ICC Chief Prosecutor: ‘Displaced in Darfur need to see justice done’

The Chief Prosecutor of the International Criminal Court (ICC), Karim Khan, arrived in the South Darfur capital of Nyala yesterday where he held talks with officials in Kalma camp for the displaced in relation to the ICC trial of former janjaweed leader Ali Muhammad Ali Abdelrahman (known as ‘Ali Kushayb’) on 31 counts of war crimes and crimes against humanity.

In a press statement during his visit to Nyala, he said that he sought to bring about justice for those displaced people who have been in camps across Darfur for 17 years. The ICC prosecutor stated that the displaced of Darfur “need to see justice done” and “not just hear about it“.

Khan expressed his hope for continued cooperation between the ICC and the state government. He assured the local community that witnesses and victims would be protected for their efforts in prosecuting the suspected war criminal.

The prosecutor, who is visiting until August 25, held talks in Sudan last year concerning the outstanding arrest warrants of war crimes committed during the 2003 Darfur conflict. Khan’s predecessor, Fatou Bensouda, also held talks in Sudan in May 2021.

The designated Wali (governor) of South Darfur Hamid Hanun, said that they briefed the criminal court prosecutor on the security conditions in the state and “the remarkable improvement in coexistence and social peace among displaced communities“.

However, the legal expert and lawyer Saleh Mahmoud, called on the victims of Darfur to protest the prosecutor's visit to Darfur, “over the delay in handing over wanted persons“. Mahmoud called for campaigns to be organised across the region, to demand the extradition of ousted President Omar Al Bashir.

The head of the Women’s Union in the Kalma camp Halima Musa, also demanded that those who have perpetrated crimes against humanity in Darfur, should be “held accountable as soon as possible“.

Arrest:

From the start of pre-trial proceedings, Ali Kushayb’s defence has always pivoted on ‘mistaken identity’, saying that he is not the person who perpetrated these crimes. However following Prosecutor Khan’s opening, senior trial lawyer Julian Nicolls, told the court that the prosecution intends to present several witnesses (referred to only by a number for anonymity), who will testify that the accused is indeed Ali Kushayb, the feared so-called ‘Colonel of Colonels’. He also emphasised that rather than just ordering the commission of atrocities, Kushayb was an “enthusiastic active participant” in many of the atrocities with which he is charged. Nicolls also mooted that “after a perilous journey through the jungle across the border from Darfur”, Ali Kushayb surrendered voluntarily to the ICC in the Democratic Republic of Congo citing the arrest warrant in that name. Nicolls suggested that Kushayb was fleeing possible arrest and trial in post-Al Bashir Sudan, for crimes that would carry the death penalty in that country.

Trial

In April this year, the trial on 31 counts of war crimes and crimes against humanity against Ali Kushayb, opened before Trial Chamber I of the International Criminal Court (ICC) in The Hague, the Netherlands, during which Prosecutor Khan presented a litany of alleged atrocities, committed particularly in Kutum (referred to in court papers as Kodoom), Bindisi, Mukjar, and Wadi Salih in Darfur, including “rapes, children being targeted and attacked and abducted, men and boys being executed, homes being wantonly destroyed…” He emphasised the suffering of the people displaced by the violence, especially children.

Ali Kushayb pleaded ‘not guilty’ to all charges.

In subsequent hearings in June, the prosecution brought forth compelling witness testimonies to support the allegations.

The court heard from the expert witness and Executive Director of the World Peace Foundation, Professor Alex de Waal, who answered questions about his report on Darfur and presented his accounts of the region.

Professor de Waal stated that during his time in Darfur in the early 2000s, he observed a huge discrepancy in inequality between Khartoum and Darfur. According to de Wall’s experiences, the infrastructure of most small towns in Darfur were in such disarray, that it would be rare to find a clinic, and in half those cases, “the clinic would have lost its roof”.

The Trial Chamber also granted protective measures to some of the witnesses, such as in the case of one of the factual witnesses under the pseudonym, Witness P0712, who had their voice and image disguised, as well as having their testimony heard from a private location.

Witness P0712 spoke of attacks on villages they were in and described, burning, looting, and arrests, identifying the perpetrators of the attacks as the janjaweed.

P0712 explained the meaning of the word janjaweed, saying that they are a “group of people from Arab tribes who ride on horseback, own weapons, and kill people from different tribes”. He went on to list different examples of janjaweed atrocities in Darfur, explaining how they “pillaged and burnt down villages”.

Lead-up to trial

On November 2, 2021, The Appeals Chamber of the ICC unanimously rejected an appeal by Ali Kushayb, against the Pre-Trial Chamber II decision of 17 May 2021, rejecting a challenge of the court’s jurisdiction by Kushayb’s defence counsel.

The Appeals Chamber of the ICC, composed of Judge Piotr Hofmański, presiding in this appeal, Judge Luz del Carmen Ibáñez Carranza, Judge Perrin de Brichambaut, Judge Solomy Balungi Bossa, and Judge Gocha Lordkipanidze, decided unanimously to reject the appeal against the Pre-Trial Chamber II decision of 17 May 2021 on the Defence’s jurisdictional challenge (exception d’incompétence).

Presiding Judge Piotr Hofmański, in rejecting the Defence’s four grounds of appeal, the Appeals Chamber highlighted, among other matters, that it found no error in the reasons given by the Pre-Trial Chamber defining a “situation” before the Court as defined in terms of temporal, territorial and in some cases personal parameters. It also found that the non-funding by the United Nations of the activities of the Court arising from a referral by the Security Council does not invalidate the UNSC resolution 1593 which referred the situation to the ICC. As for the alleged failure of the Pre-Trial Chamber to take into account the lack of the Security Council logistical and security support to the Court in Sudan, the Appeals Chamber finds that the Defence has not demonstrated how this alleged error of law relates to the jurisdiction of the Court.

Finally, and referring to the principle of legality, nullum crimen sine lege, the Appeals Chamber found that the referral of the Situation in Darfur, Sudan took place in the wake of serious violations of human rights and humanitarian law that were criminalised under international law at the time.

The Appeals Chamber also found that the crimes under the Statute were intended to be generally representative of the state of customary international law when the Statute was drafted. This weighs heavily in favour of the foreseeability of facing prosecution for such crimes even in relation to conduct occurring in a State not party to the Statute. Judge Ibáñez expressed her separate views concerning this ground of appeal and while agreeing with the outcome reached by the majority, she considered that, in her view, the jurisdiction of the Court over the conduct in this case pre-dates UNSC Resolution 1593, which only triggered the Court’s jurisdiction and thus there is no need to refer to any other sources of law.

Indictment

As previously reported by Radio Dabanga, Kushayb initially appeared before the ICC on June 15.He then appeared before Pre-Trial Chamber II on May 24-26 to hear submissions from the prosecution and legal representation of the victims.

The ICC issued arrest warrants against former Minister for Humanitarian Affairs, Ahmed Haroun, and Kushayb in 2007. Kushayb was transferred to the ICC’s custody on June 9, 2020 after surrendering himself voluntarily in the Central African Republic. Upon his arrest, the Sudanese government announced its support for his transfer to the ICC. Kushayb is also charged with a number of crimes by the Sudanese authorities.