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. 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 paraphase: Why did you idiots spend 100 pages of time and energy on a whole bunch of things you did not even need to address?

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.

Will post an update once I have churned through the decision . . .

Book drafting taking priority over commentary here, but just to keep you updated re. reactions to the Appeals Chamber decision on the Bashir arrest warrant, I’m posting below the communique released by the African Union. In short they are continuing an anti-ICC position.

One thing that did strike me when I was speaking with AU staffers in Ethiopia last summer, and that continues to be reflected in the communique, is the extent to which there is a strong sense of genuine indignation that the UN Security Council has refused to thoroughly consider the AU’s request (as a factor quite independent of whatever the actual conclusion of such consideration might be). Sadly, what follows is a politically-charged communique in reaction to what was a narrow ruling on a matter of legal procedure . . .

Communique on the 3 February 2010 judgment of the International Criminal Court appeals chamber on Darfur
ADDIS ABABA, Ethiopia, February 5, 2010/African Press Organization (APO)/ — The African Union Commission has learnt of the judgment rendered by the Appeals Chamber of the International Criminal Court (ICC), directing the ICC Pre-trial Chamber I to reconsider whether or not the indictment of President Omar Hassan Al Bashir, announced on 4 March 2009, should be extended to cover the charge of genocide.

This decision comes at a particular time in the history of the Sudan. Indeed, over the coming months, the Sudan will be witnessing momentous events, in particular the holding of national elections, in April 2010, and the holding of a referendum on self-determination for Southern Sudan, scheduled for January 2011. For the African continent, the successful completion of these processes and, more generally, the implementation of the Comprehensive Peace Agreement (CPA) are of utmost importance.

It is in light of the above that the AU has been actively involved in the efforts aimed at assisting the Sudanese people meet the challenges facing them. In particular, mention should be made here of the steps being taken to follow-up on the far reaching recommendations of the AU High Level Panel on Darfur (AUPD) on the three interlocking issues of peace, justice and reconciliation. The overall objective is to facilitate the democratic transformation of the Sudan in line with the vision articulated in the CPA. The AU’s efforts also include its support to the relaunching of the political process between the parties, under the auspices of the AU/UN Joint Chief Mediator and with the facilitation of the State of Qatar, to enable the Darfurians effectively to participate in the upcoming general elections and in the debate surrounding the 2011 referendum, as well as the continued deployment and enhancement of UNAMID.

The African Union has always emphasized its commitment to justice and its total rejection of impunity, in line with the relevant provisions of its Constitutive Act. At the same time, the AU reiterates that the search for justice should be pursued in a manner not detrimental to the search for peace. The latest decision by the ICC runs in the opposite direction. It is in light of the above that the AU requested the United Nations Security Council to defer the process initiated by the ICC, making use of the provisions of Article 16 of the ICC Rome Statute.

The African Union observes with concern that the UN Security Council has, to date, not given due consideration to this request, in spite of the AU’s repeated appeals and the serious risks and dangers associated with the pursuit of the ICC process in the context of the ongoing search for peace and reconciliation in the Sudan, as well as for stability in the region. At its 14th Ordinary Session held in Addis Ababa from 31 January to 2 February 2010, the Assembly of Heads of State and Government of the AU expressed deep regret at the failure of the UN Security Council to exercise the powers entrusted to it under Article 16 of the ICC Rome Statute and reiterated its request for the deferral of the proceedings initiated against President Al Bashir.

The African Union is confident that, with genuine support from the international community, the Sudanese people have the capacity to triumph over their long-standing divisions and accelerate the process of the pursuit of democracy and development. On its part the AU, which was the first to take the initiative and assume responsibility for peace and protection in Darfur, will remain actively engaged, as the crisis in Sudan is also Africa’s crisis; indeed, it profoundly affects the continent’s largest country at a critical moment in its national history, as well as its many neighbours and the continent as a whole.

The African Union is convinced that the achievement of lasting peace, justice and reconciliation in Sudan requires Sudanese ownership and Africa’s leadership, with the full support of the international community.

To be clear about what this does not mean: It does not mean that the Bashir arrest warrant now includes the genocide charge - at least not yet. The Appeals Chamber believes that the legal error (see below) that the PTC made had a material impact on its decision not to issue the warrant with the genocide charge included, which is why the PTC’s rejection of the genocide count cannot stand. However it is now back to the PTC to decide - this time using the right legal standard - whether or not to include the genocide count.

The legal error was the one the Prosecution identified in its appeal brief. As the Appeals judgment summarized it:  “. . . requiring that the existence of genocidal intent must be the only reasonable conclusion amounts to requiring the Prosecutor to disprove any other reasonable conclusions and to eliminate reasonable doubt. If the only reasonable conclusion based on the evidence is the existence of genocidal intent, then it cannot be said that such a finding establishes merely “reasonable grounds to believe”. Rather, it establishes genocidal intent “beyond reasonable doubt.” (para. 33, Appeals decision).

