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Darfur: General Information and Resources on Prosecutor's Request

27 Feb 2007

Dear All,

[Apologies for the delay in circulating this information. The CICC
Secretariat is experiencing technical problems with its server but
will circulate information as soon as we can.]

As previously announced, on 27 February 2007, the Prosecutor of the
International Criminal Court (ICC) submitted an application from the
Prosecutor, to Pre-Trial Chamber I, requesting that the Chamber issue
summonses for Ahmad Muhammad Harun and Ali Muhammad Ali Abdal-Rahman
to appear before the Court for initial proceedings concerning the
situation in Darfur.

Please find below public information and resources related to this
development:
(A) links to official public information made available by the
International Criminal Court and the Office of the Prosecutor;
(B) links to members' resources on Darfur, including a Q&A by Human
Rights Watch and a Briefing Paper by the Citizens for Global
Solutions;
(C) CICC Media advisory; and
(D) CICC Questions and Answers on Summons to Appear in the Darfur
Situation.

In addition, the CICC will shortly circulate: (1) a digest of
members' media statements and (2) a digest of media coverage on this
development.

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. ICC AND OTP INFORMATION

We hereby direct your attention to public information made available
by the Office of the Prosecutor (OTP) on the Prosecutor's submission
of evidence and request for summons:
(1) OTP Press Release, "ICC Prosecutor Presents Evidence on Darfur
Crimes: http://www.icc-cpi.int/press/pressreleases/230.html
(2) Summary of the Prosecutor`s "Application" to the judges:
http://www.icc-cpi.int/library/organs/otp/ICC-OTP_Summary-Darfur-
20070227_en.pdf
(3) Fact Sheet on the OTP's work to investigate and prosecute crimes
in Darfur: http://www.icc-cpi.int/library/organs/otp/ICC-OTP_Fact-
Sheet-Darfur-20070227_en.pdf
(4) Press Briefing Remarks by the Prosecutor following the Submission
of Evidence of Crimes in Darfur: http://www.icc-
cpi.int/press/pressreleases/228.html

In addition, the ICC has also provided information and resources
confirming that PTC I has received documents containing a list of
evidence in the situation in Darfur:
(1) ICC Press Release, "Pre-Trial Chamber I receives documents
containing list of evidence in the situation of Darfur":
http://www.icc-cpi.int/press/pressreleases/233.html
(2) Facts regarding the situation in Darfur, including a timeline:
http://www.icc-cpi.int/library/press/pressreleases/ICC-20070227-Facts-
Situation-in-Darfur_en.pdf
(3) Course of action and procedure following a summons to appear:
http://www.icc-cpi.int/library/press/pressreleases/ICC-20070227-Facts-
Situation-in-Darfur_en.pdf
(4) Questions and Answers on Summons to Appear: http://www.icc-
cpi.int/library/press/pressreleases/ICC-20070227-Q-and-A-about-
summons-to-appear_en.pdf

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B. CICC MEMBERS' RESOURCES ON DARFUR

1. Citizens for Global Solutions, Briefing Paper, "No Peace Without
Justice: U.S. Must Cooperate with ICC on Darfur":
www.coalitionfortheicc.org/documents/CGS_NPWJ_DarfurStatement_27Feb07.pdf

2. Human Rights Watch, Questions and Answers, "ICC Prosecutor
Identifies Suspects in First Darfur Case," February 2007:
www.coalitionfortheicc.org/documents/DarfurICCwarrants_QA_27Feb07.pdf

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C. CICC MEDIA ADVISORY

Coalition for the International Criminal Court, Media Advisory, "ICC
Names Suspects in Darfur investigation; ICC Prosecutor asks Judges to
order Government Official and Militia Leader to appear before the
ICC," 27 February 2007
(link not yet available)

WHAT: On Tuesday, 27 February, 2007, the Prosecutor of the
International Criminal Court (ICC), Mr. Luis Moreno-Ocampo, requested
that Pre-Trial Chamber I summon two persons to appear before the
Court in the Darfur situation in Sudan. In his Application, the
Prosecutor stated that there are reasonable grounds to believe that
these two persons bear criminal responsibility for crimes against
humanity and war crimes committed in Darfur in 2003 and 2004. The
Application lists 51 counts, including persecution, murder and
attacks against civilians, forcible transfer, rape, pillaging,
destruction of property, inhumane acts, imprisonment, and torture.
The Application is made in order to ensure the appearance of the two
persons before the ICC, but states that if a summons is not
sufficient to ensure this, an arrest warrant will be considered
instead.

