Disclaimer: Asymmetrical Haircuts is produced as a podcast, meaning it is meant to be listened to and not read. Because of this, we recommend that you listen to the episode while reading, because the written word does not do justice to the emotion or tone used by our speakers. However, because we recognise there might be bandwidth issues or you might be using a hearing aid, we have provided written transcripts for all our available episodes.

[INTRO MUSIC]

Narrator: 0:01  Asymmetrical Haircuts: Justice Update with Janet Anderson and Stephanie van den Berg, in partnership with JusticeInfo.net.

Janet: 0:10  Hi Stef.

Stephanie: 0:11  Hi Janet.

Janet: 0:12  So this is the last in the series that we’ve been doing for the last few months about universal jurisdiction.

Stephanie: 0:18  I’m sure that you have something in mind when we start again in September, right?

Janet: 0:22  Oh yes, yes. Of course, we’ve hardly scratched the surface on Europe, and we have so many more places to do in Latin America. And of course, we have our own beloved Netherlands to do, and I think there’s plenty to say on that, and we’ll keep that right from the end. Yeah, this is the last one for the moment.

Stephanie: 0:40  And what’s on our agenda for this month?

Janet: 0:42  Well, after last month looking at universal jurisdiction directly from the Rwandan perspective, we’re staying in Africa, and this time we’re heading to Kenya.

Stephanie: 0:52  And we’ve talked about Kenya before on the pod, but so much of what we discussed was related to post-election violence in the first half of the 2000s. I remember one of our first podcasts was on sexual violence survivors working on reparations and children born of rape, and we’ll link to that in the show notes.

Janet: 1:12  Yeah, we’ve done a couple of episodes on that, so we’ve got different things to link to. In that first lot of post-election violence in the late 2000s, reparations have finally been agreed for a small number of people, so we will plan to look at the issue of reparations.

Stephanie: 1:32  We also looked at the alleged crimes against humanity perpetrated by Kenya police in another presidential election in 2017, and we looked at the first ever application of the 2008 International Crimes Act in what was known as the Baby Pendo case, where police are alleged to have killed a six-month-old baby, Samantha Pendo, who was at home and in the arms of her mother at the time.

Janet: 1:58  Yeah, we’re going to hear a lot about this International Crimes Act because that’s at the heart of today’s podcast. Now, though, we have the first ever, under that Act, potential war crimes case. And the war concerned is not in Kenya, which, as you know, is not at war, but next-door neighbour Sudan is. The victim applicants are from Sudan and the accused are Sudanese, so it’s slap-bang universal jurisdiction.

Stephanie: 2:27  And who is behind the effort of bringing this, besides the victims and the accused, obviously? Because we know there’s always these organisations that help these cases come to the court.

Janet: 2:40  Yeah, the people with the strategic idea to do this are Legal Action Worldwide. Antonia Mulvey, as she told me, there are ten Sudanese victims. I’ll let her explain what she can about it. Then maybe you and I, Stef, can have a chat later about the broader picture of potential avenues for accountability for everything going on in Sudan. But after Antonia, we also hear from Owiso Owiso, who’s an international lawyer based in Kenya, and he is counsel in this attempt at a case on war crimes under the International Crimes Act. And as you’ll hear, he’s also involved in the Baby Pendo case, and he speaks about the realities of how you push this boulder up the hill of the Kenyan justice system. So first, here’s Antonia.

Antonia Mulvey: 3:31  There are ten brave Sudanese men and women that filed the complaint. They were in and around Khartoum when the crimes happened, and I must say it took real courage to file this. One of the women that we represent told me, “I’m filing this complaint because I don’t want what happened to me to happen to any other women.” Now, we’ve protected their identity. There are very serious risks of retaliation to them. Their identity will remain protected, so I can’t tell you where they are, but we’ve taken the security risks very seriously.

Janet: 4:17  I mean, I will press on that—not on the security risk—but if you can’t say where they are, what is the connection with Kenya?

Antonia Mulvey: 4:25  The connection with Kenya is in relation to the persons of interest. So we’ve identified ten persons of interest, all from the Rapid Support Forces, who are mid- to senior-level commanders, and a number of them have ties to Kenya. They move freely in and out of Kenya. They have reported citizenship as well as other ties, including financial ties. We’ve seen in the Kenyan media that there’s been a lot of public outrage at the fact that these war criminals are moving freely in and out of the country. So that is the direct link. 