Put simply, the PTC had applied the standard of proof required for a conviction at trial to the decision of whether or not to issue an arrest warrant. This was wrong as a matter of law (See here for summary of different standards of proof required at different stages of the process.)

In my view this was a completely accurate decision, and I’m happy that Nice/Dixon’s attempt to persuade the court otherwise was rejected.  If this had been decided wrongly, the impact would have been broader than the Bashir case - it would have set the ICC’s jurisprudence on this question down the wrong track, leading to a point where the Prosecution would have had to prove genocide beyond a reasonable doubt just to get an arrest warrant - making it unlikely that an arrest warrant would ever be issued for genocide in any future case.

Now the wait begins again while the case goes back to the PTC.

Interestingly the composition of the PTC that the case will go back to has changed since their initial decision. In their original decision there were two judges, Steiner and Kuenyehia (the majority) who used the wrong legal standard (now reversed) and then one Judge, Ušacka (the dissenter) who used the correct standard. When it now goes back to the PTC for reconsideration using the correct standard, only one of the original judges (Judge Steiner) remains. Replacing Ušacka and Kuenyehia will be Judges Sanji Mmasenono Monageng (from Botswana) and Cuno Tarfusser (from Italy). Stay tuned . . .

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Al Bashir case: Appeals Chamber to deliver on 3 February, 2010, its judgment on the Prosecutor’s appeal against the arrest warrant decision

On Wednesday, 3 February, 2010, at 10:30 a.m.  (The Hague local time), the Appeals Chamber of the International Criminal Court will deliver, in public session, its judgment on the Prosecutor’s appeal against the “Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir”.

In that decision dated 4 March, 2009, the majority of Pre-Trial Chamber I found that the material provided by the Prosecutor in support of his application for a warrant for the arrest of Omar Al Bashir failed to provide reasonable grounds to believe that Omar Al Bashir had the specific intent to destroy, in whole or in part, the Fur, Masalit and Zaghawa groups. Consequently, the crime of genocide was not included in the warrant issued for the arrest of Omar Al Bashir.

On 6 July, 2009, the Prosecutor appealed the decision, in relation to that charge, submitting to the Appeals Chamber that the majority of Pre-Trial Chamber I erred when requiring that the existence of reasonable grounds to believe that the person has committed the alleged crime must be the only reasonable conclusion from the evidence presented by the Prosecutor.

Ok - that’s it from me. I’m strictly offline and back to book drafting.

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Ok, so commitment not to blog necessarily broken by report via Xinhua (link seems now not to work so am posting full text below) that Sudan has expelled 26 aid organizations from Darfur, allegedly for violating their mandates.They have a month to get out. Will post again once I have more information . . .

Sudan expels 26 foreign organizations from Darfur

Source: Xinhua News Agency

Date: 21 Jan 2010
KHARTOUM, Jan. 21 (Xinhua) — The Sudanese authorities said on Thursday it has decided to expel 26 foreign organizations working in the western Sudanese region of Darfur in the humanitarian field for violating their mandates.

The Sudanese Commission for the Humanitarian Assistance said in a statement that the 26 foreign organizations violated the Sudanese laws on the mandates of the humanitarian organizations, adding that they had been ordered to leave the country within one month.

“The decision was taken according to the 11th item of the 2006 law organizing the humanitarian works in Sudan,” the statement said, without elaborating what behaviors of these organizations incurred the banishing.

It noted that the government took this decision after a technical and assessment committee responsible for monitoring operations of the humanitarian organizations working inside Sudan found out that these organization had run counter to the law.

“These organizations have been given one month of grace in order to fit their positions and liquidate their banking accounts before leaving the country,” the statement said.

The surprising step came as the country has started a prelude of general elections scheduled for April this year.

Last week, the incumbent President Omar al-Bashir was nominated by the ruling National Congress Party and some 20 other parties as their candidate to run for the presidency in the upcoming elections.

On the other hand, the Sudanese government and Darfur rebel groups will resume their peace talks in the Qatari capital Doha on Sunday, which international community hopes leads to a peace deal before the general elections.

It was not the first time for the Sudanese government to expel foreign humanitarian organizations.

Hours following the International Criminal Court (ICC) issued an arrest warrant against al-Bashir in March last year, Khartoum ordered some 10 foreign relief organizations to immediately leave this African country, angering some Western governments.

The Sudanese government accused these groups of transporting witnesses and fabricated information for The Hague-based ICC.

I’m entering into a blog-free month as I concentrate on book drafting. ln so doing I’ll miss all the commemorations (and commiserations) that have already begun around the fifth anniversary of the Comprehensive Peace Agreement.

