Dangerous delays are hampering the investigation into war crimes committed in the small town of Haskanita, Darfur.

By Josephine Uwineza, The Hague

The deadline, originally Friday 13 January 2012, for applying to participate in the trial proceedings as a victim in the case of Abdallah Banda & Saleh Jerbo, anti-government rebels accused of attacking peacekeepers, has been extended to 29 February. This, argue victims groups, will in turn make thorough investigation even harder.

“The process is beset by logistical difficulties: the applicants reside in different locations within the country; the Court has no field presence; suitable interpreters have to be found; there is a lack of available resources,” said Paolina Massidda, Principal Counsel of the International Criminal Court's Office of Public Counsel for Victims.

Impossibility of investigations in Sudan

When people in positions of power have been indicted by the ICC, cooperation from those same people needed for a thorough investigation is unlikely.

“The International Criminal Court’s (ICC) efforts to seek arrest warrants against Government of Sudan officials is aggravating its investigations,” said defence lawyer for the rebels on trial Karim Khan.

From the beginning of this case, the Government of Sudan has refused to cooperate with the Court. Specifically, it has barred ICC personnel from speaking to Sudanese officials, has expelled NGOs accused of collaborating with the ICC, and has criminalised cooperation with the Court.

“The Government is harassing and attacking people suspected of cooperating with the Court,” and that, “any form of cooperation by a witness would be considered a criminal act, punishable by the Government. Individuals have in fact been arrested for allegedly cooperating with the Court,” said Fatou Bensouda, ICC Deputy Chief Prosecutor.

Problems continue for the defence, who in this case have identified numerous potential witnesses believed to reside in Darfur. But they have not been able to travel to Darfur to conduct interviews or to locate other potential witnesses with knowledge relevant to the case. Again, local resource investigators cannot perform these tasks because by cooperating with the Court they would be committing a criminal offence in Sudan.

Unlevel playing field

Any interview outside Sudan requires witnesses to travel across a war zone, cross hostile borders, and then return home to live in Darfur, where the Court cannot offer any protection and where the very act of cooperating with the Court places them at risk of prosecution. Faced with these risks, at least one potential witness fled before crossing the border. “The current situation puts me in the impossible position of choosing between my clients’ rights to a full investigation and witness safety,” argued Karim Khan.

The Defence also said it is prejudiced by victims’ legal representatives who are able but unwilling to pass information on. The result is that there are likely to be witnesses at the trial from the Haskanita area whose evidence may be unknown to the defence.

Haskanita

Banda and Jerbo face three counts of war crimes, including murder, targeting peacekeeping personnel and pillaging. ICC Chief Prosecutor Luis Moreno Ocampo says the men are criminally responsible for a deadly attack in 2007 on an African Union peacekeeping mission (AMIS) that killed 12 and wounded eight others in the village of Haskanita in Darfur.

Ocampo says the attack was carried out by 1,000 fighters of the SLA-Unity under the command of Jerbo, and splinter forces of the JEM led by Banda.