FEATURE-Sudan poses first big trial for ICC

By MARLISE SIMONS, The New York Times

THE HAGUE, Apr 29, 2005 — Almost three years after the International Criminal Court opened over United States opposition, the United Nations Security Council asked it to investigate atrocities in Sudan and, in the process, placed the court squarely in the international spotlight. By any measure, the request was an important vote of confidence in the new tribunal.

Inaugural ceremony of International Criminal Court in The Hague, March 11, 2003. (Reuters).

But at the court’s glass-and-steel headquarters in The Hague, the reaction has been less than euphoric. Still wrestling with the mechanics of how to carry out its mandate to deal with large-scale human rights abuses, the new institution faces high expectations but lacks practical experience.

Unlike temporary tribunals, such as those addressing Yugoslavia, Rwanda and Sierra Leone, this is the world’s first permanent and independent criminal court for judging war crimes. The chief prosecutor, Luis Moreno-Ocampo, has taken up two cases, involving large-scale killings in Uganda and Congo, but neither case is expected to come to court soon.

On the conflict in Darfur in Western Sudan, however, where as many as 300,000 people have been killed and more than two million others displaced, the court is under pressure to act swiftly, not only in the hope of ending the bloodshed but also, some diplomats say, because it would allow the Security Council to postpone direct intervention and nonetheless appear to be taking action.

Darfur will put the court to its first major test, as it carves a legal path from accusation, through investigation and indictment, all the way to trial, verdict and punishment.

Christian Palme, a spokesman for the prosecution, said he did not know when the Darfur investigation would formally begin. “But you can count on the work being expeditious,” he said.

In mid-April, court analysts began poring over nine boxes of material collected by a United Nations commission of inquiry that spent three months scrutinizing Sudan’s ethnic killing campaign and its humanitarian crisis.

Antonio Cassese, an Italian law professor, led that commission, and he knew what to look for, having served for almost eight years as a judge of the war crimes tribunal for the former Yugoslavia.

He said the boxes contained the type of material used to document other war crimes, including photographs and videos of weapons, ammunition and war damage, as well as hundreds of statements from military officers, rebels, prisoners and witnesses to atrocities. “The prosecutor will use this as he deems fit, but our material can provide clues, where to investigate, how to identify perpetrators,” Mr. Cassese said. His 30-member team, which included 13 investigators, also prepared a list of suspects. Among the 51 names listed, he said, were “military and civilians about whom there is much convincing evidence.”

That evidence includes accounts from senior military officers that the Sudanese government “openly uses militia gangs, gives them weapons and salaries and tells them to kill and burn and it backs them up with planes and helicopters,” Mr. Cassese said. “There is no restraint. More than 2,000 villages have been burnt. The scale of looting, raping and torture is horrible.”

Since the commission sent the 51 names to the court, much speculation has occurred in Darfur over who they are.

“People see themselves as on the list,” a Western diplomat said. “They’re asking questions. They’re saying, ‘If I’m on the list, what can I do about it?’ ”

For the time being, though, the wealth of material provided by the commission cannot be treated as evidence because the Cassese inquiry was a fact-finding mission that did not collect sworn witness statements. In contrast, Mr. Moreno-Ocampo must conduct criminal investigations that can stand up in court. He has called on other governments and individuals to provide any information they have.

“It will be an uphill battle for the prosecutor to prepare specific cases, I don’t envy him,” Mr. Cassese said, recalling that his own investigation faced many obstacles.

Lawyers familiar with the court said the prosecutor was likely to focus on a dozen or fewer of the top suspects in Sudan’s atrocities.

To build his case, they say, he must prove the chain of command during the conduct of military operations, demonstrate who had control of the militias responsible for much of the looting, raping and killing, and show which officials, politicians or military officers had the authority to prevent the atrocities committed against civilians or at least to punish the perpetrators.

This means court investigators will have to question suspects who are high-level officials, including members of the Sudanese government, which has already objected to the court’s involvement. The prosecution will almost certainly have to turn to Western governments to request intelligence intercepts.

“With Darfur, the court has moved into the big league and now the burden is on the prosecutor to produce,” said Richard Dicker, a director of Human Rights Watch. “He has to demonstrate to the Security Council and to the world that he can act swiftly and effectively. Darfur certainly focuses attention in a way that the investigations in the Congo and Uganda have not.”

Court officials here said the Security Council resolution of March 31 asking the court to act has certainly energized the staff. But some said the staff also felt apprehension.

“Most people here realize we are now under a magnifying glass,” said one court official. “It could make or break the institution.”

The court has 360 employees, 85 of them in the office of the prosecutor. With Darfur on its roster, the court will accelerate its plans to hire more police investigators and legal analysts. It draws its recruits from the 98 nations that have ratified the 1998 Rome Treaty establishing the court.

The Bush administration withdrew the United States from the treaty and has campaigned against the court, demanding that it have no jurisdiction over Americans. After two months of opposition and diplomatic wrangling, the Security Council was only able to refer the Darfur crisis to the court because the United States agreed to abstain, rather than cast its veto.

European governments that have championed the court are eager for its first major case to succeed.

Foreign Minister Michel Barnier of France, who had provided much of the drive behind the Security Council’s move, visited the court recently to be briefed on its plans.

Mr. Moreno-Ocampo, meanwhile, has gone to Washington to seek help. Sudan has told the Cassese commission that it will never surrender any Sudanese to The Hague and will try to block court action by opening its own investigations.

“These will have no credibility,” Mr. Cassese said. “The country has no way to conduct proper trials, the whole judiciary is flawed.”

More Peacekeepers Due in Darfur

ADDIS ABABA, Ethiopia, April 28 (AP) – The African Union agreed Thursday to more than triple the size of its peacekeeping force in the Darfur region of western Sudan by Sept. 30.

The union’s Peace and Security Council approved bolstering the 2,200-member force to more than 7,700, including nearly 5,500 troops, 1,600 civilian police and about 700 military observers, an African Union spokesman, Assane Ba, said.

Marc Lacey contributed reporting from Khartoum, Sudan,for this article