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Darfur: Latest News Articles and Related Opinions

15 Mar 2010

Dear all,

Please find below information about recent developments related to the International Criminal Court's investigation in Darfur, Sudan.

This message includes latest news articles (I) and related opinions (II).

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 regards,
CICC Secretariat
www.coalitionfortheicc.org

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I. NEWS ARTICLES AND RELEASES

i. “ICC says no absentia trial for Sudan president”, Sudan Tribune, 27 February 2010, http://www.sudantribune.com/spip.php?article34273

“The office of the prosecutor at the International Criminal Court (ICC) denied news reports in Khartoum that it intends to push for conducting in absentia confirmation of charges hearing for Sudanese president Omer Hassan Al-Bashir.

‘There is a procedure for confirmation of charges in absentia under the Rome statute but the OTP [Office of the prosecutor] is not considering this option at the moment’ Béatrice Le Fraper du Hellen, Head of Jurisdiction, Complementarity and Cooperation told Sudan Tribune in an email.

Article 61 of the Rome Statute states that ‘the Pre-Trial Chamber may, upon request of the Prosecutor or on its own motion, hold a hearing in the absence of the person charged to confirm the charges….when the person has Waived his or her right to be present or Fled or cannot be found and all reasonable steps have been taken to secure his or her appearance before the Court’.

Sudan does not recognize the court and so far Bashir has evaded travelling to ICC signatories with obligation to arrest him.

‘We are preparing additional evidence in relation to President Al Bashir’s intent to commit genocide, and the cover up of such crimes by the Sudanese state apparatus including HAC [Humanitarian Affairs Committee] and foreign affairs officials’ du Hellen said.

‘Since the arrest warrant was issued against President Al Bashir by the judges in March of 2009, he is being marginalized and isolated in the international community, and the Sudanese authorities are forced to show goodwill in peace negotiations. We will continue to work towards the increased isolation and finally the arrest of President Al Bashir. This is our priority’ she added.

The ICC issued an arrest warrant for Bashir a year ago accusing him of masterminding war crimes and crimes against humanity in Sudan’s Western region of Darfur.

Earlier this month the appeal chamber opened the door for adding the three counts of genocide after it ruled that the Pre-Trial judges erred in applying the legal standard for assessing the prosecutor’s request in adding these charges.

… On Wednesday the ICC prosecutor requested a closed hearing with the pre-trial judges saying it intends to file additional information.

‘The Prosecution considers that a hearing would provide it with an opportunity to seek the Chamber’s guidance on the most efficient and appropriate means to proceed’ the prosecutor’s requests reads….”

ii. “ICC chief: Sudan's Bashir ‘will face justice’”, by Jim Drury (Reuters), 4 March 2010, http://af.reuters.com/article/topNews/idAFJOE6230N520100304

“Sudanese President Omar al-Bashir will eventually face justice in The Hague, according to the head of the International Criminal Court.

Speaking on the first anniversary of the ICC issuing an arrest warrant for Bashir, its president Judge Sang-hyun Song dismissed criticism that the man wanted on charges of war crimes and crimes against humanity has not been apprehended.

‘When arrest warrants were issued against Slobodan Milosevic and Charles Taylor, people laughed and said it was a joke, but it took less than three years to get them brought before the tribunal,’ Song said on a visit to London.

‘President Bashir will be brought to the Hague to face justice.’

… Speaking at the event in parliament organised by the Henry Jackson Society, a geopolitical think-tank, Song said the ICC was successfully acting as a deterrent to despots across the world.

‘Some at the U.N. have told me they have noticed a deterrent effect by the judicial actions we've taken. Perhaps the would-be perpetrators of atrocities fear us, and this is an indication of our progress,’ Song said.

Song also praised U.S. President Barack Obama for adopting a more positive attitude to the ICC than his predecessor.

