On February 27, 2007, the prosecutor of the International Criminal Court (ICC) asked the Pre-Trial chamber to issue summonses to appear for two Sudanese accused of war crimes and crimes against humanity in Darfur. This is the first case brought before the court in the context of its Darfur investigation.
1. Why is the prosecutor's filing significant?
The request for summonses signifies that the prosecutor of the International Criminal Court has completed his initial investigations in a first case on Darfur. Since 2003, the armed conflict in Darfur has been marked by crimes against humanity and war crimes committed with impunity. Hundreds of thousands of civilians in Darfur have endured atrocities that shock the conscience of humanity.
Attacking from air and land, Sudanese government forces and allied militias have targeted civilians on the basis of their ethnicity, killed them, raped them, forcibly displaced more than 2 million people from their homes and land, and burned hundreds of villages. The prosecutor's filing represents the first attempt to hold criminally liable some of the individuals responsible for this suffering. Human Rights Watch hopes the ICC prosecutor's request will be the beginning of the end of the impunity enjoyed by those who have brought mayhem and desolation to Darfur.
This is not only important to the many victims of the horrific crimes in Darfur, it is also a milestone for the court. Darfur is the first situation referred to the prosecutor by the United Nations Security Council and the first situation in which the country being investigated did not consent to the investigation. Thus in many ways it is a test case for the ICC and its ability to pursue cases in places where international investigators are not wanted.
2. Have ICC summonses to appear been issued yet?
Summonses have not yet been issued. The prosecutor has requested the Pre-Trial Chamber of the ICC, a judicial body consisting of three judges, to issue summonses to appear to State Minister for Humanitarian Affairs Ahmed Haroun and "Janjaweed" militia leader "Ali Kosheib" (a pseudonym for Ali Mohammed Ali) on the basis of his investigations so far.
3. When are the summonses issued?
The Pre-Trial Chamber will issue summonses if it determines that the summary of evidence presented by the prosecutor establishes "reasonable grounds to believe" that these individuals have committed the crimes alleged in the request. Only the Pre-Trial Chamber has the authority to issue arrest warrants or summonses. In previous ICC cases from the Democratic Republic of Congo and Uganda, the Pre-Trial Chamber has taken several weeks to issue a decision on the prosecutor's request for an arrest warrant.
4. What factors does the Pre-Trial chamber consider in making its decision?
When determining whether or not to issue summonses under the Rome Statute, the Pre-Trial Chamber is likely to take into account the following factors:
- whether the crimes alleged occurred in a location and during a time period over which the ICC has jurisdiction;
- whether the Sudanese national justice system has shown itself to be unwilling or unable to proceed in relation to these cases; and
- whether the case is sufficiently grave as to fall within ICC jurisdiction. The ICC is to investigate and prosecute only the "most serious crimes of concern to the international community." These include war crimes, crimes against humanity, and genocide.
If the Pre-Trial Chamber is satisfied that there are reasonable grounds to believe that the person has committed a crime within the authority of the court and the case is eligible to be heard before the ICC, it should issue a warrant of arrest if the arrest of the person appears necessary to ensure that he will appear at trial, that he will not obstruct the court's work, or that he will no longer commit this crime. Alternatively, the court may issue a summons to appear.
5. What's the difference between an arrest warrant and a summons?
Article 58 of the Rome Statute allows the Pre-Trial Chamber to issue either an arrest warrant or a summons to appear for persons who have allegedly committed crimes within the jurisdiction of the court. To issue a summons to appear, the Pre-Trial chamber must be satisfied that a summons, rather than an arrest warrant, is sufficient to ensure that the person appear before the court. The distinction is important because a summons to appear, unlike an arrest warrant, does not impose obligations on states which are parties to the Rome Statute, or otherwise required to cooperate with the ICC, to take the accused person into custody and surrender that person to the court.
Although a summons does not lead to the detention of the accused person, the Pre-Trial Chamber may, in some circumstances, impose conditions short of detention to restrict the accused's liberty. These conditions could include: restrictions on travel; prohibitions on contacting victims or witnesses; posting of bond; or depositing identity documents with the court. If the accused fails to appear before the court or does not comply with these conditions, the Pre-Trial Chamber may then decide to issue an arrest warrant.
