By Paul Rinefierd
Rwandan soldiers airlifted to Darfur in July 2005.
On October 19, 2009, a confirmation hearing began in the case of Prosecutor v. Bahar Idriss Abu Garda before an ICC Pre-Trial Chamber. Abu Garda is the Chairman and General Coordinator of Military Operations of the United Resistance Front, a rebel group fighting the Sudanese government. He is the first accused from the Darfur situation to appear before the ICC. The hearing addressed allegations from a summons levied in May 2009 that Abu Garda commanded an attack on peacekeepers of the African Union Mission in Sudan (AMIS) at Haskanita in Northern Darfur on September 29, 2007. As a result of the attack, twelve AMIS soldiers were killed, eight were wounded, and AMIS equipment was destroyed.
Specifically, the Prosecutor brought three charges against Abu Garda: violence to life, in the form of murder, whether committed or attempted; intentionally directing attacks against personnel, installations, materials, units, and vehicles involved in a peacekeeping mission; and pillaging. ICC Prosecutor Luis Moreno-Ocampo explained at a press conference that while several attacks had been perpetrated against peacekeepers, charges were filed against Abu Garda for the Haskanita attack because of its far-reaching consequences. He said, “with the killings [the peacekeepers] had to withdraw [from Haskanita], leaving thousands of civilians unprotected. The attack had consequences for the delivery of humanitarian aid as well as safety and security in the region.”
The purpose of the confirmation hearing was to evaluate whether the Prosecutor had gathered sufficient evidence for the ICC to find Abu Garda guilty if the case proceeds to trial. First, opening statements were made by the Prosecutor, Defense counsel, and four representatives of 78 identified victims, who had made themselves known through an application process. Next, the Prosecutor presented documentary evidence and elicited testimony from three witnesses. The Defense then had an opportunity to challenge the Prosecutor’s evidence and witnesses, and present its own. Defense counsel sought to establish that Abu Garda was not present in Sudan at the time of the attacks and instead was traveling elsewhere in Africa on behalf of the Justice and Equality Movement, another rebel group with which he was formerly affiliated. Additionally, the Defense argued that he did not order the attack and in fact condemned it. After both sides presented their evidence and witnesses, the victim representatives had an opportunity to challenge anything that affected their clients’ interests. Once the Prosecutor and Defense counsel presented their cases, both sides and the victim representatives made closing arguments. The hearing concluded on October 30, 2009.
On February 8, 2010, the Pre-Trial Chamber entered a decision in which it declined to confirm the charges against Abu Garda. The Chamber concluded that the attack on Haskanita was sufficiently grave to merit ICC involvement because the violence caused AMIS to decrease its presence in the region and led to further instability. However, the Chamber did not find that the Prosecutor had entered enough evidence to create “substantial grounds” on which to find Abu Garda guilty for the crimes of which he was accused. The Prosecutor now has several options for how to proceed. He can resubmit his request for confirmation of charges with additional evidence, or he can petition the Pre-Trial Chamber for leave to appeal the decision on the evidence as entered.
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