‘The U.S. government has ended its antagonistic stance towards the ICC and the key phrase that their officials use is having a 'positive engagement' with us,’ he said …”

iii. “Kenyan president invites his Sudanese counterpart to attend IGAD summit”, Sudan Tribune, 4 March 2010, http://www.sudantribune.com/spip.php?article34312

“The Sudanese president Umar Hasan al-Bashir today received an invitation to participate in an extraordinary summit of the Inter-Governmental Authority on Development (IGAD) to be held in Nairobi next week.

… Alor said that the visit came as part of an ongoing effort by IGAD to review the progress on the implementation of the 2005 Comprehensive Peace Agreement (CPA) and preparations for the upcoming elections in April.

… Kenya which is a signatory of the Rome Statute treaty which forms the basis of the International Criminal Court (ICC) has an obligation to arrest Bashir given an outstanding arrest warrant for him issued a year ago on charges related to crimes committed in Sudan's western region of Darfur.

Furthermore, the ICC judges are currently mulling a request from the prosecutor to open a high profile investigation into post-election violence events in 2007 and 2008.

… The Sudanese head of state managed to maintain ability to travel regionally to countries such as Ethiopia, Egypt, Eritrea, Libya and going as far as Zimbabwe and Mauritania, none of which are ICC members.

But Bashir has also turned down several invitations over the past year to attend events in Uganda, Nigeria, Venezuela, Denmark, Turkey, South Africa and US. …”

iv. “Sudan says Bashir to skip IGAD summit in Kenya”, Sudan Tribune, 5 March 2010, http://www.sudantribune.com/spip.php?article34325

“The Sudanese government announced that president Omer Hassan Al-Bashir will not take part in the extraordinary summit of Inter-Governmental Authority on Development (IGAD) in Nairobi scheduled for next week.
Bashir received an invitation yesterday delivered by the visiting Kenyan foreign minister Moses Wetangula and Ethiopian minister of foreign affairs Seyoum Mesfin.

The pro-government Al-Rayaam newspaper quoted Sudanese foreign minister Deng Alor as saying that the presidency has previously declined the invitation due to being occupied with preparations for the April elections.

The Sudanese head of state risks arrests in Kenya, a Rome Statute signatory, as he is wanted by the International Criminal Court (ICC) for charges of masterminding crimes committed in Darfur….”

v. “EU: Review Rights Climate for Sudan Elections”, Press Release, Human Rights Watch, 2 March 2010, http://www.hrw.org/en/news/2010/03/02/eu-review-rights-climate-sudan-elections

“The European Union Election Observation Mission to Sudan should consider the impact of ongoing human rights abuses and insecurity on the elections process, Human Rights Watch said in a letter to the mission on March 2, 2010. Human Rights Watch also urged observers to insist that President Omar al-Bashir, who is wanted on charges of war crimes and crimes against humanity, appear in The Hague to respond to the charges against him.

… The letter highlighted the International Criminal Court's outstanding warrant against al-Bashir on the grounds of war crimes and crimes against humanity committed in Darfur. The EU should refrain from direct contact with him in view of the pending arrest warrant, Human Rights Watch said.

‘Al-Bashir is a wanted man who needs to answer to charges of heinous crimes at the ICC," [Africa director at Human Rights Watch Georgette] Gagnon said. "EU silence on this issue risks tacitly endorsing Khartoum's total obstruction of justice for atrocities against Darfuris.’…”

vi. “Sudan radio prevents candidate from addressing Bashir’s ICC warrant”, Sudan Tribune, 3 March 2010, http://www.sudantribune.com/spip.php?article34316

“ … The officials at the [Sudanese state] radio opposed a reference made to the Sudanese president Omer Hassan Al-Bashir as a ‘head of state wanted internationally’ by the International Criminal Court (ICC) for responsibility on war crimes allegedly committed in Darfur.

… Yesterday Human Rights Watch (HRW) sent a letter to the European Union (EU) urging its electoral observes heading to Sudan to ‘look at entire human rights situation and how it is affecting the elections environment’.

