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OTP Situations and Cases
The Chamber noted that the Prosecution had
submitted evidence ‘purporting to demonstrate’ that
two meetings had taken place, that Abu Garda had
participated in these meetings, and that the subject
matter of the meetings was planning the attack on
Haskanita. While the Chamber was satisfied that the
first meeting took place, they found the Prosecution
did not provide sufficient evidence regarding Abu
Garda’s alleged participation in the meeting, noting
that the evidence was ‘weak and unreliable due to the
many inconsistencies’. 723 Further, the Chamber was not
satisfied that the second meeting took place as alleged
by the Prosecution. As to both meetings, the Chamber
concluded that the evidence is ‘so scant and unreliable
that the Chamber is unable to be satisfied that there
are substantial ground to believe that [Abu Garda]
participated in any meeting in which a common plan
to attack [Haskanita] was agreed upon’. 724
On 15 March 2010, 725 the Prosecution filed a request
for leave to appeal the decision on the confirmation
charges, a request that was supported by the Legal
Representatives of Victims. 726 This request for appeal
was later denied by Pre-Trial Chamber I. 727 Although
the ICC’s website now lists the case against Abu
Garda as closed, 728 the Prosecution has indicated
that it will present additional evidence in this case. 729
The Prosecution did not, however, indicate when
such evidence would be brought. In declining to
confirm the charges against Abu Garda, the Pre-Trial
Chamber noted that this decision did not preclude
the Prosecutor from requesting the confirmation of
charges against him, ‘if such request is supported by
additional evidence, in accordance with Article 61(8) of
the Statute’. 730 At the time of writing of this <strong>Report</strong>, the
Prosecutor has not yet brought additional evidence.
723 ICC-02/05-02/09-243-Red, para 173.
724 ICC-02/05-02/09-243-Red, para 179.
725 ICC-02/05-02/09-257-Conf, as cited in ICC-02/05-02/09-
267.
726 ICC-02/05-02/09-267.
727 ICC-02/05-02/09-267. For a more detailed discussion
of the decision on the confirmation of charges in Abu
Garda, see <strong>Gender</strong> <strong>Report</strong> <strong>Card</strong> 2010, p 109-111.
728 See .
729 OTP Weekly Briefing, Issue #99, 5-13 September 2011.
730 ICC-02/05-02/09-243-Red, para 236.
The Prosecutor v. Abdallah Banda Abakaer
Nourain and Saleh Mohammed Jerbo Jamus
Abdallah Banda Abakaer Nourain (Banda) and Saleh
Mohammed Jerbo Jamus (Jerbo) are Sudanese citizens
of Zaghawa ethnicity. 731 Banda was the former military
commander of the Justice and Equality Movement
(JEM), before establishing a splinter group, the JEM
Collective Leadership, along with Bahar Idriss Abu
Garda (Abu Garda). 732 Jerbo was the Chief of Staff
of the splinter group the Sudanese Liberation Army
Unity (SLA-Unity), which had broken away from the
Sudanese Liberation Movement Army. 733 Banda and
Jerbo were each charged with three counts of war
crimes in connection with an attack in September 2007
against the African Union Mission in Sudan (AMIS)
peacekeeping mission based at the MGS Haskanita.
Banda and Jerbo were charged with the war crimes
of: (i) violence to life and attempted violence to life; 734
(ii) intentionally directing attacks against personnel,
installations, material, units and vehicles involved in
a peacekeeping mission; 735 and (iii) pillaging. 736 No
charges for gender-based crimes have been sought
against any of the rebel leaders alleged to have been
involved in the Haskanita attack. Both Banda and
Jerbo were charged as co-perpetrators or indirect
co-perpetrators under Article 25(3)(a) and or Article
25(3)(f). 737 Both suspects voluntarily made their first
appearance before the Court on 17 June 2010 in
response to a Summons to Appear, which was initially
issued under seal on 27 August 2009, but made public
on 15 June 2010. 738 They currently remain at liberty,
pending their trial proceedings.
731 ICC-02/05-03/09-121-Corr-Red, paras 6-7.
732 ICC-02/05-03/09-3, paras 9-10.
733 ICC-02/05-03/09-2, para 17.
734 Article 8(2)(c)(i).
735 Article 8(2)(e)(iii).
736 Article 8(2)(e)(v).
737 Article 25(3) provides the following: ‘In accordance with
this Statute, a person shall be criminally responsible
and liable for punishment for a crime within the
jurisdiction of the Court if that person: (a) Commits such
a crime, whether as an individual, jointly with another
or through another person, regardless of whether that
other person is criminally responsible; [...] (f) Attempts to
commit such a crime by taking action that commences
its execution by means of a substantial step, but
the crime does not occur because of circumstances
independent of the person’s intentions. However, a
person who abandons the effort to commit the crime
or otherwise prevents the completion of the crime shall
not be liable for punishment under this Statute for the
attempt to commit that crime if that person completely
and voluntarily gave up the criminal purpose.’
738 ICC-02/05-03/09-1.
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