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Cablegate: Reports of Arrest of War Crimes Suspect Greatly

VZCZCXRO8899
OO RUEHGI RUEHMA RUEHROV
DE RUEHKH #1538/01 2930706
ZNR UUUUU ZZH
O 190706Z OCT 08
FM AMEMBASSY KHARTOUM
TO RUEHC/SECSTATE WASHDC IMMEDIATE 2101
INFO RUCNFUR/DARFUR COLLECTIVE
RUCNIAD/IGAD COLLECTIVE
RHMFISS/CJTF HOA

UNCLAS SECTION 01 OF 02 KHARTOUM 001538

DEPT FOR AF A/S FRAZER, SE WILLIAMSON, AF/SPG, DRL
NSC FOR PITTMAN AND HUDSON
ADDIS ABABA FOR USAU
DEPT PLS PASS USAID FOR AFR/SUDAN

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: ASEC PGOV PREL KPKO SOCI AU UNSC SU
SUBJECT: REPORTS OF ARREST OF WAR CRIMES SUSPECT GREATLY
EXAGGERATED

1. (SBU) Summary: Despite ongoing high profile pronouncements
regarding the alleged arrest of notorious janjaweed militia leader
Ali Kushayb, little actual proof has emerged that Kushayb is in GOS
custody. Meeting with polchief, (SPLM) State Minister of Justice
Wek Kuol said he had heard Kushayb was in custody, but knew of no
details of the arrest. Poloffs in El Fasher and Khartoum queried
sources throughout Darfur regarding the fate of the militia leader,
but none was able to confirm Kushayb's arrest and detention.
Darfuris in the know claimed the announcement was a ploy to delay
the ICC, and that Kushayb remains at large. End Summary.

--------------------------------------------- ------
GNU MINISTER ON ARREST: "THIS IS WHAT I HAVE HEARD"
--------------------------------------------- ------

2. (SBU) On October 16, poloffs met with the Government of National
Unity's State Minister of Justice Wek Mamer Koul to discuss the
arrest of Ali Kushayb. Wek, an appointee of the SPLM to the GNU,
said without much confidence that he had heard Kushayb had been
arrested, but didn't have any details, offering "This is what I know
so far, that he is in Geneina." Wek could not confirm where Kushayb
was being held, the date of Kushayb's trial, or whether the GOS's
own Chief Prosecutor for war crimes in Darfur had completed his
report on Kushayb's crimes. (Note: Often the NCP does not share
information with the SPLM, even at the Ministerial level, so this
may not be an indication that Kushayb's detention is a fabrication.
However, it is still remarkable that the number two at the Ministry
of Justice had not heard any details. End note.)

4. (SBU) When asked under which law Kushayb would be tried, Wek did
not acknowledge concerns that Sudanese law currently has no statute
equivalent to the ICC's charge of commission of war crimes and
crimes against humanity. "The problem is not the law, it is the
interpretation of the law," Wek said, adding, "the prosecutor must
meet the standard for the criminal court" when trying Kushayb.
According to Wek, Sudanese law dictates that the location of the
crime determines the location of the trial, and while the trial
would most likely be held in El Geneina, the MOJ reserves the right
to change the venue. Wek was tight-lipped when asked if the
prosecutor was investigating other Darfuris or GOS officials for
similar crimes.

----------------------------
LAWYERS ASK "HABEAS CORPUS?"
----------------------------

4. (SBU) In conversations with poloff on October 15, lawyers from
the independent Darfur Bar Association (DBA) scoffed at the
assertion that Kushayb was in custody, and disputed the announcement
that the Sudanese MOJ was prepared to try Kushayb within the next
week. Speaking by telephone from El Geneina, West Darfur, Imam Abu
Talib laughed out loud at the suggestion that authorities were
holding Kushayb there. "He is not here. This morning I asked at the
court and at the police. They have no news about him," Abu Talib
said. The DBA's chief legal advocate in West Darfur, Abu Talib
assured poloff that had authorities arrested the militia leader, the
fact would be well-known in West Darfur. Abdelrahman Gasim, DBA
secretary, said the association would send legal observers if there
is a trial, but remained skeptical that the GOS could find a law in
its legal code under which to try Kushayb.

5. (SBU) Regarding the possibility for Kushayb to receive a fair and
thorough trial, West Darfur civil society advocate Tajj Alsir said
that even if Kushayb were tried, witnesses would not come forward to
testify against him. "Police are still retaliating against
witnesses for reporting janjaweed attacks. It's a joke - there is
no chance for a fair trial," he said. Having worked in El Geneina
from 2004 to 2008 for the Sudanese NGO Community Development
Association, Alsir observed that West Darfur is in total chaos. He
said that with the janjaweed exerting Mafia-like control over the
city proper, it is inconceivable that the GOS has enough authority
to try the militia leader in an area which served as his home-base
from 2003 to 2004.

6. (SBU) Comment: While the GOS's August appointment of the chief
prosecutor for war crimes in Darfur was a small step forward, this
week's announcement of the "arrest" of a militia leader on the ICC's
hit-list has proven impossible to confirm concretely, even for the
government's own minister. This suggests that the GOS is not as
serious (or coordinated) on the war crimes issue as they would like
to appear. At best, they are wildly exaggerating the results of a
timid and tentative process, if one actually exists. Sudanese
trials that meet international standards are hard to find, and for
the Sudanese to hold a trial of Kushayb rigorous enough to meet the

KHARTOUM 00001538 002 OF 002


ICC's requirements for complementarity is likely impossible.
Although some have suggested that the regime may be willing to pay
off Kushayb and his family in exchange for Kushayb being the "fall
guy" for the regime's crimes in Darfur, we would be surprised if
Kushayb actually shows up at court in El Geneina anytime soon, much
less subjected to the full weight of an adversarial legal
proceeding.

FERNANDEZ

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