Kenya has the legal framework under the 2008 International Crimes Act to allow for investigation and prosecution for war crimes and crimes against humanity. And there are some other points here as well. Kenya is the neighbouring country, and Sudanese have fled the war, which, as we know, has been ongoing for years, and are in Kenya as well. So we’ve got multiple reasons that tie Kenya to this complaint and to the crimes that are taking place. And also, we see time and time again African solutions for African problems, and we want to bring these cases nearer to where the crimes are taking place, nearer to where the victims and the survivors are, and, importantly, where the perpetrators are.

Janet: 6:02 What kinds of crimes are we talking about? Because I know that Legal Action Worldwide has done your reports particularly on conflict-related sexual violence, but the most recent ones I read were more to do with El Fasher, which we’ve podcasted about before. Yet you say these are crimes in Khartoum. So what kinds of crimes are we talking about? Are we talking about direct perpetration, and if not, is it linkage evidence? I don’t know how much you’re allowed to tell me.

Antonia Mulvey: 6:35  We’re talking about war crimes and crimes against humanity that took place in and around detention facilities in and around Khartoum. So Soba Prison, Riyadh Complex and other informal detention sites. Murder, imprisonment, sexual violence, rape, sexual slavery. They witnessed their family members being killed, torture, persecution. The complaint does not look at genocide because this complaint is not related to the crimes that are taking place in Darfur and are continuing, actually, in Darfur. And yes, a number of those that we represent, men and women, were subjected to horrific sexual violence when they were being detained. Now, the allegations are both against, as I mentioned, senior- and mid-level RSF commanders who both directly perpetrated the crimes, but also those with command responsibility. But I can’t tell you more than that.

Janet: 7:45  But you’ve also done reporting on and suggested that there should be some accountability, some action to do with the RSF and the funding of the RSF, particularly from foreign sources, because we know that this war is being continued and perpetrated because the weapons are flowing in, because other countries are being involved. So how far up the chain are you going, or would you be prepared to go?

Antonia Mulvey: 8:15  Look, let’s put it this way. The RSF, for years, have been committing horrific crimes. But, as we know, the report that we brought out looked at the flow of arms and the transfer of arms to the RSF, primarily from the United Arab Emirates. So we’re looking at multiple aspects and want to send the message that there’s going to be no safe haven for criminals and for those who are supporting them. We have also filed a complaint with the International Criminal Court on behalf of Sudanese women who suffered horrific sexual violence in Darfur. We will continue to support the ICC in their investigations in that matter. Also, the report that we brought out looks at the flow and transfer of arms. We need to halt the transfer of these arms, which have facilitated the crimes and have facilitated the sexual violence that took place in Darfur. In particular, we focused on El Fasher and said that individual RSF commanders have also committed the crime of genocide.

Janet: 9:31  So you’ve got the ICC, and now you’ve got this application in Kenya. Where else are you looking to try to get some forms of accountability? Or is that all a little bit secret still at the moment?

Antonia Mulvey: 9:42  That is a little bit secret, Janet. But let’s put it this way—we haven’t stopped. More cases will be coming. We know that multiple actors have committed crimes in Sudan. We’re led by the evidence, and we’re led by what the victims and survivors, what the communities, are asking for. They’re asking for justice and accountability. We want to be able to deliver that. We want to send a message that these crimes are being watched, where people travel is being watched. So we will continue. More is to come.

Janet: 10:19  As you heard from Antonia, it’s limited what she can say about it. And I kind of pushed the door a little bit on El Fasher, which is in Darfur, not in Khartoum. And I pushed a bit on United Arab Emirates involvement. But again, I suggest we park that for the end of the pod, Janet, when we discuss avenues to accountability. Can I just give you the warning—we’re going to require some Stefapedia.

Stephanie: 10:46  I have just yesterday spoken to somebody about the ICC in Sudan, so I hope I’m up to snuff for a Stefapedia on this.

