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07.25.08 Svenska Dagbladet : The Prosecutor Damages the Hague Court

The Prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo has earlier this week applied for an arrest warrant against the President of Sudan Omar al-Bashir for genocide, crimes against humanity and war crimes. Even though the application of the Prosecutor is to be welcomed, there has appeared doubts during the last days concerning the credibility of Moreno-Ocampo and thus also the Court


We must first agree that the establishment of the ICC is the most
important and encouraging event in international law since the
establishment of the UN in 1945. Therefore it is important that the
Court's credibility is safeguarded by its friends. It is with great
sorrow I can observe that the Prosecutor is not meeting up to the
expectations. Three issues that appear to be independent question the
appropriateness of Luis Moreno-Ocampo to his function.



The ICC has never issued an arrest warrant against a President in
office, even less for the most serious international crime, genocide.
The Prosecutor's application for an arrest warrant is very
controversial and may have a significant impact on the peace
negotiations concerning Darfur. It is encouraging that political
leaders no longer are protected by immunities. A trial concerning
al-Bashir's responsibility for the situation in Darfur is beneficial.



I have on other occasions voiced the opinion that the situation in
Darfur amounts to genocide, ultimately under the control of al-Bashir.
However, the time and mode of Prosecutor's application for an arrest
warrant is strange. The application has become public before it has
been reviewed by the Court's pre-trial chamber, in contrast to the
normal procedure. Furthermore, it appears that the coordination between
the Prosecutor and the UN who has personnel on the ground in Darfur is
non-existing, which creates genuine problems concerning the security of
UN personnel and aid to the civilian population.



Early July this year, the ICC Trial Chamber decided to release Thomas
Lubanga Dyilo, a Congolese party/militia leader allegedly responsible
for the war crime of enlisting children. He is the first to be charged
before the Court and his trial was supposed to start in June. The
reasons for the decision of the trial chamber was that the Prosecutor
denied disclosure of evidence originating from the UN vis-à-vis the
defence at the same time as he intends to use thereto associated
evidence against the accused. The Trial Chamber made an accurate ruling
that a fair trial is impossible under such circumstances. The same
problem may also appear in the Court's second case against Katanga and
Chui. The decision to release Lubanga is under appeal, the Prosecutor
has succumbed to the pressure and through media declared that the
evidence will be disclosed.



Even more serious is the Prosecutor's lack of proper leadership and
conduct. On the 9th July 2008 a judgement was delivered by the labour
court of the UN and international organisations (ILOAT) where the
Prosecutor lost a case against his former public information adviser
Christian Palme, ex-journalist at Dagens Nyheter. The background to the
dispute at ILOAT is very serious for the Prosecutor and thus also for
the ICC. In accordance with rules concerning complaints, Christian
Palme filed to the presidency of the ICC a confidential complaint and
evidence against the Prosecutor concerning rape or in alternative other
sexual crimes.



As a result the Prosecutor summarily dismissed Christian Palme. The
disciplinary advisory board of the Court determined that the dismissal
was incorrect due to the bias of the Prosecutor. The Prosecutor ignored
this finding and maintained his decision. It is important to stress
that the guilt or innocence of the Prosecutor has not yet been settled,
but an official at such position should avoid coming even close to such
allegations. The ILOAT established that the evidence submitted by
Christian Palme could be probative in a criminal proceeding, that there
was reasonable grounds for his complaint and that the Prosecutor was
biased when he dismissed Christian Palme. Accordingly, the ILOAT set
the decision of dismissal aside and awarded Christian Palme
approximately 180 000 Euro in damages. There is no appeal against the
decision. In other words, it is a full rehabilitation for Christian
Palme and a massive indication of lack of confidence towards the
Prosecutor.



Even more serious is that the Prosecutor's actions damage the
credibility of the entire Court. Is it a coincidence that the world top
news item on the Prosecutor's application for an arrest warrant against
the Sudanese President appeared only a few days after the ILOAT
judgment? Is there a connection between the fact that senior and
experienced employees used to think for themselves have left the
Prosecutor's office and the unfortunate administration of the Court's
first case? According to the ICC Statute the Prosecutor may be removed
if it is found that he has committed serious misconduct or a serious
breach of his duties. It is time consider this option in order to save
the credibility of the Court.




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