On October 19, 2009, the International Criminal Court (ICC) in The Hague will begin a hearing to assess whether charges of war crimes against Bahar Idriss Abu Garda, a rebel leader in Darfur, Sudan, should be confirmed. This "confirmation of charges" hearing, the first related to ICC investigations in Darfur, could pave the way for the ICC's first trial involving crimes committed in Darfur. The case against Abu Garda, for his alleged role in an attack in 2007 that killed 12 African Union peacekeepers, is also the first at the ICC involving crimes against international peacekeepers. The case provides the court an important opportunity to send a clear message to warring parties that attacks on peacekeepers will be prosecuted, which is crucial both for protecting civilians in wartime and addressing concerns of states-in this instance African states-that are providing the peacekeeping forces.
Bahar Idriss Abu Garda is a rebel commander in Darfur. Between January 2005 and September 2007, Abu Garda was the vice-president of the rebel group the Justice and Equality Movement (JEM). In October 2007, he joined with other rebel commanders to form a new armed faction, the JEM Collective Leadership (JEM-CL). Currently, he is the chairman and general coordinator of military operations for a coalition of rebel movements in Darfur, the United Resistance Front, which includes JEM-CL.
Abu Garda is alleged to have committed three counts of war crimes under the provisions of the Rome Statute, which created the ICC: murder, intentionally directing attacks against a peacekeeping mission, and pillaging. The allegations are for his alleged role in a rebel attack on an African Union base in Haskanita, North Darfur on September 29, 2007.
Abu Garda allegedly commanded splinter forces of JEM during the attack on Haskanita, which involved more than 1,000 rebel troops. According to the ICC prosecutor, 12 peacekeepers from four African countries-Senegal, Mali, Nigeria, and Botswana-were killed, and at least eight others were seriously wounded. The attackers allegedly destroyed equipment and installations and stole vehicles, ammunition, money and other property.
In many of the world's armed conflicts, civilians must rely on international peacekeepers for protection. The neutrality of peacekeepers, who avoid participation in hostilities unless attacked, permits them to focus on providing impartial protection for the civilian population. Peacekeeper responsibilities in Darfur have included patrols to promote protection of civilians in and around displaced persons camps and villages, investigations into reported hostilities, support for community policing efforts in camps for internally displaced persons, and support for efforts to prevent sexual violence, such as patrols to accompany women and girls when they leave the camps to collect grass and firewood. Following the Haskanita attack, the African Union (AU) peacekeeping mission curtailed its activities outside of its bases for several weeks, which restricted its ability to protect civilians.
Security remains a serious concern for the joint AU-UN peacekeeping mission (UNAMID), which took over peacekeeping in Darfur on December 31, 2007. The peacekeepers have repeatedly come under direct attack from both rebel and Sudanese government forces. More than a dozen of these peacekeepers have been killed and many more wounded in attacks, most recently on October 12, 2009, when gunmen opened fire on a guard post in North Darfur, wounding one peacekeeper. Such attacks hinder the ability of peacekeepers to provide security to civilians who are at risk, and the attacks discourage governments from sending their forces to participate in peacekeeping operations.
4. What is the purpose of the upcoming confirmation-of-charges hearing and what will happen during the hearing?
The hearing, before a three-judge pre-trial chamber, is to allow the court to evaluate whether the prosecutor has enough evidence to move ahead with a trial. The hearing-which is not a trial and will not determine Abu Garda's guilt or innocence-is required under article 61 of the Rome Statute and will take place before Pre-Trial Chamber I at the ICC.
At the hearing, the prosecutor's office will submit evidence to support the charges, including by calling several witnesses, but it will not present all of its evidence against Abu Garda. The defense can then object to the charges, challenge the prosecution's evidence, and put forward its own evidence. The hearing is expected to last until the end of October.
Abu Garda is expected to be present. He first came before the ICC voluntarily on May 18, in response to a summons to appear before the court issued in February. The Rome Statute allows the pre-trial chamber to issue a summons to appear rather than an arrest warrant if the judges are satisfied that a summons is sufficient to ensure that the person will appear before the court. During this first appearance, Abu Garda was informed of the crimes he allegedly committed and his rights under the Rome Statute.
