by Emma DiNapoli and Mohammed Hassan
April 4, 2022 Source: Just Justice
Even as the world’s attention focuses on the prospect of hypothetical future trials for current crimes in Ukraine, the International Criminal Court (ICC) prepares to take on the first of its cases on atrocities committed in Darfur in the early 2000s. Almost precisely fifteen years after an arrest warrant was issued against Ali Muhammed Abd-Al-Rahman (better known as “Ali Kushayb”), he now prepares to stand trial at the ICC on April 5, 2022. A former commander of the Janjaweed, the government-sponsored militias which carried out brutal attacks on civilians across Darfur alongside the Sudanese Armed Forces, Kushayb is charged with 31 counts of war crimes and crimes against humanity.
The trial, which is the first to move forward in either an international or Sudanese court against a high-level perpetrator of crimes in Darfur, marks a major milestone toward closing a persistent impunity gap in Sudan. Victims of serious crimes, including widespread sexual and gender-based violence, torture and enforced disappearance, and mass displacement have waited decades for some measure of accountability.
But the trial also opens at a difficult moment in Sudan’s history, in the wake of the Oct. 25, 2021 coup which has placed the military – and close allies of former president Omar al-Bashir, who is himself to the subject of an outstanding ICC arrest warrant – firmly back in the driver’s seat.
Recurrent Violence Across Sudan Rears its Head
The October coup has precipitated an ongoing crisis characterised by serious human rights violations across Sudan, including mass arrests, arbitrary detentions and enforced disappearances, torture, and the use of excessive and lethal force against unarmed protestors—all tactics favored by the former al-Bashir regime to suppress dissent. More than 90 protestors have been killed since October and thousands of others injured, including through the use of prohibited weapons such as anti-aircraft weapons and armor-piercing bullets. Those arrested during protests or from their homes are subjected to torture and other forms of ill-treatment, and held incommunicado in prisons or police stations without procedural guarantees for days, if not weeks.
Outside of Sudan’s capital, violence has spiraled across Darfur. Episodic clashes between armed militiamen and farmers have escalated, and whole communities have been razed to the ground by armed groups, displacing at least 15,000 people in January. An additional 12,500 people were displaced in early March and several dozen people killed as heavily armed gunmen stormed villages and camps for internally displaced persons (IDPs) in West Darfur, pushing many people into Chad and the Central African Republic and leaving others sheltering in non-residential spaces, such as schools, hospitals, and government buildings.
There is a direct link between the violations which have occurred since the October military coup and those committed by Janjaweed forces under the direction of Ali Kushayb, al-Bashir and others still wanted by the ICC.
The October 2021 coup is just one in a series of military takeovers which have marred Sudan’s history, ending two previous democratic transitions in 1969 and 1985 and bringing al-Bashir into power in 1989. By now, it is obvious that “coup-proofing” Sudan and bringing an end to destabilizing cycles of violence would require making real, lasting progress on essential security sector, human rights, and rule-of-law reforms, including those necessary to provide justice and reparation for victims of serious human rights violations and international crimes.
As the current political situation in Khartoum underscores, however, past efforts to implement essential human rights and rule-of-law reforms have not succeeded or have been co-opted by military leaders with their own agendas. Despite peace agreements to the contrary, including three signed in quick succession in 2005, 2006, and 2011, all of which engaged with various aspects of transitional justice, in practice none have delivered either meaningful outcomes for victims or ended the military’s grip on power.
After al-Bashir’s ouster from office in April 2019, following months of peaceful protests across Sudan, the pre-coup transitional government led by former prime minister Aballa Hamdok made some headway in tackling these thorny issues—perhaps more so than in any other period since Sudan’s independence. To its credit, the transitional government ratified in August 2021 the U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, acceded to the International Convention for the Protection of All Persons from Enforced Disappearance, and announced the repeal of public order laws which had long been used to disproportionately target women for a range of “morality” offences and restricted women’s participation in the public sphere.
Tellingly, though, the accountability and reform objectives set out in the August 2019 agreement establishing Sudan’s transitional government which had real, structural implications for various components of Sudan’s security apparatus—or for specific individuals—were never fulfilled. For example, the ratification of the Rome Statute stalled on the desk of the military-led Sovereign Council, and the long-teased transfer of al-Bashir and others in Sudanese custody to the ICC never materialized. Sudan’s military leaders no doubt feared the possibility of an ICC inquiry into their own activities in Darfur and have for the same reason stood in the way of the establishment of other major accountability initiatives, including the second iteration of a Special Court on the Crimes of Darfur.
