Eleven years ago, celebrating the creation of the world’s first permanent International Criminal Court, UN Secretary General Kofi Annan spoke of “a gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law.” Reflecting on the birth of the United Nations amidst the struggle against genocide, war crimes, and aggression half a century earlier,Annan noted how the idea of a world criminal court had been stillborn,strangled by the superpower rivalry of the Cold War. Only with the triumph of Western liberalism, and the horrors in former Yugoslavia and
Rwanda, had this changed. The International Criminal Court (ICC), Annan
said, “is an achievement which, only a few years ago, nobody would have
thought possible.”

Inevitably, much in the Rome Statute that established the ICC was
diplomatic compromise. As finally agreed, the statute gives jurisdiction
over genocide, crimes against humanity, and war crimes. The Court,
however, can act only if a country is unwilling or genuinely unable to
investigate or prosecute, and the UN Security Council has the power to
suspend any case for a renewable twelve-month period. Nonetheless, the
ICC is an independent court with a prosecutor elected for a single
nine-year term, accountable only to his own conscience and an Assembly
of States Parties (ASP) consisting of the countries that have ratified
the statute.

Nine months after the Rome Statute came into effect, in April 2003, the
Argentinian lawyer Luis Moreno Ocampo was elected as the Court’s first
Prosecutor. He promised a “sexy court” that would dispense swift and
telegenic justice comprehensible to faraway and often uneducated
victims.1 Three countries referred themselves to the ICC over the next
two years—Uganda, the Democratic Republic of Congo, and the Central
African Republic—and in March 2005 the Security Council referred the
case of Darfur. But it was not until March 2006 that the ICC took its
first suspect into custody, a hitherto obscure Congolese militia leader
named Thomas Lubanga Dyilo.

Kofi Annan spoke for many when he said, “Until now, when powerful men
committed crimes against humanity, they knew that as long as they
remained powerful no earthly court could judge them.” The Nuremberg
trials were victors’ justice—the prosecution of those already fallen
from power. The ICC is different: it promised to be a turning point in
the struggle for human rights and against impunity, a landmark in the
advance of global ethics. Some of the world’s most committed lawyers and
investigators converged on The Hague, relishing the challenges that lay
ahead. The ICC’s mandate was not only to identify the perpetrators of
the worst crimes ever codified in international law; it was to arrest
and prosecute them. Yet the Court had no police force, three of the
Permanent Five at the Security Council did not support it, and the UN
Department of Peacekeeping Operations didn’t want its overstretched and
vulnerable peacekeepers conscripted as ICC enforcers. It also had Luis
Moreno Ocampo as its lead prosecutor.

Despite the challenge of building and operating an institution in an
uncertain and evolving field of law, Moreno Ocampo had a strong wave to
ride—the goodwill of publics across the globe, including a powerful
American human rights constituency, and some of the ablest legal minds
in the business. But three years into his tenure, many in the Office of
the Prosecutor (OTP) were questioning his ability to do the job. A
further three years on, and the Court is in trouble—a trickle of
resignations has turned into a hemorrhage, and cases under prosecution
and investigation are at risk of going calamitously wrong. The Lubanga
trial has come to court under a cloud of controversy over the
Prosecutor’s handling of evidence and charges, and an arrest warrant
issued for Sudan’s president, Omar al-Bashir, has set in motion a chain
of events that threatens a humanitarian disaster for the victims of the
war in Darfur.

The first public signal of dissatisfaction with the Prosecutor was
registered in July 2006 when the Court invited Antonio Cassese, the
first president of the International Criminal Tribunal for the former
Yugoslavia (ICTY), and Louise Arbour, the UN High Commissioner for Human
Rights, to submit amicus curiae briefs, a kind of peer review. Both
challenged Moreno Ocampo’s performance. Addressing the Prosecutor like a
teacher dressing down a particularly inept student, Cassese assailed
every aspect of Moreno Ocampo’s investigations but especially his
failure to undertake even “targeted and brief interviews” in
Darfur.2 Moreno Ocampo argued that Darfur was too dangerous for
investigations and that victims and witnesses couldn’t be protected from
the wrath of the Sudan government. Cassese disagreed. He had led a UN
Commission of Inquiry into Darfur in 2004 and had vigorously sought out
and interviewed numerous witnesses in Darfur and Khartoum.3 Unlike
Cassese, who mentioned Moreno Ocampo 36 times, Arbour made no personal
reference to the Prosecutor.4 But she too told him how to do his job.
She called for “an increased visible presence of the ICC in Sudan” and
made clear her belief that Moreno Ocampo was proceeding down the wrong
track. Speaking with the authority of experience, she said, “It is
possible to conduct serious investigations of human rights during an
armed conflict in general, and Darfur in particular, without putting
victims at unreasonable risk.”

Colleagues said Moreno Ocampo was enraged. He asserted that he was
already “successfully carrying out an investigation” based entirely on
evidence that could be gathered in safety outside Sudan.5 The Prosecutor
dug in. From then on, senior staff said, it was “utter lunacy.”

