Refugee Rights News
Volume 4, Issue 4
June 2008
Ocampo Throws Down the Gauntlet.
On June 5, the International Criminal Court's prosecutor, Luis Moreno Ocampo, addressed the Security Council to update them on the progress of his investigation.
It was his strongest speech thus far. He stressed that the government of Sudan was failing to cooperate with the Court, particularly in refusing to hand over the two individuals against whom arrest warrants have been issued. He also updated the Court on two new incidents which are under investigation and which he intends to prosecute.
Ongoing violence and crimes
The prosecutor made it clear that he is continuing to monitor the situation on the ground in Darfur. And there is much violence and suffering to monitor, the humanitarian situation has only deteriorated. More than a year after arrest warrants were issued, women and girls continue to be raped and villages have been subjected to aerial bombardment. A group of eight humanitarian agencies reported on June 22, that 180,000 Darfurians were displaced in the first five months of 2008. Those who try to assist the most vulnerable in Darfur have equally been targeted. This year alone, 160 humanitarian vehicles have been hijacked and eight humanitarian workers have been killed. In May, a peacekeeper
serving with the joint United Nations - African Union Mission in Darfur (UNAMID) was killed in the latest in a series of attacks on peacekeepers in the region. Making this violence all the more difficult to address is the dizzying array of actors aligning on the ground, from splinter rebel groups to the main rebel factions, from janjaweed militias to government forces.
Cooperation
The Prosecutor's message on cooperation was clear--"The government of Sudan is not cooperating with the Court. The government of Sudan has not complied with United Nations Security Council Resolution 1593. The government of Sudan has taken no steps to arrest and surrender the suspects and stop the crimes."
Indeed, the government is steadfastly refusing to handover Ahmad Muhammad Harun, a state minister for humanitarian affairs and a junior member of President al-Bashir’s government, and Ali Muhammad Ali Ab-Al-Rahman aka Ali Kushayb, a member of the janjaweed. Not only has the Sudanese state allowed these two to evade justice, they have rewarded them. Harun continues to serve as Minister of Humanitarian Affairs, and taken up new roles--including taking part in a committee liaising with the United Nations and the African Union on the deployment of the hybrid peacekeeping forces. Kushayb, who was in government custody at the time that the charges were announced, has since been released, the government citing lack of evidence.
The government of Sudan has continued a rhetorical campaign against the Court as well. Interior Minister Zubeir Beshir Taha was quoted in June 2007 as insistent that the government would not take action against Harun and Kushayb, "I tell the whole world that [Harun] and [Kushayb] are in safe hands and are not at all worried." In April 2008, the government of Sudan took aim at the Court's prosecutor himself. Sudanese Ambassador to the United Nations Abdel-Mahmoud said the proceeding was, "nothing but a ridiculous political play trying to provoke countries against Sudan." Abdel-Mahmoud suggested that it was the Prosecutor himself who should be in the dock.
Darfurians have looked to the international community for a decisive response. When the Prosecutor announced that he was opening his investigation in June 2005, Darfurians rejoiced, seeing the Court as their best chance for justice.
The international response
Despite the fact that the Prosecutor reported in December of last year that the Court was not cooperating with the Court, the Security Council did not respond. This failure is just one example of how diplomats have too often allowed the need for justice to be set aside by other priorities.
International civil society, however, took up arms in an effort to change that. In April 2008, Justice for Darfur was launched bringing together organizations and networks such as the Darfur Consortium, Human Rights Watch, the Federation International des Ligues de Droits de l'Homme, and the Cairo Institute for Human Rights Studies, calling on the Security Council to pass a resolution requiring the immediate arrest of Harun and Kushayb and to raise the issue in its meetings in Khartoum.
Members of the Security Council expressed serious concern with Sudan's failure to comply with the Court and the Security Council resolution which had referred the situation. In particular, Costa Rica offered a passionate response with Foreign Minister Bruno Stagno Ugarte accusing the Council of being "too shy in responding to Sudan's refusal to comply with regards to Darfur.... The ghosts of Srebrenica and Rwanda should awaken us to the fact that some in Sudan believe that the graves in Darfur are not sufficiently full."
His call was answered when the Security Council issued a Presidential Statement on June 16, calling on the government of Sudan and all other parties to "cooperate fully" with the ICC under the terms of Security Council Resolution 1593. The resolution also took note of the efforts of the ICC to engage the government of Sudan and in particular the transmission of arrest warrants a year earlier.
The Darfur Consortium, via its Co-Chair, welcomed the statement which although it lacks the binding character of a resolution, "as a statement of the unanimous sentiment of the Council, the Presidential Statement sends a powerful message to Khartoum indicating that its defiance will no longer pass unchallenged."
International advocates had also pushed the European Union to adopt targeted sanctions, including asset freezes, against those members of the government responsible for shielding Harun and Kushayb or any future accused when it meets this month. Such sanctions would be a clear signal to the government in Khartoum that failing to comply with the will of the Security Council, in this case via cooperation with the ICC, will have consequences. Speaking at a press conference in Brussels on June 12, the President of the European Parliament Hans-Gert Pöttering recalled the Parliament's messages asking for the imposition of sanctions. At the same press conference, Salih Mahmoud Osman, a Sudanese member of parliament, reflected that Europeans had a "legal, moral and ethical responsibility" to support justice. Although silence might be expected from states which had never supported the Court, he reflected, he was at a loss to explain the lack of action from the EU, given its expressed commitment both to Darfur and the Court.
Although efforts to push the EU to adopt sanctions have not yet been successful, the European Council "deeply deplore[d] the continued failure of the GoS to cooperate with the ICC and underline[d] that the GoS has an obligation, and the capacity, to cooperate," noting that "[a]ny arrest warrant issued by the ICC should be respected." The Council went on to express its willingness to consider additional measures--including sanctions--against those preventing cooperation with the Court.
"The Sudanese government has been put on warning," Nkunda reflected, "but states must be willing to back this strong rhetoric with strong action in the event that Sudan continues to defy the Court."
And indeed there is speculation that this pressure may be producing results. A June 24, 2008 article by Wasil Ali indicated that a high level government mission had held a high level meeting to discuss the possibility of handing over Harun and Kushayb with the top party leadership divided on whether or not to surrender them to the Hague.
Future cases
The prosecutor also made clear, that he was exploring two new cases, one on ongoing crimes being committed in Darfur and the other on the attacks on peacekeepers. Ocampo said little about the investigation into the killings of peacekeepers simply saying that it was exploring evidence that rebel groups were responsible.
The other investigation, however, provoked a firestorm response. The prosecutor indicated that he would this time be looking for a "big fish"--that he would be looking up the chain of command for those who instructed and have been insulating Harun. The prosecutor pointed to both Harun's continued tenure as a minister, the continued denial of the government of Sudan of the scale of the crisis and the governments cooperation with the janjaweed as evidence that "[t]hese are evidence of a criminal plan based on the mobilization of the whole state apparatus, including the armed forces, the intelligence services, the diplomatic and public information bureaucracies, and the justice system."
The news that higher level officials will be targeted has been greeted with jubilation by some who see the uppermost reaches of the government as primarily responsible for the crimes in the Darfur. Others, such as prominent Darfur expert Alex De Waal have argued that indicting a high level official -- whom he indicates might be President Omar el Bashir would undermine the chances for meaningful negotiations and eventual peace.
This issue will continue to be the subject of intense discussion and will be explored more fully in the next issue of the newsletter, following the expected presentation of new evidence to the Pre-Trial Chamber in July.