WHO: The Prosecutor of the ICC requested that the Pre-Trial Chamber
summons Ahmad Muhammad Harun (according to the Application, a former
Minister of State for the Interior of the Government of Sudan) and
Ali Muhammad Ali Abdal-Rahman (according to the Application, militia
leader also known as Ali Kushayb and reported to be in Sudanese
detention) to appear before the Court for initial proceedings.

WHY: On 31 March 2005, the United Nations Security Council referred
the situation in Darfur, Sudan to the ICC Prosecutor through
Resolution 1593, "determining that the situation in Sudan continues
to constitute a threat to international peace and security." On 6
June 2005, the ICC Prosecutor officially opened his investigation
into the situation of Darfur, which was assigned to Pre-Trial Chamber
I.

****************************************************
D. CICC Q&A ON SUMMONS TO APPEAR IN THE DARFUR SITUATION

Coalition for the International Criminal Court, Factsheet, "Q&A for
Summons to Appear in the Darfur Situation"
(link not yet available)

On 27 February 2007, the International Criminal Court made public on
its website an application from the Prosecutor, to Pre-Trial Chamber
I, requesting that the Chamber issue summonses in respect of Ahmad
Muhammad Harun (a former Minister of State for the Interior of the
Government of Sudan and currently Minister of State for Humanitarian
Affairs) and Ali Muhammad Ali Abdal-Rahman (a Militia leader also
known as Ali Kushayb) to direct them to appear before the Court for
initial proceedings. The Application states that the Office of the
Prosecutor has concluded that there are reasonable grounds to believe
that these two persons bear criminal responsibility for crimes
against humanity and war crimes committed in Darfur in 2003 and 2004.
For additional information about the ICC's investigation in Darfur,
Sudan, please visit : http://www.coalitionfortheicc.org/?mod=darfur.

1. Why is the ICC involved in Darfur?
On 31 March 2005, the United Nations Security Council referred the
situation in Darfur, Sudan to the Prosecutor of the International
Criminal Court (ICC) through Resolution 1593, "determining that the
situation in Sudan continues to constitute a threat to international
peace and security." Following this referral, the Prosecutor received
all official documents of the UN International Commission of Inquiry
on Darfur, as well as a sealed list of individuals named by the
Commission as possible perpetrators of grave international crimes. On
6 June 2005, following the examination of thousands of documents from
a variety of sources and interviews with over 50 independent experts,
the Prosecutor officially opened an investigation into crimes
committed in Darfur. The situation of Darfur was assigned to Pre-
Trial Chamber I (PTC I). Since then, the Prosecutor has reported
every six months to the UN Security Council on the progress of his
investigation. During his latest statement to the Council on 13
December 2006, the Prosecutor announced that he had nearly concluded
an investigation and was preparing to submit evidence to the ICC
judges in February 2007.

2. What is a Pre-Trial Chamber (PTC)?
According to Article 39 (2) (b) (iii) of the Rome Statute, the
founding treaty of the ICC, the Pre-Trial Chamber is composed of
either one or three judges. The Pre-Trial Chamber supervises the
Prosecutor's investigation and takes appropriate measures to
safeguard the interests of the Defense, the Prosecution, the victims
and the witnesses. It can issue arrest warrants and summons, and also
decided whether or not to confirm the charges brought by the
Prosecution.

The situation of Darfur, Sudan has been assigned to Pre-Trial Chamber
I, which is composed of Presiding Judge Claude Jorda, Judge Akua
Kuenyehia and Judge Sylvia Steiner.

3. What is a summons to appear before the PTC?
A summons to appear before the Court (Art. 58 (7) RS ) is an
alternative to an arrest warrant. While it is up to the Prosecutor to
submit a request for a summons to appear, only the Pre-Trial Chamber
can issue it. The PTC will do so if there are reasonable grounds to
believe that the person has committed the alleged crimes, and that
the summons is sufficient to ensure appearance before the Court.
Restrictions on liberty (other than detention) may be imposed,
depending on the national law of the State. If a summons to appear
does not seem to be sufficient to ensure that the person concerned
appears, the Pre-Trial Chamber can still decide to issue an arrest
warrant.

