Doubt, benefit of the doubt, reasonable doubt. These are words embedded in the DNA of all defense lawyers.\u00a0 Whether championing a client\u2019s 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\u2019s 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\u2019s too difficult not to take it at face value, or muster the kind of skepticism that is our professional default.<\/p>\n
Moreno Ocampo\u2019s original contract was for a USD $3,000,000 retainer plus a USD $5,000 per day rate. Considering the purpose of the retainer, the amount of the retainer, and the lawyer so retained, Moreno Ocampo\u2019s version of what he was retained to do for Tatanaki fails the laugh test.((The laugh test asks whether an explanation or assertion can be made without eliciting a derisive snort or outright laughter at it ludicrousness.\u00a0 Often by the very person offering the assertion.))<\/p>\n Moreno Ocampo demonstrated his incompetence and lack of lawyering skills when cross-examining<\/a> the Kenyan President Uhuru Kenyatta during the confirmation proceedings in the case against Mr. Kenyatta<\/a> for crimes against humanity. This is the same person whose claim to fame before coming to the ICC was, among other things, being a reality TV-host in the mold of Judge Judy<\/a> (a reality court TV star who adjudicates real-life small claim disputes in a simulated courtroom). So, what is it that Moreno Ocampo brings to the table to earn such a hefty fee for effectively selling fog \u2013 other than his name, connections, and a perceived ability to influence and manipulate ICC staff?<\/p>\n Considering the facts as reported, if correct, Moreno Ocampo shamelessly peddled his influence as the ex-ICC Prosecutor and in the process seriously crossed over some ethical lines. Maybe there is a lot more to this story than what has been reported. Maybe. Moreno Ocampo deserves the presumption of innocence even if he was less willing to afford it to those he presumed corrupt and guilty. As one former ICC prosecutor told<\/a> journalist James Verini of The New York Times, Moreno Ocampo \u201cwould see the leader of a state and say: \u2018There must be evidence out there. Go get it for me.<\/em>\u2019\u201d Is it any wonder then that some African heads of states have misgivings of the ICC\u2019s integrity as a fair and impartial judicial institution? (Here<\/a> and here<\/a>).<\/p>\n In any event, there is a need for a full and transparent investigation. If any ICC staff were involved in assisting Moreno Ocampo on the sly, and in the process, interfered with the work of the ICC Prosecutor, heads should roll. Given Moreno Ocampo\u2019s ignominious tenure as the first ICC Prosecutor, and the mess he left behind<\/a> for his successor, Fatou Bensouda<\/a>, to clean up, the ICC needs to get ahead of this story. Moreno Ocampo should not be spared; he should be treated just as any other lawyer would be treated under the circumstances. Article 70 certainly comes to mind. But let\u2019s not prejudge.<\/p>\n Be whatever it may, here are some of the operative facts as reported. You be the judge of Moreno Ocampo: hubris abandoned or victim of misunderstood circumstantial evidence?<\/em><\/p>\n (1) Inciting war crimes, based on an incident when General Khalifa Haftar, head of the Libyan National Army (LNA), appeared on a television station owned by Tatanaki making threats to those who refused to join the LNA\u2019s side;<\/p>\n (2) Backing the regime, based on an intercepted phone conversation from 2011, in which (if genuine) Saif al-Islam Gaddafi appears to believe that Tatanaki remained loyal to the regime and had not defected.<\/p>\n The information comes from a cache of 40,000 documents obtained by the French investigative website Mediapart<\/a> and the European Investigative Collaborations<\/a>.<\/p>\n There is more to the story. The documents obtained allege that Moreno Ocampo owned offshore bank accounts<\/a> while he was the ICC Prosecutor, and that over a course of several months after he left the ICC, USD $140,000 was transferred from the offshore accounts to Moreno Ocampo\u2019s Dutch bank account. When asked by journalists about his offshore banking activity, Ocampo claimed<\/a> that \u201coffshore companies are not illegal\u201d and denied avoiding any taxes, or taking money or bribes. Perhaps. Though who could fault curious minds from wondering why Moreno Ocampo would set up companies in Panama, British Virgin Islands, and other tax heavens<\/a>, and transfer considerable amounts of money through Swiss bank accounts?