ICC: First Major Hearings on Darfur Crimes

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(Hague) – The International Criminal Court’s first major hearings in the case of Ali Kosheib on May 24, 2021, are an important step toward justice for grave crimes committed in Darfur, Sudan, Human Rights Watch said today. But the absence of four other top suspects, including former president Omar al-Bashir of Sudan, spotlights the need for Sudanese authorities to transfer them to the ICC without further delay.

Ali Kosheib (also spelled Kushayb), the nom de guerre of Ali Mohammed Ali, was a leader of the “Janjaweed” militia who also held command positions in Sudan’s auxiliary Popular Defense Forces and Central Reserve Police. On April 27, 2007, the ICC issued the first arrest warrant for Kosheib, which charged him with 50 counts of crimes against humanity and war crimes for his alleged responsibility for rapes, destruction of property, inhumane acts, and attacks and killing of civilians in four villages in West Darfur in 2003 and 2004.

“Progress in Kosheib’s case is important to justice for victims of atrocities committed across Darfur and their families who were terrorized by the Janjaweed militia,” said Elise Keppler, associate international justice director at Human Rights Watch. “But the absence of al-Bashir and the three other Darfur suspects at the ICC is a major shortcoming that the Sudanese authorities should promptly address.”

Kosheib voluntarily surrendered in the Central African Republic, and on June 9, 2020, the ICC announced he was in court custody. The ICC then made public a second arrest warrant that was issued in 2018, which adds three additional charges of war crimes and crimes against humanity for murder and inhumane acts committed in the village of Deleig and surrounding areas of Darfur in March 2004.

At the hearings beginning on May 24, known as the “confirmation of charges” proceedings, ICC judges will assess if there is enough evidence for the case to go to trial.

The remaining ICC suspects face charges of war crimes, crimes against humanity, and genocide committed in Darfur. In addition to al-Bashir, they are Ahmed Haroun, former state minister for humanitarian affairs and former governor of Southern Kordofan state; Abdulraheem Mohammed Hussein, the former defense minister; and Abdallah Banda Abakaer, leader of the rebel Justice and Equality Movement in Darfur. All except for Banda are in Sudanese custody.

Sudan’s transitional government, which took office in 2019, has promised to cooperate with the ICC, which is a marked contrast to the previous government’s blocking of the ICC’s efforts. The transitional government welcomed the ICC prosecutor to Sudan for the first time in October and signed a cooperation agreement with the ICC on the Kosheib case. But the transitional government should increase its cooperation in accordance with international law, Human Rights Watch said.

Sudan has an express legal obligation to transfer the four suspects to the ICC. The United Nations Security Council Chapter VII resolution that referred the situation in Darfur to the ICC in 2005 specifically requires Sudan to cooperate with the ICC in the arrest and surrender of suspects.

National courts have primary responsibility to investigate and prosecute crimes in line with what is known as the ICC’s principle of complementarity. But when ICC investigations already have led to arrest warrants, domestic authorities would have to demonstrate to the court that they are trying the ICC suspects for the same crimes being tried by the ICC in what's known as an admissibility challenge.

According to available information, no such domestic proceedings of ICC suspects are underway in Sudan. At the end of 2019, Sudan’s then attorney-general initiated an investigation into Darfur crimes, but there has been no visible progress.

Trying to prosecute the ICC’s cases in a Sudanese court would face significant barriers, Human Rights Watch said. Genocide, crimes against humanity, and war crimes were not crimes in Sudanese law until more than five years after government forces began to commit widespread atrocities in Darfur. The doctrine of command responsibility, on which the culpability of leaders often rests, is not incorporated into Sudanese law. Immunity for those in official positions, statutes of limitation, and lack of fair trial protections pose further challenges.

The establishment of a special court on Darfur crimes, as provided in the Juba Peace Agreement, is an important initiative but will take time and resources to get off the ground, Human Rights Watch said.

One of the remaining suspects, Ahmed Haroun, announced in early May that he preferred to be tried at the ICC, media reported. His and Kosheib’s cases had been joined, but the ICC severed them when Kosheib came into custody and Haroun remained a fugitive. The Office of the Prosecutor has described Haroun and Kosheib as having “acted together, and with others, with the common purpose of attacking the civilian populations of these four villages and towns.” 

“Sudan should not hold onto ICC fugitives in defiance of its international obligations because of the transitional government’s aspiration to one day try these suspects on ICC crimes,” Keppler said. “That approach serves neither the victims nor the government.”