Situation in Darfur:
Prosecutor’s Application under Article 58(7) of
the Rome Statute By
Kevin Jon Heller
Volume 11, Issue 7
February 27, 2007, the Office of the Prosecutor (Prosecutor)
at the International Criminal Court (ICC) applied to the Pre-Trial
Chamber I (Chamber) for summonses to appear against Ahmad
Muhammad Harun, Sudan’s former Minister of State for
the Interior, and Ali Kushayb, a Janjaweed leader in West
Application contends that there are reasonable grounds to
believe that Harun and Kushayb are criminally responsible
for a wide variety of crimes
against humanity and war crimes – including murder,
persecution, torture, and rape – committed in the West
Darfur region of Sudan in 2003 and 2004. These are the
first summonses issued in the Darfur situation, which was
referred to the ICC by the U.N. Security Council in March
of the Conflict in Darfur
crimes alleged in the Application were committed during an
internal armed conflict between the Sudanese government and
two armed resistance groups, the Sudanese Liberation Army
(SLA) and the Justice and Equality Movement (JEM).
The conflict began in approximately August 2002 with government
attempts to control the insurgency through deployment of the
Sudanese Armed Forces. Reliance on the Armed Forces
ended in April 2003, when rebel forces inflicted unprecedented
losses on the government during an attack on the government’s
airport at Al Fashir, in North Darfur.
the attack, the government discontinued peace negotiations
with the rebels and initiated a full-scale counterinsurgency
operation in North and West Darfur. As part of that
operation, the government recruited large numbers of Militia
– known as Janjaweed – to assist the Armed Forces.
Following successful rebel assaults on government targets
in July and August, 2003, the Armed Forces and Janjaweed launched
attacks on the towns of Kodoom, Bindisi, and Mukjar.
The next month the government and the rebel groups signed
a peace agreement in Abeche.
the peace agreement, the rebels continued – and greatly
increased – their attacks on government positions.
In response, the Armed Forces and Janjaweed resumed military
operations, attacking the town of Arawala, in West Darfur,
in December 2003. After blocking all major border crossings
into Chad, the government ended its attacks in West Darfur
in January 2004 and announced that all major military operations
lost control of North and West Darfur, the rebels shifted
their efforts to the South. Attacks by the Armed Forces
on a rebel base around the Sindu Hills forced the residents
of that area to flee to Mukjar, which was then immediately
attacked by the Armed Forces and Janjaweed.
April 2004, the government and the rebels signed a ceasefire
agreement. Despite the agreement, however, the rebels
continued their attacks in South Darfur, leading the government
to initiate another major military operation that December.
By January, 2005, an Armed Forces brigade had reached the
rebel base of Muhajiriya, on South Darfur’s eastern
border. Two months later the Security Council adopted
all accounts, the armed conflict in Darfur has been a humanitarian
catastrophe. According to Human Rights Watch, the Armed
Forces and Janjaweed murdered and raped thousands of civilians,
destroyed hundreds of villages, stole millions of livestock,
and forcibly displaced more than 2,000,000 Darfurians.
Moreover, although not named in the Application, the rebel
groups may also be responsible for a significant number of
war crimes, including attacks on civilians and humanitarian
workers and summary execution of captured Armed Forces and
History of the Application
March 31, 2005, the Security Council invoked its authority
under Chapter VII of the U.N. Charter to adopt Resolution
1593, referring the situation in Darfur to the Prosecutor.
Resolution 1593 passed by an 11-0-4 vote, with Algeria, Brazil,
China, and the United States abstaining.
Prosecutor formally initiated an investigation into the Darfur
situation on June 1, 2005.