Although the Sudan government’s minimal cooperation with the ICC ground
to a halt in early 2007, court sources say that in 2006 an ICC
delegation visiting Khartoum was invited to travel to Darfur. The
invitation, like so many of the government’s promises, may well have
come to nothing. But Moreno Ocampo didn’t call Khartoum’s bluff. He
didn’t push at the door. The ICTY had made a point of opening branch
offices in precisely the areas most hostile to it. Cassese’s experience
was that, with due care and courage, witnesses could be protected and
evidence assembled. But Moreno Ocampo insisted that investigations
inside Sudan were neither safe nor necessary. The OTP’s original senior
trial attorney for Darfur, Andrew Cayley, described the difference with
the UN inquiry: “Cassese went personally to Kober prison and interviewed
very sensitive witnesses. He demanded access with nothing more than a
Security Council resolution. The OTP got no further than the Hilton
Hotel.”6 By the end of 2008, the Court had granted victim participation
rights to just eleven Sudanese, as opposed to 171 Congolese and 57
Ugandans, and not a single case for witness protection on behalf of
Darfurians had been presented to the judges.7

The Prosecutor’s next step was to issue a summons for two Sudanese whom
he alleged were responsible for massacres. On February 27, 2007, he
demanded that Ahmed Harun, minister of state for the interior and head
of the “Darfur desk” that coordinated military and security operations
in the region, and Ali Kushayb, a militia commander, present themselves
in The Hague. Unlike in a domestic court, the ICC has a “Pre-Trial
Chamber” of three judges who decide whether cases meet a relatively low
threshold of reasonable grounds to conclude that a crime has been
committed within the Court’s jurisdiction. The Prosecutor has the option
of public or sealed applications, with the latter offering the
possibility of surprise arrests. A summons is the most modest step of
all. The Pre-Trial Chamber considered the Prosecutor’s request and,
deciding that the men would never turn up of their own accord, issued
arrest warrants.

Cassese damned the prosecutor’s initiative with faint praise, saying
“Better tiny steps than total inertia.”8 Many in the OTP were
dumbfounded by what several called Moreno Ocampo’s “idiotic” insistence
on summonses. The ICTY had shown how effective sealed warrants could be,
and the ICC professionals believed that secrecy was their best, and
possibly their only, chance of having Harun arrested—when he traveled
abroad, as indeed he did in the very month the summons was issued.

Was Moreno Ocampo still trying to win some cooperation from Khartoum?
Colleagues find that hard to believe. Said one, “By the time Harun and
Kushayb were named there had been several visits to Khartoum”—although
not by Moreno Ocampo, who has yet to set foot in Sudan—“and it was
abundantly clear that the Sudanese are masters at stonewalling,
world-class prevaricators. It was obvious that the only way to get
people delivered was a sealed warrant—unless you wanted to be seen to be
doing something but not actually to be doing anything.”

The role of ICC Prosecutor was always going to be extraordinarily
difficult, under competing pressures from supporters and powerful
detractors like the United States. Moreno Ocampo’s greatest asset was an
exemplary cadre of professional staff for whom working at the ICC was
more than a career—it was a vocation. “I loved this job,” an early
recruit to the OTP told us. “It was my life.” The Prosecutor had the
opportunity to draw upon the accumulated expertise of existing
international tribunals and some of the world’s finest lawyers and
investigators. This asset was rapidly squandered. Increasingly, Moreno
Ocampo’s staff found it difficult to agree with their own Prosecutor,
whose penchant for publicity and extravagant claims rather than fine
detail was the polar opposite of their own work ethic.

As the pressures on him mounted, Moreno Ocampo, in the opinion of many
of his colleagues, began to “cut corners.” They were incredulous when he
announced publicly that he planned to intercept a plane on which Harun
was scheduled to fly to Saudi Arabia for the Haj.9 If he really sought
to arrest Harun, why advertise his own plan? The Prosecutor’s harshest
critics accused him of grandstanding: he knew, they said, that if the
cases he was building ever came to court, and proved to be flawed, it
wouldn’t be on his watch. Some wondered if he was “making peace with the
fact that he is never going to get these people arrested.” Others
suggested he was taking a maximalist position, very publicly, as the
only way of showing the impact of the crimes committed.

As internal criticism grew louder, Moreno Ocampo listened less and took
closer personal charge than ever. Many in the Investigations Division
felt sidelined; in the Prosecutions Division, insufficiently consulted.
A senior team member said the Prosecutor was “the most complicated and
difficult” manager he had ever worked for, emotionally volatile and
obsessed with micromanaging. Some tried to raise concerns, privately
deploring the absence of “a culture in which objectivity and a critical
review of the evidence with all its shades drives the institution.” A
key member of the OTP left, saying privately that he was fearful of
having to defend an indefensible position a few years down the line. A
second followed, saying the Prosecutor ran the OTP like a medieval
kingdom. A third told us the OTP was run “like a police state,” with a
“culture of fear” that was “very real,” and “sapping.” He quit too.

