IJCentral: International Justice Central

NAIROBI, Kenya — A public feud between Kenya’s prime minister and president, whose agreement two years ago to share power ended the country’s worst violence since independence, has many of their compatriots worried that the bloodshed could resume if efforts by the U.S. and African powers fail to cool tensions.

Relations between the two leaders — never strong to begin with — broke down this week over the attempted dismissals of two Cabinet ministers accused of corruption. In the streets of Kenya’s capital, dozens of protesters marched in front of Parliament on Wednesday, demanding an end to corruption and expressing worry about the friction between President Mwai Kibaki and Prime Minister Raila Odinga.

“It’s definitely going to lead to violence because they are not working toward consensus,” Polycarp Gordon Odhiambo, 37, the chief executive of a development group that works in a Nairobi slum, said as he walked among other protesters who held up signs saying “Kibaki Stop Protecting Thieves” and “The Issue is Corruption, Not Politics.”

“From now on, anything can happen,” added Laban Kanyanya Nyongesa, 29, a taxi driver who watched the rally from the edge of a park.

U.S. officials are working behind the scenes to get the two leaders to talk face-to-face and bring down tensions that could rupture the coalition.

The two leaders spoke over the phone late Wednesday during an “extremely cordial” conversation, Salim Lone, an adviser to Odinga said Thursday. The two plan to meet on Sunday, he said.
Tensions escalated last Saturday when Kibaki suspended eight government workers — including two Odinga aides — suspected of corruption. The next day, Odinga suspended two Cabinet ministers after audits of their ministries of agriculture and education uncovered high-level corruption. But Kibaki annulled those suspensions and has since said they were never valid because Odinga had not consulted with him as required under Kenya’s power-sharing deal.

Moses Kuria, spokesman of Kibaki’s Party of National Unity, said that if Odinga or ministers loyal to him withdraw from the government, the president can simply reconstitute the Cabinet.

Legal scholars say such a move by Kibaki would be lawful. But it would risk sending angry Odinga supporters into the streets.

Fears of a return to violence are well founded, especially if the political stalemate goes on for many days, said Ben Sihanya, the dean of the University of Nairobi Law School. But, he said,
Kenyans are also aware that they are under more scrutiny today — by the International Criminal Court and others — after the December 2007-February 2008 bloodshed.

“You cannot just start killing people,” Sihanya said. “You cannot start burning things. People are being more careful than they were before.”

After the December 2007 vote, Kibaki was quickly sworn in as president despite doubts from observers about the vote’s fairness. Odinga supporters took to the streets and clashed with police. The violence took on an ethnic dimension as people were attacked with machetes and even bows and arrows based on their tribal identities. Whole neighborhoods were set ablaze.
Former U.N. chief Kofi Annan, a heavyweight negotiator acceptable to both sides, patched together the shaky coalition government to end the violence. Odinga has asked Annan to step in and mediate the current standoff. In a statement Thursday, Annan called on the two leaders to recommit to a collaborative spirit, to meet with each other and to fight corruption.
Top U.S. officials here are monitoring the dispute closely, are working to defuse the tension and also want the two leaders to meet.

Gus Selassie, a political analyst on Africa at IHS Global Insight, a London-based think tank, said that while Odinga may have exceeded his constitutional powers in trying to suspend the two ministers, Kibaki’s reversal of the decision underscores the disconnect between Kenya’s two leaders.

Selassie said that while Kibaki was first elected president in December 2002 on an anti-corruption platform, he is now reluctant to act against senior figures implicated in scandals.

A PricewaterhouseCoopers audit made public last week shows Kenya lost $26.1 million through corrupt deals that stemmed from a government program to provide subsidized maize for Kenya’s poor. Government auditors uncovered fraud in a program to offer free primary education — two scandals that led Odinga to try to dismiss the Cabinet ministers.

Average Kenyans still want their government to fight graft, but now they especially want their leaders to work together and prevent violence from erupting again.

“We expect this to be resolved,” said Sihanya. “Otherwise the alternative is quite dire for the country.”

source:  The Associated Press

International prosecutors have promised there will be “no impunity” for anyone suspected of taking part in the killing of Guinean activists last September.

The International Criminal Court’s Fatou Bensouda, who is visiting Guinea, told the BBC victims’ families would have justice.

Security forces have been blamed for the killings of more than 150 people at an opposition rally on 28 September.

Senior members of the ruling military junta have also been implicated.

