Moreno Ocampo’s Coup de Theatre
I have been delaying writing about the ICC Chief Prosecutor’s public application for an arrest warrant against President Bashir until that application is public. As it is still not available, let me comment on the press conference. In the absence of law and evidence, we have the theatrics.
I sat in Luis Moreno Ocampo’s press conference on 14 July in The Hague, as the Chief Prosecutor announced his public application for an arrest warrant against President Omar Hassan Ahmad al Bashir. Moreno Ocampo said he had delivered the application to the judges a few minutes earlier (at 12.56 p.m. to be exact), though all he had for us that day was a ten page summary and a press release. For the next hour, Moreno Ocampo spoke almost entirely about just three of the ten counts of the requested indictment, for the crime of genocide. He said of Bashir, “˜His alibi was a “counterinsurgency.” His intent was genocide.’
In answer to the question of what the world should do next, Moreno Ocampo said that this was the first time the UN Security Council was confronted with an ongoing genocide, and was faced with a choice””would it accept this or act to stop it? It seemed to me that Moreno Ocampo was demanding that the world reverse the policy of negotiating with the Sudan government and instead adopt a strategy of regime change.
Asked why he preferred a public application rather than a sealed warrant””which would have a far better chance of actually allowing Bashir to be apprehended and brought to court””Moreno Ocampo said that the victims have the right to the truth. This I thought was a weak reply.
I left the press conference stunned. For nineteen years, President Bashir has sat on top of a government that has been responsible for incalculable crimes. Hundreds of thousands of Sudanese citizens have died in violence, or been starved or rendered homeless, or have been tortured or otherwise punished. The head of state must bear much responsibility for these countless crimes committed by those who profess their loyalty to him. Two weeks ago, Moreno Ocampo succeeded in accusing Bashir of the crime for which he is not guilty. That is a remarkable feat.
Nobody who is a serious student of Sudanese politics takes seriously the idea that Bashir “˜used the whole state apparatus… They all report to him, they all obey him. His control is absolute.’ None would seriously entertain the charge that “˜he wants to end the history of the Fur, Masalit and Zaghawa people’. Those with even a passing familiarity with one of the world’s largest humanitarian operations laugh off the idea that we are seeing the continuation of a policy of eradication. Rony Brauman, formerly of MSF, calls it “˜insane.’
Asked how many victims of genocide there were, Moreno Ocampo answered “˜2.5 million,’ noting that it is not necessary to be killed to be a victim of genocide. Earlier, he had shown a graph of killings, which show a double peak in 2003 and 2004, with a dramatic falling away thereafter. (This graph, up to the end of 2006, is reproduced in Darfur: A New History of a Long War, on page 151). In the summary of the case, on page 4, the Prosecutor gives the figure of 35,000 for the total number of people killed in government and Janjaweed attacks since 2003. But he insists that the current conditions in the camps are comparable to””or in some ways worse than””the years of full-scale conflict of 2003-04.
In both the press conference and the published summary of the case, the other seven counts against Bashir””war crimes and crimes against humanity””are given passing mention at best. Given that by the ICC’s own evidence, the vast majority of killings occurred during 2003-04 and that these are readily classified as war crimes and crimes against humanity, this is remarkable. In its three month-long investigation between October 2004 and January 2005, the International Commission of Inquiry into Darfur under Antonio Cassese produced plentiful evidence for “˜crimes no less heinous than genocide’ committed during those years. In support of his action two weeks ago, Moreno Ocampo said that he does not have the ‘luxury’ to ‘look away.’ But in three years and three months, the ICC does not appear to have added to Cassese’s finding.
President Bashir watched the press conference on television and remarked that the evidence was fabricated, and that the emphasis on the Fur, Masalit and Zaghawa was provocative. He said that he would not respond on the basis of what the Prosecutor said, but on the basis of what the UN did next.
Moreno Ocampo’s political misjudgments have made life easier for Bashir and commensurately more difficult for the ICC. By presenting his case in such stark terms, the Prosecutor has made it easy for his critics to dismiss him as ill-informed and driven by a desire for publicity, and has made it harder for the advocates of justice in Darfur to pursue the challenge of calling to account those responsible for crimes no less heinous than genocide.