4. What is an arrest warrant?
In general, an arrest warrant is an order issued by a public officer
who authorizes the arrest and detention of an individual. In the case
of the ICC, the Pre-Trial Chamber issues these warrants, upon an
application by the Prosecutor. According to Article 58 (1)(b) of the
Rome Statute, the purpose of an arrest warrant is to ensure that the
person appears at the trial or that the person does not endanger or
obstruct the investigation or the court proceedings or when
necessary, to prevent the person from continuing with the alleged or
related crime.

5. Is an "arrest warrant" the same thing as an "indictment"?
No. An indictment is a formal charge (or accusation) against an
individual for having allegedly committed a serious criminal offense.
An arrest warrant is not a charging document; it is only meant to
ensure the presence of a person at the proceedings. As opposed to the
ICTY and ICTR, which use the indictment procedure, the ICC requires
the Pre-Trial Chamber to confirm charges against the accused before
formally charging him or her.

6. Who is responsible for bringing the accused to ICC Headquarters in
The Hague?
Since the Court does not have its own police force, it relies on the
cooperation of States and international organizations with the
appropriate mandate, to arrest suspects and bring them to The Hague.
States Parties are to comply immediately with the request by the ICC
to arrest and surrender accused persons in their territories.

According to Article 59 of the Rome Statute, the State Party that
receives the request for provisional arrest or for arrest and
surrender must take steps to arrest the person in question. The
arrested person shall be brought promptly before a competent judicial
authority in the custodial State, which will determine that the
warrant applies to that person; that the person has been arrested in
accordance with the proper process; and that the person's rights have
been respected. The person has the right to apply in the custodial
State for interim release pending surrender. The person shall be
delivered to the Court as soon as possible once the custodial state
orders the person to be surrendered.

7. What are some of the ICC's key judicial activities to date
regarding the Darfur situation?
On 25 August 2006, the Registry appointed Mr. Hadi Shalluf as Ad hoc
Counsel for the Defense in the Situation of Darfur. He received the
solemn undertakings for this position on 8 September 2006. The Ad Hoc
Counsel for the Defense challenged the jurisdiction of the Court by
requesting PTC I to declare the Court incompetent to act in the
Darfur situation and further argued that the situation itself was
inadmissible before the Court.

Separately, some experts were invited by the Pre-Trial Chamber to
submit observations on the protection of victims and witnesses. Both
Law Professor Antonio Cassese and UN High Commissioner for Human
Rights Louise Arbour submitted their observations to PTC I.

8. Who are the persons requested to be summoned to appear before the
ICC?
The Prosecutor of the ICC requested that the Pre-Trial Chamber summon
Ahmad Muhammad Harun (according to the Prosecutor's Application, a
former Minister of State for the Interior of the Government of Sudan)
and Ali Muhammad Ali Abdal-Rahman (according to the Prosecutor's
Application, Militia leader also known as Ali Kushayb and reported to
be in Sudanese detention) to appear before the Court for initial
proceedings.

9. Why were only two people covered by the Prosecutor's application
when major human rights organizations and others have called for the
arrest of many more, including high-level officials in the Sudanese
government?
According to Article 53 of the Rome Statute, the Prosecutor, in order
to seek a warrant or summons, must have an adequate legal and factual
basis consisting of sufficient evidence that there are "reasonable
grounds to believe that the person has committed crimes within the
jurisdiction of the Court." The Prosecutor also assesses the
particular "gravity" of the case in question, mainly the scale,
nature, manner of commission, and impact of the crimes. And based on
the complementarity principle, the Prosecutor must determine that the
specific case in question is not already being addressed by good-
faith and viable national proceedings.

The Prosecutor also holds prosecutorial discretion in selecting
particular cases to investigate. As indicated in the Draft Paper on
Criteria for Selection of Situations and Cases, the Office of the
Prosecutor will focus on a limited number of particularly serious
cases that represent the overall scope of crimes committed. The OTP
is to focus on those commanders and superiors bearing the greatest
responsibility.

