A Landmark Conviction in Darfur
On 6 October, the International Criminal Court (ICC) delivered a historic verdict by convicting Ali Muhammad Ali Abd-Al-Rahman, known as Ali Kushayb, on 27 charges of war crimes and crimes against humanity. This marked the ICC’s first conviction in the Darfur situation, which was referred to the court by the United Nations (UN) Security Council in 2005. It also represents the ICC’s first conviction in the two situations referred by the UN Security Council—Libya being the other—and its first conviction for gender-based persecution, including rape as a war crime and a crime against humanity.
The conviction is a significant step towards addressing the impunity gap in Darfur, according to ICC Deputy Prosecutor Nazhat Shameem Khan. She emphasized that the judgment sends a strong message to perpetrators of atrocities in Sudan, both past and present, that justice will prevail and that they will be held accountable for their actions. However, the challenge of ensuring accountability remains substantial.
The Legacy of the Darfur Conflict
Ali Kushayb, a senior leader of the Janjaweed militia in Darfur, was charged in 2007 for international crimes committed in West Darfur between 2003 and 2004. He was one of the key figures involved in a scorched-earth campaign that devastated entire villages when the Khartoum government allied with local militias to suppress a 2003 rebellion in Darfur.
The conflict, which lasted from 2003 to 2020, resulted in a severe humanitarian crisis, with allegations of genocide against the Fur, Zaghawa, and Masalit people. Over 300,000 lives were lost, and approximately three million people were displaced.
During his trial, the prosecution presented 1,521 items of evidence. Fifty-six out of the 1,591 participating victims gave direct testimony, recounting experiences of horrific violence, loss, and displacement. These accounts serve as a powerful reminder of the suffering endured by millions of Darfuris over the years.
After two decades, survivors finally had the opportunity to confront one of their tormentors and create a public record of the atrocities they faced. For many, the conviction is a hard-won victory, albeit delayed.
Ongoing Consequences and Challenges
Despite the conviction, many survivors still grapple with the physical, mental, emotional, and socio-economic consequences of the crimes. Millions remain displaced, often facing secondary displacement without access to basic services such as healthcare, education, and livelihoods.
Institute for Security Studies research conducted in May this year highlighted the ongoing struggles of internally displaced persons. One individual recounted repeated displacement since 2003: “This is the third time I have fled my home. Each time they tell us peace will come, but we return to more violence.”
The human rights community has welcomed the conviction, but the delay in achieving this outcome cannot be overlooked. With Sudan currently in its third year of civil war, and Al Fasher, the capital of Darfur, among the most affected regions, the need for swift justice is more pressing than ever.
The Role of the Rapid Support Forces
Ali Kushayb’s Janjaweed militia is now part of the Rapid Support Forces (RSF), established in 2013 and led by Mohamed Hamdan Dagalo, known as Hemedti. The RSF has been engaged in conflict with the Sudanese Armed Forces since April 2023.
The ICC’s 650-page judgment highlights the complexity of the case, which proceeded with little to no cooperation from Sudanese authorities. Successive ICC prosecutors have criticized the authorities for restricting access to documents and witnesses, and ignoring requests for assistance and approval.
In 2021, there were hopes that the Sudanese government would cooperate with the ICC. A memorandum of understanding was signed, and authorities committed to handing over former president Omar al-Bashir, who is charged with war crimes, crimes against humanity, and genocide in Darfur. However, tensions between the then civilian-led government and the military, which remained loyal to al-Bashir, stalled any meaningful cooperation with the court.
Structural Challenges and Global Retreat
The ICC’s reliance on the full cooperation of states presents a major structural challenge. When countries are not party to the ICC’s Rome Statute and the situation follows a UN Security Council referral, as with Darfur, the interplay between law and politics becomes stark.
The Darfur situation has always been a test for the ICC and international justice. How can the international community advance justice for victims in a country where the state rejects international criminal jurisdiction, withholds support, and is unmoved by sanctions against it and its leadership? This question extends beyond Darfur, striking at the core of universal international criminal justice.
There are already signs of a retreat from global justice and accountability institutions. Recent withdrawals from the ICC by Burkina Faso, Niger, and Mali highlight growing concerns. With US sanctions on the court, some question whether Ali Kushayb’s landmark conviction symbolizes the last kicks of a dying horse. While support for the ICC remains, it faces fierce headwinds.
The Future of the ICC
As the ICC’s 125 member states meet this December for the 24th Assembly of States Parties to the Rome Statute, discussions will likely be tinged with panic. The ICC’s growing budget is testing members at a time when funding gaps for global institutions are widening. Calls for international criminal justice remain loud, but the response is slow, arduous, and costly.
Victims of Sudan’s current civil war are wondering if they will ever see justice. After all, Ali Kushayb ended up in the dock only because he feared for his life in Sudan after al-Bashir’s fall. He surrendered himself in the Central African Republic and was transferred to the ICC’s custody in 2020.
The current war in Sudan shows that the court’s operational challenges have undermined its ability to act as a deterrent. The ICC has also struggled to bring to justice others it indicted for the Darfur conflict, including al-Bashir, former Sudanese government ministers Ahmad Muhammad Harun and Abdel Raheem Muhammad Hussein, and Abdallah Banda Abakaer Nourain, commander in chief of a militia group that fought against Sudan’s military in the 2000s.
Twenty years on, Darfur is again the site of death and destruction. There should now be even greater pressure for swift justice. Without it, as the recurrent violence shows, there can be no sustainable peace. For now, some survivors wait for meaningful reparations. Better late than never? Only time will tell.
