It matters that Moreno-Ocampo was not able to establish an arguable case on genocide because it shows what poor judgment he has. Informed observers predicted that the application would be thrown out. Alex de Waal, who has studied human-rights issues in Sudan for 20 years, said last July: "For 19 years, President Bashir has sat on top of a government that has been responsible for incalculable crimes...Two weeks ago, Moreno-Ocampo succeeded in accusing Bashir of the crime for which he is not guilty. That is a remarkable feat."

But the genocide verdict was only the latest setback for the hapless prosecutor. Just one day before, a separate pre-trial chamber told Moreno-Ocampo it thought that Jean-Pierre Bemba-a former Congolese leader accused of rape, torture and murder in the Central African Republic-had been charged under the wrong section of the Rome Statute. He should have been accused as a military commander, not as an individual. The chamber granted an adjournment so that the prosecutor could try again.

Although Moreno-Ocampo has opened formal investigations into alleged crimes in four African countries since his appointment nearly six years ago, the court's first trial did not start until earlier this year. The case against Thomas Lubanga, an alleged warlord from the Democratic Republic of Congo accused of conscripting child soldiers, had been "stayed" last summer by the British judge, Sir Adrian Fulford, because potentially exculpatory evidence had not been disclosed to either the court or the defence.