Alex,
I am deeply appreciative of your insightful commentary on this as on many other occasions. You clearly elucidate many of the shortcomings of Ocampo’s current posture and rhetoric. Nonetheless, further clarification on the depth of this critique seems necessary. In this piece you argue that Ocampo, ‘succeeded in accusing Bashir of the crime for which he is not guilty.’ Is this claim based upon the ground that Ocampo’s indictment invokes the wrong time-frame (i.e. that he accuses Bashir of on-going crimes that are not on-going), or that he has focused on the wrong crimes irrespective of time?
While there is a large body of evidence in support of the former argument, the case of the latter is less clear. Furthermore, it seems that by using Ocampo’s own categories and bombastic rhetoric you move from a criticism of Ocampo’s coup de theatre into a field of criticism that requires stronger foundations.
You are undoubtedly correct when you write that, ‘nobody who is a serious student of Sudanese politics takes seriously the idea that Bashir ‘used the whole state apparatus… They all report to him, they all obey him. His control is absolute.’’ However, rarely if ever, has this level of control been necessary for the perpetration of genocide or for the prosecution of genocidaires. It might also be noted that, in this instance, Bashir’s control over the security apparatus of the Sudanese state may not be far removed from the heavy-handed schema outlined by Ocampo.
The desire for total destruction, implicit in the ‘end the history’ claim, is a not necessary condition for the crime of genocide to have occurred. And still less about the validity of this aspect of the indictment can be inferred from Bashir’s claim that the identification of Fur, Masalit and Zaghawa tribes constituted ‘provocation.’ Ocampo’s inflated claims aside, data about deaths and displacement in Darfur, (for example the information gathered by the Italian NGO Intersos,) does appear to demonstrate the specific targeting of these groups ‘in whole or in part.’
Finally, Braumann is correct to challenge the June 5th claim that genocide is on-going in the IDP camps of Darfur. However, when considered alongside evidence of forced detainment and starvation uncovered by the UN Rapid Assessment Mission in Kailek and other localties (www.hrw.org/backgrounder/Africa/Darfur0105/3.htm), it seems that even if Ocampo’s timing is off the allegation itself is far from ‘insane.’
Ocampo’s indictments may be off-target. However, he may be missing by yards – rather than aiming in the wrong direction. His inflation of allegations relating to genocide has made life harder for advocates of justice in Darfur. But the question of Bashir’s crimes, and of genocide judged against more level yardsticks, remains to be resolved.
Dear Iason,
these are excellent points and deserve a thorough answer. Let us imagine that the ICC had the benefit of a Chief Prosecutor who was more attuned to the political realities of Sudan, including the way in which the countries protracted conflicts wax and wane with sharp peaks of extreme atrocity punctuating the longer periods of nasty low-level violence, and who had a sharper reading of the facts in Darfur and did not play to the gallery.
This imaginary Prosecutor would probably have issued a sealed arrest warrant for Ahmed Haroun eighteen months ago. At that time I thought that the public summons was a judicious approach which stood a chance of gaining Sudanese cooperation with the Court. I was wrong. In fact, Sudan’s cooperation with the ICC had already ceased by early 2007, so the public application for an arrest warrant was more an exercise in showing the world that the Prosecutor was doing his job, albeit slowly, than a serious effort to get an accused man in the dock.
The best way to prosecute superior or commanding officers is on the basis of the evidence obtained during the prosecution of their juniors. It is possible to go right to the top using charges such as conspiracy or joint criminal enterprise, but these routes are fraught with problems. In my view, the best case to make against the superior officers would be, that in unleashing the 2003-04 counteroffensives, those in command well knew what the outcome would be, based on experience of joint army-airforce-militia operations on a large scale conducted over the previous twenty years. And that measures to prevent such excesses were either non-existent or wholly deficient, and to the contrary, there was encouragement of such excess.
This imaginary Prosecutor would have focused on the crimes committed in 2003 and 2004. He or she might want to examine some subsequent events, but certainly not to make them the centerpiece of an application. Having personally advocated that the infliction of death by starvation be considered a “famine crime”, I would certainly be in favor of a criminal inquiry into the events at Kailak in April 2004 (which Julie Flint and I described in our book, page 146) and prosecuting those responsible for inflicting conditions guaranteed to cause outright starvation.
