Seven Questions

Seven Questions: Prosecuting Sudan

The international prosecutor who's coming after Sudan's Omar al-Bashir says that peace talks in Darfur might have to take a back seat -- justice must be served.

Just hours before FP's Elizabeth Allen spoke with International Criminal Court prosecutor Luis Moreno-Ocampo, the New York Times reported that the court's judges had decided to issue an arrest warrant for Sudanese President Omar al-Bashir -- the first even indictment of a sitting head of state. Bashir would be implicated for his role in the ongoing conflict in Darfur, which many call the first genocide of the 21st century.

While the court denies having made its decision, the suggestion alone has provoked controversy. Advocacy groups worry that indicting the Sudanese president could jeopardize ongoing peace negotiations to end the crisis, or worse: inspire Bashir to tighten his grip and resort to further violence. But in his discussion with Foreign Policy, Moreno-Ocampo argues that the indictment is crucial to ending impunity in Darfur. He told FP, "I'm sorry if I disturb those who are in negotiations, but these are the facts."

Foreign Policy: Was a warrant issued by the court yesterday for the arrest of Bashir?

Luis Moreno-Ocampo: No. The report says the judges decided. I don't know what they know. But it's not official. The judges said today they have not decided.

FP: Tell us about the ICC's involvement in Darfur, and specifically, the case against Bashir. For example, what evidence do you have to implicate him on the intent to commit genocide?

LMO: In February 2007, we presented the first case on Darfur [consisting of] the attacks against the villages mainly inhabited by the Fur, the Masalit and the Zaghawa ethnic groups. The modus operandi was, [government organized militias] would surround villages that had no [Darfuri] rebel presence, helicopters or planes would drop bombs, and the government forces attacked the village.

Since June 2007, and particularly in December, I [was told] to focus my investigation on the crimes committed in the camps. In the camps, the attacks are more subtle. There are two weapons: rape and hunger. It's normal for women [who are] going to look for firewood to be raped, the same way that for you it's normal on Sunday afternoon for you to get a parking place at the supermarket.

You have to understand that Bashir and his government are a very smart people. They're not a failed state. When they saw the reaction [to village attacks,] the method [became] more silent: raping and hunger. They don't need gas chambers; they don't need machetes, because they have the desert to kill them. They are hindering humanitarian assistance. That's a subtle way to commit a genocide today.

FP: Sudan has national elections scheduled for this year, and a referendum in 2011 to allow Southern Sudan to formally secede. How might these events be affected by an ICC arrest warrant?

LMO: My mandate was to end the impunity, in order to prevent future crimes. If the judges issue a warrant against Bashir, it will be the beginning of ending impunity. I'm concerned about the second part: prevent[ing] future crimes. The international community has a three-pronged [approach]: humanitarian assistance, security, and political agreement, ignoring justice. What I saw when we issued a warrant for [Sudan's Minister of State for Humanitarian Affairs] Ahmed Harun was a tendency to ignore reality. This is affecting humanitarian assistance and also security. Mr. Harun is on the committee to deploy UNAMID, and he is of course affecting the deployment. Mr. Harun was appointed head of a committee to investigate human rights abuses. This is not a joke; this is a way for Mr. Bashir to confirm to other members of his group that if they follow his orders, legal orders, nothing will happen to them.

FP: Could the pursuit of justice result in the exacerbation of atrocities or hardships in Darfur? Could it impede the recently begun peace negotiations between the government and the Darfur rebel group, the Justice and Equality Movement, in Doha?

LMO: No. For people in Darfur, nothing could be worse. We need negotiations, but if Bashir is indicted, he is not the person to negotiate with. Mr. Bashir could not be an option for [negotiations on] Darfur, or, in fact, for the South. I believe negotiators have to learn how to adjust to the reality. The court is a reality.

I think for [the negotiators, the indictment] is de facto, it's a reality. They assume that Mr. Bashir is indicted. Maybe [that makes] the negotiation more difficult, but it's more promising. Bashir has been committing genocide for the last five years, so why do you believe he will change? And the idea that [the same thing] will not happen again in the South? Be careful.

FP: Referring to the specifics of the Bashir case, is a specific genocidal intent on the part of President Bashir necessary to prove a claim of genocide? What qualities of genocidal intent has Bashir shown?

