Category Archives: abu garda

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

Posted on June 16, 2010 | Leave a comment

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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Posted in abu garda, darfur, soudan

Abu Garda: Justice follows its course

Posted on February 25, 2010 | 4 comments

Given my recent travels, I didn’t have time to comment on the decision by the ICC Pre-Trial Chamber I not to confirm the charges against Abu Garda.

It’s a fairly momentous decision from a symbolic point of view. It crowns a series of debatable decisions on the part of the prosecutor in the most emphatic way. This prosecutor really seems to make everybody unhappy. In relation to my previous post on the ISA conference, it was funny to see that despite all the inter-disciplinary disagreements on matters relating to the International Criminal Court, everybody seems to agree to criticize Ocampo… Beyond that, I think it is in fact a good thing for the legitimacy of the Court that it accepts to not go to trial. I don’t recall this happening before in international justice. Arguably, the ICC did so on a fairly low profile case, where no media-friendly crime is involved, but still…

From a legal point of view, the decision is not that surprising when you read through it. The OTP really seems to have butchered the case. Apparently, the Prosecution cannot persuasively show that Abu Garda participated in any of the meetings where the attack was planned, nor can it establish that he actually physically took part in the attack. Apparently, the OTP documents claim that he was there and not there… So given this lack of evidence, at least that’s how the PTC presents it, it only seems normal that the confirmation of charges was denied.

This being said, I had a couple of extra comments. The first one relates to the nature of the confirmation of charges decision. The Chamber reminds us “that the confirmation hearing is neither a trial before the trial nor a mini-trial”. But it is difficult to see how it is not. PTC I seems to engage in the sort of activity that is typical of a trial phase. More particularly, it systematically does an assessment of the credibility of witnesses in comparison with other witnesses. It also engages into a very precise legal analysis of the definition of the crime and its application to the specific AMIS mission, which turns out to be useless at the end given that they can’t link Abu Garda to the events anyway (Judge Tarfusser gave a separate opinion on this point). As I’ve already said elsewhere, the multiplication of procedural steps at the ICC and the correlative multiplication of burdens of proofs makes the whole process a little confusing in my opinion, and the only benefit initially proposed for this, namely speeding things up, has noticeably failed until now. So I remain skeptical about the ICC pre-trial mechanisms.

The second point relates to gravity, something I’ve already mentioned on this blog before. Up to now, the case-law seemed to have developed in the direction of the judges choosing to ignore the issue of the article 17 “sufficient gravity” criteria. In this case, PTC I did decide to consider it. It acknowledges that

“the gravity threshold contemplated therein is in addition to the Statute drafters’ careful selection of the crimes included in articles 6 to 8 of the Statute. Hence, the fact that a case addresses one of the most serious crimes for the international community as a whole is not sufficient for it to be admissible before the Court”. 

That is a first good first step if the gravity threshold is going to make any sense at all. But afterwards the reasoning loses of its credibility. The Chamber considers the elements to be taken into account, and refers to the criteria to be looked at at sentencing as a guideline. That doesn’t really make sense because it suggests that the crimes that would be considered of sufficient gravity at the admissibility phase are the ones that would carry heavier sentences due to aggravating circumstances later on. But if only those cases are selected at the outset, the sentencing criteria become redundant when sentencing comes along.
On their factual analysis, the judges are even more unconvincing.

“The Chamber thus finds that the consequences of the attack were grave for the direct victims of the attack, that is, the AMIS personnel, and for their families. In addition; the alleged initial suspension and ultimate reduction of’AMIS activities in the area as a result of the attack had a grave impact on the local population”

“The consequences were grave for the direct victims”! How’s that for an analysis? Of course the consequences were “grave”, the victims died! But the Chamber can’t really be saying that this is the threshold of gravity to be met, it would just strip it of its content once again. The consequences are always grave for the direct victims of crimes, whether it is genocide, rape or carjacking… as for the second criteria, I’m not convinced about the causality link. The ultimate reduction of AMIS activities in the region is a shameful strategic decision in response to the attack. But what did they expect? It is a war zone and risk is part of the job description. The reason there is a need for peacekeepers in the first place is because it is a risk zone…
I think this decision was the perfect opportunity for the judges to take a stand on the gravity threshold and make a policy statement that the OTP is apparently incapable of making that this kind of war crime, committed in isolation, is not a priority for an international court with a global dimension and limited means. And the opportunity was missed.

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Posted in abu garda, gravity, ICC