The decision of the ICC’s Pre-Trial Chamber to dismiss all charges against Bahr Abu Garda, formerly of the Justice and Equality Movement, in connection with the attack that killed 12 African Union peacekeepers in Haskanita in 2007 is not just another setback for Chief Prosecutor Luis Moreno Ocampo. It is an astonishing tale of incoherence, inconsistency and poor legal practice, surely unprecedented in a court of this stature, that raises two fundamental questions. Should Moreno Ocampo, whose shortcomings have already been discussed on this blog, continue to lead the Office of The Prosecutor, already so damaged by his tenure? And how did Abu Garda ever get into the frame, since the witnesses produced by the prosecution, in the opinion of the ICC judges, failed to substantiate any of the accusations levelled against him?

So weak was the prosecution’s case that one of the three PTC judges, Judge Cuno Tarfusser, filed a separate opinion””not to dissent with the decision to decline to confirm the charges against Abu Garda, but to say, in essence, that the case was not even worthy of consideration. “˜The lacunae and shortcomings exposed by the mere factual assessment of the evidence are so basic and fundamental that the Chamber need not conduct a detailed analysis of the legal issues pertaining to the merits of the case,’ Judge Tarfusser said. “˜It is a pre-trial judge’s duty to decline to confirm the charges and (the italics are mine) to refrain from conducting a detailed legal analysis of the facts… There is no point in wasting precious judicial resources in making determinations which, however impeccable and sophisticated from a theoretical and legal standpoint, serve no purpose in properly adjudicating the case at hand.’

The ICC judges’ comments and findings are surely damaging for the Office of the Prosecutor, even as they testify to the integrity of the ICC process. They include:

“¢ “˜The Chamber finds that the evidence tendered by the Prosecution in support of its allegations is so scant and unreliable that the Chamber is unable to be satisfied that there are substantial grounds to believe that Mr Abu Garda participated in any meeting in which a common plan to attack the MGS [Military Group Site] Haskanita was agreed upon.’
“¢ “˜Despite the reference to the alleged orders issued by Mr Abu Garda to the “combined forces”… the Prosecution links Mr Abu Garda’s contribution to one JEM splinter group and not to any “combined” rebel forces.’
“¢ “˜Other evidence tendered by the Prosecution in support of the allegation that Mr Abu Garda exercised effective control over an organised armed group prior to and at the time of the attack on Haskanita includes a July 2007 statement of the “Interim-Military Council”. Whilst this document might indeed serve as evidence of a split in JEM as early as July 2007, the chamber notes that Mr Abu Garda’s name does not appear among the 72 individuals who signed the document. Therefore, the document is of little relevance to the present issue.’
“¢ “˜It is unclear whether or not the Prosecution is claiming that Mr Abu Garda directly participated in the attack on the MGS Haskanita… At the confirmation hearing, the Prosecution continued to claim both that Mr Abu Garda directly participated in the attack and that he did not.’
“¢ “˜The Chamber is not satisfied that there are substantial grounds to believe that, at the time of the attack on the MGS Haskanita, Mr Abu Garda exercised control over at least one of the organised rebel groups which are alleged to have carried out the attack.’
“¢ The Chamber is not satisfied that there are substantial grounds to believe that Mr Abu Garda can be held criminally responsible as either a direct or indirect co-perpetrator for the commission of the crime.’

Moreno Ocampo has five days to appeal the judges’ decision from when the Arabic translation of the decision is ready. Will he invest more time and resources in this case, having already spent 11 months contesting the PTC’s decision last year not to accept the charge of genocide against President Bashir? (He won that appeal on procedural error when the Appeals Court ruled that the PTC had applied the wrong procedural test. Even with the right test, the PTC may still find a lack of intent, the prerequisite for genocide.) Horrible, massive crimes have been committed in Darfur, the vast majority of them by government or government-supported forces. Among these, surely, is the killing of a reported 100 civilians in a massive attack on Haskanita village on 3 October 2007, just four days after the rebel attack on the peacekeepers’ base less than a mile away. The October attack left government forces in full control of a heap of ruins. Is the Prosecutor going to focus on attempting to prove that he is right about Abu Garda and the ICC judges wrong, or is he going to do what Darfurians want him to do. Namely, concentrate on putting in the dock those responsible for the destruction of their communities and the deaths of their families.