The Prosecutor has also indicated that he will be proceeding with
a "sequence" of cases, investigating specific cases within a
situation one by one rather than simultaneously. The limited number
of summons sought at this stage does not prevent additional summons
or arrest warrants from being sought for other cases in the Darfur
situation as the Prosecutor continues his investigation of the
situation and additional evidence becomes available.

10. Did the ICC Prosecutor rely on the Report of the International
Commission of Inquiry on Darfur for his Application of 27 February
2007?
As a consequence of the Security Council referral of Darfur to the
ICC in March 2005, the Prosecutor received, on 5 April 2005, the
document archives of the UN International Commission of Inquiry on
Darfur, including more than 2,500 items such as documentation, video
footage and interview transcripts. The United Nations Secretary-
General also delivered to the Prosecutor a sealed list of 51
individuals named by the Commission as suspects of grave
international crimes in Darfur, Sudan. On 7 April 2005, the OTP
consulted this sealed list of individuals. After a careful review the
Prosecutor and his advisers decided to reseal the list without making
copies or taking notes, in order to maintain full confidentiality. As
indicated in the ICC's press release from 11 April 2005, "The list is
advice to the Prosecutor and not mandatory for him to follow." In his
latest report to the Security Council on 14 December 2006, the
Prosecutor reiterated that the International Commission of Inquiry
and UN Sanctions Committee "have an entirely separate mandate to that
of the ICC and the individuals identified by them do not bind the
selection of suspects by the OTP."

11. How could this Application for summons to appear affect ongoing
efforts towards a cessation of hostilities on the ground in Darfur?
During his latest briefing to the Security Council on 14 December
2006, the Prosecutor noted that he would continue to collect and
analyze information about current crimes committed in Darfur, attacks
on humanitarian personnel and African Union peacekeepers and also
about those criminal acts occurring across the border to Chad, which
is now an ICC State Party. The Prosecutor noted, "This Council has
recognized that justice for victims will contribute to enhancing
security and will send an important warning - beyond the borders of
Darfur - to those individuals who might otherwise resort to violence
and the commission of crimes to achieve their aims."

Many victims from Darfur have indicated that securing justice is
essential to ending the grave violations of human rights in the
region. Sudanese NGOs have framed the need for justice as an
essential element of civilian protection and indeed a precondition to
political negotiations for peace. Osman Hummaida, a well-known
Sudanese human rights activist and former Director of the Sudanese
Organization Against Torture (SOAT) underlines, "There is no
hierarchy of priorities. We can't talk about protection of civilians
without talking about political processes and accountability. Ending
the culture of impunity is key to protection of civilians."

12. Can the request for summons be changed into a request for arrest
warrants?
In the Application, the Prosecution states that in order for the
summons to be successful, they rely on the cooperation with Sudanese
authorities and the willingness of the persons concerned. However, it
is also stated that if a summons to appear proves insufficient to
ensure the persons' appearance, an arrest warrant would be the next
step.

13. What role (if any) can the Security Council play in the Court's
investigation?
Since the ICC does not have its own enforcement powers, it must rely
on the cooperation of States and international and regional
organizations. The Security Council can play a crucial role in
ensuring such cooperation and the prompt fulfillment of any ICC
requests for assistance, including requests for surrender and arrest.
Specifically, the Security Council can monitor and possibly influence
the progress of cooperation by the Government of Sudan in the Court's
investigation. The Security Council can also be kept informed of
cooperation arrangements with the African Union and the African Union
Mission in the Sudan (AMIS). With regards to a possible UN
peacekeeping presence in Darfur, the Prosecutor has "noted the
relevance of ensuring a proper framework for cooperation between the
security presence in Darfur and the ICC." In addition, the Council
creates the mandate for peacekeeping missions and can encourage their
cooperation with the Court.

Paragraph 2 of Security Council Resolution 1593, which was adopted
under Chapter VII of the UN Charter, requires the Government of Sudan
and all other parties to the Darfur conflict to cooperate fully with
and provide necessary assistance to the ICC. Other States and
organizations are also urged to cooperate. Paragraph 3 invites the
ICC and the African Union to discuss practical arrangements for
facilitating the work of the Prosecutor and the Court.

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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