A thick afternoon fog enveloped the trees and streetlights of The Hague, a placid city built along canals, a city of art galleries, clothing boutiques, Vermeers and Eschers. It is not for these old European boulevards, however, that The Hague figures in the minds of men and women in places as far apart as Uganda, Sarajevo and now Sudan. Rather, it symbolizes the possibility of some justice in the world, when the state has collapsed or turned into an instrument of terror. The Hague has long been home to the International Court of Justice (or World Court), a legal arm of the United Nations, which adjudicates disputes between states. During the Balkan wars, a tribunal was set up here for Yugoslavia; it has since brought cases against 161 individuals. It was trying Slobodan Milosevic — the first genocide case brought against a former head of state — until his unexpected death last month. And now the International Criminal Court has begun its investigations into the mass murders and crimes against humanity that have been committed, and are still taking place, in the Darfur region of Sudan.
The Hague has become a symbol of both the promise of international law and its stunning shortcomings. We have reached a point in world affairs at which we learn about genocide even as it unfolds, and yet it is practically a given that the international community will not use military intervention to stop it. Militias called janjaweed, recruited from Arab tribes in Darfur and Chad and supported by the Sudanese government, continue to attack, rape and kill villagers from African tribes — more than 200,000 people have been killed in Darfur, and two million have fled their homes. For more than two years, politicians and activists have been shouting to the world that a genocide is unfolding in Darfur, calling it a slow-motion Rwanda in the hope that the shock of remembering the nearly one million people slaughtered in that African country in 1994 would prompt action. Coalitions of students, religious leaders and human rights groups have lobbied in Washington, have set up SaveDarfur.org and have made green rubber bracelets, now worn all over the United States, that quote George Bush recalling Rwanda and promising, "Not on my watch." Yet the killing rolls on, and no one intervenes to bring it to an end, as if the genocide in Darfur were already history.
Last year the United Nations Security Council referred the Darfur file to the International Criminal Court. And now the horrors of Darfur have become the preoccupation of an extraordinary international team of investigators in a plain and quiet Dutch town. They have no army, but they want to ensure that out of this history — this slow-motion genocide — they can wrest some justice.
Luis Moreno-Ocampo is the chief prosecutor of the International Criminal Court. A veteran Argentine lawyer in his 50's, he has a short, graying beard and Groucho Marx eyebrows that are almost always in motion — excited, alarmed, disappointed. Moreno-Ocampo knows how difficult his position is. "I'm a stateless prosecutor — I have 100 states under my jurisdiction and zero policemen," he said when I visited him in The Hague in January. But he does not see his court as a token body. "No. No! Wrong!" he said, swinging his arms one Saturday afternoon as we strolled by The Hague's medieval prison. He recounted how he had explained the court to his 13-year-old son: "My son is studying the Spanish conquerors in Latin America. Yesterday he says to me, 'They killed 90 percent of the Indians, so today you'd put them in jail?' I said: 'Yes. Exactly. What happened to the native populations in the U.S. and Latin America could not happen today with the I.C.C. Absolutely. Absolutely. We are evolving. Humanity is not just sitting. There is a new concept. The history of human beings is war and violence; now we're saying this institution is here to prevent crimes against humanity."'
The International Criminal Court was created by the Rome Statute in 1998 and began work in 2003 with two goals — to prevent crimes against humanity, genocide and war crimes; and to prosecute them. Of the two, prevention is what fires Moreno-Ocampo's ambition; it is what excites his imagination and intellect and fuels his 18-hour workdays, far away from his family, his horses and his farm in Argentina. It's not that he thinks the court can protect the villagers now being killed and maimed and raped in Darfur; his investigation into war crimes there will take years. What he is convinced of is that the prospect of prosecuting war criminals in Darfur and elsewhere will deter others from committing horrific crimes. Genocides "are planned," he told me. "They are not passion crimes. These people think in cost." The I.C.C. is intended to raise the cost. Moreno-Ocampo holds up Carlos Castaٌo, one of Colombia's top paramilitary commanders, as an example of the court's potential reach. After Colombia ratified the I.C.C. treaty, Castaٌo laid down his weapons because, according to his brother, he realized that he might become vulnerable to I.C.C. prosecution.
Colombia, however, is not Sudan, and Castaٌo was not carrying out a genocide. Does Moreno-Ocampo have a chance of bringing the perpetrators of the crimes in Darfur to justice?