Janet: 10:54  Excellent. Thumbs up from my side. So let’s focus instead, again, on the International Crimes Act, the ICA. And so I asked Owiso Owiso, the Kenyan lawyer involved, how it is that Kenya actually has an International Crimes Act, because not everywhere has. And he explained to me that, of course, Kenya was one of those countries that signed up to the Rome Statute, joined the International Criminal Court. But this Act was, in fact, part of the domestic solution that they came up with at the end of the 2000s to try to help stop and deal with the post-election violence in 2007 and 2008. And because this pod is actually about universal jurisdiction, I do kind of push a little bit on the legalese and the technical side and explore how it is that Kenya can be a venue for Sudanese victims in a war crimes prosecution where there are no Kenyan victims involved. So here’s Owiso explaining how Kenya got an International Crimes Act.

Owiso Owiso: 12:02  It was not necessarily because of the ICC. The context of it is, I mean, Kenya was in no rush to domesticate the Rome Statute. We had ratified it, and the country said, “OK, we’ve done our bit. That’s it. We’re moving on.” But 2007 happened and we had post-election violence. As part of the negotiation process, the accountability bit of it was that, yes, you have to, as a country, have a domestic system or mechanism for prosecuting the crimes against humanity that occurred in December 2007 and January 2008.

Janet: 12:35  So it became part of that. I remember the huge debate in Kenya at that time. Are we doing enough locally to avoid, essentially, a prosecution in The Hague?

Owiso Owiso: 12:45  Yes. So actually, The Hague was not the first conversation. The first conversation was, “We have to do this domestically.” So that was, in fact, part of the—I don’t want to call it a peace agreement—but the sort of agreement that ended the violence, that there would be a domestic process of accountability. So the ICC was sort of something at the back of the whole conversation. If the domestic process doesn’t kick off, then the ICC comes in. So in order to have a domestic process going, we needed to have a legislative framework. Because we had already ratified the Rome Statute, it was just easier to domesticate that, come up with an International Crimes Act that both domesticates the Rome Statute but also provides a legal basis for Kenya to prosecute international crimes domestically, regardless of where they are committed. And I would imagine, or I would like to say, that because of the context of the enactment of that particular legislation, I don’t quite suppose that Kenya was very concerned about crimes happening elsewhere. That was not necessarily the concern. The concern was, “OK, stuff has happened here. We need to deal with it here.” So I think that is why it was slightly easier for that legislation to include a provision that Kenya would have jurisdiction regardless of where these crimes are committed. I don’t think our legislators thought about that particular provision, because if they had, I suppose the debate would have been a bit more difficult.

Janet: 14:08  Just to say, we did one podcast on the application on crimes against humanity in relation to Kenyan police, the investigations that were going on into some terrible cases. So I was kind of aware of it domestically. So what about this international part to it? Not only international crimes, but international application. Has Kenya ever gone down this road before?

Owiso Owiso: 14:36  No, actually. In fact, the entire Act itself, even domestically, has not exactly been successfully applied. The first time it was applied domestically was with respect to protests that happened in 2017 following elections, where the police committed certain crimes—sexual violence, they murdered a couple of people, including the so-called Baby Pendo, a six-month-old child. That process has taken a long time. The trial is just kicking off somehow. So that is actually the first time the International Crimes Act is being tested domestically with respect to domestic crimes. But with respect to crimes committed elsewhere, outside Kenya’s territorial boundaries, it’s never been done before. Yes, the Act provides that it’s possible to do it, but we have not tested it. So if this goes through, this would be the first time that’s being tested.

Janet: 15:26  Okay, well, in the Kenyan system, which I imagine is at least partly derived from the British system—as far as I remember, everybody wears horsehair wigs in your courts—what are the kind of things that we need to understand? Because we spent quite some time looking at some of these other jurisdictions, France and Argentina, where you have this whole role of victims and ways that people can apply, what roles they can play, who gets to appeal, and so on. How does it work in Kenya? Who starts and who decides?

