The past week has seen two important decisions by the International Criminal Court (ICC). On February 3rd, the Court’s Appeals Chamber reversed Pre-Trial Chamber I’s decision of March 2009 not to include the crime of genocide in the arrest warrant against President Al-Bashir of Sudan. The Appeals Chamber directed the Pre-Trial Chamber to decide anew whether the arrest warrant should be extended to cover the crime of genocide based on the correct standard of proof.

Convenor of the Coalition for the ICC, William R. Pace commented that “this ruling was hugely significant as it could lead to the inclusion of charges of genocide for a sitting head of state and for the first time in the history of the court” It is also a key decision for the people of Darfur. Niemat Ahmadi, of the Save Darfur Coalition, commented that “the pursuit of justice is extremely crucial for the survival of our hope as Darfuri people…The ICC’s commitment to justice has set a great example for the rest of the international community to follow.”

The 8th of February then saw the judges of Pre Trial Chamber I unanimously decline to confirm charges of war crimes against Darfur rebel leader Bahr Idriss Abu Garda, meaning that his case will not move forward to trial. The Prosecutor had submitted that Abu Garda commanded an attack on the African Union Mission in Sudan (AMIS) at the Haskanita base in Darfur, Sudan in September 2007 which killed twelve AMIS personnel and wounded eight others. Although judges insisted that the case was of sufficient gravity, they established that they lacked evidence that Abu Garda participated in the common plan to attack the base. The prosecution is likely to seek to appeal the decision. At a later stage, the prosecution could again request that the judges confirm the charges against Abu Garda if supported by additional evidence. Pace explained that “the decision showed that the ICC judges abide by the strictest standards of fair trial including high respect for the presumption of innocence and serious examination of the evidence before them”.

It is important to recall that a request for summons to appear or, alternatively, arrest warrants was also made by the ICC prosecutor in November 2008 for two other individuals who allegedly participated in the Haskanita attack. These requests are still being examined by judges.

The investigation into the Darfur situation in Sudan was officially opened by the ICC prosecutor in 2005 after being referred to the Court by the United Nations Security Council. Three public arrest warrants have been issued against Ahmad Harun, Ali Kushayb and Omar al-Bashir. None of the outstanding warrants have been executed as the Sudanese government has openly defied and consistently refused to cooperate with the Court and the international community. Pace has responded, urging “…the Sudanese government, ICC states parties, other governments and international organizations to do their utmost to ensure that these three suspects face justice without delay.”

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On 26 October 2009, the Nigerian Coalition for the ICC issued an open letter to the Nigerian government reacting to the invitation extended to Sudanese President Al Bashir to attend the Peace and Security Council (PSC) meeting of the African Union to be held in Abuja (Nigeria) from 29 October 2009. Below are some excerpts of the open letter.

“… Nigeria is a state party to the Rome Statute of the International Criminal Court (ICC) having signed and ratified the treaty in September 2001. …[T]he United Nations Security Council (UNSC) in resolution 1593 of March 2003 referred the Darfur conflict to the ICC. Nigeria’s membership of this body could be jeopardized and compromised if we do not abide by our commitments to international justice, particularly, in light of the recent election of Nigeria to that body as one of the 10 non-permanent members.

… The NCICC is surprised that Nigeria agreed to host president Al-Bashir as this will be the first time that a state party to the Rome treaty would agree to host an individual wanted for international crimes. South Africa and Uganda are examples of states parties to the Rome Statute that refused to allow the president of Sudan into their countries because of its legal and political implications and we therefore expect Nigeria to do same and not allow Al-Bashir to come to Nigeria.

… However, we believe that the Darfur issue calls for urgent and concerted action by the Nigeria government to ensure that we do not provide a safe haven for somebody wanted for crimes against citizens of our continent.

We therefore call on the Nigerian government to rescind the decision to invite Al-Bashir to Nigeria as this invitation is not in our best interest and negates our commitment to international justice and the promotion of rule of rule and the rights of the citizenry in the continent. Nigeria has the obligation to arrest him and hand him over to the International Criminal Court for prosecution in accordance with article 86 of the Rome Statute which encourages states parties the treaty to cooperate fully with the ICC in its investigation and prosecution of crimes within the jurisdiction of the Court.”

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Since 2003, Darfur has been the scene of horrors committed by Sudanese President Al-Bashir, the Janjaweed militia and military forces. These massacres have been qualified as “intertribal collisions” or “actions led by autonomous criminal militia” with the pretext that this was part of a “conflict strategy against insurgence”: this is how Al-Bashir has been legitimizing the actions of his militia against civil populations.