A report commissioned by the UN said Capt Moussa Dadis Camara, who was the junta chief at the time, bore “direct criminal responsibility” for the massacre.

Assassination attempt

The BBC’s Caspar Leighton, in Conakry, says Guineans have high hopes the International Criminal Court (ICC) will bring justice.

But the court cannot arrest people and has to rely on the police in individual countries.

Our correspondent says a loss of power and the prospect of trials could be an unpleasant combination for certain elements of Guinea’s military.

Moving against them will be a stern test for the authorities, he says.

Ms Bensouda, the ICC’s deputy prosecutor, is in Guinea with her legal team seeking assurances justice will be done.

“If the Guinean authorities are not seen to be doing something… [then] the ICC will do it,” she said.

“The bottom line is that there will not be impunity. The victims of these crimes will have justice one way or another.”

In the weeks after the killings, Capt Camara was shot and seriously wounded by an aide who believed the captain was about to blame him for the massacre.

Capt Camara is now in exile in Burkina Faso, and the military chiefs who succeeded him have installed a civilian prime minister and say they are overseeing a transition back to democracy.

The military took over the country in December 2008, following the death of long-time leader Lansana Conte.

source:  BBC News

When one quickly analyzes the plight of the worlds renown brutal leaders, it will come to light that in the last two decades, not a year or two passes by without the radar of justice dragging one (dictator) under an international limelight. Many analysts and pundits have closely followed such unfolding historical events with thoughtful analysis and questions about why dictators are faced with such a plight.

Following such careful analysis, numerous others contended that the evolution of our world around historical trajectories is the only simple answer to the question why dictators end up in disgrace. Such theoretical analysis could be found deeply embedded in the historical artifacts of societal transformations from ancient civilization to modern times.

Using religious doctrines and theories around human history, the annihilation of The Pharaoh and his Army persecuting Prophet Moses and The Jews; the destruction of Pontius Pilate and his Roman Counter Parts for crucifying Prophet Jesus Christ; and the defeat of the Idolaters in ancient Mecca for persecuting Prophet Mohammed (May Peace and Blessings of Allah Be Upon him), are all historical realities that could used in theorizing the modern plight of disgraced dictators around the world.

The most recent international outcry that brought to light the plight of Haiti’s Former octogenarian and ironfisted dictator Baby Doc Duvalier, and Guinea’s short lived erratic dictator, Captain Moussa Daddis Camara are living testaments of the historical artifacts surrounding societal transformations. Both Baby Doc Duvalier and Captain Moussa Daddis Camara were ruthless dictators and tyrants who thwarted justice by oppressing the righteous voices just as the Pharaoh, Pontius and his Roman counterparts, and the Idolaters of ancient Mecca did , when they attempted to cross the righteous voices of the Holy Prophets of God.

Today, as the world awaits the plights of former Liberia Dictator Charles Taylor, Former Yugoslavia President Milosevic and wartime leader Radovan Karadzic, and the former Cambodian Khmer Rouge leaders who are all facing International Criminal or Hybrid courts for war crimes or crimes against humanity, Haiti’s Baby Doc Duvalier and Guinea’s Captain Dadis Camara have successfully penned their names on the list of disgraced dictators on the run worldwide.

In a most recent development, the Swiss government has frozen assets of the family of Haiti’s Former Dictator – a policy move that has gone against a ruling by its own Supreme Court. According to CNN,

The Swiss Federal Criminal Court has already declared the Duvalier family a criminal organization. The seven-member executive that heads the government, said Wednesday it wants to avoid allowing the family to receive the assets—which it said are worth $5.7 million—because the family acquired them by “illicit means.”

The Swiss Court further argued that it will no longer allow Swiss Financial Centers to become the vanguard and backyard for such corrupt and irresponsible leadership around the world. Over the years the Swiss have handed over billions of stolen money by both the Abacha Dynasty of Nigeria, and the Mobuto empires of former Zaire, now Democratic Republic of Congo. In their most recent strengthening of Policy, the Swiss Federal Council warned that:

“In pursuing its policy to avoid allowing the Swiss financial center to become a haven for illicitly acquired assets, the Federal Council has decided to continue the freeze on the Duvalier assets on the basis of the federal constitution.”

