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UN Undersecretary-General for Humanitarian Affairs Coordinator Jan
Egeland called 2006 the worst year of the con¬‚ict in Darfur.157 Khartoum
continued to bar humanitarian organizations from entering the area.
Negotiations over UN augmentation of the African Union force dragged on.
Civilian casualties mounted while ICC investigations continued on the
periphery of the region. Peace was elusive. The effects of the Security
Council 1593 referral remained murky.


155
Rubin, ˜˜If Not Peace, Then Justice™™ (2006), 52. The identi¬cation of al-Addin in the
article as a ˜˜moderate Islamist™™ was challenged by experts on the Sudan who noted that
the National Islamic Front (NIF), of which he is a member, was not moderate from the
standpoint of the Darfur con¬‚ict. The NIF had routinely threatened that outside
intervention would not only undermine peace efforts but also result in high casualties
for intervening forces. Nonetheless, the comment demonstrated the poor prospects for ICC
access to Darfur and its ability to protect witnesses unless the situation changed
signi¬cantly. Personal communication, April 5, 2006.
156
Kessler, ˜˜Sudanese, Rebels Sign Peace Plan for Darfur™™ (2006), 1.
157
Reeves, ˜˜Why Abuja Won™t Save Darfur™™ (2006).
237
The First Situations

At a May 31, 2006, press roundtable, the Chief Prosecutor previewed his
third report to the Security Council to be delivered on June 14. He stated
that his investigators had questioned victims and witnesses in fourteen
countries, interviewed hundreds of witnesses, analyzed thousands of
documents, and collected expert evidence. Asked about whether warrants
could be issued without access to the area in which the crimes had actually
taken place, Moreno Ocampo simply responded that his of¬ce was doing
a good investigation. The investigations™ details remained con¬dential and
would continue to be so until warrants were issued.



PTC I Tries to Light a Fire under the OTP
On May 11, 2006, the UN High Commissioner for Human Rights
(UNHCHR), former ICTY Prosecutor Louise Arbour, implicitly criticized
the ICC Prosecutor when, following a trip to Darfur, Sudan, she told a news
conference, ˜˜I believe we must call on the ICC to act more robustly, and
visibly discharge the [Security Council] mandate™™ in order to bring to trial
those guilty of war crimes.158 In July, Antonio Cassese, the ex-Chairman of
the UN Commission of Inquiry on Darfur, similarly criticized the Prose-
cutor for acting too cautiously in Sudan.159 Cassese wrote that the Prose-
cutor should have requested Sudanese cooperation immediately after he had
decided to open an investigation, on July 1, 2005, rather than declining to
do so. Had he issued such a request, he would have been refused, but then
he could have gone to the UN Security Council to seek its assistance in
pressing for cooperation. Cassese described observers as mysti¬ed by
Moreno Ocampo™s reticence. Further, Cassese suggested that had the
Prosecutor focused upon establishing the Sudanese chain of command,
which presumably would not require investigations at the crime scenes,
having determined that crimes were taking place and that they were per-
petrated by the Sudanese military, warrants could have been considered
under the principle of command responsibility. Cassese argued that the UN
Security Council™s action placing four Sudanese nationals involved in
Darfur on the list of people against whom member states must adopt
sanctions amounted to the UNSC acting politically in lieu of judicial acts
that should be undertaken by the ICC.160


158
Waddington, ˜˜Arbour Urges ICC to Act on Darfur Crimes™™ (2006).
159
Cassese, ˜˜Is the ICC Still Having Teething Problems?™™ (2006), 434“41.
160
Ibid., 439“41.
238 Building the International Criminal Court

Acting under a rule permitting requests for amicus curiae submissions
from individuals or organizations,161 PTC I invited Arbour and Cassese to
submit ˜˜observations concerning the protection of victims and the preser-
vation of evidence in Darfur.™™162 In essence the two prominent and expe-
rienced international of¬cials were being asked to comment upon the
Chief Prosecutor™s course of action, each of them having recently been
critical of those actions. Under the rules, the OTP (and defense) had a right
to reply.163
Cassese™s response to the Pre-Trial Chamber asserted that the Court™s
responsibility toward victims and witnesses could be divided into two
aspects: ¬rst to protect them so that they could testify; and second, to ˜˜see
to it that serious offences against victims are terminated,™™ particularly
against civilians, women, and children, ˜˜in accordance with the general
purpose of criminal law and procedure, namely to forestall or impede the
perpetration of crimes.™™ Cassese pointed out that the Chief Prosecutor had
endorsed this objective for the Court in his third report to the UN Security
Council on ICC activities in Darfur.164
Cassese pressed the OTP to collect evidence about the Sudanese mili-
tary™s criminal responsibility and chain of command, as well as those of the
rebel groups. He suggested that the OTP should directly or through the Pre-
Trial Chamber seek the appearance before the Chamber of Sudanese of¬-
cials to report on measures taken to protect witnesses and victims and
directly or through the Chamber request the President of the Court to ask
the Sudanese authorities to protect victims, and he recommended that since
the OTP claimed that the situation was too dangerous for its personnel to
undertake large-scale investigations in Sudan, the OTP could seek permis-
sion from Sudan to conduct interviews of victims in the main towns of
Darfur. Cassese also suggested that the ICC request that the rebels guar-
antee during such investigations that they would temporarily suspend
armed activities. Cassese thought that Sudanese of¬cials as well as victims
could be brought to The Hague to give testimony, and should the govern-
ment resist, its refusal could be reported to the Security Council.165


