Prosecutor Faces Fine for Misconduct as Trial Stopped (updated)

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The International Criminal Court has ordered an immediate halt to its first trial because the prosecutor, Luis Moreno-Ocampo, has refused to comply with its orders.

The judges raised the possibility of fining the prosecutor for misconduct under article 71 of the court’s governing statute.

They said they would consider next week whether to release the defendant Thomas Lubanga.

Lubanga denies enlisting and conscripting children under 15 to his Union of Congolese Patriots to kill members of a rival tribe during a war in the Democratic Republic of Congo from 1998 to 2003.

In a judgment delivered this afternoon, the three members of the trial chamber, headed by Sir Adrian Fulford, said “no criminal court can operate on the basis that whenever it makes an order in a particular area, it is for the prosecutor to elect whether or not to implement it, depending on his interpretation of his obligations”.

The issue had arisen because the prosecutor had failed to comply with repeated orders to turn over information to the defence that would identify a witness.

It was for the judges to decide whether protective measures were needed for a witness, they told the prosecutor.

These are issues for the court, and the court alone, to determine, having heard submissions and having considered all the information the judges consider necessary and relevant.

The prosecutor now claims a separate authority which can defeat the orders of the court, and which thereby involves a profound, unacceptable and unjustified intrusion into the role of the judiciary.

Therefore, the prosecutor has elected to act unilaterally in the present circumstances, and he declines to be “checked” by the chamber.

In these overall circumstances, it is necessary to stay these proceedings as an abuse of the process of the court because of the material non-compliance with the chamber’s orders of 7 July 2010, and more generally, because of the prosecutor’s clearly evinced intention not to implement the chamber’s orders … if he considers they conflict with his interpretation of the prosecution’s other obligations.

Whilst these circumstances endure, the fair trial of the accused is no longer possible, and justice cannot be done, not least because the judges will have lost control of a significant aspect of the trial proceedings as provided under the Rome Statute framework.

The prosecutor said he would appeal.

Comment: Moreno-Ocampo still doesn’t get it. After seven years at The Hague and with two miserable years left to serve, he understands less about the role of a prosecutor than a first-year law student.

Let me spell it out for him: prosecutors prosecute, judges judge. When courts make orders, everyone else has to obey them. It’s called the rule of law.

Regular readers of my blogs will know that I have been arguing for some two years now that Moreno-Ocampo should resign. He should step down immediately and let someone else try to retrieve the situation. Otherwise the legacy of his nine-year term will not just be no convictions. It will be no completed trials either. A glance at the court’s current news releases shows one trial stayed, another postponed and a third in jeopardy.

Moreno-Ocampo is simply too arrogant to accept responsibility for his own failings. In his mind, it is always someone else’s fault. He has let down millions of people who put their faith in international criminal justice. The international community should not put up with him for a moment longer.

Update: The court ordered Lubanga’s release on July 15 but suspended its decision pending the prosecutor’s inevitable appeal. There is an unofficial transcript of the court’s ruling here and a round-up of subsequent comment here