ICC: What Next in Case Against Sudan's Bashir

With the controversial indictment of Sudan's president, Omar al-Bashir, earlier this week, the International Criminal Court is putting its reputation on the line. The court has taken years to assemble its case against Bashir, in large part because it is by design a passive institution: it can neither conduct its own investigations, nor make arrests. Perhaps more significantly, international reaction to the move is divided, with Russia and China complaining that it violates Sudan's sovereignty and NGOs worrying that the charges will endanger peacekeepers and aid workers in the country.

War-crimes investigator Tom Parker served as a special adviser on transitional justice for the United Kingdom during the trial of Saddam Hussein before going to Chad in 2004 for the U.S. State Department's Genocide Assessment Team to investigate crimes in Darfur. He talked with NEWSWEEK's Travis Wentworth about the evidence against Bashir and what it will mean for Sudan's troubled region. Excerpts:

NEWSWEEK: How will the ICC go about proving a link between Bashir and the crimes in Darfur?
Tom Parker: The ICC has been operating with the major handicap that it doesn't have investigators on the ground. But there are plenty of organizations, both international and indigenous, that collect information. There are plenty of refugees who can tell about their experience [and] you've got African Union and U.N. peacekeepers on the ground, as well. They write reports which are certainly going to be made available to the ICC. Google had that Google Earth project, where they were monitoring the genocide from the air. So there are all these quite innovative attempts by the nongovernmental community to help the ICC overcome its shortcomings.

Do you think the ICC has a strong case?
Logistical stuff can tell you a whole lot about who's controlling what. [For example if] the Sudanese Air Force--as is often the case, or used to be the case with some of the village attacks--[is] flying an Antonov over a village and dropping explosives out the back three minutes before the Janjaweed [militia] turn up to assault the village, it's a pretty good bet that it's a coordinated assault and that the Sudanese Air Force and the Janjaweed are working in cahoots.

One of the things we found in the Bosnia conflict is a lot of the military communications were recorded by the other people in the conflict: rebel groups might well be writing down what they hear on the radio. Often when you're dealing with a relatively unsophisticated military, as in the case of Sudan, they're not encrypting a lot of the communications. So anybody with a radio tuned into the same frequency can hear what's going on.

Won't Bashir have to be out of power before these links can really be uncovered?
There will be scraps of information out there that illustrate evidence of a chain of command. Who's paying the salaries of these people, where are they getting their ammunition from, where are they shipping the spoils? When I was there, there was talk that the Janjaweed would steal cattle and camels and send them to Egypt or to Libya to sell. In a command-oriented economy like Sudan, If you're shipping booty by rail, the state's in on it.

Interactions the Janjaweed have with the authorities prove widespread cooperation between them and different aspects of government. If everybody's involved, from the state railways to the Air Force to the police to the arms manufacturers, there's really only one place all those strands meet, and that's at the top. You can start inferring the degree of political direction at a high level. So the way in which daily operations are run, snippets of information, eyewitness testimony, all can build a powerful circumstantial case that leaves no reasonable doubt that the government is behind it.

Other Sudanese officials have already been charged by the ICC, but only Bashir's indictment includes genocide. Would the indictment be weaker with only crimes against humanity and war crimes?
There's a snobbery about genocide. Genocide is always seen as the worst of all possible crimes. But the reality is crimes against humanity, as the name suggests, are pretty high-order crimes in themselves. People got hung at Nuremberg for crimes against humanity. I think it's very unhelpful to think in terms of a ranking. Crimes against humanity, war crimes, violations of the laws and customs of war, they're all very, very serious offenses.

How do you respond to the criticism that bringing up this ICC indictment will increase the animosity between Khartoum and the West, that it will actually endanger the peacekeepers already on the ground?
At the end of the day, it's about justice. And it's about trying to enforce laws. If as an international community we're going to have laws that say certain things are completely unacceptable--again, think of the term "crimes against humanity"--certain things are so horrible that something has to be done about them. Then you have to step up to the plate, you cannot enforce selectively.

How much more damage can be done in Darfur? Is this too little, too late?
As long as there are people alive, there are people to save. There's more damage that can be done, and of course until this ends, nothing can be rebuilt. So people are stuck in refugee camps, you don't have farmers planting crops, you don't have kids going to proper schools, you don't have normal life re-emerging. The damage is continuous and cumulative, and every year that it lasts, every month that it lasts, the damage for people in Darfur gets worse.

What's the best mechanism for stopping the crimes that are still going on? Is it the African Union, the U.N. troops, U.S. forces?
The Europeans probably should be stepping up to the plate and doing more. The former colonial power is Britain, and both Italy and France have had interests in the region--those are the countries that probably have the greatest obligation to become involved. Like a lot of people, my preference is to see an African solution for an African problem, because it's empowering for African nations to do that.

If there's a new government in Sudan, what about trying Bashir in his own country, the way Saddam Hussein was tried in Iraq?
If there was a change of government in Sudan and that government decided to put him up on trial, they would have superior jurisdiction. Any local trial would have to be held to the highest international standard, like we tried to do in Iraq. Involving local people to see due international standards applied in a trial of that magnitude is empowering. It can become a venue for national reconciliation, but it can also become a site of contention.

But the most important thing I think is that when a head of state is brought on trial, that trial must be immensely authoritative, which means it's got to be held to the highest standards. The work that goes into proving the case has to be done properly, comprehensively, professionally. It's not easy to do with international investigators, it's even harder to do with local investigators with very little experience. There are lots of different challenges. Both could lead to excellent results for the Sudanese people. Both would require careful stewardship, as well.

As someone who's spent years investigating war crimes, how did you personally view the news of the indictment?
I think it's a tremendous act. Whenever a head of state is indicted for major crimes, it's a tremendous day for international justice. I think we all like to see the people most responsible for hardship and suffering being held accountable for it. And it doesn't happen often.