161
Rules of Procedure and Evidence, Rule 103: Amicus curiae and other forms of submission,
para. 1, 2.
162
ICC, PTC I, ˜˜Decision Inviting Observations in Application of Rule 103 of the Rules of
Procedure and Evidence™™ (2006).
163
Rules of Procedure and Evidence, Rule 103.2, op. cit.
164
ICC, PTC I, ˜˜Observations on Issues Concerning the Protection of Victims and the
Preservation of Evidence in the Proceedings on Darfur Pending Before the ICC™™ (2006).
165
Ibid.
239
The First Situations

UN High Commissioner for Human Rights Louise Arbor told the Pre-Trial
Chamber that the UNHCHR believed from experience that there had been
very limited retaliation against victims for ˜˜interacting with the interna-
tional community,™™ and that such investigations always entail risks, but
that those can be minimized. She called for ˜˜an increased visible presence
of the International Criminal Court in Sudan™™ both to carry out investi-
gations and to contribute to the international presence that increased the
protection of civilians in the area.166 After a lengthy review of UNHCHR
activities in Sudan, Arbour asserted that the ICC needed to step up its
activities in Darfur to help deter continued criminality, to take advantage
of victims™ willingness, even at risk to themselves, to come forward with
evidence, and to contribute to protection simply by the presence of
unarmed ICC personnel in the area. She stressed that since the ICC™s
mandate came from the UN Security Council under UN Charter Chapter VII
(Peace and Security), Sudan and all other states were obligated to coop-
erate with the ICC, including ensuring that victims and witnesses could
freely and without fear of retribution come forward to testify to the
Court.167
The Chief Prosecutor responded to both amicus briefs, arguing to
Cassese that the OTP prosecution strategy was appropriate, ongoing, and
oriented not toward general protection of Sudanese civilians but toward the
development of information on which criminal cases could be based. In
response to Arbour, he argued that the ICC™s mandate was not for general
humanitarian assistance or protection but, again, for speci¬c judicial
activities, and that the UNHCHR was misunderstanding the role of the
Court and the OTP. Regarding both Cassese™s and Arbour™s briefs, the OTP
noted that since it was not interviewing victims in Darfur, no protective
mechanisms were appropriate to pursue under the Statute; because the OTP
was bound by the Statute™s standards of protection for witnesses and vic-
tims, the experiences of the Commission and the UNHCHR in their own
operations was irrelevant. Furthermore, since the ICC investigations could
lead to legal action, he asserted that resistance to ICC activities in Darfur
would likely be much stiffer than it had been to the mere information-
gathering activities with which Arbour and Cassese were familiar.168

166
ICC, PTC I, ˜˜Observations of the United Nations High Commissioner for Human Rights
Invited in Application of Rule 103 of the Rules of Procedure and Evidence™™ (2006).
167
Ibid.
168
ICC, PTC I, ˜˜Prosecutor™s Response to Cassese™s Observations™™ (2006); ˜˜Prosecutor™s
response to Arbour™s Observations of the United Nations High Commissioner for Human
Rights™™ (2006).
240 Building the International Criminal Court


