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Session Three: The Darfur Case

Speaker: Luis Moreno-Ocampo, Prosecutor, International Criminal Court
Presider: Nicholas D. Kristof, Columnist, New York Times
Introductory Speaker: Angelina Jolie, Goodwill Ambassador, United Nations High Commissioner for Refugees, and Co-Chair, Jolie-Pitt Foundation
October 17, 2008
Council on Foreign Relations


This session was part of the CFR Symposium on International Law and Justice, which was made possible through the generous support of the Jolie-Pitt Foundation.


New York City, New York

ANGELINA JOLIE:  Well, thank you all for being here, and a special thanks to Lisa Shields and Richard Haass for bringing us all together today.

Over the past seven years, I've worked with UNHCR, and I've traveled around the world to try to bring attention to refugees and internally displaced persons.   And it's been a remarkable education.  On my last trip to Chad, I asked a group of refugees -- what do they need, what are their concerns, and one woman said better access to water; another said medicine, another better tents.  And this young boy raised his hand and he said, we need a trial, and he heard that morning on BBC Radio that the ICC had issued arrest warrants and it meant something to him.  He was asking for what any of us could ask for, having been violated, having had many horrific things happen to his family, and yet in my heart I knew that he may never see that trial; that justice often seems like a luxury for the rich and wealthy nations.

In far too many places I've been, I've seen refugees return to live among the same people that attacked them.  Peace is placed before justice, often instead of justice, and often at the insistence of the perpetrator.  And this is happening today with Joseph Kony in Uganda and with President Bashir in Sudan.  They are threatening more violence and delaying or blocking aid if we attempt to bring them to justice, and often we listen to them.  We let them dictate what will happen.  We let those who destroyed their countries decide the future for their countries.

Now, I believe -- after finding myself returning to countries, who, after a brief period of peace, are again at war -- that there is no enduring peace without justice.  I've seen refugees whose rations were cut nearly in half, and I've seen them waiting for the aid truck to arrive -- just to find out that the aid relief was stolen by the rebels who are still active.  And I've talked with little kids who had bruises, and they showed them to me and they said, somebody came and they gave us new school supplies -- but the bad guys took them away, because the bad guys were still there.  And I've sat in a tent with women who were about to be returned to their homeland -- women whose daughters were raped and husbands were killed, and many of their sons also killed or tortured -- and I've heard them ask, "How is it safe to go back?"  And I've watched aid workers struggle to explain that some things have been signed, some people have shaken hands.  But what they don't say is that aid in their host countries has run out because the international community wants to see returns and wants to see progress -- but that really nothing has changed to ensure their safety, that they are returning to the same lawlessness that sent them running in the first place.

And I've seen these same aid workers tear up, when they put these ladies on the buses, and say, "I don't know what we're sending you back to."  Common sense tells us that when the risks are weighed, the decisions are made very differently.  When crimes against humanity are punished consistently and severely, the killer's calculus will change, and when a killer is allowed to walk away from his crimes, I believe that also tells him something.  It sends a message to the next that they need not worry, that they will most likely not be held accountable for their actions.

I believe that the existence of trials alone has the potential to change behavior, but ultimately, we need to arrest those who are indicted.  The Sudanese arrest of Ali Kushayb appears to be a positive development, but not if it becomes a bargaining chip that will stop others from being brought to justice.  Without an arrest, we tell the victims of these atrocities that impunity is the rule of law.

Now, I don't know if the ICC is the answer, and I don't know what type of court is or what it would need to be for all of us to agree and make it strong enough -- I have no idea.  And after seven years of traveling into the field, I find that I have a lot I need to learn, but I do know this:  No mother who had her children killed in front of her, no young girl sold into slavery, no boy kidnapped and forced to be a child soldier, and no young girl like the three-year-old I met in Sierra Leone who had her limbs cut off should be expected to simply forget.  No one should have to choose between peace or justice, and that young boy in Darfur who asked for a trial deserves one.

So thank you very much for letting me speak.  (Applause.)

NICHOLAS D. KRISTOF:  Thank you very much, Angie.  That was great.

I'm Nicholas Kristof from The New York Times.  First of all, just a couple of house-keeping items.  Number one is to please turn off your cell phone and don't just put it to vibrate.  Anybody who puts it to vibrate will be prosecuted.  We have a prosecutor right here.  (Laughter.)  And in addition, in contrast to usual Council forum, this meeting is on the record, so please do go forth and report or blog.  It is also being broadcast on the Web as well.

And so, first of all, let me just very briefly introduce the chief prosecutor Luis Moreno-Ocampo.  He's from Argentina.  He started his career as a lawyer and young prosecutor there in reaction to the Dirty War of Argentina.  In 2003, he became the chief prosecutor of the ICC, and then, as you know, last summer he sought an arrest warrant for President Bashir of Sudan.

So with that --

LUIS MORENO-OCAMPO:   Thank you very much for inviting me here.  I would particularly like to thank the Jolie-Pitt Foundation for promoting this dialogue at the Council on Foreign Relations.  Particular thanks go to Angelina Jolie and Brad Pitt for the consistent support that they have offered my office since they visit the court two years ago.  I was impressed because in our first meeting Angelina Jolie told me that after visiting more than 25 refugee camps in different parts of the world, she asked herself who is doing something for these people, who is doing something to confront the root of the problems these refugees are facing, who will help them to solve the problems.  They are in a desperate situation.  They cannot protect their own rights, and this is particularly true for the displaced people in Darfur.

I am the prosecutor in the International Criminal Court.  The court is based on the Rome Treaty.  In 1998, they decided to create a permanent and independent criminal justice system.  They did it based on ideas, but also on self-interest.  They knew that in the new world, in the world of today, no country has enough power or legitimacy to protect its own citizens.  As of today, 108 states have ratified the statute and many are about to do it.  The Rome Treaty is established by mandate.  I had to end impunity to contribute to the prevention of future crimes.  I had to investigate impartially and present evidence to the judges.  I had to apply one standard -- the law.

