Conflict broke out in Sudan in 2003 when rebels launched an insurrection to protest what they contended was the Sudanese government’s disregard for the western region and its non-Arab population. In response, the government equipped and supported Arab militias—which came to be known as Janjaweed—to fight against the rebels in Darfur.
The Janjaweed engaged in atrocities and war crimes on a massive scale supported by the government. In September 2004, the United States concluded that “genocide” had been perpetrated in Darfur. The United Nations estimates that as of 2007, hundreds of thousands of people died in connection with the conflict; and now over 2.7 million people have been displaced since the beginning of the war.
In July 2008, an ICC prosecutor alleged that Omar el-Bashir, President of Sudan, bore criminal responsibility for the crisis in Darfur. The prosecutor accused Bashir of orchestrating genocide, war crimes, and crimes against humanity in the region and sought a warrant for his arrest. The Sudanese government denied the charges.
On March 4, 2009, the ICC issued an arrest warrant for Bashir on charges of war crimes and crimes against humanity, but not genocide. This was the first time the ICC had sought the arrest of a sitting head of state. One year later, in July 2010, another warrant was issued for Bashir on the charge of genocide.
According to Amnesty International, the Janjaweed were responsible for massive human rights violations including extrajudicial killings, torture, rape, abduction, looting, and destruction of villages. Amnesty’s 2011 report found that the Janjaweed militia worked in tandem with Sudanese soldiers and the air force “with total impunity,” targeting three ethnic groups: the Fur, Masalit and Zaghawa. The report also stated that the Janjaweed engaged in a “pattern of systematic and unlawful attacks” on civilians in North, West, and South Darfur states, committing extra-judicial executions, mass killings, and extreme gender-based violence. Amnesty collected the testimony of hundreds of Sudanese women who recounted, in graphic detail, the Janjaweed’s use of sexual slavery and rape as a “method of war.”
To date, no one has been held accountable.
While international humanitarian law and international human rights law have evolved significantly in the last few decades, justice and accountability have been slow to follow. This is primarily because enforcement of international law depends on treaties which must be ratified by states in order to come into force, and only signatory parties are bound by them. While eventually, the principles embodied in treaties can and do become customary international law that can be applied to non-parties, the questions of how to enforce compliance with these norms, and more importantly how to punish violators and hold not only states, but also non-state actors and individuals accountable, remain.
The 1998 Rome Statute of the International Criminal Court (ICC) in The Hague, Netherlands, established the ICC with jurisdiction to charge individuals, as opposed to states, with war crimes. Sudan is not a signatory, yet the court is pursuing a criminal trial against one of its nationals and has indicted three others.
The ICC has been in operation since July 1, 2002, and currently 123 countries are member-states. To date, the court has handled 30 cases. Judges have issued ten convictions and four acquittals. The Court issued its first ever judgment in 2012 in a case regarding the use of child soldiers, and convicted Congolese rebel leader Thomas Lubanga Dyilo of war crime.
The court operates under the principle of “complementarity.” The ICC can only act if the relevant states cannot or do not want to genuinely prosecute core international crimes within their jurisdiction. The principle of complementarity both encourages states to carry out their primary responsibility for investigating and prosecuting serious international crimes, and also serves to prevent impunity where states cannot meet this obligation. Those who have already been prosecuted by a national court for certain crimes cannot be prosecuted a second time before the ICC for the same crimes.
The Court has jurisdiction over war crimes, crimes against humanity, and genocide, as defined in the Rome Statute treaty. However, for a non-state party’s case to proceed, the ICC prosecutor must first determine whether the alleged crimes satisfy certain fundamental jurisdictional requirements under the statute.
Prosecuting such cases is difficult and takes time. It can take decades just to investigate, much less even begin to hold perpetrators accountable. Many of the victims who could provide evidence are dead or missing or still too afraid to come forward. Some of the perpetrators are still in government. Memory also fades over time, and tangible evidence may be lost.
On April 5, the ICC opened a historic trial involving war crimes committed nearly two decades ago in Darfur, Sudan.
On trial is Ali Kushayb, born Ali Muhammad Ali Abd-Al-Rahman, accused by prosecutors of being the leader of the Sudanese government-sponsored Janjaweed militia in the Wadi Saleh area of Darfur. This trial is the first time anyone has been called to account for the human rights violations committed in Darfur.
The trial is an important development seeking to finally hold to account the individuals accused of war crimes and render justice for the victims, among whom were children. Indeed, Human Rights Watch has declared this a landmark case for the ICC.
Kushayb, the alleged Janjaweed leader, is charged with 31 counts of war crimes and crimes against humanity, and faces a sentence of life imprisonment if convicted by the international court. In Sudan, were he to stand trial, he would be facing the death penalty. Recognizing that possibility, Kushayb surrendered to the ICC in 2020.
In his opening statement, ICC prosecutor, Karim Khan, told the judges, “You will see that [Kusahyb] took pride in the power that he thought he exerted and the authority that he had . . . and . . . strange glee in a feared reputation. You’ll hear evidence . . . that his forces and himself [sic] rampaged across different parts of Darfur.”
Kushayb has denied all the allegations against him. After the charges were read out at the start of the trial, he told the judges, “I am innocent of all of these charges.” He claims to be a victim of mistaken identity, but victims say otherwise.
Sudan’s former President, Omar al-Bashir, who was also indicted by the ICC in 2009, is wanted on charges of genocide and war crimes, charges he has also denied. He is currently in custody in Sudan after being ousted in a coup in 2019.
As the first expert took the stand on April 6, around 30 Sudanese demonstrators protested outside the court in The Hague, demanding that Bashir be turned over by the Sudanese government. Although the trial is public, since opening arguments, little information has been released publicly. However, Human Rights Watch issued a question-and-answer document based on a court case information sheet prior to the trial giving insight into how the case may unfold.
In addition to the usual role of witnesses who testify before the tribunal as to facts, the ICC has a unique procedure that also allows victim participation. Victims of alleged crimes are permitted through their legal representatives to make their views and concerns known to the judges in the trial.
151 victims will participate in the pretrial and confirmation of charges phases of the proceedings, according to an October 19, 2021 order of the Trial Chamber. An additional 142 victims will participate in the trial phase of the proceedings, according to a January 14, 2022, order. 130 of these are the same victims who will have participated in the earlier phases of the proceedings.
The victim representatives may make an opening statement, oral submissions, present arguments on the merits, question witnesses, and present evidence at the trial. In the event of a conviction, victims may also apply to the court for reparations, which may be individual or collective, symbolic or monetary, and are determined on a case-by-case basis.
The U.S. State Department issued a statement lauding the opening of Kushayb’s trial. “This trial is a signal to those responsible for human rights violations and abuses in Darfur that impunity will not last in the face of the determination for justice to prevail,” it stated.
Elise Keppler, associate international justice director at Human Rights Watch said that this trial is a “long-awaited chance” for the victims and communities in Darfur “to see a leader held to account.” She called the ICC the “crucial court of last resort for Darfuris.”
With no set time frame for cases such as this, the trial may run for several years. This may be the victims’ last chance to see that, although justice has certainly been delayed, it will not have been denied.