… The letter also highlighted the ICC’s outstanding warrant against Bashir arguing that the EU should refrain from direct contact with him in view of the pending arrest warrant….”

vii. “Sudan’s Ruling Party Seen to Have Advantage In Upcoming Polls”, by Douglas Mpuga (VOA News), 11 March 2010, http://www1.voanews.com/english/news/africa/east/Sudans-Ruling-Party-Seen-to-Have-Advantage-In-Upcoming-Polls-87362057.html

“… [Deputy President of operations at the International Crisis Group Nick] Grono said it is hard to assess the effect on the election of the arrest warrant issued by the International Criminal Court (ICC) for al-Bashir. Two years ago, the court indicted him for crimes against humanity and war crimes committed since 2003 in the western region of Darfur.

Referring to Bashir’s defiance of the warrant, he said, ‘It may have enhanced his standing among some of the northern electorate, but I suspect a large section of the population are appalled at what happened in Darfur, and believe he has been rightfully indicted by the ICC, and that diminishes his legitimacy.’ …”

viii. “U.S. envoy pushes for Darfur peace deal before Sudanese elections”, by Sudarsan Raghayan (Washington Post), 10 March 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/03/10/AR2010031003105.html

“The U.S. special envoy to Sudan warned Wednesday that efforts to bring peace to the country's troubled Darfur region could become less of a priority for the Obama administration if a full-fledged peace agreement is not reached before Sudanese elections scheduled for mid-April. …

… Last year, the International Criminal Court in The Hague indicted Sudan's President Omar al-Bashir for committing crimes against humanity in Darfur -- the first sitting head of a nation to face such charges.

On Wednesday, Gration said Bashir should respond to the charges, but he stopped short of labeling the violence genocide. Until last year, he said, the international community's focus on Darfur had taken precedence over the 2005 peace deal between North and South Sudan, which ended a 20-year civil war that killed an estimated 2 million people. …”

ix. “UN: No Darfur disaster”, News24.com, 3 March 2010, http://www.news24.com/Content/Africa/News/965/a9bb1a0b9a9c4ec78dac7cb635792cd9/03-03-2010-07-04/UN_No_Darfur_disaster

“One year after 13 international aid agencies were expelled from Sudan's war-torn Darfur region, thousands of people survive on assistance distributed by Sudanese groups as a humanitarian catastrophe was averted.

On 4 March 2009, President Omar al-Beshir became the first acting head of state to face an arrest warrant issued by the International Criminal Court (ICC) for alleged war crimes and crimes against humanity in Darfur.

Sudan responded by immediately expelling 13 foreign non-governmental organisations accused of spying for the court and closing down three local aid organisations.

The move against relief organisations deprived the UN of key partners in Darfur aid distribution and threatened the lives of an estimated one million people.

… The arrest warrant issued by the ICC for Sudan's president has meanwhile coincided with a wave of kidnappings of foreign aid workers, limiting humanitarian operations in sensitive areas of Darfur.

‘It is the kidnappings that have affected our operations, not the expulsion of NGOs,’ said Saleh Dabbakeh, spokesperson for the International Committee of the Red Cross (ICRC) in Khartoum. …”

SEE ALSO:

i. “Al-Bashir will 'face justice' before ICC: president judge”, by Patrice Collins (Jurist), 5 March 2010, http://jurist.law.pitt.edu/paperchase/2010/03/al-bashir-will-face-justice-before-icc.php

ii. “Bashir will eventually face trial - ICC president”, by Katie Nguyen (Reuters), 4 March 2010, http://www.alertnet.org/db/an_art/57964/2010/02/4-173937-1.htm

iii. “Sudan’s Al-Bashir Should Respond to Criminal Court, U.S. Says”, by Sarah McGregor (Bloomberg.com), 10 March 2010, http://www.bloomberg.com/apps/news?pid=20601116&sid=akC0qyv_h4Cw

iv. “US official: Sudan's elections to be crucial test”, The Associated Press, 10 March 2010, http://www.google.com/hostednews/ap/article/ALeqM5iTTHmipeyteiRt8GzOSq3Ma0sYCgD9EBMPV80

