The Prosecutor v. Abdallah Banda Abakaer Nourain
Pénale
I n t e r n a t i o n a l e I n t e r n a t i o n a l
c
C r i m i n a l C o u r t
Onginal. English No.: ICC-02/05-03/09 Date- 27 August 2009
PRE-TRIAL CHAMBER I
Before: Judge Sylvia Steiner, Presiding Judge Judge Sanji Mmasenono Monageng Judge Cuno Tarfusser
SITUATION IN DARFUR, SUDAN IN THE CASE OF THE PROSECUTOR V, ABDALLAH BANDA ABAKAER NOURAIN AND SALEH MOHAMMED JERBO JAMUS Confidential SUMMONS TO APPEAR FOR ABDALLAH BANDA ABAKAER NOURAIN
August 2009
Legal Representatives of Victims Legal Representatives of Applicants
Unrepresented Victims Unrepresented Applicants for Participation/Reparation
The Office of Public Counsel for The Office of Public Counsel for the Victims Defence
States Representatives Amicus Curiae
REGISTRY Registrar Defence Support Section Ms Silvana Arbia Victims and Witnesses Unit Detention Section
Victims Participation and Reparations Other Section
No ICC-02/05-03/09 >/9 PURL: https://www.legal-tools.org/doc/e1785c/27 August 2009
PRE-TRIAL CHAMBER I of the International Cnminal Court (the "Chamber" and the "Court", respechvely),
1 HAVING EXAMINED the "Prosecutor's Apphcahon under Arhcle 58",' filed by the Prosecutor on 20 November 2008 m the record of the Situahon in Darfur, Sudan, whereby it requested the Chamber to issue a warrant of arrest or, alternahvely, a summons to appear for Abdallah Banda Abakaer Nourain ("Banda") and others;
2 HAVING EXAMINED the "Submission of mformahon on the Prosecuhon's Apphcahon Pursuant to Article 58 and request for summonses to appear",^ filed by the Prosecutor on 23 February 2009, whereby he requested the Chamber to issue a summons to appear for Banda and others,
3 HAVING EXAMINED all other supporhng material and informahon submitted by the Prosecutor,^
4 NOTING the "Report of the Prosecuhon Submitted pursuant to Request of the Chamber contained in the Confidential Annex to its decision convening a hearmg of 19 August", filed by the Prosecutor on 25 August 2009",^
' ICC-02/05-163-Conf-Exp, ICC-02/05-163-Conf-Exp-Anxsl-5 38 '- ICC-02/05-194-Conf-Exp, ICC-02/05-194-Conf-Exp-Anxl ' ICC-02/05-165-Conf-Exp and ICC-02/05-165-Conf-Exp-Anxbl-8, ICC-02/05-172 and ICC- 02/05-172-Conf-Exp-AnxsA-B24, ICC-02/05-173 and ICC-02/05-173-Conf-Exp-AnxsB25-B26, ICC-02/05-203 and ICC-02/05-203-Conf-Exp-Anxl, ICC-ü2/05-21I-Conf-Exp and ICC-02/05- 211-Conf-Exp-Anxsl-2, ICC-02/05-212-Conf-hxp, ICC-02/ü5-2U-Cont-Exp and ICC-02/05-214- Conf-Exp-Anxl, ICC-02/05-216-Conf-Exp ' IOO-02/05-229 IOO-02/05-229-Anxs-A-B No. ICC-02/05-03/09 3/9 27 August 2009
5 NOTING the submissions of the Prosecutor m the ex parte hearing before the Chamber, held in closed session on 26 August 2009,^
6 NOTING the "Second Decision on the Prosecutor's Apphcahon under Arhcle 58"," in which the Chamber explains the reasons why it is satisfied that there are reasonable grounds to believe that Banda is criminally responsible under arhcle 25(3)(a) of the Statute of the Court (the "Statute") for war crimes and that the issuance of a summons to appear is sufficient to ensure his appearance before the Court under article 58(7) of the Statute of the Court;
7 CONSIDERING that, on the basis of the material provided by the Prosecutor m support of his Apphcahon and without prejudice to any subsequent determination that may be made under arhcle 19 of the Statute, the case against Banda falls within the junsdichon of the Court,
8 CONSIDERING that, on the basis of the matenal provided by the Prosecutor, there is no ostensible cause or self-evident factor impelling the Chamber to exercise its discretion under article 19(1) ot the Statute to determme the admissibility of the case against Banda at this stage,
9 CONSIDERING that there arc reasonable grounds to believe that at the time relevant to the charges alleged in the Prosecutor's Apphcahon, a protracted armed conflict not of an international character within the meaning of arhcle 8(2)(f) of the Statute existed in Darfur between the Government of Sudan and several organised armed groups, including the Jushcc and
^ ICO-02/05-T-7-CONF-EXP-ENG ^ ICC-02/05-03/09-l-Conf No ICC-02/05-03/09 4/9 27 August 2009
Equality Movement ("JEM") and that Banda was aware of the factual circumstances establishing the existence ot the said armed conflict,
10 CONSIDERING that there are reasonable grounds to beheve that, in the context of, and in association with, the said armed conflict, on 29 September 2007 an attack was carried out against the African Union Mission m Sudan ("AMIS") personnel, installahons, matenal, units and vehicles that were stahoned at the Mihtary Group Site (MGS) Haskanita (Sector 8) ("MGS Haskanita"), Umm Kadada Locahty, North Darfur, Sudan,
11 CONSIDERING that there are reasonable grounds to believe that the attack on the MGS Haskanita was carried out by splinter forces of JEM, under the command of Banda and Bahar Idriss Abu Garda ("Abu Garda"), jointly with the troops belonging to SLA-Unity, which had broken away from the SLMA/A, under the command of Saleh Mohammed Jerbo Jamus ("Jerbo"),
