Institute for War and Peace Reporting | Giving Voice, Driving Change

Concern Over Darfur Prosecutions Delay

ICC has to determine whether Sudan is willing and able to prosecute Darfur suspects.
By Katy Glassborow
The chief prosecutor of the International Criminal Court, ICC, Luis Moreno-Ocampo, recently revealed that enough evidence has been collected to name individuals responsible for crimes in the Darfur region of Sudan and to launch proceedings against them - but major obstacles loom in the path of potential prosecutions.



Speaking last week in The Hague to journalists and representatives from more than one hundred countries that support the ICC, Moreno-Ocampo said the next step he is obliged to take is to determine whether the Sudan government in Khartoum will itself conduct national proceedings against the same alleged perpetrators.



Moreno-Ocampo told delegates at the fifth Assembly of States Parties that ICC prosecutors will have to assess whether the Sudanese are conducting “genuine national proceedings” in this regard.



Sudan did not itself invite the ICC to investigate alleged crimes against humanity being committed in Darfur. The situation was referred to the court by the United Nations Security Council.



Moreno-Ocampo said, “When the Security Council referred the Darfur case to the ICC they had established that security and peace required justice, which is why they required our intervention.”



TOUGH CHALLENGE



By all accounts, ICC prosecution investigators face a tough challenge in Darfur, where the US government says genocide is taking place. Khartoum rejects the charge. Since early 2003, violence has escalated in the conflict between rebel groups like the Sudan Liberation Army/Movement, SLA/M, and the Justice and Equality Movement, JEM, and the government of Sudan and its militia, the Janjaweed.



Two-thirds of Darfur’s six-million population are directly affected by the conflict, says Jan Egeland, the UN Under-Secretary General for Humanitarian Affairs. At least 200,000 people have been killed as a result of violence, disease and malnutrition, according to Egeland and the most recent UN Darfur Humanitarian Profile, although other estimates put the death toll nearer 400,000. In addition, some 2.5 million Darfuris have fled their homes and become refugees, either internally or across the border in eastern Chad.



The New York-based Human Rights Watch has said that the climate of impunity fostered by Sudan’s failure to prosecute war crimes committed in Darfur, a semi-desert region the size of France in western Sudan, has encouraged government-backed militias and the country’s own armed forces to continue to commit abuses.



Under the 1998 Rome Statute - the legislation that governs proceedings at the ICC - the world’s first permanent war crimes court can take over jurisdiction and prosecute war crimes if a country is “unwilling or unable” to do so nationally.



The problem for the ICC is in determining whether that country is “unwilling or unable”.



DIVESTING THE ICC OF JURISDICTION



A day after Moreno-Ocampo announced he was opening investigations into Darfur in June 2005 - after the Security Counsel referral - the Sudanese authorities established the Special Criminal Court on the Events in Darfur, SCCED. It was seen as a diversionary tactic by Khartoum and no international human rights organisations believe that SCCED intends prosecuting war crimes in Darfur seriously.



Judge Richard Goldstone, the former chief prosecutor at the international tribunals for Rwanda and Yugoslavia, said the attitude of the Sudanese government “does not instil confidence that there is a will to go after their own war criminals”, starting with their rejection of the Security Council’s decision to refer Darfur to the ICC in the first place.



Richard Dicker, international justice director of Human Rights Watch, said that the chief justice of Sudan's Supreme Court stated that the SCCED is a “substitute to the ICC”. ICC prosecutors are obliged under international law to respect the Sudanese judiciary and the SCCED and wait for their next move.



Sudanese human rights lawyer Kamal al-Gizouli, based in Khartoum, told IWPR that the creation of the Sudanese court was clearly designed to “cut the road off in front of the ICC".



Professor Eric Reeves, an American academic and expert on Darfur, told IWPR that the key words in the Rome Statute are “willing” and “able”, and he said “there was not have a shred of evidence that the Sudanese are willing to prosecute the type of crimes that the ICC is mandated to prosecute”.



