ICC Prosecution seeks postponement of first hearing on Ali Kushayb case
The International Criminal Court (ICC) Prosecution has asked the ICC’s Pre-Trial Chamber II to postpone the ‘confirmation of charges hearing’ in the case of Ali Abdelrahman (also known as Ali Kushayb*) to June 1, 2021.
At a ‘confirmation of charges hearing’ judges determine whether or not there is sufficient evidence to establish substantial grounds to believe that a suspect committed each of the crimes charged. If the charges are confirmed, in full or in part, the case will be transferred to a Trial Chamber, which will conduct the trial.
Deputy Prosecutor James Stewart asked for more time before the first hearing, because the ICC arrest warrant against Ali Abdelrahman was issued more than 13 years ago and the case has been dormant until Abdelrahman surrendered himself to the ICC in the Central African Republic in June.
The prosecution argues that the ICC prosecution is not to blame that Ali Abdelrahman “chose to remain a fugitive for over 13 years”, so the additional six months that he now has to stay in pre-trial custody is “not unreasonable”.
The original ‘confirmation of charges hearing’ was planned on December 7, 2020. This date was set at the first procedural hearing in the case, which was held on June 15.
The ICC Prosecution made its request for postponement to the Pre-Trial Chamber on August 17. This document was confidential, as it contained information that could endanger the safety of witnesses, cooperation with foreign agents (such as the Sudanese government) and the investigation of the prosecution itself. The ICC later released a ‘public redacted version’ of the request in which certain details were left out.
Ali Abdelrahman has been accused by the ICC of war crimes and crimes against humanity in Darfur in 2003 and 2004 when he was a Janjaweed leader.
The prosecution states it needs the six months until June 1, 2021, to re-contact the 119 persons that have given witness statements in 2007. It also expects that many new witnesses will come forward. “A large number of persons have already contacted the Prosecution since Mr Abdelrahman’s surrender stating that they, or persons they know, have information relevant to its investigation”, the prosecution states.
Individual Risk Assessments will be conducted for each existing and new witness in order to determine whether the identity of the witness can be disclosed. The safety of family members will be taken into account as well. The prosecution does not want it to be known at this point how many witness identities it has already decided it will disclose. The prosecution asks the Pre-Trial Chamber that applications for the authorisation of the non-disclosure of identities can be submitted until March 1, 2021, so the Chamber will have three months to decide about all applications before the ‘confirmation of charges hearing’ on June 1, 2021.
Review of evidence
The prosecution must conduct a comprehensive disclosure review of the evidence in its data collection relating to Abdelrahman. The ICC Darfur database currently contains 33,889 items (171,555 pages), of which some 10,160 items are categorised as “not electronically searchable”, for example because they are handwritten or consist of audio or video.
The ICC Prosecution stated that “852 items (6,288 pages) of evidence have already been disclosed to the Defence on 31 August 2020” and that “the Prosecution will continue to disclose relevant items on a monthly basis”.
Some 3,205 witness statements needs to be translated, where necessary transcribed, so they are available in the language that the accused fully understands and speaks, being Arabic (as established during the first procedural hearing in June). About one third of these documents have already been translated.
The prosecution has hired additional reviewers and translators to review and translate all the material and managed to do so despite the COVID-19 measures in the Netherlands.
The prosecution expects that COVID-19 will hinder further investigations and cooperation from external agents (such as the government of Sudan).
ICC spokesperson Fadi El Abdallah told Radio Dabanga that it was not yet known when the ICC Pre-Trial Chamber II would decide about the prosecution’s request for postponement of the ‘confirmation of charges hearing’ to June 1, 2021. “That also depends on how the defence lawyers react.”
Cooperation with the Sudanese government
The prosecution expects that the Sudanese government will cooperate with the ICC. “The signing of a peace agreement between the Sudanese government and a coalition of armed groups on 31 August 2020, which provides for cooperation with the ICC, has significantly enhanced the prospects for developing a meaningful and productive relationship with the government of Sudan.”
In June, the Sudanese government welcomed Ali Abdelrahman’s arrest. The Sudanese Public Prosecution said at the time that it had indicted Ali Abdelrahman for murder, theft, rape and violence against women at the end of 2019. An arrest warrant against him was issued then.
The ICC Prosecutor, Fatou Bensouda, hailed the surrender and transfer of former Darfur Janjaweed leader Ali Abdelrahman in June as “a milestone in the Darfur, Sudan situation”.
* At his first appearance before the ICC on June 15, 2020, Ali Kushayb (as stated on the arrest warrants) insisted that he be referred to as Ali Abdelrahman. The judge ruled that the suspect will be referred to as such. In the ICC Prosecution’s request to postpone the 'confirmation of charges hearing' the accused is called Ali Mohamed Abdelrahman (“Ali Kushayb”).
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