During the course of the investigation, the Prosecutor not only reviewed thousands of
documents provided by the Sudanese government, the U.N. International Commission of Inquiry,
and the Sudanese National Commission of Inquiry, he also conducted five evidence-gathering
missions in the Sudan and 70 missions in 17 other countries. According to the Prosecutor,
the evidence-gathering missions were required by his duty
to conduct an independent investigation under Article 42(1)
of the Rome Statute.
completing his investigation, the Prosecutor concluded that
there are reasonable grounds to believe that Harun and Kushayb
are criminally responsible for a number of war crimes and
crimes against humanity committed during the armed conflict
in Darfur. On February 27, 2007, the Prosecutor filed
the Application required by Article 58 of the Rome Statute,
requesting the Chamber to summons Harun and Kushayb to appear
before the Court.
the armed conflict, Ahmad Harun was the Minister of State
for the Interior of the Government of Sudan. In early
2003, after the rebel attack on the government airport at
Al Fashir, Harun was appointed head of the “Darfur Security
Desk,” which was responsible for coordinating the Security
Committees in Darfur that managed the government’s counterinsurgency
campaign. In that position, Harun was responsible for
– and participated actively in – recruiting, funding,
and arming the Janjaweed.
Kushayb was the highest-ranking tribal military leader in
the Wadi Salih Locality of West Darfur, commanding thousands
of Janjaweed by mid-2003. By that time, he had been
appointed to a position in the Popular Defense Force (PDF),
the reserve force of the Sudanese Armed Forces, and he personally
led the Janjaweed attacks on Kodoom, Bindisi, Mukjar, and
Arawala. Kushayb also served as the “mediator”
between the Wadi Salih Janjaweed and the Sudanese government,
providing government funds to the Janjaweed for arms and supplies
and ensuring that the Janjaweed were enlisted as PDF soldiers.
Application submitted by the Prosecutor alleges that Harun
and Kushayb are criminally responsible for 51 counts of war
crimes and crimes against humanity. Counts 1-9 focus
on the attacks on Kodoom in August 2003. The Application
alleges that the Armed Forces and Janjaweed, including Kushayb,
shot and killed civilians, primarily members of the Fur tribe
(the basis for the persecution charge in Count 1); destroyed
more than 100 houses; and caused more than 20,000 civilians
to flee to Bindisi.
10-20 focus on the attacks on Bindisi immediately following
the Kodoom attacks. The Application alleges that the
Armed Forces and Janjaweed, including Kushayb, killed more
than 100 civilians, including 30 children; raped more than
a dozen young Fur women; burned the town’s mosque, houses,
and food supplies; and pillaged anything of value they could
find, including livestock. The Application also alleges
that Kushayb was seen wearing a military uniform and giving
orders to the Janjaweed during the attacks.
21-38 focus on the attacks on Mukjar between August 2003 and
March 2004. The Application alleges that members of
the Armed Forces and Janjaweed, including Kushayb, attacked
Mukjar despite the fact that there was no rebel presence in
the town at the time. The Application also alleges that,
after the initial attack, the Armed Forces and Janjaweed executed
dozens of civilians; illegally detained and tortured others;
destroyed the town’s market, houses, and temporary shelters;
and pillaged livestock, crops, and consumer goods. According
to the Application, Harun was present in Mukjar at or near
the time of all the attacks.
39-51 focus on the attacks on Arawala in December 2003.
The Application alleges that the Armed Forces and Janjaweed,
including Kushayb, killed more than 25 civilians; illegally
detained and raped a number of young girls; burned and destroyed
most of the town; pillaged indiscriminately; and forced approximately
7,000 civilians to flee the area.
terms of modes of liability, the Application alleges that
Harun and Kushayb were part of a “group of persons acting
with a common purpose” to commit war crimes and crimes
against humanity, in violation of Article 25(3)(d) of the
“Common purpose” liability, more commonly known
as “joint criminal enterprise,” requires proof
that the perpetrator intentionally contributed to the group
and that the contribution was either “made with the
aim of furthering the criminal activity or criminal purpose
of the group, where such activity or purpose involves the
commission of a crime within the jurisdiction of the Court”
or “made in the knowledge of the intention of the group
to commit the crime.”
to the Application, Harun contributed to the joint criminal
enterprise by recruiting, funding, arming, and inciting the
Janjaweed. The Application also alleges that Harun both
knew of the enterprise’s criminal aims and intended
to further them, citing a number of Harun’s own public
statements – including a statement in Mukjar immediately
before one of the August 2003 attacks that “since the
children of the Fur had become rebels, all the Fur and what
they had, had become booty for the Mujahadin,” and an
earlier statement that the government was ready to kill three-quarters
of Darfur to allow one-quarter to live.
