I have been delaying writing about the ICC Chief Prosecutor’s public application for an arrest warrant against President Bashir until that application is public. As it is still not available, let me comment on the press conference. In the absence of law and evidence, we have the theatrics.
I sat in Luis Moreno Ocampo’s press conference on 14 July in The Hague, as the Chief Prosecutor announced his public application for an arrest warrant against President Omar Hassan Ahmad al Bashir. Moreno Ocampo said he had delivered the application to the judges a few minutes earlier (at 12.56 p.m. to be exact), though all he had for us that day was a ten page summary and a press release. For the next hour, Moreno Ocampo spoke almost entirely about just three of the ten counts of the requested indictment, for the crime of genocide. He said of Bashir, “His alibi was a ‘counterinsurgency.’ His intent was genocide.”
In answer to the question of what the world should do next, Moreno Ocampo said that this was the first time the UN Security Council was confronted with an ongoing genocide, and was faced with a choice — would it accept this or act to stop it? It seemed to me that Moreno Ocampo was demanding that the world reverse the policy of negotiating with the Sudan government and instead adopt a strategy of regime change.
Asked why he preferred a public application rather than a sealed warrant — which would have a far better chance of actually allowing Bashir to be apprehended and brought to court — Moreno Ocampo said that the victims have the right to the truth. This I thought was a weak reply.
I left the press conference stunned. For nineteen years, President Bashir has sat on top of a government that has been responsible for incalculable crimes. Hundreds of thousands of Sudanese citizens have died in violence, or have been starved or rendered homeless, or have been tortured or otherwise punished. The head of state must bear much responsibility for these countless crimes committed by those who profess their loyalty to him. Two weeks ago, Moreno Ocampo succeeded in accusing Bashir of the crime for which he is not guilty. That is a remarkable feat.
Nobody who is a serious student of Sudanese politics takes seriously the idea that Bashir “used the whole state apparatus. . . . They all report to him, they all obey him. His control is absolute.” None would seriously entertain the charge that “he wants to end the history of the Fur, Masalit and Zaghawa people.” Those with even a passing familiarity with one of the world’s largest humanitarian operations laugh off the idea that we are seeing the continuation of a policy of eradication. Rony Brauman, formerly of MSF, calls it “insane.”
Asked how many victims of genocide there were, Moreno Ocampo answered “2.5 million,” noting that it is not necessary to be killed to be a victim of genocide. Earlier, he had shown a graph of killings, which show a double peak in 2003 and 2004, with a dramatic falling away thereafter. (This graph, up to the end of 2006, is reproduced in Darfur: A New History of a Long War, on page 151). In the summary of the case, on page 4, the Prosecutor gives the figure of 35,000 for the total number of people killed in government and Janjaweed attacks since 2003. But he insists that the current conditions in the camps are comparable to — or in some ways worse than — the years of full-scale conflict of 2003-04.
In both the press conference and the published summary of the case, the other seven counts against Bashir — war crimes and crimes against humanity — are given passing mention at best. Given that by the ICC’s own evidence, the vast majority of killings occurred during 2003-04 and that these are readily classified as war crimes and crimes against humanity, this is remarkable. In its three month-long investigation between October 2004 and January 2005, the International Commission of Inquiry into Darfur under Antonio Cassese produced plentiful evidence for “crimes no less heinous than genocide” committed during those years. In support of his action two weeks ago, Moreno Ocampo said that he does not have the “luxury” to “look away.” But in three years and three months, the ICC does not appear to have added to Cassese’s finding.
President Bashir watched the press conference on television and remarked that the evidence was fabricated, and that the emphasis on the Fur, Masalit and Zaghawa was provocative. He said that he would not respond on the basis of what the Prosecutor said, but on the basis of what the UN did next.
Moreno Ocampo’s political misjudgments have made life easier for Bashir and commensurately more difficult for the ICC. By presenting his case in such stark terms, the Prosecutor has made it easy for his critics to dismiss him as ill-informed and driven by a desire for publicity, and has made it harder for the advocates of justice in Darfur to pursue the challenge of calling to account those responsible for crimes no less heinous than genocide.
Alex de Waal is the director of Justice Africa. This article was first published in Making Sense of Darfur on 29 July 2008, and it is reproduced here for educational purposes.