LMO: Even Hitler did not have a document saying go and destroy the Jews, or the gypsies. You have to prove the intention through facts. Mr. Bashir, in March 2003, ordered publicly to attack his people saying, I don't like prisoners or wounded. I just want to see scorched earth.' A few weeks later, his commanders say, We're ready,' and they start a campaign to systematically target the villages inhabited by the Fur and Zaghawa.

He used the state apparatus. It's not just [an] army operation. It's not just the removal of those who refused to commit these crimes and the inclusion of other people -- including militias -- to commit the crimes. It's not just that he created these courts to investigate the crimes, and they investigated nothing. It's also about how he used the diplomatic apparatus and the media to deny the crimes.

The militias were integrated -- they were not acting alone. This autonomy of the janjaweed [militia] is an alibi. It's incredible that people can still think of that.

FP: There were a number of measures introduced in 2005 with the Interim National Constitution and the Comprehensive Peace Agreement that constrained the authority and power that President Bashir might need to organize the state to perpetrate crimes in Darfur. What effect did this have?

LMO: He never fulfilled [these conditions]. The Security Council passed different resolutions prohibiting the use of military airplanes; he continued bombing, no problem. They forced Mr. Bashir to dismantle the janjaweed militias -- he completely ignored [them].

We're not talking about political responsibility here; we're talking about individual criminal responsibility. Bashir was on top of this operation. He is the president of the country; he is the commander in chief; he's the president of the Congress Party; he has de jure and de facto control of these people. So what we allege is that he has control and he ordered these activities.

[The ongoing] hindering of humanitarian assistance is part of the genocide, because the consequence is that people are dying. Five thousand are dying each month, and we are presenting that as a humanitarian crisis. It's not; it's a crime. I'm sorry if I disturb those who are in negotiations, but these are the facts.

FP: How do you view the role of the United States in securing an ICC arrest warrant for Bashir, given that the country is not a signatory to the Rome Treaty that gives the ICC its mandate?

LMO: The Darfur case was referred to the court by the Security Council. In this case, there's no disagreement between U.S. policy and the Rome Treaty. All countries have to work to stop this crime. It's a challenge for the world. We are witnessing the first massive crime of genocide in the 21st century and for the last five years we did nothing efficient to stop to the crimes. We are providing material assistance, yes. That is great; it's saving the lives of 2 million people. But it's not enough. The United States, as a member, has a responsibility also.

MICHAEL KOOREN/AFP/Getty Images

Seven Questions

Seven Questions: Gen. William "Kip" Ward

The general in charge of the U.S. military's new Africa Command says his mission is peace, achieved without war.

As if Afghanistan and Iraq were not enough trouble for the incoming Obama administration, another operation is drawing some attention these days. Since the February 2007 decision to create the U.S. Africa Command (Africom), the venture has drawn some praise and a lot of criticism from leaders on the continent. Almost immediately, the Southern African Development Community, a group of 14 regional countries, discouraged its members from hosting any base or troops, claiming that the U.S. military's presence could be destabilizing. Western and northern African regional organizations issued similar declarations. Although Africom insists its mission will be largely nonmilitary -- training African soldiers, delivering aid and resources -- fears about the militarization of the continent continue to simmer.

On the two-year anniversary of the decision to create Africom, resistance remains -- but acceptance is also growing in places such as Liberia, Madagascar, and Senegal. At the front of the operation will be Gen. William Kip Ward, who heads the command out of Germany. Freelance journalist John Perra spoke with General Ward on behalf of Foreign Policy:, asking him about Africom's mission, its operations, and controversies.

Foreign Policy: As I understand it, Africa used to be divided between three commands -- European, Pacific, and Central. What has changed such that Africa warrants its own command?

William Ward: The fact that a decision was just taken here recently does not reflect the fact that it's been discussed for many years. It's something that I think reflects an increasingly different global environment and an ever increasing appreciation for the role of the continent of Africa in this global environment -- from its sheer size, its population, and the tension that it has. Now's the time to reorganize the Department of Defense and its approach to delivering security assistance to Africa to make it more coherent -- as coherent as we can make it.

FP: Secretary of Defense Robert Gates has warned in recent speeches against the militarization of U.S. foreign policy. Africom, and you know as well, has been called neocolonialism; it has been called a militarization of U.S. foreign policy --

WW: Operative word: has been. That's exactly right, because we've spent the last year reversing that and I think that we've been pretty successful with that. Now you don't hear those terms being bandied about any longer.