To date, Sudanese officials have shown no willingness to appear before the ICC. Human Rights Watch is concerned as to whether the summonses to appear will be honored in this case.
6. For whom is the ICC prosecutor is seeking summonses?
Ahmed Mohammed Haroun is a former deputy minister in the Ministry of the Interior, who was instrumental in implementing the Sudanese government's Darfur policy in 2003-2005. This was the initial period of the conflict when the Sudanese government forces and their Janjaweed militias were perpetrating crimes against humanity against the civilian population, causing the displacement of more than 2 million people. Haroun still occupies a government post as state minister, but now in the Ministry of Humanitarian Affairs.
According to information collected by Human Rights Watch, Haroun is alleged to have had a direct coordination role for the Sudanese government in Darfur and participated in official meetings where he allegedly incited "Janjaweed" and army forces to attack specific ethnic groups like the Fur. Working as the deputy of former interior minister Maj. Gen. Abduraheem Mohammed Hussein, Haroun has been linked to meetings with government officials in Darfur that directly preceded armed attacks by the military and militia against civilian populations.
"Ali Kosheib" is the nom de guerre of Ali Mohammed Ali, the principal leader of the Janjaweed militias in the Wadi Saleh area of West Darfur. According to information collected by Human Rights Watch, Ali Kosheib was one of the key leaders of the attacks on villages around Mukjar, Bindisi, and Garsila in 2003-2004. In particular, Ali Kosheib, aided by government support and resources, is alleged to be responsible for the summary execution of scores of men around Mukjar, Garsila, and Delieg in February and March 2004.
Both Haroun and Ali Kosheib were identified in Human Rights Watch's December 2005 report "Entrenching Impunity" as individuals who should be investigated by the ICC for their alleged crimes in Darfur (see question 13).
7. Why can't Haroun and Kosheib be prosecuted in Sudan?
The ICC is not designed to infringe on national judicial systems. On the contrary, the ICC will only take a case if the national courts have been shown to be unwilling or unable to try the cases themselves. Thus the ICC is intended to be "complementary" to national justice systems that seek to hold to account perpetrators of grave international law violations, such as genocide, war crimes, and crimes against humanity.
The Sudanese government has not shown a serious willingness to investigate or prosecute those responsible for the atrocities in Darfur. Although the Sudanese government established the Special Criminal Court on the Events in Darfur (SCCED) on June 7, 2005-one day after the ICC prosecutor announced the initiation of his investigations-it has only prosecuted a small number of cases involving minor crimes, such as sheep theft, that are unrelated to the atrocities and do not rise to the level of crimes over which the ICC has jurisdiction. No senior official has been charged with responsibility for crimes in Darfur. Indeed, broad immunity provisions in Sudanese law protect members of the armed forces, national security services and police from prosecution. Other legal shortcomings, including a high burden of proof for rape victims present obstacles to meaningful national prosecutions. More detailed information on the SCCED may be found in Human Rights Watch's briefing paper "Lack of Conviction: The Special Criminal Courts on the Events in Darfur," which examines the courts' first year of operations.
8. The prosecutor initiated Darfur investigations in June 2005. Why did it take 21 months for the prosecutor to seek summonses?
Violations of international criminal law are by their nature complex and difficult to investigate. The Darfur investigations were further complicated by the prosecutor's assessment that direct investigations in Darfur were impossible because of the difficulty in protecting witnesses and the limited cooperation the prosecutor received from the Sudanese government. Security concerns in Darfur also made investigations more difficult. The limited number of investigators in the office of the prosecutor may also have had an effect on the efficiency of operations.
9. Will there be other cases from Darfur before the ICC?
The prosecutor has indicated that he will proceed with Darfur cases sequentially. Thus, the request for these summonses is likely just the beginning of the prosecutor's effort to hold accountable senior figures most responsible for the atrocities in Darfur. Human Rights Watch believes the prosecutor should seek to ensure that the people responsible for the most serious crimes in Darfur are brought to justice. This should include those in the highest position of authority for whom there is sufficient evidence to proceed. For more information, see Human Rights Watch's report "Entrenching Impunity."
