In June 2020, Ali Kushayb, one of the foremost leaders of the Janjaweed militia group voluntarily surrendered to UN peacekeeping forces in the Central African Republic (CAR). Kushayb had been wanted for crimes committed in the Darfur genocide and so his surrender was a landmark moment in a drawn out International Criminal Court (ICC) investigation that should yield further arrests and justice for victims in Darfur, Sudan.

The progress of this case will be telling in signalling the capacity of the ICC to deliver on its mandate, as spelled out in the Rome Statute, and represents an early test for the incoming chief prosecutor, Karim Khan QC. 

DIFFICULTY IN PROSECUTION: CONTEXT

Prosecuting the case against the atrocities committed in the Darfur genocide has proven extremely difficult for the ICC. Given Sudan is not a signatory of the ICC’s founding document, the Rome Statute, the ICC has relied on UN Security Council (UNSC) resolution 1593 for the legitimacy of its Darfur investigation and has faced the flaunting of its jurisdiction from rogue states parties with the failure of South Africa, Uganda, and Jordan to arrest Omar al-Bashir (the former president of Sudan) when he visited—a violation of their obligations as signatories of the Rome Statute. Due to the exceptional nature of this case—the UNSC referral as the first of its kind, and the controversy surrounding the ICC decision to investigate a sitting head of state—the surrender of Kushayb will hopefully usher in new momentum to an investigation that had stalled for the better part of two decades.

ICC investigations take place in stages, the first of these being the Pre-Trial Chamber issuance of a warrant for arrest, following a submission of evidence from the Office of the Prosecutor. The Judges of Pre-Trial Chamber I first issued an arrest warrant for Kushayb in April 2007. This warrant listed 50 counts against Kushayb, 22 being crimes against humanity, and 28 for war crimes. These crimes are alleged to have been committed by Kushayb in his capacity as one of the leaders of the Janjaweed militia group between August 2003 and March 2004.

In early 2003, a range of rebel groups including the Sudan Liberation Army and the Justice and Equality movement, based in Darfur, began protesting the political and economic marginalisation from the Bashir regime in Khartoum by attacking government targets. In response, the Janjaweed militias and the government defence forces launched a crackdown leading to the murder, rape, imprisonment, and forced displacement of millions. Kushayb, as well as directing these attacks, is alleged to have personally committed crimes against civilians.

Kushayb’s arrest in the CAR, where he had previously fled to in February 2020, is the first of those indicted for the crimes in Darfur, and he will thus be the first to formally face charges. Kushayb is said to prefer his prospects of facing justice in The Hague, because his likely sentence, were he to face justice in Sudan, would be the death sentence. Kushayb will face the first Confirmation of Charges Hearing on 24 May 2021.

SUSTAINED COOPERATION IS KEY

ICC Registrar Peter Lewis was quick to thank the CAR authorities for their help in securing the arrest, as well as the Republic of Chad, France, the Netherlands, and the United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA) for their ongoing support for the ICC. Such thanks given out is not mere platitude, but underlines the fundamental importance of inter-agency, international cooperation in facilitating the securing of indictees to face charges in The Hague. The ICC’s current chief prosecutor, Fatou Bensouda, underlined the centrality of cooperation in attaining Kushayb’s arrest in her press release following the surrender: “while many had either abandoned hope in the situation or actively sought to stifle progress, we maintained our focus and perspective, never giving up on our investigations despite cooperation challenges, and building the necessary networks and partnerships.” Maintaining and enhancing relations among state parties, international organisations, NGOs, and agencies remains of utmost importance to the Court’s ability to secure arrests.  

Another example of cooperation and generation of international understanding was the signing of a Memorandum of Understanding (MOU) between Sudan and the Court on 16 February 2021. Critics have argued that whilst this is a positive step, more must be done to ensure the other indictees (namely al-Bashir) are brought to justice. Elise Keppler, the Associate Director of the International Justice Program in Human Rights Watch, said that: “the transitional government can and should take its cooperation further by surrendering the four remaining ICC fugitives, three of whom, including al-Bashir, are already in Sudanese custody.”

 The arrest of Kushayb, and the MOU recently signed, could prove to be landmark moments in the Darfur investigation. If justice can be rightly served in the Kushayb case, this will only increase pressure on Khartoum to transfer those it is currently holding in custody to The Hague to face charges. The head of the Office of the United Nations High Commissioner on Human Rights (OHCHR), Michelle Bachelet, said, “his arrest should also act as a deterrent to other military and political leaders who think they can commit such crimes with impunity,” underlining the symbolic significance this case holds in continuing to further the anti-impunity norm in international law. It is thus extremely important that the Court handles the Kushayb case as smoothly as possible. A recent decision by Judge Rosario Salvatore Aitala to extend the page limit in this case for the Document Containing Charges by 15 pages to 45 is part of an effort by the Court to provide the comprehensive detailing of Kushayb’s crimes that is needed for justice to be fully served.

You can keep up to date on the latest movements in the Kushayb case by accessing the ICC’s newly-launched case database here. It is also worth listening to “Asymmetric Haircuts”—a podcast dedicated to the work of the ICC and other international legal matters, run by two expert journalists based in The Hague. More information can be found here.

Peter is a graduate student of Political Science at the University of Jena. He is considering a career in the UK Criminal Bar. Peter works for Bridging The Bar, helping to run their social media, and is keenly invested in working to end modern slavery as a champion of International Justice Mission.

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