Home | News    Monday 18 December 2006

ICC: ‘No Sudanese official immune from Prosecution’

By Wasil Ali

Dec 18, 2006 (NEW YORK) — The chief prosecutor of the International Criminal Court stressed that he would investigate individuals in the Darfur case on the basis of evidence irrespective of the political position of the indicted person.

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Luis Moreno Ocampo

Asked whether he would prosecute the Sudanese President or he would take into account the political considerations, Luis Moreno Ocampo said he relies in his investigations on evidence only and not on the official capacity “I investigate the case and follow my evidence” he said.

Referring to the list of 51 suspects received from the UN Secretary General last April, the prosecutor also emphasized that this list reflects the conclusions of the commission and are not binding to him.

“Our approach and mandate are different from those of the [UN] commission but we appreciate the work they have done in Darfur;” Ocampo underlined.

The court is the world’s first permanent war crimes tribunal and acts as a court of last resort. Under the Rome statute, the prosecutor must first assess whether the government - in this case Sudan - is building the same case.

On the Sudanese government posture towards the ICC, the prosecutor confirmed that Sudan is fully cooperating with his office. He further noted that Khartoum has been trying to demonstrate its efforts in conducting trials related to Darfur crimes.

He further disclosed that "the same week the UN Security Council voted on resolution 1706 authorizing peacekeepers in Darfur”, a team from his office “was in Khartoum interviewing senior Sudanese officials.”

Asked on the circumstances that would make him stop his investigation on the Darfur war crimes, Ocampo said “I will stop my investigation only if genuine national proceedings exist.”

Delivering justice to the people of Darfur is a duty few people are fit for but Luis Moreno Ocampo, the Chief Prosecutor of the International Criminal Court (ICC), was born for. Twenty years ago the young Ocampo became a rising star in his homeland of Argentina for prosecuting the most senior political and military figures including three former heads of states.

Today the charismatic 54-years old prosecutor seeks to unveil the identities of the perpetrators of some of the worst abuses of human rights in Darfur which is likely to include senior Sudanese officials.

The U.N. Security Council Chapter VII resolution referring the situation in Darfur to the ICC meant that Ocampo has to work against a hostile government, yet with no options but to comply.

In his first interview with a Sudanese newspaper Ocampo talks passionately about the need to protect the people in Darfur from further crimes outlining the steps he is taking and the mechanisms governing his work in this high profile case.

The following is the text of the interview:

ICC still awaiting update on Sudanese national proceedings

- Did you present your first case to the ICC judges?

Ocampo: No, not yet. We informed the Assembly of State Parties (ASP) that we have collected enough evidence to support our first case but before we present the case, in accordance with the Rome Statue, we will have to examine whether or not the national courts in Sudan are conducting genuine proceedings in relation to the same case we investigated. If not we will then submit our cases to the judges.

- So you have not received the final report from Sudanese government outlining the cases they are investigating in the Darfur war crimes?

Ocampo: The government of Sudan facilitated a visit of representatives from my office to interview judges and prosecutors in February. We went back again to in June for an update on the national efforts to investigate the Darfur war crimes. Currently, we are still receiving information from them in this regard.

Sudan is fully cooperating with the ICC

- The Sudanese government has been outraged by the announcement that you have made at the ASP. The Sudanese Presidential Adviser Nafie Ali Nafie has said that you should refrain from “involving yourself in political matters” and that what you have done was “completely unacceptable and unprofessional”. How do you respond to that?

Ocampo: I agree with him that as prosecutor I cannot involve myself in political issues which is why I did not present my evidence or mention any names at the ASP meeting. However my duty as a prosecutor is to report the activities of my office to the ASP. On the contrary, I was trying to show that Sudan has fully cooperated with ICC because people think that Sudan is not cooperating which is not true. I agree with the person you are quoting that I have to be impartial but this is a complex issue and there is a huge information gap between the people in Sudan and the rest of the world and I have to respect all parties.