10. Sudan has not ratified the Rome Statute. Is it obliged to cooperate with the ICC?
Although Sudan has not ratified the Rome Statute creating the International Criminal Court, it did sign the treaty on September 8, 2000. As a signatory to the Statute it is bound to refrain from acts that defeat the object and purpose of the treaty.
More imprtantly, UN Security Council Resolution 1593, which referred the situation in Darfur to the ICC, requires the government of Sudan to cooperate with the court even though it is not a state party to the Rome Statute. State cooperation is essential for the ICC to function. Because the ICC lacks the ability to enforce its own orders, it relies on state cooperation in order to conduct investigations or make arrests.
If Sudan refuses to cooperate, the prosecutor should go to the Security Council for assistance. Resolution 1593 requires the prosecutor to report to the Security Council on the progress of his work in Darfur at least every six months. The next mandatory report will take place in June 2007. The prosecutor should use this opportunity to raise any concerns related to Sudan's cooperation with its investigations. He may also seek to report to the Security Council at an earlier time. Under Chapter VII of the United Nations Charter, the Security Council has the ability to enforce Resolution 1593 and oblige Khartoum to cooperate if it is unwilling to do so voluntarily.
11. Can victims from Darfur participate in proceedings before the ICC? Are they entitled to compensation?
For the first time before an international criminal tribunal, victims may participate as independent parties in the proceedings, beyond giving testimony as witnesses. Victims can apply to the Pre-Trial Chamber to participate at any stage of the court proceedings. At this point in time, according to publicly available information, the court has not received any applications for participation by victims in the Darfur situation.
Victims may also apply to the court for reparations. To facilitate the enforcement of future reparation awards, the Pre-Trial Chamber has the ability to take certain measures, including freezing the assets of the accused, when issuing a warrant of arrest.
12. What happened in Darfur in 2003-2004?
Since early 2003, Sudanese government forces and the Janjaweed (a government-backed militia drawn from certain Arab nomadic groups) have engaged in an armed conflict with rebel groups, primarily the Sudanese Liberation Army/Movement (SLA/M) and the Justice and Equality Movement (JEM). The rebel groups initially drew many of their leaders and supporters from three major ethnic groups-Zaghawa, Fur, and Masaalit-who claim to be seeking redress for longstanding political marginalization, socio-economic neglect, and discrimination by the government in Khartoum.
In 2003 and 2004, the period in which the incidents investigated by the prosecutor occurred, the Sudanese government launched several major military offensives, including in July-September 2003, December 2003, and January to March 2004. These offensives included repeated bombing and strafing attacks by Antonov aircraft and helicopter gunships, which frequently targeted civilians or attacked indiscriminately. Aerial attacks were often coordinated with ground assaults by the military and Janjaweed militias that involved the killing of civilians, rape and other forms of sexual violence, torture, abduction, looting of property and livestock, and deliberate destruction and burning of villages. The rebel groups in Darfur have also carried out direct and indiscriminate attacks that have resulted in civilian injuries and deaths, albeit on a lesser scale.
The consequences of these attacks have been far-reaching. By early 2005, the conflict and systematic abuses by the Sudanese government had displaced an estimated 2 million people. An estimated 700 villages were completely or partially destroyed. The total number of Darfurians affected by the conflict is estimated to be 3.5 million people.
Human Rights Watch has been documenting and reporting on human rights abuses in Darfur since 2003, and has issued numerous reports, press releases, and briefing papers detailing the widespread atrocities committed by all parties to the conflict.
13. What about ongoing abuses in Darfur and in neighboring Chad?
In addition to the ongoing violence in Darfur, in January 2007, Human Rights Watch reported that attacks on civilians had intensified in eastern Chad by Sudanese and Chadian Arab militias in Eastern Chad, along the Chad-Sudan border. More than 120,000 civilians have been displaced as a result of violent attacks on villages in eastern Chad, mostly in the latter half of 2006. Violent militia attacks in eastern Chad claimed more than 300 lives in late 2006, primarily in the rural southeast, along the Chad-Sudan border. Children were shot and killed, women were raped, and villages were looted and burned, displacing more than 17,000 civilians in November alone. Meanwhile, Sudanese rebel groups with bases in the area have been responsible for the recruitment and use of child soldiers. These abuses constitute war crimes.
