11 Mar Darfuri Rebels to Stand Trial (Maybe)
With all the attention being paid to the situations in Libya and Kenya, the situation in Darfur has receded into the background. (Par for the course, unfortunately, with Darfur.) So it’s worth noting that the ICC’s Pre-Trial Chamber I has confirmed charges against two Darfuri rebels alleged to have orchestrated a September 2007 attack that killed 12 African Union peacekeepers:
On Monday, 7 March 2011, Pre-Trial Chamber I of the International Criminal Court (ICC) unanimously decided to confirm the charges of war crimes brought by the ICC’s Prosecutor against Abdallah Banda Abakaer Nourain (Abdallah Banda) and Saleh Mohammed Jerbo Jamus (Saleh Jerbo), and committed them to trial.
In accordance with article 61 of the Rome Statute, Pre-Trial Chamber I found substantial grounds to believe that Abdallah Banda and Saleh Jerbo are criminally responsible as co-perpetrators within the meaning of article 25(3)(a) of the Statute, for three war crimes:
- violence to life and attempted violence to life;
- intentionally directing attacks against personnel… involved in a peacekeeping mission;
- pillaging.
These crimes were allegedly committed during an attack led by Abdallah Banda and Saleh Jerbo and other commanders and directed against the compound of the African Union Mission in Sudan at Haskanita on the evening of 29 September 2007. The Chamber found substantial grounds to believe that the attack was directed to personnel, installations, material, units and vehicles involved in a peacekeeping mission in accordance with the Charter of the United Nations which were entitled to the protection afforded to civilians and civilian objects.
As regular readers know, I am very ambivalent about these charges. I have long argued that the ICC should consider attacks on peacekeepers to be particularly grave, even if they involve relatively few victims. But I have also regularly criticized Moreno-Ocampo for his obsession with rebels, and I think this case is a perfect example of that. Ordinary Darfuris are overwhelmingly opposed to the prosecution of rebel leaders, and with good reason — the rebels didn’t systematically kill, rape, and displace them; the Sudanese government did. So I continue to believe that it would be unseemly, damaging to the ICC’s legitimacy, and inconsistent with the spirit of the Security Council referral for the first Darfur-related trial to involve rebels instead of Bashir, Haroun, or Kushayb.
I have no idea whether Abdallah Banda and Saleh Jerbo will surrender themselves for trial; although they voluntarily complied with summonses in June of last year, they did not attend the confirmation hearing in December. Stay tuned.
Surely the primary question is whether the gravity thresholds for the crimes within the jurisdiction of the court are met – the identity of the alleged perpetrators and which side of the conflict they come from, providing that those criteria are met should not matter. Whilst of course, it is a key aspect of the Prosecutor’s strategy to only target the ‘big fish’ (and assuming that these two individuals fit this criteria), I don’t think, given the politics behind Security Council resolutions, that it would be wise as a matter of principle for the Prosecutor to pay too much deference to the ‘spirit’ of the Council resolution, which may have clearly been targeted at the Sudanese government. Though controversial, I would have thought that departing from the intentions of the Council clearly demonstrates to onlookers and critics that the Court, despite the referral of the situation (and not cases), remains independent from the Council and all the baggage that comes by association. Preserving the court’s legitimacy is of course vital, and the Prosecutor should think carefully about how his strategy will be received, particularly amongst the community affected by the conflict. However, as well as the Court’s perceived legitimacy within Sudan,… Read more »