July 22, 2018

No criminal

You showed us the crime but not the criminal – is the basic message from the ICC’s Pre-Trial Chamber I to the Prosecutor.

At 103 pages their actual decision is significantly more detailed than that, but in essence the judges decided not to confirm the charges against Abu Garda not because they do not think that the attack on Haskanita did not happen, and not because they do not think that was a crime – but simply because they did not find substantial grounds to believe that Abu Garda himself played a role in the attack.

I will go into a brief summary of the decision below for those interested in the legal reasoning, but first a quick two (and a half) points of note.

As a public relations matter this is a disastrous decision for the Court vis a vis the Sudanese government. Until today this case – the only one of the Darfur cases to date that has gone to the confirmation of charges stage – could be used by ICC advocates as the counter-argument to Khartoum’s propaganda about the ICC being a tool of western imperialism focused on attacking the Sudanese government. A case against a rebel showed even-handedness on the part of the Prosecution. It was the kind of thing people like me could use in situations like last week when I had to debate one of the Sudanese government’s lawyers on Al Hurra television (link for Arabic speakers only). As he claimed that the ICC (and indeed every organization based in the west) only ever spoke about government crimes and never spoke about crimes committed by rebels, I asked why, if that was the case, was there a prosecution of Darfuri rebels in The Hague? He replied that the rebel case was a farce. One can readily imagine how rapidly today’s decision will be used to feed such a view.

Secondly, it is probably important to point out, in particular to the families of the peacekeepers killed in the attack on Haskanita, that today’s decision does not necessarily signal the end of a prosecution for the attack on the peacekeeping mission.

As you will see if you can be bothered reading the summary below, the Chamber did not refuse to confirm the charges because there is not a serious crime against the peacekeeping mission to be answered for; rather it declined to confirm the charges due to the lack of evidence pinning Abu Gardu to the crime. The Chamber explicitly left the door open for the Prosecution to provide more evidence in the future, and there is every reason to think – especially given the lengths the Chamber went to in order to determine that the attack on Haskanita was indeed a crime – that the Chamber would be happy for the case to go forward if the Prosecution presented better evidence regarding the alleged perpetrator/s of the crime.

And a final little note . . . I want to propose Judge Tarfusser for a Champion of Resource Conservation award. At a total of four pages it’s worth reading his Separate Opinion for yourself. But to paraphrase: Why did you idiots spend 100 pages of time and energy on a whole bunch of things you did not need to address? (my bad re. flippancy of initial paraphrase, see comments section below)  [” . . . the Prosecutor’s failure to establish a proper connection between a given event and a given individual makes any analysis of the presence of the objective and subjective elements of criminal responsibility a matter of mere academic debate. […]  There is no point in wasting precious judicial resources in making determinations which, however impeccable and sophisticated from a theoretical and legal standpoint, serve no purpose in properly adjudicating the case at hand.” (Separate opinion of Judge Tarfusser, para. 7 (i, ii)) ]

His argument, correct in my view, was that because the Chamber decided there were not substantial grounds to believe that the accused before them was actually involved in the attack, there was no reason for the Chamber to wade into whether or not that attack constituted a crime under the Rome Statute. Tarfusser also raises the interesting question of why the Majority decided to assess whether a crime occurred as per Count 2 of the charges (attack on a peacekeeping mission) but not whether crimes had actually occurred regarding Counts 1 and 3. My guess? In light of the spirited defence Abu Garda’s lawyer put on to argue that the AMIS base at Haskanita had lost its protected status and become a legitimate military target by the time of the attack, the Chamber wanted the message to the AU and all actors in Darfur generally to be loud and clear – In the view of this court AMIS deserved protection under the law.