As a result, despite some limited reforms made under the pre-coup transitional government led by former prime minister Aballa Hamdok, the kleptocratic military and security governing apparatus erected under al-Bashir has survived and continues to use violence against civilians to ensure it will endure for many more years.
It should come as no surprise, then, that many of the perpetrators of the most recent violence are the same as those in the past: rebranded as the “Rapid Support Forces” in the mid-2010s and ostensibly incorporated into the Sudanese Armed Forces, the Janjaweed still operate with relative autonomy—and impunity. Indeed, the deputy head of the military-led government and head of the Rapid Support Forces (RSF) is Mohamed Hamdan Dagalo (“Hemedti”) – arguably the most prominent of the Janjaweed leaders. RSF personnel can be linked to all of the ongoing violations described earlier, including the armed raids on Darfuri communities which threaten to send the entire region back into open conflict.
Likewise, members of the Central Reserve Police (CRP), a militarized police unit which has in practice long operated as an auxiliary force to Sudan’s intelligence agency, have been linked to the violence and abuses since Oct. 25. Not-so-coincidentally, the most well-known CRP commander is Ali Kushayb, who led a scorched-earth campaign in South Kordofan and Blue Nile which drew heavily from the playbook his forces used in Darfur. It is telling that while this former CRP and Janjaweed commander awaits trial in The Hague, the forces Kushayb once led continue to commit violence against civilians across Sudan.
How Does the ICC Fit into this Picture?
It is into this complicated picture that the ICC wades. Victims’ expectations are high, while overall knowledge of the Court’s mandate and the case is low—a problem deepened by the ICC’s relative lack of access to Darfur, in light of the coup and deteriorating security situation there, on top of the enduring coronavirus pandemic.
Lawyers and activists in Darfur, including the Darfur Network for Monitoring and Documentation (DNMD, of which one of the authors of this piece, Mohammed Hassan, is the executive director) have collaborated with the Office of the Prosecutor at the ICC, and the ICC’s Outreach, Office of Public Counsel for Victims, and Victims Participation and Reparations Section (VPRS) to identify evidence and qualifying victims for participation in the Kushayb case. But many across the region have questioned the limited geographic and temporal scope of the charges against Kushayb, which encapsulate only a narrow slice of the vast crimes committed by government, rebel, and Janjaweed forces.
The stakes are high for victims, many of whom remain displaced from their homes in IDP camps in Sudan or across Sudan’s borders in neighboring countries. They are equally high for the Court, which has yet to handle a case of this size, in terms of the large amount of evidence gathered and the high number of victims. Amid excitement (and trepidation) about the ICC’s announced investigation into any potential atrocity crimes committed in Ukraine, and in light of its mixed record of success, the ICC is under pressure to deliver meaningful justice in the Kushayb case.
Kushayb’s trial will be a good start towards this end goal, both for the individual victims of the specific crimes for which he is being tried, and for illustrating to Sudan’s military leaders that the arm of justice is truly long: accountability may be slow, but it will come.
Of course, justice in Sudan will remain incomplete until all perpetrators of crimes committed in Darfur are brought before a court—even those in power today. Many of the victims we work with have made clear that full justice cannot be achieved in Darfur until all those wanted by the ICC, particularly those currently in the custody of Sudanese authorities—including al-Bashir, Ahmed Haroun (former Minister of State for the Interior), and Abdulraheem Mohamed Hussein (former defence minister), all of whom are wanted on charges of war crimes, crimes against humanity and, in al-Bashir’s case, genocide—are transferred to The Hague to stand trial like Kushayb. They are right: Sudan’s domestic judicial system is simply not capable of managing complex, large-scale investigations at this time, and the judiciary and Public Prosecution lack the requisite independence from those in power needed to prosecute international crimes.
International actors working now to resolve today’s political crisis in Sudan must keep this in mind. As history has proven, unsatisfactory political agreements forged under international pressure but without requiring serious concessions from the military have created the enabling environment for ongoing violations. Continual calls from the Sudanese public for ICC intervention in relation to recent abuses illustrate the hunger for accountability, and protestors show no indication of abandoning the streets of Khartoum and other cities until this need is met.
The ICC is by design not capable of closing the widening impunity gap in Sudan, a problem exacerbated by the coup and subsequent reversal of domestic accountability initiatives, on its own. But the Kushayb case is an important first step, and it comes at a critical turning point in Sudan’s history. ICC Member States and Sudan’s international parties should recognize this, and the urgent need for prioritization of accountability, human rights, and legal reforms as the primary means of ending the cycle of political repression and instability in Sudan.