Global Policy Forum

Belligerent Khartoum Makes A Bid to Undercut The ICC's Jurisdiction.

By Katy Glassborow*

Sudan has announced that it will try three of its citizens on charges relating to crimes in Darfur, in an apparent attempt to defuse the challenge created by the decision of the International Criminal Court to name Sudanese officials as part of its investigation into war crimes in the region. At the same time, Sudanese papers have published government statements vowing to "slit the throats" of anyone who apprehends their countrymen on the ICC's after the court's Chief Prosecutor Luis Moreno-Ocampo revealed evidence on February 27 which could lead to arrest warrants against former interior minister Ahmad Muhammad Harun and Janjaweed militia commander Ali Muhammad Ali Abd al-Rahman, also known as Ali Kushayb.

ICC prosecutors say they have collected evidence, over 21 months of investigations in 17 different countries, that Harun - a close associate of President Omar al-Bashir and currently Minister of State for Humanitarian Affairs - and Kushayb committed 51 alleged crimes against humanity and war crimes, including murder, torture, rape and other forms of sexual violence. President al-Bashir refuses to accept the ICC's jurisdiction over any crimes committed in Darfur, and is adamant that his country is willing and able to investigate and prosecute its own suspects to an internationally acceptable standard.

Judge Richard Goldstone, former chief prosecutor at the United Nations' international criminal tribunals for Rwanda and the former Yugoslavia, emphasised that the ICC derived its jurisdiction from the UN Security Council, and that this decision is binding on all member states including Sudan. If Sudan continues to violate the relevant Security Council resolution, it will be incumbent on the top UN body to take appropriate steps to compel it to comply. The Sudanese authorities have named Kushayb as one of the three men scheduled to stand trial imminently in the national-jurisdiction court in the west Darfur regional capital of Geneina. The other two are security services captain Hamdi Sharaf ul-Din, and Abdul Rahaman Dawood Humaida. It was not stated whether Humaida is a member of one of Darfur's rebel groups, the Sudanese armed forces, or the government-backed Janjaweed. The Janjaweed militias are accused of widespread abuses in Darfur. Despite repeated denials by officials that the Sudanese authorities are in any way associated with the Janjaweed, Moreno-Ocampo told ICC pre-trial judges that there are reasonable grounds to believe Harun and Kushayb acted together with the common purpose of attacking civilian populations in west Darfur between 2003 and 2004.

An estimated four million people currently benefit from aid provided by international aid agencies and the UN in Darfur, where civilians are calling on the world community to disregard what they describe as posturing and intimidation by the government in Khartoum. Some 200,000 to 400,000 people have died in Darfur since violence erupted in 2003, with two million people forced to leave their homes for IDP (internally displaced persons) camps and another 235,000 fleeing to refugee camps in neighbouring Chad.

Many commentators see the decision by Sudan's government to put the men on trial, on charges that have yet to be specified, as a blatant effort to claw back jurisdiction from the international court, after the Darfur situation was referred to The Hague by the UN Security Council in March 2005. Human rights lawyer Salih Mahmoud Osman, based in Khartoum, told IWPR that survivors of what the United States government has described as genocide in Darfur are confused by Moreno-Ocampo's announcement - they are unable to understand why only two men have been named as potential defendants in a war crimes trial. The chief prosecutor said he took evidence from 100 witnesses, but Osman said that survivors "cannot believe this evidence only identified and implicated two people for the crimes".

Leslie Lefkow, the lead author of a Human Rights Watch report that called for war crimes investigations into 22 people, said that "their [Darfur people's] government has betrayed them and [has] been primarily responsible for massive crimes against them, and far from acknowledging, they are denying and minimising the events". Human Rights Watch and other watchdog groups say that Harun and Kushayb represent merely the tip of the iceberg of what has happened in Darfur, and that Moreno-Ocampo needs to initiate prosecutions against a second tranche of higher ranking individuals. Osman said that some Darfur residents are calling for those who they believe masterminded the catastrophe from Khartoum to be brought before the Hague-based court.

Deirdre Clancy, co-director of the New York- and Kampala-based International Refugee Rights Initiative, told IWPR it has been difficult to document the level of evidence necessary to follow the trail to the highest chain of command, because Khartoum denied ICC prosecutors permission to enter Darfur to pursue their investigations. But Clancy said Harun was an important bridge between those higher up and those on the ground. "Mr Harun is close enough in the inner circle to cause tremors," she said.

The ICC is not the only international body that has struggled to investigate events in Darfur. For example, a recent UN Human Rights Council fact-finding mission to Darfur had to be cancelled because the Sudanese government refused to issue visas to the five-strong team.

Before recommending that the UN Security Council refer the Darfur case to the ICC in 2005, a special UN commission of inquiry said acts no less grievous than genocide were taking place in Darfur, and named 51 individuals whom it recommended should be investigated. Osman said this recommendation raised the hopes of Darfur residents who felt that international justice provided the best chance for perpetrators to be brought to justice and to bring an end to the violence.