In March 2005, acting under Chapter VII of the U.N. Charter, the Security Council referred the Darfur case to my office.  The council decided that any solution in Darfur would require justice, and I see this meeting as an opportunity for the people in Darfur.  They need you.  It's an opportunity for them because maybe you can design and propose a comprehensive solution for them, with justice, but also with effective armed protection, with distribution of your Italian assistance and genuine peace making.  Today is a time to define and implement such policy.

Today, massive crimes are being committed in Darfur.  The camps in Darfur are a crime scene.  Thousands of women and young girls are being raped; 2.5 million people, a substantial part of three groups, the Fur, Masalit and Zaghawa -- are subjected to condition of life, calculated to bring about their physical destruction.  Despite promises and denials, over the last five years they are victimized.  People in Darfur have no representation.  People in Darfur are not represented, neither in the Sudan nor in New York, and that you can do.  Some of you can represent them, can help them to get represented here in New York.

People in Darfur are targeted, and that, for me, makes this the most difficult issue to understand living in New York.  People in Darfur are targeted by the very officials who are responsible for protecting them.  Public officers are raping them; it's a public -- (inaudible)-- to rape these women.  This is key to understand -- to understanding the plight of the Darfurians.

Today, judges in the International Criminal Court are considering our application for an arrest warrant against Mr. al-Bashir, the current president of the Republic of the Sudan, for genocide, crimes against humanity and war crimes.  Should judges rule in favor of the request, they will issue an arrest warrant and transmit it to the government of Sudan for enforcement.  For us, arrest is a responsibility of the territory or state.  The court is not asking for international forces to intervene, but there will be need for innovative, strong and consistent diplomatic and political action by all actors to ensure compliance with the court decision.

Ladies and gentlemen, let me explain the case.  Since June 2005, my office has carried out an investigation under extremely difficult circumstances.  I have a legal duty to protect my witnesses, and therefore, I cannot protect those living in Darfur who decide not to (continue ?) living today in Darfur.  We have to investigate Darfur without visiting Darfur.

We receive information from many sources, including the government of Sudan, and we're helped by thousands of documents collected by the U.N. Commission of Inquiry.  We contacted victims all over the world and interviewed more than 100 witnesses in 18 countries.  And the victims, those who escaped from Darfur, in spite of all the pain, told us their stories.  One woman described how they killed her baby and then raped her.  A man told us they forced me to watch as they raped my 8-year-old daughter.  I was asking why, this man say.  We turned those stories into evidence.  On this basis, on April 2007, the -- (word inaudible) -- one of the International Criminal Court issued an arrest warrant against Ahmed Harun and Ali Kushayb for 51 counts of crimes against humanity and war crimes.

I'd like to explain to you what the evidence show, because this information has to be a factor in any plan you can develop.  The evidence show that the Sudanese armed forces, acting in concert with militia Janjaweed, attacked hundreds of villages inhabited by Fur, Masalit and Zaghawa groups.  Helicopters and aircraft dropped bombs.  Ground forces killed, tortured and raped thousands of civilians.  The attacks -- the attackers destroyed all means of survival, source of water and stripped the villages, destroying schools, mosques and hospitals.  At the start of the attacks at least 35,000 -- this is the most conservative number -- 35,000 people have been killed.  The U.N. say that almost 300,000 of those who fled the attack died of starvation and disease.  More than 200,000 people managed to reach refugee camps in Chad or Central African Republic and almost 2.5 million people went to the outskirts of bigger cities that could become camps for internally displaced persons.

What does the first case show?  The first case confirmed one fact:  the attacks against civilians in their homes, the massive campaign of rapes, the forced displacement of 3 million people were not -- were not the product of autonomous self-defense militias or the result of inter-tribal clashes.  They were the actual goal of an operation planned and implemented by the Sudanese armed forces, supported by -- (inaudible) -- forces, integrating tribal militia called militia Janjaweed.  The mobilization of local militia allowed Mr. al-Bashir for years to disguise the conflict as a tribal one that had nothing to do with state forces.  Mr. al-Bashir created the illusion of militia Janjaweed autonomy, and this helped him to continue to carry out the genocide in the face of international community.

Our first Darfur case exposed the role of Ahmed Harun, then minister of state for the Interior.  Other names like Mussa Hillal and other tribal leaders were more notorious, but they were not the most responsible of crimes.  All of them were under the command of military officers.  The militia integrated a -- (inaudible) -- force within the state apparatus and coordinated by Harun -- administered.  As I say, the victims were attacked by those same officials who were supposed to protect them.

Ladies and gentlemen, on 14th of July of this year, I present to the judges my second case in the Darfur situation covering crimes committed after March 2003 to the present.  I request an arrest warrant against Mr. Bashir.  The evidence in this case highlights three aspects -- all of them known, but all of them denied.   Al-Bashir ordered the crimes, it's genocide and it's happening now.  Al-Bashir ordered the crimes.  Yes, he ordered -- he ordered the military campaign, he ordered attacks on the village and he ordered today the attacks on the camps.  Al-Bashir has genocidal intentions.  Al-Bashir asserts that the Fur, Masalit and Zaghawa ethic groups constitute a threat to his power.  They challenged the economic and political marginalization of the regions, and some members of these groups engaged in armed rebellions.

Al-Bashir's goal was not simply to defeat a rebellion, but to destroy those ethnic groups whose members challenged his power.  His motives were largely political, his tactic was a counterinsurgency, his intent was genocide.  And this is not new.   In 2004, already, Professor Alex de Waal wrote, "This is a routine cruelty of a security (cabat ?), its humanity withered by years in power:  it is genocide by force of habit."  And he said this in 2004 and it's still happening.