v. “Sudan Needs Quick Darfur Peace Ahead of Elections, U.S. Says”, by Sarah McGeregor and Alan Boswell (Business Week), 10 March 2010, http://www.businessweek.com/news/2010-03-10/sudan-needs-quick-darfur-peace-ahead-of-elections-u-s-says.html

vi. “EU observers say confident of monitoring Sudan elections”, AFP, 11 March 2010, http://www.google.com/hostednews/afp/article/ALeqM5gs4phDaev7lzM1zEvjJpcNV80gsQ

vii. “Regional Summit Urges Implementation of Sudanese Peace Plan”, by Alan Boswell (VOA News), 9 March 2010, http://www1.voanews.com/english/news/africa/Regional-Summit-Urges-Implementation-of-Sudanese-Peace-Plan-87116467.html

viii. “Hundreds feared dead in Darfur clashes: UN”, by Andrew Heavens (Reuters), 1 March 2010, http://www.reuters.com/article/idUSTRE62020J20100301

ix. “Sudan's army says rebels ambushed UN-AU peacekeepers”, Reuters, 9 March 2010, http://af.reuters.com/article/topNews/idAFJOE62800Z20100309

II. OPINIONS

i. “Kenya's invitation to al-Bashir an affront to poll violence victims”, Op-Ed by James Gondi (Kenyan Section of the International Commission of Jurists), 11 March 2010, http://www.nation.co.ke/oped/Opinion/-/440808/877308/-/item/0/-/l51fhj/-/index.html
“Last week’s symbolic delivery of an invitation to Sudanese president Omar al-Bashir by Kenya’s Foreign Affairs minister Moses Wetang’ula to attend the ongoing extraordinary summit of the Inter-Governmental Authority on Development (Igad) taking place in Nairobi this week speaks volumes of the government’s commitment towards tackling impunity.

The invitation comes at a time when Kenya is exploring options to deal with gross violations of human rights which occurred during the post-election violence, and for which the Waki Report places significant blame on State security agencies and implicates a number of Cabinet ministers and senior government officials.
The Prosecutor of the International Criminal Court (ICC) has subsequently sought the permission of the Pre-Trial Chamber to launch official investigations into Kenya’s post-election violence.

… The timing of the overt invitation, keeping in mind Kenya’s own scrutiny by the court, lends the impression that Kenya supports impunity.

Victims of post-election violence in Kenya suffered violations concurrent with crimes against humanity as set out in the Rome Statute, including systematic rape.

Similarities can be drawn between the harm suffered by victims in Kenya and Darfur, notwithstanding the difference in scale. By extending such overtures to al-Bashir, given his inability to travel to other parts of the world, Kenya is effectively endorsing international crimes.

The Ministry of Foreign Affairs formulates foreign policy. Through its actions, the international community is able to gauge our foreign policy.

The international community has been grappling with the issue of impunity for decades, leading to the adoption of the Rome Statute in 1998 on the basis of which ICC was set up in 2002.

More than 110 countries, 30 of which are African including Kenya, are parties to the Rome Statute, signalling a commitment to ending impunity.

The action by our minister goes against the spirit of the Rome Statute which encapsulates the desire by the international community to secure justice for victims of the worst forms of human rights abuse.

The invitation of al-Bashir to Nairobi portrays our foreign policy as running contrary to our commitments under international law.

Further, a cross section of AU member states, led by Arab states sympathetic to al-Bashir’s indictment have formed a cauldron of impunity around the beleaguered Sudanese head of State.

The explicit invitation to al-Bashir signals a policy shift towards the position of this group of states with regard to the Sudanese president’s indictment and the role of the ICC.

Other State Parties to the Rome Statute have been clear on their obligations under the treaty in relation to the ICC’s arrest warrants against al-Bashir.

South Africa and Uganda expressly stated they would be obliged to arrest President al-Bashir were he to set foot on their territory. Kenya is a State Party to the Rome Statute and has domesticated the treaty through the International Crimes Act of 2008.

This places legal obligations on our authorities to cooperate with the ICC. Such cooperation includes the execution of ICC arrest warrants. Kenya has a duty to arrest al-Bashir should he set foot on Kenyan soil.

