The prosecutor of the International Criminal Court is still in trouble over an ill-judged article he wrote for the Guardian about Omar al-Bashir, the president of Sudan.
As I explained here, a lawyer appointed by the court to represent Bashir's interests argued that Luis Moreno-Ocampo's article made it impossible for Bashir to receive a fair trail.
In a comment at the end of my own article, I reported that the lawyer's arguments had been ruled inadmissible because she had not been acting within her mandate.
Last Friday, however, the prosecutor's article was raised once again by the Office of Public Counsel for the Defence (OPCD), a permanent component of the court that supports defence lawyers.
Its principal counsel, Xavier‐Jean Keïta, lodged a submission with the court arguing that
the contents of the Guardian article directly raise issues concerning the presumption of innocence, the rights of the defendant, and the fairness and impartiality of the proceedings.
Keïta's submission, which has not yet appeared on the court's website, adds:
Given the potential prejudice which could arise from the Guardian article, the OPCD respectfully submits that it is in the interests of justice to determine at the present juncture whether its contents impact on the presumption of innocence and the fairness and impartiality of the proceedings, and to determine an appropriate remedy for such prejudice. The prosecutor has utilized the media to convey his legal position concerning the responsibility of the defendant; equality of arms requires that the defendant be accorded a legal forum to respond.
Keïta sought permission to argue that the Guardian article would deter defence witnesses from coming forward. Alternatively, he urged the court to deal with the article on its own motion.
It will be much harder this time for the court to conclude that one of its own organs is exceeding its authority by raising this issue.
Update, September 14
The court has now rejected Keita's request. In a decision dated September 13, not yet available on the court's website, Judge Tarfusser decided that Moreno Ocampo's behaviour "neither occurred in the context of proceedings, nor was in violation of any direction given by the court". It therefore fell "outside the scope of the powers vested in the chamber by rules 170 and 171".
Joshua Rozenberg is an independent legal commentator who presents Law in Action on BBC Radio 4.
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