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Sudan: Justice Minister Discounts ICC; ICC Investigators Visit Khartoum

08 Feb 2007

Dear All,

Please find below information on recent developments related to the
International Criminal Court's investigation of Darfur, Sudan:

A. SUDAN JUSTICE MINISTER DISCOUNTS ICC: Justice Minister Mohammed Ali al-Mardi
has reiterated the Sudanese government's claim that it can better handle
prosecutions of crimes committed in Darfur than the ICC. "We as a government are
willing and able to try all perpetrators of offenses in Darfur, and for this
reason the ICC has absolutely no right to assume any jurisdiction," said Justice
Minister Mohammed Ali al-Mardi. The article quotes Suleiman Baldo, a Sudan
expert at the International Center for Transitional Justice.

B. ICC INVESTIGATORS VISIT KHARTOUM: The Justice Minister's remarks coincide
with ICC investigator's visit to Khartoum. Paradoxically, the Suna News Agency
quotes the Justice Justice Muhammad Ali Al-Mardi as having stated a few weeks
ago that the government of Sudan had no objections to the ICC visit. The Sudan
Tribune refers to an article by the Sudanese daily al-Ray al-Aam newspaper about
the ICC visit, reporting that the ICC team conducted meetings with officials in
the foreign ministry and the Ministry of Justice and that the ICC team will
remain in the country for an indefinite period of time. The article also refers
to remarks by Sudanese ambassador to the Netherlands Abu Al-Kasim Abdelwahid.

C. UN HUMAN RIGHTS COUNCIL FACT-FINDING MISSION: The Suna News Agency reports
that the Director of Khartoum International Centre for Human Rights, Dr. Ahmed
Al-Mufti, expected the government to begin preparations for meetings with a
delegation of the Human Right Commission in the coming days. Dr. Al-Mufti
believed that the government would focus on issues including its ability to
conduct prosecutions domestically.

D. U.S. POSITION ON DARFUR AND THE ICC:
(1) Several speakers made reference to the ICC during their testimonies before a
recent Hearing of the Senate Judiciary Subcommittee on Human Rights and the Law
on "Genocide and the Rule of Law", including by Romeo Dallaire and Don Cheadle
as well as several U.S. Senators;
(2) In a Newsweek interview, George Clooney answered a question on the ICC's
investigation in Darfur, noting "It is rather astonishing that the United States
does not play ball with the ICC, considering our country was the beacon of the
idea of an international criminal court. I really like what the ICC is doing."
(3) A poll by Greenberg Quinlan Rosner Research shows that 53 per cent of
respondents think that the United States should help the ICC by sharing
intelligence about crimes in Sudan.

E. COLUMNS, OPINIONS, and EDITORIALS: excerpts from several columns and
opinions, including an op-ed by Nick Grono and David Mozersky from the
International Crisis Group demonstrating the role of the ICC in bringing
accountability to Sudan and countering recent arguments made in the Washington
Post op-ed by Stephen Rademaker.

Please take note of the Coalition's policy on situations before the ICC (below),
which explicitly states that the CICC will NOT take a position on potential or
pending situations before the Court. The Coalition, however, will continue to
provide the most up-to-date information about the ICC.

Warm Regards,
Esti Tambay
Information and Analysis Officer
Coalition for the International Criminal Court

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A. SUDAN JUSTICE MINISTER DISCOUNTS ICC

1. Associated Press (via International Herald Tribune), Alfred de Montesquiou,
"Sudanese justice minister: let Sudan prosecute Darfur crimes itself," 31
January 2007
http://www.iht.com/articles/ap/2007/01/31/africa/AF-GEN-Darfur-Justice.php

"The Sudanese can do a better job prosecuting crimes in Darfur than anyone else,
Sudan's justice minister said Wednesday, asserting that international courts
have no valid reason to investigate suspects in the area.