We had a ceremony in Washington in October, where we had the administrator of USAID [the U.S. Agency for International Development] talking about how [US]AID looks forward to working with us. We've had members of the Department of State participate in the same forum. We've had the African Union and leaders from the African Union saying that, we look forward to working with the command in helping us increase our capacity to provide for our own security. And we've had governments of the continent of Africa saying the same thing. What has occurred is an explanation of what the command is as opposed to the misperceptions that were initially out there.

[African resistance] is something that was reflective of a misunderstanding -- reflective of a thought that this headquarters means there will be large garrisons of soldiers, squadrons of airmen, squadrons of naval presence in [African] ports. And none of that was the case. But because none of that was understood, that was the perception. I'm not asking any African nation to host any part of the command on the continent.

FP: Where will Africom then be located? Will there ever be a host nation? And if so, what would Africom need in terms of a partnership from a host nation?

WW: [With] U.S. Southern Command, after about 19 years in existence, we finally made the determination where it would be located. We don't need to make that decision now. The important thing for the command is to be as effective as we can be in delivering our programs in support of African desires and requests, and consistent with our national security and foreign-policy objectives to help Africans to be more capable in providing for their own security. The continent of Africa is over three times the size of the continental United States, so we've got to go to these nations from wherever we are, and so the priority for the time being is not finding a headquarters. The priority is causing our programs to be as effective as we can and to start building that capacity to do those sorts of things.

FP: Does the mission of Africom include the hunt of al Qaeda? Is this then a new theater in the war on terror?

WW: A new theater? We've had activities on the continent of Africa for quite a while. We inherited the work of three different commands: U.S. Europe[an] Command, U.S. Central Command, U.S. Pacific Command. The counterterror work that was being done on the continent heretofore will continue to be done under the auspices of my command.

FP: China and Russia have made their presence felt in Africa recently, negotiating energy deals, for example. The United States is also expected to get 25 percent of its oil from West Africa by 2015. Is Africom a counterweight to other nations' exploits in Africa?

WW: We're not. Our work is not to compete with any other nations' activities. Our effort is to do what I said: As the nations of Africa seek to be able to have better control of their borders and their resources, [if they] ask us for help in that regard, and where that help is consistent with our national security and foreign-policy objectives, we want to be a factor in that. [Africom] is not a counterweight to China, Russia, India, France, Japan, Britain, anyone else. In fact, we look at certain situations now where there are cooperative efforts being undertaken.

FP: For example, what will your approach be to the perfect storm of crises such as the political and economic crises and cholera outbreak in Zimbabwe? Or what about Somalia, where the United States has recently suggested sending peacekeeping troops? Or the Democratic Republic of the Congo?

WW: It's probably not my decision. Those decisions are made by our policymakers. Where there are, as I said, military aspects of those decisions, then we would have a role. And we would then go back to our various processes for resources that would support carrying out whatever it is we will be asked to do to bring it into effect.

One of the things that was out there initially was the notion that U.S. Africa Command was taking over development or taking the lead for diplomacy. Not the case. Development, diplomacy, defense, and security are integrally linked programs that all need to be working in some harmonious way. We are only one part of that. Now, where our other partners have things that they do in the form of development and we can assist, complement, support, then we would certainly look to do that as those situations might arise. But we do not take the lead. Do we get involved from time to time? Yes, we do. But it could be in a location where there is a void. Or, in working with those who are responsible for development, say, hey, can you do this part of this in conjunction with what we do?

As an example, [take] the Department of State's and USAID's program for helping bring medical assistance to rural locations, training local medical personnel, providing medical equipment, sometimes providing educational equipment, developmental things. Sometimes everything exists other than maybe some small structure. Again, not something that we would typically build but something that makes sense to those people where they are. So where those things are complementary, then we want to be a part of bringing coherency to the effort.

FP: Could Africom be used to improve infrastructure in a nonmilitary capacity?

WW: It's probably something that theoretically is possible. Where it does [make sense] and there's a requirement and all agree, then that's something we could in fact talk about to be sure. But it goes back to the point that we don't do this because we think it's a good idea; we do it because it meets the overall foreign policy, national security objectives that, again, are made by persons other than us. So how do we fit in to support that? So if there's a void, if there's a vacuum, no one has the capability, it doesn't exist, then certainly we look to be a part of a discussion, and if we could add value to what's going on, then we seek to add value. We go where we're asked to go.

FETHI BELAID/AFP/Getty Images