That's the problem -- the genocide is being committed now.  These groups -- systematic attack, first in the village and now in the camps.  Mr. al-Bashir is providing no meaningful assistance to those millions displaced and is hindering the humanitarian assistance of the international community.  Fear, rape and hunger are the main weapons of the current phase of the genocide.  One victim of rape explained, they kill our men and dilute our blood with rape.  They want to finish us as a people, end our story -- or history.  Another victim in the desert overheard one attacker say don't waste your bullet.  They have nothing to eat and they will die from hunger.  They don't need gas chambers.  They don't need bullets, they don't need machetes -- fear, rape and hunger are destroying the communities.

And interestingly, since September 2005, Mr. Ahmed Harun -- al-Bashir appointed Mr. Ahmed Harun now as the minister for -- of state for humanitarian affairs.  You can see the graph.  As soon as the people were displaced, he was appointed to keep control of them, to keep attacking them.  He's still a critical piece in the implementation of al-Bashir's plan.  And that -- these are the facts that had to be -- understand in order to plan a solution for this problem.  The HAC, the humanitarian aid commission within this ministry works in close association with the international security apparatus.  They block the delivery of food, of aid, explode relief (packs ?), deny visas and travel permits to aid workers.  As a consequence, 2.5 million people in the camps today are subject to conditions of life calculated to bring about their physical destruction.  This is genocide.

Ladies and gentlemen, le court is doing its part.  (Inaudible) -- requested my office to present additional information by 17 of November.  This is normal.  The decision on al-Bashir's arrest warrant is their hands, but states have to be deterred.  The judge will decide on the arrest warrant and -- (inaudible) -- to the simple fact sooner than later.  We are not going away.  The call for justice is not going away.  The arrest warrant, if issued, will not go away.  States and multilateral organizations have to plan for the post-arrest warrant situation.  They have to plan for the scenario after the arrest warrant is issued.

And that's the point.  There is a need to better integrate the judicial, humanitarian and political efforts.  For almost one year the first arrest warrant was ignored by mediators and political leaders in the discussion on Darfur.  They ignored the court decisions and -- or even most important, they ignored the facts.  They ignored Harun's role in the HAC the main obstacle to humanitarian assistance in the camps.  But also they ignored that Harun is a member of the committee -- of the UNAMID oversight committee, affecting the deployment of peace keepers.

More, in fall 2007 Harun was appointed head of the committee to investigate human rights abuses in the Sudan, and the meaning of this -- this is -- this is a guarantee of impunity.  Mr. Bashir is telling the others, follow my instructions, nothing happens.  So Harun is in the camps affecting people.   He's affecting the deployment of peace keepers and he's now confirming that impunity will reign and then -- the genocide to be on -- keep on going.

That's why people in Darfur need you.  They need you to find a new comprehensive strategy, factoring in the information contained in our applications and the fact of their requirement as well as how to be executed.  They not only serve the interest of justice, they can help to alleviate the humanitarian situation, firstly through the deployment and operation of UNAMID and reach a lasting peace agreement.  It is about justice, but it's also about real politics.  Massive crimes are not just a moral problem -- they are -- but also massive crimes cross borders, destabilize entire regions and affect world security.

So let me conclude.  Given the international attention in Darfur, imposing conditions calculated to bring about the physical destruction of the target groups, combined with a studied misinformation campaign, was and is still the most efficient strategy to achieve complete destruction.  By preventing the truth about al-Bashir's criminal intentions, concealing his crimes under the guise of a counterinsurgency strategy or inter-tribal clash or the actions of lawless autonomous militia, threatening Sudanese citizens and humanitarian workers into silence, and blackmailing the international community with the threat of derailing the north-south peace agreement, Mr. al-Bashir made possible the continuation of a genocide.  And while the Darfur case represents a unique opportunity for the international community to come together to establish a new framework to protect individuals, as the U.N. Secretary-General Ban Ki-Moon said, peace and justice have to work hand in hand.

The court is assuming its judicial mandate, but it will not be enough.  International justice relies on cooperation.  States and multinational institutions have to create the conditions to implement the arrest warrant and to update and harmonize all conflict management strategies with a new reality.  The Council on Foreign Relations could have an important role in defining such new strategies, based on the facts and respecting the law.  And you -- you have a role.  You can help people in Darfur.

Thank you very much.  (Applause.)

KRISTOF:  Thank you very much.  Let me just ask a few questions, and then we'll open it up to everybody.

One procedural question.  The next step is for the court.  How confident are you that the court will, in fact, approve the arrest warrant request?

MORENO-OCAMPO:  The case is in the hands of the judges.  Before, I request 12 arrest warrants -- I got 12.

KRISTOF:  You sound pretty confident.  (Laughter.)  And are you -- the rumors are that the judges may be a little more nervous about the genocide count as opposed to the other two counts.  Is -- are you just as confident about all of them?

MORENO-OCAMPO:  I don't know where that rumor is coming from.  I think genocide is about intention.  So everyone agreed -- the facts are clear -- the issue is to prove intention from Bashir.  I believe if you see what's happened, it's impossible to -- the only possible consequence of the facts is that Bashir ordered a genocide.  That's my assessment.  That's the way I present my case.  We have a lot of proof.  We'll see what the judges say.

KRISTOF:  African countries and Arab countries have, at least to me, to a surprising degree, stood behind Sudan in this case.  And they've been critical of the ICC's role, and it's seen as bullying on an African country or an Arab leader.  What about this notion that this is a Western, legal conspiracy against Sudan, against President Bashir?

MORENO-OCAMPO:  Interestingly, al-Bashir is not challenging our attempts in court.  He organized a political and communication campaign based in four points.  One point is the point you make.  This is against Africa.  Second is -- (inaudible) -- affect peace.  Third is we'll retaliate against people in Darfur.  And four, they have no evidence.