Justice Minister Mohammed Ali al-Mardi made the assertions as a team from the
International Criminal Court was in Khartoum, Sudan's capital, to pursue
investigations into what the United Nations and others describe as war crimes
and crimes against humanity in the vast area of western Sudan.

"We as a government are willing and able to try all perpetrators of offenses in
Darfur, and for this reason the ICC has absolutely no right to assume any
jurisdiction," Justice Minister Mohammed Ali al-Mardi said in an Associated
Press interview. Al-Mardi declined to comment on specifics of the ICC mission in
Khartoum, the fifth visit by a delegation from the court.

Some top Sudanese officials are believed to be on the list of suspects that the
United Nations Security Council handed to the ICC in 2005 for it to investigate.
Many observers believe that Khartoum's fierce rejection of a planned U.N.
peacekeeping force to deploy in Darfur is linked to the government's fears these
peacekeepers would help chase down war crime suspects.

In The Hague, where the court is based, officials said they would not comment on
the investigation. But they confirmed that ICC prosecutor Luis Moreno-Ocampo
intended to present his first cases to judges in February.

Sudan is not a party to the Rome statute that governs the ICC, and the
international court could only intervene if Khartoum was refusing to investigate
the allegations itself, al-Mardi said. The minister pointed to the three special
courts created by the Sudanese government in Darfur to prosecute crimes. "Our
judges are qualified, experienced and impartial," he said. "They've passed
sentences of imprisonment and of capital punishment against civilians, and even
against the military, for crimes committed in Darfur." [...]

Human Rights Watch and other international rights watchdogs say Sudan does
little more than "pay lip service" to prosecuting perpetrators of atrocities in
the region. The wide gap between what aid groups report in Darfur and what
Sudanese courts have achieved illustrates this. [...]

"Allegations that the government has been arming or masterminding militias known
as the janjaweed are absolutely false," al-Mardi said. He said armed groups of
mostly Arab tribesmen in the region were part of regular army forces, not
militia, but conceded that "maybe other people misrepresent themselves by
wearing police or army uniforms to commit crimes." "This is human weakness, it
happens everywhere, not just Darfur or Sudan," he said.

Like other high-ranking government officials, al-Mardi says the violence
plaguing Darfur is not ethnic strife, but stems from rebels exploiting the
traditional clashes between mostly nomadic cattle herders and sedentary farmers
who compete for the region's scarce resources.

The minister says only local courts made of tribal elders and village leaders
can make rulings legitimate in the eyes of the people using traditional means
such as blood money paid by perpetrators to a family's victim in compensation of
crime. "The native administration knows the customs and traditions, we rely
heavily on them to solve problems," al-Mardi said.

Suleiman Baldo, a Sudan expert at the International Center for Transitional
Justice, a New York-based rights group, says this system is far gone. Like many
other observers, Baldo says the government massively armed the Arab tribes in
Darfur, creating the conditions for an ethnic cleansing that has displaced
millions but also destroyed the balance of power between tribes - and hence the
legitimacy of traditional courts. "It is criminally disingenuous of the
government to say it relies on traditional justice, because its policies have
destroyed that system," Baldo said in a phone interview.

He said the Sudanese judiciary was only going after "the foot soldiers" of the
violence in Darfur, and had shown no sign of investigating the "highest circles
of power" where the campaign was planned. "The ICC, by its mandate, will
prosecute only at the high levels, it will remain complimentary to what Sudan's
judiciary achieves," he said. [...]

While many activists await the ICC prosecution's finding, Baldo said only
justice handed down at the local level will pacify Darfur, because the absence
of any form of accountability is at the root of the violence. [...] "The entire
region is on the verge of collapse," Baldo said. "The government has a
historical responsibility to fix what it created before it is too late.""

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B. ICC INVESTIGATORS VISIT KHARTOUM

1. Sudan Tribune, Wasil Ali, "ICC fact-finding mission arrives to Sudan," 30
January 2007
http://www.sudantribune.com/spip.php?article20022

"A team of investigators from the International Criminal Court (ICC) has arrived
in Khartoum on a fact finding mission on the national proceedings relating to
Darfur crimes.