- Nafie was implying that your announcement was politically motivated at a time when Sudan is under intense diplomatic pressure to accept UN peacekeepers in Darfur. Sudan has rejected the UN peacekeepers in Darfur for the fear that their mandate will allow them to arrest those indicted in the Darfur war crimes.

Ocampo: We are not a UN institution. In fact the same week the UN Security Council voted on resolution 1706 authorizing peacekeepers in Darfur, a team from my office was in Khartoum interviewing senior Sudanese officials. I am totally independent from the UN, but they are the only ones who can refer this case to the ICC.

My job is to investigate, not talk to the media

- The Darfur conflict is making the news every single day and the ICC is under pressure to produce indictments. How difficult is it to conduct a low profile investigation in a very high profile case?

Ocampo: I am trying to keep a very low profile unlike Louise Arbor [United Nations High Commissioner for Human Rights] who kept criticizing me because I was not talking about my ongoing investigations in Darfur. I cannot talk to the media about my case. My job is to try and find out what exactly happened in Darfur.

- Jan Pronk the Secretary General Special Representative to Sudan has also been critical of the slow pace of the ICC investigations in the Darfur and insisted that you have to expedite your investigations in order to end the culture of impunity. How do you feel about his remarks?

Ocampo: I respect the mandate of the people who criticized me, but at the same time I have to conduct my investigation in a thorough and fair manner which is why I sought to visit Khartoum to understand the different point of views. I cannot rely on one source; I have to be impartial. Personally I think our investigation is proceeding quickly. My legal duties require me to examine incriminating and exonerating evidence alike and I have to fulfill my mandate.

Admissibility of the Darfur case before the ICC

- The Sudanese government insists that the ICC has no jurisdiction over the Darfur case for three reasons. First, Sudan is not a party to the Rome statue. Secondly, the UN Commission of Inquiry has concluded that genocide has not occurred in Darfur so there is no reason for the ICC to be involved. Third and most important reason is that Sudan is already investigating the crimes committed in Darfur. How valid are these arguments?

Ocampo: Back in 1993 the UN Security Council acknowledged that justice is a key prerequisite to a lasting peace and security and established an ad hoc tribunal for Yugoslavia and another one for Rwanda the following year. In the Darfur case no tribunal was needed since the ICC as a permanent judicial body is already in existence. According to the Rome Statue the UNSC has the power to refer a case to the ICC for a non-party State. Sudan is a member of the UN and is bound by its charter so this forms the legal basis for the admissibility of the case. It is true that if genuine national proceedings exist in the cases I am looking into then I have to respect it which is why I do an admissibility assessment of my case. The problem is that Sudan is not prosecuting the individuals we are investigating so we are proceeding. The defendants or Sudan can always challenge my admissibility before the judges of the ICC. The best solution however, is for Sudan to prosecute these individuals through its own judicial system. This will have an incredible impact on the ground and will help resolve the Darfur conflict. The U.N. Commission of Inquiry has concluded that crimes against humanity and war crimes have occurred in Darfur and thus the ICC has the jurisdiction to look into these categories of crimes.

- Human Rights Watch (HRW) has criticized your office’s strategy of insisting to assess the national proceedings in Sudan on the grounds that Sudan is not really willing to prosecute the perpetrators of the Darfur war crimes. Moreover the Sudanese law confers immunity from prosecution on military officers. In fact Sudan is not even acknowledging that crimes against humanity have occurred in Darfur.

Ocampo: Evaluating the national proceedings is an ongoing process. The focus of my office is to verify if Sudan is prosecuting the same people I am investigating.

The list of 51 suspects

- You received a sealed envelope from the U.N. Secretary General Kofi Annan containing the list of 51 suspects prepared by the UN Commission of Inquiry on Darfur. This list has been the subject of so much speculation in Sudan. We have a handful of lists circulating around. In your statements you have insisted that this list is advisory in nature and not binding to your office. If that is the case why did you open it?

