How Sudan Was Brought to Court

By ELIZABETH RUBIN Thu Jul 24, 9:40 AM ET

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 Courts (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 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 versus realpolitk, 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 Bashir over the last 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 United Nations, 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 state 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, dispatching an ambassador with a proposition: "Suppose Haroun comes to the Hague and says he was only following instructions, do you have to investigate the person who gave the instructions?" Moreno-Ocampo believes that the inquiry was about President Bashir.

Moreno-Ocampo expected diplomats to exploit the Sudanese panic as a negotiating tool. Instead, he says, the U.N. and the U.S. tried to assuage Bashir and his men - telling the Khartoum government, "Don't worry about the prosecutor. Just accept the peacekeepers and nothing will happen." The big powers, says Moreno-Ocampo, 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.

Moreno-Ocampo believes that justice for Darfur has fallen off the U.N. agenda. Last month, U.N. Secretary-General Ban Ki Moon went to Khartoum with his political negotiators - without the ICC charges on any schedule for discussion. Moreno-Ocampo was livid. In effect, he says, the ICC had been sidelined and the U.N. Security Council had become Bashir's advisory committee. As if to show the prosecutor just how impotent the ICC was, Bashir promoted Ahmed Haroun and expanded his influence a week after Ban Ki Moon left the country. In his new position as state 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 mechanism 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. The prosecutor sent his RSVP and then was told that the invitation issued to him was an accident, and he was being disinvited.

But Moreno-Ocampo had diplomatic allies as well. Liechtenstein's ambassador to the U.N. gave him and the ICC a huge amount of public exposure by premiering the documentary Darfur Now at the U.N. headquarters the day before Kouchner's conference. The film tells six stories out of Darfur, and one of them is Moreno-Ocampo's. The presence of Angelina Jolie ensured a packed house and media attention.

By October, Moreno-Ocampo felt his case against Bashir was clear. But he faced a U.N. that seemed out of touch with what was going on in Darfur. Diplomats at the world body began calling violence in Darfur "intra-tribal clashes" - reminiscent of the "ancient tribal hatreds" definition that stalled intervention in Bosnia for so long. "I said the Janjaweed and the army attacked in September and October and this is not intra-tribal clashes," says Moreno-Ocampo. "Haroun obstructing humanitarian assistance in the camps is not intra-tribal clashes." Moreno-Ocampo challenged the Security Council, asking why they were protecting Haroun.

Failing with the West, Moreno-Ocampo spent the next six months traveling the Arab world - Cairo, Qatar, Saudi Arabia, Jordan - to assure them of his impartiality and to bring them onto his side. Then in June, the ICC got a break.

Security Council briefings are usually gray-tongued, empty-seated affairs. But this time, the room was packed with ICC advocates. Bruno Stagno, the foreign minster of Costa Rica, broke the ice: "The Government of Sudan is toying with us, toying with human dignity, toying with the authority of this Council." Stagno said that Khartoum's promotion of Haroun and its refusal to arrest him is cynicism. He charged the Security Council with appeasing Khartoum, and he invoked the genocides in Cambodia, Bosnia and Rwanda. "You could see people looking at their notes, thinking, uh-oh, I can't read this official speech, I will look stupid," says an ICC official who was at the meeting. And then, to everyone's surprise South Africa, which up until then under the direction of President Thabo Mbeki had accommodated Khartoum (much as they are accommodating Zimbabwe's Robert Mugabe today), criticized Sudan and the Security Council's acquiescence to Khartoum. Panama and Croatia joined in. The exuberant speeches caught people short.

The game had changed entirely. "Up to now we were Sisyphus," says the ICC official, who asked not to be named. "We would go with our fantastic evidence, facts that say Haroun has committed crimes and is in a position to commit new crimes. They'd listen, go back and then forget." This time Costa Rica vowed to put forth a resolution, which would require nine out of 15 Security Council votes. With the Olympics approaching, and the international focus on its handling of Tibet, China did not want to be seen as accommodating the Sudanese. Nor did Libya, or Russia. The presidential statement went through and for the first time, the Security Council in effect said that the ICC exists and its rulings are legally binding.

The big states are "furious with me," acknowledges Moreno-Ocampo, alluding to criticism that the international court's indictment will damage the pursuit of a peace agreement in the country. "But we're creating a global community based on the law." View this article on Time.com