Global Policy Forum

The Hague Takes On the Sudanese Blood Bath


By Thomas Darnstaedt and Helene Zuber

Der Spiegel
August 22, 2005

The dream of using international law to impose world peace is not a new one. But the International Criminal Court is now trying to make it happen. With its eye firmly on Sudan -- and with Security Council backing -- the court is tackling a bloodbath of massive proportions. But with only a handful of investigators, can it really succeed?

The International Criminal Court in The Hague is set to challenge the world's worst. The white monstrosity with its facade tilting forward looks a little like the superstructure of some fantasy ship on a pleasure cruise. But what's going on inside the building is being taken very seriously indeed. One can already imagine the scenario: Armed guards in black uniforms are deployed to secure the side entrance to the white fortress on the outskirts of The Hague. A gate fortified with barbed wire is raised to allow passage through a steel-lined, electrified enclosure. Several vehicles carrying prisoners roll down the ramp into the basement.

The vehicles' occupants, top officials of the government of Sudan and leaders of their gangs of hired assassins are taken to room K 127, where they empty their pockets and pass their belongings through a scanner. The walls are painted blue and purple and the floor light green. Thick concrete separates the prisoners from the rest of the world. They sit down, these presumed criminal violators of human rights, on chairs bolted to the floors of their basement cells. There are eight cells here, just enough for a small selection of the very worst of the bunch.

Upstairs, on the second floor of the ICC, the spectators to the first regular international law case in world history sit in red Cassina chairs, waiting for the proceedings to begin. The rest of the world is waiting with them, waiting for the trial of those considered principally responsible for crimes against humanity in the Darfur region of Sudan. The proceedings will center on the deaths of at least 300,000 people, and on a barbaric civil war in Sudan that experts believe is the most gruesome ongoing war in the world. Five judges in dark blue robes will be called upon to issue a ruling on the slaughter in Darfur.

This vision though of using the courts to impose peace -- close as it may be to becoming reality -- is still a dream. But most of the details are already reality. The cells are ready, though still empty, the electrified wire has been charged, and the Cassina chairs are in place. Only one thing is missing: the miracle. "Have some patience," says the Canadian president of the ICC, Philippe Kirsch, "the court is prepared for everything."

The dream of a world court

Most of the roughly 300 men and women who work in this 15-story stronghold of international criminal law are no dreamers. In fact, most are lawyers. And the court where they work, which has been in existence for the past two years, bears the unadorned and direct name "International Criminal Court." Without much fanfare, Judge Rene Blattmann, a Bolivian with a thorough understanding of German legal history, a jovial man who likes to serve strong coffee to his guests in cups decorated with a floral motif, discusses his and his colleagues' views on their court. "This," he says, "is a step in the direction of realizing mankind's age-old dream of a world court."

This court could very well prove right a principle that has repeatedly been tested, with moderate success, ever since the Nuremberg trials of Nazi war criminals at the end of World War II: that justice can not only establish internal security, but can also create the framework for peace. And everyone at the world court knows that this principle -- with all its implications for global human rights law -- could be decided by this one case which has been sitting on the desk of Chief Prosecutor Luis Moreno Ocampo for all of two months: the Sudan case. So far, the case includes a list of 51 possible defendants -- leading politicians and military officials charged with committing horrific crimes in the war-torn country of Sudan -- handed over to UN Secretary General Kofi Annan in January.

Antonio Cassese, a short, combative professor of international law from Florence, Italy compiled the list. The Italian, responsible for assembling the Yugoslavia tribunal -- likewise located in The Hague -- to try former Yugoslav President Slobodan Milosovic, is an important personality in the milieu of international criminal law. And given his experience, he was for the UN the obvious choice to dispatch to the Darfur region in western Sudan last autumn when the conflict there suddenly escalated.

It is a conflict that fits well into the International Criminal Court's vision of bringing war criminals and major human rights violators to justice. Raging since 2003, then US Secretary of State Colin Powell referred to the situation in Darfur as genocide, partly in response to the gruesome tactics the mounted Janjaweed militias and government troops had been using to fight rebel groups -- tactics that have been used with abhorrent results against civilians as well.

