By Wasil Ali
October 15, 2008 (WASHINGTON) – A report created by the Sudanese government last month and forwarded by the African Union (AU) to the UN Security Council (UNSC) conflicts with official statements on the arrest of a militia leader wanted by the International Criminal Court (ICC).
Darfur militia commander Ali KushaybThis week the Sudanese justice minister Abdel-Basit Sabdarat told the Associated Press from Cairo that militia commander Ali Mohamed Ali Abdel-Rahman, also know as Ali Kushayb “is in government custody”.
“Kushayb will be tried in Sudan’s domestic courts. He is under investigation. He will be held accountable” Sabdarat said.
The UN spokeswoman Michele Montas on Wednesday welcomed the arrest of Kushayb.
“If confirmed, this is a welcome step towards the vital need to end impunity and bring to justice those responsible for crimes in Darfur” she told a press briefing.
The move come almost three months after the ICC prosecutor Luis Moreno-Ocampo announced in mid-July that he requested an arrest warrant against Sudanese president Omar Hassan Al-Bashir.
Following that Sudan has been looking into ways that would allow it to avoid confrontation with the international community over the ICC through conducting trials for lesser suspects.
The Sudanese justice undersecretary Abdel-Daim Zumrawi told Reuters on Tuesday that Kushayb has been detained in Sudan several months ago.
“The prosecutors have collected all the evidence against them. I am not sure whether it will be placed before a court…Kushayb has been under arrest for a long time” Zumrawi said.
However Khartoum’s report to UNSC obtained by Sudan Tribune earlier this month makes no mention of the militia leader being in custody.
The report which was not made public states that on September 2nd the Darfur special prosecutor submitted his first report on his work showing that he has reviewed Kushayb’s case but that it is still in its early stages.
“The newly constituted investigation team perused the investigation diary of he report no. (2868) in which colonel Hamdi Sharafeldin, Ali Kushaib and others are named as accused persons, the committee after determining the unfinished process relating to this case visited Nyala and Ginena” the report says.
“In Ginena, they questioned a number of witnesses in the above case and decided to resume the questioning of other witnesses when availed”.
This was the only time Kushayb’s case was mentioned throughout the report.
The judges of the ICC issued arrest warrants last year for Kushayb and Ahmed Haroun, state minister for humanitarian affairs on 51 counts of alleged crimes against humanity and war crimes. But Khartoum has so far refused to hand them over.
Khartoum had long claimed that Kushayb was in custody since November 2006 for investigations into allegations of violations he committed during the peak of the Darfur conflict in 2004.
Sudan’s former Justice Minister Mohamed Ali al-Mardi told a news conference in Khartoum in February 2007 that “Ali Kushayb, along with two other individuals, was sent for trial. He was detained as a suspect, questioned, his statements were evaluated and witness statements recorded, and then the decision was taken to refer him to court”.
But in March 2007 Kushayb’s trial was delayed when the defendants filed an appeal with the Justice ministry after which Abu-Zeid told reporters that Kushayb’s appeal was denied that there is “sufficient evidence to proceed with the case”.
Shortly afterwards the Sudanese justice ministry ordered a ban on publishing reports or details relating to criminal cases on Darfur conflict and many observers at the time voiced skepticism over Khartoum’s seriousness to try perpetrators of crimes in the war ravaged region.
In October 2007 Sudan’s former foreign minister Lam Akol told the pro-government daily Al-Rayaam from New York that Kushayb was freed “due to lack of incriminating evidence against him”.
However Al-Mardi issued a quick denial to the Al-Rayaam report describing it as “false” without directly commenting on Akol’s statements.
The former Justice Minister was asked again by Al-Rayaam last November on the whereabouts of Kushayb and he reiterated that the militia leader was “never released” before saying that he refrained from commenting on the issue “because it is under investigation”.
In April the spokesman for the Sudanese embassy in London, Khalid Al-Mubarak was quoted by Voice of America (VOA) as saying that Haroun and Kushayb were not prosecuted “because there is no evidence against them”.
Again in June Amin Hassan Omar, a leading figure in the National Congress Party (NCP) and a state minister also confirmed Kushayb’s release.
Sudanese media reported that Kushayb will stand trial shortly and the independent Al-Sahafa newspaper reported that security reinforcements were sent to the capital city of West Darfur where the militia leader is said to be held.
But legal sources in El-Geneina, speaking to Reuters on condition of anonymity, said that court officials in the town had heard nothing of a pending trial.
“I have just come back from the court” said one lawyer. “And no one, the lawyers or the court officers, knew anything about a trial. This is just talk”.
It remains to be seen what crimes Kushayb will be prosecuted for.
The ICC Statute prevents investigation into crimes that were looked into by local judiciary under the concept of “complementarity”.
Sudan must prosecute Haroun and Kushayb for the same accusations brought against them by the ICC in order for the latter to lose jurisdiction over their cases.
Sudan has not ratified the Rome Statute, but the UN Security Council (UNSC) triggered the provisions under the Statute that enables it to refer situations in non-State parties to the world court if it deems that it is a threat to international peace and security.
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Official report by Sudan forwarded by AU to UNSC (Part 1) September 17, 2008Official report by Sudan forwarded by AU to UNSC (Part 2) September 17, 2008