Would this hypothetical Prosecutor have raised charges of genocide? In my view, not. The Genocide Convention is a controversial document which can be read in such a way that almost any ethnic conflict or counterinsurgency could be defined as genocide. You are correct to note that the Genocide Convention allows for the intent to destroy or harm a group in whole or in part to be counted as genocide. This was the case not only in Darfur but almost anywhere else one chooses to look where there is an ongoing irregular war or counterinsurgency. If the Convention is used in a way that fails to distinguish between these cases and instances such as the Holocaust or Rwanda, then I believe it will become a dead letter.
Choosing to prosecute under the Genocide Convention is a political decision because it requires a political reading of intent. I believe that while the counterinsurgency measures used in Darfur in 2003 and 2004 may on occasions have verged on the genocidal, that describing what happened in Darfur in those years as genocide is incorrect, and seeking to prosecute for genocide is wrong in fact as well as a political blunder.
Alex, a brief comment on your observation that the prosecutor’s public application for an arrest warrant against President Bashir is still not public more than two weeks after his 14 July press conference announcing it.
Initial requests for the full application elicited the response that the names of confidential sources were being removed and the document would be made public, without them, in a matter of days—on 22 July, ‘in theory’. As the delay has drawn out, however, ICC officials have admitted privately that the application submitted to the ICC judges a few minutes before Moreno Ocampo met the press was ‘a mess’, packed with errors—spelling, punctuation and the like—that would have to be painstakingly corrected before it could be made public.
Some have suggested that there is a link between the timing of the public application and the ruling by the Administrative Tribunal of the International Labour Organisation in Geneva—www.ilo.org/public/english/tribunal/fulltext/2757.htm—just 5 days earlier. Coverage of the ILO ruling in the mainstream media, which has been focused on the indictment of Bashir, has certainly been minimal.
ON GENOCIDE IN DARFUR:
Alex de Waal, London Review of Books, August 2004
“This [counterinsurgency effort in Darfur] is not the genocidal campaign of a government at the height of its ideological hubris, as the 1992 jihad against the Nuba Mountains was, or coldly determined to secure natural resources, as when it sought to clear the oilfields of southern Sudan of their troublesome inhabitants. This is the routine cruelty of a security cabal, its humanity withered by years in power: it is genocide by force of habit.”
Mukesh Kapila, UN humanitarian coordinator for Sudan, March 2004:
“The only difference between Rwanda and Darfur now is the numbers involved. [The campaign in Darfur] is more than just a conflict, it is an organised attempt to do away with a group of people. [ ] I was present in Rwanda at the time of the genocide, and I’ve seen many other situations around the world and I am totally shocked at what is going on in Darfur.”
Report of a UN Inter-agency assessment mission to Kailek, South Darfur (April 24, 2004):
“We are sure that the team would have learned more about the crimes committed against civilians in the region had it been granted wider access to the areas of conflict. The stories that we have received from the survivors of the acts of mass murder are very painful for us and they remind us of the brutalities of the Rwanda genocide.â€
“Darfur – Assault on Survival: A Call for Security, Justice and Restitution,†Physicians for Human Rights (2006)
“In Darfur, Sudan, a way of life has been annihilated. Families have fled homesteads that belonged to their families for generations. Hundreds of thousands have been beaten, raped, and killed. The villages they have lived in since they were born, the attributes of their civil society, and the intimate social structures that bound them together have been obliterated.
