Charges Against Sudan's Omar al-Bashir Accusing a President of Genocide
It may be the most spectacular decision in the history of international criminal law: ICC Prosecutor Moreno-Ocampo wants to bring Sudan's president before the international tribunal for atrocities in Darfur. "I can no longer tolerate denial," says the jurist.
An estimated two million residents have been displaced and tens of thousands killed in the civil war in Sudan's Darfur region. The prosecutor of the International Criminal Court in The Hague says they are the victims of genocide and crimes against humanity committed by the government.
Everything is set for the president: In the basement of the white court building in The Hague, a rarely used detention cell sits empty for Omar Hassan Ahmad al-Bashir. Before he goes in, he'll have to pass the contents of his pockets through a scanner in Room K 127. The walls in the reception building for political criminals are painted a trendy violet and blue, the floor is light green, and thick concrete separates a prisoner from the rest of the world. The chair where he would wait for his trial has been bolted to the floor.
The president of Sudan (who is also its military commander-in-chief) has been held responsible for the most appalling war of our time -- the slaughter in the Sudanese province of Darfur, which is about the size of France.
The current toll in Sudan's civil war involves hundreds of thousands killed, thousands of villages burned and millions of refugees on the verge of starvation. Al-Bashir's regular troops, along with the gruesomely helpful militias under his command, have waged an ethnic-cleansing campaign in Darfur for several years, under the pretext of a revolt by Sudanese rebels. The Fur, Masalit and Zaghawa tribes have been systematically displaced and exterminated, according to eyewitness reports as well as Moreno-Ocampo's charges.
The Sudanese president denied all charges within hours and rejected the ICC's authority. The accusations, he said on state TV, were lies. The international court, he added, had no jurisdiction in Sudan. The country's ambassador to the UN, Abdalmahmood Abdalhaleem Mohamed, warned against the "disastrous consequences for peace and security in Darfur and the entire region." Other UN diplomats fear for the safety of the roughly 10,000 UN peacekeepers in Darfur. Ambassador Mohamed called Moreno-Ocampo's charges illegal and politically motivated.
A Murderous Conspiracy?
The chief prosecutor, on the other hand, argues that there was a murderous conspiracy by the country's leading politicians against the people of Darfur.
Soldiers and militia attacked villages, one after another, according to reports, plundering and then setting them on fire. Villagers were killed, women raped, survivors forced into the desert where they died of hunger and thirst.
Refugees who managed to reach camps were condemned to slowly die there: Government soldiers surround the camps and prevent aid workers from helping people. Moreno-Ocampo says al-Bashir didnt even need weapons for the genocide he ordered. "Rape, hunger and fear," were sufficient to kill the people, he argues.
The prosecutor's attack on a sitting head of state is more spectacular than any previous charge brought to the ICC. The dictator of Khartoum had sworn "three times by Allah," never to allow a single one of his compatriots to be delivered to the court. He could hardly have expected that he might one day be delivered to the cellar in The Hague.
For years the Sudanese leader had kept other world leaders on tenterhooks as they tried to mediate and reach a peace deal for Darfur. Al-Bashir repeatedly announced that he was going to call back the murder squads -- as soon as the world just gave him a chance. The 10,000 peacekeepers from the United Nations and the African Union have tried in the meantime to prevent the bloody attacks, without much success.
But just as the prosecutor has filed his charges, it looks as if once again, for the hundredth time, that peace may be reached through compromise and negotiations with the bloodthirsty Sudanese ruler.
The prosecutor of the International Criminal Court, Luis Moreno-Ocampo, left, has filed genocide charges against Sudanese President Omar al-Bashir. The ICC has never moved against a sitting head of state before.
The prosecutors and judges at the ICC are now faced with the moral dilemma of whether to negotiate or to arrest. Do the threats by international justice undermine the painstaking efforts to reach peace diplomatically? Will a politician who is facing indictment be willing to enter talks? Will he not make it a condition that Moreno-Ocampo's people leave him alone? And can the ICC, or should the ICC, agree to such conditions?
The dispute is as old as international criminal law itself. For example, Serbian dictator Slobodan Milosevic once tried to make his support for peace in the Balkans dependent on an assurance that he would not be indicted on war crimes. He failed.
Immunity for Peace?
The deal of immunity for peace is one that applies to any situation where a dictator is clinging onto power. There has been diplomatic wrangling for weeks attempting to prevent sanctions or even an indictment against the Zimbabwean ruler Robert Mugabe. The argument goes that the chance of reaching a compromise with the arrogant oppressor should not be jeopardized.
In the case of al-Bashir, the UN Secretary General Ban Ki-moon has said he fears that the indictment could have negative affects on the peacekeeping mission there, putting the lives of the UN peacekeepers in danger. Yet it was the UN that first asked the prosecutors in The Hague to investigate crimes in Darfur.
In 2005 the UN Security Council referred the Darfur case to the ICC, which had just begun its work in The Hague. The unusual referral was necessary because while Sudan had indeed signed the Rome Statute, the founding treaty for the court, it had never ratified it. That means that the regime in Khartoum would not have to comply with any proceedings in The Hague. It required a specific UN resolution.
But the Security Council didn't share the Secretary General's concerns back then and it doesn't appear to now. After all, legally it would be easy to stop prosecutor Moreno-Ocampo -- all it would take is a decision to suspend the case in New York.
For his part, Moreno-Ocampo is confident of his case. "I believe that peace and justice should go hand in hand," he said, adding that justice can be a part of the peace process. But peace without justice cannot be sustainable. "I don't have the luxury to look away," he said. "I have evidence."
Now it is up to Moreno-Ocampo to convince the three judges in a tribunal of the international court that they should accept his indictment and issue an arrest order for the president. He succeeded last year in getting indictments for two high-ranking members of al-Bashir's military.
- Part 1: Accusing a President of Genocide
- Part 2: A 'Highly Explosive' Case