Under article 58 of the Rome Statute, a defendant will only be kept in custody during proceedings at the ICC if this is necessary to ensure that the person appears before the court, does not compromise the investigation or proceedings, or does not commit further crimes. The court has not to our knowledge revisited the issue of Abu Garda being in custody since it issued the summons for him to appear in May, based on its determination that the summons was sufficient to ensure his appearance in court.
Abu Garda is represented by a defense team led by Karim A. A. Khan. The court-which is required by the Rome Statute to ensure a defendant's right to legal counsel-has provisionally approved paying for his defense. This may change, however, following a more thorough assessment of his financial situation.
Under the Rome Statute, victims can participate in proceedings beyond giving testimony as witnesses, although this cannot be in a manner that is inconsistent with the defendant's fair trial rights. To date, 78 victims have been recognized as participants in the case against Abu Garda, including family members of persons allegedly killed during the attack on Haskanita, individuals who were part of the peacekeeping mission and present at Haskanita during the attack, and members of the Haskanita community.
After the conclusion of the hearing, the pre-trial chamber has 60 days to issue a written decision. If a majority of judges finds that there are "substantial grounds to believe" that Abu Garda committed the crimes alleged, the charges will be confirmed and the case will proceed to trial. This is different from the standard necessary for a conviction at trial, which requires that the majority of judges in the trial chamber be convinced of the defendant's guilt "beyond reasonable doubt."
If the judges decide that there is not enough evidence to confirm some or all of the charges, the pre-trial chamber could take one of three actions. It could:
- Not confirm those charges for which the evidence is inadequate;
- Adjourn the hearing and ask the prosecutor to consider providing more evidence or conducting further investigations; or
- Adjourn the hearing and ask the prosecutor to consider amending a charge because the evidence appears to establish a different crime.
If the judges do not confirm certain charges, the prosecutor could subsequently provide additional evidence and renew the request for confirmation of those charges.
Thus far, arrest warrants have been issued for President Omar Al-Bashir of Sudan; Ahmad Harun, former minister of state of the interior and minister of humanitarian affairs, and the current governor of Southern Kordofan; and Ali Kushayb, a Janjaweed militia leader. All three are suspected of war crimes and crimes against humanity in Darfur. The ICC also is reviewing applications for arrest warrants or summons to appear for two other rebel commanders whose names have not been disclosed but who are believed to have participated in the Haskanita attack.
11. With an arrest warrant issued for the Sudanese president and with all of the ICC's current investigations in Africa, is the ICC prosecutor unjustly targeting African leaders?
While the ICC's current investigations are entirely in Africa, three out of the court's four investigations were referred voluntarily by the governments where the crimes were committed. Darfur, the fourth, was referred by the UN Security Council on March 31, 2005. The court's cases serve African victims. The case against Abu Garda moreover is helping to bring accountability for crimes committed against peacekeepers whom African governments sent to protect the civilian population of Darfur. In addition, the ICC prosecutor's office has several situations under analysis-a phase of review that may precede the opening of an investigation-in states outside of Africa, including Georgia, Colombia, and Afghanistan.
The ICC makes decisions about its investigations based on a variety of factors, including whether it has jurisdiction over the crimes. Some of the worst crimes in violation of international law since the court's authority began in 2002 have been committed in states that are not parties to the ICC and are thus outside the court's jurisdiction. In such instances, the court can only obtain jurisdiction if the Security Council refers the matter to the ICC or a non-state party voluntarily gives the court the authority to address crimes committed on its territory.
African states played an active role at the negotiations on the ICC statute in Rome, and African countries were among the founding ratifiers of the Rome Treaty. Of the ICC's 110 states parties, 30 are in Africa. Africans are among the highest-level officials and staff at the ICC, including judges who have been nominated by African governments. African states-Tanzania and Benin-were among the Security Council members that referred Darfur to the ICC.
At the same time, the landscape in which international justice is applied has been uneven, with leaders from or supported by powerful states less likely to be prosecuted by international courts when they are associated with war crimes, crimes against humanity and genocide. Nevertheless, justice should not be denied because it is politically impossible to ensure justice for all. Rather, governments should work to extend the reach of accountability to wherever serious international crimes occur. This can be achieved by working to increase the number of states that are parties to the ICC and insisting on justice for such crimes committed in states that are not parties to the court, such as Sri Lanka and Israel.