In the debate over the ICC, and the indictments the Chief Prosecutor has promised for this month, my concerns are primarily factual: the depiction of the present conflict by Luis Moreno Ocampo, and the fears of many, including some of the best-informed and most experienced international jurists, that he risks damaging his case and the chances of justice for the victims of the Sudan government’s serial crimes. Sudan’s leaders have committed many crimes, but, unless the prosecutor is moving away from assertions about a two-stage plan to destroy entire communities, he may be about to indict them for one they didn’t.

Ocampo’s address to the UN Security Council on 5 June was an extension of his thesis that we are now in the second phase of the Darfur war””the first being the “˜criminal plan coordinated by Ahmed Haroun’ in which “˜millions of people were forced out of their villages and into camps’; the second being a plan to physically, mentally and biologically destroy the people inside the camps. In the current hyper-moralized debate over Sudan, anyone who questions Sudan’s critics risks being called an apologist for Khartoum. That risk is made worse by Khartoum’s own, hysterical criticism of the prosecutor. Let me run that risk and list a few concerns. They are, with Ocampo’s words to the UNSC in italics:

“˜The entire Darfur region is a crime scene.’ Much of Darfur is the scene of appalling crimes, most of them committed in 2003 and 2004, as the ICC’s indictments of Ahmed Haroun and Ali Kushayb make clear. The “˜entire’ region is not. If it were, why would a number of humanitarian organizations, including the ICRC, have planned to develop activities in villages spared by the destruction to counterbalance the “˜pull factor’ of the displaced camps and encourage farmers to stay in the countryside? Ocampo’s is a powerful sound bite. But it is an exaggeration.

“˜Such attacks are calculated to drive entire groups to inhospitable areas, where they die immediately, or into camps, where they die slowly.’ Life in the camps is degrading, dangerous and dehumanizing. There would be no camps had the government not committed unspeakable war crimes in Darfur. But a new report by MSF says the health situation in the camps remains stable overall””even though the distribution of government hospitals necessarily does not reflect the demographic reality of Darfur in 2008. An internal MSF report, drafted in April, states: “˜If we are to believe the surveys done by the UN agencies and Sudanese government, the crude mortality and under five mortality rates are far below the emergency thresholds and have been steadily decreasing for the past four years. Between 2004 and 2007, the former has dropped from 0.72 to 0.29 deaths/10,000/day, and the latter from 1.03 to 0.66 deaths/10,000/day. Although these figures should be interpreted with caution (if only because they mask the existence of localized pockets of excess mortality), they are consistent with field data and observations.’ MSF says that primary health care services in the camps are “˜mediocre, but not disastrous’. The Ministry of Health has mandated that secondary care be free for all IDPs in Darfur. This is scarcely the action of a government whose “˜entire state apparatus’ is dedicated to the “˜physical’ destruction of “˜entire communities’.

“˜In the camps, crimes and insecurity are organized. Far from being disarmed, the Militia Janjaweed are integrated into the Sudanese security apparatus and stationed in the vicinity of camps.‘ The reality of crime and insecurity in and around the Darfur camps–or town-camps, as some NGOs are now calling them””is more complicated than Ocampo suggests. The situation “˜in the camps’ is generally very different from that outside them. An extract from the same MSF report: “˜Decimated by the war or discredited for their collaboration with the government, traditional leaders (sheikhs or umdas) have been replaced by leaders close to the rebels. Their law is enforced by patrols by youth placed under their authority. Indeed, the army, police and paramilitaries rarely venture into the camps… In Zalingei, the main alleys in the camps are traversed by trenches designed to slow any motorized incursion by government forces…. The population is tightly controlled politically. In the majority Fur camps, children launch into songs glorifying the SLA leader (Abdel Wahid kalam wahid! – Abdul Wahid is a man of his word). Every one of the leader’s public statements is met by large demonstrations of support.’ The government is afraid of the camps, with good reason. It is taking blunt and brutal security measures against camp residents (especially leaders)””not because it is intent on destroying the communities, but because adjacent to Darfur’s towns and cities it has large and angry populations that are beyond its control. Ocampo is looking at the camps as though they were akin to the Warsaw Ghetto, not the semi-autonomous “˜people’s republics’ that they are called by Darfurians.

