THE INTERNATIONAL CITIZENS’ TRIBUNAL FOR SUDAN

IN THE TRIAL CHAMBER

• JUDGMENT
• Judgment (Judge Michael Newton)
• Judgment (Judge Gloria White-Hammond)
• Judgment (Judge Obang O. Metho)
  
• Opening Statement for Prosecution Matas
  
• Opening Statement for Prosecution Kilgour
  
• Opening Statement for Defense
  
• Closing Statement for Prosecution
• Closing Statement for Defense

            THE OPENING STATEMENT FOR THE DEFENCE

By

Mr. Kelly Dawson, Esq.

           
Good morning your Honours:

My colleague, Mr. MacDonald and I appear to represent the interests of the accused, President Al Bashir of the Sudan. For the record it must be confirmed that we are not instructed in this matter by the accused, nor do we act with his authority. The accused having failed to appear, upon notice, to answer these charges, this Honourable Court has determined he shall be tried in abstentia and has appointed Mr. MacDonald and I as his defence counsel.

I must first begin, however, with a formal motion to challenge this trial court’s jurisdiction to try President Bashir in abstentia. It is contrary to time honoured traditions of common law that hold that there can be no fairness in a criminal trial without the accused’s presence and instructions to counsel. Nor does the new rules of the International Criminal Court permit same, except in the pre-trial chambers stage. We therefore, respectfully request that this Honourable Court declare these proceedings a nullity.
 
The allegations against the defendants are serious in the extreme.  The prosecution must be held to the highest standard of proof known to our criminal courts, namely proof beyond a reasonable doubt. I respectfully submit that the evidence to be presented by the prosecution fails to achieve probability, let alone proof beyond a reasonable doubt. The smoke of suspicion with which the prosecution will attempt to cloak President Bashir is not the smoke of guilt, but the smoke of war.

The Darfur region of Sudan is an area the size of France. It has never been effectively administered or controlled by any central authority. Tribal and ethnic conflict have been historical themes. The evidence will show that President Bashir has been confronted with a war on several fronts, against several foes that are well armed, tough and sophisticated in their tactics. You will hear that the country is awash in guns and young men in uniform, thousands of them simply bandits or rebels. You will hear that foreign governments support some of these rebel groups. The Sudanese army has suffered numerous stunning defeats.  Confronted with such chaos the government formed the PDF, an ill trained army of recruits who, in the words of Prof. Collins, a witness in these proceedings, are nothing but cannon fodder. This is the army that has been sent to Darfur. 

A number of civilian Sudanese will testify that they have witnessed acts of violence by militia groups, notably the Janjaweed. It will be suggested through these witnesses that regular members of the military have been placed at the scene of these crimes. Proof of this alleged fact will be the occasional sightings of men garbed in camoflauge uniforms, uniforms which look similar to those worn by the Sudanese army, in the company of the Janjaweed militia. On some occasions vehicle “like” the ones the military use have been seen.  Across Africa you will find rag tag militias and rebels, arming and clothing themselves with whatever it at hand, including the spoils of war, be it the uniforms of their enemies or even their equipment. There will be no credible evidence advanced that any of these men are members of the Sudanese army, let alone that they are acting directly within the scope of the command and control of the government of Sudan or its legal officials.

I believe the prosecution intends to lead evidence of individual acts of torture against civilians by members of the police or military. From such isolated incidents of abuse this court will be asked by the prosecution to extrapolate guilt. An astounding extension of criminal liability that I am confident this Honourable Court will reject.

You will also hear opinion from academics and NGO representatives and the like – evidence which is nothing but a loose collection of historical musings, intermingled with hearsay upon hearsay accounts that appear no stronger in terms of probative value than the claims I expect to be made today by the prosecution’s civilian witnesses.

It is the position of the defence that the accused has, at all times, acted lawfully and in the defence of his nation. That the Sudan has faced armed insurrection by several rebel and criminal groups is established fact. With limited resources it has attempted to restore public order, while attempting to get aid to the affected region. Great human suffering has occurred, but the prosecution simply cannot displace the onus upon it in this trial – that the accused played an active role in precipitating any of this suffering. War by its very definition is chaotic, combating an insurgency by several shadowy groups even more so. Collateral damage happens. Civilians get caught in the cross fire, especially when the insurrectionists do not necessarily play by the rules or dress like soldiers.

The Defence will not ask this Court to doubt the essential truth of these witnesses who have come forward. They have suffered, and they have witnessed suffering. Assigning blame to someone for this suffering is a natural impulse, both of the victim’s and the world community embodied by this Court.  That the Sudanese Government and President Bashir have inadequately protected its their citizens from this bloodshed and suffering makes them the obvious target for that blame. However, at the end of this day, the prosecution’s emotional appeal to attach blame to the accused, President Bashir must be rooted in cold, hard evidence – evidence they simply do not have.

Thank you.