Ocampo 4: A Flawed Defense Strategy

by Mwarang'ethe
Up to now, we have refrained from commenting too much on the on going ICC case of the Ocampo six who have been reduced to four.  We have done so because, we hold this Kangaroo Court in utter contempt for it is being used to throw dust into the eyes of the long suffering African people. First, we acknowledge that, serious crimes were committed in Kenya in 2007/8. Secondly, we also, acknowledge, the need for justice for the victims.

Having conceded that, serious crimes were committed, and there is need for justice, we hold a very well considered opinion that, the best justice we can give to the victims of that senseless violence is to devote our attention to a careful reformation of the system which produce such senseless disorder in Africa. Regrettably, instead of devoting ourselves to this noble cause, we have cried for vengeance. The problem is that vengeance shall not remove the real causes of the rampant social disorder in Africa. This being the case, we risk being colonised by stealth in the name of justice.

Those who are ignorant of African history may find the above assertion far fetched. However, all one has to remember is this. In 1526, Nzinga Mbemba of Kingdom of Kongo, a.k.a. Alfonso I wrote the following plea to the King of Portugal:

“We cannot reckon how great the damage is, since the merchants daily seize our subjects, sons of the land and sons of our noblemen, vassals and relatives ... and cause them to be sold; and so great, Sir, is their corruption and licentiousness that our country is being utterly depopulated.”

The question is, did the Portuguese help in any way? They not only encouraged slave trade, but, ended up colonising Africa. Does any believe this time is different? If so, how and why?

Having noted the above, we would advise the Ocampo four to “pause” their frantic defence, change their defence strategy and take on Ocampo first. The problem we find with their defence is that, they have entrusted their fate to mainstream lawyers who will not challenge this body like Milosevic did until they killed him by refusing him medical attention. The truth is that, by taking his own defence, Milsoveic proved a serious challenge to the corrupt international justice system. For instance, his trial was supposed to be broadcast, but, since Milosevic was prepared, all this was dropped.

Thus, we propose, in terms of military art, they need to switch to an offensive strategy and forget their passive defense which their lawyers are pursuing. In fact, we would argue that, their defensive strategy amounts to letting  a long and unbroken line of troops move for so long which must be avoided completely if one is to win any war. As a matter of fact, their strategy amounts to fortification in the age of aerial warfare. As such, they need to abandon their fortifications and launch the greatest weapon of offensive warfare i.e. a surprise and ferocious attack.

This being the case, it is our considered view that, the best option at this moment is to mount a serious attack on the prosecutor and the ICC at large on account of partiality. As an example, they can argue that, the ICC prosecutor and the judges are in clear violation of Article 45 of the Rome Statute entitled: Solemn Undertaking which provides that:

“Before taking up their respective duties under this Statute, the judges, the Prosecutor, the Deputy Prosecutors, the Registrar and the Deputy Registrar shall each make a solemn undertaking in open court to exercise his or he respective functions impartially and conscientiously.”

The argument would be like this:

(a) We do not fear to defend ourselves for the alleged crimes.

(b) However, before we stand trial, it is just and proper that, be it ascertained whether we can receive fair trial at the ICC.

Flowing from the above then, to the extent that, the ICC prosecutor and the judges, can be shown not to have not acted in accordance with Rome Statute and especially Article 45, they disqualify themselves from taking “up their respective duties” under the Statute against the four.

We content ourselves at this stage by citing just one example that can be cited and argued forcefully to demonstrate the partiality of this Court and therefore, demonstrate it's utter incapacity to offer a fair trial. In the recent war of aggression against Libya, Ocampo moved very swiftly to indict Gaddafi on fabricated charges.

However, at the same time, in clear evidence of the Court's partiality contrary to Article 45 of the Rome Statute, it did not, and has not acted on violations of international law by the NATO forces. To cite one plain example. The UN Charter, Chapter VII Article 46, provides that:

Plans for the application of armed force shall be made by the Security Council with the assistance of the Military Staff Committee.

To the best of our recollection, there was no Military Staff committee which was involved in the Libyan war. Clearly, this being irrefutable, this is a a clear violation of the international law of war for the NATO leaders, and many of them are party to the Rome Statute have committed serious crimes under the jurisdiction of the ICC. Why would Ocampo be in a rush to indict Gaddafi on fabricated charges while ignoring clear violations of the international law? If this is not partiality, what is it?

It can be argued that, to the extent the ICC has not seen it fit to investigate such blatant violation of international laws of war, is a confirmation of breach of the Rome Statute Article 42 which provides that, the Office of the Prosecutor “shall not seek or act on instructions from any external source.” If he has not received or sought such instructions, where does his partiality emanate from? From incompetence? If it is incompetence, how can he try the Kenyan case then?

As a matter of fact, the ICC prosecutor is on record saying that, he will ask the UN Security Council member states on the way forward for the Libyan case. How can those who have violated the international laws of war with impunity be the ones to give direction to the ICC prosecutor? What kind of justice is this?

The ultimate question which the ICC judges would be forced to answer in this novel approach is this: If the ICC is receiving instructions contrary to Article 42 of the Rome Statute, how can its impartiality as demanded by Article 45 of the Rome Statute be met?

By adopting this defence strategy instead of the usual one, the Ocampo four would force the ICC either:

(a) to live up to the lofty claims and especially Article 45. Definitely, were it to do this, it would be killed by those who seek to use it as a means of colonialism.

(b) to brush brush aside a well researched attack on its partiality which would lead to loss legitimacy which it has gained by propaganda.

In other words, the Ocampo four should force the ICC to live up to its lofty claims or close shop and scatter those lawyers wasting time there to look for other means of earning their living.