Alex De Waal and Julie Flint flawed analysis on ICC Darfur role

By Wasil Ali*

June 9, 2008 (WASHINGTON) – I must admit that I was deeply disappointed to read the article published today in The Guardian by Alex De Waal, a renowned Sudan expert and Julie Flint, co-author of “Darfur: A Short History of a Long War”.

The opinion piece titled ‘ICC approach risks peacemaking in Darfur’ was based on wrong assumptions that obviously led to wrong conclusions. De Waal and Flint argue that the latest report by the prosecutor of the International Criminal Court (ICC) Luis Moreno-Ocampo is of questionable credibility.

Moreover both authors claim that the prosecutor’s announcement of his intention to present a new case next month against senior Sudanese officials for their role in Darfur war crimes, jeopardizes the peace process and deployment of peacekeepers in the region.

The two experts use Ocampo’s description of Darfur as a “crime scene” that is being targeted systematically by Khartoum, to conclude that his evidence is “purely circumstantial”.

First of all I am not sure how De Waal and Flint evaluated the prosecutor’s evidence if they have not seen it. The prosecutor’s report, presented last week, outlined new developments in the work done by his office in terms of the Darfur investigations. He did not say which specific cases he is investigating nor identify the individuals he intends to prosecute and of course did not present the evidence he has in his possession. The authors apparently misinterpreted the conclusions that Ocampo shared with the world implicating the Sudanese state, to think that this is equivalent to the evidence he will present to the judges in July.

Moreover it must be noted that anyone who closely followed the work of the ICC prosecutor in Darfur can easily see how meticulous he is about building a strong case. This was a key reason why his first investigation took almost two years to complete. He did not rely on the readily available conclusions of the International Commission of Inquiry on Darfur formed by the UN Security Council (UNSC) which included a list of 51 war crimes suspects. The prosecutor started his work from scratch saying his mandate is different than that of the commission.

Despite the numerous speculations on the individuals expected to be prosecuted and the mounting pressure on Ocampo he ended up charging a junior minister and a militia leader. This was a very disappointing outcome to many people including myself but I had to respect the fact that he had to meet a very high threshold for evidence required by the Rome Statue. Ocampo even revealed to the daily Al-Sharq Al-Awsat on 7 March 2007 that the names of Ahmed Haroun and Ali Kushayb were not even on that list.

There is also a very basic yet common mistake in De Waal and Flint’s opinion paper. They make it sound as if the ICC prosecutor is the Alpha and Omega of the court. This is not true. Ocampo has to present his evidence to the judges who will determine the merits of the case. Needless to say that the judges are independent from the other organs of the court and thus it should not be assumed that they will always sign off on the prosecutor’s evidence. For example in the cases of Haroun and Kushayb the prosecutor requested summons to appear for them but the judges decided that he could not sufficiently prove that the suspects will surrender voluntarily so they issued warrants of arrest instead.

What I also found contradictory in De Waal and Flint’s analysis is that they questioned the credibility of his upcoming cases and implying they are more political in nature than judicial. They said that they “feel he [Ocampo] is going beyond the facts and risks jeopardizing the credibility of the prosecution”. But at the same time they fall short of pleading the prosecutor not to proceed with his cases saying it will hurt the political process in Darfur. On the one hand it is argued that Ocampo is politicizing a judicial case and then a few sentences later they ask him to be a politician and lay low at such a “sensitive time” in Sudan.

It must be clearly understood that the prosecutor is not a politician but a man of law. He was asked by the UNSC to investigate the war crimes in Darfur and he is carrying out his mandate accordingly. The responsibility for the deployment of UNAMID and the political process in Darfur lies with the UNSC and not with the ICC. If Khartoum was to retaliate against indictment of senior government officials by blocking peacekeepers and restricting humanitarian access then the international community must stand up to Sudan. The latter has an obligation under agreements that were signed and must honor it.

The ICC cannot be blamed for actions of the Sudanese government and they are not the ones responsible for protecting the people of Darfur or feeding them. Their function is to deliver justice by going after the criminals who created this humanitarian disaster in the first place.

Furthermore De Waal and Flint cannot speak for the victims and claim that prosecutions hurt their interests. After five years in the camps the Darfur refugees want to see justice done. Perhaps the two authors can refer back to interviews made with those refugees last year when they called for the Sudanese president and other senior officials to be prosecuted. They were taken aback that only Haroun and Kushayb were charged.

At a time when peacekeepers’ deployment to Darfur is severely lagging humanitarian access is curtailed it is not fair to try and make the justice component suffer the same fate. Sudan remains in denial over the crisis in Darfur and in the absence of international action nothing will change. If indeed the prosecutor was to freeze his investigations then how long should that last? At what point can the prosecutions resume? What is the benchmark and is it a guaranteed timeframe? It is almost a year after resolution 1769 and only few peacekeepers have made it to Darfur. Is the ICC responsible for that long delay or are is it the criminals in power who have no problem prolonging the misery of the Darfuri people.

* The author is a Sudan Tribune journalist, can be reached at [email protected]