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Darfur, Part II: SG's visit to Sudan and resumption of peace talks; interview with Dr. Shalluf; statement by Sudanese opposition leader; analysis of justice for victims

12 Sept 2007

Dear all,

Please find below Part II of our digest on recent developments related to
the International Criminal Court's investigation in Darfur, Sudan.

This digest reports on UN Secretary General’s visit to Sudan and the
resulting agreement to resume peace talks in Libya on 27 October; an
interview with Dr. Hadi Shalluf, a registered defendant at the ICC, who
denies the Court has jurisdiction in Sudan; a statement by a Sudanese
opposition leader calling for the trial of all parties on Darfur; and an
article by IWPR on justice for victims in Darfur.

Please also 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.

With regards,

Mariana Rodriguez Pareja
CICC Communications
[email protected]
*****************************************************

III. AFTER UN SECRETARY GENERAL BAN’S VISIT TO SUDAN, PEACE TALKS TO RESUME
IN LIBYA; SG QUESTIONED ON MEETING WITH HARUN; STATEMENT TO THE MEDIA ON
TRIP TO AFRICA

a. Peace Talks

i. “Darfur Peace talks to resume next month - Ban Ki-Moon,” UN News Service,
6 September 2007,
http://www.un.org/apps/news/story.asp?NewsID=23723&Cr=sudan&Cr1=

"…Speaking to the press in Khartoum, after a meeting with Sudanese President
Omar al-Bashir, Mr. Ban said the talks in Tripoli, Libya, on 27 October will
be led by the United Nations and African Union (AU) Special Envoys to
Darfur, Jan Eliasson and Salim Ahmed Salim, who will work closely with the
countries of the region.

Mr. Ban, who has made resolving the Darfur conflict a priority of his
administration, said he expected all parties to do much more than cease
their hostilities and participate in and commit to the outcome of the
negotiations. He urged them to also achieve a political solution to the
crisis and to help create a secure environment that is conducive to
negotiations. ‘There must be an end to violence and insecurity, a
strengthened ceasefire supported by the incoming Hybrid Operation [an AU-UN
peacekeeping force to be known as UNAMID], as well as an improvement in the
humanitarian situation and greater prospects for development and recovery
for the people of Darfur,’ he said.…”

ii. “Ban Ki-moon in Sudan: Vacuous Diplomacy and Specious Declarations,”
Sudan Tribune, 07 September 2007,
http://www.sudantribune.com/spip.php?article23635

“ ‘What is included in and what is excluded from Ban’s “realism’? Evidently
the International Criminal Court (ICC) is too ‘visionary’ a notion, for
despite pleas from ICC chief prosecutor Luis Moreno-Ocampo directly to the
Secretary-General, there has been no word or suggestion that the ICC emerged
as a serious topic in Ban and al-Bashir’s tête-à-tête.”

iii. “Sudan agrees to new Darfur peace talks,” Sudan Tribune, 07 September
2007, http://www.sudantribune.com/spip.php?article23638

‘…The government of Sudan pledges to contribute positively to secure the
environment for the negotiations, fulfilling its commitment to a full
cessation of hostilities in Darfur and agreed upon ceasefire,’ said a joint
statement issued after a meeting between Ban and President Omar al-Beshir in
Khartoum.

….. The majority of factions reached agreement on a joint position, although
not that of the founding father of the rebellion launched in 2003, Abdel
Wahid Mohammed Nur, who is now based in exile in Paris….”

iv. “UN chief says optimist for Darfur peace process,” Sudan Tribune, 10
September 2007 http://www.sudantribune.com/spip.php?article23682

“U.N. Secretary-General Ban Ki-moon said Sunday he was encouraged by
‘credible progress’ toward peace and security in Darfur at the end of a
week-long trip to Sudan, Chad and Libya to promote an solution to the
four-year conflict.

‘…I think we have made another credible progress at this time toward the
path to peace and security in Darfur,’ he said in an interview with three
reporters. ‘I’m encouraged by this progress, but we must build upon this
progress. It is too early to say that we have made some good achievement.’…

b. Meeting between Ban and Harun:

i. “Darfour : le Secrétaire général 'encouragé' par le résultat de sa
visite,” UN News Service, 10 September 2007,
http://www.un.org/apps/newsFr/storyF.asp?NewsID=14766&Cr=darfour&Cr1=secré

United Nations Secretary General says that he is encouraged by the result of
his visit to Sudan. Ban also said that he did not meet Harun in person, but
that he was fully aware of the issue of the arrest warrants. He discussed
the issue earlier during his meeting with the ICC president just before his
departure to Sudan.

