As prosecutors at the International Criminal Court began their biggest, most politically sensitive case two years ago, they were publicly contradicted by a former colleague, Andrew Cayley, the British lawyer sworn in last month as the Khmer Rouge tribunal’s new UN prosecutor.
Luis Moreno Ocampo, the Argentine chief prosecutor at the ICC in The Hague, where Mr Cayley briefly worked between 2005 and 2007, was wrong to pursue genocide charges against Sudanese President Omar al-Bashir for crimes committed against African tribes in the region of Darfur, according to Mr Cayley.
With over 300,000 Darfuris killed in five years of war, Washington and the public clamored for the Sudanese government to be punished for the “crime of crimes,” genocide.
But in well-documented words that have now become widely quoted, Mr Cayley said it was perhaps one of the few crimes for which al-Bashir was in fact not responsible.
“It is difficult to cry government-led genocide in one breath and then explain in the next why two million Darfuris have sought refuge around the principle army garrisons of their province,” he wrote in the Journal of International Criminal Justice.
“One million Darfuris live in Khartoum where they have never been bothered during the entire course of the war,” he wrote.
While the Sudanese government’s counterinsurgency campaign had resulted in immeasurable death and suffering, available evidence did not show that it was intended to destroy the Fur, the Masalit and the Zaghawa tribes in whole or in part, a requirement for a charge of statutory genocide, according to Mr Cayley.
As senior prosecuting counsel at the ICC, Mr Cayley had investigated the first of the new court’s three Darfur cases, declining to seek genocide charges in the arrest warrants for Sudanese Minister of State for the Interior Ahmad Harun and Jajaweed militia commander Ali Kushayb, both of whom are now wanted on 51 counts of war crimes and crimes against humanity as a result of Mr Cayley’s investigations.
His article appeared as ICC pretrial judges were considering Mr Ocampo’s request for an al-Bashir arrest warrant.
In a split decision, the three-judge bench ultimately sided against Mr Ocampo’s genocide claim, prompting speculation that the court could have been swayed by Mr Cayley’s writings.
“I’ve heard some things but I have no proof that they read it,” Mr Cayley said in an interview last month. “There was some fallout over it, although a former colleague of mine very kindly sort of characterized the article as a helpful, objective, academic piece.”
(Al-Bashir is now wanted for war crimes and crimes against humanity. However, the ICC Appeals Chamber on Feb 3 sent the case back to Pre-Trial Chamber I to review the matter and issue a new arrest warrant which may include genocide.)
Mr Cayley said little about his departure from Mr Ocampo’s office at The Hague, other than that, without the Sudanese government’s cooperation, the prospects for advancing the Darfur prosecutions were slim.
“I’d done really all I could on that case,” he said.
Mr Cayley, who turns 46 this month, began his legal career in 1991 in the British Army of the Rhine, representing service personnel as an army legal officer in Germany after graduating from the British military academy at Sandhurst and serving in Belize.
He will begin a fulltime presence at the Extraordinary Chambers in the Courts of Cambodia this month, emerging from two years of private practice as co-counsel defending former Liberian President Charles Taylor and former Croatian Assistant Defense Minister Ivan Cermak, for whom Mr Cayley successfully sought release on bail on several occasions.
Though it has been five years since he went to trial as lead lawyer for the first time, Mr Cayley says he is ready to try the crimes with the largest number of victims since the Nazi trials at Nuremberg.
“I don’t think there’s any other prosecutor at my level now who has my level of experience,” he said. “None of them have as much flying time as I have.”
“And I believe now that the time is right for me to be leading and it feels absolutely right. I think the case is a very strong one.”
Mr Cayley has replaced the Canadian prosecutor Robert Petit, who resigned last year for private reasons and returned to the Canadian Justice Ministry where his leave of absence had expired.
Appearing in a wing collar and dinner jacket for his official ECCC photograph, Mr Cayley is a more engaging public presence than the reserved and quiet-spoken Mr Petit.
In an 11-year career at the Yugoslavia tribunal at The Hague, Mr Cayley supervised teams of investigators, adding the most serious charges, including genocide, to the indictment of fugitive Bosnian Serb Army commander General Colonel Ratko Mladic, the Yugoslav tribunal’s senior-most remaining suspect who has been at large for 15 years.
As a result of Mr Cayley’s investigations, Mr Mladic will answer genocide charges, should he ever resurface, arising from the campaign of ethnic cleansing and extermination of Muslims that swept northern Bosnia in the 1990s, including regions and towns that are now well known: Banja Luka, Prijedor, Krajina and Srebrenica, which became the most famous crime scene of the Balkan conflict as the site of intense, industrialized killing in 1995.