The fourth point I will deal with it in the core, but I need you and you to deal with the other three.  And now one by one, the African point you make. Al-Bashir is the one who promotes the ideal that Arab tribes -- as he calls Arab tribes -- (inaudible) -- the African tribes.  All the criminals, all the perpetrators were talking about kill the Africans, kill the -- (inaudible).  So all of them are talking about kill the Africans.  So who is attacking the Africans here?  It's so clear, it's Bashir attacking the Africans.  Three million people -- victims are Africans.  So we're unveiling the fact that -- (inaudible) -- affecting Africans.

I think also the African -- many African -- the African leaders and Arab leaders are very important because a regional organization is critically important to solve the problems.  They will find the solution.  It's very important.  And people are not following them well.  If you read what the president of Tanzania said in the General Assembly, she was very careful.  She was very careful saying Africa is not requesting impunity.  Africa is supporting justice.  So they're discussing the timing, but they are supporting justice.

And if you see the activities they are performing, I believe there is strong -- in Africa right now, the Africans are being killed, and they have to do something.  It's complicated for them because it's a neighbor, and that's why they are careful.  But I believe there's a strong support in Africa.

KRISTOF:  I mean, so you think that some of this rallying behind Sudan is like a pro forma, officially sticking with a neighbor while it's not meaningful in any kind of political sense?

MORENO-OCAMPO:  I think sometimes we follow sound bites.  And it's nice to see really what's happened there.  And you will see they were looking for the poor, they were talking about having a declaration in the General Assembly.  They got nothing.  So I believe the world is ready for justice, and justice will prevail.

The second point I'd like to make is this idea that if we keep doing justice that they will (keep attacking ?) the victims.  Now, for me, this is concerning that we have to do justice because it's confirming the criminal intentions.  He's trying to blackmail us, the court, the Security Council, the international community.  He cannot win.

So I believe that they are matching the communication strategy, and they feel that peace will be effective.  Okay, peace is the response of the Security Council. But in March 2005, the Security Council referred the case to my office saying specifically that peace in Darfur required justice.  And three months ago in June 2008, unanimously, the 16 Security Council members, including China, Libya, all of them, confirmed that the Sudan had to cooperate with the court and justice is required.  So they are doing the judgment.

KRISTOF:  When you sought the arrest warrant, there was a lot of hand-wringing among the humanitarian community, frankly, and among the diplomatic community to the effect that -- precisely that Sudan would attack peacekeepers, would attack the camps.  In fact, pretty much the opposite happened, that it was followed by a relatively quiet period with fewer attacks.  And indeed now, Bashir has been launching this sort of peace process, arrested Ali Kushayb.

And most strikingly, until now in Sudan, there is legal impunity for rape if you wear a uniform, if you are a member of the police or armed forces.  And they actually are talking about amending that law.  I mean, you see this process.  Do you see this as completely a fictional for-show presentation to the world?  Or do you think there is potentially anything there at all?

MORENO-OCAMPO:  I think it's good to talk about this, but words are nothing.  Arresting Kushayb is nothing.  Harum is still the minister for humanitarian affairs Harum is still in charge of the deployment.   So Harum is still there.  And both have to be arrested.

And you say it's not that they are not prosecuted when they rape women.  They never find it.  (Inaudible) -- infractions.  The order is to rape women.  It's a state activity to rape women.  So how they could prosecute the rapists if they get instructions?

In the Kushayb case, officially they say that they will prosecute him if they receive evidence.  Who will go to give them the evidence?  And also, why Kushayb and not Harum?  Why is Harum still the minister?  So my case is -- (inaudible).

KRISTOF:  There is also some talk that within the NCP, within the ruling Sudanese party that there is pressure on Bashir and a decision that if he is indeed indicted, if the court approves the arrest warrant, that he will not remain on as president for the rest of the NCP.  I wondered if Sudanese officials had reached out to you with any kind of message like that or are proposing any kind of a deal in any way?

MORENO-OCAMPO:  I think you have more information than me.  (Laughter.) Tell them what you know.  Tell them, you know.

KRISTOF:  Just between us?  (Laughs.)

MORENO-OCAMPO:  It's just on the record, two cameras.

KRISTOF:  What about the possibility of doing a deal?  I mean, is that something?  There is this tradition of -- with Idi Amin, for example, going to Saudi Arabia, with Baby Doc Duvalier, you know, where a really terrible leader is, you know, sent off somewhere else.  Would you be open to that kind of a --

(Cross talk.)

MORENO-OCAMPO:  It's a good thing you mentioned Idi Amin because what happened after that, for 20 years -- (inaudible) -- was abducting hundreds -- not hundreds, thousands of children and killing thousands of people there.  What's happened?  Who were the killers?  Nothing else.  And so that's a point.  You might learn providing impunity will not solve the problem.

Look, you've got a south-north agreement in Sudan.  And of course, who commands this operation?  Harum also was there in the -- (inaudible).  So we've got to learn, just admit it.  And that is a new -- the 21st century framework.  And that's why we need the Council on Foreign Relations discussing how -- (inaudible) -- at the same time.  How justice will decide to stop the crime and -- (inaudible) -- she said that, she said it.  What's the message we're sending?  Impunity or you will -- (inaudible) -- and they listen.

Armies all over the world are adjusting the rules to the wrong treaty. Militias in Colombia, in Sri Lanka, in Somalia think of the possibility that we -- (inaudible) -- them.  So this is a new, fantastic tool.  How you -- it's the same we are doing inside the countries -- (inaudible) -- and we need to lead together.  There is no enemy or friend here. It's respect for the law.  Why don't you two lead together?  Now, the same idea is in the global community.  And Darfur is a first case, is a test for us.

KRISTOF:  And so as you prepare your legal documents, is your aim justice in this particular case?  Or is your aim peace for Sudan as a whole, improvement of the quality of life for people in those camps?