The policy shift has a bearing on Kenya’s own dilemma regarding the ICC. It is reasonable to consider the invitation to al-Bashir as a sign that the Executive is unable and unwilling to support the prosecution of those bearing the highest responsibility for the atrocities of December 2007 and early 2008.

More significantly, the invitation of al-Bashir to Kenya is an affront to the families of thousands of Kenyans who lost their lives during the post-election violence, the women who still bear the scourge of rape, and the thousands of citizens who remain internally displaced….”

ii. “Major obstacle stands in way of giving justice to Darfur victims”, The Scotsman, 22 February 2010, http://news.scotsman.com/comment/Major-obstacle-stands-in-way.6091689.jp

“The International Criminal Court (ICC) in the Hague has now decided to reconsider the genocide charge against Sudanese president Omar al-Bashir.

Bashir, who has been in power in the Eastern African state for more than 16 years, is accused of involvement in the crimes against tribes in the Darfur region in West Sudan.

... It is estimated that about 300,000 civilians died as a result of the fighting and more than two million people became refugees.

Given this background it seems strange that it takes the court so long to accuse Bashir of genocide.

This was no fault of the prosecution. Chief prosecutor Luis Moreno-Ocampo wanted to get an arrest warrant for the president as early as 2008. In his application, he was quite clear that genocide was part of the litany of crimes that Bashir had committed.



But back then, the judges who had to decide on the warrant agreed only to charges of war crimes and crimes against humanity.

On the charge of genocide, they found that Mr Moreno-Ocampo had not provided enough evidence. It was only after the prosecutor appealed the decision, that the court decided to look at the matter again.

Why this reluctance, when it comes to the crime which most people associate with the word "Darfur"?

Part of the reason is this: in international law, genocide has a very specific meaning. To politicians, it is the great number of victims that counts, the flow of refugees, the horror of the atrocities. What matters to lawyers is the intent behind the crime. That large-scale massacres were committed, does not necessarily mean that genocide, in the legal sense, exists.

What the court wants to know is if Bashir intended to destroy a particular group – it has to be one of four groups: a national, racial, religious or ethnic group.

Intent however is difficult to prove – how does one know what is going on inside the head of a defendant?

Some cases are easier than others. In 1994 for instance, when extremist Hutus killed their Tutsi neighbours in Rwanda, some of the attackers were actually singing ‘let us exterminate them’, so there was really no great doubt about their intent.

But such clear words are often missing, and the prosecution must rely on whatever other evidence it can find. Prosecutors who did not do their homework, got their fingers burnt in the past.

… What these cases show is that proving genocidal intent can be extremely difficult. It is that which made last year's judges in the Bashir case so hesitant about an arrest warrant that included genocide as a charge.

After this month's ruling by the Appeals Chamber it looks more than likely that genocide will now be added to Bashir's charge sheet.

But even that will not be the final word on the case. The hard work still lies ahead of Mr Moreno-Ocampo – the trial stage, during which he has to prove intent beyond reasonable doubt.

And yes, there is another difficulty in this matter – the minor issue of getting Bashir to the Hague….”

iii. “Two Legal Issues in the Context of the Abu Garda Decision”, by Evelyne Schmid (Making Sense of Sudan, SSRC Blog), 27 February 2010, http://blogs.ssrc.org/sudan/2010/02/27/two-legal-issues-abu-garda/

“In early February, the ICC Pre-Trial Chamber I declined to confirm the charges against Bahr Abu Garda, commander of a group that broke away from the Justice and Equality Movement, in connection with the attack that killed 12 African Union peacekeepers in Darfur in 2007. The decision of the pre-trial judges is a blow for the Office of the Prosecutor (OTP). If it is true that the Prosecutor submitted “scant and unreliable” (para. 179) evidence for a trial, it is the job of an independent and impartial organ of the Court abiding by standards of due process to decline the confirmation of charges. At a more general level, the Abu Garda decision brings two important legal issues to the fore: the selection of cases at the ICC and the legal status of peacekeepers.

