Introduction
The international Criminal Court (ICC) in May 2007, issued arrest warrants against a Sudanese minister and a militia minister suspected of war crimes and crimes against humanity in the Darfur region.
The charge against the Sudanese minister
According to the ICC, Ahmed Haroun, a formal deputy interior minister in charge of Darfur in 2003 and 2004, was responsible for recruiting, funding and arming Janjaweed militia. Ahmed Haroun was made the humanitarian affairs minister who over sees Darfur’s two million refugees. He is accused by aid agencies of hindering their efforts to access the displaced.
The charge against the Janjaweed militia leader
According to the ICC, Ali Mohammad Ali (also called Ali Kosheid) was the leader in 2003, who allegedly promoted and witness rape and torture as part of the war strategy.
Evidence
According to a 58 page Court decision, there were reasonable grounds to believe that Haroun and Kosheib were responsible for persecuting, raping, attacking and killing civilians from villages in Darfur. ICC prosecutor Luis Moreho-Ocampo claims “we completed an investigation under very difficult circumstances, from outside Darfur, and without exposing any of our witnesses. We transformed their stories into evidence, and now the judges have confirmed the strength of that evidence,” (source: AFP news agency reports).
Legal basis of the arrest warrants
The ICC’s decision to issue arrest warrants for the arrest and trial of Ahmed Haroun and Ali Kosheib is based on the Rome statute of the International Criminal Court. The ICC has jurisdiction under Article 5 of the Statute, with respect to (a) the crime of genocide; (b) crimes against humanity; (c) war crimes; (d) the crime of aggression. The two men were both charged with war crimes and crimes against humanity under Article 7 of the Statute. ‘Crimes against humanity’ means any act when committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack. Crime that falls under Article 7 includes, murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment, or other severe deprivation of physical liability in violation of fundamental rules of international law, torture, rape, sexual slavery, enforced prostitution, etc.
According to Article 8 of the Statute, the ICC shall also have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or a part of a large-scale commission of such crimes. War crimes under this Article mean grave breaches of the Geneva Convention of 12 August 1949. These include wilful killing; torture or inhumane treatment; wilfully causing great suffering, or serious injuries to body or health; extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; unlawful deportation or transfer or unlawful confinement and taking of hostages.
Legal issues to be determined
The legal issues to be determined by the Court, therefore, is whether the two suspects alleged conducts constituted ‘war crimes and crimes against humanity’ within the meaning of Article 7 and 8 of the Rome Statute.
As mentioned above, Ahmed Haroun was allegedly responsible for organising and funding the militia, known as the Janjaweed. He is also alleged to have hindered aid agencies efforts to reach the displaced innocent people.
On his part, Ali Kosheib Ali, is also alleged to have promoted and witnessed rape and torture as part of the war strategy. Clearly, these crimes constitute “war crimes” and “crimes against humanity” defined under Articles 7 and 8 respectively. However, the onus is on the ICC prosecutor to prove with the evidence available to him that the two suspects, Ahmed Haroun and Ali Kosheib Ali, actually committed the alleged crimes.
It must be noted that under Article 7 of the Rome statute, the suspect must have knowledge of the attack. It appears that this may not be difficult to prove, given the manner in which the Sudanese government have conducted themselves so far.
The Jurisdiction of the Court
The jurisdiction of the Court is a serious question, thus, in the instance, is whether the ICC has the power to trial the two suspects. There are preconditions to the exercise of the Court’s jurisdiction. Article 12 of the Statute stipulates that a state which becomes a party to this Statute, hereby accepts the jurisdiction of the Court with respect to the crimes referred to in Article 5.
Sudan is not a state party to the Statute, nor has Sudan accepted the Jurisdiction of the Court. Obviously, the ICC relies on Article 13 of the Statute with regards to the arrest and trial of the two suspects. Article 13 provides that the Court may exercise its jurisdiction with respect to a crime referred to in Article 5, in accordance with the provision of the statute, if;
A situation in which one or more of such crimes appears to have been committed is referred to the prosecutor by a State party in accordance with Article 14;
A situation in which one or more of such crimes appears to have been committed is referred to the prosecutor by the Security Council acting under chapter V11 of the chapter of the United Nations; or
The prosecutor has initiated an investigation in respect of such a crime in accordance with Article 15.
