ICC trial of Darfur janjaweed leader: Ali Kushayb pleads ‘not guilty’ to all 31 charges

The trial on 31 counts of war crimes and crimes against humanity of former Darfur janjaweed leader Ali Muhammad Ali Abdelrahman (known as ‘Ali Kushayb’), opened before Trial Chamber I of the International Criminal Court (ICC) in The Hague, the Netherlands today. The Ali Kushayb trial will be the first case the ICC has handled on atrocities committed in Darfur in the early 2000s, and has been lauded by the Chief Prosecutor as ‘breaking the fast for justice’.

Today’s court proceedings, under the gavel of Presiding Judge Joanna Korner, who is assisted by Judge Reine Alapini-Gansou and Judge Althea Violet Alexis-Windsor, come 15 years after the first ICC arrest warrant for Ali Kushayb, and 19 years after the first of the alleged crimes were perpetrated. Kushayb, who appeared wearing a dark blue suit, showed little reaction as a summary the 31 charges listing a multitude of alleged atrocities, were read-out by the Court Officer.

Presiding Judge Joanna Korner then asked the accused to rise, and asked him whether he understands the charges that were read to him today, to which Kushayb answered “I do”. Judge Korner then asked Kushayb whether he wished to plead guilty to any or all of the charges. Kushayb responded emphatically: “Not a single one… I am innocent of all of these charges.”

Ali Kushayb pleads ‘not guilty’ (Video: ICC) – scroll down for more video links

The Judge then asked ICC Chief Prosecutor Karim Khan to present his opening arguments. He commenced by highlighting that these are the first few days of the holy fasting month of Ramadan, during which Muslims look forward to breaking the fast in the evening, an occasion called iftar. Kahn analogised that in Sudan “there has been another fast that they have been partaking, not because it is their choice, but it is the waiting for justice, and from that perspective, this is a momentous day. It is an iftar of sorts for the millions of Sudanese throughout the world for this day to come…”

Kahn 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.

ICC Chief Prosecutor Karim Khan presents opening arguments (Video: ICC)

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. 

As the trial continues, the first expert witness is scheduled to start testifying tomorrow.

According to a statement by the ICC public affairs unit, Alex De Waal is a joint OTP/Defence expert witness. He is the Executive Director of The World Peace Foundation and Professor at Tufts University. He is expected to testify about, among other topics, an overview of the relevant events which took place before and during the armed conflict in Darfur in 2003-2004, as well as the root causes of the armed conflict, and the relationship between the militia/janjaweed and Sudanese government forces during Darfur conflict.

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.

Address on behalf of vistims (Video: ICC)

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.

Press conference held by ICC Chief Prosecutor Karim Khan QC after the opening of the trial today (Video: ICC)