ICC Set to Open New Darfur Chapter

Luis Moreno-Ocampo, the chief prosecutor of the International Criminal Court, on February 27 will present evidence to pre-trial judges implicating named individuals in the Darfur crisis, which he hopes will prompt judges to release warrants of arrest.



In a statement released last week, Moreno-Ocampo said the evidence relates to war crimes and crimes against humanity in the Darfur region of Sudan.



The key question is whether evidence will lead to tough genocide charges against high-ranking officials from the Government of Sudan, GoS, or the janjaweed militia, or will involve lesser charges against rebel leaders.



So far, human rights groups have felt disappointed that those charged by the ICC in Uganda and the Democratic Republic of the Congo have not been held accountable for the gravest crimes possible.



They argue that Thomas Lubanga's indictment for the conscription of child soldiers falls short of the crimes they believe he, and his militia, are responsible for in the Ituri region of Congo.



The Darfur crisis erupted in February 2003 when local rebels rose up against decades of economic and social underdevelopment by the central government.



In response, the GoS armed and financially aided the janjaweed, a predominantly Arab militia, openly endorsing and supporting violent attacks against mostly non-Arab civilians, often referred to as African tribes.



Khartoum staunchly denies this, and set up the Special Criminal Court on the Events in Darfur, SCCED, one day after the ICC launched its investigations in June 2005.



Human rights organisations such as Human Rights Watch have strongly discredited the SCCED, which has only prosecuted a handful of cases, mainly for cattle theft and other petty crimes, and is by no means striving to bring high-ranking perpetrators to justice.



GENOCIDE CHARGES



Over 200,000 people have died in Darfur so far, with two million people forced to leave their homes for IDP (internally displaced persons) camps, and 234,000 fleeing to refugee camps in neighbouring Chad.



The Darfur Peace Agreement, signed in May 2006 in Abuja, Nigeria, failed to change anything on the ground, and only succeeded in dividing the rebels.



In 2004, the US government sent a team to collect evidence from 1,200 refugees in Chad prompting Colin Powell, then secretary of state, to label the attacks as genocide in September 2004, with the White House's blessing.



The US then proposed a resolution to the UN Security Council, which sent a Commission of Enquiry to investigate the crimes in Darfur in late 2004, reporting back in January 2005 that no genocide was committed, because they were unable to prove intent.



However, the commission found that crimes no less heinous than genocide were taking place, and urged the Security Council to refer Darfur to the ICC, and once this happened, handed over its exhaustive evidence to prosecution investigators.



America does not back the ICC and attempted to set up an ad hoc UN-backed tribunal for Darfur, but in the end chose not to veto the Security Council's referral of the Darfur situation to the ICC in March 2005 and instead abstained from voting.



ALL TALK BUT NO ACTION



The February 27th evidence will be a substantial step for Moreno-Ocampo and for the fledgling ICC, established in 2002, which has yet to host a full trial at its courtrooms in the The Hague, the diplomatic heart of The Netherlands.



Lubanga's confirmation of charges hearing in November 2006 led to pre-trial judges' January decision that there was enough evidence to proceed to trial against their only indictee in custody.



But despite arrest warrants issued in July 2005 for five members of Uganda's Lords Resistance Army, the militia leaders have evaded capture, with one - Raska Lukwiya - killed in crossfire with the Uganda People's Defence Force, UPDF, last summer.



The failure to arrest the indictees sparked criticism that the world's first permanent war crimes court lacks muscle, relying on the cooperation of nations to track down fugitives - something that has plagued the UN-backed International Criminal Tribunal for the former Yugoslavia, ICTY.



Bosnian Serb leaders Radovan Karadzic and Ratko Mladic, who face 16 counts of genocide and crimes against humanity for crimes in Bosnia and Hercegovina, have already spent ten years on the run much to the consternation of the ICTY.



A more troubling debate arose when President Yoweri Museveni instigated peace talks with the LRA, suggesting reconciliation in Uganda could be achieved more effectively if the rebels were tried within the framework of local justice mechanisms leading to an ICC amnesty.



Many perceived this as Museveni publicly undermining the ICC, but at least prosecutors have nominal government support.



OBSTINATE SUDANESE GOVERNMENT



Of the three countries in which prosecutors are actively involved, they have yet to indict individuals in Darfur after nearly two years of investigations, partially because their hands have been tied by the obstinate Sudanese government.



Uganda and Congo requested ICC assistance, but Darfur was referred to the ICC by the Security Council without the approval of the Sudanese, causing displeasure in Khartoum.



