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Darfur II: Reports on the Arrest of Militia Commandar Ali Kushayb; Statements from Sudan's Minister of Justice; Softening of the US Opposition to the ICC since the Darfur Situation; Editorial by Jonathan Fanton.

14 Oct 2008

Dear all,

Please find below the second of a two-part message with information about recent developments related to the International Criminal Court's investigation in Darfur, Sudan.

This message includes media articles reporting the arrest of militia commander Ali Mohamed Ali Abdel-Rahman, also known as Ali Kushayb, against whom a warrant of arrest was issued by the ICC in May 2007; statements from Sudan's Minister of Justice that his country will make its 'own trials;' an article about the softening of U.S. opposition to the Court since the Darfur situation; and an editorial by Jonathan Fanton, MacArthur Foundation president, who writes "[t]he victims of Darfur deserve to be heard as they ask: 'How can the Security Council protect Omar al-Bashir from justice?".

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 and current situations before the Court or situations under analysis. The Coalition, however, will continue to provide the most up-to-date information about the ICC.

With best regards,

Mariana Rodriguez-Pareja
CICC Communications
[email protected]
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I. ALI KUSHAYB IN CUSTODY

i. "Sudan completes probe into Darfur militia leader," The Washington Post, 14 October 2008, http://www.washingtonpost.com/wp-dyn/content/article/2008/10/14/AR200810
1401467.html

"Sudanese prosecutors have completed an investigation into a militia leader accused of war crimes in Darfur and two other men, the country's justice undersecretary said on Tuesday.

Abdel Daim Zumrawi told Reuters lawyers had finished gathering evidence against Ali Kushayb and the other men, linked to 'killing and looting'
in Sudan's violent west, but said it was still unclear whether or when they might stand trial.

Sudan revived its own investigation into alleged war crimes in Darfur earlier this year after the chief prosecutor of the International Criminal Court asked judges to issue an arrest warrant for Sudan's president, accusing him of masterminding a campaign of genocide in the western region.

... Zumrawi on Tuesday confirmed that Kushayb remained in custody after being detained in Sudan several months ago.

'The investigations were about killing and looting. The investigations have taken place. There were investigations about Kushayb and two other people,' he said.

'The prosecutors have collected all the evidence against them. I am not sure whether it will be placed before a court...Kushayb has been under arrest for a long time.'

... Sudanese media on Tuesday quoted unnamed justice ministry officials saying Kushayb might appear in court in El Geneina, capital of west Darfur, as early as Wednesday.

But legal sources in El Geneina, speaking on condition of anonymity, said court officials in the town had heard nothing of a pending trial.

'I have just come back from the court,' said one lawyer. 'And no one, the lawyers or the court officers, knew anything about a trial. This is just talk...."


ii. "Sudan detains militia leader wanted by ICC in preparation for trial," Sudan Tribune, 13 October 2008,
http://www.sudantribune.com/spip.php?article28905

"The Sudanese government revealed today that a militia leader wanted by the International Criminal Court (ICC) has been detained and will stand trial for his alleged role in Darfur war crimes.
The Sudanese justice minister Abdel-Basit Sabdarat told the Associated Press from Cairo that militia commander Ali Mohamed Ali Abdel-Rahman, also know as Ali Kushayb 'is in government custody.'

.... Sudan's former Justice Minister Mohamed Ali al-Mardi told a news conference in Khartoum in February 2007 that 'Ali Kushayb, along with two other individuals, was sent for trial. He was detained as a suspect, questioned, his statements were evaluated and witness statements recorded, and then the decision was taken to refer him to court'.
But in March 2007 Kushayb's trial was delayed when the defendants filed an appeal with the Justice ministry after which Abu-Zeid told reporters that Kushayb's appeal was denied that there is 'sufficient evidence to proceed with the case'.

Shortly afterwards the Sudanese justice ministry ordered a ban on publishing reports or details relating to criminal cases on Darfur conflict and many observers at the time voiced skepticism over Khartoum's seriousness to try perpetrators of crimes in the war ravaged region..."

iii. "Sudanese Arrest Militia Leader," New York Times, 13 October 2008, http://www.nytimes.com/2008/10/14/world/africa/14darfurhtml?ref=world

"The Sudanese government has arrested one of the most wanted men in the country, a notorious janjaweed militia leader charged by an international court with orchestrating mass murder in Darfur, Sudanese officials disclosed on Monday.

The move is widely being interpreted as a way for Sudan to improve its image abroad and attempt to head off the possible genocide prosecution of the country's president, Omar Hassan Al-Bashir, in the International Criminal Court.

