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 PROSECUTION

By

Mr. David Matas

This is a prosecution of a head of state and head of the armed forces for atrocities that are undoubtedly happening.  The defence does not deny they are happening.  The issue this Court has to address is the personal criminal responsibility of Omar Hassan Ahmad Al-Bashir.

The indictment is far sweeping, referring not only to Darfur, but also to crimes against the Nuba, the Dinka, the people of the Shilluk kingdom, as well as torture of political opposition.  Much of the evidence you will hear relates to Darfur, but not all of it. Given the limitations of time, I will restrict my remarks to Darfur.  But the principles are general and apply to other crimes in other areas, against other victims.
 
You will hear evidence that attacks against innocent civilians in Darfur were committed by the janjaweed, with the aid of the Popular Defence Force and the air force.  As well, you will hear about the systematic obstruction of humanitarian aid to the victims of these attacks leading to their deaths.  There are three legal links between these crimes and Al-Bashir.  One is command responsibility.  The other is complicity.  The third is joint enterprise.

A. Command responsibility

Al-Bashir is the commander in chief of the Popular Defence Force and the air force as well as head of the government of Sudan.  The statute of this Court attributes criminal responsibility to a military commander or civilian superior if three conditions are met [Article 16]. 

The first condition is that the crimes are committed by forces or subordinates under his effective command and control.  The second is that the commander or superior knew or consciously disregarded information that the forces or subordinates were committing or about to commit such crimes.  The third is that commander or superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

All three of those conditions are met here.  Both the Popular Defence Force and the air force are under the effective command and control of President Al-Bashir.  So is the civilian component of the government that has obstructed the delivery of humanitarian aid.

Second Al-Bashir knew or consciously disregarded that the forces and subordinates were committing such crimes.  The crimes of Sudan are notorious.    All one has to do is read the papers, listen to radio or watch TV to see what is happening.

Third not all necessary and reasonable measures to prevent commission of the crimes have been taken. The Darfur Peace Agreement of May 2006 commits the Government of Sudan to restrict the Popular Defence Force to their headquarters, garrison sites, cantonments or communities (paragraph 315a).  The Government promised to grant humanitarian agencies access to displaced and war affected persons (paragraph 184). That could have been done long before the agreement was signed.

As well, there is no real effort within Sudan to investigate and prosecute the crimes that have been committed there, including systematic crimes of rape.  The Government of Sudan has granted effective immunity for the crimes of its forces and the janjaweed. 

B. Complicity

The second basis for convicting Bashir is his personal complicity in the crimes.  The evidence will show that the front line perpetrators of the crimes in Darfur have been the janjaweed, private militia groups in coordination with forces from the Government of Sudan. The Government of Sudan could have prevented the janjaweed from inflicting the harm they have done.  But the Government instead assisted them.

The clearest proof of the ability of the Government of Sudan to control the Janjaweed is the Government's own admission.  The May 2006 Darfur peace agreement mentions the janjaweed 27 times, though the janjaweed are not a party to the agreement.  Under that agreement, the Government of Sudan undertakes to neutralize and disarm the janjaweed.  Like the Popular Defence Forces, the Government of Sudan undertakes to restrict the janjaweed their headquarters, garrison sites, cantonments or communities.

Obviously, if the Government of Sudan could stop the janjaweed in May 2006, they could do it at any time.  Their signed agreement to the peace agreement is an admission that they can stop the janjaweed, that they could have stopped the janjaweed.  Yet, they chose up to now not do so.  That failure to prevent amounts to complicity in the crimes of the janjaweed.  It is a complicity that falls on the head of state of Sudan.

According to the Statute of this Court, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person in any way contributes to the commission of a crime by a group of persons acting with a common purpose [Article 13(3)(d)]. Such contribution always has to be intentional.  There are different ways in which the crime can be committed.  One way is making this intentional contribution in the knowledge of the intention of the group to commit the crime.

Again, here it is impossible to deny knowledge.  Even if Al-Bashir could claim ignorance of what the janjaweed was doing when it first began, it is impossible to claim ignorance now. 

There are many different ways in which the Government of Sudan has contributed to the crimes of the janjaweed, all intentional.  But the simplest and most obvious is the failure to neutralize and disarm the janjaweed, the failure of the Government of Sudan to restrict the janjaweed to their headquarters, garrison sites, cantonments or communities, something, through the Darfur peace agreement, the Government of Sudan acknowledges it has and has had the power to do.

C. Joint Responsibility 

The statute of this Court criminalizes acts committed jointly with or through others.  It is no defence to a charge under this statute that someone else was the front line perpetrator where that someone else committed the acts as an agent of another, or as part of a common plan with another.  The Statute says:

"A person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person commits such a crime... jointly with another or through another person..." [Article 13(3)(a)].

Here, the evidence will show that the crimes of the janjaweed were committed jointly with Al Bashir.  Al Bashir acted through the janjaweed, in consort with them, to perpetrate crimes against innocent civilians.

D. Head of state

I remind you that the statute of the court explicitly asserts the irrelevance of official capacity.  The fact that Al-Bashir is the head of state does not make him immune. There is no head of state immunity under the statute of this Court.  The statute specifically says, and I quote:

"This Statute shall apply equally to all persons without any distinction based on official capacity.  In particular, official capacity as a Head of State or Government... shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence." [Article 15]

E. Conclusion

When you hear the evidence of the atrocities pile up, remember that Al-Bashir knew all about them, knew they were going to continue to happen, could have prevented them, could have ordered the Popular Defence Forces to stop, could have ordered the air force not to coordinate attacks with the janjaweed, could have ordered the disarming and neutralizing of the janjaweed, could have ordered the janjaweed, the air force and the popular defence forces back to their headquarters, garrison sites, cantonments or communities, could have submitted for investigation and prosecution the perpetrators within the air force, the Popular Defence Forces and janjaweed for their many crimes, could have had his government grant humanitarian agencies access to the displaced and war affected, but chose not to do so.  That makes him, in our view, an international criminal.