“In May 2004, PHR collected eyewitness testimony from dozens of Darfurian refugees in Chad and found ample evidence of an organized attempt to destroy non-Arab groups. PHR called the actions of the perpetrators genocide, and identified indicators of genocide, including consistent patterns of targeting non-Arabs, destruction of villages, pursuing non-Arabs with intent to make them leave their villages, raping non-Arab women, and forcing everyone out of their villages into hostile terrain.â€
[ ]
“For over two years, the Government of Sudan (GOS) and their ruthless proxy militias, the Janjaweed1, have carried out a systematic campaign of
destruction against specific population groups, their way of life and all that sustains them. This report tells the story of Darfurian lives and livelihoods obliterated in three of the thousands of villages literally wiped off the map by the genocidal killers who also pillaged, plundered, and pursued men, women and children in an all-out assault on the very survival of a population. By delving deeply into the experiences and accounts of eyewitnesses from the villages of Furawiya, Terbeba and Bendisi, Physicians for Human Rights (PHR) is adding to the mounting evidence of war crimes, crimes against humanity and genocide perpetrated against non-Arab civilians in Darfur. [ ] PHR has paid particular attention to the intense destruction of land holdings, communities, families, as well as the disruption of all means of sustaining livelihoods and procuring basic necessities.
By eliminating access to food, water and medicine, expelling people into inhospitable terrain and then, in many cases, blocking crucial outside assistance, the GOS and the Janjaweed have created conditions calculated to destroy the non-Arab people of Darfur in contravention of the ‘Convention on the Prevention and Punishment of the Crime of Genocide’ [ ].â€
For those who wish to consult a comprehensive and cogent legal discussion of genocide in Darfur—one not marred by the forensic incompetence, legal incoherence, and political corruption of the UN Commission of Inquiry on the Situation in Darfur (January 2005)—see:
“WHY THE KILLING IN DARFUR IS GENOCIDE,†by Jennifer Trahan*
Fordham Law Review, May 2008 (http://www.sudanreeves.org/Web_Links-req-viewlink-cid-3.html)
[*Ms. Trahan has served as both Counsel and Of Counsel to the International Justice Program of Human Rights Watch, as Iraq Prosecutions Consultant for the International Center for Transitional Justice, and as a Defense Consultant to the Special Court of Sierra Leone (Freetown, Sierra Leone). She has been a Visiting Lecturer with Columbia University’s Masters in Human Rights Program, and an Adjunct Professor at New York University’s Masters in Global Affairs Program, Fordham Law School, Brooklyn Law School and The New School. She is the author of HUMAN RIGHTS WATCH, GENOCIDE, WAR CRIMES AND CRIMES AGAINST HUMANITY: A TOPICAL DIGEST OF THE CASE LAW OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (2006)]
I sense a personal attack against Moreno Ocampo in this issue of how he is handling the issue of Darfur. I am just sensing it, and it is rather uncomfortable coming from such illustrated and respectable commentator like Alex de Waal.
But on the issue of the indictments only, your claim that a sealed application for the arrest warrant makes the apprehension of Bashir more difficult may be not accurate. Actually, we should ask ourselves how could you possibly keep sealed an arrest warrant against a head of state? Arrest warrants are to be executed by governments, and if Bashir was traveling anywhere would be to countries, like Egypt that are allies with Bashir. I believe there is a precedent in attempts to arrest Charles Taylor’s where the seals of the SCSL were broken yielding to a major disaster. Thinking a bit more broadly…. with the upcoming renewal of UNAMID (today actually) , the Olympic games in China, a major stakeholder in the Sudan issue, the European Parliament’s resolution on the arrest warrants for Haroun and Kushayb, how could LMO not make his application public? Have you wonder if there are maybe not more applications for arrest warrants, sealed, being under investigation by the Pre trial chamber. Yes, all of these are just speculations…just as your quite untenable submissions are. My speculations though, give the benefit of the doubt to an body, that has made equal amount of mistakes as assertions, on the former you have pointed out many, on the latter, remember Bemba’s arrest a few weeks ago, to the surprise and joy of many in DRC and CAR?
In response to Deborah Ruiz Verduzco’s comment, let me make three points. First, I really hope that the discussion can avoid personalizing the issue around Luis Moreno Ocampo. Unfortunately, his style of management and decision-making has focused attention on him as an individual. I want to reserve my detailed and substantive comments until the Public Application is public. But I must say that I found what happened in the Hague on 14 July to be principally public spectacle. I think this is unfortunate, to say the least.
On the sealed arrest warrants. In principle, yes there could be other sealed arrest warrants on the Sudan case. I don’t believe that is the case. You make a good point that it might well be difficult to have a sealed arrest warrant against a head of state. But what happened when the warrant against Charles Taylor was unsealed, when he was in Ghana attending a peace conference, was not a “major disaster.” See Stephen Ellis’s contribution on this point.