Human Rights groups have said that the militia leader, Ali Muhammad Ali Abd-al-Rahman - also known as Ali Kushayb and the 'colonel of colonels'
- personally led attacks on civilians and ordered entire villages to be burned to the ground and the women in them raped.

...'Whilst my heart hopes that this is the start of a real, Sudanese-led, judicial process, my head tells me it's yet another ploy by Khartoum to buy some time,' said James Smith, Chief Executive of Aegis Trust, an anti-genocide group..."

iv. "Darfur militia leader in custody," BBC News, 13 October 2008, http://news.bbc.co.uk/2/hi/africa/7666921.stm

"A Sudanese militia leader wanted by the International Criminal Court
(ICC) for alleged war crimes in Darfur is in custody, a minister has confirmed.

The ICC issued an arrest warrant for Ali Mohamed Ali Abdel-Rahman - known as Ali Kushayb - in February last year.

Sudanese Justice Minister Abdel Basit Sabderat said an investigation into alleged crimes committed by Ali Kushayb was now drawing to an end.

.... The government is lobbying hard for the UN Security Council to delay an ICC investigation into whether President Omar al-Bashir should be charged with war crimes.

... Legal experts say that Sudanese criminal law does not include charges of genocide, war crimes or crimes against humanity although the military law was revised last year.

The government has always denied reports that it had backed the Janjaweed militias accused of widespread atrocities against civilians in Darfur..."

v. "Sudan detains notorious figure from Darfur war," Daily Telegraph, 13 October 2008,
http://www.telegraph.co.uk/news/worldnews/africaandindianocean/sudan/319
0287/Sudan-detains-notorious-figure-from-Darfur-war.html

"One of the most notorious figures in Darfur's conflict faced justice on Monday after Sudan's regime bowed to pressure and arrested a tribal leader accused of numerous atrocities by the International Criminal Court.

Ali Kushayb, a former commander of the 'Janjaweed' militia, is the subject of an ICC arrest warrant on 51 counts of alleged war crimes and crimes against humanity.

.... Kushayb's detention may be linked to the proceedings launched against President Omar al-Bashir, Sudan's military dictator, in July.

... Sudan's regime argues that Kushayb, also known as Ali Mohammed Abdul Rahman, acted alone in Darfur and denies any responsibility for the Janjaweed.

But Kushayb's arrest warrant undermines this claim. It states that he fought in the Popular Defence Force, an official militia, and that he 'implemented the counter-insurgency strategy of the Government of the Sudan that also resulted in the commission of war crimes and crimes against humanity in Darfur.'

While leading thousands of gunmen, Kushayb is personally charged with
504 murders, 20 rapes and forcing 41,000 people from their homes...."

vi. "Sudan to try militia leader accused of war crimes," AFP (Via Google), 14 October 2008, http://afp.google.com/article/ALeqM5hqA1zBjMy1_fNXI5C838vauRXXag

"A Sudanese special prosecutor investigating atrocities in Darfur has decided there are grounds to try a leader of the feared Janjaweed militia, a Sudanese official said on Tuesday.

Idris Suleiman, deputy head of Sudan's mission in Cairo, told AFP that state-backed Sudanese militia leader Ali Kosheib will be brought to court in Darfur at a date set by a judge, 'likely in the next week.'

Suleiman said Kosheib has been in custody for months, and that the investigation accelerated after the justice ministry appointed a special prosecutor in August and access to witnesses became easier.

Thirteen cases of crimes in Darfur are being investigated, he said, although he declined to say how many suspects were involved.

The International Criminal Court, whose chief prosecutor is asking for a warrant for Sudanese President Omar el-Beshir, issued a warrant for Kosheib in 2007 for crimes against humanity and war crimes.

The court said Kosheib enlisted, armed, funded and supplied the Janjaweed militia and 'personally participated in some of the attacks against civilians.'

.... Sudanese Deputy Justice Minister Abdel Daim Zumarwi told AFP Kusheib has been detained for months, and had tried appealing his detention.

'He appealed, but the prosecutor said there were grounds to hold him,'
he said...."


II. MINISTER OF JUSTICE SAYS SUDAN WILL CONDUCT OWN TRIALS

"Sudan to conduct its own Darfur trials," International Herald Tribune,
13 October 2008,
http://www.iht.com/articles/ap/2008/10/13/news/ML-Sudan-Trials.php

"The Sudanese Justice Minister says Sudan will be conducting its own trials for suspects involved in crimes in the war-torn Darfur region but gave no date.

Abdel Basset Sabdarat says that a special prosecutor is nearly finished with a number of reports on unspecificed Darfur crimes.

He refused Monday to link the trials to a pending decision by the International Criminal Court to issue an arrest warrant against Sudanese President Omar al-Bashir over the situation in Darfur.

