INTERVIEW: ICC Counsel proposes special tribunal for Darfur war crimes
By Wasil Ali
September 10, 2007 (PARIS) — One of the registered counsels at the International Criminal Court (ICC) proposed the establishment of a special court to prosecute war crimes in Darfur.
Despite being a proponent of the ICC, Shalluf told Sudan Tribune that he has reservations on the first permanent world court for war crimes.
Shalluf was appointed by the court on August 2006 to represent and protect the general interests of the defense in the Darfur case before the ICC during the proceedings on the preservation of evidence and protection of witnesses.
The judges of the Pre-Trial Chamber I of the ICC who were assigned the Darfur case, invited the observations of Antonio Cassese the head of UN commission of inquiry on Darfur and by Louise Arbour the UN High Commissioner for Human Rights concerning the protection of victims and the preservation of evidence in Darfur.
Shalluf filed a long series of motions to challenge the jurisdiction of the Court and the admissibility of the Darfur case at the ICC that were eventually rejected by the judges.
The prominent counsel and the human right advocate contended that it was his duty to challenge the jurisdiction of the ICC in Darfur from a legal perspective. However he is staunch supporter of bringing the perpetrators of violence in Darfur to court for the “tragic situation” they created.
Below is the text of the interview
– On March 17 2007 the judges of the ICC issued a strongly worded decision reprimanding you and relieving you from your responsibilities as the counsel for Defence in the Darfur case. The decision was in reaction to a request made by you to be compensated for your legal services in the period from December 2006 to February 2007. What is the story behind that?
Shalluf: Let me correct your question because I wasn’t reprimanded. The judges’ decision applied two legal terms used predominantly in the US. Moreover the decision to relieve me was in accordance with Rule 103 of the Rules of Procedure and Evidence in the Rome Statue empowering the judges to terminate the proceedings in question and wasn’t personally directed at me. The decision was also addressed to Professor Antonio Cassese, the head of UN commission of inquiry in Darfur, and Louise Arbour the UN High Commissioner for Human Rights.
On the issue of my compensation the ICC made a mistake which I was trying to correct. My responsibilities as defense counsel were general in nature and as such I challenged the jurisdiction of the court over the Darfur war crimes. It was only logical that I do that and any lawyer in my place would have done that. I sought a decision from the judges on the admissibility of the case which would have been a very positive thing allowing the ICC to go after all countries committing war crimes and are non-parties to the Rome Statue. It was a golden opportunity for the ICC.
– But the ICC judges were very specific regarding the purpose of these proceedings and your mandate as a defense counsel. They asked you to specifically address the issues raised by Cassese and Arbor in their observations submitted to them but you did not do that?
Shalluf: This is not true. My responsibilities were to protect the general interests of the Defence in the Darfur case. I was not limited to a specific mandate until February 2007 per the ICC registry. My motion challenging the jurisdiction of the court was in October 2006 and the court did not object to it at the time. I had to comprehensively protect the interests of the defense including responding to the observations filed by Cassese and Arbor. I also requested from the judges that I accompany the chief prosecutor Louis Moreno-Ocampo’s team to Sudan for meeting the individuals held by Khartoum on war crime charges. So in reality I did not exceed the scope of my mandate and there is nothing in my assignment limiting me to certain functions.
– Yet the judges said that in their decision that you filed “an inordinate number of baseless requests and motions….completely disregarded the precise and clear scope of [your] mandate by adopting [your] own interpretation of the mandate”.
Shalluf: This decision came out only in March 2007 but why was this issue not brought up before? None of the judges’ decision issued before in these proceedings referred to my mandate. I carried my responsibilities in accordance with my duty as a lawyer. According to European law and French bar association I am required to examine all information on the case so I can respond in my motions accordingly.
– Your assignment however was to protect the general interests of the Defence in the context of these proceedings regarding the preservation of evidence and protection of witnesses?
Shalluf: I have said at the start of these proceedings that I can’t respond to the observations filed by Cassese and Arbor because I have no information on the case in hand. I am lawyer not a merchant and thus I have to adhere to legal rules. I said in my filing that Cassese is part of the prosecution and Ocampo rejected that. However Cassese is the one who submitted the report on Darfur to the UN Security Council (UNSC) recommending referral to the ICC. I can assure you that most of my colleagues commended my work and agree with me that the judges and the registry were flawed since they did not want to pay my dues.