The most recent events in the West African State of Guinea-Conakry also brought to light the plight of a short lived and erratic African Dictator, Captain Moussa Daddis Camara. Hailed as a liberator and a hero after coming to power following the death of the country’s decades long Dictator, Lasana Conteh,  the September 28th 2009 Stadium shootings that killed 156 people shifted Guinea Politics to one of Africa’s most complex political nexus. Complications and controversies surrounding the stadium shootings triggered an assassination attempt on Captain Camara by own aide, Lieutenant Toumba Diakite. Even though a Guinean Commission absolved Captain Camara of criminal responsibility, a decision by the International Criminal Court investigating the stadium massacre will bring to light the culpability of the decapitated and convalescing former junta head.

What have we therefore learned from The Tale of Both Haiti’s Baby Doc Duvalier, and Guinea’s former junta chief, Captain Moussa Daddis Camara? This is the good question that the worlds remaining tyrants and dictators must carefully ponder.

In comparing the two tragic political variables, it is important to know that both the regimes of Baby Doc Duvalier and short lived Captain Camara could be characterized with the blatant disrespect for human life. The world has shamelessly watched the Duvalier’s killed over 60, 000 Haitians, robbed the Island nations with millions, only to accord him with a homage to comfortably live in Europe at the expense of the Haitian nation.

On the other hand Captain Camara deceived the world by promising a restoration of Democracy, ending corruption, and fostering national development, when his military led Junta viciously and brutally murdered over 157 innocent citizens, tortured and raped women in a belligerent move of hanging on to power. Other reports indicated that the number of death, tortured and raped under his Junta’s watch far exceeds the numbers reported, not to mention the millions of dollars siphoned under his watch. And yet there continue to be echoes of absolving Camara of Criminal Responsibility. Hopefully the International Criminal Court will redeem our world from such a shamelessness of our times.

Nonetheless, from ancient civilization to modern times, our world has always evolved around such parables. However, only understanding the impact of such evolutionary trajectories on our existence as a people, will our collective quest of becoming a better global community be strengthened? Using justice, honesty, integrity and respect for human life must be our all encompassing tool guiding our actions. And our relations with Dictators and tyrants must be no exception to that. Just as the plight of Haiti’s Duvalier and Guinea’s Camara are brought under the radar of transnational civil society, so must the worlds remaining dictators be confronted along the same parallels. This is so because there are still the likes of Abacha, Mobotu and Samuel Doe across Global Political Leadership Horizons. What else could one say?

By Binneh s Minteh, Former Gambian Army Lieutenant

Guinea’s interim prime minister has appointed a transitional government to lead the nation out of military rule.

Prime Minister Jean-Marie Dore’s 34-member government is to be made up of opposition politicians, trade unionists, members of civil society and military officials, according to a statement broadcast on state television Monday evening.

Dore, appointed by the junta in January after international pressure, is tasked with organizing presidential elections by July.

The junta seized power in December 2008. Internal clashes reached their nadir with the massacre of an estimated 157 opposition protestors last September, although the junta said only 58 people were killed in the incident.

The deputy prosecutor of the International Criminal Court was due to begin a three-day visit to Guinea on Wednesday to see if the court can charge those responsible for the massacre.

Human rights bodies say soldiers shot, stabbed and raped protestors as they broke up the demonstration at a football stadium in Conakry.

A United Nations inquiry found that junta chief Captain Moussa Dadis Camara and other leaders were ultimately responsible for the deaths.

A local investigation blamed an aide, who then attempted to assassinate Camara in December.

Lieutenant Aboubakar Toumba Diakite shot and seriously wounded Camara after apparently discovering he was being set up to take the fall for the massacre.

Camara is recovering from the attack in Burkina Faso and Diakite is still on the run.

When Camara took power in December 2008, after the death of long-term president Lansana Conte, he promised to hold free and fair elections, and originally scheduled the ballot for last month. He also said he would not stand as a presidential candidate.

His decision not to honour his promises sparked the protests.

source:  Times Live

Kampala

Yonas Embye talks without pause for breath. His ideas are fired scattergun-style, revealing insights from his multiple personalities – journalist, torture victim, humanitarian worker, escapee extraordinaire. But his message is clear. “I must express myself,” he says, shifting restlessly. “Sometimes I cannot sleep because I have to get the word out about my colleagues back home.”

Mr Embye is an Eritrean journalist that says he escaped from years in jail, incarcerated along with thousands of independent media workers, former ministers, political activists and minority faith practitioners, according to Amnesty International and other human rights organisations.
Eritrea’s President Issayas Afewerki does not tolerate dissent: He has ruled a one-party State without elections since Eritrea’s Independence in 1993 and Eritrea is the only African country to have no privately-owned news media.

