Imagine if Luis Moreno-Ocampo Were to Indict President Omar al Bashir
Imagine if the Chief Prosecutor of the International Criminal Court, Luis Moreno-Ocampo, were to issue an arrest warrant against Sudan’s President Omar al Bashir on charges relating to Darfur. What would be the consequences?
The charge, the accused, the evidence and the timing are known only to the Chief Prosecutor. I have no insider knowledge of what Professor Ocampo’s next step will be and when he will take it. Hence the scenario, “What if Ocampo indicts Bashir?” is hypothetical. But it is worth pursuing.
General inferences for the direction of the investigation can be drawn from Ocampo’s presentation to the UN Security Council on 5 June. Ocampo said, “the entire Darfur region is a crime scene,” the scene of a systematic campaign that “required the sustained mobilization of the entire State apparatus.” He singled out the role of Ahmed Haroun, in what he said was the second stage of the campaign, the first having been the massacres of 2003-04 for which Haroun had already been indicted. Now transferred to be Minister of State for Humanitarian Affairs, Haroun had direct responsibility for the camps. However, the Chief Prosecutor’s target was now the individual who instructed Haroun. Ocampo said that he had evidence for “an organized campaign by Sudanese officials to attack civilians, in particular the Fur, Massalit and Zaghawa, with the objective to physically and mentally destroy entire communities.” He compared the Sudan government to the Nazis.
Ocampo also made a comparison with his native Argentina, which was ruled by a succession of four military juntas from 1976-83, during which time thousands were murdered, tortured or disappeared. When the fourth junta relinquished power, the generals amnestied themselves and destroyed or covered up much of the evidence. Despite this, Ocampo (as assistant prosecutor) and his colleagues were able to mount prosecutions against nine officials of the first three juntas, including the three former heads of state. They won five convictions and sentenced them to life imprisonment. It was the most spectacular and successful exercise in judicial accountability for gross human rights violations since the Nuremberg trials after the close of World War Two, and gave heart to the victims of such violations around the world that they could seek justice for the crimes perpetrated against them, no matter how senior the perpetrator. The parallel is instructive, not only because of the ambition of the Argentine prosecutions and the prosecutor’s skill in assembling evidence, but because Ocampo faced the counter-argument that the crimes should be forgotten so the country could focus on political solutions.
I have asked a number of thoughtful individuals with different perspectives to write on the question “what if Ocampo indicts Bashir?” and will run their contributions as they come in. We will also be accepting unsolicited contributions and comments. As readers of this blog may have noticed, I am ready to publish my critics (and, those critics may observe, even correct their grammar too).
However, I have only a limited tolerance for the trope that any criticism of the ICC is ipso facto an apology for the Sudan government. I will exercise some intellectual quality control accordingly. Bishop George Bell criticized the Allied firebombing of German cities, and it did not make him a friend of Hitler. The Ugandan mediator for the war in the north, Betty Bigombe, criticized the ICC for issuing arrest warrants against Joseph Kony, and it did not make her an apologist for the atrocities of the Lord’s Resistance Army.
My aim is to bring the challenges and dilemmas into a public debate. The possibility of the ICC indicting a serving Head of State warrants public debate.