Routine massacres

Since then, massacres in Darfur have become routine. In a region the size of France, the Sudanese military and militias alike appear to be conducting a war of extermination. They have attacked and destroyed entire cities, like Khor Abeche in April where very few of the town's 20,000 inhabitants escaped with their lives. Women, men and children -- even helpless patients in the local hospital -- were massacred.

British experts estimate that the slaughter has claimed between 180,000 and 400,000 lives so far, and that about two million Sudanese in Darfur are now refugees -- and virtually unprotected. Although the African Union has sent about 2,200 soldiers and police officers to Darfur, they often arrive at the scenes of these crimes when it's already too late. Furthermore, they are met with distrust in the region because they are viewed as collaborators with the government.

Cassese headed for Darfur with a 30-member team, and returned to New York with nine crates packed with evidence: witness testimony about rapes, torture, looting and bloodbaths of unspeakable proportions. Cassese concludes that more than 2,000 villages and towns have already been burned to the ground -- and the slaughter continues. Officials at the UN are calling Darfur "currently the world's worst humanitarian catastrophe."

But the experienced international law expert Cassese didn't just hand over the evidence and leave it at that. He also had a proposal, which sounded harmless enough, but which quickly proved to be explosive. As he handed the list of possible defendants to Annan, Cassese suggested that the matter be referred to the International Criminal Court in The Hague.

The Hague versus Washington

Cassese's suggestion was about the last thing the Bush administration, which had actually triggered the case with its warnings of genocide, could have wanted. The USA has long been fighting against the creation of the ICC, and Washington has turned some of its most powerful diplomatic guns on the small court in faraway The Hague.

Why the worry? The US fears a scenario in which a GI fighting in a war or serving as part of a peacekeeping mission could be arrested and locked up in one of the court's basement cells in The Hague. US President George W. Bush even withdrew America's ratification of the Rome Statute, the document that establishes the framework for the ICC under international law -- a pact which former President Bill Clinton had already signed. It was a far-sighted move for Bush, as the Abu Ghraib prison abuse case soon demonstrated. If Iraq or the United States had ratified the statute, the American torturers in Iraq and their Washington bosses would certainly have qualified to be put on trial for war crimes in The Hague.

Genocide, crimes against humanity, war crimes: Because the Rome Statute stipulates that the ICC can also prosecute presumed criminals from non-signatory states if they have committed their crimes in the territory of a state that has ratified the statute, it is still possible that US citizens could be hauled before the court for participating in an ill-advised military campaign. To avert such an outcome, the United States has enacted a law that prohibits any cooperation with the court, and even authorizes the president to use military force to free any US citizens imprisoned in The Hague. Jurists in The Hague derisively refer to the law as the "Hague Invasion Act," and say they are waiting -- half-amused, half-irritated -- for the day when US Marines land on the beaches of the Dutch seaside resort of Scheveningen.

But the superpower lacks a sense of humor when it comes to these matters. The White House has promised to put up "active resistance" against anything coming out The Hague. In the Sudan case, this means: "We will not support efforts by the international community to use the Security Council as a way of legitimizing the ICC" -- said Pierre Prosper, US Ambassador at Large for War Crimes, in January. But the Security Council was precisely the target of Cassese's proposal. Because Sudan has signed but not ratified the Rome court statute, the ICC can only act if the case is referred to it by the UN Security Council.

But then came the miracle. The United States decided not to veto the resolution. In return, the Security Council assured that if any US soldier were truly challenged during a peacekeeping mission in Sudan, he could not be summoned before the ICC in The Hague. The United States is opposed to the International Criminal Court. The torture scandal of Abu Ghraib would almost certainly have been a case for the court. In this manner, UN Security Council resolution 1593, dated March 31, 2005, became a sort of birth certificate for the world court. Claus Kress, a professor of international criminal law in Cologne, optimistically sees the incident as "proof" that even superpower America "cannot survive a confrontation with the ICC -- the moral convictions of most Americans would make that impossible." Kress represented the German government when the Rome Statute was being fleshed out, and today he is a key advisor to the court.

Time for miracles

Following the Council resolution, UN envoy Cassese and ICC Chief Prosecutor Moreno Ocampo met in Ocampo's office on an afternoon in April. In the presence of his two deputies, the prosecutor opened Cassese's sealed brown envelope and the three prosecutors carefully read through the document. No copies were made, no notes were taken and the list was promptly locked up again in Ocampo's safe. The prosecutor's conclusion? It is now the court's turn to work a few miracles.