“˜Destitution is organized. Surveys””when Sudanese officials agree to their release””indicate that malnutrition rates exceed emergency threshold, especially for children under five.‘ Without in any way underestimating government obstruction of humanitarian work, it is difficult to make “˜organized destitution’ fit with the range of services MSF says are available in many of the camps, without registration or payment: water, immunization, primary and secondary health care, nutrition supplements for pregnant or nursing women and moderately undernourished children, public latrines, trash collection, vector control, primary school and kindergarten, detection of and early response to epidemics etc. While malnutrition rates have been increasing, since mid-2007, not all the reasons for this can be laid at the government’s door””far less on an “˜organized’ campaign to starve IDPs. The aid system itself must carry a large part of the blame””for its inflexibility, refusal to register part of the new arrivals in camps, and failure to reach those most in need. Commenting on the increase in malnutrition, MSF ventures that “˜one of the most likely explanations is the deepening social inequalities inside the camps, and the emergence of a class of IDPs that is especially impoverished and under-served by the humanitarian system.’

‘The commission of such crimes on such a scale, over a period of five years, and throughout Darfur, has required the sustained mobilization of the entire State apparatus.’ The implication of Ocampo’s words is that the Sudanese state functions as an efficient and coordinated machine with all its parts operating in pursuit of a single objective. Few who have lived in Sudan would recognize this picture, even at the height of the Islamist government’s jihad campaigns of the early 1990s. The government deploys the militia because it does not trust the army. The police and the Popular Defence Forces have come to blows on several occasions. Humanitarian access depends critically on the particular individual in charge of the locality or the state.

Finally, the prosecutor has said he is investigating the rebel attack that killed 10 AU peacekeepers in Haskanita on 29-30 September 2007. This line of investigation promises to open a can of worms: the relationship between the AU and the Sudan government after the rebel groups who declined to sign the Darfur Peace Agreement were expelled from the Ceasefire Commission and AMIS observer sites in August 2006. The rebels blamed for the Haskanita attack claim the observer site was being used, by the government representative there, to direct aerial bombardment. (A confidential AU report into the attack states that a rebel delegation visited the observer site on 10 September and “˜pressed for the eviction of the GoS Rep, Capt Bashir, whom they accused of availing GoS pilots with coordinates of their positions.’) If the base were misused in this way, it may have been a legitimate target under the rules of war. Does the ICC want to risk getting bogged down in a debate that would put the AU centre-stage and move the Sudan government into the wings?

That concern aside, the killing of the AU men is far from being the most egregious example of a crime by a rebel faction. Early in 2004, one faction executed scores of prisoners in cold blood in North Darfur. Most of the victims were Dafurians. In March of that year, the same faction killed 19 Zayadiya and then mutilated them, horribly. Their hands were broken, mouths slashed, eyes pierced, faces branded and mouths filled with dung. If the ICC were to indict anyone for the attack on Haskanita, some might ask whether it deemed the life of an AU peacekeeper more precious than that of a Darfurian Arab; and whether, in choosing to prosecute for Haskanita, it was turning a blind eye to the crimes of the most consistently abusive rebel leaders.

Among US activists especially, Ocampo is fast acquiring a star billing that rivals that of George Clooney. But his strategy so far has failed. Arresting those indicted was never going to be easy. But there was hope that Ahmed Haroun would be marginalized within the regime, if not removed from it. The opposite has been the case: not only does he remain as Minister of State for Humanitarian Affairs, obliging internationals to deal with him or see their humanitarian programs suffer; he has been given additional responsibilities: in July 2007, he was appointed joint chairman of the committee to control the media discourse; in November 2007, he was appointed to the UNAMID Force Monitoring Mechanism Group established by President and chaired by Nafie Ali Nafie.

Last month Ocampo revealed that the ICC planned to arrest Haroun (in December 2007) by diverting a plane on which he was supposed to be traveling to Saudi Arabia for the Haj. Of one thing we can be quite sure now: Haroun will not be using his frequent flier card any time soon. Why did the Prosecutor disclose his tactics, and give the Harouns of Sudan forewarning? Without Sudanese cooperation, has he given up hope of making an arrest? Is he playing to the gallery, believing he has little chance of playing to a court?