The Abu Garda decision is a reminder of the Prosecutor’s vast discretion in selecting cases. Similar to other international criminal tribunals, this power has been granted to the Prosecutor in order to ensure his or her independence. But this power can be a double-edged sword.

… Had the Abu Garda case gone to trial, the Court would have had to pronounce itself on the legal status of peacekeepers by qualifying the Haskanita attacks in light of Article 8(2)(e)(iii) cited above. This may well have created a lose-lose situation for the ICC.

… The dismissal of the Abu Garda case avoids that the ICC have to wrestle with the complicated dilemmas pertaining to the legal status of peacekeepers – this may prove to be another positive, if unintended consequence of the Pre-Trial Chamber’s decision….”

iv. “Genocide in Darfur: How Sudan covers it up”, by John Prendergast and Omer Ismail (Christian Science Monitor), 1 March 2010, http://www.csmonitor.com/Commentary/Opinion/2010/0301/Genocide-in-Darfur-How-Sudan-covers-it-up

“Most governments don’t acknowledge it. The Sudanese president dismisses it. Darfurians demand that it be recognized. Academics, activists, and lawyers dispute whether it is still occurring or whether it occurred at all. International Criminal Court (ICC) judges debate standards of evidence surrounding it. The nature of recent attacks this past week by Sudanese government forces and militia allies against defenseless civilians potentially augurs its resurgence. And if a fledgling peace process continues to move forward, then any evidence of it ever happening may well be swept under the rug.

The ‘it’ in question is Darfur’s genocide. Seven years after a small rebellion in western Sudan by Darfurian insurgents unleashed a massive counter-insurgency strategy by the Sudanese government and its Janjaweed militia allies, the debate continues: What should be done about the genocide? How can justice and peace simultaneously be pursued?

The ICC’s recent ruling that genocide charges against Sudanese President Omar al-Bashir are possible gives new life to the issue.

…In our eight trips into Darfur over these past seven years, we have never met a Darfurian who does not believe genocide has occurred. But genocide is ultimately the subject of international law. The Genocide Convention states that the crime pertains when a party intends to destroy – in whole or in part – a particular group of people based on their identity. Although judges will ultimately rule on this, we believe the evidence for genocidal intent is there.

… Second, the Khartoum regime has systematically denied access to the United Nations/African Union observer mission to investigate attacks on civilians, so many of these attacks go unreported and the culpability remains mysterious.

… Third, there continue to be humanitarian black spots, areas where aid agencies simply can’t go, such as the areas affect by this week’s fighting, leaving over a third of Darfur unreached by food and medical aid.

… Fourth, Khartoum has systematically denied access to journalists and human rights investigators, and repressed independent Darfurian civil society groups, thus robbing us of another means of independently ascertaining what is happening today in Darfur, or gathering evidence about past crimes.

… Fifth, the Bashir administration has intimidated aid agencies and UN bodies so no independent information gets released about human rights issues, because to do so would mean certain expulsion for the responsible organization.

So when the word genocide gets raised and debated, we would make a plea to spotlight what is happening now to cover up the human rights crimes that have been and are being committed, losing the evidence to the vast sands of the Sahara Desert. We also hope that debate can eventually fixate on how to integrate the need for justice into more intensive peace-making efforts in both Darfur and southern Sudan. For peace to have a chance, peace efforts must be leveraged with real consequences for crimes against humanity, whether they are called genocide or not. …”

SEE ALSO:

i. “Opinion & Interviews: The former Sudanese Minister of Justice (Mohammad Ali Al-Mardi) directs fifty questions to the ICC Prosecutor General (Luis Moreno-Ocampo)”, Sudan Vision, 27 February 2010, http://www.sudanvisiondaily.com/modules.php?name=News&file=article&sid=54310

ii. “Sudan Is Still Up to No Good”, by John Norris (Foreign Policy), 11 March 2010, http://www.foreignpolicy.com/articles/2010/03/11/sudan_is_still_up_to_no_good?page=0,0

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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.

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