The Chief prosecutor Luis Moreno-Ocampo [...] added that submitting his first
Darfur case to the ICC judges is pending the report that will be submitted by
his team visiting Khartoum in January.

The Sudanese daily al-Ray al-Aam newspaper reported that the ICC team conducted
meetings with officials in the foreign ministry and the Ministry of Justice.

The ICC team will remain in the country for an indefinite period of time during
which they will conduct a comprehensive assessment of the special criminal
courts on Darfur and investigations by the government into the crimes committed.
The team will try to ascertain the extent and seriousness Khartoum to try the
perpetrators of the crimes in Darfur.

The Sudanese ambassador to the Netherlands Abu Al-Kasim Abdelwahid told al-Ray
al-Aam that the visit of the ICC team comes as mentioned in the chief
prosecutor's latest report to the Security Council in December.

He pointed out that the same team has previously visited Sudan several times and
that they will submit a report to the ICC prosecutor outlining all the
developments in the national courts investigating Darfur war crimes.

Despite Sudan's opposition to the court, it allowed ICC investigators to visit
Khartoum last year and interview two senior government officials."

2. Suna News Agency, "Sudan not opposed to visit by ICC investigators," 26
January 2007
(link not available)

"Minister of Justice Muhammad Ali Al-Mardi, said the government of Sudan has no
objection on the visit to Sudan by an investigation team from the International
Criminal Court [ICC] in the coming days.

Speaking in an interview with Sudan News Agency, Al-Mardi said the visit was
proposed by the Chief Prosecutor of the ICC, Mr Luis Moreno-Ocampo. The minister
expressed Sudan's readiness to answer all the queries to be raised by the ICC's
investigators as well as embarking on useful discussions with them to ensure
that their reports are fair and would not infringe on the sovereignty and
dignity of the country.

He explained that Sudan will update the investigation team on the proceedings of
the Sudanese Judiciary and prosecutors' offices in Darfur against the
perpetrators of any violations of international humanitarian law and human
rights abuses.

In this regard, the minister affirmed that Sudanese Judiciary is well-known for
its justice, independence and efficiency without favouritism, partiality or
prejudice in implementing the law."

**********************************************
C. UN HUMAN RIGHTS COUNCIL FACT-FINDING MISSION

1. Suna News Agency (via UPI), "Dr. Al-Mufti: Western Countries Aim to Achieve
Hidden Objectives Against Sudan Via Human Rights Issue," 7 February 2007
http://www.upi.com/Arabia2000/view.php?StoryID=20070207-518139-9886-r

"The Director of Khartoum International Centre for Human Rights, Dr. Ahmed
Al-Mufti, expected the government to begin preparations for meetings with a
delegation of the Human Right Commission in the coming days.

Dr. Al-Mufti believed the government to focus at the coming meetings on
affirming the determination and the capability to bring to justice those who
violate the human rights in Darfur, and to convince the human rights committee
that the joint work of the government and African Union is sufficient to protect
the civilians in Darfur.

In a statement to SUNA Wednesday, Dr. Al-Mufti regarded the insistence of the
Western countries to hold an urgent meeting for the Human Right Council in order
to decide on sending the committee to Sudan, as a step that reveals their
intention to achieve certain objectives. [...]

He explained that the Western countries aim at building up a case and
proceedings to support the perspective of the International Criminal Court with
respect to the issue of Darfur, and to support the Security Council resolution
1706 on deployment of international forces in Darfur."

2. Suna News Agency, Shawrani O. Al-Hassan, "Fact Finding Committee of UN's
Human Rights Council Assigned for Investigating Facts in Darfur," 8 February
2007
(link not available)

"The facts findings committee of the UN's Human Rights Council is expected to
arrive at the country within the few coming days to investigate situations in
Darfur region as has been decided by the Human Rights Council in its recent
meeting in Geneva. The mission comprises six members including the UN's Special
Rapporteur. [...]