II. The Dreams of Gustave Moynier and Luis Moreno-Ocampo
In 1989, as Soviet rule crumbled, a tiny window of historical possibility opened. For a moment, many people imagined a new world, with relations between nations rooted in human rights and international norms. It was something of a utopian vision, and the 90's — with massacres in Rwanda and Bosnia, Chechnya, Liberia, Congo and Sierra Leone — quickly swept the world back into bloodshed and genocide. Despite all the killing, an international movement was pushing the principle that government officials must be held accountable before the law. An early triumph of the movement was the successful prosecution in the mid-80's of Argentine generals responsible for the "dirty war" that led to as many as 30,000 Argentines being "disappeared." This was the first such trial — against top generals and leaders — since Nuremberg. Luis Moreno-Ocampo was the assistant prosecutor and became a household name across Argentina. The Argentine trials set a precedent for later tribunals like those for crimes committed in the former Yugoslavia, Rwanda and Sierra Leone.
The dream of an I.C.C. can be dated as far back as 1872 to a Swiss man named Gustave Moynier, who helped found the Red Cross. He saw many atrocities committed during the Franco-Prussian War of 1870-71 and realized that the 1864 Geneva Convention, on the treatment of wounded soldiers, was just paper without a court that could try violators. Nearly 130 years later, 120 countries voted to endorse the Rome Statute and began what could prove to be a small revolution in the history of nations. World leaders dared expose themselves to international law. No more immunity: they agreed to be held accountable for war crimes, crimes against humanity and genocide. Investigators and prosecutors would detail crimes and prosecute the criminals. Prisons would hold those convicted. Here was an idealistic vision designed by liberal pragmatists.
In the end, the delegations of seven states involved in the negotiations voted against the resulting treaty. Those states included Iraq, Israel, Libya, China — and the United States. But in 2000, just hours before the deadline, President Bill Clinton signed the treaty, a necessary step before sending it on to the Senate for ratification. A few weeks later, advisers to his successor, President Bush, let it be known that his administration would not respect that signature — that it regarded most international treaties as tools for the weak. In May 2002, Under Secretary of State John R. Bolton sent a letter to Kofi Annan, secretary general of the United Nations, announcing that the United States didn't consider itself bound by the Rome Statute. In one public debate, Bolton, who later became the American ambassador to the U.N., had argued: "The United States should pursue a policy of 'three nos': the United States should provide no financial support for the court, directly or indirectly; the administration should not collaborate further in efforts to make the court operational; and the United States should not negotiate further with governments to 'improve' the I.C.C. This policy will maximize the chances that the court will not come into existence." Since the court was a fait accompli, President Bush signed into law the American Service-Members' Protection Act, which requires American forces to liberate any American in I.C.C. custody. It is popularly known as The Hague Invasion Act.
Given that the reputation of the United States on human rights is today at one of its lowest points — Abu Ghraib, Bagram, Guantلnamo — Moreno-Ocampo gamely regards Bush as an inadvertent boon to the court. Bush builds Moreno-Ocampo's legitimacy by being against the court. For Moreno-Ocampo's work is political as well as legal, and his approach is intensely pragmatic. As idealistic as he may be in his global post, his career is rooted in the muck of reality. He was just 32 when he prosecuted the Argentine generals. He went on to prosecute Argentina's military regime responsible for the Falklands war and other officers for murder, torture and kidnapping. He endured assassination threats while taking on corrupt officials, cabinet members and judges; preventing and fighting corruption became his unusual specialty when he went into private practice in 1992.
The challenge in Darfur is, however, greater by far than anything in Moreno-Ocampo's career. It was in March of last year that the Security Council referred the case of crimes against humanity in Darfur to the I.C.C. Soon, television footage was shown around the world of a truck delivering boxes of documents, compiled by United Nations investigators, about the crimes committed in Darfur. In New York, Kofi Annan handed Moreno-Ocampo an envelope containing the names of 51 Sudanese people recommended for indictment by the commission. News of the list's existence unnerved officials in Khartoum, Sudan's capital. Moreno-Ocampo took the envelope, flew back to The Hague and opened it among a few associates. He then locked the names away, later saying that he would compile his own list.
Moreno-Ocampo's Darfur file is a first in international justice. His investigators must work against the will of the Sudanese government. They cannot gather any forensic evidence from schools where collective rapes occurred. They cannot gather samples from wells that were poisoned. They cannot even gather shrapnel from bombs dropped on civilians by the government. The collecting of written material, however, did not stop with the U.N. commission. Sudanese dissidents and activists have been feeding the I.C.C. investigators letters and documents. A U.N. team recently returned from investigating key Sudanese officials (and singled out 17 for international sanctions). And Moreno-Ocampo is interviewing victims by every means possible, putting together the narratives of selected crimes and connecting them to command decisions in government. Slowly, too slowly for some, out of the murderous morass a case is being built.