Above translation from French is unofficial and has been prepared by the
CICC.

ii, "UN chief upbeat about prospects for Darfur peace," AFP, 10 September
2007, published
at http://timesofindia.indiatimes.com/UN_Chief_hopeful_of_Darfur_peace/articleshow/2357274.cms

"UN chief Ban Ki-moon sounded an upbeat note here Monday on prospects for a
Darfur peace settlement on his return from a week-long trip to Sudan, Chad
and Libya.

"My visit to the region was very useful and constructive in generating
momentum to bring an early resolution," he told reporters.

Ban also revealed that during his visit to Sudan, including Darfur, last
week he met personally with Sudanese secretary of state for humanitarian
affairs Ahmed Haroun who is wanted by the International Criminal Court (ICC)
over atrocities committed in Darfur.

"I met him (Haroun) personally, even though not I am not in a position to
disclose all that I have discussed," the UN chief said.

In May, the ICC issued arrest warrants for Haroun and Sudan's pro-government
Janjaweed militia leader Ali Kosheib, are accused of crimes against humanity
and war crimes respectively allegedly committed in West Darfur in 2003 and
2004...."

c. Media Briefings United Nations Headquarters in New York:

i. “U.N. Secretary General Ban Ki-Moon holds media availability on return
from his recent trip to Africa,” 10 September 2007, (link unavailable)

“BAN: Good morning, ladies and gentlemen. I'm glad to see you all again. I
returned yesterday night and I would like to briefly tell you. My visit to
the region, to Sudan Chad and Libya was very useful and constructive in
generating a momentum to bring an early resolution of the situation in
Darfur. As you are already aware, we have announced the political
negotiation meeting to be held on October 27 in Tripoli, Libya. And I was
assured the full support from all the leaders in the region, including
Presidents of Sudan, Chad and [Libyan] leader [Muammar] Qaddafi and [other]
leaders in the region -- Egypt and Eritrea -- and all other countries. I am
encouraged. We must build upon this progress to bring peace and security and
prosperity to these people.

…. And I also encouraged leaders of South and North Sudan to faithfully
implement the Comprehensive Peace Agreement, which is the core in this
issue. I again expect that they will faithfully implement [it]. At the same
time, the leaders in the region, particularly Sudan, should make their
utmost efforts, to make this political process move smoothly, keeping the
cessation of hostilities and helping the humanitarian assistance flow
smoothly, without any hindrance.

I visited again the future site of the hybrid operation, UNAMID [UN
Assistance Mission in Darfur]. Initial preparations are going on well -- on
track. Again, President [Omar El] Bashir of Sudan has assured me of his
Government's full support -- logistical, administrative areas, including
some additional land which may be required for operations. We must build
upon this momentum. …..

QUESTION: Secretary-General, two questions. The peacekeeping force -- the
deadline for troop contributors has been delayed to what date -- is it
October 10, October 13? And secondly, did you mention the ICC [International
Criminal Court] and did you deal at all with the head of the humanitarian
operation in Sudan, who's indicted by them?

BAN: About force composition: We are encouraged to have received full
cooperation -- we even have more contributions than we may actually need.
But, still we are lacking in the specialized areas, like air transportation,
experts in finance and some other areas. I am looking forward -- and we
would like to have contributions from non- African Union country,
particularly European countries. I have discussed with some of the European
leaders [on] that and I have received encouraging responses from them. On
the humanitarian issue -- I have met, wherever I traveled -- I had a meeting
with the humanitarian workers, NGO representatives and UN country teams. And
I have urged the Sudanese Government to facilitate the smooth flow of
humanitarian assistance without any hindrance, without any threat. I got
that assurance, but their commitment will have to be tested. We will always
be very vigilant on that.

QUESTION: Sir, just to follow up on that point. You met with all the
humanitarian ministers and experts and NGOs when you were out there, but
only the Sudanese Humanitarian Minister for Darfur is the one that has been
indicted by the ICC. Did you meet with him and did you bring up this message
of impunity that you talk about here so often?