MORENO-OCAMPO:  My only aim is to fulfill my duties -- I am a prosecutor.  The law was passed by 120 states and ratified by 108.  So -- and the Security Council referred it to us.  So all this is the law, and I will do what the law says.  And the laws says I have to do cases to contribute to the prevention of future crimes.  That's why we need this integration.  We need to harmonize he concepts because, of course prosecuting people is not enough.  You have here prosecutor office, but you also have police and you have health and you have many other aspects, but to build the (sense ?) in a global scenario.

So I'm doing my piece -- (inaudible).  And to succeed, we need also others active, involved, harmonizing what we are doing.

KRISTOF:  I'm pushing you on this a little bit.  I mean, you and Angie both talked about peace and justice, interestingly, both being in harmony.  But I mean, aren't there indeed some situations where there is a real trade-off and where the more you push the justice button, you're undermining the prospects for pursuing peace?  And you know, how do you resolve that?

MORENO-OCAMPO:  I don't need to resolve that.  I have a mandate.  I have to do justice.  (Laughter.)  No, that's the point.  I cannot adjust to political considerations.  Politicians have to adjust to the law.  (Laughs.)  That's basic but that's reality.

So that's the point.  If this is a new framework, then the leaders have to understand what to respect the new framework.  And my goal is to put the framework so I cannot adjust.

KRISTOF:  And -- I mean, has it been disappointing to see, post your July decision, the degree to which, you know, even members of the Security Council were not exactly lining up and applauding.

MORENO-OCAMPO:  In June, formally, the scientists -- (inaudible) -- support but -- (inaudible). I'm looking for votes.  (Laughter.)

KRISTOF:  You mentioned legal duty to protect your sources.  I wondered whether -- I mean, obviously, Sudan's security forces do have tremendous reach.  I wondered if there had been attempts to intimidate or threaten your sources, you know, in various parts of the world outside Sudan.

MORENO-OCAMPO:  (Inaudible) -- yeah.  No, they don't know.  That's why we are keeping them confidential.  And the point -- (inaudible) -- is when we interview a person in the beginning of a long relation, we have to protect them. That's why we never went to Darfur to the people because we cannot protect them there. And that's why we get the information confidentially.

KRISTOF:  And so are you pretty confident that down the road at some point, President Bashir will be in a courtroom and these charges will be heard against him?

MORENO-OCAMPO:  I'm pretty confident I have a solid case.  I will see what the judges decide.  And if the judges decide to issue another warrant to Bashir -- (inaudible) -- the court.  When it will happen I don't know and will depend, in part, of you.  And the first time -- (inaudible) -- in court.  But the victim has no time.  So that's why the issue now is we are doing this -- we did this -- (inaudible) -- how the states plan.  General Clark talked about plans. Yes.  We have to plan how to implement the court decisions and how to harmonize with the other aspects.

KRISTOF:  After the Milosevic indictment, it took about five minutes for China to hang Milosevic out to dry.  Are you -- s that going to be what -- is the indictment, assuming that it comes, by the court, is that going to make, do you think, a huge difference in how the African community, Arab community, China, how the world treats Bashir?

MORENO-OCAMPO:  In court, we have solid evidence, and they can challenge in court.  But I'm pretty confident in the judicial aspect.  The other aspect depends on how this sits in the international communities.  Have international communities a strong conviction to stop the crimes?  If they have, they will do it immediately.  If not, I think it will be more complicated.

KRISTOF:  Several times now, you've called on us to do things.  What do you want us to do?

MORENO-OCAMPO:  You can write about those things.  (Laughter.)  You are doing that.  No, I think this place is the Council on Foreign Relations.  So you're a think tank thinking in U.S. strategy, and that is important.  You have to think how to -- what's the strategy for Darfur.  But all of us, there are other people here who are not from the U.S., and they are talking for the Darfures.

Today, I was with a victim, and no one is representing them.  So they need people in New York helping them to reach Security Council members, to reach African Union to be sure they are respected.  And they don't need a lot.  Three or four of the talented people here having Darfurees will make a change, and that's what I'm saying.  Each of us has a role each of us could play.  No one is small, no one is so big.

KRISTOF:  I'd like to open the conversation now.  We do have a mike going around.  If I call on you, then please do identify yourself, and please do limit yourself to questions as opposed to, you know, long, long, long statements that end with a question mark.


QUESTIONER:  Hi.  I'm Mark Hanis of the Genocide Intervention Network.  I believe you or some of your staff have met with the two candidates, Obama or Biden, or, if you not, you will probably be talking to them or your staff in January.  When the Bush administration took office, Sudan was a big issue of theirs.  And it wasn't until six months later that they confirmed their assistant secretary of State for Africa.  And it wasn't until nine months later in September that Jack Danforth was special envoy.  Given this context of how the U.S. is going to take months to assign someone to be our representative on this issue of Sudan, how are you adjusting your plans given this delay?

MORENO-OCAMPO:  I'm sorry, but I never met them.  And the U.S. is -- (inaudible) -- not to take part.  And so normally we have not a strong relation.  So my plans are not including a lot -- (inaudible).

KRISTOF:  Right here, yeah.

QUESTIONER:  Good to see you, sir, again.  I just want first to see if you agree what premise some people say that for this new culture of end of impunity to succeed, it must be universal and must be independent.  Do you agree with that first?

MORENO-OCAMPO:  Absolutely.

QUESTIONER:  Okay.  Universal appeal of the ICC, I'm sure you realize you cannot prosecute crimes committed in Tibet or in Chechnya or in Abu Ghraib because these countries are not members of the ICC.  And they also are permanent members of the Security Council, and they have a veto.  I.e., the Security Council will not be able to refer cases to you like they did with Darfur.  How -- (inaudible) -- this has been solved?