III. What the I.C.C., and Sudan, Can Do
The government of Sudan, led by President Omar Hassan al-Bashir, contends that the I.C.C. investigation is unnecessary. After all, Sudanese courts are conducting their own investigations and prosecutions for whatever crimes may have occurred in Darfur. Immediately after Moreno-Ocampo declared in June 2005 that the people he was likely to investigate would not face justice in Sudanese courts, Bashir's ministry of justice announced the creation of the Darfur Special Criminal Court, a three-judge traveling court.
There are several ways in which a case may be brought before the I.C.C. One is by invitation of a state; this is the case in Uganda, for example, where the government asked the I.C.C. to investigate crimes committed by the Lord's Resistance Army, a murderous cult group composed of a few leaders and thousands of kidnapped children that has been terrorizing northern Uganda for nearly 20 years. A second option is for an I.C.C. prosecutor to initiate an investigation. This is the method that has made John Bolton and others apoplectic about the court and led President Bush in the 2004 presidential campaign to refer to an "unaccountable prosecutor." (In fact, the prosecutor is accountable to an international panel of judges.) The third possibility is referral by the Security Council. In every instance, a case will be inadmissible to the I.C.C. if a state is carrying out its own investigation or prosecution — unless the I.C.C. determines that the state's prosecution is seriously inadequate.
That determination is made by the I.C.C. prosecutor and the court's judges, who are nominated by the 100 states that are full parties to the Rome Statute. In short, the court is empowered to assert jurisdiction in states like Sudan that are not themselves parties to the treaty. This is the point at which the aspirations of international law meet the resistance of sovereignty and political power. For now, Sudan has set up courts with an eye toward demonstrating that the Darfur cases are inadmissible to the International Criminal Court because they're being handled perfectly well in Sudan.
The airport in Nyala, the capital of South Darfur, welcomes you with carefully tended flowers and a soft breeze that is a pleasant change from the relentless heat of Khartoum. A bustling market town on the edge of the desert, Nyala has an air of normalcy about it. Children in blue-and-white uniforms walk the dusty roads to school in the morning. Lawyers wait outside the courts to bring their cases. Women in technicolor wraps make fresh tea and coffee on little stools in the market. Arab nomads park their camels in the livestock market at the edge of a neighborhood locally known as Falluja because of the violence there.
The governor has declared it a crime to call the neighborhood Falluja, one of the many strange rules that remind you that you are in a police state. My translator during my trip to Darfur this past winter was a Fur, the Fur being one of the main African tribes of Darfur, and to protect himself he often had to lie about his tribe when we went to neighborhoods like Falluja. On the edge of town, African Union troops — they have been in Darfur since July 2004 to monitor a cease-fire and now number a mere 7,000 — camp in tents provided by American companies. Just outside town, the notorious Kalma camp spreads across a stark plain alongside a dry riverbed. Some 90,000 people have come to live at the camp after fleeing their villages. The camp is nearly two years old and has sprawled almost five miles as families pack themselves in under thatch roofs and flapping walls made of canvas USAid food sacks.
In a quiet corner of Nyala, in a modest stone house, is the Amal Center, one of a handful of local institutions that offer some hope to Darfurians. The Amal Center is financed mainly by international organizations. Volunteer doctors treat victims of attacks, and a team of local Arab and African lawyers donate their time to file cases of murder, looting and rape stemming from the crisis. The center was founded in Khartoum in 2000 to help victims of torture in Sudanese prisons and later expanded to Darfur.
Among the lawyers at Amal is Muhammad Ali, a local Arab whose clients are mostly black African victims of janjaweed violence, and Thuriya Haroon Daldon, who is teasingly nicknamed Mrs. I.C.C. by local judges and, unusually for a woman here, drives herself around in a van. Thuriya Haroon's first case with Amal was in 2001, representing a group of men who said they had been tortured by national-security officers. "I submitted the names of the torturers to the attorney general, but until now there's no permission even to pursue the case, and no answer," she said, and laughed. A frank woman with a friendly but firm aspect, Thuriya Haroon uses laughter to fend off the realities of death and cruelty that now fill her workday. "Instead, we face harassment," she said. "They follow us, watch us. And until now the victims say to me: 'What do you do? We give our stories, and those who tortured us are on the streets.' Sometimes I'm ashamed. I've done nothing." She has handled hundreds of rape cases, for example, and until now: "No one has been convicted of rape in all of Darfur. We've had only two cases of immoral behavior. They were sentenced to six months."