Owiso Owiso: 15:59  Well, thankfully, we don’t wear wigs around here anymore. It’s a common law jurisdiction, yes, but we didn’t borrow literally everything. We discarded the wig part, thankfully. But it’s generally a common law system with the usual common law procedural aspects of criminal law and all that. But this being an international criminal justice process—even most common law systems, even the UK, where we borrowed most of these things from, at the time these things were borrowed in the ’60s, the UK was not dealing with international criminal justice. So this is sort of new to everyone. While it has procedural aspects of common law, it’s a bit diluted in the sense that we are developing this as we go, and we are, of course, adopting the international procedural aspects of international criminal justice. This has also been made easier because in 2010 Kenya came up with a new Constitution, which overhauled the entire constitutional framework that was inherited from the colonial system. That new constitutional framework expands the scope in terms of vindicating rights. So first, of course, direct victims have a right to approach courts, those who are directly affected. In the context of the International Crimes Act, you do not have to be Kenyan to approach the Kenyan courts with this. But at the same time, recognising that sometimes victims may not necessarily be in a position to represent themselves, anybody else representing victims can also invoke this process. Then there’s also a third layer to it. You don’t even have to be related to the victims. As long as that particular issue is of public interest, you can also invoke the system. So either direct victims, persons representing victims directly, or anybody else acting in the public interest.

Janet: 17:48  How did it work in this case? How have you tried to test those boundaries?

Owiso Owiso: 17:54  Right. So this is still the very beginning of the process. It’s still very early days in the process. But this is how we anticipate it to unfold, especially considering the procedural process. The first thing you do is approach the Director of Public Prosecutions, the DPP, with a complaint, because they have operational independence. They have the authority to make the decision whether or not to prosecute. So the DPP can do one of three things. If the DPP looks at your complaint and determines, “Well, there is enough here for me to commence a prosecution,” they can do that. They will straight up file charges at the High Court. Secondly, if they determine there is something here but they don’t yet have enough evidence, they can direct the Inspector General of Police to conduct an investigation. That’s the second thing they can do. The third thing the DPP can do is simply say, “Well, I have looked at your complaint and there’s nothing here. I am not going to prosecute.” So either the DPP can say that expressly and write to you saying, “We’ve looked at what you’ve sent us. There’s nothing here. We’re not going to prosecute,” or they can constructively do that simply by keeping quiet.

Janet: 19:08  So if they—whatever decision they make—what rights do you have after that? Can you then go to court and say, “Oi, you’ve got to reverse that decision,” or whatever?

Owiso Owiso: 19:17  Yes. So if the DPP determines that there’s enough to file charges, they file charges. But the victims then also have a right to be represented in the system. We have a robust—relatively new, but robust—victim participation framework. The victims can directly appear in court, either by themselves or through counsel. They will not be prosecuting the matter if the DPP takes it up, but they will be represented. They will have all the rights that victims have, for example at the ICC, to cross-examine witnesses and present evidence and all that. But in the event that the DPP refuses to prosecute, then the victims, either themselves directly or through their counsel, can approach the High Court to ask the High Court one of two things: either to compel the DPP to re-examine that decision. Of course, the High Court can’t direct the DPP to prosecute. But the best the High Court can do at that stage is say, “Well, either you didn’t give reasons, or there’s no rational decision made here, so please re-examine that.” But the second thing the High Court can do—which the victims can also ask directly in that application—is this: “The DPP has determined they cannot prosecute, but according to us, there is enough evidence for a prosecution to be launched. So please give us authority, or permission, to launch a private prosecution.” That can happen. So you can’t, as victims, directly do that once the DPP refuses to prosecute. But you have the right to go to the High Court and ask the High Court: “Hey, we asked the DPP to launch prosecutions with respect to international crimes committed here and there. The DPP refused to do so. But we believe that there’s enough evidence for us to do this ourselves.” If the High Court then gives you permission, you can launch your own private prosecution.

And in that case, the victims will be acting as prosecutors. Of course, if that happens, the DPP still has a right to come in at any point of the process and take it over and prosecute it. But, of course, not to take it over and terminate it—that’s a different story. The DPP can still come in and take it over and prosecute it. But if the DPP doesn’t do that, then once you have permission from the High Court, you can launch a private prosecution by yourself. This private prosecution is relatively common in this jurisdiction, but only with respect to what I would call ordinary domestic crimes. We’ve not tried it before for international crimes, except, as I mentioned earlier, the so-called Baby Pendo case involving police officers. So what the DPP did in that respect is first file charges against about eleven or twelve police officers. Then, at some point down the line, the DPP withdrew charges against most of them and left only four. So what we have then done—because I’m also counsel in that case—three months ago, is we have gone to the High Court asking the High Court either to compel the DPP to review that decision and bring those names back onto the charge sheet, or to allow us to prosecute them ourselves. It’s also the first time it’s being tested in an international crimes context. And in the context of this filing with regard to the RSF, if the DPP does not make a favourable decision, then, of course, the victims would still have a right to go to the High Court and ask for that specific permission to launch private prosecutions. It’s a long, long road. Yeah, just the beginning.

