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.

Throw a couple of underlings under the bus, stiff upper lip, deny, deny, deny, and weather the storm. Not an unsound strategy for a seasoned prosecutor with shrewd political instincts, having cut her teeth as Chief Legal Adviser and Minister of Justice of Gambia’s former President, Yahya Jammeh. Except, in this case, there are documents that contradict Madame Bensouda’s self-righteous indignation at insinuations that she may have been privately consulting with Moreno Ocampo. As Der Spiegel bluntly puts it: “A comparison of Bensouda’s official statements and her email exchanges with Ocampo lead to the inevitable conclusion that the ICC’s chief prosecutor has repeatedly not told the truth.”

Former U.S. President Bill Clinton adopted a similar strategy. Looking into the TV cameras, biting his lower lip for an affectation of hurt mixed with resolve, wagging his finger with the supreme confidence of an innocent victim of false accusations, he resolutely announced “I did not have sexual relations with that woman.” If he only knew at the time that that woman, Monica Lewinsky, cunningly preserved the DNA evidence on her dress which showed otherwise. But, being the clever lawyer that he is, when confronted with the evidence and his past denials about “sexual relations,” President Clinton turned to semantics, retorting: “It depends upon what the meaning of the word ‘is’ is.” Clever, memorable, coinable, though not an answer or explanation that passes the laugh test.

At least Madame Bensouda seems to tacitly acknowledge that there were contacts with “Luis,” as she refers to him. The problem however is that what little she is now willing to admit does not square with the content of the emails being reported. “O, what a tangled web we weave when first we practise to deceive!2Walter Scott, Marmion (poem), 1808.

According to Der Spiegel, there are “dozens of emails” that Madame Bensouda wrote to Moreno Ocampo – and they do not appear to be season’s greetings or birthday wishes. In fact, if what is reported is correct, it seems that Madame Bensouda was seeking advice from Moreno Ocampo, using him for back-channeling, confiding in him, passing on confidential information, and, effectively, creating an atmosphere that fed into Moreno Ocampo’s misguided and unethical conviction that he could tap into his former ICC subordinates and associates to gain access to information and influence conditions to the benefit of his clients.

A “petard” was a bomb used to blow open a gate to a city. To be hoist by one’s own petard was to have your bomb blow up in your face, literally lifting you off the ground (and killing you)

Madame Bensouda’s less-than-candid remarks made to extricate herself from Ocampogate are unlikely to be viewed as mere slips of the tongue. The statement she put out was not off-the-cuff. It may have been made in haste (unwise to make declarative statements before knowing all the facts), but it was not without deliberation – carefully crafted and wordsmithed to put the matter to rest – at least as to Madame Bensouda. The fact that she was unaware of just what had been obtained by the press (much like President Clinton was unaware of the dress with the incriminating stain) when she made the remarks, will all the more feed into the media frenzy that is out to uncover the truth. Der Spiegel is proving to be relentless.  And the risk of being hoist by her own petard may be increasing.

If the emails are as reported by Der Spiegel, the Independent Oversight Mechanism (IOM) – currently looking into the conduct of at least two ICC employees who collaborated with Moreno Ocampo on the Tatanaki matter – may rapidly conclude (if it hasn’t already) that it needs to collect all private communications between Madame Bensouda and Moreno Ocampo. And since there may even be more compromising information on their respective servers that was not leaked to or obtained by the French investigative website Mediapart and the European Investigative Collaborations, the IOM may need to search for and preserve any data of this kind.

Expect Moreno Ocampo to resist any investigative requests requiring him to turn over his emails and other potentially useful information. Who knows what prying eyes may uncover?

Madame Bensouda may not have the luxury to resist, evade, or stall. In the past, computers used by Defence Counsel at the ICC have been seized and searched, so this is not some fanciful possibility. Though such sauce for the goose ought be sauce for the gander, invading the privacy of the ICC Prosecutor may be too inelegant – especially when the very integrity of the ICC Office of the Prosecutor, as well as the ICC is at risk. And when, depending on what eventually emerges, a special prosecutor may need to be appointed.

It may not be too soon for Madame Bensouda to also lawyer-up.



Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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

  1. The broader question here is what the damage caused to the ICC as institution is going to be. As it seems to me these events mean an earthquake with a magnitude of 9-10. It may very well be that Mr. Moreno Ocampo, at the time of the arrest of Mr. Lubanga and Mr. Bemba ( both Congolese ) played the game of the powerful. Indeed Mr. Bemba was vice-president of the DRC and preparing to run succesfully in the coming presidential elections. Indeed also Mr. Lubanga, with his charisma and with his politics to benefit the people was a future candidate for the presidency and a danger for the prevailing politics to plunder Congo. Both had ran together East Congo at the time of the secession. All this was cause for Mr. Kabila to watch his back and to have both too succesful politicians sent to jail. It is my firm belief that both cases have to be revised in the light of what has been revealed and is still to be revealed.

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