Since President Bashir and the National Islamic Front (now known as the National Congress Party) took power in a coup in 1989, there have been dozens of rebellions all over Sudan. The deadliest predated the regime: a civil war between the north, where the Islamist regime was based, and the mostly Christian or animist south. Unlike in the south, however, in Darfur the African and Arab tribes are all Muslim. In Darfur, as elsewhere in Sudan, the rebels are fighting their people's economic and political marginalization.
The current Darfur conflict began raging after rebels ambushed the Sudanese Air Force at one of its bases in North Darfur early in 2003. It was a humiliating defeat for Bashir and his government's security apparatus. The government responded — as it had previously in the Nuba Mountains and the southern oil fields — by recruiting local militias to wage a counterinsurgency campaign, thus pitting tribes against one another. The name janjaweed means bandits or ruffians; it combines "devil" (jinn) with "horse" (jawad) and conjures a dark terror for Darfurians. The janjaweed were plucked from the mostly nomadic camel- or cattle-breeding Arab tribes of Darfur and neighboring Chad. Uneducated, destitute and landless, they are motivated mainly by promises made by Sudanese government officials of land and loot. Today the government uses them as a means of deniability: the militias are uncontrollable, the government says, and are merely carrying on an ancient tribal conflict or a centuries-old fight over resources between seminomadic Arabs and African farmers. Yet when the government wants to control them, it does, and many of the janjaweed have simply been incorporated into what are known as the popular defense forces.
Since August 2004, the Amal Center has compiled information on more than 72,000 cases. The documents are stored in boxes and a simple gray metal cabinet. Most are in folders sorted by the name of the targeted village. Consider the case of the town of Marla. In April of last year, after the Darfur file was referred by the Security Council to the I.C.C., the governor of South Darfur, Atta al-Mannan, announced that anyone from Marla who had a complaint could open a court case. The people of Marla took the governor at his word. "I brought all the cases of torture to the governor," the omda, or community leader, of Marla, Abdul Karim, told me one hot, windy afternoon at the Kalma refugee camp. "The one tied by plastic rope who was paralyzed, the ones who were hung and have wounds on their necks, the ones who were burned with melting plastic. Sixteen cases. I told them to stand in front of the governor to tell their story and to show their wounds. One man couldn't even hold a cup of water anymore. The governor said, 'I didn't know such things happened."' The governor said he would form a committee to investigate who committed the crimes. A prosecutor from Khartoum came and did the investigation, submitted his report and returned to Khartoum. The governor proudly showed me the bound report, along with several other investigative reports that he had ordered and that sat in a glass display case behind his desk.
Abdul Karim said that when investigators found that all the Marla cases were against government or janjaweed or popular defense forces, they dropped the investigation. Several men from Marla had filed cases against specific young men who belonged to the popular defense forces. The men from Marla had a court hearing and brought witnesses. But on the way out through the courtyard that day, the plaintiffs were arrested by national security and then disappeared for months. The men accused of the initial crimes were released. The tribal leader who the Marla men and United Nations officials say assisted in commanding the attack lives in a comfortable house in Nyala and hangs out at police headquarters and the prosecutor's office.
Justice in Nyala begins and ends with the prosecutor of South Darfur, Mauwia Abdullah Ahmed, who is from one of Darfur's Arab tribes. He decides which, if any, cases will go to the Darfur Special Criminal Court. I met him one morning in his office in a long one-story building just across a fence from Nyala's courthouse. He wore a blazer and tie and seemed bored when I asked why he hadn't transferred any of the serious cases — like those brought by the survivors from Marla — to the special court. He said it was too difficult to arrest the accused. He complained that the victims never identified their attackers, that witnesses never showed up.
I then asked him about the case of Hamada, a village attacked by janjaweed in January 2005. Muhammad Ali and others from the Amal Center filed the case on behalf of the villagers of Hamada — 93 people had been slaughtered, livestock and possessions were looted and as the mayhem went on at least 19 women were raped.
The Arab tribal leader Nazir al-Tijani, who commands most of the janjaweed in that area and is said to be under the control of the governor, has admitted that the attacks occurred and that he directed them. He said it was in retaliation for cattle raids. "He gave a big speech about his innocence, but he has not read the Geneva Conventions very well," one international official told me, quoting Tijani as having said, "Just because I ordered and planned the attacks doesn't mean that I was present during the attacks!"