BAN: I have not met him personally. Even so, I am not in a position to
disclose all that I have discussed. You may remember that I met Mr. [Luis
Moreno-] Ocampo, Prosecutor of ICC, before my departure and I am fully aware
of the importance and significance of this issue. That is on my agenda which
I will try to discuss...”

ii. Daily press briefing by the office of the Spokesperson for the Secretary
General, 7 September 2007, (link unavailable)

“Questions and Answers
§ Question: Before Mr. Ban’s trip to Sudan, the head of the
International Criminal Court had met with him and said that he wanted him to
raise the issue of the two indicted individuals by the ICC. It’s been
reported today that Ahmed Haroun is one of the individuals who’s now been
named by Sudan to investigate human rights violations, even though he
himself has been indicted by the ICC. Did Mr. Ban raise it with President
El-Bashir? And what is his response to Mr. Haroun being given this human
rights post?
§ Spokesperson: Well, I’ll ask for you whether this was raised, and
at this point no reaction. I don’t have a reaction yet.
§ Question: Two questions. One, we’re getting reports out of Sudan
that the rebels in Darfur, some of them are not happy with Ban in that he
didn’t press hard enough with the Khartoum government some of the concerns
that they have and that this puts in jeopardy clinching a peace deal there.
If you could comment on that. […]
§ Spokesperson: On the comments. Well, I don’t know. I’m not
aware of these comments. I don’t know what was said. I don’t have a report
-- an independent report -- on what those rebel leaders said. So at this
point, I cannot comment on this.”

IV. ANALYSIS: JUSTICE FOR VICTIMS IN DARFUR; INTERVIEW WITH ICC COUNSEL ON
DARFUR AND OPPOSITION CALLS FOR TRIALS ‘WE ALL ACCEPT’ ON DARFUR

i. “Is Justice Slipping Off Darfur Agenda?” IWPR, 7 September 2007,
http://www.iwpr.net/?p=acr&s=f&o=338518&apc_state=henpacr

“Particularly prominent has been coverage of the first visit by the new UN
secretary-general to the region and his thoughts on peacekeeping, political
solutions and humanitarian aid. Noticeably absent, however, from Ban
Ki-moon’s statements on Darfur has been any mention of the International
Criminal Court, ICC, and the two arrest warrants it issued earlier this year
for a Sudanese rebel leader and a government minister.

And it’s not just the secretary-general staying silent on the subject of the
ICC, which also has outstanding warrants for Ugandan rebel leaders. In a
recent editorial in Britain’s Times newspaper, UK Prime Minister Gordon
Brown and France’s president Nicholas Sarkozy insisted governments must
apply pressure over Darfur but said nothing at all about the court.

International justice observers interviewed by IWPR suggested these
omissions are significant - though hardly surprising. They say world leaders
are concentrating on plans to deploy the 26,000 strong UN-African Union
peacekeeping force in Darfur where violence is escalating, malnutrition
increasing and attacks on aid workers becoming more common.

‘There has been a quiet calculation by the likes of Ban Ki-moon, by the
British, by the French, that we can’t have both, the deployment of the force
and the extradition of the men under indictment. The two are mutually
exclusive,’ said Eric Reeves, an American academic and expert on Darfur.

... Sudan’s minister for humanitarian affairs, Ahmad Harun, is one of those
indicted by the ICC along with Janjaweed militia leader Ali Kushayb, accused
of coordinating violence against innocent civilians in Darfur.

Their arrest and transfer to The Hague was high on the agenda at a meeting
last week between Ban and the court’s prosecutor, Luis Moreno-Ocampo.

‘In my meeting with the secretary general of the UN, I stressed the need to
execute the arrest warrants, to include this aspect in all discussions with
the Sudanese government,’ he told IWPR. ‘The government of Sudan has the
obligation to arrest them and surrender them to The Hague.’

Moreno-Ocampo also expressed confidence that - despite their conspicuous
silence on the ICC - Brown and Sarkozy would also put pressure on Khartoum.
‘France and the UK are major supporters of the court,’ he said. “I’m
confident that in all their contacts with the government of the Sudan and
all their activities in support of the peace process in Darfur, they will
ensure that justice and the enforcement of the ICC arrest warrants is an
integral part of a comprehensive solution.’

But Richard Goldstone, a former member of South Africa’s constitutional
court and ex-chief prosecutor at the tribunal for former Yugoslav, ICTY,
thinks Moreno-Ocampo’s pleas that victims need both peace and justice are
falling on deaf ears.

‘It has been the exception rather than the rule that leading politicians
have seen the importance of justice,’ said Goldstone. ‘[The ICC] is not on
their radar screens, and it should be.’

…. ‘I’m sure if the pressure was ratcheted up against [Sudanese president]
Omar al-Bashir, it would make him a lot more wary about being complicit in
war crimes in Darfur. There is no doubt about it.’

