Monday, February 14, 2011

ICC Pre-Trial Chamber rebukes Prosecutor

On Friday the ICC's Pre-Trial Chamber (PTC) issued its decision on an application by Mohammed Hussein Ali - one of the so-called Ocampo Six for whom the Prosecutor has sought a summons to appear in pursuance of his investigation into Kenyan post-electoral violence. The application sought the PTC's permission to "participate fully" in the proceedings relating to the Prosecutor's request for summonses to be issued under article 58(7) of the Rome Statute.



Not surprisingly the PTC denied the application on the same basis that it did a previous "amicus curiae" request by another one of the Ocampo Six to make representations to the PTC regarding the Prosecutor's article 58(7) request, namely that under the Rome Statute article 58 proceedings are done ex parte, with the "exclusive participation of the Prosecutor".



No surprises there. What is interesting about the PTC's decision is it's rebuke of Prosecutor Ocampo for his (very) public announcement of the persons he was seeking summons for last December. In dismissing the applicant's argument that on the basis of the negative publicity he has been exposed to as a result of the Prosector's public request he should be allowed to participate in the proceedings at this stage, the Court noted:



"While it is not the Chamber's role to comment and advise the Prosecutor on his interaction with the press and media, the Chamber nevertheless is concerned if his actions have the potential to affect the administration of justice and the integrity of the present proceedings before the Chamber. In this respect, the Chamber expresses its deprecation regarding the Prosecutor's course of action in the present case, as it has unduly exposed the applicant to prejudicial publicity before a determination of the Chamber pursuant to Article 58 of the Statute has even been made."



Mr Ocampo has courted controversy in the past, not only for his prosecutorial strategy and choices, but also his handling of the media. Some criticism is probably unavoidable given his high profile position and the attendant responsibility, and Mr Ocampo has proved himself to have a thick skin. While Mr Ocampo's term of office is soon due to end soon, this criticism by the PTC of the work of the Prosecutor should give his successor some pause for thought ...