On 4 March 2009, the ICC issued an arrest warrant for Al Bashir for war crimes and crimes against humanity in Darfur–a decision welcomed by all human rights defenders as a step forward in the fight against impunity.

Meanwhile, the uproar over this decision from the African Union and those heads of state who refuse to cooperate with the Court is scandalous. The African Union supports Sudan in its challenge to the legality of the arrest warrant, arguing that a head of state has immunity according to article 27 of the Rome Statute, which has been ratified by 30 member states of the AU. The decision not to cooperate with the ICC which was made in Sirte was guided by political considerations and is incompatible with the Rome Statute’s obligation to cooperate. The African Union and its members states should have been the first ones to intervene and cooperate in order to deliver justice, all the more that these tragic events are happening on our continent. Furthermore, Botswana and South Africa have led the way by reaffirming their engagement to cooperate with the Court. The deafening silence of other member states is no longer tolerable. Justice and human rights have to take precedence over any solidarity with Bashir and his co-accused.

In addition, the fact that Sudan is not a State Party to the Rome Statute does not exclude the Court’s jurisdiction when a case is referred by the UN Security Council. As a result, all UN member states have a duty to cooperate with the Court. The argument that the arrest warrant for Al-Bashir is going to destabilize the country and worsen the situation in Darfur is baseless when you examine realities on the ground. All reports show that assassinations, rapes and the destruction of villages have decreased in Darfur since March 2009. Justice and the search for peace can go hand in hand and reinforce each other.

Although it is true that most situations before the ICC have a connection with Africa (with the exception of Darfur), these situations have been referred to the ICC by African states themselves: Central African Republic, Democratic Republic of Congo and Uganda. In fact, in the last two decades, Africa has witnessed the worst conflicts characterized by massive violations of human rights and international humanitarian laws.

Most African States have ratified the Rome Statute, vowing to punish crimes of concern to humanity and to lend support to the ICC in its fight against impunity. In order to be credible, they have to show their people and the rest of the world that their fight against impunity is not selective and that any individual who is accused of crimes under international law should face justice irrespective of their position.

Ndiémé DIENG is a law student at the Lille 2 University, France and an intern with the Senegalese Section of Amnesty International.

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The African continent and its people have experienced a great number of coups and counter-coups in the last 40 or so years. During this time, state and non-state leaders have abused their power and used violence with impunity to commit the most serious crimes against their own people.

Fortunately for the majority of the leaders, there was no established universal and permanent criminal legal regime to hold individuals accountable for crimes perpetrated against civilian populations.

However, this changed with the establishment of the International Criminal Court in 2002. The Rome Statute, the Court’s founding treaty, specifically calls for the non- recognition of immunities provided to a sitting head of state or government suspected of being criminally responsible or actively participating in the commission of any of the crimes within the Court’s jurisdiction. The Court has followed the true letter of the Rome Statute by indicting Sudanese President Omar Al-Bashir for his alleged involvement in the crimes perpetrated against the people of Darfur. The arrest warrant for Bashir poses a number of obstacles. First, all African States Parties to the Rome Statute have an obligation to arrest and hand over President Bashir to the ICC; however, executing the arrest will be difficult as many African states do not have the political will let alone the legal mechanisms within their jurisprudence to deal with the possible handover of the suspect. Moreover, arresting President Bashir has internal implications for states in that it may lead to an inquiry of their own leaders.

Secondly, the Rome Statute provision on complementarity to national jurisdictions gives the likes of President Al-Bashir and the majority of AU leaders the opportunity to make a case for establishing national accountability processes and in so doing reaffirm the principle of state sovereignty. The case for national accountability mechanisms may not be in the interest of the ICC with respect to particular individuals who have been indicted; however the underlying reforms and achievements at the state level should not be underestimated given that they can involve important amending of penal provisions or enacting of a legal regime to provide for international standards, the establishment of criminal tribunals, etc.

Thirdly, the indigenous peoples of Darfur, the victims of atrocious crimes, and civil society in the region have the opportunity for the first time to see persons responsible for their suffering and the perpetration of crime be subjected to an international impartial accountability mechanism aimed at ensuring justice for the many victims. The international community’s experiences with Charles Taylor, Slobodan Milosevic and Radovan Karadzic inspire hope. Of all the criticism coming from the African Union and other misguided African leaders and pundits, what is most unsettling is the false notion that the ICC arrest warrant is a recipe for the collapse of the peace negotiations and the possible inflammation of violence in Darfur and southern Sudan. And yet,, when the violence is being perpetrated against the Darfuris, these same critics are noticeably silent on the need to hold the perpetrators of the crimes in Darfur accountable. An arrest warrant of such magnitude is likely to trigger some unwanted offensive actions on the part of the Sudanese government (including the targeting of civil society activists) but the spirit to fight on for the rights of individuals will not be undermined. Too many lives are on the line.

