International Court Under Unusual Fire

By Colum Lynch
Washington Post Staff Writer
Tuesday, June 30, 2009
UNITED NATIONS — When Luis Moreno-Ocampo charged Sudanese President Omar Hassan al-Bashir with war crimes last year, the International Criminal Court prosecutor was hailed by human rights advocates as the man who could help bring justice to Darfur.
Today, Moreno-Ocampo appears to be the one on trial, with even some of his early supporters questioning his prosecutorial strategy, his use of facts and his personal conduct. Bashir and others have used the controversy to rally opposition to the world’s first permanent criminal court, a challenge that may jeopardize efforts to determine who is responsible for massive crimes in Darfur.
At issue is how to strike a balance between the quest for justice in Darfur and the pursuit of a political settlement to end an ongoing civil war in the western region of Sudan. In recent months, African and Arab leaders have said the Argentine lawyer’s pursuit of the Sudanese president has undercut those peace prospects.
Libyan leader Moammar Gaddafi and Gabon’s Jean Ping, the two leaders of the African Union, are mounting a campaign to press African states to withdraw from the treaty body that established the international tribunal. “The attacks against the court by African and Arab governments in the last nine months are the most serious threat to the ICC” since the United States declared its opposition to it in 2002, said William Pace, who heads the Coalition for the International Criminal Court, an alliance of 2500 organizations.
Moreno-Ocampo defended his work in a lengthy interview, saying that his office offers the brightest hope of bringing justice to hundreds of thousands of African victims and halting mass murder in Darfur. “It is normal: When you prosecute people with a lot of power, you have problems,” said Moreno-Ocampo, who first gained prominence by prosecuting Argentine generals for ordering mass murder in that country’s “dirty war.”
The International Criminal Court was established in July 2002 to prosecute perpetrators of genocide, war crimes and crimes against humanity, building on temporary courts in Bosnia, Cambodia, Rwanda and Sierra Leone.
Since he was appointed in 2003, the prosecutor has brought war crimes charges against 13 individuals in northern Uganda, Congo, the Central African Republic and Sudan, including a July 2008 charge against Bashir of orchestrating genocide in Darfur. Pretrial judges approved the prosecutors’ request for an arrest warrant for Bashir on March 4 on charges of war crimes and crimes against humanity, but rejected the genocide charge.
The Bush administration initially opposed the court, citing concerns of frivolous investigations of American soldiers engaged in the fight against terrorism. But President Obama — whose top advisers are divided over whether Sudan continues to commit genocide — has been far more supportive of the court.
The violence in Darfur began in early 2003 when rebel movements took up arms against the Islamic government, citing discrimination against the region’s tribes. The prosecutor has charged that Bashir then orchestrated a campaign of genocide that has led to the deaths of hundreds of thousands of Darfurian civilians from disease and violence, and driven about 2 million more from their homes.
Bashir has openly defied the court, saying that it has only strengthened his standing. “The court has been isolated and the prosecutor stands naked,” said Sudan’s U.N. ambassador, Abdalmahmood Abdalhaleem Mohamad.
The prosecutor’s case “has polarized Sudanese politics and weakened those who occupy the middle ground of compromise and consensus,” said Rodolphe Adada, a former Congolese foreign minister who heads a joint African Union-U.N. mission in Darfur.
In remarks to the U.N. Security Council in April, Adada challenged Moreno-Ocampo’s characterization of the situation as genocide and said that only 130 to 150 people were dying each month in Darfur, far fewer than the 5,000 that Moreno-Ocampo says die each month from violence and other causes. “In purely numeric terms it is a low-intensity conflict,” Adada said.
African leaders with abysmal human rights records seek to discredit Moreno-Ocampo because “they fear accountability” in their own countries, said Richard Dicker, an expert on the ICC at Human Rights Watch. Dicker concedes that Moreno-Ocampo has made missteps that have played into the hands of the court’s enemies.
In September, Human Rights Watch raised concern in a confidential memo to the court about low staff morale and the flight of many experienced investigators. It also cited the prosecutor’s 2006 summary dismissal of his spokesman after he filed an internal complaint alleging Moreno-Ocampo had raped a female journalist.
A panel of ICC judges, after interviewing the woman, concluded that the allegations were “manifestly unfounded.” Then an internal disciplinary board recommended that Moreno-Ocampo rescind the dismissal, arguing that the prosecutor had a conflict of interest in firing the spokesman.
An administrative tribunal at the International Labor Organization ruled that while the spokesman’s allegations were ultimately proved wrong, he had not acted maliciously because he believed his boss had engaged in improper behavior. It required a settlement payment of nearly $250,000 for back pay and damages.
Moreno-Ocampo, in the interview, declined to respond to the criticism of his personal reputation, saying, “I cannot answer unfounded allegations.”
The case against Bashir rankles many African leaders, who say it is hypocritical. They note that the Security Council, which authorized the Sudan probe, has three permanent members who never signed the treaty establishing the court: the United States, Russia and China. “The feeling we have is that it is biased,” said Congo’s U.N. envoy, Atoki Ileka.
Alex de Waal, a British expert on Darfur, and Julie Flint, a writer and human rights activist, maintain that Moreno-Ocampo is the problem. They recently co-wrote an article in the World Affairs Journal citing former staff members and prominent war crimes experts who are critical of the prosecutor for not conducting witness interviews inside Darfur and for pursuing a weak charge of genocide against Bashir.
“It is difficult to cry government-led genocide in one breath and then explain in the next why 2 million Darfuris have sought refuge around the principal army garrisons of their province,” Andrew T. Cayley, a British lawyer who headed the prosecutor’s Darfur investigation, wrote in the Journal of International Criminal Justice last November.
Christine Chung, a former federal prosecutor and senior trial attorney for the prosecutor until 2007, dismissed the piece as “character assassination” and said the prosecutor’s decision to stay out of Darfur was “in the end correct. The Sudanese government indeed detained and tortured persons believed to be cooperating with the ICC.”
Moreno-Ocampo said he remains convinced that Bashir is committing genocide. “I have 300 lawyers, all brilliant people, with different opinions, but then I make the decision,” he said. “I still think it’s genocide, and I will appeal.”