INTERVIEW: ICC prosecutor dismisses Sudan special courts on Darfur

By Wasil Ali

August 11, 2008 (WASHINGTON) – The prosecutor of the International Criminal Court (ICC) Luis Moreno-Ocampo today dismissed the recent move by Sudan to probe Darfur war crimes through the appointment of a special prosecutor. Ocampo said that Khartoum established special courts before but “end up investigating no one”.

The ICC prosecutor stressed throughout the interview with Sudan Tribune that the main focus of his work in Darfur is to prevent future crimes against the 2.5 million people in the camps.

The Argentinean born lawyer emphasized that had the duty to present his case against the Sudanese president Omar Hassan Al-Bashir to the judges and that if an arrest warrant is issued the world has the challenge to stop the ongoing crimes in Darfur.

The ICC prosecutor underscored the need to end impunity and said that there should be no immunity for Al-Bashir or any other officials who commit crimes.

On the charges of genocide the ICC official said that his findings are not inconsistent with those of the UN commission of inquiry (UNCOI) that went to Darfur in 2004. He said that the commission concluded that there are no acts of genocide if the government put the people affected by the conflict into camps.

The ICC prosecutor said that the Sudanese government is carrying out a “massive rape campaign” against women in the camps and hindering the delivery of aid to the displaced who are mostly from the African tribes of the Fur, Masalit and Zaghawa groups. This he said falls under the definition of genocide.

Ocampo further said that he hopes his investigations will put an end to crimes committed against people in all cases he is investigating including Northern Uganda and Democratic Republic of the Congo (DRC).

He rejected the notion that the ICC is targeting the poorer nations saying that the ultimate goal of the court is to apply the law equally in the cases where it has jurisdiction. However he acknowledged that double standards exist in the world before saying that he is trying to work towards a “different world with less double standard”.

Below is the text of the interview

– Do you have any regrets on proceeding with the case against Al-Bashir in terms of timing and indicting a sitting head of state?

Ocampo: How can I have any regrets? The decision to investigate in Darfur was taken by the UN Security Council (UNSC) in March 2005 and in June of the same year I formally opened the investigation. We conducted the best investigation we could and started with the case against Ahmed Haroun, state minister for humanitarian affairs, and militia commander Ali Kushayb. Then we collected evidence showing the involvement and responsibility of Al-Bashir. My duty is to present my case to the judges once I have enough evidence. That is my responsibility and as such my office is performing its duties.

– Article 53 of the Rome Statute says that your office should consider whether or not initiating an investigation would serve the interests of justice and the victims. Do you think that you have satisfied this requirement considering that Al-Bashir still retains firm control over state bodies that could make life harder for Darfuris in the camps?

Ocampo: We are working to stop the crimes and I think investigating them is one of the ways to put an end to them. I believe the application I submitted is part of the solution; of course there are other solutions. But here is an independent body saying that there are crimes happening now. The state apparatus in Sudan continues to attack those people in the camps. My evidence shows that there is genocide today. What could be worst? There is genocide against 2.5 million people. Again in line with my responsibility I presented my case and the judges will decide.

The government of Sudan has a responsibility to protect its people and then the international community. This is a very complex moment and if the judges confirm the charges in my application it will be the first time an independent judicial body endorse the fact of ongoing genocide. Then the challenge becomes how to stop it? For me this is the most important question. My duty was to go forward with the case against Al-Bashir in accordance with the evidence I gathered.

– What was the main source of information in your case against Al-Bashir?

Ocampo: I have to conduct an impartial investigation so I collected information from different sources. This is what distinguishes the work of my office because I have to gather information to understand responsibilities in the commission of crimes. For example when we presented our first case against Haroun people were shocked because he was not a well known figure. Because of my case now everyone realizes that Haroun was the minister in charge of attacks on the villages and the camps. The issue for me is to show clearly that what is happening in the camps today is a crime because without humanitarian assistance they will die. Not only is Al-Bashir not providing them with humanitarian assistance but also trying to block and hinder the work of these humanitarian organizations. This is the most compelling issue now and we have to stop it.

– So you are saying that Al-Bashir himself was blocking aid to the Darfur refugees?

Ocampo: Through his people of course. That is why Haroun and the Humanitarian Aid Commission (HAC) are critical elements because they are secret service people under the title of humanitarian affairs; in fact they are hindering humanitarian assistance.

– Was Al-Bashir in the list of names you received from the UN commission of inquiry (UNCOI)?

Ocampo: This list contained the opinion of UNCOI. It is irrelevant to the court. I read the list but for me it was nothing more than an opinion. In terms of my case I follow the evidence.

– The US State department said you requested some information from them though not relating to the case of Al-Bashir. Is this your first time and did you get a response yet?

Ocampo: We don’t disclose the information requests we make to different parties. We keep them confidential.

– Sudan contends that Al-Bashir has immunity from prosecution under international conventions.