…. ‘The ICC doesn’t have its own police force. Its police force is 105 state
parties [which signed the Rome Statute creating the court],’ said Beatrice
Le Fraper du Hellen, head of the Jurisdiction, Complementarity and
Cooperation Division, JCCD, which secures government cooperation. ‘The ICC
relies on the support of 105 member states.’

ii. “ICC Counsel proposes special tribunal for Darfur war crimes,”
transcript from an interview aired on Sudan TV in Arabic, 8 September 07,
http://www.sudantribune.com/spip.php?article23703

“One of the registered counsels at the International Criminal Court (ICC)
proposed the establishment of a special court to prosecute war crimes in
Darfur. The French-Libyan born counsel Dr. Hadi Shalluf submitted a detailed
proposal to the UN Secretary General and the permanent members of the UN
Security Council (UNSC).

Despite being a proponent of the ICC, Shalluf told Sudan Tribune that he has
reservations on the first permanent world court for war crimes. Shalluf was
appointed by the court on August 2006 to represent and protect the general
interests of the defense in the Darfur case before the ICC during the
proceedings on the preservation of evidence and protection of witnesses.

The judges of the Pre-Trial Chamber I of the ICC who were assigned the
Darfur case, invited the observations of Antonio Cassese the head of UN
commission of inquiry on Darfur and by Louise Arbour the UN High
Commissioner for Human Rights concerning the protection of victims and the
preservation of evidence in Darfur.

Shalluf filed a long series of motions to challenge the jurisdiction of the
Court and the admissibility of the Darfur case at the ICC that were
eventually rejected by the judges.

The prominent counsel and the human right advocate contended that it was his
duty to challenge the jurisdiction of the ICC in Darfur from a legal
perspective. However he is staunch supporter of bringing the perpetrators of
violence in Darfur to court for the ‘tragic situation’ they created….

... QUESTION: So explain to me based on the Rome Statue how is the Darfur
case inadmissible at the ICC?

Shalluf: Sudan is not a state party and the ICC prosecutor has rejected
cases in Iraq and Venezuela based on the issue of admissibility. Also when
Venezuela became a state party the prosecutor said that the crimes were
committed there before the ratification so the ICC could not investigate
them. In the case of Iraq the prosecutor said it was not a state party and
he could not exercise jurisdiction there either. The same rule applies to
Sudan.

QUESTION: But the Rome Statue empowers the UNSC to refer situations to the
ICC even for non-state parties?

Shalluf: This argument has no legal basis. Article 13(b) of the Rome Statue
gives the authority to refer cases but it did not specify whether that
applies to non-state parties. What you are talking about is a different
interpretation but the Rome Statue was not explicit in this clause. That’s
why I asked the ICC to set a precedent by issuing a decision on my motion
challenging the admissibility of the Darfur case.

QUESTION: But from articles 13(a) and 13(c) we can clearly understand why
13(b) would apply only to non-State parties?

Shalluf: The Rome Statue is an international treaty that would only apply to
the countries which ratified it. Even if a country was to ratify the treaty
today the prosecutor can’t investigate crimes prior to the ratification
date. The judges could have disagreed with me by saying that the Rome statue
could also apply to non-State parties. We need a decision on the application
of the Rome Statue on non-state parties given the fact that the ICC is a new
body. Whoever will come after me as a defense counsel will also challenge
the jurisdiction of the ICC.

QUESTION: Do you still insist that the ICC have no jurisdiction over the
Darfur case despite the issuance of arrest warrants against two suspects?

Shalluf: The legal proceedings are one thing and the issue of admissibility
is another. Like I said any defense counsel in this case will challenge the
jurisdiction of the ICC….”

iii. “Sudanese Opposition Leader Calls for Trials "We All Accept" On
Darfur,” BBC Monitoring International Reports, 9 September 2007, (link
unavailable)

Excerpt from report by state-owned Sudanese TV on 8 September

“[Presenter] On a related issue, the leader of the Democratic Unionist Party
stressed that the testimonies cited by the Prosecutor General of the
International Criminal Court did not rely on any testimonies from Sudan. He
pointed out that the Sudanese judiciary was capable of trying those who
caused the war in Darfur.

[Begin al-Mirghani recording in progress] Establishing a court we all accept
to try the crimes in Darfur [applause from unseen audience]. Yes. [words
unclear] why do I reject a trial in The Hague? The report by the Prosecutor
General of The Hague has hearsay testimonies. It does not contain a single
testimony from inside Sudan. I am not saying this out of bias for the
Government. Not at all. I am saying what is right and what is just.”

*********
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independent NGO movement dedicated to the establishment of the International
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