ICC’s delayed indictments on Darfur may indicate issues with evidence
By Wasil Ali
April 23, 2007 — The International Criminal Court (ICC) is steadily walking towards a new milestone in the history of the cases it is looking into since its foundation in 2002. On February 27 Luis Moreno-Ocampo, Chief prosecutor of the ICC, submitted his first piece of evidence against two suspected war criminals on the Darfur case to the judges of Pre-Trial Chamber I. Given the nature of this high profile case, it was expected that the judges will expeditiously issue a summons to appear against former Sudanese state interior minister Ahmed Muhammad Harun and militia leader Ali Kushayb. The longest time it took for ICC judges to issue arrest warrants was in the case of Uganda’s Lord Resistance Army (LRA) rebels which took two months since an application was filed by Ocampo. However, by virtue of the time that passed since Ocampo filed his application, it appears that the judges in the Darfur case are having difficulty buying the evidence presented to them against Harun and Kushayb.
The Pre-Trial Chamber I consists of three judges Akua Kuenyehia (Ghana), Claude Jorda (France) and Sylvia Steiner (Brazil). It is believed that Judge Kuenyehia is the most experienced among the three in the field of criminal law. She was also intimately involved in legal issues related to gender and violence against women on the national and international level. This type of background would ultimately make Kuenyehia extremely sensitive to criminal incidents involving women, needless to say that the evidence presented by Ocampo involves a handful of horrifying rape counts against the suspects. We also need to note that Kuenyehia’s African background will also add to her influence on the progress of the case. Based on the beforementioned facts it is likely that she will scrutinize the evidence presented by Ocampo before she signs off on it.
The nature of the relationship between the office of the prosecutor and the judges of the chamber has been somewhat uneasy. This is largely due to the fact that Ocampo is extremely conscious about the independence of his office from the judges and the powers bestowed upon him by the Rome Statue which is practically the bible of the ICC. There are two incidents which highlights the tension between Ocampo and the judges. The first incident is when the judges of Pre-Trial Chamber I, who at the time were also looking into the case of the Congo, ordered a procedural hearing on the status of Ocampo’s investigation. The chief prosecutor filed a motion challenging the order calling it “unauthorized” and a violation of the Rome Statue and a threat the impartiality of the court. However the judges rejected his motion and his subsequent application to appeal their decision.
The second incident came about when the Pre-Trial Chamber I, apparently not convinced by Ocampo’s decision not to go into Darfur, requested that Antonio Cassese the head of UN commission of inquiry in Darfur, and Louise Arbour the UN High Commissioner for Human Rights submit their written opinion on witness protection inside Darfur. In his response to Cassese’s observations, Ocampo contended that the investigative measures suggested by the prominent Italian Law Professor “encroach upon the discretion of the prosecutor in conducting investigations and prosecutions before the court”. Ocampo also implicitly criticized the judges by saying that he does not believe that there is “no matter which in OTP [Office of the Prosecutor] assessment requires the chamber’s intervention”.
Ocampo’s application on the Darfur case have raised a number of questions that have yet to be answered but may possibly be brought up by the judges looking into his evidence. The most important question is the role of the senior leadership in Khartoum in facilitating the commission of crimes in Darfur. The chain of command per Ocampo’s evidence ends at Ahmed Harun, a junior interior minister, making him ultimately responsible for worst crimes committed during 2003-2004. The overwhelming amount of resources at the disposal of Harun highlights the missing link in the evidence with the central government in Khartoum portraying him as if he acted alone and not as part of a government wide strategy. It is remarkable that the filing by Ocampo states that the Sudanese President Omar Al-Bashir instructed the army to crush the rebellion by force. However he does not go further to determine Al-Bashir’s role in the conflict.
The ICC’s chief prosecutor stated in his filing and also in his response to my question that Harun maintained full control over the army units in Darfur. Thus he did not indict any Sudanese military official for their role in the crimes committed in Darfur. However Ocampo’s evidence shows that the Sudanese army’s representative in Darfur’s State Security committee headed by Harun could not implement its decisions without permission from his chain of command. This ultimately means that the army was separate from Harun’s authority contrary to the answer he provided me.
In his press conference on February 27 surprisingly revealed that his office has requested to interview Harun since November 2005 with no success. This came in sharp contradiction with Ocampo’s statements in which he stressed that the Sudanese government have been fully cooperating with him. The Office of the Prosecutor admitted to me that Khartoum’s cooperation has been “less than perfect” when I questioned it. There are also other pending requests by the prosecutor to interview other Sudanese officials. Accordingly it seems that Ocampo is letting Sudan determine the pace of his investigation. This is probably an item the judges will bring up.
This brings us to the next question. Is Ocampo trying to accommodate the Sudanese government and avoid irritating them? In his second report to the UN Security Council in December 2005 Ocampo stated that he is going to be sensitive to the political dynamics of the country. We may never know what he meant by this since he avoided elaborating on this statement when questioned by reporters. When I brought it up in my interview with him in New York last year he told me that he is guided by evidence only, rejecting the suggestion that he will avoid investigating senior Sudanese officials. This would have been convincing had he decided to request an arrest warrant and not a summons to appear against the two suspects calling it a “less intrusive” method. It will be interesting to see what method of bringing the suspects the judges will choose.
At this stage of the proceedings the judges have the power to move the Darfur case in a new direction. They may well request that Ocampo investigate the role of other senior government officials in the Darfur war crimes. They may also determine that there is no sufficient evidence to incriminate the two suspects. Given Ocampo’s confidence about the strength of his evidence, the length of time that has passed since his initial filing is a sign of potential issues. The judges have convened an all day closed hearing with Ocampo on his evidence last month. However there was no word of what was discussed during the meeting. Nonetheless, it is hoped that the judges will bring a long awaited justice to the people of Darfur.
* The author is Sudan Tribune journalist. He can be reached at [email protected]