How Sudan Was Brought to Court

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Left to Right: Osman Orsal / Reuters ; Don Emmert / AFP / Getty

Sudanese President Omar Hassan al-Bashir, left, and prosecutor of the International Criminal Court Luis Moreno-Ocampo

Back in 2005, when the notion of "regime change" was still in fashion, Luis Moreno-Ocampo recalls that Western countries pressed him to charge President Omar Hassan al-Bashir of Sudan with genocide in the country's Darfur region. Three years later, on July 14, Moreno-Ocampo, the prosecutor of the International Criminal Court (ICC), did just that. But by then diplomats were up in arms, as it sank in that Moreno-Ocampo actually meant to go through with it. In private meetings and public statements, they told Moreno-Ocampo that he would be responsible for a bloodbath. "My answer was: Today [the people of Darfur] are being killed. Today they are being destroyed and have no hope," Moreno-Ocampo told me a few days before he announced his indictment. "Maybe you can be part of the cover-up. The prosecutor cannot be part of the cover." How Moreno-Ocampo won the authority to indict a sitting President of a sovereign country is an epic of justice vs. realpolitik, of a determined prosecutor's battle against "we-know-better" diplomacy and of small countries banding together to tell the big powers, "You are wrong."

As Moreno-Ocampo tells it, his pursuit of al-Bashir over the past three years has come in the face of diplomatic obstruction and political accommodation. It was, in his eyes, predictable that the Sudanese would withhold visas, deny access to crime scenes and establish bogus trials in an effort to obviate the need for the ICC. But what he found surprising and dispiriting was that high-ranking international diplomats ignored, and even seemed to discourage, his efforts. The U.N. instead tried to negotiate the deployment of additional peacekeepers to Darfur as a solution to the crisis. But Sudan rejected the peacekeepers, and today there are only 9,000 out of a planned force of 26,000. "The American audience thinks that the priority in Sudan is peacekeepers," says Moreno-Ocampo. "But if the arsonists are in charge, there will never be enough firefighters."

One of Moreno-Ocampo's "arsonists" was Ahmed Haroun, who in 2003 and 2004, as Sudan's Minister of the Interior, allegedly organized the janjaweed militia to murder and destroy villages in Darfur. In February 2007, Moreno-Ocampo indicted Haroun and one of his henchmen, Ali Koshayb, a janjaweed leader. The indictment threw the Sudanese into a panic, Moreno-Ocampo says, and they dispatched an ambassador with a question: "Suppose Haroun comes to the Hague and says he was only following instruction — do you have to investigate the person who gave the instructions?" Moreno-Ocampo believes the inquiry was about President al-Bashir.

Moreno-Ocampo expected diplomats to exploit Sudan's panic as a negotiating tool. Instead, he says, the U.N. and the U.S. tried to assuage al-Bashir and his men, telling the Khartoum government, "Don't worry about the prosecutor. Just accept the peacekeepers and nothing will happen." Moreno-Ocampo says the big powers feared that the ICC's obsession with Darfur would get in the way of a peace deal between the politically dominant north and the oil-rich south that ended two decades of civil war in Sudan. The Sudanese took their cue and decided to reject notification of the court's indictment, slamming the door on any messenger with an ICC envelope.

Moreno-Ocampo was desperate to get the warrants delivered. Finally, around May 2007, he solicited the help of an Arab ambassador who came up with a face-saving solution for the Sudanese government in this diplomatic game of tag. Khartoum officials received a DHL envelope with the warrants, signed the receipt and returned it unopened. Haroun has still not been taken into custody.

In August 2007, U.N. Secretary-General Ban Ki-moon went to Khartoum with his political negotiators — without the ICC charges on any schedule for discussion. He talked privately with Bashir about the ICC and arresting Haroun; Bashir refused. As if to show the prosecutor just how impotent the ICC was, al-Bashir promoted Haroun and expanded his influence a week after Ban Ki-moon left the country. In his new position as Minister of Humanitarian Affairs, Haroun was able to routinely block humanitarian aid to the 2.5 million Darfuris trapped in refugee camps. In addition, he was given three new titles: joint chairman of the committee to control media discourse, joint chairman of a fact-finding committee on human rights violations and member of the U.N.-African Union Mission in Darfur (UNAMID) force-monitoring group.

"The Sudanese were confirming to other people involved in the crimes that they were protected," says Moreno-Ocampo. International diplomats seemed to take no notice, let alone care. In September French Foreign Minister Bernard Kouchner organized a meeting of 18 foreign ministers from around the world to discuss the Darfur crisis at the U.N. Justice was not on the agenda.

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