The Director of Khartoum International Centre for Human Rights Dr. Ahmed
Al-Mufti expects that the government preparations for the mission would
concentrate on two main points: The first would affirm the government's
capability and desire to punish those violating human rights in Darfur while the
second point would explain that preparations adopted by the government and the
African forces in the region besides the logistic support of the UN is enough
for protecting civilians rights in Darfur.

Dr. Al-Mufti added that the western countries insisted for the visit of the
mission to realize certain goals serving the interests of those countries, which
are behind the issuance of the Security Council Resolution 1706 that calls for
deployment of international forces in Darfur and the submission of the issue of
human rights in Darfur to the International Criminal Court. [...]"

**********************************************
D. U.S. POSITION ON DARFUR AND THE ICC

1. Senate Judiciary Subcommittee on Human Rights and the Law, Hearing on
"Genocide and the Rule of Law," 5 February 2007
All testimonies from this hearing are available at
http://judiciary.senate.gov/hearing.cfm?id=2521

TESTIMONIES
- Lieutenant General The Honorable Romeo A. Dallaire: "I still believe
absolutely that the most legitimate body to authorize humanitarian intervention
remains the United Nations Security Council. Like others, the Security Council
has not been idle. In more than half a dozen resolutions - some admittedly
watered down under threat of veto - the Security Council has [...] authorized
war crimes investigations by the International Criminal Court (1593) [...] . Not
a single one of these commitments has been enforced. [...] Similarly, the
establishment of criminal tribunals and of the ICC - which, promisingly, was
recently given the jurisdiction to investigate charges of war crimes in Darfuris
sending the message that the age of impunity is over."
- Don Cheadle: "We need to support the ICC in their efforts to prosecute the
perpetrators of these crimes against humanity by sharing information and
declassified intelligence vital to their investigations so that when charges are
made, they stick. In the four years that this conflict has been raging out of
control, not a single senior member of the Khartoum government has been
punished. The UN Security Council, the EU, and the current administration are
skilled at threatening to punish those who commit atrocities and obstruct
peace-building efforts but are experts at then not following through on their
threats. [...] If not, we need to outline specific punitive measures - travel
bans, asset freezes, ICC indictments - punishments that can be negotiated down
or even taken off the table entirely if the killing ends. But unless the
Khartoum regime believes there are real consequences for their actions, unless
there is real resolve to carry these punishments out, the status quo will be
maintained and countless more will suffer and die."
- Professor Diane F. Orentlicher, Professor of Law at American University:
Footnote 7 - "The American Servicemembers' Protection Act of2002, 22 U.S.C. 7421
et seq., generally bars U.S. agencies from transferring a US national to the
International Criminal Court, see § 2004(d), hut recognizes the President's
authority to exercise his constitutional authority to do so, id., § 2011(a), and
does not prevent the United States "from rendering assistance to international
efforts to bring to justice ... foreign nationals accused of genocide, war
crimes or crimes against humanity," id., § 2015."

MEMBER STATEMENTS
- Senator Richard J. Durbin (D-IL), Chairman, Subcommittee on Human Rights and
the Law: "During today's hearing, we will explore using the law to impose
criminal and civil sanctions on individuals who are guilty of genocide. We will
discuss the status of the International Criminal Court's Darfur investigation,
and whether the federal government is doing everything it can to facilitate that
investigation. We will also examine the possibility of criminal and civil
liability under U.S. law for people who commit genocide anywhere in the world."
- Senator Patrick Leahy (D-VT): "During the last five years, America's
reputation has suffered tremendously. [...] And so has, I believe, our refusal
to join the International Criminal Court - indeed, the Administration's efforts
to undermine the Court - after our nation played a central role in the
negotiations on the Rome Treaty. [...] One of the reasons the image of our
country has been so damaged during recent years is because the world believed
that we stood for something better. They hold us to a higher standard, and they
want us to live up to our own ideals, as do we all. When we fall short of that
standard it is not only our reputation that suffers; it is the cause of justice
everywhere that also suffers."
- Senator Benjamin L. Cardin (D-MD): "Let me express my gratitude and thanks to
Carla Del Ponte of Switzerland, who unfortunately recently decided not to seek
reappointment for another term as Chief Prosecutor. [...] I believe that her
work, as well as the work of the new International Criminal Court (ICC), is
critical to deterring future war crimes and forms a key component of the
international community's response to conflict and post-conflict situations."