Following the ratification of the Rome Statute by the government of Chad in October 2006, the International Criminal Court has jurisdiction over violations of international humanitarian law in Chad, starting on January 1, 2007, as well as the events in Darfur. In his latest report to the Security Council in December 2006, the prosecutor indicated that "[...] the Office has continued to gather information in relation to the current crimes that are affecting the lives of the people of Darfur."
Human Rights Watch believes it is imperative that the prosecutor investigate and prosecute those most responsible for these ongoing crimes and continue to threaten robust action in the event of future crimes, both to maintain pressure on the Khartoum government to stop the continuing abuses in Darfur and to begin the process of accountability for the crimes that have been committed.
14. Who has Human Rights Watch identified as the people most responsible for international crimes committed in Darfur?
The list below is not a comprehensive listing of all individuals potentially liable for crimes in Darfur. It is presented as a summary of those individuals named in Human Rights Watch's report "Entrenching Impunity" and recommended for investigation by the ICC, but additional individuals not named in this report should also be investigated and prosecuted for crimes in Darfur.
National Sudanese Officials:
- President Omar El Bashir
- Second Vice-President Ali Osman Taha: Former first vice-president until late 2005
- Maj. Gen. Abduraheem M. Hussein: Former minister of the interior and representative of the president for Darfur, 2003-2004; now minister of defense
- Maj. Gen. Bakri Hassan Salih: Former minister of defense; now minister for presidential affairs
- Abbas Arabi: Chief of staff of the Sudanese armed forces
- Gen. Salah Abdallah Ghosh: Director of security and military intelligence
- Ahmed Haroun: Former state minister of the interior, responsible for Darfur portfolio within the Ministry of the Interior; now state minister for humanitarian affairs
Current or former regional officials:
The individuals listed below are included because, as described in the text of the report, they are or were the senior government officials in their districts or states when crimes amounting to war crimes or crimes against humanity were committed by government forces in Darfur.
- Al Tayeb Abdullah Torshain: Former commissioner of Mukjar, 2003-2005
- Al Haj Attar Al Mannan Idris: Governor of South Darfur, mid-2004 to present
- Ja'afar Abdel el Hakh: Commissioner of Garsila until April 2004; now governor of West Darfur
- Maj. Gen. Adam Hamid Musa: Governor of South Darfur, 2003 to mid-2004
- Maj. Gen. Abdallah Safi el Nour: Retired air force pilot and former governor of North Darfur, 2000-2001; and national minister in Khartoum 2003-2004
- Brig.-Gen. Ahmed Al Hajir Mohammed: Commander of the 16th Infantry Division forces used in the attacks on the villages of Marla, Ishma, and Labado in December 2004
- Maj. Gen. Al Hadi Adam Hamid: Chief of "border guards"; key liaison to Janjaweed militias
- Lt. Col. Abdul Wahid Said Ali Said: Commander of the 2nd Border Intelligence Brigade based in Misteriya, which supports military operations in and around Kebkabiya
- Maj. Gaddal Fadlallah: Commander in Kutum
- "Abu Ashreen": This is the nickname or nom de guerre of Abdullah Saleh Sabeel, who leads a militia based in Kebkabiya
- Sheikh Musa Hilal: key militia recruiter and coordinator
- "Ali Kosheib": This is the nickname or nom de guerre of Ali Mohammed Ali. He was one of the key leaders of the attacks on villages around Mukjar, Bindisi, and Garsila in 2003-2004. Several eyewitnesses recognized him as one of the commanders of the operations in March 2004, in which several hundred men were executed around Deleig, Garsila, and Mukjar
- Mustapha Abu Nuba: Tribal leader of a Riziegat sub-clan in South Darfur
- Nazir Al Tijani Abdel Kadir: Tribal leader of the Misseriya militia based in Niteiga, South Darfur
- Mohammed Hamdan: Riziegat militia leader allegedly involved in Adwah attack and looting in November 2004