Did the ICC fail in Darfur test?
Sudan Tribune Editorial
By Wasil Ali
Feb 28, 2007 — The announcement of the ICC’s chief prosecutor Luis Moreno-Ocampo came at a disappointment to say the least to many people around the world including those from Darfur. Almost 18 months after Ocampo decided to open an investigation into the Darfur situation it was hoped that he would succeed in prosecuting senior officials in the government of Sudan and ending the culture of immunity that prevailed throughout Darfur. Ocampo’s team has collected statements in 17 countries, screened over 600 potential witnesses and conducted five missions to Khartoum interviewing two senior Sudanese officials. The conclusion reached by the prosecutor has is that a former state minister of interior and a militia leader were behind the worst events that occurred in Darfur in the years 2003-2004 that led to the killing of over 200,000 people and displacement of 2 million others.
It is important to note here that the International Criminal Court as a new body is still in a learning process. As such we can understand why the outcome was weaker than anyone has anticipated. It is interesting to point out that the elements under the Rome Statue to establish criminal responsibility includes (a) personally committing the crime (b) soliciting the commission of crimes (c) facilitating the commission of crimes (d) knowledge of the intention of a group to commit a crime. It is clear that Ocampo did not trigger that last element of establishing criminal responsibility. The filing to the judges that was made public shows that the circle of responsibility was limited to Ahmed Harun who was in charge of running the Darfur war and to Ali Koshaib a Jinjaweed leader. The evidence reveals that Harun had substantial resources at his disposal including money, arms and logistical support from the Sudanese army. Ocampo did not go a step further to pin point who empowered Harun to commit the atrocities in Darfur. In a tele-conference with Ocampo following his press conference I raised this issue with him and he said that Harun maintained full control over the army operations and militias in Darfur making him ultimately responsible. In addition to that Harun was seen by eye witnesses on the ground in Darfur which helped to build a case against him. I mentioned to Ocampo that Harun who was the state minister for Interior at the time, was the interior minister’s right hand man (Abdel Rahim Mohamed Hussein) and reporting directly to him. The chief prosecutor said that he cannot simply prosecute Hussein because Harun reported to him. According to Human Rights Watch report issued in December 2005 ‘Entrenching Impunity’ Hussein was named by eye witnesses visiting Darfur with Harun meeting with governors, commissioners, other local government representatives, military commanders, and security officials. The report goes further to quote Sudanese military officers that Hussein was instrumental in the planning of the Darfur military operations.
One can only sense that establishing criminal responsibility individual under the Rome Statue as interpreted by Ocampo requires a physical presence in the crime scene and eyewitness accounts as such. This is a seriously flawed interpretation as it will only create scapegoats who will face charges of crimes against humanity while leaving the masterminds of the strategy at large. In December of 2003 the Sudanese president Omar Hassan al-Bashir said that the Darfur rebels have been “annihilated” and most recently he admitted that his air force did bomb areas in Darfur. Moreover it is yet to be figured out from the prosecutor’s evidence the role of the top military figures at the time such as Abbas Arabi the chief of staff, Defence Minsiter Bakri Hassan Salih in planning and coordinating military support for operations in Darfur. The indictments of two people only in the Darfur war crimes comes in sharp contrast with the prosecutor’s report in June 2006 where he said that determining the individuals who should be prosecuted in the Darfur conflict is a difficult process because it involves “multiple parties, varying over time throughout the different states and localities” and thus he anticipates “investigation and prosecution of a sequence of cases, rather than a single case dealing with the situation in Darfur as a whole”. Ocampo did not provide me with a clear answer of whether he will cease looking into crimes committed in 2003-2004 and instead emphasized that his office is focusing on current crimes. If it is indeed true that Ocampo is no longer looking into crimes committed during 2003-2004 and has decided that ‘multiple parties’ to the crimes committed include only Harun and Koshaib then this is yet another disappointment to the people of Darfur. It will also be a serious setback to the mission of the world court of ending impunity by going after criminals regardless of their official capacity.
The other issue that needs to be examined is why Ocampo has decided to ask the ICC judges to issue summons to appear to the two individuals rather than arrest warrant. Summons to appear gives the suspects the option to remain in their home countries with few restrictions. It does not even require them to be relieved of any official duties. Arrest warrants are issued to ensure that the suspect does not escape or continence committing the crimes. In his press conference Ocampo said that his decision to request summons rather than arrest warrants was deemed the most efficient way to bring suspects to court in this case yet when reporters pressured him further on this issue he threw the decision to judges who will determine whether to issue arrest warrants or summons to appear. Ocampo further added that arrest warrants are not guarantees that they will be handed over to the ICC as in the case of Uganda. It is interesting to note that the Ocampo requested an arrest warrant against the Congolese militia leader Thomas Lubanga Dyilo even though he was already in the custody of the Congolese government since 2003. The message sent to the Khartoum government by a summons to appear rather than an arrest warrant is that their crimes are not serious enough to require their immediate arrest. A summons to appear in the case of Harun, a somewhat high profile government minister, makes more sense than the case of Kohsaib, the militia leader whose face is not even known. How can a summons be sufficient to guarantee the appearance of a militia leader whose homeland is an area as big as France and with full tribal backing?
In his press conference yesterday and in other interviews Ocampo has stated that he has pending requests for interviews with Sudanese officials which included Ahmed Harun. Is the ICC Chief’s prosecutor not aware that the UN Security Council’s referral of the Darfur case to the ICC is a Chapter VII resolution and requires full cooperation by the government of Sudan? Why did Ocampo not mention this matter to the UNSC in his December 2006 report that the government of Sudan has not granted him the access to these officials? While it is true that the government of Sudan may not have explicitly rejected his requests it may attempt to slow down the pace of his investigations and/or denying him access to information that may lead him to uncover the ring of perpetrators who were complicit in the Darfur atrocities. Had he been able to interview Harun, the ICC chief prosecutor may have received a wealth of information from him on role of other officials who sanctioned him to lead the military operations in Darfur and who is it that he directly reported to on the progress of operations in Darfur. To make it even more complicated the evidence available to the prosecutor has been severely curtailed by his decision not to go investigate inside Darfur citing witness security concerns. This strategy have been criticized by Antonio Cassese the president of the Yugoslavia war tribunals and the head of UN commission of inquiry in Darfur and by Louise Arbour the UN High Commissioner for Human Rights. The judges of the ICC, apparently not convinced by Ocampo’s decision not to go into Darfur requested Cassese and Arbor’s opinions on witness protection inside Darfur. Ocampo contended that the Rome Statue granted him full discretion on the determining the prosecutional and investigative strategies to pursue in the cases before him.
The real hope to cure all these obvious deficiencies rests before the judges of the ICC who will evaluate the evidence submitted by the Ocampo and determine if it is convincing enough that only these two people should be brought to trial and whether summons to appear are sufficient to bring the criminals to justice. Actually as I am writing this article the judges of the ICC judges looking into the Darfur case requested to convene a meeting on March 8 with the prosecutor and the Victims and Witnesses Unit in the ICC to discuss the “matters arising from the Prosecution’s Application”. The coming days and months will provide further insight on the direction the ICC taking in the Darfur case.
* The author, who is a Sudan Tribune journalist, conducted an interview last December with the ICC chief prosecutor about Darfur case. He can be reached at [email protected]