The Situation in Darfur: Prosecutor's Application under Article 58(7) of the Rome Statute
On 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 Darfur. The 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 2005.
History of the Conflict in Darfur
The 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.
After 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.
Despite 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 were complete.
Having 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.
In 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 Resolution 1593.
By 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 Janjaweed soldiers.
Procedural History of the Application
On 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.
The 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.
After 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.
Throughout 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.
Ali 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.
The 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.
Counts 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.
Counts 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.
Counts 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.
In 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 Rome Statute. "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."
According 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.
The 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 them.
Summons vs. Arrest Warrants
Article 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.
The 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."
Although the Prosecutor's admissibility argument is based squarely on Dyilo, 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.
Interestingly, 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 challenge unlikely.
The 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.
Kevin 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 2004.
 See Human Rights Watch, Lack of Conviction: The Special Criminal Court on the Events in Darfur 3-4, http://hrw.org/backgrounder/ij/sudan0606/sudan0606.pdf.
 See UN Security Council Resolution 1593 (S/RES/1593) (2005).
 Prosecutor's Application, para. 6.
 Id., para. 14.
 Id., para. 176.
 See Rome Statute, art. 25(3)(d), http://www.un.org/law/icc/statute/english/rome_statute(e).pdf.
 Prosecutor's Application, paras. 123-34, 141.
 Rome Statute, art. 58(1)(b).
 See Resolution 1593, para. 2.
 See Rome Statute, art. 17.
 Prosecutor v. Dyilo, Decision on the Prosecutor's Application for a Warrant of Arrest, ICC-01/04-01/06, para. 31 (Feb. 10, 2006).
 See Rome Statute, art. 19(4).
 See Third Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1593 (2005) 6 (June 14, 2006), http://www.icc-cpi.int/library/cases/OTP_ReportUNSC_3-Darfur_English.pdf.
 See, e.g., Human Rights Watch, Lack of Conviction, 18-19.