2. Newsweek, Interview by Ginanne Brownell with George Clooney, "The Last Word:
George Clooney; The frustrated American," 12 February 2007
http://www.msnbc.msn.com/id/16959624/site/newsweek/

"[...] Q: The International Criminal Court is due to present its findings from
an investigation into war-crimes allegations in Darfur soon. What effect will
this have?

A: It is rather astonishing that the United States does not play ball with the
ICC, considering our country was the beacon of the idea of an international
criminal court. I really like what the ICC is doing. [But] I do not know how
effective it is. I suppose if everybody subscribed to it, it would be
tremendously effective. But I do not think that is going to happen in the near
future. [...]"

3. Angus Reid Global Monitor: Polls & Research, "U.S. Should Help International
Criminal Court," 3 February 2007
http://www.angus-reid.com/polls/index.cfm/fuseaction/viewItem/itemID/14609

"Many American adults believe their federal administration should cooperate with
the International Criminal Court (ICC), according to a poll by Greenberg Quinlan
Rosner Research. 53 per cent of respondents think their government should help
the ICC by sharing intelligence about the genocide in Sudan. [...]"

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E. COLUMNS, OPINIONS, and EDITORIALS

1. Open Democracy, Nick Grono and David Mozersky from the International Crisis
Group, Op-Ed, "Sudan and the ICC: A Question of Accountability," 31 January 2007
http://www.opendemocracy.net/democracy-africa_democracy/sudan_icc_4301.jsp

"The Sudanese regime is, by any measure, one of the most brutal and
destabilising in the world today. Its atrocities have not been limited to
Darfur. [...] All of this makes it an eminently worthy target of the
International Criminal Court (ICC) [...]. Yet those opposed to the ICC, both
inside and outside Sudan, are now fighting a rearguard action. They are arguing,
disingenuously, that the ICC is one of the main obstacles to peace in Darfur.

Their reasoning goes something like this. Khartoum has previously accepted a UN
peacekeeping force in its south as part of the deal to end the civil war there,
so clearly it has no fundamental opposition to UN peacekeepers on its territory;
it is only because Sudan's leaders fear that a peacekeeping force in Darfur will
arrest them and bring them before the ICC that they are opposed to the
deployment of such a force. Hence the ICC is an unwitting party to the
government's atrocities. It is a deeply flawed argument which serves only to
give comfort to the regime's apologists. It is founded on three false premises.

First, Khartoum has long been opposed to an effective peacekeeping force in
Darfur, and that opposition pre-dates the ICC referral by at least eighteen
months. [...]

Second, even if UN peacekeepers are deployed - unfortunately still a big "if" -
Khartoum knows that they will be restricted to Darfur, and with a very limited
mandate. That mandate will not authorise them to arrest government officials or
hand them over to the ICC. [...]

Third, if the Sudanese regime is genuinely frightened of the ICC, it has a
strange way of showing it. Since the ICC has started its investigation, Khartoum
not only continued its campaign of atrocities, but escalated it - despite
warnings from the then UN secretary-general Kofi Annan that those responsible
would be held accountable. [...]

It is doing this by painting the ICC as an obstacle to peace, so as to make it a
bargaining-chip in eventual peace talks. [...].