Ocampo: I received the U.N. referral on Friday April 1st 2005 and on Tuesday I was in New York to receive the list of 51 suspects. I flew back to The Hague on Wednesday and opened the list in the presence of senior members from my office to understand the conclusions reached by the commission and the underlying reasons. After reviewing the list we resealed it because for me these are the conclusions of the commission. The envelope remains sealed.

- So you don’t think you will need to go back to the list at any point during your investigations?

Ocampo: No. The national commission tried to do the best they can in a very short period of time. Our approach and mandate are different from those of the commission but we appreciate the work they have done in Darfur.

- Did any states or organizations request that you add or remove names from this list?

Ocampo: No, not at all.

Egypt’s viewpoint

- Following your decision to open an investigation into the Darfur war crimes you traveled to Cairo and met with the Egyptian foreign minister. Observers looked at this visit as somewhat odd since Egypt is not a state party and has been highly critical of resolution 1593. Needless to say that Egypt is not geopolitically involved in the Darfur conflict, so they will not be able to supply you with any information that will aid your investigation. What was the purpose of your visit?

Ocampo: I believe that in 50 years the will become a universal court. As a prosecutor I have to interact with non-party states if they are interested. Sudan is part of the Arab world and Egypt is a major country in the region so it was important for me to hear their viewpoint on the conflict. Egypt has opposed ICC referral which is why I sought to hear the reasons for their position firsthand. The Egyptians are wise people and I found the meeting very useful. I cannot handle the Darfur case from the outside as an intruder.

- So you requested this meeting?

Ocampo: Yes I did

- So the Egyptian government did not try to pressure you to stop your investigations?

Ocampo: No not at all. All they did was provide me with the reasons why they rejected the ICC referral.

Cooperation with the African Union

- Your office has been trying to sign an agreement with the African Union (AU) for quite some time with no success. Can you give us the details of the proposed agreement?

Ocampo: We have a number of courtesan agreements with other regional organizations such as the UN and EU. We have been seeking a cooperation agreement with the African Union long before the Darfur case. We try to work with as many organizations as possible.

- What items in the proposed agreement that the AU has expressed reservations on? Are they related to arresting indicted individuals or assisting in witness protection?

Ocampo: No, this is a very general agreement and does not contain any provisions for the arrests or witness protection. The agreement is currently with the legal advisers.

Negotiations with the Sudanese Government?

- The London based Al-Hayat newspaper, quoting western diplomats, has reported in March of this year that the government of Sudan is trying to negotiate an agreement with your office through Sudanese figures working in the U.N. to avoid prosecution of Sudanese officials. How credible are these reports?

Ocampo: Sudan has been trying to demonstrate to my office their efforts in conducting trials relating to the Darfur war crimes. In my eyes this is good thing. We are investigating a small number of people and we cannot do it all by ourselves. There are multiple parties involved in the Darfur war crimes. I have been trying to help Sudan through my work as a lecturer in Harvard and one of the Sudanese ambassadors was a student there. I was trying to get Harvard to help Sudan in these areas. This is a complex conflict and justice in itself will not be enough to resolve it. We need a political agreement and security.

- Some of the proposals mentioned in the Al Hayat report include forcing the individuals indicted to resign and have the ICC judges conduct the trials in Sudan along with Sudanese judges. Is that true?

Ocampo: This has not been discussed. The Rome Statue says justice can be done on the national level or through the ICC. Sudan may invite the ICC to hold trials in its territory but there is no such thing as integrated courts combining local and ICC judges.

Security situation prevents me from going into Darfur

- You have determined that you are not able to go on the ground in Darfur because you cannot protect the witnesses there. Don’t you think you risk losing valuable evidence and testimonies that would aid your investigations by not physically going into Darfur?

Ocampo: I have the legal duty to protect witnesses so I have to respect this principle but as soon as the security situation in Darfur improves I would like to go there. I cannot expose my witnesses simply because I want to investigate there. My current strategy is to investigate the case from outside Darfur.

- Who will make the determination that it is safe to go into Darfur to interview witnesses? Is it the UN or the African Union or your office?

Ocampo: This will be our call but we will examine the opinions of other parties.