And lastly, on the Bemba arrest. Certainly many in the DRC and CAR, such as the supporters of the two governments in power, were surprised and delighted. Others were much less so. Potentiel, which one of my colleagues describes as “the most balanced yet still pro-government newspaper in DRC,” was not happy at all. See:
http://www.lepotentiel.com/afficher_article.php?id_article=64980&id_edition=4343
To Eric Reeves, I am delighted to see you quoting my LRB article. You will note that its title was “Counterinsurgency on the cheap” and my argument was that massacre, famine and forced displacement (genocidal atrocity) were the habitual outcome of counterinsurgency as conducted in Sudan under this government and its predecessors. This is precisely the opposite of Moreno Ocampo’s statement that Bashir’s ‘alibi was a “counterinsurgency.†His intent was genocide.’
All the other documents to which you refer deal with the events of 2003-04. There is room for disagreement on whether those atrocities count as genocide. I will read Jennifer Trahan’s article. But in the meantime perhaps you could explain why Antonio Cassese and his team were ‘marred by forensic incompetence, legal incoherence, and political corruption.’
My most extensive discussion of the UN Commission of Inquiry (COI) was published in two installments in an on-line journal, “IDEA: A Journal of Social Issues†(2005).
http://www.ideajournal.com/articles.php?id=38
http://www.ideajournal.com/articles.php?id=39
As to forensic incompetence on the part of the COI, I would instance in particular the comments of Sergeant Debb Bodkin (Canadian police officer specializing in interviews, and the only person to be a member of both the large Coalition for International Justice study along the Chad/Darfur border [August 2004] and the COI). In addition to the long comments cited below by Samuel Totten in a recent essay on Darfur, I would note Sergeant Bodkin’s comments to me directly at a conference at Concordia University in Montreal (November 1, 2005). She noted that the four forensic specialists assigned to the COI investigative team never put a spade in the soil, but rather conducted interviews with victims, a task for which they were conspicuously untrained. In particular the forensic team failed to excavate the notorious massacre at Wadih Saleh (West Darfur). Failure to dig at this site makes nonsense of the COI claims about issues of access and security during its time in Darfur.
The massacre of some 150 Fur men and boys at Wadi Saleh had been very publicly reported many months before by both Human Rights Watch and Amnesty International. Why was the site of the Wadi Saleh massacre not excavated? Was it because of insecurity? Why was this “insecurity†not noted in the COI report? Was it obstruction by the Khartoum regime? This, then, should have been noted in the COI report; it is nowhere suggested. There are of course other massacre sites to be investigated, but Wadih Saleh was the most conspicuous and well-known and easily pin-pointed. Through an interpreter, I spoke to one of the two Wadih Saleh survivors (he had reached Nyala and was desperate to enter the UN compound to provide exact coordinates for the killings to UN human rights officers who were in Nyala at the time). There was no doubt as to precisely where the massacre had occurred. To this day, Wadih Saleh remains unexcavated. I would call this “forensic incompetence.â€
Samuel Totten, in his own essay from his co-edited volume “Genocide in Darfur: Investigating the Atrocities in the Sudan,†also cites comments from Debb Bodkin suggesting extraordinary investigative incompetence and a significant politicizing of the investigation.
“Footnote 50. Debb Bodkin, a police officer based in Canada and the only person who served as an investigator for both the ADP [Coalition for International Justice study] and the COI, told this author that the data collected by the COI was unsystematic and not as focused as the ADP’s. More specifically, in recent correspondence with the author, Bodkin commented as follows: “During our briefing [about the COI] in Geneva, we were given no format or indication as to how the investigation and interviews were to be conducted. As a result every investigator conducted his/her investigation and interviews in whatever fashion he/she preferred. I cannot believe that with the vast difference in expertise of each investigator there would be any semblance of consistency in regard to the gathering of evidence….The UN investigation did not have any laid out parameters whatsoever and as a result an untrained interviewer could easily ask questions in a manner that would elicit whatever response the interview hoped to obtain….[Also,] each investigator was open to choose who they interviewed and how….As far as the soundness of the COI, when I compare it to any of the sexual assault or homicide investigations which I was part of during my police service in Waterloo, Ontario, it would not [have gone forward] due to the low probability of a conviction, mainly because of the fact that the investigators did not meet the required adequacy standards to be conducting interviews and did not have the knowledge, skills or ability to be doing so…” (email sent to the author, April 15, 2006).