Senior ICC staff who had worried over Moreno Ocampo’s earlier caution
were now puzzled by his zealous pursuit of the biggest culprits he could
identify—and especially his determination to charge President Bashir
with genocide, including for his policies toward the displaced camps in
Darfur. Their concern was not so much that the Prosecutor was aiming too
high, but the cavalier way in which he went about it. “The Prosecutor
doesn’t have the reflexes of a prosecutor, bringing to bear a sound
judgement as to what is legally doable,” one told us. Another said: “He
cut corners in the Court’s core business.” Several felt he would have
been better advised to confine his charges to the events of 2003-04,
when, according to the Court’s own crime base data, about 90 percent of
the killings took place.

Non-attributable criticism became a feature of ICC culture, to the
extent that the “Hague Justice Portal” Web site published, for the first
and only time, an anonymous critique by a legal scholar who, from
internal clues, had probably been a member of the Prosecutor’s
staff.10 Using words like “inept,” “pernicious,” and “unrealistic” to
describe Moreno Ocampo’s strategy, the author deplored “a crisis of
maturity within the Prosecutor’s own office” and called for urgent
attention to the crisis, including by the ASP, the only body with the
power to remove the prosecutor.

The most strenuous public advocates of the Court also began to express
their worries, albeit mainly in private. In September 2008, Human Rights
Watch (HRW) wrote to the Executive Committee of the ICC to express
serious concern over poor management practices in the OTP and about the
effect this was having on the Court’s investigations (and to criticize
the prosecutor’s “due process violations” in a matter relating to his
own behavior, of which more later). HRW said the departure of senior
staff in the OTP was having “a direct impact on the efficiency of
investigations, and is particularly regrettable where due at least in
part to the failure to develop a sufficiently supportive work
environment.” “Many experienced investigators have left the ICC since
2005,” it said, for two reasons: “burn out” caused by the fact that
there were “simply not enough of them to handle the rigorous demands for
conducting investigations,” and the “perception that the input of
investigators is not sufficiently valued within the OTP, leading to
dissatisfaction.” Despite the attention the Prosecutor lavished on NGOs,
there is no sign that he took this criticism seriously.11

The HRW letter does not tell the whole story. It was not only
investigators who were leaving. Those who left included Silvia Fernandez
de Gurmendi, the first cabinet chief of the OTP; senior legal adviser
Morten Bergsmo; legal adviser Gilbert Bitti; DRC team leader Bernard
Lavigne; Uganda team leader Martin Witteveen; Andrew Cayley—in the
opinion of a former ICTY colleague, “the most effective lawyer I have
ever seen”; chief analyst Paul Seils; and Deputy Prosecutor Serge
Brammertz, now Prosecutor of the Yugoslavia tribunal.

Argentinians would have been less surprised at the controversies
swirling around Moreno Ocampo. His international face is that of the man
who helped put the Argentine junta behind bars, a fearless prosecutor
who followed the chain of command to its zenith. As a young man aged
just 32, he had been assistant to chief prosecutor Julio César Strassera
in the trial of nine senior figures of the military dictatorship that
ruled Argentina from 1976 to 1983. It was the first prosecution of
senior government officials for the mass killing of civilians since the
Nuremberg trials, and it resulted in five convictions. But even in those
heady days of the mid-eighties, Moreno Ocampo had his critics. Strassera
disliked his love of the media spotlight; many prosecution witnesses,
victims of some of the worst human rights abuses on the continent, shied
away from him.

“No survivor wanted to talk to him,” says Miriam Lewin, a distinguished
investigative journalist who is herself a survivor of the Naval
Mechanics School, the most brutal of the dictatorship’s torture centers.
(Of the more than 5,000 people interrogated there, only 150 survived.)
“It was only a year after democracy came to Argentina after a long and
cruel dictatorship. We were all afraid because nobody knew if the
military were going to come back. Many of us carried our passports in
our pocketbooks. We wanted guarantees we were not going to be taken and
tortured again. Moreno Ocampo didn’t understand how difficult it was to
come back to the country after being tortured and held in a
concentration camp. We felt he didn’t respect us at all. We found him
distant and unaware of what was going on. He was never supportive. He
never accompanied us as victims.”

The weekly news magazine Noticias has described the 1980s as Moreno
Ocampo’s “human rights period” and quotes him as saying he finished it
“without a peso.”12 It was then, he told the magazine, that he said to
himself: “I want to work for worthy causes, but I also want to make
money.” As a young man, Moreno Ocampo had funded his legal studies by
working as a carpenter, his family having fallen on hard times two
generations earlier. Now he made a fortune, according to Noticias, by
continually seeking “new commercial niches.” First, he took on
corruption in business and public administration, making extensive use
of secret cameras; then what a colleague called “gender discrimination”
cases, representing some of Argentina’s wealthiest women in family
disputes; until finally, in the new millennium, twice married and with
four children, he became “the lawyer of the powerful,” representing some
of Argentina’s most controversial public figures, including the former
Economy Minister Domingo Cavallo, on whose watch the Argentine economy
collapsed,13 and a Catholic priest, Julio Grassi, charged with 17 counts
of sexual abuse of young boys in his care.