Janet: 22:44  And I was just wondering whether Kenya particularly positions itself as a UN city, and it sometimes gets involved in things like peace talks. I imagine, in relation to Sudan, that Kenya might be involved in some kind of negotiations between the Government of Sudan and the RSF. We have a decision that you will have come across at the ICC from judges saying that arrest warrants could be suspended because of peace talks. We think that’s in relation to Ukraine, and we think that’s in relation to potential talks in Geneva, because there’s an arrest warrant against the Russian president and some others that could affect them. I’m just wondering, how do you see that political aspect playing out in Kenya?

Owiso Owiso: 23:36  Well, I believe there are two things to it. There are two things I can say with respect to that. In the early days, the Kenyan Government was quite involved in, or at least attempted to be involved in, the peace process from what would have appeared to be a neutral position. But that façade quickly fell off. Where we are at the moment is that while the Kenyan Government would pretend to be quite concerned about the peace process in Sudan, it is in the public domain that the current administration is actually very supportive of the RSF politically and in terms of business. They do business together and all that. Politically, not so long ago, the Kenyan Government hosted the RSF in Nairobi in their attempt to form a parallel government. Because of that process, the Sudanese Government actually withdrew the ambassador. So there’s a lot of bad blood between the Kenyan Government at the moment and the Government of Sudan. That is the government. So Kenya is not considered a neutral party in any peace process. Of course, the Intergovernmental Authority on Development, IGAD, of which Kenya is a very important member, is at the forefront of peace negotiations in Sudan. But I would not say that Kenya is playing any direct and significant role in that process. In any case, actually, quite the contrary. Kenya is viewed in that context as having taken sides. So the political backlash I would anticipate is not with respect to the peace process itself.

Janet: 25:10  No, I’ve got it wrong entirely, haven’t I? I mean, it’s going to be in respect to the Kenyan authorities saying, “Get off. We don’t want you to touch our RSF business partners.”

Owiso Owiso: 25:22  Exactly. So that’s why I said the political backlash we anticipate is not with respect to the peace process but with respect to the Kenyan Government trying to protect its allies, because they’ve been adversely mentioned. I would imagine that in that complaint, the persons the DPP would be looking at—and even the entity itself—implicate quite a number of senior government officials in the current regime. So that is the political angle that I see, not with respect to the peace process, because with respect to the peace process, whatever claims the Kenyan Government could make, it’s not playing any significant role in that peace process. It’s actually considered—I would venture to say—that the Kenyan Government is considered part of the RSF when it comes to those peace negotiations. So that is a whole different ballgame.

Janet: 26:08  So how independent is the DPP from the government itself? Will there be political pressure on him or her?

Owiso Owiso: 26:15  Well, I’ll say two things. Legally speaking, the DPP is very independent because the Office of the DPP is a constitutional office that is not answerable to the executive or to anyone. It’s independent. That is the legal position. So the DPP can make, or should make, decisions without being instructed by anyone. But the reality of it is that the executive plays quite a significant role, especially with respect to certain cases that are sensitive to the executive or to members of the executive. So, of course, at this point we are treating the DPP—we are giving the DPP a lot of grace and the benefit of the doubt, and we hope that the DPP will pleasantly surprise us because, at this particular point, the best we can do is act in good faith. The reality of it is quite different. But we do expect, because it’s been about twenty days since we filed the complaint, that we will receive a decision in the next maybe ten or so days. If not, then, of course, we will have to prompt the fellows. So we’ll wait and see. We can take this up again after that. It’s a long one. It’s going to take a while. This is just the beginning. I probably believe that in the next three or four years we’ll still be talking about the same thing. It’s a long road.

