Joshua Rozenberg
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January 18, 2009

Sudan prosecutor accused of political posturing

The International Criminal Court is gearing up for its first trial, due to start in a week’s time. It will be a historic moment.

I have written many times about the case of Thomas Lubanga, an alleged warlord from the Democratic Republic of Congo accused of conscripting children under 15 to kill and rape.

I hope the case proceeds as planned. The prosecutor, Luis Moreno-Ocampo, has promised that he will call “only” 31 witnesses.

Meanwhile, what of Mr Moreno-Ocampo’s controversial attempt to indict the president of Sudan on 10 charges of genocide, crimes against humanity and war crimes? He announced this last July.

In a report to the UN Security Council nearly two months ago, Mr Moreno-Ocampo predicted that: “The judges will rule shortly on the prosecution request for an arrest warrant.”

His confident assumption that there would be a decision “shortly” seemed to be based on the fact that he had recently submitted the further evidence requested by the trial chamber.

He presumably thought a decision on the Bashir case could be taken separately from an application he made on November 20 for the arrest of rebel commanders in Sudan. This cannot be resolved until Mr Moreno-Ocampo submits more evidence requested by the court; he has until January 26 to do so.

Last week, there was a new development that could delay the application for President Bashir’s arrest further, if not derail it completely.

A hefty submission arrived at the court, asking the pre-trial chamber not to issue warrants against President Bashir or the rebel commanders “on grounds that

• issuing such warrants would have grave implications for the peace building process in Sudan and that deference must be given to considerations of national interest and security;

• that the interests of justice will not be served particularly in light of the prosecutor’s conduct in bringing these applications;

• that such warrants could entrench the negative perceptions of the International Criminal Court and thus contribute to a deterioration of the situation in Sudan; and

• that alternative means of transitional justice and resolution are being and will be pursued without the need for any consideration of involvement of the International Criminal Court at this stage."

The submission last week was lodged on behalf of two citizens’ organisations in the Sudan.

One of these is said to represent some two million trade union members in Sudan. The other is an ad-hoc committee called the Sudan International Defence Group, which has gathered more than a million signatures to a petition opposing the arrest of President Bashir.

The application says that these Sudanese are supported by the tribal leaders of the Fur, Masalit and Zaghawa tribes of Darfur, groupings which are alleged by the prosecutor to be the president’s victims.

All these applicants are represented by Sir Geoffrey Nice QC, the English barrister who prosecuted Slobodan Milosevic at the war crimes tribunal for the former Yugoslavia.

Any submission that bears Sir Geoffrey's name carries great weight. It is therefore particularly gratifying to find that he cites two articles of mine in his 500 pages of supporting evidence. The first of these reported that sexual misconduct allegations against Mr Moreno-Ocampo had been dismissed as manifestly unfounded although the prosecutor had been held personally responsible for a breach of due process. The second reported suggestions, as Sir Geoffrey put it, that the prosecutor might “have made the genocide charges [against President Bashir] public to divert attention away from the publicity surrounding the finding against him of a breach of due process.”

Summing up their case, Sir Geoffrey and his junior counsel Rodney Dixon say: “The applicants have been driven to make this application out of a genuine concern for preserving the intricate web of peace agreements in Sudan without which the country may be set back immeasurably. They hold firmly to the view that there cannot be indifference to the highly detrimental consequences of arrest warrants in the particular circumstances that face their nation at this point in its development towards a peaceful democracy.

“The applicants ask that their submissions are heard and seriously considered, based as they are on reliable external, informed and researched opinion together with reliable ‘local’ opinion reflecting and supported by the broadest spectrum of public opinion within Sudan.”

It is clear that the application is based on politics as much as it is on law — if not more so. But, say the the applicants, so is Mr Moreno-Ocampo’s application for an arrest warrant.

“The prosecutor’s extraordinary political posturing over this particular application of his makes it appropriate to have in mind all aspects of the political background,” the application says.

“In the same vein, the pre-trial chamber may be aware in general terms of arguments to the effect that reality in Darfur is very different from how it is portrayed in the Western press, that the underlying issue could be Sudan’s mineral wealth and oil and which great power should get access to it, and that insincere political objectives lie behind the general characterisation of the crisis as a genocide.”

It is on that basis that the applicants argue that they have a right to be heard.

“Given that he [Mr Moreno-Ocampo] has engaged in substantial international campaigning on all these issues... the applicants ask the pre-trial chamber to find that it is entirely appropriate that their application be considered at this stage, contemplated as it is by rule 103 of the ICC rules even if not expressly provided for in the procedures for the issue of a warrant of arrest pursuant to article 58 of the ICC statute.”

Rule 103 says, in part: “At any stage of the proceedings, a chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to a state, organisation or person to submit, in writing or orally, any observation on any issue that the chamber deems appropriate.”

The applicants point out that this rule does not exclude submissions being accepted in proceedings concerned with the application for arrest warrants.

“Moreover, the actions of the ICC prosecutor should be considered beside the reality that assertions in his (public redacted) application to the court for the issue of an arrest warrant against President Bashir have been highlighted as being inaccurate and false.

“There has, in particular, been widespread scepticism about charging genocide. All of the above point to the need for heightened scrutiny of the prosecutor’s applications, as already suggested, and the importance of taking into account the applicants’ submissions.”

Sir Geoffrey maintains that “the terms of rule 103 are broadly couched to permit the chamber to receive submissions at any stage of the proceedings, including applications for arrest warrants, providing that such submissions could assist in the proper determination of the matter before the chamber.”

He argues that the court should arrange a public hearing at which the citizens’ organisations may argue their case and the prosecutor may respond.

An application of this nature is unprecedented. But so is an application for the arrest of a serving head of state. And so too is the behaviour of Mr Moreno-Ocampo in making public speeches that assume President Bashir’s guilt.

As Sir Geoffrey says, “in many or most domestic jurisdictions for a prosecutor to announce as conclusions facts that he wants to prove in the way done here would contravene various rights and be unacceptable for reasons of possible contempt of court or on grounds of privacy or defamation.”

In my view, the pre-trial chamber should treat this application with the utmost seriousness. It may be that to treat this application in the way that Sir Geoffrey seeks would be to taint with politics what should ultimately be a legal process. But it would be idle to pretend that politics plays no part in international justice.

Posted at January 18, 2009 08:36 PM