The Grassi case has been characterized by threats, violence, attempted
bribery, and severe criticism of Moreno Ocampo’s comportment.

“I was disgusted by Moreno Ocampo’s behavior in the months he worked for
Grassi,” says psychiatrist Enrique Stola, who treats two of the boys who
accused Grassi. “My patients, ‘Ezequiel’ and ‘Gabriel,’ were attacked on
radio and television, threatened, and beaten, and Moreno Ocampo did not
say a single word.” Stola said he was “deeply ashamed and saddened that
a homeless child who had dared to accuse a powerful priest like Grassi
should be afraid of a man who claimed to defend human rights.”

More than six years after Moreno Ocampo’s involvement with the Grassi
case ended, prosecuting attorney Juan Pablo Gallego continues to speak
out against the methods he used while on the priest’s high-powered legal
team. “Without any evidence whatsoever, Moreno Ocampo falsely accused
Gabriel of attempting to blackmail Grassi and of bearing false witness,”
he told us. “He also provided Grassi with secret cameras. One of these
cameras was used to identify the place where Gabriel was staying, and
soon after he was brutally attacked there by persons unknown.”

From his earliest days in the public eye, Moreno Ocampo has massaged his
public image and since moving to the ICC has done his best to ensure
that internal controversies do not get outside airing. Court sources say
that several former colleagues have received letters from his legal
adviser threatening legal action if they speak to the media. Despite
this, there has been a growing chorus of criticism of the Prosecutor’s
handling of cases. The first to come to trial has been that of Thomas
Lubanga, leader of the Congolese Patriotic Union (UPC) accused of
widespread rape and killing in northeast Congo. Lubanga was arrested in
his own country and charged with genocide and crimes against humanity.
But the Congolese authorities made no serious effort to investigate the
case and, when it became clear that he was likely to be released, the
ICC pounced. In March 2006, Lubanga was taken from prison under UN armed
escort in the dead of night and flown to The Hague in a French military
plane.

The ICC had something to celebrate: a suspect in custody at last.
Congolese human rights groups and women’s groups joined in the
celebrations. But when the charges against Lubanga were restricted to
recruiting and deploying child soldiers, they expressed surprise at “the
limited charges brought” and warned that “these charges risk offending
the victims and strengthening the growing mistrust in the work of the
International Criminal Court in the DRC and in the work of the
Prosecutor specifically.”14

The Lubanga case quickly became an embarrassment. When the ICC opened
its Congo investigation, the UN Mission in Congo (MONUC) provided
thousands of documents—such as weekly situation reports and child
protection reports—to the OTP. Because they were mostly routine
first-line reporting, MONUC officials expected the Prosecutor to use
them as “lead evidence” only—signposts of what had happened, where and
when, so that ICC investigators could follow up. Files like these are
not the product of rigorous criminal investigations and none of those
who compile them would expect them to stand up to courtroom scrutiny.
But because they contained sensitive information including named
sources, MONUC insisted that they stay confidential.

Moreno Ocampo’s investigative strategy relies on a “small team” approach
—defended by the Prosecutor on grounds of economy, but criticized by
investigators, governments, and victims. Thus the Prosecutor relied
heavily on the MONUC reports for his case against Lubanga. In November
2007, the judges demanded that these confidential reports be shared with
the defense—obliging the OTP to go back to the UN to ask it to revisit
the confidentiality agreement. MONUC duly set staff members to work
screening each and every document to see if it contained sensitive
information. After seven months and three missed deadlines, Judge Sir
Adrian Fulford ran out of patience and halted all proceedings, ruling
that “the trial process has been ruptured to such a degree that it is
now impossible to piece together the constituent elements of a fair
trial.” He ordered Lubanga’s release. Moreno Ocampo appealed, seeking a
compromise under which the judges—not the defense—would see the
confidential documents. The UN agreed, the Appeal Court conceded, and
Lubanga stayed in prison.

Moreno Ocampo had scraped through. But the drama revealed a recurrent
weakness: the Prosecutor had cut corners. He had orchestrated a drumbeat
of public expectation, and had set trial dates before his case was
ready. Moreno Ocampo was preoccupied with the wrong court—that of public
opinion.

