Prosecutor’s Behaviour Reflects Poorly on the Court, Appeals Chamber Says

Luis Moreno-Ocampo has more than once been criticized on this blog for his predilection to make statements that seem inappropriate for someone in his position as Prosecutor of the International Criminal Court. He stepped down a few days ago, replaced by Fatou Bensouda who began her nine-year term as the Court’s second Prosecutor. As a parting salute, only a few days before Moreno-Ocampo’s departure the Appeals Chamber issued a decision faulting him for statements in an interview in the magazine Vanity Fair that he conducted with British barrister Philippe Sands.

Amongst other things, the decision contains an interesting discussion of the scope of the presumption of innocence.

According to the Appeals Chamber:

31. … the Prosecutor did not exercise sufficient caution, either in the manner in which the interview was conducted or in the content of his statements. The Prosecutor discussed the case in depth and specific evidence against Mr Gaddafi. For nearly three hours, the Prosecutor and Mr Sands reviewed and analysed a 38 minute speech of Mr Gaddafi, with the Prosecutor frequently commenting on the veracity of Mr Gaddafi's statements or on the evidence against him. The Appeals Chamber considers that this detailed discussion of evidence was inappropriate in the context of a media interview. The in-depth discussion of evidence should generally be left to the courtroom. In relation to the content of the Prosecutor's statements, the Appeals Chamber notes that, on several occasions, the Prosecutor stated, as fact, material elements of the allegations against Mr Gaddafi or Mr Al-Senussi, saying, for example, "There was no battle. It was people going to a funeral. That's a crime against humanity". On other occasions, the Prosecutor passed judgment on the credibility of Mr Gaddafi's statements, stating, point blank, "He's lying". The Appeals Chamber finds that the Prosecutor's statements on these sub judice matters were inappropriate in that they gave the impression that factual issues yet to be determined by the judges had been determined or could not be contested.?

32. The Appeals Chamber is also concemed with the way in which the Prosecutor's statements and the interview are recounted in the Vanity Fair Interview. There is no indication that the Prosecutor clarified that the case was at an early stage or that it would be up to the Pre-Trial Chamber to decide whether to confirm charges and, if charges were confirmed, for the Trial Chamber to decide on Mr Gaddafi's criminal responsibility. To the contrary, the Vanity Fair Interview says that it is the Prosecutor "who may decide [Mr Gaddafi's] fate". While the Prosecutor did not publish the Vanity Fair Interview himself, the Appeals Chamber considers that it appears that the Prosecutor failed to exercise due caution in how his interview was reported.

33. For the aforementioned reasons, the Appeals Chamber finds that the Prosecutor's behaviour was clearly inappropriate in light of the presumption of innocence. Such behaviour not only reflects poorly on the Prosecutor but also, given that the Prosecutor is an elected official of the Court and that his statements are often imputed to the Court as whole, may lead observers to question the integrity of the Court as a whole.

The full decision is available here.

Thanks to Joe Powderly.