On February 7, a pre-trial chamber of the International Criminal Court (ICC) unanimously declined to confirm charges against Sudanese rebel leader Bahar Idriss Abu Garda. Mr. Abu Garda is the first person to appear voluntarily before the court. He had been charged with being a direct or indirect co-perpetrator of several war crimes, including murder, attacks against a peacekeeping mission, and pillaging. All of the charges arose from his alleged involvement in an attack on Sept. 29, 2007, against the UN’s African Mission in Sudan (AMIS) in North Darfur. The Chamber found that while the allegations were sufficiently serious and while the personnel and installations associated with the AMIS peacekeeping mission were entitled to protection as civilians and civilian objects, the prosecution had produced insufficient evidence to establish substantial grounds that Mr. Abu Garda had participated in the attack.
The prosecution, led by Luis Moreno-Ocampo, had produced statements of anonymous witnesses. However, the Chamber found the statements to be of diminished probative value as they could not be directly challenged by the defense. The Chamber further found them to be “weak and unreliable due to the many inconsistencies,” and held that they failed to establish substantial grounds to believe that Mr. Abu Garda participated in any common plan to attack the AMIS mission. Further allegations that Mr. Abu Garda was himself involved in the attacks were found insufficient as the witness statements did not establish that he was present at the time of the attacks.
The Chamber’s decision not to confirm the charges presents yet another setback to the ICC’s efforts regarding the Darfur situation. The issue of Darfur was first referred to the Court by Security Council Resolution 1593 on March 31, 2005, following an International Commission of Inquiry on Darfur. Of five defendants indicted in four separate cases relating to the region, four remain outside of the Court’s custody, including Sudanese President Omar Hassan Ahmad al-Bashir. The charge of genocide against Mr. al-Bashir’s also failed to gain confirmation by the pre-trial Chamber, although the appeals Chamber recently ordered lower court to reconsider its decision in light of additional and previously disregarded evidence.
It is expected that, as in the al-Bashir case, the ICC prosecutor will again seek to appeal the pre-trial Chamber’s decision on Mr. Abu Garda.