This development might lead to the first case in the Darfur investigation moving to trial. The ICC Darfur investigation, which was initiated in 2005 following a referral by the United Nations Security Council, went on to produce six arrest warrants for five suspects from the Sudanese government, including former president Omar Al-Bashir, and from the Janjaweed, including Ali Kushayb, warrants that remained unexecuted for over a decade. The transfer of Ali Kushayb, also known as Ali Muhammad Ali Abd-Al-Rahman, is the first and only execution of a warrant of arrest in the Darfur investigation to date.*
“ We have long awaited the day when the militia leaders and political apparatus behind the Darfur genocidal campaign would be held to account ,” said Mossaad Mohamed Ali, ACJPS Executive Director.
"The transfer of Ali Kushayb is a powerful reminder that even if you run away from justice for years, the tables can turn at any time and justice will then catch up with you."
For years, frustrations over the lack of progress in the Darfur investigation, and states failing their obligations to support the Court including in the execution of the warrants of arrests, led to increasing doubts over whether this investigation would ever bear any fruits. Many victims and affected communities, including internally displaced persons and those living in exile, felt forgotten by the international community. Sudan’s demonstrations last year and the toppling of the Bashir government gave this investigation new momentum, with a number of ICC suspects, namely Omar Al Bashir, Ahmad Harun and Abdel Raheem Hussein, arrested and detained in Sudan. Announcements from the transitional Sudanese government indicating willingness to cooperate with the ICC have been cause for further encouragement, even if not yet fulfilled by concrete actions.
“Beyond Ali Kushayb’s case, much work remains to be done to achieve accountability for the crimes committed in Darfur,” said Magdi El Na’im, SHRM Secretary General.
"Whether domestically or at the ICC, the Sudanese transitional government must commit to prosecuting the remaining suspects for their alleged responsibility for war crimes, crimes against humanity and genocide committed in Darfur—not merely for corruption charges."
Judges at the Court will now set a date for a hearing where the Prosecutor will present the charges against Ali Kushayb, with the latter fully entitled to defence rights. The judges will then decide whether to submit these charges, in whole or in part, to trial. Victims of the crimes can also participate in these proceedings and present their view and concerns where their interests are affected. So far, only six victims are registered as participants in the case against Ali Kushayb.
“We call on the ICC to ensure visible justice through effective outreach and public information on the case and the investigation as a whole,” said Alice Mogwe, FIDH President.
"We also ask the Court to facilitate the meaningful participation of a greater number of victims, through providing specific information to affected communities and legal professionals in Sudan, on the rights of victims at the ICC and how to engage with the criminal justice process."
Going forward, the Court will continue to depend on the support and cooperation of States Parties to fulfil its mandate. The concerted efforts by leading to the transfer of Ali Kushayb to the seat of the Court must now continue, allowing the Court the level of resources and cooperation needed to finally deliver a modicum of justice to the victims in Darfur.
Background
On 31 March 2005, the United Nations Security Council referred the situation in Darfur, Sudan since 1 July 2002 to the Prosecutor of the ICC, in Resolution 1593 (2005). The Prosecution subsequently open an investigation into the situation in Darfur in June 2005. On 27 April 2007, the Judges of Pre-Trial Chamber I of the ICC issued a warrant of arrest against the suspect, Mr Ali Kushayb.
The conflict in Darfur brought devastating crimes upon the population of the Darfur region, with the UN estimating that 300,000 were killed and nearly three million forcibly displaced to escape the crimes committed mainly by Sudanese security forces and their proxies from the Janjaweed, a militia proxy to the former Sudanese government that terrorised and committed crimes, including sexual violence, against thousands of civilians in the Darfur region. The lasting impunity for these crimes fueled the commission of further international crimes committed in Darfur up to the present day, as documented in a joint FIDH and ACJPS report issued in December 2019.
For more information, check out the special webpage created for “Will There be Justice for Darfur? Persisting Impunity in the Face of Political Change”, the most recent joint report from FIDH and ACJPS: https://justicefordarfur.fidh.org
* Following the defendant’s initial appearance at the International Criminal Court, the defendant requested that his official name of Ali Muhammad Ali Abd–Al-Rahman be used in the case and not that of Ali-Kushayb. Subsequent FIDH communications will accordingly use the official name.