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ICC Issues Sudan Arrest Warrants

But some doubt Khartoum will ever cooperate and say the warrants will simply gather dust.
By Lisa Clifford
The International Criminal Court, ICC, has issued arrest warrants for a Sudanese government official and a militia leader accused war crimes in Darfur - but the contentious issue of how and by whom the warrants will be served continues to rear its head.

Pre-trial judges said on May 2 there was reasonable grounds to believe that former interior minister Ahmad Haroun and Janjaweed militia commander Ali Kushayb were responsible for murder, rape, torture, the forced displacement of entire villages and other war crimes and crimes against humanity in Darfur – a total of 51 charges.

ICC chief prosecutor Luis Moreno-Ocampo presented evidence from a 21-month investigation to judges in late February. He alleges that Haroun – a close associate of Sudanese president Omar al-Bashir and the country’s minister of state for humanitarian affairs – and Kushayb joined together to attack civilians in four villages in West Darfur. The attacks occurred when the conflict between the government and rebels was at its most violent.

“We completed the investigation under very difficult circumstances, from outside Darfur, and without exposing any of our witnesses,” said Moreno-Ocampo in a statement. “We transformed their stories into evidence, and now the judges have confirmed the strength of that evidence.”

Up to 400,000 people are believed to have died in Darfur since violence erupted there in 2003. Two million others have been forced to leave their homes and are living in refugee camps in Sudan and in neighbouring Chad.

Prosecutors had asked the court to issue summonses ordering Harun and Kushayb to appear. Judges, however, opted for the arrest warrants, saying they were not satisfied that a simple summons would be sufficient to ensure the two men came to The Hague.

The Sudanese government has refused to cooperate with the ICC, saying it is willing and capable of trying its own citizens in domestic courts. Kushayb is currently in police custody and scheduled to stand trial for crimes in Darfur.

Earlier this week, an ICC spokeswoman told IWPR that an April 12 letter from Moreno-Ocampo to the Sudanese ambassador to The Netherlands asking whether Harun and Kushayb would appear if ordered to do had received no response.

The news that warrants have now been issued doesn’t appear to have changed the minds of government officials. The news agency Agence France Press reported on May 2 that the country’s interior minister had rejected the arrest warrants, saying Sudan did not have to comply because it had not signed the Rome Statute which created the ICC.

Not surprisingly, reaction to the warrants was more positive among some in the international legal community.

“We are one crucial step closer to seeing justice and accountability for the victims of Darfur,” said Golzar Kheiltash, a Washington DC based international criminal lawyer and ICC advocate.

But the contentious issue of how and by whom the warrants will be served continues to rear its head. The court has no police force and relies on the cooperation and goodwill of countries involved to execute its warrants.

Some doubt that Sudan will ever cooperate and the warrants will simply gather dust.

“Does anybody think that Khartoum is going to hand over a government minister?” said Eric Reeves, a Sudan researcher and analyst at Smith College in Massachusetts. “It’s inconceivable.

“What are they going to do with the warrants? Who is going to serve them? Who has served them in Northern Uganda?”

The court issued arrest warrants in July 2005 for five members of Uganda’s Lords Resistance Army, which has waged a brutal campaign in the north for decades. One has since been killed in a battle with the Ugandan army but four others including LRA leader Joseph Kony remain at large.

“They’ve started with the two most difficult cases I can imagine,” said Reeves. “In the case of Darfur, the ICC can’t protect witnesses, can’t get to witnesses, and can’t extradite witnesses. It’s going to be a vast spectacle of impotence. If these are the first two cases out of the block by the ICC what will it look like other than symbolic, western justice – that this is our sense of justice but we don’t have any intention of doing anything about it.”

John Washburn, convenor for the American NGO Coalition for the ICC, is more optimistic. He says arrests warrants – even though difficult to serve in the case of Uganda and Darfur – can prove valuable.

“As we’ve seen with people like [former Bosnian Serb leader] Radovan Karadzic who are still at large, it removes them completely from public life,” said Washburn. “It destroys their political base and turns them into fugitives. It means even if you escape being arrested in your own country you can’t travel.”

He points out that over time governments and situations change and that it may eventually be possible to make the arrests.

“People go somewhere they shouldn’t and get picked up. It has happened time and time again at the two ad hoc tribunals [ICTR and ICTY]. Having that happen didn’t require the existence of some sort of international police force,” said Washburn.

In the meantime, with Sudan unwilling to oblige, the onus could fall to the UN to ensure it complies with the warrants. It was the UN Security Council that referred Darfur to the court in March 2005 and Sudan is subject to council decisions. There are also provisions in the charter for punitive measures if Sudan won’t cooperate.

“The Security Council should have a role in ensuring that indictees are arrested and transferred to the ICC, following its earlier decision to refer the Darfur situation to the court,” said Carla Ferstman, the director of Redress, a London-based advocacy group for torture survivors. “All states have a responsibility to cooperate with UN Security Council resolutions, regardless of whether they have ratified the ICC statute.”

Kheiltash believes it is up to the international community to ensure “someone steps up and executes the warrants”.

“Governments around the world, including the US government, have gone on and on about ‘never again’, about genocide in Darfur, about stopping the violence. Here’s your chance,” she said. “There’s something concrete on the table, and we have a chance to seize the opportunity and show the people of Darfur we mean what we say, that it’s not empty words and rhetoric.”

Lisa Clifford is an IWPR reporter in The Hague. IWPR reporter Sara Goodman contributed to this story.

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