I understand that it is in the interest of the court to retain the Darfur case. The ICC needs the Darfur case not the other way round. I am one of the forces behind the establishment of the ICC and was part of the French and international legal teams that attended conferences prior to the formation of the court. In my opinion the ICC is a victory for mankind and a breakthrough in contemporary history. However I have my reservations regarding the ICC. I am a lawyer and not a politician so I am governed by the law only.
When I challenged the jurisdiction of the court in the Darfur neither judges nor the registry stopped me and told me that I have exceeded my mandate. On January 24th the registrar sent me a letter asking me what legal work I have performed in December and January. Unfortunately the registrar changed my original assignment letter and omitted the “general interest” part of it. That’s why I stood before the judges and told them that the registrar committed forgery. The term “general interest” gives me the authority to go beyond responding to Cassese and Arbor. However I have to be careful because I can’t discuss the details of the case without a full understanding or else I will jeopardize the interest of the defense.
– From what you are saying it almost seems that you had no intention of responding to the observations of Cassese and Arbor?
Shalluf: No. It’s my duty to respond. When I was first assigned the case I had to study it after which I concluded that I had to challenge its admissibility. I simply followed the legal procedures and international law.
– Let me stop you here. How can you challenge the jurisdiction of the court at a time there were no individuals charged in the case? The prosecutor was still in the phase of investigation and therefore your motions were legally baseless.
Shalluf: That is totally wrong. What you are saying is political in nature not legal. The UNSC referred a list of individuals to the ICC prosecutor. The latter could not have commenced an investigation without having charges at hand. Legally once the referral took place and the prosecutor decided to investigate we have a case even if there were no suspects charged. All the elements of the case were in place.
– But who listed suspects? The prosecutor at the time was still investigating crimes that were alleged to have taken place?
Shalluf: The mere fact that the investigation was initiated into certain individuals referred by the UNSC then we have a case.
– But the prosecutor was investigating crimes to come up with names not the other way round?
Shalluf: That is not true. There was a list of names submitted to the prosecutor to investigate.
– The list was submitted but he only looked at it one time before resealing it. He did not use the names to come up with charges. There were 51 names and he only charged two?
Shalluf: It is up to the prosecutor to select the names to charge. In the course if the investigation he may charge additional people.
– So you are saying that the prosecutor hand picked names to indict?
Shalluf: I am not in a position to speculate. You asked me whether there was a case and I am stressing that all the elements of the case was there so I had an obligation to challenge the jurisdiction of the ICC over Darfur war crimes. The judges did not object to the motions I filed deeming the Darfur case inadmissible until March.
– But the prosecutor responded by saying that you exceeded your mandate and the judges concurred with him?
Shalluf: This is normal. It is up to the judges to come up with a decision supporting either side. However in my opinion it was a flawed decision and I appealed it. This is the normal course of any legal proceeding in any part of the world.
– Let me move to the issue of admissibility. Do you recognize the Rome Statue as the governing law at the ICC?
Shalluf: Of course. The Rome statue is the basis of the ICC and the judges are guided by it in their proceedings.
– So explain to me based on the Rome Statue how is the Darfur case inadmissible at the ICC?
Shalluf: Sudan is not a state party and the ICC prosecutor has rejected cases in Iraq and Venezuela based on the issue of admissibility. Also when Venezuela became a state party the prosecutor said that the crimes were committed there before the ratification so the ICC could not investigate them. In the case of Iraq the prosecutor said it was not a state party and he could not exercise jurisdiction there either. The same rule applies to Sudan.
– But the Rome Statue empowers the UNSC to refer situations to the ICC even for non-state parties?
Shalluf: This argument has no legal basis. Article 13(b) of the Rome Statue gives the authority to refer cases but it did not specify whether that applies to non-state parties. What you are talking about is a different interpretation but the Rome Statue was not explicit in this clause. That’s why I asked the ICC to set a precedent by issuing a decision on my motion challenging the admissibility of the Darfur case.
– But from articles 13(a) and 13(c) we can clearly understand why 13(b) would apply only to non-State parties?
Shalluf: The Rome Statue is an international treaty that would only apply to the countries which ratified it. Even if a country was to ratify the treaty today the prosecutor can’t investigate crimes prior to the ratification date. The judges could have disagreed with me by saying that the Rome statue could also apply to non-State parties. We need a decision on the application of the Rome Statue on non-state parties given the fact that the ICC is a new body. Whoever will come after me as a defense counsel will also challenge the jurisdiction of the ICC.
– Do you still insist that the ICC have no jurisdiction over the Darfur case despite the issuance of arrest warrants against two suspects?
