The International Bar Association’s Human Rights Institute (IBAHRI) condemned the action of the Government of Sudan in recently releasing Janjaweed Militia leader Ali Mohamed Ali Abdel-Rahman, also known as Ali Kushayb. This decision, coupled with the appointment of Ahmad Muhammad Harun, former Minister of State for the Interior of the Government of Sudan, to the position of Minister of State for Humanitarian Affairs provides additional evidence of the continuing violation by the Sudanese Government of a peremptory resolution of the Security Council and its disregard for the International Criminal Court (ICC).

Ali Kushayb and Ahmad Harun are two suspects against whom the ICC issued arrest warrants on 27 April 2007 for alleged war crimes and crimes against humanity including several counts of murder, rape and torture. The Sudanese Government was believed to have been holding Mr. Kushayb in custody since November 2006 for what they described as ‘suspicion of violating Sudanese laws’ and investigation for criminal acts in Darfur. However, according to a statement issued by Mr Lam Akol, the Sudanese Foreign Minister, Ali Kushayb was released on Monday 01 October due to ‘lack of evidence’ against him.

The IBAHRI calls on Sudan to enforce the arrest warrants issued by the ICC and play its part in bringing an end to impunity for these serious crimes under international law. The IBA further urges the international community to bring pressure to bear on the Government of Sudan to surrender Ali Kushayb and Ahmad Harun to the jurisdiction of the ICC as continued failure to do so undermines the credibility of the Court and respect for international criminal justice.

Justice Richard Goldstone, Co-Chair of the IBAHRI and former Prosecutor at the International Criminal Tribunal for the Former Yugoslavia, stated, ‘We call for the support of the international community to secure the enforcement of the arrest warrants issued against Ali Kushayb and Ahmad Harun. Unless the political will can be mustered, the Court is being hobbled, weakened and its credibility is being undercut.’

Mark Ellis, IBA Executive Director comments, ‘The International Criminal Court is the first permanent institution of international criminal justice dedicated to ending impunity for war crimes and crimes against humanity. To undermine the ICC is to deal a fatal blow to accountability for the most heinous atrocities committed against humanity.’

Background to the UNSC referral of the situation in Darfur, Sudan to the ICC

On 31 March 2005 The United Nations Security Council (UNSC), acting under Chapter VII of the UN Charter by Resolution 1593 (2005), referred the situation in Darfur, Sudan since 1 July 2002 to the Prosecutor of the International Criminal Court (ICC).   In its Resolution 1593, the Security Council stated that the Government of Sudan and all other parties to the Darfur conflict ‘shall cooperate fully with, and provide any necessary assistance to, the Court and the Prosecutor pursuant to the resolution’ and, while recognising that states not party to the Rome Statute have no obligation under the Statute, urged all states and concerned regional and international organisations to cooperate fully.

On 4 April 2005 the Prosecutor formally informed the President of the Court of the referral of the situation in Darfur and on 5 April 2005 the Prosecutor received the conclusion of the International Commission of Inquiry on Darfur. On 6 June 2005 the Prosecutor announced his decision to open an investigation into the situation in Darfur, Sudan since 1 July 2002. Between June 2005 and June 2006, the Prosecutor submitted three reports to the UNSC concerning the situation in Darfur. On 24 July 2006 Pre-Trial Chamber I invited Mrs Louise Arbour, United Nations High Commissioner for Human Rights and Mr Antonio Cassesse, Chairperson of the International Commission of Inquiry on Sudan, to submit written observations on issues concerning the protection of victims and the preservation of evidence in Darfur, Sudan and invited the Prosecutor or his representative and the Ad Hoc Counsel for the Defence to respond in writing to those observations. These were all submitted by 19 October 2006. On 27 February 2007 the Prosecution filed an application under Article 58(7) requesting that summonses to appear or in the alternative warrants of arrest be issued by the Pre-Trial Chamber for Ahmad Harun and Ali Kushayb.

The Arrest Warrants

On 27 April 2007, Pre-Trial Chamber I issued warrants of arrest for crimes against humanity and war crimes for Ahmad Harun and Ali Kushayb.

Having examined the request and evidence submitted by the Prosecutor, the Chamber concluded that ‘there are reasonable grounds to believe that Ahmad Harun, by virtue of his position, had knowledge of the crimes committed against the civilian population and of the methods used by the Militia/Janjaweed; and that in his public speeches Ahmad Harun not only demonstrated that he knew that the Militia/Janjaweed were attacking civilians and pillaging towns and villages, but also personally encouraging the commission of such illegal acts.’

Also the Chamber concluded that there are reasonable grounds to believe that Ali Kushayb, leader of the Militia/Janjaweed in the Wadi Salih enlisted fighters, armed, funded and provided supplies to the Militia /Janjaweed under his command, thereby intentionally contributing to the commissions of the crimes. He personally participated in some of the attacks against civilians.

The warrant against Ahmad Muhammad Harun lists 42 counts on the basis of his individual criminal responsibility (Articles 25(3)(b) and 25(3)(d) of the Rome Statute) namely, twenty (20) counts of crimes against humanity including murder and rape and twenty –two (22) counts of war crimes.

The warrant against Ali Kushayb lists 50 counts on the basis of his individual criminal responsibility namely 22 counts of crimes against humanity including murder and torture and 28 counts of war crimes.

Background to the IBA’s ICC Monitoring and Outreach Programme

In October 2005, the IBA started a new ICC Monitoring and Outreach Programme funded by the John D and Catherine T MacArthur Foundation.

The IBA has a full time representative in The Hague who monitors the work and the proceedings of the ICC, focusing in particular on issues affecting the fair trial rights of the accused, the implementation of the 1998 Rome Statute, the Rules of Procedure and Evidence, and related ICC documents, in the context of relevant international standards.   Input is received from legal experts and other interested parties in assessing the work and proceedings of the Court. The last Monitoring Report was issued in September 2006 and can

be found at:

http://www.ibanet.org/images/downloads/ICC/09_2006_%20Sept_ICC_%20IBA_Monitoring%20Report.pdf

The IBA has also launched a dedicated section on its website which contains full information on the ICC Monitoring and Outreach Programme, including programme descriptions, agendas and reports. Please visit:

http://www.ibanet.org/humanrights/ICC_Monitoring_and_Outreach_Project.cfm

About the International Bar Association

- the global voice of the legal profession

The International Bar Association (IBA), established in 1947, is the world's leading organisation of international legal practitioners, bar associations and law societies. The IBA influences the development of international law reform and shapes the future of the legal profession throughout the world. It has a membership of 30,000 individual lawyers and more than 195 bar associations and law societies spanning all continents.

Grouped into two divisions – the Legal Practice Division and the Public and Professional Interest Division – the IBA covers all practice areas and professional interests, providing members with access to leading experts and up-to-date information. Through the various committees of the divisions, the IBA enables an interchange of information and views as to laws, practices and professional responsibilities relating to the practice of law around the globe. Additionally, the IBA’s high-quality publications and world-class conferences provide unrivalled professional development and network-building opportunities for international legal practitioners and professional associates.

The IBA’s Bar Issues Commission provides an invaluable forum for the IBA’s member bar associations and law societies to discuss all matters relating to law at an international level.

The IBA's Human Rights Institute promotes, protects and enforces human rights under a just rule of law, and works to preserve the independence of the judiciary and the legal profession worldwide.

Other institutions established by the IBA include the Southern Africa Litigation Centre and the International Legal Assistance Consortium.