Ocampo: In the Rome Statute there is no immunity for heads of states. Back in the 17th century there was a case against King Charles I of England. In those days the king was above the law. Three centuries later we are discussing the same problem. So just because someone is a head of state he is immune? That they are above the law? For me the answer is no; the law says no and I will abide by it.

– Some Sudanese are not necessarily supporters of Al-Bashir but they say that by moving against the country’s president you are targeting the country and trying to undermine its sovereignty

Ocampo: I am investigating crimes and the evidence show that an official in the government is committing crimes against 2.5 million people from Sudan. That is the problem. Normally members of the government have to protect their citizens and in this case Al-Bashir is using the state apparatus to attack the people he has a duty to protect. I respect the government of Sudan even if I had to press charges against Al-Bashir. That is why my requests to arrest Al-Bashir and Haroun go to the government of Sudan. They have to do it.

I understand that this is an armed conflict in Sudan and it is obvious that rebels are committing crimes and it is also obvious that the government has the right to protect its territory. But it is also obvious that they cannot attack the civilians. They cannot attack these people in the villages, rape the women and kill the elders and do the same thing in the camps. It is a massive rape campaign to the women who leave the camps today and block humanitarian aid. This cannot happen. It must stop. I am doing my work to protect 2.5 million African citizens.

– The Rwandan President Paul Kagame said that the ICC is a new form of imperialism created by the West to control the world’s poorest countries.

Ocampo: I am from the south and my deputy is from Africa. We are trying to establish justice in the world. I was criticized because I invited African leaders to refer cases to the ICC. I always respect African leaders and I will keep respecting them because to solve the Darfur case we need them. Any solution to the Darfur crisis relies on Africa.

– You likened Darfur crisis before to a fire and that to put it off you have to get rid of the arsonists, apparently Al-Bashir in this case. However Jean Ping, who chairs the AU commission, said you poured more oil in the fire. What is your reaction to this?

Ocampo: I found evidence pointing to Al-Bashir’s responsibility in attacking the 2.5 million and submitted to the judges. The political leaders have their own responsibilities. I am sure the final solution we will require the involvement of African leaders.

But at the same time if we are not recognizing the problem we can never solve it. Al-Bashir is conducting attacks against villages and camps. This is the situation today.

– Are you saying that justice is never an obstacle to peace?

Ocampo: I am not doing this kind of political assessment. It was the UNSC decided that solution in Darfur requires the intervention of justice. Last June the 15 members of the UNSC including Libya, South Africa and Burkina Faso emphasized the importance of justice in Darfur in a presidential statement. I received a mandate conferred upon me by the UNSC that I am fulfilling.

– When was the first time you disclosed your intention to seek an arrest warrant against Al-Bashir. It is true that you told the US officials first?

Ocampo: I informed the UN secretariat two weeks before my public announcement on July 14th. The UN has responsibilities in the areas of humanitarian assistance and peacekeeping in Darfur. They started analyzing the impact of my move and probably consulted with other parties. That is why I suppose the leak came from these discussions a week later.

I respect those who are involved in other aspects of the conflict such as political, security and humanitarian. But I did my job while respecting the work of the others.

– So you never met with the Americans specifically to let them know?

Ocampo: Our decisions have no connection and are not influenced by any outside party. We are independent. Even if you read the US reaction following my application on July 14th it was not so supportive.

Let us be clear. In December 2007 I told the UNSC that Haroun is involved in attacking the camps but he was not alone. I said there is someone providing instructions and protecting him. I was totally predictable in what I said seven months before I presented my case against Al-Bashir. Of course there are those who will make up their own scenarios but this is what happened.

– Why was your application not under seal similar to the case of the former Congolese Vice President Jean-Pierre Bemba?

Ocampo: For every case we handle we do an assessment of the best way to ensure the appearance of the suspect in court. In the case of Bemba we decided it had to be under seal. However in the case of Al-Bashir we determined that it had to be public. We need a public discussion on the issue. It is hard to imagine that once I present my case against Al-Bashir it can be kept secret for long. He is a president of a country. If I kept it sealed I cannot talk or explain my case so it would have been a useless approach. People are making their own opinions but we determined that it is best to do it in the way I did it.

– Are you disappointed with the world reaction to your move particularly the UNSC which asked you to investigate the Darfur crimes?

Ocampo: Not at all. I am doing professional work. I can’t let myself be disappointed. I am doing my work. I presented a strong case against Al-Bashir. Once the judges return from recess they have confirmation hearings against Germain Katanga and Mathieu Chui. After that I assume that we will discuss case of Al-Bashir. This is my responsibility. Anything else is not my responsibility. I respect the efforts of other parties which is why I informed the UN in advance and did my best to be predictable. It is not about emotions but about doing my work. My focus is to prevent future crimes against the 2.5 million people.

– What is the nature of the communications you received from countries after the indictment?

