ICC: Darfur janjaweed leader’s lawyers present defence case

The defence team representing former Darfur janjaweed leader, Ali Muhammad Ali Abdelrahman, known as ‘Ali Kushayb’ and referred to as the ‘Colonel of Colonels, who stands accused of 31 counts of war crimes and crimes against humanity between 2003 and at least 2004, began presenting their opening ststements at the International Criminal Court (ICC) in The Hague, the Netherlands over the last two days.

On Wednesday, ICC Trial Chamber presided over by Judge Joanna Korner, and assisted by Judge Reine Alapini-Gansou and Judge Althea Alexis-Windsor, heard testimony from a participating victim (designated DAR-V47-V-0004), called by the legal representatives of victims in the case. One spoke of life in his village and surrounding villages prior to the attack, including community ties between villages in the area. The victim also spoke of fleeing his village in December 2023 to the mountains.

Another witness called by the legal representatives of victims in the case (designated DAR-V47-V-0005), a former resident of Kutum, who was allegedly present during the attack on the village on August 15 2003, spoke of the Fur community in Kutum, and communal connections between Kutumm and other villages in the area, such as Bindisi. She spoke of fleeing from Kutum after attacks, and the harm suffered by the victim, her family, and her community arising from the charged attack on Kutum.

In previous sessions, the prosecution brought forth compelling witness testimonies to support the allegations against Abdelrahman.

Kushayb and his militia are accused of attacking villages, including Kudoum and Bindisi, which resulted in the displacement of the civilians of these villages to Mukjar and the alleged detention, seizure and executions of villagers, including community leaders, in Mukjar in the period from February to March 2004.

Previous witnesses during the trial have given various examples of janjaweed atrocities in Darfur, in one case explaining how they “pillaged and burnt down villages”.

Defence statements

Ali Kushayb has pleaded not guilty to all charges. From the start of pre-trial proceedings, defence has always pivoted on ‘mistaken identity’, saying that he is not the person who perpetrated these crimes.

The defence team, under the leadership of Cyril Laucci, began its opening arguments on Thursday. “The situation facing the Sudanese people in 2023 is tragic, and allow me to begin my opening statement by expressing to them my thoughts and deepest solidarity,” Laucci told the court.

Associate Counsel Iain Edwards lamented the challenges experienced in carrying out their research and work, including difficulties regarding non-cooperation from Sudan. “Circumstances have not permitted us to place before you the evidence that this case requires, and that our client deserves. We’ve had to do our best with the hand that we’ve been dealt.”

The trial continues on Monday, during which the first witness called by the defence (Witness D-0016) is expected to testify about military training in Sudan, the place of international law, and international humanitarian law more particularly, in Sudan, activities of the Janjaweed in Darfur, activities and roles of the Popular Defence Forces and Popular Police Forces in Darfur, and cooperation of Sudan with the ICC, among other things.

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Background

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, on the opening day of the trial on Tuesday, senior trial lawyer for the prosecution, 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’.

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 consider 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, 2020. He then appeared before Pre-Trial Chamber II on May 24-26, 2021 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.

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