The prosecutor told me that no individuals had been named in relation to Hamada. I asked him about Tijani. "That's a political case," he said. "People talk to the media, but no one came and gave us these details." I reminded the prosecutor that the village leader of Hamada filed the case through the Amal Center, and the prosecutor changed tactics. "We made an order of arrest, but up to now they're not arrested," he said. "The police don't know these people." But everyone knew Tijani. He came into town several times a week, or you could, as I once did, drive the two hours to his farm. "Murder cases are so common here," the prosecutor said, leaning back in his chair and scratching himself. "Hamada is no different. It's not a war crime. It's a murder case."
IV. A Visit to Sudan's Own Court
The Sudanese government's leading initiative to pre-empt the I.C.C. is its Darfur Special Criminal Court. By late last fall the special court had heard just six cases. One was a rape case that was dropped. (Thuriya Haroon, of the Amal Center, tried to obtain a closed-session hearing for the under-age girl, but the judges refused, and the girl clammed up.) Another case involved the looting of a truck and the shooting of a USAid employee; the charge was reduced to weapons possession. One of the harsher sentences went to a man convicted of stealing 80 sheep. It's not that no one has been connected by Sudanese courts to the genocide. They have convicted several men who did not want to take part in it: Darfurian Air Force pilots who refused to fly bombing missions over their homeland. They are serving 10 to 20 years in Kober prison in Khartoum.
One morning I visited the special court in El Fasher, the capital of North Darfur. I asked the president of the court, Mahmoud Abkam, why, with all the heinous crimes committed in Darfur over the past two years, so few cases of any seriousness had come before his court. He was an elderly man and had been retired when this job came up. He said, "We've found nothing of importance except those cases we heard." Why? "Because no information went to the prosecutor." What about Marla, Hamada, Deleig and all the other cases? He reiterated that no cases had come to the court's attention and suggested that this was because the victims preferred to talk to foreigners like me.
"You can serve their case better than the authorities," he said. "Here you can do nothing." He invited frustrated complainants to come to his court and tell him that the attorney general's office is ignoring their cases, but, he added, "They won't do it."
I said that many of the people who had told me their stories had no idea of his court's existence. He said, with a distinct suddenness: "To be frank, when we came here we thought there would be cases ready for trial. And we heard of mass rape, mass murder. We had the authority to see everything in the attorney general's office. But nothing on paper was shown to us." How did he explain that? "Perhaps the attorney general could not proceed due to circumstances beyond his control," he said. "Let us be optimistic and say that."
What if we were to be pessimistic?
"Higher authorities are not interested in these cases to be presented to the court," he said, "or for them to even come to the knowledge of the court." Another judge told me that, given the shortcomings of the court, the government of Sudan, far from preventing the I.C.C. from taking over justice in Darfur, is all but ensuring that the I.C.C. prosecutor will come to Sudan.
V. An I.C.C. Kind of Crime
A few days before I arrived in Nyala, the janjaweed and Arabs in military uniform attacked the Fur village of Tama. In the courtyard of a small house in Nyala, I met two women who had fled Tama and were wrapped in white shrouds, legs stretched out on the earth, eyes fixed down. One of them, Zahara Muhammad Abdullah, drew an orange cloth over the face of a young girl who was hiding in her lap. The child was petrified. A few days earlier, the two women told me, they rose before the sun for prayers in the mosque with their husband, the imam, when out of the quiet came the sounds of hoofbeats and gunfire and shouts, and janjaweed, some in uniform, burst through the mosque doors asking for the imam by name. The women watched as their husband said, "Yes, this is me," and the armed men said, "You, imam, are the one asking God to give victory to the Tora Bora" — a nickname for antigovernment rebels — "so today is the last day for you." The imam prayed and recited a sura from the Koran, Zahara said, "and then suddenly they shot him." Then the men fired their guns randomly around the mosque. The bullets hit the imam's brother, his brother's wife, his brother's two sons and his daughter's son. They all died. Another armed man appeared and asked the other gunmen, "Did you kill Fakir Tahir" — the imam. "We did," they said. He wanted to make sure and pulled off the cloth covering the dead imam's face.
The imam's two wives and Howa, the 5-year-old girl, were kept inside the mosque and beaten periodically throughout the day while some 300 janjaweed continued to kill and loot. Meanwhile, the janjaweed women known as Hakama, a kind of Greek chorus who sing and encourage their warrior men during raids on villages, broke into song when they saw the dead in the mosque: The blood of the blacks runs like water, we take their goods and we chase them from our area and our cattle will be in their land. The power of al-Bashir belongs to the Arabs, and we will kill you until the end, you blacks, we have killed your God. It's a nonsensical ending: one thing that distinguishes the war in Darfur is that all the tribes are Muslim, and their God is the same.