But then, Moreno Ocampo is the right man for miracles. In truth, the world ought to be shaking in its books -- at least that part of it with something to hide -- when it encounters this man, this grand inquisitor for global justice. And it's not as if Sudan were his only concern. Since last year, Ocampo has been investigating the civil wars in Uganda and the Democratic Republic of Congo. Indeed, the governments of both countries even approached Moreno Ocampo in the hopes that his justice could end up being their peace. "Such enormous trust," he says, appearing completely exhausted.

It's not easy to set up an appointment with Ocampo, busy as he is with an almost uninterrupted schedule of conferences, and interviews with the press mean skipping out on one of these important meetings. He is tired, but talkative. The sleeves of his striped red shirt are rolled up, his glasses dangle from a chain, and his small-patterned tie hangs loosely around his neck. First he tries to conceal a yawn, then gives up and yawns heartily. "What can I do for you?" he says.

Question number one: How exactly is it possible to achieve peace through justice?

Sudan isn't the court's only case. The ongoing civil war in Congo is also on its plate. Moreno Ocampo sinks into one of the tall, black armchairs in his office and rests his legs on another. He sighs and tells the story of his involvement -- 20 years ago, when he was the assistant to Public Prosecutor Julio Cesar Strassera -- in the investigation of former Argentine dictator Jorge Rafael Videla, a man who had shown a complete disregard for human rights. "Mama was furious with me," he says. In those days, Mama lived in the same neighborhood and went to the same church as the accused dictator. But two weeks of public hearings against the former despot, says Ocampo, were enough even for his mother. One day, he says, Mama called him to say: "I still like Videla, but you're right. He belongs behind bars."

The idea of peace through justice is something the Argentine's great predecessor, Robert H. Jackson, the US chief prosecutor in the Nuremberg trials, had promised the world 60 years ago: "A world order based on the principles of law." Ocampo, the world court's current criminal prosecutor, says that this order is something formed in people's heads, as a consequence of the idea of justice, even justice in the form of deterrence. Security and peace, he adds, are "of course mainly the business of the military and the police." But that's just the hardware, the lifeless technology of it all. "We are responsible for the software," says Moreno Ocampo. Justice, he adds, is "the soft side of security."

No one is willing to share responsibility with Ocampo, the responsibility for imparting a sense of justice to a destroyed people, surrounded by mountains of corpses, in a destroyed Darfur. It would be tempting to draw comparisons between the situation in Sudan and the genocide of Auschwitz, but it's a dangerous comparison -- nevertheless, the Security Council did exactly that in a debate a few weeks ago. However, there is one crucial difference between the two: When the Allies liberated Auschwitz in 1945, they had used all the hardware of war to achieve peace. It wasn't until Nuremberg that the lawyers showed up with the software.

Complicated conflicts

But in Sudan the war gets worse every day. The prosecutor suddenly flashes his half-shut eyes, as if to say that this is exactly his point: "The real challenge is that justice and peace are mutually dependent." Anyone waiting for peace can wait a long time, he says. "The peace negotiations in Uganda have been going on for almost 20 years now."

Ever since his fellow prosecutor, Jackson, announced in Nuremberg, for the first time, that wars are waged by people and not states (and, therefore, that people are the ones who must be punished for waging war), the world's wars have changed fundamentally. The new wars are rarely wars between states. What the ICC's international law experts see in Africa, Latin America or the Balkans are explosions of violence that are so difficult to control precisely because they are not ordinary disputes between ordinary states -- disputes that, in the worst case, come to an end when one state emerges victorious over the other.

The new wars are conflicts with no end, because they are controlled by corrupt governments, their accomplices and half-starved rebels, like in Sudan, power-hungry drug barons and organized criminal gangs, like in Latin America, or insane preachers, like in Uganda. There is no victory in these wars, because these wars have no objectives. The desperados of the new wars have only one goal: to make sure their wars continue indefinitely, so that they, or their bosses, cannot some day be taken to account for the massacres they have caused. Herfried Münkler, Professor of Political Science at Humboldt University in Berlin and an expert on the history of war, calls these aimless conflicts "wars without the shadow of the future." In a war without a shadow, there is nothing to fear but death.