Ok – to sum up the nuts and bolts of the decision:

The Prosecution charged Abu Garda with three war crimes:

#1 – violence to life (Art. 8(2)(c)(i));

#2 – intentionally directing attacks against persornel, installations, material, units and vehicles involved in a peacekeeping mission (Art. 8(2)(e)(iii));

#3 – pillaging (Art.8(2)(e)(v))

The mode of liability charged was co-perpetration or indirect co-perpetration (Art. 25(3)(a)) (without excluding other possible modes).

After all the background and procedural issues the decision jumps straight to the second count, of an attack on a peacekeeping mission. The decision covers the three agreed upon foundations of a peacekeeping mission (consent of the parties; impartiality; non use of force except in self-defense), and references the recent jurisprudence of the Special Court for Sierra Leone on this point. But what really counts is when it gets to whether the Haskanita base was, at the time of the attack, no longer impartial.

This goes to one of Abu Garda’s lines of defence. His first line of defence – a winner as it turned out – was, I wasn’t there. His second line of defence was – even if you say I was there, this wasn’t a crime. His lawyer argued that by virtue of allowing a Sudanese government officer to provide intelligence on rebel positions from the Haskanita base, the base had lost its protected status and become a legitimate military target. The court finds that regardless of whether or not the Sudanese government officer was providing the government with this intelligence at an earlier point, there was no such officer there on or around the period that the base was attacked.(see para. 147)

Having established that the attack did occur and that it was a crime, the court then goes to the question of whether there are substantial grounds to believe Abu Garda is criminally responsible.

According the Prosecution, Abu Garda was party to a common plan to attack the Haskanita base. Thus the first question the Chamber addresses is whether such a plan existed. The Prosecution argued that the plan was formulated at two meetings immediately prior to the attack. The Court finds that inconsistency of witness statements, combined with the Prosecution’s reliance on summaries from anonymous witness (which are permitted but assigned a lesser probative value by the court), leads to a conclusion that there are not substantial grounds to believe that Abu Garda was actually present at either of the two meetings.

Nevertheless, the court notes that the law permits the existence of a plan to be inferred from subsequent coordinated action, and seeks proof of this through evidence that either Abu Garda issued orders to attack Haskanita, or that he himself directly participated in a joint attack on the base.

The court concludes there are no substantial grounds to believe that Abu Garda issued orders because it finds there are no substantial grounds to believe that he was even in a position to issue orders on the date of the Haskanita attack. (see para. 216) The Court was not satisfied that the splinter group of JEM (called JEM-CL) that was formally announced in October 2007, was in existence and under Abu Garda’s control at the time of the attack in September, as the Prosecution alleged.

Moreover the Court also could not find substantial grounds to believe that Abu Garda was directly involved in the attack himself (see para. 230) (In one of the more damning lines of the judgment the court states that during the confirmation hearing the Prosecution “both states that Mr Abu Garda directly participated in the attack and that he did not.”)

All told, the Court failed to find substantial grounds to believe that Abu Garda himself was involved in the attack on the Haskanita base in any way at all. As the charges of murder and pillaging were related to the attack on the base, this finding meant there was no need for the court to consider the other charges.

Comments

  1. Cuno Tarfusser says:

    I had the opportunity to read your comment headed “No Criminal” on the Abu Garda decision of PTC I of the ICC and without going into the merits of the decision itself and your opinion about it, let me just say that I am astonished and I feel offended myself by the offensive language you used defining my colleagues, reducing what has been a serious and extensive legal debate between us to triviality. It is even worse that you present your debatable opinion as if it was mine “But to paraphrase:…”. Therefore I would like to express here my friendship, solidarity and esteem to my two colleagues, discussions with whom on legal issues and otherwise always have been and always will be informed by the utmost mutual respect.

  2. Dear Judge Tarfusser

    I apologize for any implication that you do not have the greatest respect for your colleagues. My “para-phrase” was tongue-in-cheek (I am, at times to my detriment, the product of an Australian culture of irreverence) – the tone of which was inappropriate to impute to you.

    For the record, please see amendment in post above.

    Best
    Bec Hamilton

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