The author is a lawyer and Coordinator of the Uganda Coalition for the International Criminal Court.

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On 2 May 2009, Roland Abeng, a lawyer and representative of the Cameroon Coalition for the ICC, published an article in “The East African,” a Kenyan newspaper. Here are excerpts from the piece entitled “ICC Doing the Job of Failed African Judiciary.”

Following the indictment in March of Sudan’s President Omar al-Bashir by the International Criminal Court, and the fact that the rest of the court’s cases involve crimes committed by Africans, one wonders how “international” the ICC is.

The court has been “taken” over by Africans.

… The ICC became involved in the three other situations - northern Uganda, Democratic Republic of Congo and Central African Republic - on the invitation of the authorities of those countries, who themselves now drag their feet in assisting the court to complete its mission.

Darfur was referred to the court by the UN Security Council.

Should Africans and the African Union have an alternative to the International Criminal Court?

To find the answer, ask yourself whether there are even five African countries with judicial systems that can try grievous crimes fairly and equitably through an effective court structure.

What continental judicial institution currently exists that can effectively try those accused of wrongdoing?

The ICC is a court of last resort. Its treaty provides that the Court will not interfere with the judicial system of any country if the country is able and willing to try equitably those accused of grievous crimes.

…The ICC has not replaced viable national efforts. Rather, it helps attain justice where other options are not possible.

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On 3 April 2009, lawyer and human rights activist Lucille Mazangue of the Association des Femmes Juristes in the Central African Republic (CAR) published an op-ed in “Le Pays,” an independent newspaper in Burkina Faso. The piece confronts regional misperceptions about the Court and calls for African countries to revitalize their longstanding commitment to international justice. Here are excerpts from the piece, entitled “Advocating African Leadership to Uphold Justice.”

“[T]he current spate of accusations against the Court for its alleged targeting of African leaders has reached a critical climax. But critics are ignoring the facts and doing a great disservice to the victims of heinous crimes…insinuating that the ICC’s investigations are anti-African ignores a basic fact: when the Court investigates those presumed responsible for committing serious crimes in Africa, it does so in the name of African victims…

If the African states developed the capacity to lead investigations and foster active and effective judicial prosecutions of these crimes, fewer cases in Africa would reach the Court…

Guaranteeing justice for victims should not be rejected on the grounds that justice for all is not with immediate reach. The recent developments with the African Union are therefore quite disturbing…

The meeting of African States Parties to the ICC-expected to take place this spring in Addis Ababa under the auspices of the African Union-would appear to be nothing other than an act of hostility toward the Court, an act that threatens to weaken the institution. And yet, African leaders should do the very opposite. The victims are counting on them-particularly those from African States Parties-to strongly express how important the Court is as a means to end violence on the continent. It is especially important for States Parties such as Burkina Faso and Uganda who also enjoy a seat in the Security Council to adopt a positive leadership role.

…Instead of trying to weaken the Court, [the 30 African States Parties to the ICC] should proudly support the Court’s mandate…so that more nations outside of the Rome Statute system are pressured to adhere.

…African States have remained much too silent in the public eye. The question we need to ask is: will our leaders continue to let the Court suffer from attacks, or will they take an unequivocal stand for justice? The disparaging attacks against the Court undermine both victims’ interests and the aspirations of all African citizens. The aforementioned meeting of African State parties in Addis Ababa is an important moment to stem the current tide. The people of Africa are counting on their leaders to be on their side, and on the side of justice.”

Please Note: This is an unofficial translation by the CICC Secretariat from the original French.

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Sarah Jane Fowler is an intern with the Coalition’s Middle East and North Africa Regional Section.

On 14 April, Dismas Nkunda, Co-Director of the Kampala-based International Refugee Rights Initiative spoke in New York on the humanitarian situation in Sudan and Chad following the ICC’s 4 March 2009 arrest warrant for Omar Hassan Ahmad Al-Bashir, the president of Sudan.

Nkunda spoke of the continued targeting of Sudanese civil society organizations and activists, forcing some organizations as venerable as the Khartoum Centre to the brink of closure.