However, when Mr Cayley came to lead the prosecution in 2004 of two alleged Kosovo Liberation Army commanders and a camp guard, he was confronted with a situation in which pressure upon witnesses and direct threats to their safety were dire and very real.
The prosecution’s case collapsed and two of the accused walked.
“They basically nobbled all of our witnesses,” Mr Cayley said.
Judges found that the prosecution had not introduced witness testimony to establish the identities of Fatmir Limaj and Isak Musliu, who had been indicted as the alleged operators of a Kosovo prison camp where Serb and Albanian civilians were tortured and murdered. Haradin Bala, a camp guard, was sentenced to 13 years for torture and murder.
According to Mr Cayley, associates of the accused and members of the defense systematically approached prosecution witnesses, including some who were already under protection, promising financial rewards and telling them that it was in their personal interests not to come forward.
Mr Cayley traveled to Kosovo to make personal assurances that witnesses would be protected. One witness, identified in court as L7, said he had no hope of evading the defendants’ grasp.
“This guy looked me in the eye and I said, we’ll protect you. And he said, what are you, an idiot?” said Mr Cayley, adding that L7 was made to suffer after testifying.
“They actually blew him up after he testified. They chased him down the street, opened up with an AK-47 in the back of his car, blew out all of the back screen,” said Mr Cayley, adding that L7 lost a leg in the attack but survived.
“I ended up under police protection in that case,” he added.
In the 2000 trial of Bosnian Serb General-Major Radislav Krstic, commander of the so-called “Drina Corps,” Mr Cayley was part of a team of prosecutors who successfully convicted Krstic of murder, crimes against humanity and genocide in crimes that included the 1995 mass murder of 7,000 to 8,000 Muslim men and boys in the enclave of Srebrenica.
Mr Cayley led the examination of “Witness O,” a 17-year-old boy who described for the court his survival of the machine-gunning of hundreds of people at Pilica dam.
“That boy made it absolutely clear what this was about. It was industrial killing,” said Mr Cayley, adding that Witness O’s testimony was corroborated with military aerial surveillance imagery.
“I tell you this place, when you went there it was like Golgotha. It was an ugly place. You could feel it was something very, very bad,” Mr Cayley said.
However, trial judges had also found that prosecutors had failed to show Krstic had been involved in instigating or planning any of the Srebrenica crimes, which they directly attributed to Mr Mladic. Furthermore, on appeal, the Pilica dam evidence was reinterpreted by the tribunal’s Appeals Chamber, which said prosecutors had failed to show any direct evidence that Krstic or the Drina Corps were directly involved in the killings at the dam.
With one judge partially dissenting, Krstic’s conviction was changed to aiding and abetting genocide, rather than direct perpetration, and his sentence was reduced from 46 to 35 years.
Mr Cayley said he still believed that Krstic was guilty as charged and that evidence, including minutes of brigade meetings and fuel requisitions, directly linked forces under his command to the Pilica dam killings.
A lack of survivors who could identify the killers may have weakened the case in the judges’ eyes, he said.
“The trial chamber rightly interpreted the evidence in the most favorable light of the accused,” he said, noting that in his dissent, Judge Mohamed Shahabuddeen had said there was compelling evidence that Krstic was directly responsible for genocide.
Mr Cayley was guarded in what he would say concerning the antagonism the Khmer Rouge tribunal has experienced in seeking to expand investigations beyond the current five suspects, or in seeking to question senior CPP witnesses.
Prime Minister Hun Sen has denounced the court’s expanded investigations of an additional five suspects.
Mr Hun Sen “certainly supports this coming trial and I have that on good authority,” said Mr Cayley. “As far as the third case is concerned, I think we really have to wait and see what’s going to happen.”
“I have a very good working relationship with my national prosecutor and I mean that sincerely. I’m not saying that for the purposes of the press,” he said.
He also assured that he would be a strong, senior presence in the courtroom at future trials.
Mr Petit, the former UN prosecutor, was criticized for watching much of the trial of S-21 Chairman Kaing Guek Eav on a monitor at his desk rather than being present in the courtroom.
During Mr Petit’s absence from the court in July, the defense succeeded in frightening witnesses into discrediting their own testimony by suggesting they would be prosecuted if they revealed too much.
“I will lead from the front. I will be in the courtroom. I will certainly not tolerate anything like that from the defense,” said Mr Cayley, describing such tactics as “outrageous.”
Mr Cayley also said that unlike his predecessor he was committed to the ECCC for the duration of its existence.
“I’m staying until the end of the mandate of the court,” he said. “I’ve already agreed to do that.”