And secondly, about independence, your sources sometimes or in many cases are intelligence, Western intelligence.  Do you see that in any way undermines your independence?  And would you like your own investigative unit that is completely independent from other intelligence services?

MORENO-OCAMPO:  Can you introduce yourself?  Can you tell them who are you because this man is important?

QUESTIONER:  My name is Talal Al-Haj.  I'm the bureau chief for Al-Arabiya television.  Thanks.

MORENO-OCAMPO:  Can I tell you a story he mentioned?  No, no. (Laughter.) That's a great story.  Okay.  No.  When I visit many Arab countries.  I would say my biggest challenge is to keep impartiality, to give the perception of impartiality.  And that, in the world is very difficult.  When you are in an Arab country and you see TV, all the time you see Arab people being killed all the time.  So the perception they have is that Westerners are attacking us.  And whatever they see from our side, it's a Western guise.  I just see the way they call us the American courts.  They have no idea about the U.S. position in the court.  But they call it the American court because they can't see black and white.

And I can understand that because what they're seeing is what he says, it's double standard.  Justice to my enemies affecting to my friends is not justice.  And that's for me to challenge because, as you say, I cannot open cases in Lebanon, I cannot open cases in Iraq, I cannot open cases in Zimbabwe, I cannot open cases in Chechnya.  I have areas in which the states have no party, and I cannot do it.

But I can promise you -- (inaudible) -- is in the case that I have I will have no double standard.  That's what we need.  In fact, if you came from the south -- you have a justice for the north and in the south, there's no justice, it's a little insulting.  Because in my country, the government killed 30,000 people with no trial.  That's why for us trials are very important.  So if our country, not your country or maybe -- (inaudible) -- but now it's a global country.  The law -- dignity is not for one group.  We just want dignity.  And trials are a ritual in which people feel respected because the witness and the victim are protected.  Even the criminals are respected.

So that's what we want.  And that's why we need to move things to avoid double standards.  It will take time.  Without universality, people say, why you are not doing Iraq, why you are not doing these cases?  And I cannot.  I have a legal answer.

On the second issue, I can tell you I received zero intelligence on my cases, okay.  So we're getting information from ourselves.  We are not receiving information from intelligence groups.

KRISTOF:  One reason you've been accused of partiality has been that there's a perception in some quarters that you've been more aggressive in going after the Sudanese government than going after Sudanese rebels.  Is that fair?

MORENO-OCAMPO:  The criteria we are using to select cases is gravity. And the gravity is no doubt the member of the government who ware committing the worst crimes.  But in any case, rebels groups are attacking peacekeepers.  And the gravity is not in the number, it's the quality.  If they are attacking peacekeepers, they are affecting the lives of the people displaced. That's why we promised in December that we'll do a third case against rebels. And I can tell you here that in a couple of weeks I will present my third case against some rebel commanders who were attacking African Union peacekeepers in -- (inaudible).

KRISTOF:  We make some news here.

Okay, yeah.

QUESTIONER:  Thank you for your talk on Darfur.  I'm confused, though.  You are a prosecutor acting independently.

KRISTOF:  Claudia, can you identify yourself?

QUESTIONER:  Yeah, sure.  Claudia Rosett with the Foundation for Defense of Democracy.  But you've just given a speech that sounded to me highly political.  In fact, it was a campaign.  To my understanding, you thanked a private foundation for its support.  You urged people here to do things to support you.  You asked for strategy.  You did a whole series of things which one might expect from politicians or perhaps diplomats.  But it's very hard to imagine a prosecutor in mid case doing that.  Could I ask, is that part of your brief?  Is this what we can expect from any prosecutor who comes to work for the ICC?

And a follow-on question.  Given that there is some discretion in what you do focus on, let me pick -- well, a further question.  I've been trying to see the difference between Sudan and North Korea, apart from the fact that in North Korea people die horribly in less-public view.  Nick Kristof can't go there and interview them as freely as he can in Darfur.  And my question there is it may not be possible for you to prosecute the government of North Korea or the government of China, but the UNHCR keeps an airy, pleasant office in Beijing from which it has refused for 15 years to challenge China, to do anything to set up a single refugee camp, to receive people who try to escape North Korea.  Can you prosecute the UNHCR for criminal negligence?  Thank you.

MORENO-OCAMPO:  I have no jurisdiction on crimes committed in North Korea.  So that's what's legal.  I have a legal mandate but the operation requires international cooperation.  And that's why -- (inaudible) -- why a country is not a perfect situation in terms of legal compliance.  But in my years as a prosecutor, I never met with a president or a politician to request -- because when we -- (inaudible) -- when the judge issues a decision, the police just go.  Here, it's different because the decision of the judges have to be executed by states and multinational institutions.  So they have to decide to do it.  And the effort they are trying to achieve will depend on their own interest.

QUESTIONER:  (Off mike.)

MORENO-OCAMPO:  Okay, let me finish this part and then I'll go back to the other part.  So the problem is nobody -- you are in a country which has a very strong judiciary.  But it's a result of centuries -- of centuries -- that you have a community first, you have the law, then you have the judges and you have a prosecutor.

Here, we start in the global community with no state, with no community, with the law and prosecutor and judges.  Imagine U.S. without the White House, without the U.S. Congress, without the FBI, without the Army but with 18 judges and one prosecutor.  So they have to convince Delaware and California to help to do a case against me in Minnesota.  So that's the problem.  International community is not yet a community.

That's why, yes, I need states understanding their duties, I need multinational institutions keeping consistency, and I need loyal citizens. That's why I thanked Angelina Jolie.  Because what is a community today?  My community is my neighbor.  My community is my city.  My community is my country, is my vision, but it's my world.  And that's my jurisdiction, the world.  So yes, it's new, it's different.

And then I will do nothing political in court.  And I'm not doing something political here.  I'm explaining my mandate.  I'm telling you, if you are concerned about justice, you have to do something.  So you have to be an active member of the community.  That's why I thank those who organized this meeting.