Thus, with regards to the arrest and trial of the two suspects, the ICC will exercise its jurisdiction in accordance with Article 13B. In March 2005, the UN Security Council referred the situation in Darfur to the ICC’s prosecutor. The Security Council resolution 1593 requires Sudan to cooperate fully with ICC investigations.
The direction of the international Justice program at Human Right Watch, Richard Dicker, “the Council needs to monitor Sudan’s conduct and insist that it hands over the suspects as required.” Thus, the Sudanese authorities are required not only to execute arrest warrants, but also to respond positively to request from the ICC prosecutor.
Sudanese authorities response
Apparently relying on the fact that Sudan is not a party state to the ICC statute, the Sudanese authorities have failed to cooperate with the ICC. Whereas, the ICC believes it has jurisdiction to try the suspects. The Sudanese authorities contend that the ICC has no jurisdiction to try Sudanese, furthermore, that its own Courts are adequately capable of prosecuting suspects. Sudan, therefore, is saying that it will not allow anybody, including rebels, to be tried outside of Sudan.
According to Article 17 of the Rome Statute, the ICC shall determine that a case is inadmissible where;
The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable to genuinely carry out the investigation or prosecution. Article 20(3) of the Statute also provides that, “no person who has been tried by another Court for conduct also proscribed under Article 6, 7 or 8 shall be tried by the ICC with respect to the same conduct unless the proceedings in the Court;
Were for the purpose of shielding the person concern for criminal responsibility for crimes within the jurisdiction of the Court; or
Otherwise were not conducted independently or impartially in accordance with the norms of due process recognised by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.
The ICC has determined that the cases against the two suspects are admissible and the decision is clearly based on the obvious fact that Sudan is uncooperative and unwilling to genuinely carry out the investigation or prosecution of the two men. One of the two Suspects, Ali Kosheib, is said to already be in the custody of the Sudanese government for attacks committed in Darfur. He is said to have been in detention since November 2006, but it is believed that he has in fact been travelling Darfur under police protection (source: Association Press news report).
The two suspects have not been tried by any other Court for the crimes proscribed under Article 6, 7, or 8 and there is no indication that any other Court is prepared to do so. Under Article 19 of the Statute, a state which has jurisdiction over a case, on the grounds that it is investigating or prosecuting the case or has investigated or prosecuted may make challenges to the admissibility of a case. An accused or a person for whom a warrant of arrest or a summon(s) to appear has been issued may also make such challenges. On the basis of this, it could be argued, or concluded that the ICC should leave the case for Sudan to investigate or prosecute since Sudan has insisted that it is capable of trying alleged war criminals without any help from ICC. However, considering the evidence on the ground and the ongoing phenomenon in Darfur, one finds it extremely difficult to believe that, Sudan will indeed rain-in on the alleged war criminals and thus, properly investigate and prosecute. Humanitarian agencies have severally complained that they suffer frequent harassment from the Sudanese authorities (source: BBC news report).
It is important to mention that the ICC shall not rely on the Rome Statute only in other to try war crime suspects. According to Article 21 of the Statute, apart from the Statute, the ICC shall apply elements of crimes and its Rules of Procedure and Evidence; and where appropriate, applicable treaties and the principles of the international law, including the established principles of the international law of armed conflict. Article 21 further provides that the ICC shall apply general principles of law derived by the ICC from national laws general systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with the Rome statute and with international law and internationally recognised norms and standards. In addition, the ICC may apply principles and rules of law as interpreted in its previous decisions.
In conclusion, there is no question that the crimes allegedly committed by Ahmed Haroun and Ali Kosheib constitute war crimes and crimes against humanity. Once the prosecutor establishes strong evidence to support the charges brought against the two suspects, it will be difficult for the suspects to escape conviction for the crimes in question. It must be pointed out, however, that getting the suspects arrested and bringing them before a Court of law to stand trial is another matter.
Since the case was referred to the ICC prosecutor by the UN Security Council, the ICC has acquires jurisdiction over the case. Sudanese Courts also have jurisdiction over the case but the manner in which the Sudanese authorities have conducted themselves so far, leads to the conclusion that they are unwilling to genuinely investigate or prosecute the case. Thus, the ICC is the appropriate Court to try the suspects. However, like national criminal Courts, trial by the ICC is likely to be characterised by delay.