Stephanie: 27:24  I’m just going to add here a quick update. Owiso said that they were waiting to hear the results, and those still haven’t come in. So here’s the Stefapedia charts. So I mentioned El Fasher, which is very far from where we’re speaking about Khartoum, and it’s over in Darfur, right over in the west of Sudan. That’s where horrendous crimes were alleged, I think it was last year into 2025. But I’m sure you’ll correct me, Stef, as we come to that, when the Rapid Support Forces, the RSF, managed to actually take it over. We’ve had reports from everybody, including the UN, doing work on that. So, Stef, let’s take it. What can we actually say about this bigger picture of the war? What kind of accountability efforts are we seeing in relation to Sudan?

Stephanie: 28:19  Well, we are notably, in our world, seeing the ICC looking into Darfur—not the whole of Sudan, but Darfur particularly comes under ICC jurisdiction because the UN Security Council, way back in 2005, when we had the first accusations of genocide against African tribes in Darfur, referred the situation in Darfur to the International Criminal Court. And they have, from that period—over twenty years, twenty years, twenty years—been going at it for twenty years.

Janet: 28:54  They’ve had how many trials? Just remind me.

Stephanie: 28:56   They have had one trial, which has just finished, and they have outstanding arrest warrants. The only public arrest warrants that we know of for accusations of genocide are against the Sudanese now ex-president, Omar al-Bashir. I know that the ICC is still very involved in looking at what is going on currently in Darfur, and especially around El Fasher and El Geneina. They have issued repeated warnings that what is happening there, and the crimes that are alleged, do fall under their jurisdiction, and they are looking at it very closely. Reuters did a big story—I think a video report—on El Fasher just a couple of weeks ago. We’ll link to that in the show notes, where they basically charted the takeover of the city by the Rapid Support Forces and the massacres that are alleged to have happened afterwards, linking them to certain people. And when that was put out, I got some interested phone calls and approaches by people at the ICC saying, “We’re going through this with a fine-tooth comb to see what you have. We need your evidence. Give us your evidence, guys.” Which is, yeah, one of those things that news agencies don’t really do. You can take what we have on the web, but at the moment that journalists get perceived as providing direct evidence for war crimes courts, it makes it dangerous for our colleagues.

Janet: 30:24  So what about the bigger geopolitical side of things? Because that’s also what I mentioned with Antonia, and I have seen a lot of reporting around that. What is alleged is that the United Arab Emirates has been very heavily involved. I believe it’s no longer kind of a secret because it seems like everybody and their mother is writing reports on this. They’ve been supplying the RSF, but then we’ve also got other countries working with the Sudanese Government. There’s a big movement, as far as I can see, to talk about what it means in terms of potential accountability avenues on arms supplies. I don’t know exactly what that would mean, but there are at least one court—maybe two courts, maybe just one court. You say, Stef, what may be involved in the Hague. 

Stephanie: 31:18  What we saw last year is that Sudan itself brought a case against the United Arab Emirates for violating the Genocide Convention by allegedly supplying RSF troops with weapons.

Janet: 31:32  That was at the International Court of Justice, but it didn’t quite work?

Stephanie: 31:37  No. The problem there is that Sudan asked for provisional measures—you know, the kind of emergency thing, “Please stop doing what you’re doing while we look at this case.” But the United Arab Emirates has a reservation to the Genocide Convention, which essentially means that you cannot take it to the ICJ for violations. So we had those hearings, and Sudan got a public forum to say what it accuses the United Arab Emirates of. But then, in the end, the judges said, “Sorry, they didn’t sign the right bits of the Convention,” and so we’re going to chuck this case and scrap it from the roster.

Stephanie: 32:13  Jurisdiction, jurisdiction, jurisdiction.

Janet: 32:16  Yeah, I was speaking to an international lawyer about another case earlier this week, and he said that you’ll carry on seeing people knocking at this door, whichever countries are involved, because of this sense that, “How can any country have a reservation on genocide? You just can’t.” So people will carry on arguing that, but the judges so far aren’t convinced. But I also had something kind of pass through my email, and I decided to pass it on to our great colleague Margarita Capacci. She is covering this now—an Article 15 application, a set of documentation at the International Criminal Court. Do you want to just run through the outline of what we know there?