In fact, said Reeves, the Sudanese courts have investigated none of the senior members of the government of Sudan, none of the people named by Human Rights Watch, none of the 51 people named by a UN Panel of Experts, nor any of the senior government officials most directly linked to atrocities in Darfur.



“He [Moreno-Ocampo] can investigate the workings of the Sudanese courts as long as he wishes," said Reeves. "But this is ridiculous and disingenuous. We know who the most responsible individuals are, so is he just doing a dutiful tour of Sudanese courts?”



When IWPR put this question to the ICC prosecutors, they responded by saying that “the selection of individuals for prosecution is a fact-driven process, based on an independent and impartial assessment of the highest standards of evidence gathering.

“We cannot disclose the names of these individuals before presenting the evidence to the judges.”



ADMISSABILITY OF THE CASE



Moreno-Ocampo said that through careful analysis of evidence, the ICC’s Office of the Prosecutor has identified those who are criminally responsible for such grave crimes against humanity as murder, rape and torture in Darfur. He said his investigators had conducted more than 100 witness interviews and collected thousands of documents from various sources. But before submitting the evidence to the ICC judges, his office is “assessing the admissibility of the case".



He said he has requested full information from Khartoum, giving the government there until early December to comply. So far, the Sudan government has given answers on military and security structures in Darfur and the legal system governing the military. In June and August this year, Sudanese military officers and high-ranking civilians met with investigators from the Office of the Prosecutor in Khartoum.



Despite this olive branch of cooperation with the ICC, human rights organisations do not believe this will spill over into a national willingness to prosecute Darfur war crime suspects.



Dicker said cases that have begun to go before the SCCED involve theft and ordinary crimes, which do not reflect the massive scale of killings and destruction in Sudan. He said the Sudanese must do more than “offer lip service” and that ICC prosecutors need to look at the “nature and gravity of charges” before the SCCED and ask whether they are even genuine trials.



Of the 13 cases Human Rights Watch has documented as having taken place at the SCCED, the majority were for cattle theft and other ordinary offences committed by low-ranking individuals. Dicker describes these as falling “spectacularly short” of what a genuine human rights court should be doing. “Are these crimes against humanity - meaning widespread and systematic murder - or mere sheep theft?” he asked.



The Rome Statute says national cases should only be transferred to the ICC if they shield individuals from criminal responsibility - which is clearly what the SCCED is doing, said Dicker.



For the moment, there is a stalemate between the SCCED and ICC. While it exists, Darfur continues to burn and grave war crimes go unpunished.



Doumnguinam Gosngar, president of the Chad human rights group Action des Chrétiens pour l'Abolition de la Torture, told IWPR that the Sudanese are deliberately forcing the ICC to lose time because investigators are compelled to analyse the robustness of SCCED trials.



The SCCED, said Gosngar, is clearly unwilling to try top-ranking Sudanese soldiers or allied Janjaweed militiamen, who are at the heart of the killings in Darfur. The Sudanese court will only “try the little fishes”, added Gosngar.



The commitment of the Sudan government to a robust prosecution of war crimes suspects in Darfur has long been in doubt. In May 2004, the president of Sudan, Omar al-Bashir, established a National Commission of Inquiry to investigate human rights violations by armed groups in the region. The commission told the president that grave human rights breaches and crimes against humanity were committed by “all parties to the conflict” from 2003 to 2004.



However, al-Gizouli told IWPR that the government finds itself in a difficult situation with the ICC because of strong international pressure. “You hear them saying that they are cooperating with, and respect, the ICC and want to facilitate investigations. But they are also shouting against the United Nations and the ICC, so are hesitant and do not know what to do,” he said.



Al-Gizouli said that the closer Moreno-Ocampo and his prosecutors are to bringing the case to the ICC, “the harsher this government will become towards the question as a whole”. He told IWPR that it is unlikely that President al-Bashir and his government will accept the jurisdiction of the international court, unless it starts by prosecuting some minor suspects - but this would be “bitterly disappointing to the people of Darfur".