<\/p>\n Whether or not there was any criminal activity behind these transactions, Moreno Ocampo would not be covered by privileges and immunities accorded to ICC staff since none of this activity was performed in his official capacity. See <\/em>Article 48 of the Rome Statute<\/a>. Moreno Ocampo may wish to consider lawyering up, and fast. And, for what it\u2019s worth, he would be well advised to be circumspect in his explanations, since they could come back to haunt him in any future criminal proceedings.<\/p>\n Setting aside any alleged criminal activity Moreno Ocampo may have been involved in when he was the ICC Prosecutor and thereafter, here are some ethical issues concerning the Tatanaki affair that merit reflection:<\/p>\n Sticking with the ethical issues involved,\u00a0lawyers in Argentina are bound by the Attorneys\u2019 Professional Ethics Regulation of the Argentine Federation of Bar Associations<\/a> and the Buenos Aires Bar Association\u2019s Code of Ethics<\/a>, which require lawyers to respect professional secrecy, refrain from abusing their position of authority, and avoid even the appearance of an attitude that can be interpreted as taking advantage of any political influence or any other exceptional situation. Though these codes do not have extraterritorial effect, Ocampo assuredly would have been aware of these ethical principles.<\/p>\n Also, Moreno Ocampo should know, being the <\/em>ICC Prosecutor, that the ICC Code of Conduct for the Office of the Prosecutor<\/a> requires members of the OTP to:<\/p>\n And let\u2019s not forget the ICC Code of Professional Conduct for Counsel<\/a>. Counsel who act on behalf of clients are obliged to ensure that their actions \u201care not prejudicial to the ongoing proceedings and do not bring the Court into disrepute.\u201d((See <\/em>Article 24 of the ICC Code of Professional Conduct for Counsel<\/a>.))\u00a0 Even though the Argentine code does not have extraterritorial effect, lawyers practicing before the ICC are expected to conduct themselves in accordance with the ethical principles enshrined in their domestic codes of professional conduct. Doing anything that might compromise their bar license \u2013 even if in relation to the ICC or some other tribunal \u2013 is reckless and perilous.<\/p>\n From what is reported, Moreno Ocampo was acting as counsel on behalf of a client who apparently was being investigated by the ICC Prosecutor in relation to the situation in Libya. Arguably, Moreno Ocampo was representing Tatanaki in a matter before the ICC, even if Tatanaki was at the periphery of an ICC investigation. Moreno Ocampo\u2019s mission, as it seems, was to ensure that the OTP would not pursue Tatanaki, thus exposing him to potential charges and prosecution at the ICC. However Moreno Ocampo may slice and dice the facts, again, assuming that what is reported is correct, it boggles the mind that he would be in contact with and be engaging the support of ICC staff with whom he had previous working relations to assist in white-washing Tatanaki\u2019s image, without realizing that his conduct could fall under the ICC Code of Professional Conduct for Counsel.<\/p>\n No doubt, Moreno Ocampo has explanations for his conduct, which, in due time, he will likely share with those who are currently looking into his affairs with Tatanaki, as well as with those who are investigating his offshore bank accounts.\u00a0 Their application of the laugh test to those explanations will not be so amusing.<\/p>\n I\u2019ll stop here.<\/p>\n This saga is far from over for The Talented Mr. Moreno Ocampo.<\/em><\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":"![\"\"](\"https:\/\/i0.wp.com\/michaelgkarnavas.net\/blog\/wp-content\/uploads\/2017\/10\/moreno-ocampo.jpg?ssl=1\")
<\/a>Such is a story\u00a0reported<\/a> about the first and former International Criminal Court (ICC) Prosecutor Luis Moreno Ocampo\u2019s<\/a> seedy (and greedy) conduct involving Hassan Tatanaki<\/a> \u2013 a client who forked over USD $750,000 to Moreno Ocampo for what Moreno Ocampo characterized as \u201cconsultancy services\u201d on the use of international law in reducing the ongoing violence and securing peace in Libya.<\/p>\n\n
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