Many Darfuris have become disillusioned by the international community because so many UN Security Council resolutions relating to the violence have not been implemented. "Survivors hear tough words about the government of Sudan from the international community, but no acts have been seen to be taken," said Osman. "There is gossip about international politics being behind the fact that some names were not revealed." That "gossip" focuses on the possibility that the ICC prosecutors have made compromises that let high-level perpetrators off the hook so as to avoid a major diplomatic falling-out with Khartoum.

Judge Goldstone told IWPR that Harun and Kushayb held sufficiently senior positions to fall within the mandate and terms of the ICC's founding 1998 Statute of Rome. "I feel confident that they are the most senior people against whom ICC prosecutors have evidence," Goldstone said. "The failure to name more senior people at this time does not arise from a political decision taken by the prosecutor, but [is] a question of the evidence available to him."

Clancy said the Sudanese case needs to be handled carefully because there is a distinct possibility of the Sudanese state "splitting into two in the next few years, so there are huge implications for the future of the Sudan". She added that Moreno-Ocampo will "certainly be aware of the political implications of his decisions".

Presenting evidence against a sitting head of state such as Sudan's al-Bashir or against other senior leaders is a very serious step - and Sudan's justice minister Mohamed Ali al-Mahdi is adamant that the ICC has no jurisdiction to try any Sudanese national on any charge. Al-Mahdi has strongly defended the legitimacy and capabilities of the Special Criminal Court on the Events in Darfur, SCCED, specially set up by the Khartoum government a few days after the ICC's prosecutor launched investigations into Darfur.

The SCCED's mandate has been widened to include jurisdiction over crimes under international law, but many human right organisations dismiss the SCCED as a charade which has prosecuted only a handful of cases, mainly involving cattle theft and other petty crimes, without any serious intention to hold individuals accountable for grave crimes. Crucially, al-Bashir's government has legislated to grant immunity to all members of the armed forces. Lefkow said there has been no genuine willingness to launch effective prosecutions against those accused of planning and coordinating attacks on the ground in Darfur. Cases dealt with by the SCCED have been minor. "When military were involved, they were later acquitted," she said.

As part of his 27 February evidence, Moreno-Ocampo told the ICC's pre-trial judges that during an attack by Sudanese regular forces and the Janjaweed on Arawala, a Darfur village of 7,000 people, soldiers burnt every hut and forced all surviving inhabitants to flee. In the town of Mukjar in western Darfur, Moreno-Ocampo said the Sudanese armed forces and the Janjaweed carried out executions of civilians between 2003 and 2004. On one occasion, he alleged, they loaded 32 men into a convoy of Land Cruisers and took them to a stream bed to be murdered. "The shooting lasted for about ten minutes," he said. "A short while later the vehicles returned [to Mukjar] empty. The next day, some women found 32 dead bodies in the bushes."

Moreno-Ocampo said the ICC evidence was "not a judgement on the Sudanese justice system as a whole", and that he has checked to ensure that Khartoum has not investigated the same crimes he intends bringing up in The Hague in Kushayb's case. Judge Goldstone argued that the Sudan government is now obliged to send a mission to The Hague to argue that the ICC has no jurisdiction on the grounds that a Sudanese court is investigating Darfur crimes. "If they do not appear [in The Hague] to object, the ICC will have to continue its investigations and eventual prosecutions," he said.

From Khartoum, human rights activist Salih Mahmoud Osman told IWPR it would be a "disaster" if the ICC backs down on Darfur. "The government of Sudan would be encouraged to go on establishing the genocide they have started," he said. So far, Moreno-Ocampo is asking pre-trial judges to issue summonses, not final indictments, against Harun and Kushayb to ensure their initial presence in court.

Moreno-Ocampo told pre-trial judges that ensuring that Harun and Kushayb appear is a major challenge, and that if arrest warrants are issued, primary responsibility will rest with Sudan "either to take steps to serve the summonses or to arrest the individuals". He added that Khartoum has both a legal responsibility to facilitate the appearance of the individuals, and the capacity to do so.

Even though Sudan has not signed the ICC's founding statute that created the ICC, it is subject to UN Security Council decisions. Importantly, because Darfur was referred to the ICC by the Security Council, chapter seven of the UN charter allows for punitive measures if Sudan refuses to cooperate. Judge Goldstone said everything depends on the Security Council showing the political will to support the ICC through possible economic sanctions and embargoes if Khartoum fails to cooperate. "It [the Security Council] is under both a moral and a political obligation to do so, and if it fails in this regard, it will weaken its own credibility and authority," concluded Goldstone.

About the Author: Katy Glassborow is an IWPR reporter in The Hague.