International non-governmental organisation Reporters Without Boarders (RWB) says about 26 journalists and two media workers are currently held in Eritrea, which now ranks worst in the world along with China and Iran.
Human Rights Watch said in a 2009 report that “Eritrea has become one of the most closed and repressive states in the world.”

Embye’s story

Mr Embye has an indefatigable drive to tell his story. He was working as a journalist for Admas newspaper from 1999, writing stories about the growing suppression of an active political, cultural and professional expression that had hoped to flourish after independence. Mr Embye’s focus was the new constitution, which the government refused to publish. “Without a constitution you can’t ensure your rights, or hold anybody to account,” said Mr Embye.

At the end of the 1990s there was some media freedom, but after a devastating military conflict with Ethiopia, and with global attention on the 9/11 attack on New York, Mr Aferwerki clamped down.

In September 2001 several government officials, journalists and other government critics were arrested without warning and Mr Embye says he was caught up in the detentions. “I was on my way to work with my laptop and I was picked up and taken to a prison. I was there for three months. I couldn’t see my family, or lawyers… I was investigated by national security and they tried to make us admit that we were saboteurs against the motherland.”
He says he was tortured.

“Everyday at 5am they would put me in freezing water. They’d tie wood under my knees and hang me upside down; beat my feet and my hands. There was so much shock.” “But I am strong. I never signed,” he said, puffing his chest. “I knew my family would be in danger if I confessed. I also did it for all of the journalism profession.”

Amnesty’s research on Eritrean prisons supports Mr Embye’s testimony, saying prisoners are ‘regularly’ tortured. It says at least one journalist has died in jail. Last month RWB wrote to Manfred Nowak, UN Special Rapporteur on Torture, insisting “the conditions in which Eritrean detainees are held are among the most disturbing in the world.”
In 2005, Mr Embye says he was relocated to another prison in the desert of Western Eritrea where he decided to escape.

Dumped, abandoned

“I told the other prisoners the world did not care because there was no evidence about us. We were the witness and had to tell the outside.” The prisoners systematically used one section of the perimeter wall as a latrine to weaken the concrete and after several months used a spoon and a fork to dig through.

He says he and two companions crossed the desert in three days, dodging sand snakes and scorpions. By luck, they reached the border with Sudan, where Yonas was granted asylum. He spent the next four years volunteering for humanitarian agencies and researching human rights abuses in war-ravaged Darfur.

“I felt human and I wanted to help fellow humans,” he enthuses. But his activities made him vulnerable to persecution from the Sudanese authorities. They were feeling the heat from the International Criminal Court which was mounting a case against Sudan’s president Omar el Bashir on charges of war crimes and crimes against humanity in Darfur, from evidence they’d received from people such as Mr Embye.

So he decided to flee again and travelled to Uganda in November 2009, where he has been seeking permanent asylum. He has just been granted a second three months extension of stay while the government decides upon his fate and has been relying on the good-will of fellow Eritreans and the Catholic Church for food and shelter.

source:  The Daily Monitor

Fouad Hikmat of the Crisis Group says the National Congress Party’s control of the electoral commission and lack of representation for Darfur could be problematic

Campaigning for Sudan’s first multi-party election in 24 years is underway after kicking off over the weekend.

Twelve candidates are running for president in the April 11 election, including longtime leader Omar al-Bashir, who is wanted by the International Criminal Court for war crimes in Darfur.
Fouad Hikmat, the International Crisis Group’s advisor on the African Union and Sudan, said while the April elections are important for Sudan’s democratic transformation, the outcome could be problematic for a number reasons.

“Very clearly Darfur is not being able to play a role in this election, and therefore I will see that the solution for Darfur after this election is going to be problematic,” he said.

Another problem, Hikmat said, is the fact that President Bashir’s National Congress (NCP) controls the national electoral commission.

“There is a lot of accusation that the environment is not free and fair given that the National Congress Party is controlling the National Electoral Commission and it will bring about a majority of a government that has been part of the conflict in Darfur. And therefore the election might not bring stability. On the contrary it might bring a sort of a continuation of violence and grievances after the election,” Hikmat said.

Hikmat said President Bashir would like to win the election to send a message to the International Criminal Court (ICC).

“Specifically Bashir, he’s being accused by the ICC, and that’s why it is extremely important for him to win the elections to give a message that if I was a person that committed crimes against humanity, my people wouldn’t have chosen me,” Hikmat said.

