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

Prosecutors Hit Back at Rebel Case Criticism

They dismiss suggestions they are bringing case against Sudanese rebels in an effort to appear even-handed.
By Amy Stillman
As International Criminal Court, ICC, judges prepare to consider a case brought against Sudanese rebel leaders, the prosecution has rejected claims that the case was opened in order to seem impartial in its approach to the conflict.



Special advisor to the ICC prosecution Béatrice Le Fraper du Hellen says the Office of the Prosecutor, OTP, would “strongly challenge” criticism that the case lacks the same level of gravity as others put before the court.



“As a judicial institution, we can only apply the criterion which is in the [ICC’s founding document, the Rome] Statute, and we can only follow the evidence,” Le Fraper du Hellen said. “For us [this case] ranks very high in the crimes committed since 2003 in Darfur.”



In November last year, ICC chief prosecutor Luis Moreno-Ocampo requested that judges issue a summons for three Sudanese rebel commanders to appear before the court, accusing them of an attack against African Union, AU, peacekeepers in 2007.



Pre-Trial Chamber 1, which is handling the case, will decide on whether the accused rebel leaders should be issued with a summons or an arrest warrant, depending on their willingness to appear before the court.



A hearing on the case took place on April 21, and the prosecution expects ICC judges to make their decision in the coming weeks.



But Darfuris and Sudanese activists have questioned the motives of the prosecution in pursuing the case, which they say involves crimes less grave than the atrocities allegedly committed by Sudanese officials indicted by the ICC.



Many believe that the prosecution has targeted rebel leaders in order to appear impartial in the eyes of the international community and African governments.



“I think this is a tactical move by the prosecutor to show balance and put more pressure on the government and its backers [rather] than a serious case,” Ahmed Abuzaid, a journalist from the south Darfur regional capital of Nyala, said, expressing a widespread view.



At least twelve peacekeepers were killed, and eight others seriously wounded when up to 1,000 Sudanese rebels connected to the Justice and Equality Movement, JEM, allegedly attacked AU peacekeeping troops, known as AMIS, at the Haskanita military base in north Darfur.



The prosecution accuse the rebel commanders of war crimes, including violence to life, pillaging, and directing attacks against personnel, installations, material units or vehicles involved in a peacekeeping mission.



Hafiz Mohamed, head of the Sudan programme for Justice Africa, said, “There are many cases of this kind of attack, even more severe than the Haskanita one.



“I think he [the chief prosecutor] wants to show the world or public opinion, generally, especially inside Sudan, that he is also targeting government opponents, not only government officials.”



But the prosecution denies any political considerations in its decision-making.



“Equidistance between the parties is not a criterion under the [Rome] Statute,” Le Fraper du Hellen said. “That’s a political consideration, and the prosecutor of the ICC cannot follow this kind of consideration.



“Even if we did that, of course, the judges would never grant us an arrest warrant or summons to appear on this basis, so I don’t think people should be too worried about that.”



Mohamed told IWPR that while Justice Africa approved of the case, an indictment of Sudanese rebels “will not be welcomed” in Darfur. Many people will wonder why the ICC is “going after armed groups and not holding [Sudanese president Omar al-Bashir] responsible [for the crimes he is accused of by enforcing the court’s decision to arrest him]”.



The ICC issued an indictment against Bashir on March 4 for war crimes and crimes against humanity. Since the arrest warrant was issued, the president has defied the ruling and expelled at least 13 aid agencies from the country.



The ICC “has to do everything possible now to get him [Bashir] arrested without wasting time and efforts on other cases”, said Yasin Barra, a Darfuri refugee based in the Abunabak camp in eastern Chad.



Some NGOs have welcomed the prosecutor’s decision to bring a case against the rebel leaders, however, in the hope that it will prevent further attacks against peacekeepers.



“The scale and the magnitude of the atrocities don’t compare to those committed by government forces, but because these crimes could have serious effects on the ability of peacekeeping operations to carry out their work, they are serious crimes that should be prosecuted,” Sara Darehshori, senior counsel member of the Human Rights Watch International Justice Programme, said.



Mariana Pena, representative of the International Federation for Human Rights, FIDH, says that bringing the case against the rebels could be a significant deterrent against further attacks.



The case, she said, is also important for “showing the impartiality” of the ICC, as “from our point of view, it’s very good that he [the prosecutor] goes after all parties involved, because it’s not only about being impartial, but also about being perceived as impartial”.



The case was opened following mounting criticism against the ICC from African countries, which accused the court of failing to look at all sides of the conflict.



“A lot of African countries have said [the ICC] is just focused on the government side, but the rebels also committed crimes,” Ahmed Mohammedain, head of the Darfuri community organisation Darfur Call, said.



“The ICC is in a position that in order to divert the emphasis of criticism that is put on it, [it] is now trying to find some kind of balance.”



Lorraine Smith, from the International Bar Association based in The Hague, told IWPR that though the number of victims in the Haskanita attack was small, the case seemed to be designed “to send a much larger message” that the international community will not accept attacks against peacekeepers.



“But the timing and the fact that it is the first case of its kind before the ICC has raised questions in people’s minds,” she said.



While the intentional targeting of peacekeepers is considered a war crime under article 82C1 of the Rome Statute, to date, no similar cases have been brought before the court.



According to Smith, this is because so far the OTP appears to have used a “quantitative gravity assessment” when deciding whether to bring a case forward.



“In the past…they’ve taken [a] more quantitative assessment of gravity: the number of victims, scale of the violence, and that sort of thing,” she said.



In the case against the rebels, the OTP has focused on the impact of attacking a peacekeeping force rather than the scale of the atrocity.



“For us, gravity is not only the scale, the number of crimes, you have also to include what we would call ‘qualitative factors’, like the nature of the crime, the manner of commission, and the impact,” Le Fraper du Hellen said.



According to the ICC prosecution, militant groups frequently make the calculation that an attack against peacekeepers will prompt their withdrawal from the country – enabling them to target the civilian population, no longer under the watchful eye of the international community.



“We really hope to show very clearly to the perpetrators, ‘well, that’s not a calculation you can have any longer’,” the advisor to the prosecution said.



“When you attack peacekeepers, you attack indirectly the whole population. Those AU peacekeepers were there to protect the 2.5 million displaced in Darfur. Attacking the AU peacekeepers put in danger all of the civilians that were under their care.”



Some believe that deciding on the gravity issue has been stalling the judges’ decision. This comes after the prosecution’s request for the case to be expedited was refused on March 2 because, according to the public redacted statement released by the Pre-Chamber 1, “it raises a number of issues of particular complexity”.



"Gravity may well be one of the complex issues that the chamber is grappling with," Smith said, “but without public access to the confidential documents it is hard to say."



The OTP believes that the delay is related to resolving technical legal problems. IWPR understands that judges must be satisfied that peacekeepers involved are protected persons under the Rome Statute and that the AU base was not a legitimate military objective.



The prosecution has continually pushed for a speedy ruling on the case in order to take advantage of the accused rebel leaders’ apparent willingness to appear before the court.



Amy Stillman is an IWPR contributor in London. Tajeldin Abdhalla Adam, a regular IWPR contributor in Belgium, helped to compile this report.