The Abu Garda Case and the OTP
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.
This decision poses some sharp questions about the strategy followed by the Prosecutor in this case.
Is it possible that the Prosecutor set his sights solely on gathering sufficient evidence for requesting a summons, and not for meeting the increasingly steep requirements for obtaining an indictment and ultimately a conviction?
What process of investigation was followed in this case?
Is it possible that the charging of Abu Garda and two others for the Haskanita attack was, all along, just a public relations exercise intended to display an apparent even-handedness, and to embarrass the Sudan Government when the accused was ready to turn up in Court to answer the charges?
Dear Julie and Alex,
I was always under the impression that Beshir is the primary target of the ICC. Abu Garda and the rest, were just part of the drama and the public relations process, not only to show that he turned himself in to the court, but also to give the impression that the ICC is targeting all those who committed atrocities in Darfur indiscriminately and regardless of if they are from the government side or the rebel groups.
I have little doubt that, the verdict is not a result of a lousy case but rather of a cases that was intentionally built in way to be unwinnable and which both the prosecutor and the defendant knew its ultimate result before hand. It is just another game. Rebel groups that believe they are fighting for a just cause do not turn themselves in that simply.
Despite all the weaknesses in the case against Beshir (which may not be very different from that of Abu Garda), no one is under any illusion that he will get away, similarly, should he opt to turn himself in.
There has been lots of speculation and conspiracy theories about how the ICC succeeded in getting evidence to indict Bahar Abu Garda. Now are we to conclude that there was no conspiracy because there was no investigation!?
Dear Ahmed, There may have been an agreement of some sort between Abu Garda and the Court, to convince him to present himself voluntarily. Some say there has been. I do not know. But I cannot believe that the prosecutor intentionally built, or would intentionally build, a losing case. Abu Garda got exonerated (thus far). The prosecution got rather more than a rapping over the knuckles from the PTC. Read the entirety of the ruling. There is so much criticism, on almost every page. And there are 103 pages.
Dear Jibreel, I do not understand what point you are making. Do you think there was a conspiracy against Bahr? If so, by whom? Let us speak clearly; this should be exposed. As for how the prosecution got its evidence, I have only partial knowledge. One report on Haskanita says that three witnesses were ‘arrested’ ‘through the cooperation of (Dr. Khalil’s) JEM’, which as you know was at loggerheads with Bahr at the time of the Haskanita attack. The story of these witnesses has been confirmed to me independently, by a rock-solid source. A fourth witness was a fighter, captured on a donkey in possession of large amount of cash. A fifth, an SLA officer, turned himself over, voluntarily. None of the reports I have seen mention any of three people named by the Court – Abu Garda, Abdalla Banda and Saleh Jerbo, someone I met in North Darfur a few months before the Haskanita attack. The reports name others, as the PTC itself pointed out.
I think it would be regrettable if a member of the movements was the first be tried by the ICC for war crimes committed in Darfur. I shall never forget the child to whom Alex and I dedicated our book, shot at point blank range by a man in uniform who called him a ‘tora bora’ and then left him to die, along with the other children he shot, while he looted their cows. But peacekeepers (although not all 12) were executed in cold blood in Haskanita. They too demand justice. Let us hope the Court gets this right, eventually.
hang on: what are we looking for here in the coming months? From past articles i have seen here, Alex and Julie want a peace agreement before any prosecution. Am I correct?
Dear Jenny,
At no time have Julie or I advocated that peace should be a prerequisite for prosecutions in general. We criticized the Prosecutor’s decision to seek an arrest warrant for Pres. Bashir, on the grounds both that it was a badly put together case, and that pursuing it at that time it would jeopardize the welfare of people in Darfur and progress towards democratization. The issue of obstructing peace in Darfur was secondary because there was no dynamic peace process.
Dear Julie,
Nobody except Mr Ocampo himself can say for sure why he chose Bahar as his target. We all noticed straightaway that all the three commanders were men that Dr Khalil Ibrahim would like to dispose of. There were lots of leads to what happened in Haskanita on that night but Mr Ocampo only followed the leads that JEM provided. This all happened when France which is one of the biggest backers of the ICC was backing JEM through supporting Idris Debbie who was also Africa’s loudest voice in support of the ICC. And by coincidence the case was dropped at precisely the same time that Chad (which means France as well) made peace with Sudan in effect throwing JEM to the wolves.
okay, my mistake. thank you
Thank you Julie for this piece, it is very informative.
In my view, the dismissal of charges against Abu Garda raises serious questions about the competence of the prosecution office. It has even left me in doubt whether Ocampo will be able to adduce sufficient evidences to secure indictment of Al-Bashir should he end up in the dock.
The bright side is that this decision has at least silenced those who maintain that the ICC is a court actuated by ulterior political agendas.
A very important observation is that local media in Sudan as well as the government made no reactions whatsoever to the decision. Is the government embarrassed?