Listening to Moreno Ocampo’s opening statement on January 26, 2009
—“Lubanga’s group recruited, trained and used hundreds of children to
kill, pillage and rape”—one might have been forgiven for thinking that
killing, pillage, and rape were on the charge sheet. They weren’t. The
charges were still recruiting and deploying child soldiers. Moreno
Ocampo’s presentation reminded one observer of “a student who hadn’t
prepared properly for his final exam.”15 More importantly, it raised
expectations among victims that would never be addressed in court. To
the dismay of many ICC staff, Moreno Ocampo had removed the chief trial
attorney for the case—Ekkehard Withopf, an experienced trial lawyer—a
month before the trial opened. Now he left The Hague without listening
to the defense’s opening statement and headed for the World Economic
Forum in Davos, where he made headlines by reversing an earlier position
and announcing that he was examining the possibility of prosecuting
Israeli commanders over alleged war crimes committed in Gaza.16

Like all human rights activists, women’s rights groups are reluctant to
do anything that might undermine the ICC. Their determination to
prosecute crimes against women makes them especially determined to see
the Court succeed. The Court has an excellent record in gender equality
in its hiring practices and the Prosecutor goes out of his way to
emphasize the importance of prosecuting and deterring rape. But gender
activists have their own special reasons for mixed feelings about Moreno
Ocampo. Their worries are not pedophile priests in Argentina, but the
Prosecutor’s personal conduct at the Lord Charles Hotel, in the verdant
hills of South Africa’s wine country.

The scandal came to light on October 20, 2006 when the Prosecutor’s
Public Information Adviser, Christian Palme, filed an internal complaint
alleging that Moreno Ocampo had “committed serious misconduct . . . by
committing the crime of rape, or sexual assault, or sexual coercion, or
sexual abuse” against a South African journalist nineteen months
earlier.17 Palme argued that the Prosecutor’s conduct had caused serious
harm to the reputation of the Court and called on the States Parties to
remove him.

The full story of what happened in the Lord Charles Hotel, three days
before the Security Council referred the conflict in Darfur to the ICC,
is unlikely ever to be known. Moreno Ocampo has denied committing rape.
But there is no evidence that he has denied the veracity of a recording
which suggests that his behavior in the hotel fell far short of the
“high moral character” demanded by the Rome Statute.18

For Yves Soroboki, Moreno Ocampo’s spokesperson, March 28, 2005, began
with a phone call from the journalist, thanking him for having arranged
an interview with Moreno Ocampo but saying the Prosecutor was making her
“a little nervous.” “I have a problem because he doesn’t want to leave,”
she told Soroboki, who later reported the conversation to Palme. “I’m
trying to leave and go to the beach but the Prosecutor wants to come
with me, so what should I do? . . . I think he has ulterior motives.”
Later that day, the journalist called Sorokobi again and told him that
the Prosecutor had, in Sorokobi’s words, “forced himself on her.” Two
days later, the two spoke for a third time and Sorokobi recorded the
conversation. Although the journalist is weeping, and often
unintelligible, she can be heard saying: “He took my [house and car]
keys . . . Had to do that to get out of this . . .” Soroboki told Palme,
who recorded their conversation: “She said that was the only way he
would let her go.”

In December 2006, after interviewing the Prosecutor and the journalist,
a panel of ICC judges found Palme’s complaint “manifestly unfounded” and
asked him “to obtain all copies of taped conversations between Ms […]
and Mr Sorokobi and hand them to the President for destruction.” Soon
after, Moreno Ocampo dismissed Palme, summarily and immediately, for
“serious misconduct.” Palme appealed to the Court’s internal
Disciplinary Advisory Board, which recommended that he be reinstated.
Moreno Ocampo ignored the recommendation. Palme then appealed to the
Administrative Tribunal of the International Labor Organisation (ILOAT),
which has jurisdiction to settle labor disputes in many international
organizations.19 The ILOAT judgment,20 made public on July 9, 2008, was
harshly critical of the Prosecutor and fully exonerated Palme, quashing
his dismissal. It found that his complaint was neither made falsely nor
with malicious intent. Rather, the Tribunal said, Palme had “reasonable
grounds” for believing sexual misconduct by Moreno Ocampo: the
journalist, it said, had “indicated unambiguously that the prosecutor
‘took [her] keys’ and she had consented to sexual intercourse ‘to get
out of [the situation].’” Sorokobi’s evidence was “secondary evidence
but, depending on the circumstances, it may have been probative in
criminal proceedings.”

The ILOAT found that Moreno Ocampo had committed a “breach of due
process” in firing Palme and ordered the ICC, on behalf of the
Prosecutor, to pay Palme 248,000 euros. Human Rights Watch’s letter of
September 2008 drew attention to the ILOAT ruling, the economic costs to
the court—“already under strain to account responsibly for its budget to
states parties”—and the impact on staff morale. The rights group said it
was “disturbed” that the Prosecutor had ignored the recommendation of
the Court’s own Disciplinary Advisory Board.

UN High Commissioner for Refugees Ruud Lubbers had resigned in February
2005 following allegations of sexual harassment less grave than those
against Moreno Ocampo—and many in The Hague believed the Prosecutor
ought to follow his example. Details of the affair had emerged just as
the OTP was drafting a code of conduct for investigators, and some were
dismayed when Moreno Ocampo made clear he intended to fight on. But the
Palme case was obscured, the day after the ILOAT judgement was made
public, by Moreno Ocampo telling the Washington Post of his most
ambitious application yet: to have the Sudanese president arrested on
charges of genocide, crimes against humanity, and war crimes. We have
been told, by several sources, that Moreno Ocampo at first ruled out
pursuing the Sudanese leadership. By the autumn of 2007, however, he had
his sights on the president. In the words of one former colleague, “He
jumped to the very top. He did not wish to have advice from attorneys.”
In addition, investigations into the Darfur case had diminished rather
than expanded, and the Prosecutor was continuing to rely heavily on
secondary material, including the 2005 Cassese Commission’s sources—many
of whom were unnamed and could therefore never be produced in a
courtroom.

