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Joshua Rozenberg
Sunday 13th December 2009
Okafka Creates New Offences

This is not the first time I have drawn attention to the lack of judgment demonstrated by the prosecutor of the International Criminal Court, Luis Moreno-Ocampo. He really has very little understanding of how prosecutors are meant to operate under the rule of law.

But few people thought that he would try to create new laws and seek to punish people for breaking them. Little wonder that one commentator has already renamed him Okafka.

In a report to the UN Security Council on December 4, Ocampo said (at paragraph 44):

... as our investigation into the case of President Al Bashir demonstrated that he used the State apparatus not only to commit massive crimes, but also to dissimulate them, and therefore facilitate their continuation, my Office is considering the criminal responsibility of Sudanese officials who actively deny and dissimulate crimes...

What does this mean? Ocampo's command of English is clearly greater than mine because I had to look up "dissimulate" in a dictionary. It apparently means the same as "to dissemble", which is defined as to conceal one's motives or disguise one's intentions.

This makes very little sense. If Sudanese officials are committing war crimes, then they must be culpable whether or not they conceal their motives. And Ocampo can hardly be unfamiliar with people who commit crimes and then "actively deny" responsibility for them. We have a method of deciding whether or not they are culpable. It is called a "trial".

So perhaps Ocampo is talking about people who have not committed war crimes at all. Perhaps he is talking about people who "actively deny" crimes committed by others. Surely he has come across such people before? We call them "defence lawyers".

And why confine Okafka's law to Sudanese officials? We could lock up everyone who does not share Ocampo's view of international conflicts. It's certainly easier than securing convictions for war crimes - something that he has not yet achieved in six-and-a-half years at the International Criminal Court.

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About Joshua Rozenberg

Joshua Rozenberg is an independent legal commentator who presents Law in Action on BBC Radio 4.

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