The janjaweed killed 42 people that day, most of them running out of their homes or through fields of sorghum, hoping to escape. They told the imam's wives, "Go now to your father."
"We asked them, 'Who is our father?' and they said, 'The foreigners in Kalma camp."'
VI. The Perpetrators' Point of View
A few days later, I drove to Tama with African Union officers and troops. Their mandate is a cruel one in that they are nearly powerless; they must monitor the cease-fire, and that's it, no peacekeeping. Which means that many of these men — Rwandans, Gambians, South Africans, Kenyans, Nigerians — have spent the last year picking up and burying hundreds of dead bodies, and even watching as janjaweed burn and shoot. And they can do nothing.
In Tama the fires hadn't yet gone out. Flames shot out of the freshly harvested sorghum and sesame. Ceramic storage vats of food were smoldering. Homes were ransacked. Empty toothpaste boxes, notebooks, onions and okra spilled across the floors. A dog lay dead outside the smashed basins of the midwife's house. Inside the brick mosque the floor was clean but for a bloodied turban, a bloodied djellaba, a few bullet casings and two aluminum boxes holding Korans. "This is the Islam of Sudan," said a young Fur man, a Muslim. A sheik from the village showed us the graves outside the mosque where they buried 10 men and a woman. A week had passed since the janjaweed first attacked, and still they were burning the place to ensure that the villagers wouldn't come back. The governor of South Darfur, Atta al-Mannan, explained Tama to me this way: "I warned the A.U. that this is the seasonal trip south of the nomads and there may be an accident." But according to a military-intelligence officer, who spoke on condition of anonymity because he feared he would be killed, the Sudanese military knew the janjaweed were going to attack Tama. The janjaweed, he said, are considered legal and are mostly part of Border Intelligence Guard units. "They picked up boxes of ammunition at 2 p.m. the day before," he said. "So we knew some attack was coming. That is the usual routine."
Sudan's rulers seem to contemplate the murderous violence that sustains their power with complete serenity. One evening in Khartoum I visited the former governor of South Darfur, Lieut. Gen. Adam Hamid Musa. We sat in his garden during Ramadan, accompanied by a professor friend of his. Hamid Musa lived in a residential area cordoned off for favored military officers. He was removed as governor in 2004 and now heads the Darfur Peace and Development Forum, which is financed by Sudan's ruling party. He suggested that talk of rapes and racial cleansing in Darfur was simple propaganda. "Do you think a governor will go to kill his own people?" he asked.
Even before he was made governor in 2003, Musa was part of a group of Arab ideologues who were in Darfur recruiting Arab nomads into the militia now known as the janjaweed. In the garden that night, he noted that the allegations of rape and slaughter all came from the tribes of victims.
"And they all lied?" I asked.
"Yes," he said. "A single case of raping hasn't been proved. The women there don't even know what the word means." He chuckled happily and popped a toffee into his mouth, as did his professor friend.
VII. Moreno-Ocampo Fights on Many Fronts
For Moreno-Ocampo, work- ing on the Darfur file is a never-ending tale of bureaucracy and doublespeak. Interviews, access and permits are given to I.C.C. investigators, then revoked, then rethought. Slow comes with the job, and in some ways this is a throwback to Moreno-Ocampo's early days against a similar regime. In prosecuting the perpetrators of the dirty war, 20 years ago, Moreno-Ocampo and his team could not rely on evidence from intelligence or police. They had no graves or remains — the desaparecidos were mostly thrown into the sea. What they had were 30,000 reported cases of desaparecidos collected by a truth commission. They decided to focus on 700 cases. They based their evidence on the testimony of survivors, many of whom were tortured alongside those who disappeared. The prosecution proved that the generals had command responsibility for the detention centers and the military pilots who had dumped the bodies into the sea. This is exactly the strategy Moreno-Ocampo plans to use in Darfur.
The Argentine trials gave Moreno-Ocampo a deeper understanding of the meaning of the law for society. Argentina's new president at the time, Raْl Alfonsيn, won the 1983 elections with a promise to prosecute the guerrillas and the junta. "There was a social demand for law, but we the prosecutors were just the strawberry — the politicians were the cake," Moreno-Ocampo told me. "Trials are an expression of society. The victims finally received respect, for the first time in my country. Before the trials, if you were a victim you were under suspicion." Even his mother came around. She attended the same church as Gen. Jorge Rafael Videla, the president and leader of the junta, and was furious with her son for prosecuting him and betraying the family — after all, her father was a general. "She changed her thinking through the media, watching the trials. She said, 'I still love Videla, but he has to be in jail."'
