ICC Prosecutor to Pursue Case Against Darfuri Rebels

by Kevin Jon Heller

With all the attention being paid to the pending genocide charges against Bashir, the media has largely ignored Moreno-Ocampo’s recent announcement that he intends to seek an arrest warrant against rebel commanders in Darfur who are believed to be responsible for a vicious attack on AU peacekeepers in 2007:

“In a couple of weeks I will present my third case against some rebel commanders who were attacking African Union peacekeepers,” Moreno-Ocampo told a Council on Foreign Relations symposium, sponsored by Hollywood actors Angelina Jolie and Brad Pitt.

Moreno-Ocampo has been investigating a 2007 attack on an AU base in Haskanita, Darfur which killed 12 peacekeepers and was blamed on rebels. A U.N. report said vehicles used in the attack bore the initials “JEM,” which could have stood for the Justice and Equality Movement, a powerful rebel group.

Khalil Ibrahim, leader of the group, said in July that if any of his guerrillas was indicted they would be handed over to the international court for trial.

I confess that I’m conflicted about about Moreno-Ocampo’s plans.  On the one hand, as I discuss in my recent essay on situational gravity under the Rome Statute, I think that attacks on peacekeepers are precisely the kind of “socially alarming” crime — one of the factors that determines gravity, according to the Pre-Trial Chamber’s decision confirming the charges in Lubanga — that the ICC needs to prosecute regardless of their relatively small number of victims.  On the other hand, the case would continue the Prosecutor’s myopic emphasis on prosecuting rebels instead of government officials, even when the latter are more responsible for the crimes in a particular situation.  Indeed, although the Sudanese government is doing everything in its power to obstruct the Prosecutor’s investigations of Harun, Kushayb, and Bashir, it would no doubt be more than happy to help the Prosecutor investigate JEM.  As a result, it is very likely that the first Darfur case to reach trial would — once again — involve rebels, further undermining the ICC’s legitimacy.

Hat-Tip: Michelle F. at Stop Genocide.

http://opiniojuris.org/2008/10/28/icc-prosecutor-to-pursue-case-against-darfuri-rebels/

2 Responses

  1. Dear Kevin,
    I wonder whether you have seen the Appeals Chamber’s revision of the gravity requirements, issued in an ex parte appeal in 2007, which has only recently been made public: http://www.icc-cpi.int/library/cases/ICC-01-04-169-tFRA.pdf.  The Appeals Chamber scrutinises and rejects the systematic/widespread/’social alarm’ requirements enunciated by the Pre-Trial Chamber.

    Otherwise I agree with your post, although it’s hard to tell how the Sudanese authorities might react.  Choosing to recognise the ICC for select purposes might open doors that they don’t want to be opened.  Probably best to tread carefully.

    Best,
    Mark C.

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