In December 2007, Moreno Ocampo signaled his direction publicly in a
briefing to the Security Council. Before going to New York, he had
drafted a presentation outlining his theory that Bashir had designed a
“two-stage” genocide—massacres in the villages in 2003-04, and then the
“slow death” of the Fur, Masalit, and Zaghawa tribes in displaced camps.
Colleagues had expressed concern, questioning the strength of his
argument for genocide in the camps, and Moreno Ocampo reluctantly
accepted a revised text. To their dismay, he repeated his original
claims when he spoke in New York. “This is typical Moreno Ocampo,” says
Palme. “He would constantly tear up and destroy texts, forcing sometimes
all night sessions working and re-working texts. The worst times were
before the ASP and before the UNSC Darfur reports.”

There is much speculation, inside and outside the ICC, at how Moreno
Ocampo arrives at his figures for death rates in Darfur. Unpublished UN
monitoring figures for 2008 range from 60 to 350 violent fatalities a
month, for an average of about 130. The activist group Genocide
Intervention Network has a similar number, of around 150 a
month.21 Moreno Ocampo has a very different figure. Speaking at a
conference at Yale University on February 6, this year, the Prosecutor
claimed that “as of today, 5,000 people are dying each month in Darfur,”
including through “slow death” by hunger and disease.22 The OTP itself
possesses no specialist epidemiologists or demographers who might
generate such figures, and no one working in Darfur proposes figures
even remotely close to these. While some estimates for mortality during
the peak of the crisis in 2004 generated figures this high, a specialist
review of mortality data undertaken by the U.S. General Accountability
Office23 wrote off high-end estimates as unreliable. In the last two
years, relief agencies have warned of increasing malnutrition whenever
the World Food Program cuts its rations or fighting erupts, but there is
no evidence of a generalized famine on the scale that the Prosecutor
insists is underway. Moreno Ocampo’s arithmetic is simply fantastical.

Most of the controversy over the Bashir case has focused on the prudence
of indicting a head of state in a fragile country prone to conflict.
After a decade of attempts to coerce or overthrow the regime, the U.S.
and European governments decided in 2001 to pursue the path of
negotiation, leading in January 2005 to a peace agreement that brought a
commitment to democratic elections and an end to twenty-one years of war
between north and south. Slowly and painfully, with many setbacks and
much resistance from the Sudan government, the key provisions of the
“Comprehensive Peace Agreement” are now being implemented. There are
serious problems still, especially over delineation of the north-south
border, but a ceasefire has held most of the time, the northern army has
withdrawn from almost all parts of the south, and a power-sharing
government is functioning. Elections have been scheduled for this year
and a referendum on self-determination for South Sudan for 2011. In
Darfur, international efforts have focused on sustaining humanitarian
access and deploying an international peacekeeping force, now
approaching its mandated size of 26,000 men.

All this could be endangered by targeting Bashir directly. Many Sudanese
fear that an arrest warrant could make things significantly worse,
perhaps bringing about the very sorts of atrocities that the ICC is
meant to deter. Moreno Ocampo disagrees. “For people in Darfur, nothing
could be worse,” he toldForeign Policy magazine.24 “We need
negotiations, but if Bashir is indicted, he is not the person to
negotiate with.” Not even Darfur’s rebel Justice and Equality Movement
(JEM) has a position as militant as this—in Doha, Qatar, on February 17,
JEM signed a “Declaration of Intent” with the government for a peaceful
settlement of the conflict.

During the seven months that the ICC judges deliberated, Bashir made his
position perfectly clear: “We are not looking for problems, but if they
come to us we will teach them a lesson they won’t forget.” Moreno Ocampo
dismissed this and other warnings in his speech to the Security Council
in December: “The facts are that victims of crimes committed in Darfur
are 3 million African citizens, that justice will promote peace . . .
Threats against victims, peacekeepers, and aid workers should be seen
for what they are—criminal intent—and not rewarded with promises of
impunity.”25 Although the Prosecutor is obliged to consider the
interests of victims when bringing a prosecution, this section of his
report ran to just four lines and failed to consider that the three
million had a very obvious interest in a humanitarian operation that was
keeping them alive. Minutes after the arrest warrant was issued,
Khartoum began expelling relief agencies, threatening at least 70
percent of humanitarian aid to 4.7 million people.