Even if this happens, Khartoum will still want to ensure that any eventual peace
deal includes immunity from prosecution for its leaders. It is true that in
balancing the sometimes competing demands of peace and justice, difficult
decisions often have to be made. But in the case of Sudan's leaders, the extent
of their systematic atrocities and their past history of consistently violating
commitments weighs the scales very heavily against ever giving them any kind of
immunity.

Meanwhile, those outraged by the crimes committed by the Khartoum regime should
wholeheartedly support the court and its work in Darfur. The alternative -
undermining the ICC and the powerful weapon of accountability it represents -
allows the regime to haggle over whether or not it will answer for its
conscience-shocking atrocities. The way forward is for the international
community to implement the punitive measures it has repeatedly threatened, and
force Khartoum to change its policies."

[Nick Grono is vice-president of the International Crisis Group. David Mozersky
is the Horn of Africa project director at the International Crisis Group.]

2. Chicago Sun Times, Editorial, J.D. Bindenagel, "Blood-diamond talks hint at
Darfur solution," 5 February 2007
http://www.suntimes.com/news/otherviews/242781,CST-EDT-REF05.article

"Third, the International Criminal Court can begin proceedings against the
perpetrators."

[J.D. Bindenagel, vice president at DePaul University, was U.S. negotiator in
talks on conflict diamonds that led to a 2003 international ban on trading in
conflict diamonds.]

3. University of Southern California School of Law, Statement by John
Prendergast, "Genocide in Darfur Can Be Stopped," 3 February 2007
http://uscpublicdiplomacy.com/index.php/newsroom/newswire_detail/070203_genocide
_in_darfur_can_be_stopped/

"Author and former State Department official John Prendergast gave a speech at
USC's law school laying out a three-point plan to halt the genocide in Darfur
that does not military intervention. [...]

In order to stop the genocide Prendergast proposed what he called "targeted"
sanctions that function as part of a three-tiered system. The sanctions would
include boycotts of specific Sudanese-based oil companies that have
international holdings, asset freezes and travel restrictions on senior level
officials, and cooperation and support of the International Criminal Court to
level indictments. "There is now a multi-billion dollar oil business in southern
Sudan controlled by senior officials with companies that do business in Europe
and throughout the world, we can target these companies. Then there can be asset
freezes and travel restrictions on senior officials, also the International
Criminal Court relies on intelligence sharing to make its case so we need to
encourage our government to do this," he said. [...]"

4. The Globe and Mail (Canada), Comment, Irwin Cotler, "Darfur's pain is the
West's shame; The international community must stop this 'go slow' genocide,
says MP and human-rights activist," 30 January 2007
http://www.theglobeandmail.com/servlet/story/RTGAM.20070130.wxcodarfur30/BNStory
/specialComment/home

"Sudanese officials responsible for the perpetration of war crimes, crimes
against humanity and genocide must be brought before the International Criminal
Court."

[Irwin Cotler, a former justice minister of Canada, is the founder of the Save
Darfur Parliamentary Coalition.]

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CICC'S POLICY ON THE REFERRAL AND PROSECUTION OF SITUATIONS BEFORE THE
ICC:

The Coalition for the ICC is not an organ of the Court. The CICC is an
independent NGO movement dedicated to the establishment of the International
Criminal Court as a fair, effective, and independent international organization.
The Coalition will continue to provide the most up-to-date information about the
ICC and to help coordinate global action to effectively implement the Rome
Statute of the ICC. The Coalition will also endeavor to respond to basic queries
and to raise awareness about the ICC's trigger mechanisms and procedures, as
they develop. The Coalition as a whole, and its secretariat, do not endorse or
promote specific investigations or prosecutions or take a position on situations
before the ICC. However, individual CICC members may endorse referrals, provide
legal and other support on investigations, or develop partnerships with local
and other organizations in the course of their efforts.

Communications to the ICC can be sent to:
ICC
P.O. Box 19519
2500 CM The Hague
The Netherlands