The international Criminal Court (ICC) in May 2007, issued arrest warrants against a Sudanese minister and a militia minister suspected of war crimes and crimes against humanity in the Darfur region.
The charge against the Sudanese minister
According to the ICC, Ahmed Haroun, a formal deputy interior minister in charge of Darfur in 2003 and 2004, was responsible for recruiting, funding and arming Janjaweed militia. Ahmed Haroun was made the humanitarian affairs minister who over sees Darfur’s two million refugees. He is accused by aid agencies of hindering their efforts to access the displaced.
The charge against the Janjaweed militia leader
According to the ICC, Ali Mohammad Ali (also called Ali Kosheid) was the leader in 2003, who allegedly promoted and witness rape and torture as part of the war strategy.
Evidence
According to a 58 page Court decision, there were reasonable grounds to believe that Haroun and Kosheib were responsible for persecuting, raping, attacking and killing civilians from villages in Darfur. ICC prosecutor Luis Moreho-Ocampo claims “we completed an investigation under very difficult circumstances, from outside Darfur, and without exposing any of our witnesses. We transformed their stories into evidence, and now the judges have confirmed the strength of that evidence,” (source: AFP news agency reports).
Legal basis of the arrest warrants
The ICC’s decision to issue arrest warrants for the arrest and trial of Ahmed Haroun and Ali Kosheib is based on the Rome statute of the International Criminal Court. The ICC has jurisdiction under Article 5 of the Statute, with respect to (a) the crime of genocide; (b) crimes against humanity; (c) war crimes; (d) the crime of aggression. The two men were both charged with war crimes and crimes against humanity under Article 7 of the Statute. ‘Crimes against humanity’ means any act when committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack. Crime that falls under Article 7 includes, murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment, or other severe deprivation of physical liability in violation of fundamental rules of international law, torture, rape, sexual slavery, enforced prostitution, etc.
According to Article 8 of the Statute, the ICC shall also have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or a part of a large-scale commission of such crimes. War crimes under this Article mean grave breaches of the Geneva Convention of 12 August 1949. These include wilful killing; torture or inhumane treatment; wilfully causing great suffering, or serious injuries to body or health; extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; unlawful deportation or transfer or unlawful confinement and taking of hostages.
Legal issues to be determined
The legal issues to be determined by the Court, therefore, is whether the two suspects alleged conducts constituted ‘war crimes and crimes against humanity’ within the meaning of Article 7 and 8 of the Rome Statute.
As mentioned above, Ahmed Haroun was allegedly responsible for organising and funding the militia, known as the Janjaweed. He is also alleged to have hindered aid agencies efforts to reach the displaced innocent people.
On his part, Ali Kosheib Ali, is also alleged to have promoted and witnessed rape and torture as part of the war strategy. Clearly, these crimes constitute “war crimes” and “crimes against humanity” defined under Articles 7 and 8 respectively. However, the onus is on the ICC prosecutor to prove with the evidence available to him that the two suspects, Ahmed Haroun and Ali Kosheib Ali, actually committed the alleged crimes.
It must be noted that under Article 7 of the Rome statute, the suspect must have knowledge of the attack. It appears that this may not be difficult to prove, given the manner in which the Sudanese government have conducted themselves so far.
The Jurisdiction of the Court
The jurisdiction of the Court is a serious question, thus, in the instance, is whether the ICC has the power to trial the two suspects. There are preconditions to the exercise of the Court’s jurisdiction. Article 12 of the Statute stipulates that a state which becomes a party to this Statute, hereby accepts the jurisdiction of the Court with respect to the crimes referred to in Article 5.
Sudan is not a state party to the Statute, nor has Sudan accepted the Jurisdiction of the Court. Obviously, the ICC relies on Article 13 of the Statute with regards to the arrest and trial of the two suspects. Article 13 provides that the Court may exercise its jurisdiction with respect to a crime referred to in Article 5, in accordance with the provision of the statute, if;
A situation in which one or more of such crimes appears to have been committed is referred to the prosecutor by a State party in accordance with Article 14;
A situation in which one or more of such crimes appears to have been committed is referred to the prosecutor by the Security Council acting under chapter V11 of the chapter of the United Nations; or
The prosecutor has initiated an investigation in respect of such a crime in accordance with Article 15.