The trials were the most potent symbols of the fundamental changes sweeping through Argentina. One disappointment with the Yugoslav tribunals, according to Moreno-Ocampo, is that people were hoping "the trials were the cake." But the trials didn't change the country. "The prosecutor cannot change job opportunities or create consensus in society," he said. "You need social movements."
But Sudan is not Argentina or even Yugoslavia. The regime is still in control, and its officials are masters at manipulating the international community. As one Sudanese foreign-ministry ambassador told me, "We just have to get one step ahead of the game so we can outmaneuver the I.C.C. when they finally request to send investigators." Referring to the Darfur Special Criminal Court, he said, "We make national trials, show no impunity" — that is, that the guilty are being punished — "and ruin the I.C.C." You have to look long and hard to find any political figure of significance in Sudan who is actively supporting the I.C.C. — while there are plenty who will draw a crowd by fulminating against the court as one more instance of foreign meddling.
Given the lack of domestic support for prosecutions in Sudan, foreign support is crucial. The European Union has been the I.C.C.'s most loyal backer but has shown some wariness in the Sudan case, not least because of justifiable worries about appearing colonialist. (There were huge anti-U.N. demonstrations in Khartoum last month, and Sudanese politicians played the colonialism card very heavily.) China and France, which are permanent members of the Security Council, have interests in Sudanese oil, and though they referred the Darfur file to the I.C.C., it is reasonable to question how deep their commitment goes. Russia, another permanent member of the Security Council, has always been uneasy about the I.C.C., given the continuing disaster in Chechnya. Neighboring countries, through the African Union, have in general supported peace efforts and in some instances have helped the I.C.C. But of course such support must be handled with care, as the Bashir regime has active disputes with several of its neighbors — notably Chad, with whom it is virtually at war.
The American position is a confused one. On one level, the Bush administration is determined to hobble the I.C.C. For a few years, the United States has pressed I.C.C. member states to sign a bilateral agreement swearing not to surrender U.S. citizens, or foreign nationals working for the U.S., to the I.C.C. But the administration's anti-I.C.C. policy has backfired. Gen. Bantz J. Craddock, head of the Pentagon's Southern Command, testified before Congress this year that the insistence on special bilateral agreements is undermining American military influence. Eleven Latin American countries have not only lost military aid; they no longer receive American training — which means no bonds are established with their American counterparts. Other countries, especially China, are taking advantage of the American withdrawal to advance their own foreign goals. On a trip to Latin America last month, Secretary of State Condoleezza Rice acknowledged that this I.C.C.-immunity policy was damaging America's interests.
The American willingness to allow, without voting for it, the Security Council's referral of Darfur to the I.C.C. may have indicated a change in attitude, though it seems to have come more from a belief that the court's investigation couldn't hurt and might help. The State Department was working hard on Darfur even before Secretary of State Colin Powell declared in 2004 that Sudan's actions in the region constituted genocide. The peace agreement between North and South Sudan last year, which ended decades of war, was a rare (and fragile) success for Bush administration diplomacy in Africa. The United States has tried to push similar negotiations on the warring parties in Darfur, so far with little result. At the United Nations, John Bolton led the administration's push in February to have the African Union force in Darfur reorganized under U.N. auspices and expanded, which will probably take place by the end of the year.
At the same time, the Bush administration has stopped calling the crimes in Darfur a genocide. The administration does not want to lose the North-South agreement and the peace it has secured, and this may make it wishy-washy on Darfur. It has also found Sudan to be a useful ally in the war on terror. At least some Sudanese leaders being investigated by the I.C.C. are, according to American officials who asked not to be named, highly valuable, if unreliable, allies in hunting down Islamic terrorists. "In 2004, when the Sudanese decided to conclude the North-South peace, they got an A- on cooperation," a senior American official said. "They rendered people and gave us information on people we didn't even know were there. Since then they've done stuff that saved American lives." The C.I.A. flew Sudan's national-security director, Salah Abdallah Ghosh, to Washington for a debriefing last year. He shared information that his office had on Islamist militants training in Sudan before 9/11. Yet he is one of a handful of top security men orchestrating Khartoum's crimes in Darfur and deploying intelligence units that have carried out targeted killings since 2003. In December, a United Nations panel recommended that Ghosh and 16 other Sudanese officials face international sanctions. "The U.S. has pressed the U.N. not to include Ghosh on the list of people who should be subject to sanctions," John Prendergast, a senior adviser at the International Crisis Group, told me. "Trying to constructively engage with mass murderers in order to gather information is the wrong policy. It reinforces the regime's willingness to perpetrate atrocities."