However, Hikmat said President Bashir would be making a false assumption about his legitimacy following the election.

“If he regains his legitimacy based on those grounds, then he would have got an argument to some an extent, although that argument whatever it is, it is not going to wave away a judicial process, and that is the process of the International Criminal Court,” he said.

Hikmat said Bashir could also use the results of the election to legitimize himself over his political opponents, including the Sudan People’s Liberation Movement (SPLM).

“For the SPLM, it is very concerned that the re-legitimization of the NCP which is not based on a fair and free election, might jeopardize the implementation of the remaining provisions of the Comprehensive Peace Agreement,” Hikmat said.

He also said a re-legitimized President Bashir could also have repercussion for Darfur rebel groups.

“As far as the Darfur rebel groups, they think that the re-legitimization of Bashir, given that he is going to argue that look I have been re-elected and therefore what happened in Darfur is not true and might give a sort of legitimate grounding for Bashir to continue not finding a settlement to the Darfur problem,” he said.

Hikmat said if this happens, it would mean that the violence in Darfur would continue because the grievances and root causes would not have been resolved,” he said.

He said if the April election happens in an atmosphere of illegitimacy, the new government and institutions which will be developed to continue the negotiations might not be acceptable by Darfurians, specifically the internally displaced.

At their last meeting in Ethiopia’s capital, Addis Ababa, African leaders reiterated their request for the United Nations to invoke Article 16 which allows the UN Security Council to suspend the ICC prosecutions for a period of 12 months so as to give peace a chance in Darfur.

Hikmat said the African Union’s Panel on Darfur led by former South African President Thabo Mbeki, recognizing the lack of an independent legal system in Sudan has recommended the establishment of a hybrid court system in Darfur.

“As far as the ICC (is concerned), that is up to the Sudanese to deal if they could reach a peaceful agreement somewhere in the future for a truce and reconciliation. But still that will not wave the request of the ICC which is to bring Bashir and other culprits into the process for international judicial accountability,” Hikmat said.

source:  VOA News

February 9, 2010 (KHARTOUM) – Former US President Jimmy Carter today met at the presidential palace in Khartoum with President Omer Hassan Al Bashir, the only sitting Head of State indicted for war crimes and crimes against humanity by the International Criminal Court. The former US leader is on a four-day visit to Sudan to inspect two sets of Carter Center programs: elections monitoring and health care efforts to eradicate Guinea Worm disease.

In statements to reporters following the meeting, Carter said that his talk with the President of the Republic dealt with the elections scheduled for next April. He pointed out that his Carter Center is monitoring the elections and that his meeting with Bashir comes in the context of the Sudanese leader’s capacity as a candidate in this election, the official Sudan News Agency (SUNA) reported.

Carter added that they had received confirmation from the President and the concerned ministers about the security of the electoral process and the work of observers, according to SUNA. The former U.S. president said the meeting also tackled the situation in Darfur.

According to Carter, the international monitors sent by his institute will be “a major partner” to the National Elections Commission (NEC), although they have no authority over the NEC.

“I have been briefed by Sudan’s National Elections Commission (NEC) on progress of the electoral process. I will do my best to support this democratic experience,”, the agency Xinhua reported. He added, “we have a lot of experience, but our authority and our directions are coming from the NEC itself.”

NEC Deputy Chairman Abdalla Ahmed Abdalla appeared alongside Carter at the conference and made some remarks of his own.

The former US president is also scheduled to meet Sudanese First Vice-President Salva Kiir Mayardit and a number of other political leaders.

The US-based Carter Center has been the only international monitoring body in Sudan throughout the elections preparations, but it will be joined by a European Union contingent of more than 100 monitors for the voting period in April.

source:  Sudan Tribune

A witness today told the war crimes trial of Thomas Lubanga that intermediaries of the International Criminal Court (ICC) gave him US$200 as payment for convincing his nephew to give false testimony against the accused.

The boy subsequently testified as a prosecution witness and claimed that he was a former child soldier in Lubanga’s militia group, according to evidence heard today and last week. The boy’s father was the first witness called by the defense, and he told court that his son who never served in any armed group had lied to court that he was a fighter with the Union of Congolese Patriots (UPC), the group Lubanga is alleged to have led.

Today’s witness, who started giving evidence last week, said that for the US$200 he was given, he also had to give ICC officials permission to take x-ray images of the boy to help determine his age. In addition, he had to lie to the court’s officials that he knew Lubanga, and that he was aware that UPC had used child soldiers.