Stephanie: 33:00  Yeah, so this is—as we know, Article 15 communications, the Court gets tons and tons of them. But when they’re really, really good and put together by able lawyers, it’s sometimes interesting. So what I do when I get these Article 15 communications is I try to check if it could potentially go anywhere. Again, when I spoke to one ICC contact, they seemed quite interested to know what would be in this Article 15 communication, and also the link to other states, so maybe that’s just their special interest. On the other hand, it leads me to believe that maybe somebody will take a closer look at this at the Prosecutor’s Office. So what happened with this Article 15 communication is this group of lawyers and NGOs urged prosecutors to investigate criminal responsibility for actors under the articles of the Rome Statute which make it possible to prosecute those who aid and abet, or knowingly contribute to, crimes committed by a group acting with a common purpose, as it’s called.

Janet: 34:05  Again, these submissions—I agree—sometimes they’re more interesting. Sometimes they feel to me a little bit like spaghetti, and my reference there is the traditional idea of throwing spaghetti at the wall to see what will stick. But we have seen in completely different cases that the spaghetti does stick. Somehow you get jurisdiction. This particular one also names a really wide range. Apart from the United Arab Emirates, I caught up with it and it said Libya, Ethiopia, Chad, Somalia, Kenya and Uganda. Kenya—there we go again. But also, on the other side, ideas of who’s funding the Sudanese side, who are also accused of various atrocities, and that’s Iran, Turkey and Egypt. What do you think about spaghetti stuff?

Stephanie: 34:55  I think sometimes, as you say, if you have a bright idea, it kind of sticks. I think this is another attempt to throw everything at the wall. What we’ve seen in reporting is a lot of accusations of United Arab Emirates involvement. I wonder—I know that the ICC, as always, is overstretched and cash-strapped and under political pressure as well.

Janet: 35:22  I mean, we’ve got sanctions on this, and suddenly they’re meant to take on yet another sort of big country. I mean, they have taken on Russia and they have taken on Israel, so maybe they’re up for taking on yet another non-member state and saying, “You know, we don’t need your support. We’ll just…” What was it Fatou Bensouda used to call it? “Without fear or favour.”

Stephanie: 35:43 Without fear or favour, yeah. I mean, they could do that. I think, looking at the reality of that, there are no, that we know of, applications or arrest warrants yet for current events in Darfur where there are people who have been identified as potential perpetrators. I think it’s maybe a leap to think that they will go for this complicated, potentially also politically fraught, idea to target this other big country. But, as we’ve said in earlier pods, the rules around arrest warrants and applying for arrest warrants have changed. The Office of the Prosecutor can no longer decide to make them public. They are secret by default, and only a judge can make them public. The same applies if an arrest warrant is issued. It used to be public by default and then you had to make it secret. Now it’s secret by default, and a judge or panel of judges has to decide to make it public. So I think with the pushback they’ve gotten on their public arrest warrants, maybe now the Court is kind of keeping everything under wraps. It’s really hard to say what’s going on. But I feel that if they haven’t done the more recent Darfur cases on the kind of local perpetrator level, would they immediately level up to the involvement of a foreign actor? I mean, that’s hard, right? You would think, if you look at how you build cases, you start with the crime base and the atrocities and somebody who’s responsible, and when you have that person, you can maybe link them to receiving arms from abroad. So in terms of technically building a case…

Janet: 37:23  Yeah, but I mean, let’s look at what the Court has done in the last couple of years. That’s not building a case—that’s going straight for the top a lot of the time. So I can see it, but I agree with you, I can also not see it. So one to watch. See you for the last week, which will be our last week’s podcast in a couple of weeks’ time, and then we’ll be taking a break in August. So speak to you again soon.

Stephanie: 37:48  Thank you. Bye.

[OUTRO TUNE]

Narrator: 37:51  This was asymmetrical haircuts, your international justice podcast created and presented by Janet Anderson and Stephanie van den Bergh. This episode was created in partnership with JusticeInfo.net, an independent site covering justice efforts for mass violence, and with the Hague Humanity Hub. Music is by Audionautix.com. You can find show notes and everything about the podcast on asymmetricalhaircuts.com. This show is available on every major podcast service, so please subscribe, give us a rating, and spread the word.

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