The purpose of Moreno Ocampo's work, in part, is to cast a shadow on Africa's wars -- albeit an artificial shadow, the black shadow of the prosecutor in The Hague. Indeed, Ocampo's fellow jurists in their offices in that white fortress in The Hague have registered, with great enthusiasm, that they are beginning to throw their first shadows far away in Africa. The phrase "You'll be sent to The Hague," says an employee in the office of ICC President Kirsch, is already being perceived as a threat in parts of an Africa ravaged by violence. Kirsch, clearly pleased, calls the fact that African nations are coming to The Hague to ask for help an "unforeseen but interesting development." It is "one of the biggest challenges" for the court, he says, that "we are in the middle of conflict everywhere -- our job is to determine how we can master these situations."

A court with no police officers

Things become even tougher for the investigators from the faraway court when a government -- like Sudan's -- refuses to cooperate. Sudanese President Omar el-Bashir has already sworn "before Allah three times" that he will never extradite a Sudanese citizen to a foreign court. Ironically, the Sudan case, tried before the eyes of the Security Council and the entire world, could end up demonstrating the Hague court's powerlessness. The big question remains how Moreno Ocampo's bailiffs will go about arresting people? The chief prosecutor leans back in his chair, looks completely relaxed and, clearly enjoying himself, reveals what sounds like a secret: "I don't have a single police officer."

So what does he propose to do? "I have my method," he replies. It's the Argentine method, put to the test two decades ago in that country's investigation of more than 10,000 cases of human rights violations by the military junta. Nine officers were eventually charged, and five were sentenced. It was the successful outcome of a rational approach -- aside from one minor detail: The five were later pardoned.

In The Hague they call this concept "focused investigations." Only the "relevant case groups" are selected from a series of massacres like those occurring in Sudan. Investigators then focus on the worst cases, pick one that is easiest to prove and then devote their full efforts to searching for the principal perpetrator in that case. The idea behind this approach is that once a prosecutor manages to identify someone who essentially embodies every injustice, it is no longer difficult to gain the cooperation of authorities worldwide in capturing the suspect and bringing him to The Hague. Ninety-nine states have already ratified the treaty Moreno Ocampo uses as the basis for his work. The 100th, Mexico, is expected to ratify in the coming days. "They'll have to help us then," says Moreno.

This pragmatic approach to justice must be deeply offensive to most prosecutors who are obliged by law to devote the same amount of effort to prosecuting any offence, no matter how minor. The software of national systems of justice is simply programmed to pursue a principle that says "We'll get every one of you." But that doesn't help the jurists working in The Hague. Moreno Ocampo has all of 16 investigators at his disposal to address the most important case in its history, the Sudan issue.

Serge Brammertz, head of Moreno Ocampo's investigation department, was previously a public prosecutor in Belgium, and it's because of this experience that he knows exactly what happens in the justice system when a high-profile crime -- a child abduction, for example -- has been committed: "That's when they suddenly start assembling special commissions of 50 people." Brammertz says he'll have to "get used to the fact" that the ICC operates completely differently. In Uganda, Brammertz is investigating a case in which up to 30,000 children have been victimized -- kidnapped, abused and sometimes killed -- by the Lord's Resistance Army of insane rebel leader Joseph Kony. Brammertz was able to muster barely over ten investigators for the case.

Keeping a low profile

In the beginning, Brammertz's people had to drive from village to village in old, rented cars, sleeping in tents. No one wants to risk arming the investigators from The Hague or even giving them official ID cards and extra authority. To conduct their work in Africa, they ask discreet questions about genocide, crimes against humanity and war crimes, then secretly type the information into their laptops.

"If we take a more aggressive approach, all we do is increase the risk to us and our witnesses," says Brammertz. Indeed, Kony's people have given hundreds of bloody demonstrations of how they feel about traitors, using machetes to hack off their lips, limbs and sometimes heads. Occasionally, in meetings at the stronghold of justice in The Hague, someone mentions an unspeakable fear at the back of everyone's mind: What do you do when you open a package from Africa, and it's filled with the blood-encrusted evidence of this crude justice?