Less attention has been paid to the substance of the arrest warrant and
the fact that the Pre-Trial Chamber threw out the genocide charges,
Moreno Ocampo’s principal reason for prosecuting despite the obvious
risks. The judges wrote that “the Prosecution acknowledges that it (i)
does not have any direct evidence in relation to Omar Al Bashir’s
alleged responsibility for the crime of genocide and (ii) its
allegations concerning genocide are solely based on certain inferences
that, according to the Prosecution, can be drawn from the facts of the
case.”26 In a remarkable humiliation for Moreno Ocampo, they proceeded
(with one dissenting opinion) to dismiss those inferences.27

This will not have come as a surprise to the Prosecutor’s most informed
critic, his former senior trial attorney for Darfur. “Serious
disagreement remains as to whether Al Bashir and the Sudanese government
intended actually to destroy, in part, the Fur, Masalit and Zaghawa
peoples of Darfur,” Andrew Cayley wrote beforehand in a commentary on
the genocide charges.28 “It is difficult to cry government-led genocide
in one breath and then explain in the next why 2 million Darfuris have
sought refuge around the principal army garrisons of their province. One
million Darfuris live in Khartoum where they have never been bothered
during the entire course of the war.” Rony Brauman, a founder and former
president of Médecins Sans Frontières—which has teams on the ground in
Darfur—heaped scorn on the Prosecutor. “Can one seriously imagine Tutsis
seeking refuge in areas controlled by the Rwandan army in 1994?” he
asked. “Or Jews seeking refuge with the Wehrmacht in 1943?”29

For Western nations committed to the ICC, and with interests in
political stability and cooperation, Moreno Ocampo looks a lot less
attractive than he once did. The political efforts required to halt ICC
activity at the Security Council would be great, and few Western
governments wish to risk the wrath of domestic human rights
constituencies by appearing to wobble on an abusive regime. The effort
needed to convince States Parties to remove the Prosecutor would be even
greater, requiring them to admit that they appointed the wrong man to
begin with.

Africans were once the most passionate supporters of the ICC: half of
the countries that first ratified the Rome Statute were African, and
three of the first four cases were referred by African governments. Now
they, too, are having second thoughts. They don’t see the Court dealing
with cases outside Africa. They worry that warrants like those against
Bashir and the Congolese opposition leader Jean-Pierre Bemba (seized in
Belgium with a sealed warrant in May 2008) may be turning criminal
prosecution into a selective political instrument. Many who struggle for
human rights fear that abusive governments have been handed exactly the
pretext they need for refusing any international cooperation. Sudanese
whose vocation is human rights find themselves torn: they want to see
Moreno Ocampo pursue the highest ranking suspects and establish the
principle that there can be no impunity for the most horrific crimes,
but they remain fearful of a backlash in which ordinary Sudanese will
once again find themselves in the firing line. They also fear that their
hopes for a relaxation of Sudan’s security laws and expectations for
moderately free elections will be dashed when Bashir concludes that the
Republican Palace is his safest, and perhaps only, safe house.

Moreno Ocampo is a man who diminishes with proximity. Six years after he
became Prosecutor, the priceless human capital invested in his office is
draining away. Lawyers and investigators who served in the OTP, and who
count among the brightest and the best of their profession, say they
believe the Court’s reputation, and perhaps even its life, is at risk.
Their desire to make a success of the court remains as strong as ever it
was—but not under the current Prosecutor. “My time in the ICC was a
mixture of a fascinating time and a terrible time,” one of these exiles
said shortly before Moreno Ocampo demanded Bashir’s arrest. “The
Prosecutor was erratic, so irrational sometimes that you felt despair.
He uses his charisma in a negative way. Everyone in the OTP felt
disrespected. But I still have a dream that one day—along with some
other good people—I will be able to return.”