“Furthermore, Bodkin asserted that while the COI team was in Geneva , prior to entering the field, Antonio Cassese, who oversaw the COI, inferred that the COI would not result in a finding of genocide. More specifically, Bodkin, in recent correspondence with the author, conveyed the following: “Commissioner Antonio Cassese, who had traveled to Khartoum and some parts of Darfur for a few days and had conducted some interviews, stated that he felt that we would find that there were two elements of genocide missing: (1) target group (victims are from mixed tribes) and (b) mens rea (intent). He talked for a while and my personal opinion was that he was telling us that the outcome of the investigation would show that it was not genocide which was occurring. He did not specify how long he had visited nor how many interviews he had conducted but I don’t believe either were extensive. I felt it was very inappropriate for him to plant this opinion in the investigators’ minds prior to starting the investigation and other investigators felt uncomfortable about it as well. The female Commissioner [Ms. Hina Jilani from Pakistan] stated: ‘Go with an open mind.’ During the briefing I got the distinct impression that there was some tension between Commissioner Cassese and Commissioner Jilani as their comments often conflicted with one another and he was expressing what he thought our findings would be whereas she always made comments about us doing our job open-mindedly” (email received by the author on April 15, 2006).â€
In response to Deborah Ruiz Verduzco’s comment I would like to add that several commentators, including myself, have been puzzled by the Prosector’s choice of timing and mode of making the application for an arrest warrant public.
I have developed my thoughts in an article and on my blog.
http://www.svd.se/opinion/brannpunkt/artikel_1489853.svd
http://klamberg.blogspot.com/2008/07/ngra-lnkar-om-morenogate.html
Please note that I think there are valid reasons for going after al Bashir, including for genocide, but is very important do it in a correct and credible way.
Professor Antonio Cassese finds the arrest warrant against al-Bashir “puzzling” and suggests that “if Moreno Ocampo intended to pursue the goal of having al-Bashir arrested, he might have issued a sealed request and asked the ICC’s judges to issue a sealed arrest warrant, to be made public only once al-Bashir traveled abroad. The Court’s jurisdiction over the crimes in Darfur has been established pursuant to a binding decision of the United Nations Security Council, which means that even states that are not parties to the ICC statute must execute the Court’s orders and warrants. Having instead made the request for a warrant public, Bashir – assuming the judges uphold the request – can simply refrain from traveling abroad and thus avoid arrest.” The Daily Star (Lebanon)
http://www.dailystar.com.lb/article.asp?edition_id=10&categ_id=5&article_id=94248
One of my questions is, how accurate is the data about the mortality rates 2005ff? One has to bear in mind the fact, that these are figures covering areas which are accessible for humanitarian staff. Who counts and monitors mortality rates in those villages, IDP camps and mountain areas, which are not or have been accessible only from time to time for data collectors?
While access to IDP camps in the vicinity of major centres and bigger towns is feasible in the remoter areas this is not the case, if protection for humanitarian and commercial convoys is not provided sufficiently. Humanitarian organisations have complained many times about broken promises to provide protection for humanitarian convoys moving into the countryside.
How many (nameless) Sudanese lorry drivers have lost their lives, while taking the risk of carrying commercial and humanitarian goods without protection in Darfur? What are the consequences for the people in remoter areas if supply chains are cut off by ‘banditry’ and ‘doing nothing’ by those who could provide protection for convoys?
‘Doing nothing’ can constitute a form of violence, a ‘silent’, more difficult to grab one of course but quite effective in its consequences.
Alex de Waal,
I thank you for responding to my comment, as your opinions certainly are thought-provoking.
Concerning the article you kindly shared from Le Potential, I want to make a final submission to this commentary-opportunity with respect to the popularity factor of an individual a how it fits into the actions of the ICC which concern purely criminal investigations.