On the second question you mentioned, I will explain.  There are three ways to start a case.  There has to be a crime committed by a national or third party in the territory of state party or the Security Council can assign to me a case.  So that is the way in which I can start cases.  But I need a crime under my jurisdiction.

KRISTOF:  Yes, right here.

QUESTIONER:  Stewart Patrick, Council on Foreign Relations.  What, if any, support has the U.S. government given to you with respect to the Bashir case that's beyond not opposing its referral to your office?  And a very live question now in Washington, which is related, is, what would the U.S. do, what could it do to advance your work short of necessarily joining as a full member of the ICC?  Are there certain things that you would look for from the United States in terms of providing evidence or other sorts of materials for your work?

MORENO-OCAMPO:  No.  I respect national states, those who decide to join the court and those who decide not to join the court.  But the Darfur case is a Security Council referral.  So all the U.N. countries have to support it, and that's it.  That's what I expect, a consistent support, a consistent line that -- (inaudible) -- the fact.  (Inaudible) -- could not be a minister executing the warrant, taking in consideration the information we provide -- (inaudible).

For instance, people are worried about north-south conflict.  And they ignored that in March, Harum was sent to (Harbir ?).  And of course  (Harbir ?) was attacked by militias and 50,000 people escaped, and we ignored it.  So we are dealing in facts, and this is my work, show what happened, who's committing crimes.  And then we need now international actors factoring this, taking this in consideration -- U.S. and all the others.

Of course, U.S. is a big country so it would be great if you would support fully the mission of the court.  The Darfur case is not -- (inaudible).  You have a duty to do it.

KRISTOF:  And would you like to see, you know, the U.S., would you like to see Washington be sort of working more with African or Arab states to encourage, you know, more pressure on the Sudanese leadership?  Does that appeal?

MORENO-OCAMPO:  I'm not sure I'd say that.  But you know, you are not very popular, United States, in the Arab world.  (Laughter.)

KRISTOF:  Maybe we should do the opposite.

MORENO-OCAMPO:  You know, two years ago, African Union invited two presidents from outside Africa for a meeting.  You know who were there?  One is the prime minister of Sudan and the other was Chavez, the president of Venezuela.  So if you think -- (inaudible).  (Laughter.)

KRISTOF:  Yes.  I'm trying to choose people as far away from the microphones as possible, as you can see.

MORENO-OCAMPO:  Yeah.  (Laughs.)  You're very good at this.

QUESTIONER:  Thank you very much.  Thank you for giving me the opportunity.  I was there when you came to the African ambassadors to address this issue.

KRISTOF:  Can you please identify yourself, too?

QUESTIONER:  My name is Itbid al-Hamid (ph), I'm the deputy permanent representative of Somalia to the U.N.


QUESTIONER:  Of Somalia.

KRISTOF:  Somalia.

QUESTIONER:  I want to put the record straight, you know.  Somalia is a member of African countries.  And the African are the most supportive of the creation of the International Criminal Court.  And up to this day, we support International Criminal Court and work with the enforcement of this institution.  And we understand the viability of this institution.  That's why you have many African countries who support the resolution of the G8 and other issues that have been addressed.  But this is the dilemma.

KRISTOF:  If you could just have a question.

QUESTIONER:  Yes.  The question is very simple.  You hid the news that most of African head of states are elected on this -- (inaudible).  And at the same time, they support the International Criminal Court.  The reason is they have a forces on the ground; the African countries are the countries who will deploy forces in Darfur for the greater peace and stability.

At the same time, they fully supported the International Criminal Court and those actions.  How do you reconcile the desire Africa to have this institution work and justice to be delivered while, at the same time, understand the perspective they are coming from because they deployed forces and they do not want to put in harms way?  And that's what any state says.  You cannot send your own soldiers in harms way, but they sacrifice -- (inaudible) -- Darfur in order to help peace and stability while, at the same time, supporting justice.  So how do you reconcile this and understand their perspective?

MORENO-OCAMPO:  Well, I think you make a good point.  Africa is committed to solutions.  Africa is committed with the court.  In fact, Africa is one of the leading regions and Africa has the biggest member of state parties.  And the premise you present is correct, it's there -- you have troops there, how to protect them.

But at the same time, the problem is if you keep Harum in charge, there will never be enough peacekeepers.  It's like to send firefighters but keep the arsonists in charge.  You keep the arsonists in charge, there will be never be enough firefighters.

But in any case, I agree with you.  African Union has a big role in supporting and establishing peace.  And I count on them.

QUESTIONER:  I'm Matthew Bishop with The Economist.  In Zimbabwe recently, the post-election negotiations, it seems that there's a fear of being prosecuted was a real factor in Mugabe deciding to stay and certainly his henchmen around him refusing to do a deal with the opposition.  Would it be helpful to you in this situation to have the possibility of a plea-bargaining safe haven that you could offer to leaders of countries where they could go if they go quietly in these negotiations?

MORENO-OCAMPO:  It would be interesting because, you know, I can do nothing in Zimbabwe.  Zimbabwe is not a party.  So I don't know what fear he has. I can do nothing in Zimbabwe.

QUESTIONER:  The fear was that someone somewhere would arrest him and bet under the --

MORENO-OCAMPO:  I cannot do a case.

QUESTIONER:  But can you go to the question I actually asked, which is --

MORENO-OCAMPO:  In a different case.

QUESTIONER:  -- in this case that you're dealing with.  If you were able to go to the leaders of the Sudan and say, look, you know, we can offer you the opportunity to go into exile, and we'll have a regime change in the country, and you will be able to live out your life quietly but not go to jail, would you find it easier to bring about the peaceful reconciliations in that country that we'd all like to see? Or is this legal process actually meaning that people, who know that they would go to jail for the rest of their lives, just dig in and become more dictatorial and less willing to cooperate with the international community?