Crimes against humanity or genocide?

- You hinted in your 3rd report that genocide may have occurred in Darfur but a determination on this is pending “full and impartial investigation”. At this stage can you tell us the nature of the crimes committed in Darfur?

Ocampo: The evidence we currently have supports charges of crimes against humanity and war crimes.

- The Sudanese President has said that only 9,000 people have been killed since the conflict broke out in Darfur. Do you agree with this figure?

Ocampo: I am not in a position to determine the total number of people who died in Darfur. At the same time you will have to differentiate between the people who were directly killed by the violence or by starvation and displacement.

- But you have said that the gravity of the crimes is central to the process of case selection for investigation. Isn’t the numbers of people killed the key to determining the gravity of a crime?

Ocampo: The number of people killed is a factor to determine the incidents selected for investigation. However I cannot give you the total number of people killed in the conflict in Darfur as a whole.

Sudanese president’s indictment relies on evidence

- In your second Report to the UNSC in December 2005 you said you are going to be sensitive to the political dynamics of the country. This is has been interpreted to mean that you will avoid indicting some officials in order not to destabilize the political situation in Sudan. Do you agree with this interpretation?

Ocampo: No, we are prosecutors and guided by evidence only.

- This leads me to my next and most important question in this interview; Should you have incriminating evidence against the Sudanese president for instance are you willing to push such a case or will you take the political factors into account?

Ocampo: I am not a party to any political process and as I mentioned before I rely on the evidence I have before me.

- So the official capacity is not a factor in your investigation?

Ocampo: The judges will determine who will be prosecuted. I investigate the case and follow my evidence.

No cooperation with the U.S. Administration on Darfur

- The U.S. has always been a staunch opponent of the ICC and has fiercely tried to block the referral of the Darfur case to the ICC but after a shift in policy they decided to abstain from voting to enable the resolution to be adopted. However recently there has been mounting signs of the U.S. warming up to the ICC, most notably in urging the Ugandan government to execute the arrest warrants against LRA leaders. Also some U.S. lawmakers have been calling on the Bush Administration to assist the ICC in its Darfur investigations. Did the US offer to share some intelligence information or satellite images on the Darfur conflict with the ICC?

Ocampo: No; it’s even illegal for the U.S. to come into contact with the ICC.

Contacts with Darfur rebels

- Did you meet any of the rebel leaders?

Ocampo: I have not met personally with any of the rebel groups but our team has interviewed different parties and it is likely that some of them are members of the rebel movements. I cannot confirm however, that we have interviewed any rebel leaders.

Investigating individuals not governments

- Don’t you think that by not meeting with the rebel leaders you may appear to be impartial and trying to put the blame on the government of Sudan particularly when you have met with senior Sudanese officials?

Ocampo: I am not putting the blame on the Sudanese government. I have never made a statement against the government. My job is to investigate individuals not governments. The government is the main sponsor of security in Darfur and we want to work with them to make things better in Darfur.

- But the UN commission of inquiry has concluded that the Sudanese government and its proxy militias bear the greatest responsibility in the crimes committed in Darfur?

Ocampo: Like I said I am investigating individuals not governments.

- Do you anticipate the need to place the arrest warrants under seal once approved by the ICC judges?

Ocampo: It’s too early to talk about that.

- One of the legal opinions that came out of Sudan following the ICC referral is that if Sudan ratifies the treaty your office will have no jurisdiction on crimes prior to the ratification date. Do you agree with this legal opinion?

Ocampo: This case has been referred to me by the UNSC so I have the legal foundation to prosecute and I cannot advise you otherwise. I will not make opinions on someone else views.

- So it’s up to the judges to decide if this opinion has any legal basis?

Ocampo: The admissibility in the end is determined by the judges. We have proceeded based on our opinion that the case is admissible.

Conditions to stop the ICC’s Darfur investigations

- Under what conditions are you willing to drop the case and freeze the investigations into the Darfur war crimes?

Ocampo: The conditions are in the Rome Statue; I will stop my investigation only if genuine national proceedings exist.