Describing himself as a farmer in the eastern Congolese town of Bunia, the witness told the trial presided over by Judge Adrian Fulford that the ICC officials whom he met during 2007 did not realize that their intermediaries had paid him.

He said he met the ICC officials and their intermediaries on two occasions, in the town of Beni in Ituri province in eastern Congo, and in the country’s capital Kinshasa. “They were three white persons, and one black person. The second time it was two white persons and two black persons,” he said of the meetings.

Defense counsel Catherine Mabille asked the witness why he told them he knew Lubanga yet in court he said he did not know him.

“I was acting, saying what had been concocted [by the intermediaries]. It was a money issue. The white people didn’t know this, but we the blacks knew. I was told what to tell them,” he said.

The boy who would later testify as a prosecution witness also met these officials, the witness said. He added that by the time he met the ICC officials, he had already agreed with the intermediaries that the boy would consent to whatever ICC officials requested him to do.

This witness testified without protective measures such as face and voice recognition, and provided his name to the court. But he gave some of his testimony in closed session. The first defense witness asked for protective measures although at first he had indicated that he would testify in public view.

The evidence given by these first two defense witnesses has supported Mabille’s claim that she would provide evidence to show that all witnesses who testified as former child soldiers were bogus, and that intermediaries of the Office of The Prosecutor (OTP) fabricated evidence and coached prosecution witnesses.

Today’s witness said while the ICC’s intermediaries initially promised that they would relocate him to neighboring Tanzania or move him to another Congolese town, they subsequently threatened to imprison him if he “betrayed” them.

Life had got harder for him when his family and neighbors learnt about his dealings with ICC officials and threatened to harm him, he said. He said his wife deserted their home and he himself fled his house and took refugee in the bush for fear of being attacked.

“People wanted to hurt me, people from my own family,” he said. “What we did was not right because we almost sold someone’s child… they gave us 200 dollars but that was for food. It wasn’t even enough to buy him clothes.”

Prosecutor Nicole Samson asked who in his family wanted to harm him.

“Even my big brothers put pressure on me…  I was told that I was selling people, or that I was taking money to betray people,” he said.

The witness said he subsequently went to the village chiefs to ask for forgiveness. The chiefs put him in touch with the UPC secretary-general, who then advised him to talk to Lubanga’s lawyers.

Samson asked the witness whether UPC officials had paid him money to testify as a defense witness.

”They categorically said no,” the witness replied. “Personally I asked for money and they said no… They said they were not thieves and were not wishing to buy my testimony.”

source: The Lubanga Trial

You showed us the crime but not the criminal – is the basic message from the ICC’s Pre-Trial Chamber I to the Prosecutor.

At 103 pages their actual decision is significantly more detailed than that, but in essence the judges decided not to confirm the charges against Abu Garda not because they do not think that the attack on Haskanita did not happen, and not because they do not think that was a crime - but simply because they did not find substantial grounds to believe that Abu Garda himself played a role in the attack.

I will go into a brief summary of the decision below for those interested in the legal reasoning, but first a quick two (and a half) points of note.

As a public relations matter this is a disastrous decision for the Court vis a vis the Sudanese government. Until today this case – the only one of the Darfur cases to date that has gone to the confirmation of charges stage – could be used by ICC advocates as the counter-argument to Khartoum’s propaganda about the ICC being a tool of western imperialism focused on attacking the Sudanese government. A case against a rebel showed even-handedness on the part of the Prosecution. It was the kind of thing people like me could use in situations like last week when I had to debate one of the Sudanese government’s lawyers on Al Hurra television. As he claimed that the ICC (and indeed every organization based in the west) only ever spoke about government crimes and never spoke about crimes committed by rebels, I asked why, if that was the case, was there a prosecution of Darfuri rebels in The Hague? He replied that the rebel case was a farce. One can readily imagine how rapidly today’s decision will be used to feed such a view.

Secondly, it is probably important to point out, in particular to the families of the peacekeepers killed in the attack on Haskanita, that today’s decision does not necessarily signal the end of a prosecution for the attack on the peacekeeping mission.

As you will see if you can be bothered reading the summary below, the Chamber did not refuse to confirm the charges because there is not a serious crime against the peacekeeping mission to be answered for; rather it declined to confirm the charges due to the lack of evidence pinning Abu Gardu to the crime. The Chamber explicitly left the door open for the Prosecution to provide more evidence in the future, and there is every reason to think – especially given the lengths the Chamber went to in order to determine that the attack on Haskanita was indeed a crime – that the Chamber would be happy for the case to go forward if the Prosecution presented better evidence regarding the alleged perpetrator/s of the crime.