Ocampo: I received some calls from political leaders requesting some clarification on our case. Some asked whether or not there are other names in the pipeline. In my opinion this is another reason why we couldn’t have a sealed indictment. We had very important discussions not just about Darfur but how the world would be organized. Can a head of state commit crimes or not? This is similar to the question of Charles I in the 17th century. If the judges endorse my request then another question arises; how the other political leaders would react. How the future would look.

– Some diplomats at the UN alluded that you would be willing to drop the case if Sudan handed over Haroun and Kushayb. Is that true?

Ocampo: No. In December 2007 I said Haroun and Kushayb have to be arrested and spoke about my upcoming cases. Now there is a pending case before the judges. What I say publicly is always what I say privately.

– In the TIME magazine interview you mentioned a meeting you had with a Sudanese envoy who implied that they will hand over Haroun and Kushayb if you don’t pursue other senior officials. Can you give us more information on this meeting?

Ocampo: The Sudanese government discussed how to handle our request to arrest Haroun and Kushayb and formed a committee. As I always say, arresting Haroun will stop the crimes because no one will follow instructions to commit crimes if they see that others who were following instructions are arrested. Now we moved to the second case and it’s a new debate and a different discussion. As a prosecutor I can only discuss the details of the case in court.

– ICC judges return Monday from judicial recess. How confident are you that they will endorse your application particularly with regards to the genocide charges?

Ocampo: I present a case to the judges because I am convinced that my case is strong. Before this case I have requested 12 arrest warrants to date since I took office and we secured all of them. Of course judges are judges and they don’t need to follow what the prosecutor says. They can dismiss my entire case or some of the charges. This is the normal judicial process but I believe we have a very strong case.

I mentioned in my application summary that the UNCOI said that there would be no policy of genocide if the populations surviving attacks on villages live together in camps organized by the government where they are assisted. But today the government is attacking people in the camps through rape and hindering aid. That is why it is genocide. My findings are not inconsistent with those of the UNCOI.

– Haroun is now unable to leave the country fearing apprehension. Do you foresee same fate for Al-Bashir?

Ocampo: If the judges issue an arrest warrant for Al-Bashir, he can choose to appear voluntarily and we said that in our application. If he refuses then arresting him will be a challenge not to the court but to the international community. How the other states will secure to stop the crimes by arresting an individual. But if the world accepts that a leader can commit crimes and nothing happens then this is a difficult world to live in.

– Sudan appointed special prosecutor. Are you willing to give the Sudanese judiciary a chance to investigate Darfur abuses?

Ocampo: They did it many times. They end up investigating no one. They even appointed Haroun to head a committee on Darfur human rights. This is part of the cover up and they have been saying this for years. The only individuals prosecuted are those who resist illegal instructions to attack people in Darfur such as pilots or soldiers.

– UNSC is discussing invoking Article 16 to suspend ICC case against Al-Bashir. Why should they not do that?

Ocampo: It is not my responsibility to try and lobby the UNSC in its decision making process.

– How close are you to completing your case against the rebels?

Ocampo: We are progressing. As soon as I have enough evidence I will present my case. It is extremely important that I receive support from the government of Sudan as well as rebels. It is time to stop the crimes. Whoever commits the crimes must be stopped. I hope our intervention will contribute to putting an end to these crimes.

– Did you receive personal threats after your press conference?

Ocampo: No

– Your term as a prosecutor expires in 2012 and is not renewable. What do you hope to accomplish before then?

Ocampo: I think if we contribute to stopping the crimes and bring justice for people in Darfur, DRC, Northern Uganda or helping to ensure justice in Columbia or Afghanistan then that means we are helping millions of people. I feel privileged to have this kind of job. If we are working correctly we will make a difference. Second I have a responsibility to build the foundations of this institution. This is an institution for the next century and for the world. Therefore I want my successor to take over an institution that is working on solid grounds. This is what I will do. It is a piece in this long process of trying to do justice in the world.

– So you never thought about resigning at any point?

Ocampo: I have a 9 year term and I am planning to fulfill my commitment. It is a privilege and a responsibility at the same time.

– Do you acknowledge that people in many parts of the world including Arabs look with suspicion to the ICC? They think there is double standard when it comes to applying justice.

Ocampo: I have no doubt that the world is full of double standards. This is why I am privileged to work in this court because it is an opportunity to establish one standard. Our aim is to ensure that no militia leader or powerful authority has the right to commit these kinds of crimes. We consistently applied the law against those who commit the crimes under my jurisdiction. Everyone who lives in the south knows double standards. In Brazil they have a saying “everything to my friend, to my enemies it is the law”. It is not just an African or Arab issue. Coming from this environment I think it is so important to be sure that we are establishing this basic law in the world. No one with power can commit these crimes of genocide or crimes against humanity and be immune. We are ending impunity. This is my mission. It is an opportunity to work together to build a different world with less double standards. It is just a beginning but a long way from being perfect.

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