12 CONSIDERING that, on the basis of the matenal provided by the Prosecutor, there are reasonable grounds to believe that during and after the above-menhoned attack, the attackers, (i) killed twelve AMIS soldiers, (ii) severely wounded eight AMIS soldiers, (in) destroyed communication mstallations, dormitories, vehicles and other materials belonging to AMIS, and (iv) appropriated property belongmg to AMIS,
13 CONSIDERING that there are reasonable grounds to believe that (i) the vichms of the attack were enhtled to the protechon afforded to avihans not taking active part in the hoshlities, (ii) Banda, as well as Abu Garda and Jerbo, was aware of this circumstance and, therefore, (in) the war crime of violence
No. ICC-02/05-03/09 5/9 27 August 2009 to life in the form of murder, within the meanmg of arhcle 8(2)(c)(i) of the Statute was committed or attempted during the attack,
14 CONSIDERING that there are reasonable grounds to believe that (i) the object of the attack can be considered personnel, installations, material, unit or vehicles involved in a peacekeeping mission "in accordance with the Charter of the United Nahons" within the meaning of article 8(2)(e)(ui) of the Statute, (il) as not achvely parhcipahng m the hoshhhes, the AMIS troops - as well as the installahons, material, units and vehicles involved in the AMIS mission were enhtled to the protechon given to civilians or civilian objects under the internahonal law^ of armed conflict withm the meaning of article 8(2)(e)(iii) of the Statute, (iii) Banda, Abu Garda and Jerbo were aware of the protection to which AMIS personnel, installations, material, unit and vehicles were enhtled, (iv) therefore, the war crime of intentionally directing attacks agamst personnel, installations, material, units or vehicles involved in a peacekeeping mission within the meaning of arhcle 8(2)(c)(iii) of the Statute was committed;
15 CONSIDERING that there are reasonable grounds to believe that after the attack the attackers appropriated numerous items belonging to AMIS, with the specific intent to deprive the owner of such items and to appropriate them for private or personal use, and, therefore, that the war crime of pillaging withm the meaning of arhcle 8(2)(e)(v) of the Statute was committed,
16 CONSIDERING that there are reasonable grounds to believe that (i) there was a common plan to attack the MSG Haskanita between Banda, Abu Garda and Jerbo; and (u) the common plan included the commission of the abovemenhoned war crimes.
No ICC-02/05-03/09 6/9 27 August 2009
17 CONSIDERING that there are reasonable grounds to believe that the contnbutum of Banda - who was the military commander of JEM by May 2006 and who, on 4 October 2007, together with Abu Garda, declared the tormahon of a new armed fachon called JEM Collechve Leadership ("JEM- CL") - was esscnhal insofar as there are reasonable grounds to believe that he participated m the design of the common plan and was in command of the splmter forces of JEM during the attack to MSG Haskanita,
18 CONSIDERING that, on the basis of the matenal provided by the Prosecutor in support of his Apphcahon, there are reasonable grounds to believe that Banda is criminally respcmsible as a co-perpetrator or as an indirect co-perpetrator under arhcle 25(3)(a) of the Statute;
19 BEING SATISFIED that, for the above reasons, there are reasonable grounds to believe that Banda is criminally responsible under arhcle 25(3)(a) of the Stahite, for I the w^ar crime of violence to life, m the form of murder, w^hether committed or attempted, within the meaning of arhcle 8(2)(c)(i) of the Statute, 11 the war crime of intenhonally direchng attackb against personnel, installations, materials, units and vehicles involved m a peacekeepmg mission, within the meaning of arhcle 8(2)(e)(iii) of the Statute, 111 the war crime ot pillaging, within the meanmg of arhcle 8(2)(e)(v) of the Statute
20 CONSIDERING that (i) the issuance of a warrant of arrest does not appear necessary for the purposes of article 58(l)(b) of the Stahite, and (ii)
No. ICC-02/05-03/09 7/9 27 August 2009 there are reasonable grounds to believe that a summons to appear for Banda IS sutticient to ensure his appearance betöre the Court weithin the meaning of arhcle 5S(7) of the Statute, without prejudice to the Chamber's power to review^ its determination under articles 58(1) and 58(7) of the Statute, respechvely,
FOR THESE REASONS,
ORDERS
ABDALLAH BANDA ABAKAER NOURAIN, a male, member of the Zaghawa tribe of Sudan, born in or around 1963 in VVai, Dar Kobe, North Darfur, current Commander-in-Chief of JEM Collective-Leadership, one of the components of the United Resistance Front, TO APPEAR BEFORE THE COURT on Tuesday, 17 November 2009 at 10.00 hours,
ORDERS
ABDALLAH BANDA ABAKAER NOURAIN, without prejudice to further decisions of the Chamber in this respect* (i) to refrain from discussing issues related to either the charges w^hich form the basis of the present summons or the evidence and informahon presented by the Prosecutor and considered by the Chamber,
No ICC-02/05-03/09 8/9 27 August 2009
Done in both English and French, the English version being authontahvc
-Judge-Sylvia Steiner Presiding Judge
Judge Sanji Mmasenono Moh^geng Judge Cuno Tarfusser
Dated this Thursday, 27 August 2009 At The Hague, the Netherlands
No ICC-02/05-03/09 9/9 27 August 2009