And a final little note . . . I want to propose Judge Tarfusser for a Champion of Resource Conservation award. At a total of four pages it’s worth reading his Separate Opinion for yourself. But to paraphrase: Why did you idiots spend 100 pages of time and energy on a whole bunch of things you did not need to address? (my bad re. flippancy of initial paraphrase, see comments section)  [” . . . the Prosecutor’s failure to establish a proper connection between a given event and a given individual makes any analysis of the presence of the objective and subjective elements of criminal responsibility a matter of mere academic debate. [...]  There is no point in wasting precious judicial resources in making determinations which, however impeccable and sophisticated from a theoretical and legal standpoint, serve no purpose in properly adjudicating the case at hand.” (Separate opinion of Judge Tarfusser, para. 7 (i, ii)) ]

His argument, correct in my view, was that because the Chamber decided there were not substantial grounds to believe that the accused before them was actually involved in the attack, there was no reason for the Chamber to wade into whether or not that attack constituted a crime under the Rome Statute. Tarfusser also raises the interesting question of why the Majority decided to assess whether a crime occurred as per Count 2 of the charges (attack on a peacekeeping mission) but not whether crimes had actually occurred regarding Counts 1 and 3. My guess? In light of the spirited defence Abu Garda’s lawyer put on to argue that the AMIS base at Haskanita had lost its protected status and become a legitimate military target by the time of the attack, the Chamber wanted the message to the AU and all actors in Darfur generally to be loud and clear – In the view of this court AMIS deserved protection under the law.

Ok – to sum up the nuts and bolts of the decision:

The Prosecution charged Abu Garda with three war crimes:

#1 - violence to life (Art. 8(2)(c)(i));

#2 – intentionally directing attacks against persornel, installations, material, units and vehicles involved in a peacekeeping mission (Art. 8(2)(e)(iii));

#3 – pillaging (Art.8(2)(e)(v))

The mode of liability charged was co-perpetration or indirect co-perpetration (Art. 25(3)(a)) (without excluding other possible modes).

After all the background and procedural issues the decision jumps straight to the second count, of an attack on a peacekeeping mission. The decision covers the three agreed upon foundations of a peacekeeping mission (consent of the parties; impartiality; non use of force except in self-defense), and references the recent jurisprudence of the Special Court for Sierra Leone on this point. But what really counts is when it gets to whether the Haskanita base was, at the time of the attack, no longer impartial.

This goes to one of Abu Garda’s lines of defence. His first line of defence – a winner as it turned out – was, I wasn’t there. His second line of defence was – even if you say I was there, this wasn’t a crime. His lawyer argued that by virtue of allowing a Sudanese government officer to provide intelligence on rebel positions from the Haskanita base, the base had lost its protected status and become a legitimate military target. The court finds that regardless of whether or not the Sudanese government officer was providing the government with this intelligence at an earlier point, there was no such officer there on or around the period that the base was attacked.(see para. 147)

Having established that the attack did occur and that it was a crime, the court then goes to the question of whether there are substantial grounds to believe Abu Garda is criminally responsible.

According the Prosecution, Abu Garda was party to a common plan to attack the Haskanita base. Thus the first question the Chamber addresses is whether such a plan existed. The Prosecution argued that the plan was formulated at two meetings immediately prior to the attack. The Court finds that inconsistency of witness statements, combined with the Prosecution’s reliance on summaries from anonymous witness (which are permitted but assigned a lesser probative value by the court), leads to a conclusion that there are not substantial grounds to believe that Abu Garda was actually present at either of the two meetings.

Nevertheless, the court notes that the law permits the existence of a plan to be inferred from subsequent coordinated action, and seeks proof of this through evidence that either Abu Garda issued orders to attack Haskanita, or that he himself directly participated in a joint attack on the base.

The court concludes there are no substantial grounds to believe that Abu Garda issued orders because it finds there are no substantial grounds to believe that he was even in a position to issue orders on the date of the Haskanita attack. (see para. 216) The Court was not satisfied that the splinter group of JEM (called JEM-CL) that was formally announced in October 2007, was in existence and under Abu Garda’s control at the time of the attack in September, as the Prosecution alleged.