The ICC has already issued warrants for a number of other Sudanese officials.
Sabdarat said 'trials are not like making omelet' and it could take time..."

III. US AND ICC RELATIONSHIP SINCE DARFUR SITUATION

"Darfur killings soften Bush stance on International Criminal Court,"
The Washington Post, 13 October 2008,
http://www.pressdemocrat.com/article/20081013/wire/810130367&tc=yahoo

"As his administration draws to a close, President Bush appears to be backing down from his long-held and fierce oppo-sition to the International Criminal Court, an institution the president and his top advisers have rejected as a possible forum for frivolous cases against U.S. military and civilian officials.

The shift is related to what may be an even greater imperative for Bush:
bringing to justice the perpetrators of what the president has labeled 'genocide' in Darfur.

Few issues have symbolized the perceived unilateralism of the Bush administration more than the president's hostility toward the ICC. But as the court weighs a formal arrest warrant against Sudanese President Omar Hassan al-Bashir for war crimes, the administration is emerging as an unlikely defender of the court in the face of efforts by Sudan and oth-ers to derail the prosecution.

Secretary of State Condoleezza Rice and Bush's special envoy for Sudan, Richard Williamson, have made clear to sen-ior Sudanese officials that Bush will resist attempts by African and Islamic countries to push the United Nations to defer prosecution of Bashir.

... 'It's well known that we're not big supporters of the ICC, but the court is the only game in town right now to bring ac-countability for the Darfur genocide, and we don't want to let Bashir off the hook quite so easily,' said a senior admini-stration official who was not authorized to speak publicly about the issue...."


IV. EDITORIAL BY JONATHAN FANTON

"The UN Security Council and Omar al-Bashir," by Jonathan Fanton, President of the John D. and Catherine T. MacArthur Foundation, (The Chicago Tribune), 9 October 2008, http://www.chicagotribune.com/news/nationworld/chi-oped1009justiceoct09,
0,5470901.story

"Three years ago I was in Abuja, Nigeria, at a lecture given by Justice Richard Goldstone, the first chief prosecutor of the International Criminal Tribunals for Rwanda and the former Yugoslavia He talked about preventing and prosecuting crimes against humanity.

During the question period, a member of the audience stood up. His arms had been amputated. His voice trembled with anger as he asked a piercing
question: 'How can the Nigerian government protect Charles Taylor from justice?'

.... The incident moved me deeply and convinced me of a principle: The voice of victims seeking justice must be heard above the negotiations of politicians and diplomats. Peace without justice is no peace at all.

This principle is once more being tested as the UN Security Council considers whether to suspend proceedings against the president of Sudan, Omar al-Bashir, by the International Criminal Court.

The mass atrocities in Darfur shocked the conscience of the world. On March 31, 2005, the Security Council responded, referring the situation to the ICC-a move that gave hope that the perpetrators would be held to account.

After careful investigation, the prosecutor of the ICC announced this year that he would seek an arrest warrant for Bashir. The allegations included war crimes, crimes against humanity and genocide. At once, the government of Sudan launched a diplomatic campaign to end the legal process.

According to the court, the council has the right to suspend any ICC proceedings for up to 12 months, renewable. The court assumes that any such action would be to promote peace.

Sudan has apparently persuaded almost half of the council to support suspension. In July, Libya and South Africa amended a resolution renewing the UN-African Union peacekeeping force in Darfur to express concern about the actions of the prosecutor. They were supported by China, though-to its credit-not by the U.S.

Objections to action against Bashir are not limited to the Security Council. Both the African Union and the Organization of the Islamic Conference have demanded a suspension; it is feared that some of their members may even withdraw from the ICC.

Opponents contend that proceeding against Bashir would interfere with the peace process in Darfur-the same claim used against the indictment of Charles Taylor.

That argument does not convince. Taylor's indictment was unsealed by the Special Court for Sierra Leone at a sensitive moment-just as he was arriving for peace talks in Ghana. Many diplomats greeted the news of the indictment with frustration and anger, convinced that it would spark attacks in Liberia and thwart the peace process. The feared retaliatory violence never materialized. No matter how they felt at the time, those who took part in the negotiations now agree that, because Taylor was removed from the peace talks, the indictment contributed to their success.

Peace talks in Sudan are stalled while Bashir plays for time. Allowing the legal process against him to move forward is unlikely to make the unpromising diplomatic situation worse, and could provide leverage to speed a resolution.

..... The Security Council should not stand in the way of the ICC. To do so would undermine the fledgling system of international justice, may not advance peace in Darfur and would betray those who have suffered terrible crimes.

The victims of Darfur deserve to be heard as they ask: 'How can the Security Council protect Omar al-Bashir from justice?"


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