Darfur is the first genocide of the 21st century, it should be the last, says the ICC's chief prosecutor, writes ARTHUR BEESLEYEuropean Correspondent in The Hague
A ring of fortified electric fencing surrounds the tower blocks in The Hague which are home to the International Criminal Court (ICC). From here chief prosecutor Luis Moreno-Ocampo pursues the perpetrators of mass murder, rape and torture. It’s a grim business, yet he is an easygoing fellow with a ready smile.
Moreno-Ocampo says the court can wait for decades to bring Sudanese president Omar Hassan Al-Bashir to justice on new genocide charges, but says the victims of violence in the Darfur region need action immediately. A man who has come face to face with many murderers, he does not believe in the concept of pure evil.
“Massive criminality can be produced by otherwise normal people who are led to believe it is right to kill others, he says. The court’s “shadow” as a deterrent to would-be organisers of mass killings, is one of its most important functions. “If they understand they will be prosecuted they will not do it.” He rejects claims his office is unfairly focused on Africa, makes light of a recent judicial setback and says the failure of the US to recognise the ICC is no hindrance to its work. The prosecutor’s job is a minefield, however, with preliminary examinations of alleged war crimes in Gaza, Afghanistan and Georgia creating potential for trouble with powerful countries such as Israel, the US and Russia. “We are like a middle-sized law firm, representing the victims of the worst crimes in the world,” he says from behind the abundant clutter of the desk in his 11th-floor office.
“I cannot make political decisions. I have to present cases before the court, I just make judicial decisions.”
Two weeks ago the ICC charged Al-Bashir with three counts of genocide against the main ethnic groups in Darfur, the first time the court accused a sitting head of state of that egregious crime. The indictments were the result of five years of investigations by Moreno-Ocampo, an Argentine in his late 50s who made his name young in the prosecution of military leaders in his own country for secretly torturing and killing thousands of civilians.
Darfur, an arid desert region the size of France, has been mired in civil war since 2003 in a conflict that pits Al-Bashir’s Islamic administration and its proxies against rebels who accuse them of a legacy of bias against its ethnic tribes. Some 300,000 people have been killed, another 2.5 million are living in displacement camps.
Last year, the ICC charged Al-Bashir with seven counts of war crimes and crimes against humanity. He evaded arrest – visiting a number of Arab and neighbouring countries which ignored warrants against him – and was re-elected for five years in April after his two main challengers withdrew their candidacy.
New warrants against Al-Bashir may impose new obligations on states to co-operate with efforts to arrest him and may further restrict his freedom of movement. Last week, however, Al-Bashir paraded in Chad in a blatant act of defiance at a regional summit and was backed by 12 of his fellow leaders. Even though Chad is a member of the ICC, its leaders made it clear that Al-Bashir would not be arrested.
Was this not an affront to Moreno-Ocampo? “Nothing is personal for me here. The Security Council requested the court’s intervention. In those days people were saying ‘this is a poisoned gift, the court will be irrelevant in Darfur’. My challenge was how to investigate these crimes, and we did it.
“The court is a permanent court so the court can wait. It’s a matter of time arresting Bashir, it’s a matter of two years or 20 years, but his destiny is to face justice, his destiny is to travel to The Hague.
“The court can wait. The victims, they cannot wait. They are suffering today. They are raped today.”
Although Moreno-Ocampo accepts this presents a challenge for the international community, he says Security Council resolutions such as one drafted in 2008 by Costa Rica, have played a big role in pressurising Al-Bashir and his henchmen.
“That’s what we need, we need that type of leadership.” Normally the global authorities ignore genocide, he adds.
“This time it’s more complicated because the world reaction stopped most of the bullets, because most of the people were displaced in 2005 when the court received the request to intervene.
“But then president Bashir found this other way to keep committing the genocide through the rapes and through attacking the mental health of people. Because using rape and hunger are silent weapons, it’s more difficult to react . . . Darfur is the first genocide of the 21st century. It should be the last one.” Days before the new charges against Al-Bashir, Moreno-Ocampo suffered a setback when judges suspended for a second time the trial of Congolese warlord Thomas Lubanga on grounds that the prosecution abused the court process and defied their orders.
Lubanga stands accused of leading a militia which conscripted and abused children as young as 10 during fighting in the Ituri region, a big gold-mining area.
Moreno-Ocampo, who has appealed the ruling, insists the suspension is no big deal. “That’s normal legal work. We are applying a new law and we have sometimes differences.” The issue turned on a question of witness protection and a request from the judges to disclose under embargo the identity of an intermediary to Lubanga and his defence. “We believe in a special duty to protection – and so if there are no protection measures we cannot disclose the identity of people before the measure is established.” He is confident of the appeal, saying the Lubanga case and the separate trial of Germain Katanga and Mathieu Ngudiolo Chui should be completed by the time his nine-year mandate ends in 2012. “In this court, I hope in my tenure at least, all my cases will be convicted, but it depends on the judges and many factors.” Other cases are under way in relation to bloody events in Uganda, Kenya and the Central African Republic, but Moreno-Ocampo is dismissive of claims that the concentration of African cases is disproportionate.
“Are there genocide in Ireland?” he asks, when I raise the issue. I respond in the negative. “So, what will I do, I will invent a case?” He mentions a case in which nine former congressmen are being investigated in Colombia for crimes against humanity committed by paramilitary groups.
He adds: “It’s not about how many cases are we doing, it’s how much we are influencing the world. That’s the concept, the shadow.”
On a possible investigation into alleged war crimes during the 2008-2009 Gaza war, the question centres on whether the Palestinian Authority has the power to make a referral to the ICC. “We are receiving different professors and also NGOs from all over the world making different arguments on this, in favour or against.”
In relation to Afghanistan, the preliminary examination is assessing “collateral damage” by Nato troops, Taliban crimes and the activities of certain warlords. This work is difficult, he says. So has there been any interference by the western powers?
“They learn to understand we are independent. We are very predictable, we inform in advance what we will do . . .
“In some ways, the states are learning there will be no surprises here.”