Shalluf: The legal proceedings are one thing and the issue of admissibility is another. Like I said any defense counsel in this case will challenge the jurisdiction of the ICC.
– But the judges addressed the issue of jurisdiction in their decision requesting the arrest of the Darfur war crimes suspects?
Shalluf: That was not a final decision. There is a chamber of appeals and the decision can be overruled if challenged. This is simply the findings of the Pre-Trial chamber. I had similar cases in my work as lawyer in Paris, France. The arrest warrants do not mean that the case is admissible.
– You said that the prosecutor refused to have you accompany his team in their visit to Sudan. You also said that he based his decision on financial reasons. Why did you say that?
Shalluf: It is up to the prosecutor to refuse my request. I never speculated on his motives for rejecting my request. I have nothing against him. He is doing his job and so am I. We are on the opposite side of the spectrum.
– You told the Sudanese newspapers that the ICC dealt with you harshly because of your Middle Eastern background. What made you say that?
Shalluf: I never said that. I am Libyan born but I am a French national. Human rights is a universal principle and I said that there are other crimes committed similar to those in Darfur and the ICC should look at them equally.
– So you are saying that Sudan has no obligation to cooperate with the ICC?
Shalluf: Yes. Sudan is not a state party and therefore has no obligation towards the ICC.
– What about the UNSC resolution 1593 referring the Darfur case to the ICC?
Shalluf: This is a political decision not a legal one. Even though Sudan signed the Rome Statue it did not ratify it. By ratification I mean that the legislative body has to approve it. This is what matters.
– Are you suggesting that Sudan should ignore the ICC arrest warrants?
Shalluf: I am not the president of Sudan and I am not assigned by its government so I am in no position to say what should be done. But as a lawyer I made it clear in my ICC filings what my legal interpretation is.
– Can you tell us about your special court proposal to deal with the Darfur case?
Shalluf: I sent my proposal to the UN Secretary General Ban Ki-Moon and the heads of states for the five permanent members in the UNSC. The fact that the ICC has no jurisdiction in Darfur will delay justice for the victims. Also the ICC is thousands of miles away from Sudan which will pose a problem for the victims and witnesses. Moreover the ICC judges have no experience in Sudanese culture. They are not bad judges but they lack experience on Sudan. Therefore I suggested that the special tribunal be consisting of Sudanese judges to prosecute both sides in the conflict. It is not in the interest of the thousands of victims to have lengthy proceedings.
– But one of the ICC judges in the Darfur case is from Ghana?
Shalluf: Should we assume that a Sudanese judge has experience in Ghanaian affairs? This is not logical. I know about Sudan from my contacts with Sudanese and through the information I gather based on my heritage. Law has to be sensitive to the values and cultures of the country.
– Nigeria made a similar suggestion on a special court when the issue of the ICC and Darfur came up but it lacked support. Even Sudan objected to it?
Shalluf: The US was backing this proposal because it resisted ICC referral. However European countries insisted on ICC. But what do the victims want? The ICC is for punishing war criminals and this should be our goal. Human rights should be realistic. We need quick and expedited justice through a special court supported by the UNSC.
– What difference is that special court from the ICC ?
Shalluf: Let’s take the case of the Congolese leader Thomas Lubanga who is being prosecuted. It is taking tremendous amount of time. Even if Sudan cooperates with the ICC it will be a long time before the trial of the suspects is concluded. I proposed that the court be based in Sudan along with the prisons for the individuals charged with the crimes under the supervision of the UN.
– But what guarantees are there that this special court will provide a more speedy justice than the ICC? We have examples in Yugoslavia and Rwanda where trials are still ongoing?
Shalluf: These tribunals have proved to be very efficient. The trials did not take a very long time. However there were some delays due to the large number of suspects. The judges in a special court will be fully devoted to the Darfur case unlike the ones in the ICC. The Darfur case is a big case that could impact a large number of people in the Sudanese government and the rebels. In my opinion this is the ideal solution for delivering justice to the victims.
– Did you send the proposal to the Sudanese government?
Shalluf: Yes
– Did you receive any responses from the governments or the UN on this proposal?
Shalluf: No I didn’t as of yet. However this is a complex issue and therefore I don’t expect results overnight.
– Realistically do you think that this court will see the light one day?
Shalluf: I don’t know. However this I think is the best compromise. I realize that the ICC and some European countries may object. The ICC Chief prosecutor is now pleading for the world to help in the Darfur case. It is not in the ICC interest to have the case withdrawn from them.
If I was advising Sudan I would tell them to accept this proposal to avoid any confrontation with the International community.
(ST)