In response to reports that African states parties to the ICC may consider pulling out of the Court in early June, Nkunda warned that such actions would mark the “beginning of the end of the ICC.” He said one of the most influential opponents of the Al-Bashir arrest warrant to watch is Jean Ping, Gabonese diplomat and Chairperson of the Commission of the African Union. He stressed the importance of targeting South Africa, Libya, Nigeria, Algeria and Egypt - which wield the most influence and account for nearly 75% of all AU funding and identified the AU Peace and Security Council, Arab League, and Organisation of the Islamic Conference as important regional bodies that need to come down on the side of justice. Nigeria, Liberia, Ghana, Botswana, and Zambia should also be targeted for support.

The AU seemingly wants to keep Al-Bashir, Kushayb and Haroun, and even the rebels on their side in order to focus on the Comprehensive Peace Agreement. The more pressure there is on the Sudanese government, the less room to manoeuvre and move the CPA and entire political process along. Nkunda noted that rebel support for the arrest warrant is likely as it represents a tool to delegitimize the President’s authority.

Nkunda ended his remarks on a sobering note, saying that resources for raising awareness of the ICC mandate are limited by the day-to-day realities on the ground and the people’s legitimate concerns for their own safety in Sudan.

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Hours after the International Criminal Court ordered the arrest of Sudanese president Al- Bashir on war crimes last 4 March 2009, Abdelbagy H. Abushanab, a Darfuri activist for more than three decades and founding member of the non-governmental organization Darfur Rehabilitation Project, discussed his reaction to the warrant with the CICC Secretariat in New York. Here are some excerpts of that conversation:

“…This is a day Darfur victims have been waiting for; this is also a great victory for the advocates for justice…I think it is a victory for the international community. I feel very pleased of the extensive efforts in making sure that this crisis in Darfur stopped. This can serve as one of the pillars of actually securing and sustainable peace in Sudan in general, and in Darfur particularly….”

“…[Y]ou cannot believe the level of excitement and energy that the Darfurians felt and this is reflective of the failure of the judicial system of Sudan to address the issue of Darfur from the beginning…through the 6 years they continue to deny that there aren’t any problems in Darfur because they refer to it as a minor tribal issue, but then the question that should be asked is where has the government been? I think that al-Bashir’s first and foremost duty is to protect the civilians as a priority regardless where they are in a country, they are people who are formed under his jurisdiction and need to be protected but instead of doing that, he actually empowered a group against the other….”

“Sudan is known historically as a very peaceful country with very diverse groups who are very unique in their way of life. Today, we stand against each other even in such a distant nation. But I think for people of Darfur, those in the Diaspora, in the camps, and in the IDP camps, it is as if they are reborn and will see the justice coming and my call now is for the Sudanese people to see that I think the most noble thing we could do as Sudanese and Darfurians…is our calls for peace and justice to be taken very seriously with the ICC. Bashir stands as an accused person; he has the privilege of going to the ICC to defend himself in the most carefully designed way of justice to prove his innocence or to be proven guilty….”

“If you look at Sudan, it borders 9 countries; none of them are democratic with the exception of Kenya, which has a newly born very fragile democratic system which failed the test when those eruptions happened as a result of the recent elections. We can go on and on, on this issue. And I think it’s that time, for the people collectively and for the people of Darfur to take the lead in helping themselves to be helped, to make sure that there is peace and justice, that the process is now more likely to take it’s right course rather than the predictions we used to abide ourselves by and for them to know the wait is over so let that independent judicial system continue to help us to identify the criminals and put them away so that we can rebuild our lives. But, it is a lot to be done.”

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Niemat Ahmadi (left) participating at a Darfur rally on the day the ICC issued an arrest warrant for Sudanese President Omar al-Bashir. Credit: CICC, Russ Kuhner

The real satisfaction for all Darfuris, especially for women like myself, and those who are currently suffering day and night living in the IDP or refugee camps–justice is the only way to bring satisfaction for them. They will see their perpetrator that committed crimes against them finally held accountable. People can sign a peace agreement, but those who are deeply wounded, dehumanized–they will not feel that peace.

As long as those who committed crimes against our people are still controlling our affairs, we will not feel that peace. And the real peace is justice in Sudan. It is because of impunity that the current genocide is going on in Darfur.

We believe this arrest warrant came for us at a good time. There are so many people that will stand for justice and will not argue that justice should be compromised at the expense of peace. I think justice will bring lasting peace to Darfur and to Sudan at large.

Niemat Ahamadi
Darfuri liaison officer with Save Darfur Coalition

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