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Should the Prosecutor of the International Criminial Court be removed from office?

Over the past weeks, criticism has been raised regarding the Prosecutor of the International Criminal Court, the Argentinean Luis Moreno-Ocampo. This criticism has not only involved his handling of the complaint against him for his dismissal of a media adviser, who made a complaint against Moreno-Ocampo of sexual misconduct with a South African female journalist. (The complaint was denied by Moreno-Ocampo as well as the woman involved, and eventually dismissed by the Court as “manifestly unfounded”; nevertheless, the Administrative Tribunal of the International Labour Organization awarded the media adviser two years’ salary for compensation for wrongful dismissal as well as moral damages.) But Moreno-Ocampo has also been under attack because of his request made on July 14 for an arrest warrant to be issued against Sudan’s president Omar Al-Bashir (we reported earlier). The decision was a historic step, for the first time a serving head of state was tried to be held responsible for alleged war crimes and genocide. But some say the prosecutor made a political statement rather than one based on actual evidence. His choice to accuse Al-Bashir of committing genocide, instead of more easier to prosecute crimes such as crimes against humanity, has been questioned. Also, the prosecutor is said to hinder the fragile peace process in Sudan by seeking an arrest warrant for the President of the country. This, of course, once again raises the question of whether or not international peace and international justice, the desire to promote peace and the fight against impunity, can go hand in hand.

This debate regarding Moreno-Ocampo is, however, unlikely to lead to his removal. The possibility to remove the prosecutor from office is governed by Art. 46 Rome Statute. According to this provision the removal may only be decided where the prosecutor

(a) Is found to have committed serious misconduct or a serious breach of his or her duties under this Statute, as provided for in the Rules of Procedure and Evidence; or
(b) Is unable to exercise the functions required by this Statute.

Moreover, the decision requires an absolute majority of the States Parties to the Rome Statute. In other words, a removal is highly unlikely.

Coverage of this subject in The Guardian and the International Herald Tribune.

3 Comments

  1. Prasad Subramanyan Prasad Subramanyan 7 September 2008

    I think there two main questions here. The first one as to whether the Prosecutor can be removed because of these allegations of sexual harassment? And the Second on whether he can be removed based on his filing of charges against Al-Bashir.
    The latter seems unlikely, since it doesn’t look so blatantly wrong that it could be brought under Art. 46, Rome Statute. And the former doesn’t seem to be included under an statute of sorts.
    I agree, i doubt anything will actually come out of this whole matter. On that matter, I would like refer to – http://www.asil.org/insights/2008/07/insights080728.html
    It provides a very good legal analysis of the maintainability of the application.

  2. daniel khabo daniel khabo 15 September 2008

    I do not think that it is a wise thing or rather, a lawful thing to say that the prosecutor should resign. People, we are always being told that the is impartial or the hands of justice are open to everyone.In our minivipal legal systems, for example, we have the Director Of public Prosecutions, whose office is created by the constitution. the provisions in question provedes that the DPP must stand his cround to succumb to political coersion. that is he must exercise his duties without fear of anything. So it is unfounded to allege that when Mr Moreno-Ocampo Indictes the Sudanese president he is being politcally biased. That is his duty as the prosecutor. He has to rely on evidence and because what he says is true,politicians will always be of the “political view”that he is being political. He is exercising his functions as the Directorate of International Criminal Prosecutions. So I am of the opinion that he is right for all intends and purposes to indict anyone as long as ther is evidence allowing him to do so. The question of fragility of peace in Sudan is a political one and must be settled by politicians themselves. The prosecutor is right! Let him do is job without being partial otherwise the international criminal court would be of no use if the functions of its officers thereof are being put to the questions of reliability and politics.

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