news-darfur8

December 3, 2008

ICC Prosecutor seeks arrest of Darfur rebels as Court considers arrest warrant against Bashir

By Katherine Iliopoulos

The International Criminal Court’s Chief Prosecutor Luis Moreno-Ocampo applied on 20 November for the Court to issue arrest warrants against rebel commanders responsible for war crimes against peacekeepers in Darfur in 2007. The Prosecutor’s request comes amidst a continuing debate within the UN Security Council over the ICC case against Sudanese President Omar al-Bashir, and a possible re-evaluation by the ICC of the cases against the leaders of Uganda’s rebel Lord’s Resistance Army (LRA).

The Office of the Prosecutor requested the warrants of arrest against unnamed commanders of rebel groups in Darfur for the war crimes of violence to life (murder and causing severe injury to peacekeepers), intentionally directing attacks against personnel, installations, material, units or vehicles involved in a peacekeeping mission, and pillaging, under Article 8 of the Rome Statute.

The crimes were committed in Darfur on 29 September 2007 in the context of an armed conflict of a non-international character – an internal armed conflict - which has existed in Darfur between the Government of the Sudan and rebel forces since August 2002. In the largest in a series of attacks against peacekeepers, a thousand fighters belonging to rebel forces attacked the Haskanita camp in North Darfur, killing 12 peacekeepers and injuring 8. The peacekeepers belonged to the African Union Mission in Sudan (AMIS) and were not taking any active part in hostilities before, or at the time of the attack.

Chief Prosecutor Luis Moreno-Ocampo, who is also seeking to have Sudanese President Omar Hassan al-Bashir indicted over Darfur, said that "attacking peacekeepers is a very serious crime. This means civilians have no protection". The ICC Pre-Trial Chamber is currently reviewing the evidence against Bashir, who has been named as a suspect for war crimes, crimes against humanity and genocide. The ICC has already issued arrest warrants against Sudanese minister Ahmad Mohammed Harun and allied militia leader Ali Muhammad Ali Abd Al Rahman (commonly known as 'Ali Kushayb') for war crimes and crimes against humanity committed in Darfur.

Sudan said the Prosecutor’s move against the rebels had not changed its attitude towards the ICC. It has signed but not ratified the Rome Statute and has refused to surrender those sought by the ICC so far. Although Sudan is not a party to the Statute, the United Nations Security Council gave the ICC jurisdiction over the situation in Sudan through Resolution 1593 (2005).

As the ICC considers whether to give the go-ahead for Bashir’s trial, diplomatic discussions continue as to whether the Security Council should use its powers (as provided for in Article 16 of the Rome Statute) to suspend the case against the Sudanese leader. Of the permanent members of the Council, Russia and China are thought likely support such a move, while Britain and France have suggested they might consider backing it if Bashir demonstrates a genuine commitment to seeking peace in Darfur. “In the event the Sudan authorities do change, totally change, their policy”, said French President Nikolas Sarkozy, “France would not be opposed to using, I believe it is, Article 16”.

Article 16 provides that no investigation or prosecution may be commenced or proceeded with by the ICC for a period of 12 months after a Security Council request to that effect. The African Union has called for the case against President Bashir to be deferred, while some international officials have warned that the issuing of an arrest warrant against Bashir could produce a backlash from Sudan and complicate the humanitarian effort there. The UN Assistant Secretary-General for Peacekeeping, Edmond Mulet, told the Security Council on November 5 that the prosecutor’s request for an arrest warrant against Bashir "could have serious security and other implications" for U.N. peacekeepers.

However, the former UN High Commissioner for Human Rights Louise Arbour has said that “to put ICC proceedings on hold in Darfur would send a dangerous signal to would-be war criminals that justice is negotiable”.

On November 12, in a move that may have been taken to increase international support for suspending the ICC case, President Bashir announced an immediate cease-fire in Darfur. However in the weeks since then, according to the United Nations, there have been further attacks by government forces.

The ICC Prosecutor briefed the United Nations Security Council on the situation in Darfur on December 3, urging Member States to unite in support of decisions of the International Criminal Court in the interests of furthering its objectives. The Court is due to hand down its decision in relation to Bashir in the coming months. “If Security Council members can act together, the crimes will stop and millions of lives will be saved. If different interests prevent a strong and consistent position in support of the Court’s decisions, if they give room to false promises, rapes will continue, destruction will continue. An opportunity is coming. A united Security Council can make a difference”, he said.

Sudan does not recognise the ICC and refuses to extradite its nationals for trial outside Sudan, maintaining that its own courts have sole jurisdiction over Darfur war crimes. “We would never accept that any Sudanese national stand trial outside the national legal framework,” Justice Minister Ali al-Mardi has said previously, “even if he was among those who took up arms and fought against the government.” The Sudanese government announced the formation of a Special Criminal Court on the Events in Darfur (SCCED) on 7 June 2005, one day after Resolution 1593 was passed. However in 2007 Human Rights Watch reported that the court has only considered relatively minor cases of theft, and not crimes reflecting the gravity of the atrocities in Darfur. It concluded that the “continuing failure of Sudanese courts to bring justice for crimes in Darfur makes ICC prosecutions essential”.

There are no national proceedings in relation to this latest case which means that the ICC - whose jurisdiction is based on the principle of complementarity - may assume jurisdiction to hear the case. Under Article 17 of the Rome Statute, a case is not admissible before the ICC when it is the subject of an investigation or prosecution on the part of a State which has jurisdiction over it, unless the State is genuinely unwilling or unable to carry out an investigation or prosecution.

A similar dispute about the relationship between an ICC investigation and domestic justice has arisen in Uganda. Uganda originally considered itself unable to conduct national investigations and prosecutions and in 2004 it submitted a request to the Office of the Prosecutor to investigate the situation in northern Uganda, site of a long-running and violent rebellion by the Lord’s Resistance Army. Recently, as the Ugandan government has pursued peace negotiations with the LRA and announced its own war crimes court, there have been calls for the ICC to return the case to Uganda. According to a report of 19 November 2008 by the Institute for War and Peace Reporting, the ICC has announced that it will look again at the cases to determine if they are still viable and whether some of them could be transferred to the special court as stipulated in a deal brokered between Uganda and the rebels in Juba, South Sudan. The ICC’s main indictee, LRA leader Joseph Kony, has refused to surrender to the Court; however, according to his advisers, Kony would consider being tried in Uganda.

Related chapters from Crimes of War: What the Public Should Know:

Darfur

Genocide

International Criminal Court Press Release

December 3, 2008

Case Summary (pdf file)

International Criminal Court

November 20, 2008

Security Council Resolution 1593 (2005)

United Nations Press Release

March 31, 2005

Sudan: Rhetoric Versus Reality in Darfur