1. Jess Bravin, ‘For Global Court, Ugandan Rebels Prove Tough
Test,’ Wall Street Journal, June 8, 2006.
2. Antonio Cassese, ‘Observations on Issues Concerning the
Protection of Victims and the Preservation of Evidence in the
Proceedings on Darfur Pending Before the ICC,’ ICC-2/05, August 25,
2006.
3. Cassese compiled a list of 51 individuals he considered should
be investigated for crimes. But he held back from genocide, ‘the crime
of crimes’, and later said Moreno Ocampo should have done the same,
‘filing charges that are more appropriate and easier to prosecute, such
as war crimes and crimes against humanity.’ Antonio Cassese, ‘Flawed
International Justice for Sudan,’ The Daily Star, July 16, 2008.
4. Louise Arbour, ‘Observations of the United Nations High
Commissioner for Human Rights invited in Application of Rule 103 of the
Rules of Procedure and Evidence,’ ICC-02/05, October 10, 2006.
5. ‘Prosecutor’s Response to Arbour’s Observations of the United
Nations High Commissioner for Human Rights Invited in Application of
Rule 103 of the Rules of Procedure and Evidence,’ ICC-02/05, October 19.
2006.
6. Andrew Cayley, ‘Witness Proofing—The Experience of a
Prosecutor,’ Journal of International Criminal Justice, 6, 2008, p. 780
7. Women’s Initiative for Gender Justice, ‘Gender Report Card of
the International Criminal Court 2008,’ The Hague, 31 December 2008, pp.
54 and 76.
8. ‘Ma i massacri continuano con la complicità del Sudan’, La
Repubblica, February 28, 2007.
9. Harun somehow got wind of the plan—it is believed through an
Ocampo aide was who being less than discreet in New York—and cancelled
his flight.
10. The Controversial Actions of the Prosecutor of the
International Criminal Court: a ‘Crisis of Maturity’? The Hague Justice
Portal, September 15, 2008.
11. The Prosecutor did not respond to letters written by others,
including one of us (Alex de Waal) in June 2008.
12. ‘Los Veraderos Negocios de Moreno Ocampo’ (The Real Business
of Moreno Ocampo), Noticias, December 7, 2002.
13. Like Moreno Ocampo himself, Cavallo was never as popular in
Argentina as he was abroad. As minister, he presided over a crippling
recession and 66% devaluation of the peso. After resigning in 2001, he
was accused of approving more than $100 million in illegal arms sales
while in office.
14. Beni Declaration by women’s rights and human rights NGOs from
the Democratic Republic of the Congo on the Prosecutions by the ICC,
Beni, North Kivu, DRC, September 16, 2007.
15. Lisa Clifford, ‘Ocampo Underwhelms in Landmark Trial,’
Institute for War and Peace Reporting, January 29, 2009,
http://www.iwpr.net/?p=acr&s=f&o=349621&apc_state=heniacr2009
16. Israel is not a party to the Rome Statue and most lawyers say
the ICC could only become involved if someone with dual nationality was
responsible for crimes and his other nationality made him subject to ICC
jurisdiction. Moreno Ocampo himself ruled out ICC involvement just two
weeks earlier.
http://www.rnw.nl/internationaljustice/icc/theicc/090115-icc-gaza
17. Christian Palme, ‘Complaint against ICC Prosecutor Luis
Moreno Ocampo Concerning Serious Misconduct,’ October 20, 2006.
www.innercitypress.com/ocampocomplaint.pdf
18. Article 42.3 of the Rome Statute: “The Prosecutor and the
Deputy Prosecutors shall be persons of high moral character, be highly
competent in and have extensive practical experience in the prosecution
or trial of criminal cases. They shall have an excellent knowledge of
and be fluent in at least one of the working languages of the Court.”
19. The ICC response to the ILOAT is remarkably intemperate,
accusing Palme of ‘pernicious and self-serving misappraisal of his own
“evidence”,’ and ‘bewildering arrogance’. It also claims that ‘the
alleged rape victim denied unambiguously that she had been raped by the
Prosecutor.
20. See
http://www.ilo.org/public/english/tribunal/fulltext/2757.htm
21. Genocide Intervention Network, ‘GI-Net End of 2008 Summary,’
February 2009,
http://www.genocideintervention.net/files/u1/GINET_-_Year_End_Review_-_2... . The GI-Net figure includes deaths in JEM’s attack on Omdurman, which are excluded from the UN data because they did not occur in Darfur.
22. Possibly Moreno Ocampo has taken the UN’s headline figure of
300,000 death and divided it by 60 months of crisis to arrive at 5,000
per month—but this would not be a credible approach given that all data
indicate that the vast majority of those deaths occurred between 2003
and early 2005. The ICC’s own investigators produced a figure of 35,000
violent deaths in 2003-04 and many fewer since.
23. General Accountability Office, ‘Darfur Crisis: Death
Estimates Demonstrates Severity of Crisis, but Their Accuracy and
Credibility Could Be Enhanced,’ GAO-07-24, November 9, 2006.
24. ‘Seven Questions: Luis Moreno-Ocampo,’ Foreign Policy,
February 2009. http://www.foreign
policy.com/story/cms.php?story_id=4698&page=0
25. Eighth Report of the Prosecutor of the International Criminal
Court to the UN Security Council Pursuant to UNSCR 1593 (2005), December
2008, para 85.
26. ICC, Pre-Trial Chamber I, “Decision on the Prosecution’s
Application for a Warrant of Arrest Against Omar Hassan Ahmad Al
Bashir,” March 4, 2008, Para 111.
27. It was followed the very next day with Pre-Trial Chamber III
comprehensively revising the charges laid against Jean-Pierre Bemba.
Each of Moreno Ocampo’s three highest-profile cases has been savaged by
the respective judges.
28. Andrew Cayley, ‘The Prosecutor’s Strategy in Seeking the
Arrest of Sudanese President Al Bashir on Charges of Genocide,’ Journal
of International Criminal Justice, Vol. 6, 2008, 829-840.
29. Rony Brauman, ‘The ICC’s Bashir Indictment: Law Against
Peace,’ World Politics Review, July 23, 2008,
http://www.worldpoliticsreview.com/article.aspx?id=2471. Julie Flint is
a journalist and researcher. Alex de Waal is a researcher, writer, and
activist on African issues. They are co-authors of Darfur: A New History
of a Long War. CommentsRead Comments | Add Your Comments Submit Your
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