MORENO-OCAMPO:  (Inaudible) -- keeping them in -- (inaudible).  In any case, the law says nothing about plea bargains.  I cannot do that.  But they will appear for a trial.  And I can invite them to have a good lawyer. (Laughter.)


QUESTIONER:  Peggy Hicks of Human Rights Watch.  I wanted to follow up on the point about the perception of the court in Africa.  One of the shortcomings of international tribunals to date has been that they haven't reached out enough to the general population and gained the credibility and legitimacy they need to be able to do their work well.  And I know this is something that your office and the ICC has tried to work on.  But to what extent do you think that those efforts are working?  What resources do you need to do it better?  And to what extent do you think that the views that have been expressed by African leaders reflect those of their populations?

MORENO-OCAMPO:  We are working deeply -- we're working in the middle of conflicts, so societies are deeply divided.  It's very difficult.  They -- sometimes they have their own vision and they are fighting, and so it's complicated.  We are doing the best we can to inform them.  But I know it's complicated.

I used -- normally to say how difficult it is to explain to people what we are doing is and how to -- (inaudible) -- to convince -- (inaudible) -- that in Argentina when I visited with General Videla, the former president of the country, my mother was against me.  I could not convince my mother for months that I was doing investigation.  She was thinking no, no, you're wrong, he protects us, he's fighting guerrillas.  He protects us.  He's like my father because my grandfather was a general.

When the trial started, my mother changed her mind.  She called me and said, I still love General Videla, but he has to be in jail.  So what I would say -- (laughter) -- no, because the trial evolved.  So I would say yes, it is a process.  Human Rights Watch could help, could explain, but it's a process.  (Inaudible) -- normally, but it's a process to explain, and people need to get an idea.  That's why we need the good actors.

KRISTOF:  Does your mother have a position on the prosecution of President Bashir?

MORENO-OCAMPO:  No because she died.  (Laughter.)


QUESTIONER:  Hi.  Mark Vlasic from the World Bank, although earlier in my life I worked at the War Crimes Tribunal in The Hague on the Slobodan Milosevic and (Chechnya ?) genocide cases.  In both of those cases, as you know, the big challenge is proving the mens rea, the specific intent for genocide.  And I'm curious to know if you could outline in your case just a general outline how you would go about proving a mens rea, a specific intent for proving Bashir had the intent to destroy part of the population.

MORENO-OCAMPO:  We mentioned the -- (inaudible) -- factors.  But let me say, we thought Bashir was pretty vocal.  In March 2003, he gave public instruction to the army to quell the rebellion -- take no prisoner -- (inaudible).  And many times, he'd say I don't like prisoners, I like just scorched earth.  And so he'd say that.  And then he's the chief of the army, the president of the country, the chief of the party, the chief of all the services.  And for five years, the army, the air force and the militias incorporated were doing these attacks.  It's a big operation, thousands of people working for years.  You believe that he could not be involved in this?

So we have this specific statements and then we have a lot of different indicia showing -- confirming that when he say, I don't like prisoner -- (inaudible) -- he's saying kill all of them.  So, okay, this is basic -- I have 20-page affidavit.  This is the summary of some ideas.  I think it's very clear.  When you put it together, it's very clear.

KRISTOF:  We have time for one last question.  Yes, in the back.

QUESTIONER:  Hi, yes.  Hi, Mr. Prosecutor, I'm Kate Hunt, the U.N. representative for CARE International.  If we could go back to the community level again, I'd be interested in hearing from you what the court is doing.  You've been saying you protect the identities of victims and others that are testifying.  What is the court's role in compensation and community recovery, victim recovery just because I think that's an interesting element of the court's work?

MORENO-OCAMPO:  Thank you.  Yes, one of the new innovation of this court is that the victims have a role.  This is more normal in similar countries, less used in the Anglo Saxon cultures, but the victim can have a role in the proceedings and even they can request compensation.  In fact, in one of the cases -- (inaudible) -- case, we -- he had a lot of assets, so we freeze assets, so this is a plane, houses, money.  So it will be a case in which the very poor people -- (inaudible) -- public can request compensation if (Mr. Venga ?) is convicted.  He will be on trial.

In the meantime, we are trying to take care of them.  Before we interview a witness, we first analyze the security -- of her or him.  Then normally, when they were traumatized, they were very -- (inaudible) -- of that, we send first a psychologist to do an assessment on how the person is.  And then we train our people to be very careful with them.  And from those -- (inaudible) -- we have to -- we need to protect them.  So we have an established mechanism to protect them.  So that's what we especially are doing with them.

And then victims could be compensated with money.  But also, it's something that we have a trust fund in the court who's also working in all aspects of compensation.  It's not just about money.  It's about all the aspects of compensation.  So this is a new idea and has to be developed, so maybe you can help.

But let me say something because I said to you I was a legal adviser.  I'm sorry, it was not a good answer.  Basically, as a prosecutor, I cannot offer deals.  My role is to establish the law in the cases, and that's what I have to do.  I cannot be involved in the political ways.  That's why I need to convey this message to the Council on Foreign Relations.  Those involved in an agreement, they have to make agreements respecting the law.  That is a new scenario.

So it's a new situation in which what happened with Idi Amin 20 years ago, it's gone, never again.  Now it's a new scenario that's always there.  You commit crimes, you will be prosecuted -- (inaudible).  And we have to be clear.  And they have to -- (inaudible).  And that's our responsibility in the Darfur case, that they had to be arrested, yes, because that's -- we will set the example for the future.  It's the beginning of a new era.  That's why we need --  we need to understand it.

KRISTOF:  Well, we're going to adjourn right now.  There will be a reception in the area as you came in.  But first, please join me in thanking Angie for hosting us and the prosecutor for -- (inaudible). (Applause.)








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