Deja Vu at the ICC: New Suspects Appear for the Same Crime

This week, two new suspects have voluntarily surrendered to the ICC. According to the decision on the Prosecutor’s request, Banda and Jerbo are alleged to have participated in an attack on African Union soldiers that left 12 dead, 8 injured, and led to the pillaging of material. If this gives you a weird feeling of déjà vu it is perfectly normal, given that these two suspects are being charged with the same crimes as Abu Garda, whose case was dropped last February, when PTC I declined to confirm the charges against him.

What’s interesting in the discussion of the pre-trial chamber on the reasonable grounds to believe that these two individuals committed a crime within the ICC’s jurisdiction is that the arguments systematic link them to Abu Garda in the planning and execution of the attack. Given that the confirmation of charges later failed to find evidence of Abu Garda’s presence during planning meetings and during the attack, one has to hope that the Prosecutor’s case doesn’t take the same route…

Another interesting, and puzzling, point is this part of the press release from the OTP:

Banda and Jerbo are the second and third persons respectively, to appear before the Court voluntarily in response to a summons. They were initially charged together with rebel commander Bahar Idriss Abu Garda, who voluntarily appeared before the Court on 18 May, 2009. Following his confirmation hearing on 19 October, 2009, ICC judges found that the attack constituted a crime under the Statute but that the evidence was insufficient to establish his individual criminal responsibility. The Prosecutor will therefore present additional evidence in a new confirmation hearing.

 Is the prosecutor implying that he’s going to provide new evidence on Abu Garda in the Banda and Jerbo confirmation hearings? This is strange, as the ICC press release makes no mention of the reopening of the Abu Garda case. In any case, as the cases are not joined, I would expect that new evidence against Abu Garda should be put forward in a different procedure. If anyone has any insight on this OTP statement, it would be welcome.

I would expect the Confirmation hearing to take place quite fast, and a decision to be rendered shortly after that, given that all the preliminary work on the attack was done in the Abu Garda case. Indeed, before finding that he was there was not sufficient evidence to link him to the attack, the judges (with a separate opinion from Judge Tarfusser) went into a lengthy analysis of the factual and legal situation, establishing the nature of the attack in a non-international armed conflict and that the African Union benefited from civilian protection. Having established the crime, all they have to do now is link (or not) the defendants to the attack. Of course, they could also profit from the situation to finally make a gravity assessment, which is, as I’ve said before, time and again ignored by the chambers. I suppose there is no really to hope that they will do it this time…

All in all, maybe this will work out fine, but, especially after the Abu Garda fiasco, it’s difficult not to be at least a little skeptical…

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