At this time I find myself reflecting on my first trip to South Sudan in 2004, six months before the CPA was signed - and remembering all the hope and excitement there was about the world of possibilities that would open up when a much-longed-for peace finally came. But then I, along with the rest of the world, got diverted by the atrocities in Darfur, which undoubtedly required attention. If only our our attention had come in addition to, rather than at the expense of, an ongoing focus on the South (and indeed a focus on the country and region as a whole). Why is it we seem capable of dealing with only one crisis at a time? and of only paying attention the minute before (or more commonly after) total disaster strikes?

As resources get drawn back towards the South, as indeed they must, let us not this time focus on one part of the country at the expense of the whole. The UN’s currently favored descriptor of Darfur, “calm but unpredictable” is not catastrophic enough to keep it among the top few items in an overcrowded policy agenda, especially now that another part of the same country is getting the warning of a “collapse into chaos” attached to it. But to now ignore Darfur in an effort to stabilize the South will just serve to repeat the same mistakes made over the past five years. . .

At first glance Section 50 (E) (”Detention or arrest of any suspected person for a period not exceeding thirty days provided that his or her family is notified.”) looks like progress for its reference to family notification (incommunicado detention was the norm under the previous NSA). But it is immediately undercut by Section 52 which is truly breathtaking for the extent to which it ensures there is no possibility of oversight or accountability for any actions on the part of the national security apparatus.

The National Security Act 2009

Section 25

Powers of the Apparatus

The Apparatus shall exercise, according to the law, the following powers:

A. To request information, details, documents, or things from anybody to read or keep them, or do with them whatever it deems necessary.

B. To summon persons, interrogate them, and take their testimonies.

C. Surveillance and investigation.

D. To seize properties in accordance with the law.

E. To detain and arrest individuals in accordance with the provisions of Section 50 of this Act.

Section 50

Powers of Members

1- Any member designated by an order from the Director shall have, for the purposes of implementing the jurisdiction provided for in this Act, the following powers:

A. Any of the powers provided for in Section 25.

B. To search after obtaining an order in writing from the Director.

C. Powers of a police man as they are provided for in the Sudan Police Act and the Criminal Procedure Act.

D. Exercise of any legal powers which shall be necessary for the implementation of the provisions of this Act.

E. Detention or arrest of any suspected person for a period not exceeding thirty days provided that his or her family is notified.

F. After the elapse of the thirty days mentioned in Sub-section (E), the authorities of the Apparatus shall notify the competent attorney to obtain his/her approval to renew the detention in accordance with the provisions of the Criminal Procedure Act provided that there are reasons that require keeping the detained person in custody.

G. If it has become clear to the Apparatus after investigation that there is prima facie evidence against the suspect, the Apparatus shall submit the accused and all documents and appendages to the Attorney General to proceed with and complete the proceedings and in situations where there is no prima facie evidence, the Apparatus should immediately release the suspect.

H. If the suspect is handed over to the Attorney General according to the above-mentioned Sub-section 6, the Attorney shall, according to the authorities vested in him/her, take any measures s/he might deem necessary.

I. If the Attorney does not complete investigation proceedings in accordance with the provisions of the Criminal Procedure Act, s/he could request an extension of the detention period of the suspect.

2- For the purposes of this Section, the Apparatus shall take into consideration the provisions of Article 33 of the National Interim Constitution 2005.

3- The Director shall issue the permanent orders that are necessary to organize the exercise of the powers mentioned in Sub-section 1.

Section 52

Immunities of Members and Collaborators

The members and the collaborators shall have the following immunities:

1- No act of an Apparatus member done in good faith and in the course or because of carrying out his/her duties, or in implementation of an obligation, or as a result of an act to which s/he is entitled by this Act or any other act in effect or by a regulation or order issued in accordance with any of such acts shall be deemed a crime provided that the act is within the limits of the duties or acts required from him/her in accordance with this Act.

2- No member or collaborator of the Apparatus shall be obliged to furnish any information on the situations, activities, or acts of the Apparatus to which he/she might have had access in the course of carrying out his/her duties unless there is a court decision to that effect.

3- Without prejudice to the provisions of this Act, or any compensation right against the Apparatus, no criminal or civil proceedings shall be taken against a member or collaborator of the Apparatus without the approval of the Director. The Director shall give such approval whenever it becomes clear that the accountability issue is not related to any official work provided that the trial of any member or collaborator is conducted in a secret criminal court during or after the expiration of his service.

4- Without prejudice to the provisions of Section 46 of this Act, or any compensation right against the Apparatus, no criminal or civil proceedings shall be taken against a member for any act related to his/her official work without the approval of the Director General, and the Director General shall give such approval whenever it becomes clear that the issue of the trial has nothing to do with the work of the Apparatus.