ICC Judges adjourn to consider confirmation of charges against Darfur janjaweed ‘Colonel of Colonels’ Ali Kushayb

The hearing to confirm 31 charges* of crimes against humanity and war crimes against the former Darfur janjaweed leader, Ali Muhammad Ali Abdelrahman (also known as Ali Kushayb), before Pre-Trial Chamber II of the International Criminal Court (ICC) in The Hague, the Netherlands, was concluded today. The hearing was originally scheduled to run until Thursday.

After three days of submissions from the prosecution and legal representation of the victims, Pre-Trial Chamber II of the International Criminal Court (ICC), composed of Judge Rosario Salvatore Aitala (Presiding judge), Judge Antoine Kesia-Mbe Mindua, and Judge Tomoko Akane heard their respective closing statements, and will now start their deliberations.

In an initial statement to Presiding Judge Rosario Salvatore Aitala, Judge Antoine Kesia-Mbe Mindua, and Judge Tomoko Akane, at the opening session on Monday, Prosecutor Fatou Bensouda outlined that the charges to be confirmed against Kushayb, referred to as the ‘Colonel of Colonels’ withing the janjaweed militia, include crimes of torture, rape, and murder of civilians in the Wadi Salih and Mukjar Localities of West Darfur State, between at least August 2003 and at least April 2004”.

In Tuesday’s session, the legal representative of the victims, Paolina Massidda, said that the charges brought against Ali Kushayb expose but a small portion of the crimes committed in West Darfur.

She said that for the victims, the confirmation of charges is considered a starting point, and that they hope that a trial will be followed by more investigations in Darfur. Massidda highlighted that rape was a war strategy adopted by the janjaweed. The main aim was to destabilise societies, Massidda explained to the court. The attacks launched by janjaweed militiamen against millions of civilians led to their displacement and to a long and difficult march to camps where they have since suffered from hunger, thirst, and lack of medical care.

Massidda concluded that today, most of them still live in extreme poverty and that many of them who have left their homes and are still living in exile do not know if they will see their country and family again.

Kushayb has yet to enter a plea, and his defence has thus far been based largely on insisting that his name is Abd-Al-Rahman, and that he is not the person referred to as Ali Kushayb.

Warrant of arrest

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.

* Procedural explanation (Source: ICC)

The purpose of the confirmation of charges hearing is for the judges to determine whether or not there is sufficient evidence to establish substantial grounds to believe that the suspect committed each of the crimes charged. If the charges are confirmed, in full or in part, the case will be transferred to a Trial Chamber, which will conduct the subsequent phase of the proceedings: the trial.

In accordance with Regulation 53 of the Regulations of the Court, the Pre-Trial Chamber shall deliver its written decision within 60 days of the date on which the confirmation hearing ends. The Pre-Trial Chamber may then either confirm those charges for which the Chamber has determined that there is sufficient evidence, and commit the suspect to trial before a Trial Chamber, decline to confirm those charges for which it has determined that there is insufficient evidence and stop the proceedings, or adjourn the hearing and request the Prosecutor to provide further evidence, to conduct further investigations or to amend any charge for which the evidence submitted appears to establish that a crime other than the one charged was committed.

The Defence and the Prosecutor cannot directly appeal this decision. However they can request authorisation from the Pre-Trial Chamber to appeal it.

ICC Pre-Trial Chamber II:

Judge Rosario Salvatore Aitala (Presiding judge)

Judge Antoine Kesia-Mbe Mindua

Judge Tomoko Akane

Office of the Prosecutor:

Fatou Bensouda, Prosecutor

Julian Nicholls, Senior trial lawyer

Defence Counsel:

Cyril Laucci

Legal Representatives of Victims:

Ms Paolina Massidda

Ms Amal Clooney

Mr Nasser Mohamed Amin Abdalla