Banda and Jerbo case: ICC Trial Chamber IV rejects stay of proceedings request

On 26 October 2012, Trial Chamber IV of the International Criminal Court (ICC) rejected the “Request for a Temporary Stay of Proceedings​”, submitted by the Defence of Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamaus. The Chamber also requested the parties and participants to file written submissions on the possible date for the commencement of the trial by 19 November 2012. Judge Chile Eboe-Osuji appended a concurring separate opinion.

On 6 January 2012, the Defence had requested the Chamber to stay temporarily the proceedings in this case arguing that the accused could not receive a fair trial since adequate facilities to investigate and to obtain the attendance of witnesses could not be secured in the context of the situation in Sudan. The Defence also claimed the need of access to important documents of regional and international governments and organisations.

However, the Chamber rejected the request stating that, if need be, the defendant’s complaint would be kept in mind in the course of the trial. “At trial, the Chamber, the parties and the participants will be in a position to better assess the evidence adduced to see whether the complaints about fair trial are founded”, Judges indicated. The Chamber - composed of Presiding Judge Joyce Aluoch, Judge Silvia Fernandez de Gurmendi and Judge Chile Eboe-Osuji – highlighted the ongoing process of disclosure of evidence, including exculpatory evidence, to the Defence, and encouraged the prosecution to continue its efforts to secure defence contacts, questioning or interviews with witnesses.

Background

On 7 March 2011, Pre-Trial Chamber I unanimously decided to confirm the charges of war crimes brought by the ICC Prosecutor against Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus. Pre-Trial Chamber I found substantial grounds to believe that Abdallah Banda and Saleh Jerbo are criminally responsible as co-perpetrators for three war crimes:

• violence to life and attempted violence to life;
  
• intentionally directing attacks against personnel, installations, material, units and vehicles involved in a peacekeeping mission; and
  
• pillaging.
  

These crimes were allegedly committed during an attack led by Abdallah Banda and Saleh Jerbo and other commanders and directed against the compound of the African Union Mission in Sudan at Haskanita on the evening of 29 September 2007. The Chamber found substantial grounds to believe that the attack was directed to personnel, installations, material, units and vehicles involved in a peacekeeping mission in accordance with the Charter of the United Nations which were entitled to the protection afforded to civilians and civilian objects.

The situation in Darfur was referred to the ICC by United Nations Security Council resolution 1593 on 31 March 2005, under article 13(b) of the Rome Statute – the Court’s founding treaty.

The ICC is the first permanent, treaty-based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community, namely war crimes, crimes against humanity and genocide.

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