Application alleges that Kushayb contributed to the joint
criminal enterprise by leading a number of the attacks discussed
above and being personally involved in murders, executions,
illegal detentions, tortures, and rapes. The Application
also cites those contributions as evidence that Kushayb knew
of the enterprise’s criminal aims and intended to further
vs. Arrest Warrants
58 of the Rome Statute specifically permits the Pre-Trial
Chamber to issue arrest warrants instead of summonses to appear.
Despite the seriousness of the charges, however, the Application
does not request arrest warrants for Harun and Kushayb.
The Prosecutor appears to believe that the Sudanese government’s
previous willingness to provide the Court with documents and
allow the Court to interview high-ranking government officials
– cooperation mandated by Resolution 1593
– justifies the “less intrusive” procedural
mechanism of a summons. The Application notes, though,
that any indication by the Sudanese government that it will
not serve the summonses would justify the Chamber issuing
arrest warrants instead.
Prosecutor’s Application presents the Court with the
first serious test of the Rome Statute’s complementarity
regime. A case is admissible before the Court only (1)
if no national investigation or prosecution is in progress;
or (2) an investigation or prosecution that is in progress
is being conducted in a way that indicates the State is either
unwilling or unable to genuinely carry it out.
The Sudanese government insists that it is both willing and
able to investigate and prosecute Harun and Kushayb itself,
pointing to the fact that it has questioned both suspects
and has charged Kushayb with murdering, kidnapping, and wrongfully
imprisoning civilians in Darfur.
The Application, by contrast, notes that the Sudanese government
is not currently investigating Harun and has given no indication
that it intends to prosecute Kushayb for rape, torture, forced
displacement, or persecution, even though the Pre-Trial Chamber’s
specifically held in the Dyilo
case that inadmissibility requires “national proceedings
encompass both the person[s] and the conduct which is the
subject of the case before the Court.”
the Prosecutor’s admissibility argument is based squarely
it is not without its risks. A State can formally challenge
the admissibility of a case any time prior to trial.
The Sudanese government thus has a significant amount of time
to begin investigating and/or prosecuting Harun and Kushayb
for the war crimes and crimes against humanity that are alleged
in the Application. If it does, Dyilo
would no longer justify finding their cases admissible.
the Application does not allege that the Sudanese government
is “unable” to investigate and/or prosecute Harun
and Kushayb, despite the fact that the Prosecutor has previously
noted that “the national authorities face significant
challenges to the conduct of effective criminal proceedings
in Darfur, particularly in light of the fact that the conflict
has destroyed the normal criminal-justice infrastructure.”
The government of Sudan has admitted that the ongoing conflict
has effectively prevented domestic courts in West and South
Darfur from operating and made it impossible for the government
to conduct investigations in rebel-controlled areas.
It also remains an open question whether an effective prosecution
of Harun and Kushayb is even possible in a domestic court,
because Sudanese criminal law provides immunity to members
of the Armed Forces, including the PDF and Janjaweed, in a
variety of situations.
Those deficiencies would be more difficult for the Sudanese
government to remedy prior to trial, making a successful admissibility
Sudanese government has made clear that it has no intention
of cooperating with the ICC regarding Harun and Kushayb.
Indeed, its Interior Minister, Al-Zubayr Bashir Taha, has
publicly threatened to behead anyone who attempts to arrest
a Sudanese official on behalf of the Court.
Even if the Chamber grants the Prosecutor’s Application,
therefore, it is unlikely that Harun and Kushayb will appear
before the Court anytime soon.
Jon Heller is a member of the Faculty of Law at the University
of Auckland. He is also a permanent member of the international-law
blog Opinio Juris.
Prosecutor’s Application Under Article 58(7) of the
Rome Statute, ICC-02/05 (Feb. 27, 2007).
For a full discussion of the Darfur conflict, see
Mikael Nabati, The U.N. Responds to the Crisis in Darfur:
Security Council Resolution 1556, ASIL Insight, August
2007 by The American Society of International
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