Building a Darfur Defence

By Louis Century, 3L, JD/MGA, International Criminal Court (The Hague)

It has been a whirlwind few months in the often snail-paced field of international criminal law. Since May, the International Criminal Court (ICC) has issued a surprising arrest warrant against then-sitting president Muammar Gaddafi of Libya; Ratko Mladic was finally extradited by Serbia to The Hague to stand trial for the Srebrenica massacre and other crimes; closing oral arguments were made in the Lubanga Case, the ICC‘s first trial, which now awaits judgment; and pre-trial hearings commenced for six high-profile Kenyans, most sitting politicians, accused of orchestrating post-election violence. News and gossip surrounding these momentous events were a constant presence during my summer in The Hague, though I was not directly involved in any of them. I spent my summer working for the Defence Team of Abdallah Banda and Saleh Jerbo, two Darfurian rebels accused of war crimes before the ICC. 

On September 29, 2007, Banda and Jerbo, then military commanders in two different rebel factions in Darfur, allegedly attacked an African Union peacekeeping base, resulting in the death of 12 peacekeepers and the pillaging of the base. The charges they face include: murder as a war crime, intentional attacks against peacekeepers or peacekeeping equipment, and pillaging. The case is noteworthy for a variety of reasons.

For one, while this is not the only Sudanese case at the ICC, it is the only case in which proceedings have begun. Arrest warrants have been issued for sitting president Omar Al-Bashir, government minister Ahmad Harun, and Janjaweed leader Ali Kushayb. However, all three remain at large. This creates a situation, perhaps surprising to followers of the Darfur conflict, in which the only individuals being tried by the ICC for crimes in Darfur are those fighting against the regime widely accused of genocide and crimes against humanity. Nevertheless, the case proceeds. Trial is set to commence later this year or early in 2012.

Banda and Jerbo were never arrested. Ra- ther, they voluntarily complied with summons for their appearance at the ICC. They continue to cooperate with the ICC, meaning they are not detained and travel to the Court when called upon. This is unprecedented in the short history of the ICC (with the exception of fellow Darfur rebel Abu Garda, whose charges in relation to the same attack were not confirmed by the Pre-Trial Chamber due to insufficient evi-dence).

The approach of the Parties to the evidence is also unusual. In May, the Prosecution and the Defence made a joint submission (publicly available) agreeing to certain key elements of the charges: the confidential agreed facts, "narrow, to a very significant extent, the issues in dispute between the parties and will facilitate the fair and expeditious conduct of proceedings." Indeed, the Accused have agreed to only contest three specific issues at trial on the basis of the agreed facts. First, whether the attack on the [peacekeeping base] on 29 September 2007 was unlawful. Second, if the attack is deemed unlawful, whether the Accused persons were aware of the factual circumstances that established the unlawful nature of the attack. Third, whether [the African Union Mission in Sudan] was a peacekeeping mission in accordance with the Charter of the United Nations.

These issues – touching on the use of force and the status of peacekeepers in international law – are different from the kinds of issues more commonly raised by the Defence at international tribunals and the ICC. My work largely involved analyzing evidence with an eye to these three contested issues, as part of long-term preparation for trial. I wrote internal memos on the consistency of evidence relating to specific factual questions or events; summarized and analyzed the strengths and weaknesses of past witness statements; and reviewed, organized, and drew conclusions from other disclosed evidence. This factual, evidence-based work gave me a clear sense of the process of building a Defence case before the ICC.

The rest of my work consisted of a variety of legal tasks relating to pre-trial procedural matters ongoing between the parties: issues of witness re-interviews and proofing; conflict of interest jurisprudence; witness pro- tection measures and disclosure obligations; and procedures for translation and interpretation. These more short-term assignments in response to back-and-forth filings by the Parties complemented the long-term evidence analysis that occupied the rest of my time.

The Banda and Jerbo Case holds the poten- tial to make interesting contributions to international criminal law – on the expeditiousness of ICC trials, the compliance with summons, the benefits and challenges of agreed evidence, and substantive issues in international humanitarian law on the use of force and the mandate of peacekeeping missions. I look forward to following the trial and watching evidence on the three contested issues play out in court. I am grateful to the IHRP for giving me the opportunity to participate in the development of this case.