Thus, with regards to the arrest and trial of the two suspects, the ICC will exercise its jurisdiction in accordance with Article 13B. In March 2005, the UN Security Council referred the situation in Darfur to the ICC’s prosecutor. The Security Council resolution 1593 requires Sudan to cooperate fully with ICC investigations.
The direction of the international Justice program at Human Right Watch, Richard Dicker, “the Council needs to monitor Sudan’s conduct and insist that it hands over the suspects as required.” Thus, the Sudanese authorities are required not only to execute arrest warrants, but also to respond positively to request from the ICC prosecutor.
Sudanese authorities response
Apparently relying on the fact that Sudan is not a party state to the ICC statute, the Sudanese authorities have failed to cooperate with the ICC. Whereas, the ICC believes it has jurisdiction to try the suspects. The Sudanese authorities contend that the ICC has no jurisdiction to try Sudanese, furthermore, that its own Courts are adequately capable of prosecuting suspects. Sudan, therefore, is saying that it will not allow anybody, including rebels, to be tried outside of Sudan.
According to Article 17 of the Rome Statute, the ICC shall determine that a case is inadmissible where;
The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable to genuinely carry out the investigation or prosecution. Article 20(3) of the Statute also provides that, “no person who has been tried by another Court for conduct also proscribed under Article 6, 7 or 8 shall be tried by the ICC with respect to the same conduct unless the proceedings in the Court;
Were for the purpose of shielding the person concern for criminal responsibility for crimes within the jurisdiction of the Court; or
Otherwise were not conducted independently or impartially in accordance with the norms of due process recognised by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.
The ICC has determined that the cases against the two suspects are admissible and the decision is clearly based on the obvious fact that Sudan is uncooperative and unwilling to genuinely carry out the investigation or prosecution of the two men. One of the two Suspects, Ali Kosheib, is said to already be in the custody of the Sudanese government for attacks committed in Darfur. He is said to have been in detention since November 2006, but it is believed that he has in fact been travelling Darfur under police protection (source: Association Press news report).
The two suspects have not been tried by any other Court for the crimes proscribed under Article 6, 7, or 8 and there is no indication that any other Court is prepared to do so. Under Article 19 of the Statute, a state which has jurisdiction over a case, on the grounds that it is investigating or prosecuting the case or has investigated or prosecuted may make challenges to the admissibility of a case. An accused or a person for whom a warrant of arrest or a summon(s) to appear has been issued may also make such challenges. On the basis of this, it could be argued, or concluded that the ICC should leave the case for Sudan to investigate or prosecute since Sudan has insisted that it is capable of trying alleged war criminals without any help from ICC. However, considering the evidence on the ground and the ongoing phenomenon in Darfur, one finds it extremely difficult to believe that, Sudan will indeed rain-in on the alleged war criminals and thus, properly investigate and prosecute. Humanitarian agencies have severally complained that they suffer frequent harassment from the Sudanese authorities (source: BBC news report).
It is important to mention that the ICC shall not rely on the Rome Statute only in other to try war crime suspects. According to Article 21 of the Statute, apart from the Statute, the ICC shall apply elements of crimes and its Rules of Procedure and Evidence; and where appropriate, applicable treaties and the principles of the international law, including the established principles of the international law of armed conflict. Article 21 further provides that the ICC shall apply general principles of law derived by the ICC from national laws general systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with the Rome statute and with international law and internationally recognised norms and standards. In addition, the ICC may apply principles and rules of law as interpreted in its previous decisions.
In conclusion, there is no question that the crimes allegedly committed by Ahmed Haroun and Ali Kosheib constitute war crimes and crimes against humanity. Once the prosecutor establishes strong evidence to support the charges brought against the two suspects, it will be difficult for the suspects to escape conviction for the crimes in question. It must be pointed out, however, that getting the suspects arrested and bringing them before a Court of law to stand trial is another matter.
Since the case was referred to the ICC prosecutor by the UN Security Council, the ICC has acquires jurisdiction over the case. Sudanese Courts also have jurisdiction over the case but the manner in which the Sudanese authorities have conducted themselves so far, leads to the conclusion that they are unwilling to genuinely investigate or prosecute the case. Thus, the ICC is the appropriate Court to try the suspects. However, like national criminal Courts, trial by the ICC is likely to be characterised by delay.
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