While the article in Le potential describes fair opinions of those who may see in Bemba a true leader or may perceive an indictment against him an interventionist act, while powerful and compelling positions, and opinions these are far from being exculpatory factors to the acts Bemba must prove he did not commit. The arrest of Bemba, given precisely his stature, is undoubtedly an important success of the Court, facilitated in great part by Belgium’s internal coordination mechanisms that allowed it to act promptly upon the arrest warrant of the Court. The symbolism of the Bemba arrest can go both ways, triggering critics to the Court or sending signals to others who believe that wealth, power or popularity may make the immune to justice. Beyond symbolism however is the opportunity of bringing him to the opportunity of defending himself.
Granted it is that concerning the CAR situation, as for the Uganda, and DRC, investigations on the actions of the other warring parties, including government forces, should follow. Yet, the Bemba arrest is a great start. If failures are to be attributed to the chief prosecutor, successes like these are owed to his actions as well.
Dear Deborah
thanks for your comment. There is no doubt that the ambition of the Prosecutor to prosecute leading political figures is making a major mark on the African continent. Whether one calls this a “success” or not depends on where one stands. What I thought was interesting about the article in Le Potentiel was that it came from a source not known for supporting Bemba. Opposition to the arrest was coming, not from one of Bemba’s supporters (who obviously consider him a leader) but from his political adversaries (who also consider him a leader–but one to be managed politically rather than through an international judicial process).
It is obviously important for the ICC to seek balance in prosecuting those responsible for crimes on both sides of civil wars. But that is only one step towards achieving a credible reputation in Africa. True legitimacy requires much more, including expanding its investigations outside Africa, allaying fears that it is a tool for judicial neo-imperialism and respecting African demands for ownership over processes of accountability.
There are many strong advocates of human rights in Africa, including vehement critics of Bashir and Bemba, who fear the implications of pursuing judicial accountability without broad-based support within the societies where the violations have occurred. There is a great deal of muted suspicion about the ICC across the continent and frankly I don’t think there is anyone in Africa who sees its actions as anything other than political.
I suspect that Rwandese President Paul Kagame was speaking for many Africans when he said last week that the court “has been put in place only for African countries, only for poor countries,” continuing, “Rwanda cannot be part of that colonialism, slavery and imperialism.” Strong words, but a sentiment that must be listened to carefully.
Dear Alex de Waal,
I will go against my attempt to depart from this space, and will add another comment, this was prompted because I believe your reply to your comment departs from the point of the original blog where is placed, and that is your views on the theatre of Moreno Ocampo.
While I understand and share with you the need for legitimacy to operate more effectively, legitimacy is not the main objective of the Court. Its objective is to end impunity, and unfortunately it has to do so in a global context where geopolitics, social injustice, history of colonialism and lack of democracy and global governance exist. This is the context where it operates, but it can not be blamed for them, nor it can be expected to solve, albeit not in the short term.
There are implications, I rather call them constraints or risks, as you rightly point out, of moving ahead with judicial accountability without broad-based support from societies where is operating. However, as in history we, not only in Africa, but elsewhere have always operated on the basis of power and force, these suspicion is just a reflection of how foreign the rule of law is to our reality. Suspicion for a court will always exist. As it is suspicious that a trial is widely supported.
It is illogical to invoke ownership on accountability as a reason to refuse ICC intervention, since it is this lack of accountability at the domestic level the cause of the intervention of the ICC. When the DRC and Uganda for example take the so long delayed steps to incorporate legislation to allow for domestic prosecution, maybe then it would be legitiamte for them to claim ownership. The same goes for Sudan. The reason why this has not happen, it more than evident, political, given the implications of those laws for those, not only the guerrillas, implicated in international crimes.
For this reason, the statements of Rwandese President pretend to portray Africans as victims of a context that they created for themselves. And by they, I do not mean Africans (because to me a leader is a leader and a victims is a victim no matter in which continent he or she is), I mean the leaders and those in power to stop or continue the carnage, because as you very well know, for example for having commented on Hugo Slim’s recent publication, there is a choice in the way war is waged. But then, that is of course matter for another post/blog….
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