Seven Questions

Seven Questions: Prosecuting Sudan

The international prosecutor who's coming after Sudan's Omar al-Bashir says that peace talks in Darfur might have to take a back seat -- justice must be served.


Just hours before FP‘s Elizabeth Allen spoke with International Criminal Court prosecutor Luis Moreno-Ocampo, the New York Times reported that the court’s judges had decided to issue an arrest warrant for Sudanese President Omar al-Bashir — the first even indictment of a sitting head of state. Bashir would be implicated for his role in the ongoing conflict in Darfur, which many call the first genocide of the 21st century.

While the court denies having made its decision, the suggestion alone has provoked controversy. Advocacy groups worry that indicting the Sudanese president could jeopardize ongoing peace negotiations to end the crisis, or worse: inspire Bashir to tighten his grip and resort to further violence. But in his discussion with Foreign Policy, Moreno-Ocampo argues that the indictment is crucial to ending impunity in Darfur. He told FP, “I’m sorry if I disturb those who are in negotiations, but these are the facts.”

Foreign Policy: Was a warrant issued by the court yesterday for the arrest of Bashir?

Luis Moreno-Ocampo: No. The report says the judges decided. I don’t know what they know. But it’s not official. The judges said today they have not decided.

FP: Tell us about the ICC’s involvement in Darfur, and specifically, the case against Bashir. For example, what evidence do you have to implicate him on the intent to commit genocide?

LMO: In February 2007, we presented the first case on Darfur [consisting of] the attacks against the villages mainly inhabited by the Fur, the Masalit and the Zaghawa ethnic groups. The modus operandi was, [government organized militias] would surround villages that had no [Darfuri] rebel presence, helicopters or planes would drop bombs, and the government forces attacked the village.

Since June 2007, and particularly in December, I [was told] to focus my investigation on the crimes committed in the camps. In the camps, the attacks are more subtle. There are two weapons: rape and hunger. It’s normal for women [who are] going to look for firewood to be raped, the same way that for you it’s normal on Sunday afternoon for you to get a parking place at the supermarket.

You have to understand that Bashir and his government are a very smart people. They’re not a failed state. When they saw the reaction [to village attacks,] the method [became] more silent: raping and hunger. They don’t need gas chambers; they don’t need machetes, because they have the desert to kill them. They are hindering humanitarian assistance. That’s a subtle way to commit a genocide today.

FP: Sudan has national elections scheduled for this year, and a referendum in 2011 to allow Southern Sudan to formally secede. How might these events be affected by an ICC arrest warrant?

LMO: My mandate was to end the impunity, in order to prevent future crimes. If the judges issue a warrant against Bashir, it will be the beginning of ending impunity. I’m concerned about the second part: prevent[ing] future crimes. The international community has a three-pronged [approach]: humanitarian assistance, security, and political agreement, ignoring justice. What I saw when we issued a warrant for [Sudan’s Minister of State for Humanitarian Affairs] Ahmed Harun was a tendency to ignore reality. This is affecting humanitarian assistance and also security. Mr. Harun is on the committee to deploy UNAMID, and he is of course affecting the deployment. Mr. Harun was appointed head of a committee to investigate human rights abuses. This is not a joke; this is a way for Mr. Bashir to confirm to other members of his group that if they follow his orders, legal orders, nothing will happen to them.

FP: Could the pursuit of justice result in the exacerbation of atrocities or hardships in Darfur? Could it impede the recently begun peace negotiations between the government and the Darfur rebel group, the Justice and Equality Movement, in Doha?

LMO: No. For people in Darfur, nothing could be worse. We need negotiations, but if Bashir is indicted, he is not the person to negotiate with. Mr. Bashir could not be an option for [negotiations on] Darfur, or, in fact, for the South. I believe negotiators have to learn how to adjust to the reality. The court is a reality.

I think for [the negotiators, the indictment] is de facto, it’s a reality. They assume that Mr. Bashir is indicted. Maybe [that makes] the negotiation more difficult, but it’s more promising. Bashir has been committing genocide for the last five years, so why do you believe he will change? And the idea that [the same thing] will not happen again in the South? Be careful.

FP: Referring to the specifics of the Bashir case, is a specific genocidal intent on the part of President Bashir necessary to prove a claim of genocide? What qualities of genocidal intent has Bashir shown?

LMO: Even Hitler did not have a document saying go and destroy the Jews, or the gypsies. You have to prove the intention through facts. Mr. Bashir, in March 2003, ordered publicly to attack his people saying, I don’t like prisoners or wounded. I just want to see scorched earth.’ A few weeks later, his commanders say, We’re ready,’ and they start a campaign to systematically target the villages inhabited by the Fur and Zaghawa.

He used the state apparatus. It’s not just [an] army operation. It’s not just the removal of those who refused to commit these crimes and the inclusion of other people — including militias — to commit the crimes. It’s not just that he created these courts to investigate the crimes, and they investigated nothing. It’s also about how he used the diplomatic apparatus and the media to deny the crimes.

The militias were integrated — they were not acting alone. This autonomy of the janjaweed [militia] is an alibi. It’s incredible that people can still think of that.

FP: There were a number of measures introduced in 2005 with the Interim National Constitution and the Comprehensive Peace Agreement that constrained the authority and power that President Bashir might need to organize the state to perpetrate crimes in Darfur. What effect did this have?

LMO: He never fulfilled [these conditions]. The Security Council passed different resolutions prohibiting the use of military airplanes; he continued bombing, no problem. They forced Mr. Bashir to dismantle the janjaweed militias — he completely ignored [them].

We’re not talking about political responsibility here; we’re talking about individual criminal responsibility. Bashir was on top of this operation. He is the president of the country; he is the commander in chief; he’s the president of the Congress Party; he has de jure and de facto control of these people. So what we allege is that he has control and he ordered these activities.

[The ongoing] hindering of humanitarian assistance is part of the genocide, because the consequence is that people are dying. Five thousand are dying each month, and we are presenting that as a humanitarian crisis. It’s not; it’s a crime. I’m sorry if I disturb those who are in negotiations, but these are the facts.

FP: How do you view the role of the United States in securing an ICC arrest warrant for Bashir, given that the country is not a signatory to the Rome Treaty that gives the ICC its mandate?

LMO: The Darfur case was referred to the court by the Security Council. In this case, there’s no disagreement between U.S. policy and the Rome Treaty. All countries have to work to stop this crime. It’s a challenge for the world. We are witnessing the first massive crime of genocide in the 21st century and for the last five years we did nothing efficient to stop to the crimes. We are providing material assistance, yes. That is great; it’s saving the lives of 2 million people. But it’s not enough. The United States, as a member, has a responsibility also.

Luis Moreno-Ocampo is prosecutor for the International Criminal Court.