Character Assassination in the Court of Public Opinion

by Tyler Moselle, Harvard University

“To what extent is the ICC relevant in the context of human rights and international ‘justice’ juxtaposed with the hard realism of political treaties and negotiations?”

Alex de Waal and Julie Flint employ character assassination on Luis Moreno Ocampo in their World Affairs article “Case Closed: A Prosecutor Without Borders.” Ironically, they are guilty of the same crime they accuse Ocampo of: being overly occupied with the court of public opinion. Or perhaps, that is the only court they as Sudan specialists, and Ocampo as the ICC’s first Prosecutor, have recourse to when attempting to right the wrongs of injustice.

De Waal and Flint view Ocampo’s indictment of Sudanese President Omar al-Bashir as poorly conceived and damaging to humanitarian missions and negotiations. Then they work backward from this central argument to characterize Ocampo as obsessed with the public spotlight, inept in matters of legal detail and argument, micromanaging, and potentially morally repugnant (noting specifically: rape charges and pursuing wealth as a lawyer for odd client combinations).

They present their argument in the opposite format however, arriving at the Bashir indictment as the zenith of Ocampo’s misdeeds. What do they use as evidence for their overall critique? They quote former ICC staff members, compare his presentations and numbers with other organizations and datasets, and use interviews with individuals previously associated with his activities as a lawyer in Argentina (as the Catholic Priest case demonstrates).

What is the indictment of de Waal and Flint? As their title suggests, it is an air-tight verdict of “case closed” that Ocampo is not the right man for the job.

But do the authors, in their desire to support a long-term and sustained commitment to Sudan’s peace process which supposedly excludes “sexy” spotlight antics, come to paradoxically endanger an institution that should be supported? Do not de Waal and Flint undermine human rights sensibilities by assassinating the character of Ocampo, just as they similarly critique Ocampo for doing to al-Bashir? Are they not indicting a man, and the something of the institution he represents, with shoddy evidence?

De Waal and Flint argue that Ocampo should not have indicted al-Bashir because it may make him more resistant to international negotiations and peace treaties and thus erode prospects for long-term solutions in Sudan and perhaps even threaten the ICC itself. Simultaneously, de Waal and Flint indict Ocampo which may make him more resistant to changing the way he approaches his position as Prosecutor of the ICC.

This argument makes me more skeptical of their core concern which is latently present but never articulated: indictments of heads of State and other internationally prominent individuals, and perhaps even the ICC itself in practice though not theory, are not useful if one wishes to pursue a “humanitarian agenda.” In fact, the globe-trotting, flashy lawyer spotlight of the ICC may be harmful to a true humanitarian agenda.

What core evidence do the authors present for their position? None. They have a tentative hypothesis which they try to slip in under the guise of assassinating Ocampo’s reputation. They present no solid evidence that Ocampo’s indictment of al-Bashir has had serious deleterious effects on the humanitarian crisis in Sudan. Perhaps they should have spent more time performing serious research and collecting serious data to prove their claim just as they criticize Ocampo for failing to pay attention to details in preparing for cases.

The authors believe in theory the ICC should survive—only with a more competent and savvy Prosecutor. But in the meantime, they certainly throw a wet blanket on those who applaud the effort of the ICC, through Ocampo, to live up to its inspiring origins and for the first time, indict a head of State who has presided over a…Civil War?

The article induced me to think of three questions which need to be answered: 1) To what extent is the ICC relevant in the context of human rights and international “justice” juxtaposed with the hard realism of political treaties and negotiations?; 2) How can the ICC adequately indict heads of state for egregious crimes and what types of evidence have been used most successfully in other similar circumstances?; and 3) If de Waal and Flint do not think Ocampo is fit for the ICC Prosecutor position, who is and why? How do we know they are qualified? How will they use the office of the ICC?

Until we are able to answer those basic questions, debate over the ICC’s role may remain an unresolved verdict.

Tyler Moselle is a Research Associate at Harvard Kennedy School’s Carr Center for Human Rights Policy.