Arrest Warrants
Chief Prosecutor Moreno Ocampo reported to the UN Security Council on
December 19, 2006, that his investigations into the Darfur situation were
continuing productively.169 He said that since the start of the investigation,
the OTP™s Darfur team had conducted more than seventy missions to seven-
teen different countries, ˜˜screening hundreds of potential witnesses and
conducting more than 100 formal witness interviews, many of which were
with victims of the crimes in Darfur currently under investigation.™™170 The
Prosecutor asserted that the evidence proved that various crimes under the
jurisdiction of the Court had been committed, and that grave crimes con-
tinued. In four missions to Khartoum, the OTP investigated whether it
appeared that domestic proceedings obviated the need for ICC involvement,
and this effort was continuing, although it did not appear that the cases
currently pursued by the OTP would be inadmissible due to Sudanese
actions. Moreno Ocampo indicated that he expected the OTP™s examina-
tion of domestic proceedings to be completed by February 2007, with
a planned visit to Khartoum in January.171
On February 27, the Prosecutor submitted to PTC I an application for
summonses to be issued to two Sudanese of¬cials, Ahmad Muhammad
Harun, who had been Minister of State for the Interior and head of the
˜˜Darfur Security Desk,™™ allegedly involved in recruiting the Janjaweed,
who ˜˜knowingly contributed to the commission of crimes against humanity
and war crimes, including murder, rape, torture, inhumane acts, pillaging
and the forcible transfer of civilian populations,™™ and Ali Kushayb, a local
commander allegedly responsible for leading Janjaweed attacks.172 The
request for summonses, rather than warrants of arrest, implicitly invited the
Sudanese authorities to cooperate with the Court and turn over the two
suspects. The Prosecutor™s application noted at its end, however, that
should Sudan indicate its unwillingness to comply with ICC efforts, the PTC
would be justi¬ed in issuing warrants for arrest rather than summonses.
According to a press account following the Prosecutor™s ¬ling, ˜˜Sudan™s
justice minister, Mohammed Ali al-Mardi, rejected the allegations and said
Khartoum would not hand them over for trial. ˜We are not concerned with,


169
ICC, ˜˜Fourth Report of the Prosecutor of the International Criminal Court to the U.N.
Security Council Pursuant to UNSCR 1593™™ (2005).
170
Ibid., 3.
171
Ibid., 7.
172
ICC, PTC I, Prosecutor™s Application under Article 58(7) (2007).
241
The First Situations

nor do we accept, what the International Criminal Court prosecutor has
opted for,™ al-Mardi said in Khartoum.™™173
NGOs welcomed the Prosecutor™s February announcement, calling both
for Sudanese cooperation with the Court and for the OTP to continue its
investigations. HRW™s Richard Dicker said, ˜˜While the individuals identi-
¬ed today are important, the ICC prosecutor should move up the chain of
command to target those senior Sudanese government and military of¬cials
responsible for the most serious crimes in Darfur.™™174 Antonio Cassese
admired the Prosecutor™s thoroughness in the warrant requests but was
˜˜surprised by the fact that the prosecutor started with mid-level indivi-
duals,™™ which he saw as an indication that Moreno Ocampo ˜˜has decided
to adopt the small step strategy, a very gradual strategy, not to go directly
looking for the major players who did the planning.™™ He pulled back from
criticizing Moreno Ocampo, however, stating his belief that the Prosecutor
˜˜has good reasons™™ for his approach.175 On April 27, 2007, the PTC issued
warrants for the arrest of Ahmad Harun and Ali Kushayb,176 leading to
repeated Sudanese government denunciations.177
When the Security Council referred the Darfur situation to the ICC, even
with U.S. reluctance and conditions, a major milestone had been reached.
The PTC™s subsequent approval of warrants for Ahmad Harun and Ali
Kushayb was a second major step: For the ¬rst time, the Court had man-
aged to carry out major investigations without cooperation from the state
on whose territory the alleged crimes had taken place. Actually gaining
custody of the suspects, of course, would be much more dif¬cult, unless the
two individuals were to travel outside the country and be arrested by
authorities in other states. During the interplay between the PTC and the
OTP, the tussle over prosecutorial strategy and the Court™s role in con¬‚ict
continued. NGOs and others (such as Louise Arbour and Antonio Cassese)
hoped that the actions of the Prosecutor would raise pressures on the
government, or at least contribute maximally to international pressures on
the government to force a change in policy. The twenty-month investigation
prior to the warrants and the naming of suspects that observers believed
were not at top levels of the government showed both the independence of

173
Associated Press, ˜˜International Criminal Court Names Former Sudan Minister in Darfur
War Crimes Case™™ (2007).
174
Ibid.
175
Petit, ˜˜The Small Steps Strategy of the ICC in Darfur™™ (2007).
176
ICC, PTC I, ˜˜Decision on the Prosecution Application under Article 58(7) of the Statute™™
(2007).
177
BBC, ˜˜Sudan ˜Will Defy Darfur Warrants™ ™™ (2007).
242 Building the International Criminal Court

the Prosecutor and, perhaps, his caution, if not an excess thereof.178 The
implicit message that might unfortunately be gleaned from both the DRC
and Sudan cases is that for top political actors, the threat from the Court
remains low.



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