegally obtained by hackers or inappropriately provided by ICC insiders to the French investigative website Mediapart and the European Investigative Collaborations, is irrelevant for the purposes of admissibility in Article 70 proceedings at the ICC.
The threshold for excluding illegally obtained material under Article 69(7) of the Rome Statute – including any derivative poisonous fruit evidence that may come to light as a result of the ill-gotten material – is not accommodating, and is exceptionally, if not unreasonably, high.
Under Article 69(7), evidence collected in violation of the Rome Statute or internationally recognized human rights is inadmissible only if: “(a) The violation casts substantial doubt on the reliability of the evidence; or (b) The admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings.”
Article 69(7)(a) does not seem to be at issue. Ocampo tacitly admits in his letter that the documents are authentic. I have yet to come across – as one would expect as the first line of a public relations blitzkrieg – any public statements or interviews by Moreno Ocampo where he claims that the documents are fake. Nor does he make this claim in his letter to Madam Bensouda – dispositive as it would be to any alleged crimes or offenses suggested by the documents.
It is also improbable that the offending (and damning) evidence will meet the criteria for exclusion under Article 69(7)(b). While hackers and ICC insiders may have violated Moreno Ocampo’s human right to privacy, the admission of the documents in any future confirmation proceedings or trials, would not be antithetical to nor seriously damage the integrity of the proceedings. If anything, Moreno Ocampo’s actions compromised the integrity of the OTP and impugned the ICC.
Whether Madam Bensouda takes this matter as seriously as she should, remains to be seen considering what is now emerging about her consultations (and likely back-channeling) with Moreno Ocampo. Suffice to say, the documents which Moreno Ocampo would so dearly wish the IOM not to consider, shed light on his conduct – a matter deserving, at a minimum, close scrutiny and unhindered transparency.
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