The Lubanga Sentence (Part 2): Why the Ocampo Bashing is getting old

There is no doubt that Luis Moreno Ocampo, the recently departed ICC Prosecutor, was to ICL commentators what George Dubya Bush was to liberal americans, an endless provider of material to write about. I have myself blogged extensively on his gaffes, legal blunders and media outings over the years. Ocampo has also received a number of significant rebukes from ICC Judges in a number of decisions, not least in the Lubanga case and, with the Sentencing Decision that was handed down today, The Trial Chamber made sure not to miss this new, and probably last, opportunity to pile things on him again. But I'm wondering if the Ocampo bashing is not getting a little old. I don't think he can be blamed for everything that went wrong in the Lubanga trial, and it should not mask the fact that the Judges did not take the appropriate measures to ensure that he stayed in line. This is true for both aspects of the Chamber's consideration of prosecutorial conduct.

• The question of sexual violence

First of all, in relation to Ocampo's stance on Sexual Violence, the Chamber has the following to say (§60):

Some thoughts on the Lubanga Sentence: A throw of the dice

The International Criminal Court issued its first sentence today in the Lubanga case. In a thankfully short Decision, the Trial Chamber sentenced him to 14 years, minus time served. There is a nice summary of the reasoning by Jennifer Easterday over at IntLawGrrls and here are a few first thoughts on the criteria for determining the sentence and the actual sentence he received. I will discuss the Chamber's view on Ocampo's conduct in the next post.

• The criteria for determining the sentence

In a previous post on the Taylor Sentencing Judgment, I expressed some concerns on the confusion between the underlying rationale for having international criminal courts in the first place, and the specific criteria taken into account for the sentencing.These concerns equally arise here. Indeed, I am not convinced by the fact that the Decision refers to the Preamble of the Rome Statute (§16) as a source of inspiration. The Preamble applies to all the crimes, and is not a justification for considering that a particular crime is of particular gravity. This confusion gives rise to meaningless and empty statements like (§37):

"The crimes of conscripting and enlisting children under the age of fifteen and using them to participate actively in hostilities are undoubtedly very serious crimes that affect the international community as a whole."

That is certainly true, and indeed explains why the crime is contained in the Statute in the first place. But it doesn't explain the particular gravity for the purposes of sentencing.