- So there is no way to avoid any form of legal proceedings in the Darfur case?

Ocampo: Everyone agrees that crimes have been committed in Darfur therefore someone will have to investigate them, preferably the national courts.

Perceptions of the ICC as a western institution

- Some people perceive the ICC as a product of Western imperialism. They think that Africa is capable of resolving its own problems and that the ICC involvement will only complicate. What is your reaction to these feelings?

Ocampo: Look I came from Argentina which is not a Western country. Mass crimes have been committed there. The ICC is not a Western institution. The fact is that other countries have helped us stop these crimes and this is what I am trying to accomplish in Darfur. If my investigations could create mechanisms that will stop the crimes so be it. We are trying to protect people in Darfur who are very vulnerable right now. This is not just an African goal but a universal one. When you are in an internally displaced camp you need protection. This is my mandate to help those people and I will do it. We are working closely with African leaders. The Democratic Republic of the Congo and Uganda have voluntarily referred their cases to the ICC. Africa is currently leading the ICC.

- I believe your deputy is from Gambia and a large percentage of the ICC staff is from Africa?

Ocampo: Exactly. Actually Africa is over-represented in the ICC (laughter) but that’s fine. We are working in Africa so we need to understand it.

Sudan’s maneuvers against the ICC

- Even though Sudan has fully cooperated with your investigations, they remain hostile to the ICC. What provisions in the Rome Statue will ensure that the Sudanese government will not buy time through lengthy proceedings challenging the jurisdiction of the court or conducting bogus trials to avoid handing suspects over to the ICC?

Ocampo: The Rome Statue guarantees states and defendants the right to challenge the admissibility of any case.

- But who will determine the definition of “genuine proceedings”?

Ocampo: The ICC judges will determine that. This is not my role.

- We have seen that the Sudanese government has created its own criminal courts for Darfur war crimes following your decision to open an investigation into the Darfur war crimes. This was seen as an attempt by to circumvent the ICC’s jurisdiction over crimes in Darfur. Don’t you think that challenging the admissibility of the case may lead to years of lengthy legal proceedings causing a delay in delivering justice?

Ocampo: It’s premature to talk about that. We don’t know what will happen but the law will be respected.

More cases to follow

- You said that you are planning to present your first case to the judges. Are there some more cases to follow?

Ocampo: We are planning a sequence of cases. There are many parties and phases in the conflict. We selected the first case relating to events in the beginning of the conflict. We want to focus on the events affecting the lives of people today.

- So you will continue to analyze more cases?

Ocampo: We will see what happens with this case. Following the conclusion of this case we will try to understand what is happening today. My biggest concern is protecting people today.

- How critical is the time factor in your investigation?

Ocampo: My duty is to do justice. The security of people in Darfur is the responsibility of the government of Sudan supported by the AU not mine.

- Do you promise the individuals you are seeking to prosecute a fair trial free from political pressure and do you encourage them to come forward and surrender themselves to the ICC?

Ocampo: Absolutely. The best idea however is for them to be prosecuted in the national courts.

- The B.B.C. has interviewed a man claiming to be a member of the notorious Jinjaweed militia. This is a situation involving an individual who admitted to participating in the crimes and willing to testify before the ICC, yet the British Home Secretary may deport him based on his criminal background. What kind of protection can the ICC offer to him and people in a similar position?

Ocampo: We have no connection with this individual.

- Do you encourage him to testify?

Ocampo: If he comes forward with information to the ICC we will check the authenticity of his information. We do have a witness protection system in place.

- Do you encourage people in similar situation to come forward and testify?

Ocampo: You are encouraging them (laughter). I have the responsibility to protect what I consider them to be my witnesses.

- This is your first time to be interviewed by the Sudanese media. What is your message to the people of Sudan?

Ocampo: My message to them is that we have to work together to stop the crimes. The only reason I am investigating these crimes to protect the people on the ground and prevent further crimes from happening so we are trying to help the people in Darfur. This will be easier if try to do this together.