DIFFICULT AND COMPLEX WORK



Moreno-Ocampo told the Assembly of States Parties that the Darfur conflict is complex and involves multiple parties “which are not easily distinguished by uniform or insignia”, and whose involvement varies over time and between localities.



Unlike the situations in the Democratic Republic of Congo and Uganda - where ICC investigators enjoy the support of the state - Moreno-Ocampo's teams have struggled to get into Darfur itself. The meat of the investigation has been conducted in 17 other countries, including Chad, where many Darfuris are in exile.



Prosecution investigators do not have the support of the Sudanese authorities to provide security in the field, but Moreno-Ocampo said, "In spite of the challenges, my office has succeeded in collecting the evidence required to impartially investigate crimes in Darfur."



This optimism is not shared by the ICC’s own pre-trial chamber of judges looking after the Darfur situation, which asked the UN High Commissioner for Human Rights Louise Arbour to assess Moreno-Ocampo’s investigations. Arbour reported back with a suggestion that an increased ICC visibility on the ground in Sudan was necessary and that this would improve the level of protection for affected Darfuris. NGOs are campaigning for Moreno-Ocampo to visit Darfur, so that Darfuris can see his presence there.



At the same time, Human Rights Watch has warned that Sudan's SCCED solution is an unclear hybrid of Shari’a law, law by decree and international law. In a report titled "Lack of Conviction: The Special Criminal Court on the Events in Darfur", Human Rights Watch said SCCED procedures and laws are “vague and arbitrary”. Broad immunity provisions “create obstacles” to the successful prosecution of members of the armed forces, police and Janjaweed militia.



These “obstacles” amount to the shielding individuals from criminal responsibility - the benchmark for transferring cases to The Hague.



In the SCCED, there is an absence of definitions of crimes against humanity. A high burden of proof for rape means that victims are unlikely to bring their cases to the police - especially as rape victims end up more often than not being prosecuted for adultery under Shari’a law. According to the latter, rape victims need to produce four male witnesses to actual penetration before they can even make a charge.



In his keynote speech to the Assembly of States Parties, Moreno-Ocampo expressly mentioned rape as one of the crimes for which he has now gathered enough evidence. Sara Darehshor, from the international justice programme at Human Rights Watch, said this highlights the fact that rape is one area in which the Sudanese court has “totally dropped the ball”.



Al-Gizouli said Sudanese laws, such as ones giving state employees widespread immunity, need to be amended and replaced by democratic, humanitarian laws applying international standards. But he told IWPR that the international community must “apply pressure wisely”. He said the SCCED was created after the ICC announced its intention to open investigations into Darfur, which does at the very least demonstrate a readiness to respond to international pressure. And, following criticism, some amendments were made to SCCED legislation, he said.



COMPLEMETARITY – THE “UNTRIED PRINCIPLE”



The ICC is designed to complement nation states, so that they retain jurisdiction to try genocide, crimes against humanity and war crimes. ICC staff cannot act unless the country is unwilling to do so or genuinely unable to investigate or prosecute.



However, al-Gizouli said that “complementarity”, as written into ICC statutes, is a totally untried principle, and he asked whether trials, such as those conducted by the SCCED, need to be “perfect” to be accepted by the ICC.





To many human rights organisations and observers that IWPR has spoken to, it seems that Sudan set up the SCCED expressly to prove the country’s willingness and ability to try suspects nationally.



If Moreno-Ocampo is unable to disprove the latter, he is permitted to prepare cases against individuals that the Sudanese are not intending to try, or are not trying adequately, in his view.



He told journalists that when his prosecutors interviewed Sudanese judges in February “we had clear indications that the cases we were pursuing were different”. The prosecutor is expected to make a final assessment on whether the specific people the ICC intends to prosecute are being adequately pursued through the SCCED this month.



But some NGOs argue that the SCCED’s refusal to prosecute people whom the ICC considers should be brought to trial is evidence enough that Sudan is unwilling to stage national proceedings.



Consequently, they say, the ICC should not lose any more time and take over jurisdiction of the cases. They say the people of Darfur cannot afford further delays in the justice process.



Katy Glassborow is an IWPR reporter in The Hague.