Judges at the International Criminal Court will from Wednesday determine if prosecutors have enough evidence to start a trial against two rebels from war-torn Darfur.

"I took up arms to seek justice. I decided to cooperate with the court because I know the court has duties to find out the truth. I call on every one who is accused by the court to come forward and clear their names,” Abdallah Banda Abakaer Nourain, former commander-in-chief of the Justice and Equality Movement told the ICC in June.

He voluntarily travelled to The Hague in June to answer a set of serious allegations. He came to the Netherlands with his co-accused, former chief-of-staff of Sudan Liberation Army-Unity, Saleh Mohammed Jarbo.

But on Wednesday the duo will stay at home. Their lawyer Karim Kahn will be in The Hague while prosecutors try to convince a panel of three international judges that the rebels were involved in an attack on international peacekeepers three years ago.

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.

Enough evidence?
During this weeks’ pre-trial hearings, the judges will evaluate whether the prosecutor has enough evidence to move ahead trying the two Darfur rebels.

Ocampo summoned them to appear in 2009, together with another rebel leader, Bahar Idriss Abu Garda. But the war crimes prosecutor now faces the difficult task to persuade the judges to confirm the charges and move the case against Banda and Jerbo forward.

Ocampo brought the same charges against Abu Garda, who had earlier volunteered to come to The Hague and attended his pre-trial hearings in February. But his case was scrapped because the judges ruled that the prosecutor failed to provide enough evidence to establish his involvement in the Haskanita attack. 

Same but different
Despite the fact that Banda and Jerbo also face accusations over the Haskanita attack, the ICC’s Legal Outreach Coordinator for Sudan, Diala Chehade, says the Banda and Jerbo cases should be viewed differently than the Abu Garda one.

“The charges against Banda and Jerbo are the same charges that were directed to Abu Garda last year, which the pre-trial chamber decided to reject because of lack of sufficient evidence,” Chehade said in an interview on Fi al Mizan, a programme by Radio Dabanga and the Institute for War and Peace Reporting (IWPR).

The main difference now, she explains, is that “in the cases of Banda and Jerbo, we do not know if the prosecution has new or different type of evidence than it had against Abu Garda. This is something that will become clear during the pre-trial session.”

Clearing names
Also speaking on Fi al Mizan was Karim Kahn, the lawyer who represented Abu Garda and who is now defending the two Darfur rebels. He said he will not be presenting evidence to clear the name of his clients at this stage, but rather wants the case to proceed to a full trial, and will work to clear their names at that point:

"Hopefully it will be a short and not too controversial hearing. We have taken a view that we want to get this case to trial as quickly as possible. Whilst the pre-trial chamber has the duty to decide whether or not the 'substantial grounds' threshold for confirmation is made out, we are not going to contest the charges, we are not calling evidence, and we are content for the case to be committed for trial, and we will produce evidence at that stage."

Meanwhile, JEM spokesman Ahmad Hussain told Fi al Mizan that the rebels are always ready to cooperate with the ICC, and have supported the court’s work in Darfur since the very beginning. He said that JEM welcomes the steps taken by Abu Garda in the past, and the current situation of Banda and Jerbo who also decided to come forward and appear before the court.

Peacekeepers
Until now, the ICC has been mainly focusing on serious crimes committed against civilians. The prosecutor investigated massacres, sexual violence and the use of child soldiers in the Democratic Republic of Congo, Uganda, the Central African Republic and Darfur. Ocampo’s move to also go after rebels who attack peacekeepers was hailed by human rights organizations.

Human Rights Watch says the case sends a clear message to warring parties around the globe that attacks on peacekeepers will not be tolerated. “The case against the rebel leaders Banda and Jerbo is about justice for crimes against peacekeepers sent by African states to protect people in Darfur,” said Human Rights Watch’s Richard Dicker, adding that the case “highlights the ICC’s concern for protecting African civilians.”

No cooperation
The ICC has issued arrest warrants for three other individuals for war crimes, crimes against humanity, and genocide as part of its Darfur investigations. In April 2007, the court issued warrants for Ahmed Haroun, then the country’s minister for humanitarian affairs and now governor of the Southern Kordofan state, and Ali Kosheib, also known as Ali Mohammed Ali, a “Janjaweed” militia leader.

In March 2009, the court issued the first of two warrants for Sudan's president, Omar al Bashir. The first warrant charged him with war crimes and crimes against humanity and the second – filed in July this year - with genocide, all committed in Darfur.

All three suspects remain at large due to the Sudanese government’s refusal to cooperate with the ICC.