The Bush administration is reluctantly coming to terms with the usefulness, if not the necessity, of the I.C.C. According to Roger Winter, the State Department's special representative for the Sudan conflict, who has been involved in America's Sudan policy for 25 years, "If you want to liquidate an Islamo-fascist regime that committed genocide, the way to do it that is accepted by the international community is through the C.P.A." — the Comprehensive Peace Agreement that ended the North-South war — "and prosecutions by the I.C.C."
Despite the ambivalences, mixed messages and conflicting interests in the international community, the biggest challenges for Moreno-Ocampo and his team are in Sudan. The Khartoum government is learning how to play the game. It is pushing tribal leaders from the Fur, Zaghawa and Massalit to accept reconciliation and compensation; it has its roving Special Criminal Court. And as the new minister of justice in Khartoum told me: "We are sending 15 prosecutors to Darfur. We will try the armed forces, and convict rape offenders, just to prove to the I.C.C. prosecutor that we are willing and able to try the offenders in Darfur." He did add that under Sudan's Constitution, the president and his cabinet members, members of the assembly and certain members of the armed forces and police may be immune from prosecution.
Leaving aside the question of sincerity, Sudan's efforts do point to deeper issues: should peace be allowed to trump justice? (The I.C.C. statute itself advises that the prosecutor suspend indictments if they are not in the interests of the victims.) Are reconciliation and compensation better justice than prosecution and punishment? In northern Uganda, many tribal groups were against the intervention of the I.C.C. at first. But some of Moreno-Ocampo's initial enemies, like the northern mayors he was meeting with when I went to visit him in The Hague, subsequently brainstormed with him on how to arrest Joseph Kony, the leader of the Lord's Resistance Army.
Sudanese intellectuals close to the government are very good at painting pictures of Armageddon to foreigners, insisting that if the international community demands justice it will only hasten war. As Ghazi Salah al-Addin, a moderate Islamist and presidential adviser, told me in Khartoum: "Those who feel threatened by the I.C.C., at a certain point, it will be a matter of life and death to them. They could block the C.P.A. The situation is so fragile. We shouldn't be complacent. Sudan is a very dangerous place. Your Somalia would be a picnic if Sudan degenerates into chaos. It would draw in the elements you fear most. It would require an influx of U.S. troops just like Afghanistan."
But that is why the I.C.C.'s work is so crucial, including to the United States: it has the potential to increase the pressure for peace as well as to deliver some justice. Darfurians and activists across Sudan see it as the only way of getting rid of one of the most murderous governments in the world. As the omda of Marla, Abdul Karim, told me, "After the intervention of the commission of inquiry and the U.N. and all of them confessed that there are crimes of war and crimes against humanity in this state, the best chance for the citizens of Darfur is that the perpetrators of these crimes should be taken to account at fair trials. Our hope is with the I.C.C."
So, quietly and doggedly, Moreno-Ocampo is stitching together his file against the top leaders of the genocide in Darfur, collecting evidence from victims, activists and international officials, and perhaps this might, in a very partial way, help keep Sudan from falling apart. In June he will present to the Security Council a report on the crimes committed, a road map of how he will proceed and probably a list of suspects to be indicted. Given that the Security Council is backing Moreno-Ocampo, if he issues arrest warrants against President Bashir and Vice President Ali Osman Taha, which is a real possibility, their political careers will effectively end.
I met Moreno-Ocampo recently at a cafe on the Upper East Side of New York to talk about his presentation at the Security Council. Sitting next to us was Hector Timerman, the Argentine consul, and his family. Timerman told me that when Moreno-Ocampo was first offered the job, Timerman was pushing him to accept. "Argentina is known in the world for the word desaparecidos — it is heavy for a country like us," Timerman said. "I told him, 'It's time to show the world a new Argentina committed to human rights."' A few jokes were made between the Timermans and Moreno-Ocampo about his arrogant confidence as a lawyer and prosecutor. And then Timerman's wife said there was, after all, a reason for it: "Luis never loses.
Elizabeth Rubin is a contributing writer for the magazine. She has reported extensively from Saudi Arabia, Chechnya, Afghanistan and Iraq.