Although the evidence collected and analysed by the Prosecutor confirmed the complex nature of the conflict in Darfur and the nature of the challenges facing the identification of specific individuals,70 the Prosecutor announced that the Office was
64
Ibid., p. 4.
65
Third report of the Prosecutor, Op, cit., p. 3.
66
Ibid., p. 9
67
Ibid., p. 3.
68
Fourth report of the Prosecutor, Op, cit., p. 2.
69
Ibid., p. 3.
70
seeking to finalise the preparation of the submission to the Judges by February 2007.71 Thereafter, the Office announced that they had finished their review, that sought ‘to determine whether the criteria to initiate an investigation are satisfied’, and concluded that such an investigation was warranted.72 With regard to assessing the admissibility of cases, the report noted that the Prosecutor requested in November 2006 an updated account from the Sudanese government on their national proceedings. It concluded that although there had been indications of developments, such as the arrest of 14 individuals, including Ali Kushayb, in relation to the commission of core crimes, ‘these indications did not appear to render the current case inadmissible.’ 73 After examining the application of the Prosecutor and all the evidence and information submitted, the Judges rendered their decision on 27 April 2007 that the arrest of the two suspects was necessary.74 Therefore, the Pre-Trial Chamber issued warrants of arrest against Ahmad Muhammad Harun, former Minister of State for the Interior and current Minister of State for Humanitarian Affairs of the Sudan, and Ali Kushayb, a militia leader, for war crimes and crimes against humanity.75 The Chamber also concluded that, according to the Prosecution’s application, ‘there appeared to be no proceedings, which were ongoing or had taken place in relation to Harun and Kushayb, which formed the basis of the Prosecutor’s application.’76 Therefore, the Chamber found that ‘without prejudice to any challenge to the admissibility of the case under Article 19 (2) (a) and (b) of the Statute or any subsequent determination, the case falls within the Court’s jurisdiction and appears to be admissible.’77
The seventh report of the Prosecution to the Security Council claimed that ‘the prosecutorial policy is transparent in regard to admissibility assessment and the selection of cases’;78 however, it did not demonstrate how this process worked in the given situation, particularly when the opening of the second and third investigations in relation to ongoing crimes by all parties was announced. The report noted that the
71
Ibid.,
72
Luis Moreno Ocampo, Letter to Judge Claude Jorda (June 1, 2005), from www.icc- cpi.int/library/cases/ICC-02-05-2_English.pdf
73
Fourth report of the Prosecutor, Op, cit., p. 2.
74
Decision on the Prosecutor Application under Article 58 (7) of the Statute, in the case of the Prosecutor v. Ahmad Muhammad Harun and Ali Muhammad Al Abd-Al- Rahman (Kushayb), ICC-02/05-01/07, 27 April 2007.
75
Sixth Report of the Prosecutor of the ICC to the UN Security Council Pursuant to UNSCR 1593 (2005), p. 11. 76 Ibid., 77 Ibid., 78
Seventh report of the Prosecutor of the International Criminal Court to the UN Security Council pursuant to UNSCR 1593 (2005), June 2008
Office was proceeding with two new investigations. It stated that the second case in the Darfur situation was investigating the question of who is maintaining Harun in a position to commit crimes and who is instructing him and others, remarking that ‘the official denial of such crimes is a characteristic feature of the case under investigation.’79 The Prosecution maintained that ‘decisions to commit crimes, to deny crimes, [and] to disguise crimes are taken at the highest level. Denial of crimes, by authorities that vowed to protect Darfurians, is an additional harm to the victims.’80 Therefore, on 14 July 2008, the Prosecution presented the second case to Pre-Trial Chamber I and requested a warrant of arrest against the Sudanese President, Al-Bashir, on seven counts of crimes of genocide, crimes against humanity and war crimes allegedly committed in Darfur.81 On March 3, 2009, the Pre-Trial Chamber issued an arrest warrant for President Al- Bashir, which listed seven counts: five counts of crimes against humanity and two counts of war crimes.82
The third case focused on a rebel attack during the Haskanita incident, targeting AU and UN peacekeepers and aid workers in September 2007.83 On 20 November 2008, the Prosecution presented its third case to Pre-Trial Chamber I against three rebel commanders allegedly responsible for the Haskanita attack.84 The ICC prosecutors charged Abu Garda and other unnamed rebel commanders with leading an attack on African Union (AU) peacekeepers that left 12 soldiers dead and wounded eight others according to court documents. The counts include war crimes of violence to life, intentionally directing attacks against personnel, installations, material, units or vehicles involved in a peacekeeping mission, and pillaging.85 A summons to appear was issued instead of an arrest warrant as Abu Garda had communicated to the ICC that he would appear voluntarily.86 This was the first time the court had issued a summons to appear in any case. On May 18, 2009, Abu Garda appeared before a judge at the ICC.87 Arguably, 79 Ibid., 80 Ibid., 81
ICC, Prosecutor's Statement on the Prosecutor's Application for a warrant of Arrest under Article 58 Against Omar Hassan Ahmad AL BASHIR (July, 2008)
82
Decision on the Prosecution's Application for a Warrant of Arrest against Omar
Hassan Ahmad Al Bashir, Public redacted version, CC-02/05-01/09, 4 March 2009, p. 92.
83
Seventh report of the Prosecutor, Op, cit.,
84
Summary of the Prosecutor's Application under Article 58, Case No. ICC-02/05, 20 November 2008. Public document, para. 4.
85
Pre-Trial Chamber ‘s Decision in the case of the Prosecutor v. Bahr Idriss Abu Garda, Public document, ICC-02/05-02/09, 7 May 2009
86
www.sudantribune.com/Darfur-war-crime-suspect-confident,31207
87
New suspect in the situation in Darfur, Sudan: First appearance scheduled for Monday, 18 May 2009
an investigation into an on-going conflict makes the political consequences of any investigation more sensitive. This is particularly pertinent as all of the ICC’s ongoing investigations, notably in the Darfur region, the Sudan and the DRC, are taking place in the midst of ongoing conflict.88 The view of the Prosecutor, as stated in his Office’s policy paper on the interests of justice, is that the ICC is not concerned with the interests of peace but justice.89