Justice Off Course In Darfur

By Julie Flint and Alex de Waal
Saturday, June 28, 2008

Is the International Criminal Court losing its way in Darfur? We fear it is. Chief prosecutor Luis Moreno-Ocampo's approach is fraught with risk -- for the victims of the atrocities in Darfur, for the prospects for peace in Sudan and for the prosecution itself.

We are worried by two aspects of Ocampo's approach, as presented to the U.N. Security Council early this month. One concerns fact: Sudan's government has committed heinous crimes, but Ocampo's comparison of it with Nazi Germany is an exaggeration. The other concerns political consequences: Indicting a senior government figure would be an immense symbolic victory for Darfurians. But Darfur residents need peace, security and deliverable justice more than they need a moment of jubilation. And with President Omar Hassan al-Bashir and his men still in power, a high-level indictment would probably damage all these objectives.

While addressing the Security Council on June 5, Ocampo described a Darfur we do not recognize. He spoke of a vast, single crime scene where "the entire Sudanese state apparatus" has been mobilized "to physically and mentally destroy entire communities." He said he would seek to indict a senior government official -- whom we infer may be Bashir -- next month. He outlined a criminal conspiracy within government to destroy the social fabric of Darfur with, as he has said, the first stage being the massacres of 2003-04 and the second the destruction of the refugee camps and the ethnic groups housed there.

We were among the first to document the massacres in Darfur -- in 2002, even before the rebels announced their uprising -- and to call for accountability. We see grave continuing violations of human rights there. But we do not see evidence for the two-stage plan Ocampo described. Yes, there are great obstructions of relief efforts and much violence in and around the camps (not all of it by the government). Government functionaries and soldiers abuse civilians with impunity. But defining today's violations as a "systematic" campaign to destroy "entire" communities goes too far.

The Sudanese government is a ruthless mafia that compensates for the crudeness of its instruments of rule by deploying them brutally. It long ago abandoned its ambitious plans to transform Sudan racially and religiously. Today, it just wants to cling to power.

Relief agencies have documented how the pattern of abuses in Darfur has changed since the firestorm of 2003-04, when more than 90 percent of the violent deaths occurred. Several senior International Criminal Court staff members have quit, fearful of eventually having to defend an indefensible position.

We support accountability for the crimes committed in Darfur, including at the highest levels. But prosecutions must be in the interests of the victims. Few would dispute that their interests are served today by strengthening the protection and peacekeeping force of the joint U.N.-African Union mission. The interests of all Sudanese are served by working with the government to sustain the north-south peace agreement and trying to ensure that democratic elections are held next year to return a government with genuine popular support.

But Sudan's leaders believe the United Nations in Sudan is the police officer of the ICC, just waiting to enforce arrest warrants, and they have a history of responding to humiliation with rage. If the Khartoum government is indeed the beast that Ocampo depicts, is it wise to confront it in this manner, while it still exercises powers of life and death? Does this not invite retaliation, including against humanitarian agencies? If the entire Sudanese government is a criminal enterprise, how can international organizations and embassies work with it -- even in the interests of peace?

Those who maintain that peace and justice are inseparable argue that accountability deters despots. But history shows that dictators often learn that power is their only protection and that nothing, and no one, can be allowed to stand in the way. Ocampo's successful prosecution of the Argentine generals occurred after they had yielded power and could cause no more harm. The risks in Sudan are so great right now that the instruments of justice must be handled with great discretion.

In an act of shameless moral blackmail, Khartoum accuses Ocampo of instigating a new war. Sudan's government has only itself to blame for the difficulties it faces. But the ICC prosecutor also is erring. Many crimes have been committed in Sudan. The systematic eradication of communities today is not one of them. Bringing charges of this nature against the highest echelons of government, at this moment, would be gambling with the future of the entire Sudanese nation.

Julie Flint and Alex de Waal are co-authors of "Darfur: A New History of a Long War."

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