At the Aspen Institute's International Justice conference in Washington on February 23, lead ICC prosecutor on Darfur, Andrew Cayley, said, "This investigation was more challenging than any of the 15 cases I worked on at the ICTY."



Despite stressing several meetings held with Sudanese government officials, the investigators have received no backing from Khartoum and been left to gather evidence from 17 other countries, including neighboring Chad.



Due to increasing violence, even investigations in Chad were halted for a time, and some critics will doubtless dismiss the February 27 evidence gained from everywhere but Darfur itself as flawed.



As Khartoum continues to downplay the gravity of the Darfur situation in terms of lives lost, and maintains its ability to prosecute war crimes suspects, the ICC faces a stalemate.



Legally, prosecutors can only divest a county of its right to conduct trials locally, by proving that the country in question is "unwilling or unable" - as phrased in its founding statute - to conduct trials adequately.



Prosecutors have been forced to sit and wait, monitoring who is being tried at the SCCED and on what charges, before they can say that Khartoum is unwilling and unable to deal with this situation itself.



Prosecutors have not been in a position to do so - until now.



In Washington, Cayley confirmed that the names the prosecutor will announce on February 27 are not any of those accused by the SCCED.



Aware that if prosecutors name individuals being tried by the SCCED they would publicly deem the Sudanese trials as inadequate, Cayley added that he didn't believe "there is any overlap" between those the ICC wants to indict are those the SCCED is investigating.



STRIKING A BALANCE



Commentators are questioning whether prosecutors may try to present evidence against as many rebels as government-backed janjaweed, GoS and ruling National Congress Party, NCP, members in order to fend off accusations of being partial.



Suffice to say, evidence against the GoS would probably lead to Khartoum obstructing the ICC and the UN even further.



The GoS has refused UN peacekeepers taking over from African Union, AU, troops in Darfur, even though 10,000 UN troops operate in Southern Sudan, and it is unclear how AU soldiers or even UN could ever serve out arrest warrants against GoS leaders in Khartoum.



If rumours are true and the Interior Minister Zubeir Taha is indicted, there would most likely be a heavy handed response from the regime, making life even more difficult for the UN and humanitarian aid agencies to operate in Darfur.



This could lead to the international community upping the ante through the UN, increasing sanctions and further threatening military intervention, whether Khartoum likes it or not.



Independent Darfur expert Eric Reeves says he feels the most responsible figures within the regime are in "full metal jacked survivalist mode", and warns that an indictment of a senior official may make these "brutal men even more defiant and reckless".



Prosecutors are aware that they have to tread extremely carefully.



The ongoing conflict in Darfur, which many say is still escalating, has already embroiled 4.5 million civilians, and no one welcomes a move which could lead to more violence.



Indicting a janjaweed militiaman could lead to a show-trial of the same individual at the SCCED in a bid to claw back jurisdiction, but it is extremely unlikely that the GoS would handover a janjaweed, because the militia has so much evidence against the government.



Perhaps rebels will be named in an effort to strike a balance, but this would create incredulity amongst international observers, who generally accept that their relative responsibility for war crimes is much smaller than the GoS and the janjaweed.



However, Minni Minawi, the rebel leader who signed up to the failed Darfur Peace Agreement in Abuja and now part of the GoS, has often been linked to war crimes, and an indictment against him could give Darfur rebels the impetus to unite again.



VERY REAL CONSEQUENCES



In Washington, Richard Dicker from Human Rights Watch said critics of the court may react to the February 27 announcement by warning that the ICC is jeopardising peace.



They may say the evidence, and imminent arrest warrants, will not only provoke Khartoum to escalate the violence in Darfur, but possibly endanger Sudan's North-South peace agreement. Dicker dismisses this, however.



"The janjaweed have not needed international arrest warrants to initiate attacks," he said, adding that in the past nine months, the GoS has forbidden two Secretary Generals from establishing a UN peacekeeping force in Darfur.



Khartoum has military objectives in Darfur regardless of ICC indictments, so "any upsurge in violence is not the fault of the ICC, but rather the countries who have the power to stop it but don't", added Stephen Rickard from the Open Society Institute .



The coming days will be important for future legal jurisprudence on "complementarity" between domestic judicial systems and the ICC and, in the short term, could have major political consequences for those involved in Darfur.



Katy Glassborow is an IWPR reporter in The Hague, Jan Coebergh is an independent Hague-based Darfur expert, and Stacy Sullivan is a Washington-based IWPR reporter.