The ICC finally has its Sudan team assembled. They'll be trained in investigation methods, briefed on the specifics of the Rome Statute and given a crash course in the local culture. Finally, they'll be given sleeping bags and field equipment and sent on their way. These kinds of positions are advertised on the court's website -- at a starting salary of about €3,000 per month -- and usually attract people like district attorneys, lawyers, human rights activists and social workers. In teams of three or four people each, they spend two to three weeks on site and then return to The Hague to deliver their reports.

Morten Bergsmo is responsible for programming the laptops the investigators carry with them. From his sixth-floor office, Bergsmo, a gaunt Norwegian, manages the investigators' secret weapon, specially developed for the Sudan case. "Case Matrix" is software -- customized to reflect Moreno Ocampo's investigation methods -- that's intended to generate fear among the world's cruel despots. At the other end of the city, former dictator Milosevic has been putting on a show for the global public in his trial before the International Criminal Tribunal for the former Yugoslavia. While Milosevic faces an understaffed court, drowning in a sea of documents, legions of witness testimony and a confusingly vast array of charges of war crimes in the Balkans, Bergsmo has invented a system for streamlining the process and pinpointing precisely the right information.

"Case Matrix" organizes the world's offences into a user-friendly system of green, red and blue boxes. Blue represents the facts of the case at issue. And then -- "You click," says Bergsmo, clearly pleased with himself, and a list of criminals who have been found guilty of this offence in the past appears on the screen. And then, "You click" again. What kind of evidence does one need to prove this offence? The answer appears in purple. For murder, it's fairly straightforward: "corpse not needed as evidence."

You click. Each item in the program is accompanied by empty boxes, into which the Sudan team members type the information the system requires as evidence. Once a box is full, the investigator can move on to the next item. You click. What could the defense bring up as a counter-argument, and is it something the court would take seriously?

A trap laid by Washington?

In some cases the investigator may be required to fill out additional boxes, perhaps for additional witness statements. You click, and that's that. The catastrophe in Sudan, the 300,000 lives it has claimed, the two million refugees, burning villages, starving victims -- there's a box for everything in "Case Matrix."

It may sound cynical, but it works. A team of interns constantly enters new information, updated daily, about genocide, crimes against humanity, war crimes, wars of aggression, and the legal volunteers' assessments of what they observe. Bergsmo was recently in Cambodia. The Cambodians want the system to help them process Pol Pot and their Khmer Rouge past. Peace through justice? Perhaps it could work after all. Perhaps. Some of the judges at the ICC can't shake the feeling that Washington may have led them into a trap. Is it possible that the only reason the Americans were so willing to give up their veto against the referral of the Sudan issue to the ICC is that they were already convinced that the hated court would fail in this effort? Wouldn't this serve as ample evidence that the peacemakers housed in that white building in The Hague have the wrong idea?

"The Security Council referred this case to us, which already constitutes a great deal of recognition for the court," says Kirsch. No one at the ICC would put it any differently. But German judge Hans-Peter Kaul, who will be ruling in the Sudan case, is constantly warning the overly optimistic: "We mustn't forget how difficult the investigations are. The suspected crime sites are hardly accessible, and fighting is still going on."

"Our conviction and our commitment will give us the strength we need," says Kaul's colleague, Bolivian judge Blattmann. And he needs the strength. For the past two years, a convinced and committed Rene Blattmann has shown up to work on time every morning, and each time, just like any other visitor, he has first had to endure being scanned from head to toe by polite but deliberate security guards. But he remains undaunted in his enthusiasm for the task of pursuing mankind's dream of a world court. Like his colleagues, Blattmann spends his days working out the details of procedural law, coming up with rules for compensating victims, and discussing whether perpetrators' confessions should be evaluated under Anglo-Saxon or continental criminal law.

And everything is done for that moment when the heavy gate to the prison basement slowly opens and Blattmann, for the first time in his life, puts on the dark blue robe with light-blue lettering. Peace through justice? "Ideals," the Bolivians says, citing a saying from his native country, and glancing at The Hague's overcast skies, "are like unreachable stars. They point the way."

More Information on International Justice
More Information on the ICC Investigation in Darfur
More Information on the International Criminal Court
More Information on Sudan


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