Moreover the Court also could not find substantial grounds to believe that Abu Garda was directly involved in the attack himself (see para. 230) (In one of the more damning lines of the judgment the court states that during the confirmation hearing the Prosecution “both states that Mr Abu Garda directly participated in the attack and that he did not.”)

All told, the Court failed to find substantial grounds to believe that Abu Garda himself was involved in the attack on the Haskanita base in any way at all. As the charges of murder and pillaging were related to the attack on the base, this finding meant there was no need for the court to consider the other charges.

source: Bec Hamilton

The ICC’s decision that Omar al-Bashir may be charged with genocide has played into the hands of the Sudanese regime.

Yesterday, the international criminal court decided that Sudan’s president, Omar al-Bashir, may be charged with genocide. Bashir has a knack for being in places that embarrass the court when such rulings are made. Last March, when a warrant for his arrest for war crimes and crimes against humanity was issued, he was in front of TV cameras in north Darfur. Yesterday, he was in Qatar meeting the emir for talks on the Darfur peace process – making a mockery of the arrest warrant as he travels freely and enjoys the support of his Arab and African brethren.

Despite my belief that Bashir may be guilty of crimes against humanity, not only in Darfur but in other parts of the country, I cannot help but think that the ICC has over-reached itself in this instance. The timing was again unfortunate, with the first Sudanese elections in 24 years due in April and the country holding on to a fragile peace in preparation for a referendum in 2011 when the south will vote on secession.

The decision has played right into the hands of the authorities who declared that the ruling was made in order to “stop the efforts of the Sudanese government toward elections and a peaceful exchange of power”. No doubt as much political capital as possible will be made of this during Bashir’s electoral campaign. Another presidential candidate, Sadiq al-Mahdi, has declared that if he is elected he will not hand over Bashir to the ICC reflecting what he believes is the national electorate’s appetite for the punitive process.

The charge of genocide, demanded by Luis Moreno-Ocampo, was left off the original warrant but could now be re-instated. The logic behind the court’s ruling seems vague and obfuscated in technicalities. A statement from the court yesterday said the pre-trial chamber had applied an “erroneous standard of proof” when considering the original arrest warrant, and Ocampo declared that he has “fresh proof of al-Bashir’s genocidal intentions”. Ocampo’s dogged pursuit of the charge smacks of grandstanding in response to international indifference to the arrest warrant and suggests that there is a desire to flex muscles in the knowledge that it is unlikely Bashir will ever be tried. This posturing not only brings into question the motivation behind the appeal, it also undermines the whole process and seriously tests the court’s credibility while exposing structural and procedural weaknesses.

It is not a simple leap of logic; genocide is not merely an escalated form of human rights abuse. I fear that the court may be giving Bashir and his regime too much credit. Could he and his junta be guilty of gratuitous crimes against humanity in order to consolidate power and dispatch challenges to authority? Yes. But an organised, deliberate and concerted effort at ethnic cleansing diverts too much time and resources from a government much more concerned with the business of maintaining Khartoum as a fortress and securing strategic access to resources and oil-rich areas in the south.

Moreover, different ethnicities have co-existed in Sudan for decades with rebellion only erupting in response to marginalisation from the centre, as opposed to racial tension. This is a legacy of centralised rule in the north and a lack of concern for the nation’s peripheries which are only dealt with when grievances erupt. To project a genocidal nature on to these dynamics stereotypes and simplifies in the extreme. In conversation with family and friends in Sudan yesterday, most seemed unclear about the concept of genocide, which is so absent from the country’s political culture.

It does not help that the conflict in Darfur is relatively dormant while increasing casualties as a result of clashes in the south are drawing attention away from the west. In addition, last October, the US – historically the Sudanese government’s most robust disciplinarian, chose to take a softer line when Obama opted to engage with the Khartoum regime, a volte face after his uncompromising pre-election rhetoric.

The ICC has no mechanism of enforcement, so support for its rulings is only likely to be for moral rather than pragmatic reasons; Moreno-Ocampo himself implies this when he states that the reason he pursued the appeal was the he wanted the world to “know what happened”, believing “it is important for the victims”. Unfortunately, this latest move alienates those who supported the initial arrest warrant and further weakens international resolve to condemn Bashir.

Within Sudan, it makes the ICC appear even more out of touch and irrelevant as Bashir and his National Congress party gear up for parliamentary and presidential elections which, if Bashir wins, will further reinforce his legitimacy, strengthen his mandate and consign the ICC to even further obscurity.

source:  The Guardian