ICC Landmark Trial: History Seems to Be Repeating Itself For Victims of Darfur Crimes

[Emilia Truluck is a Legal Fellow at REDRESS, focusing on justice and accountability mechanisms in North Africa.]

Earlier this month the victims’ legal representative presented her opening statements in the ground-breaking trial at the International Criminal Court against former Janjaweed commander Ali Muhammad Ali Abd Al-Rahman, also known as Ali Kushayb.  

Ali Kushayb is charged with crimes against humanity and war crimes in West Darfur. He is alleged to have committed crimes including murder, rape, and pillage in 2003, as well as the torture and murder of more than 200 detained men and boys in 2004. The trial against Ali Kushayb, which began last year, is the first case brought against a perpetrator of atrocities in Darfur in either a Sudanese or an international court. The case demonstrates that justice and accountability can still be achieved years after atrocities occur, as REDRESS has stressed previously.

The Rome Statute of the ICC affirmed ground-breaking rights for victims, including their right to participate in proceedings. Natalie von Wistinghausen, the victims’ legal representative, noted in her trial brief that victims’ participation in this case was particularly important for illustrating how the charged crimes “impacted the participating victims, their families, and the wider Fur community,” and how the situation of these individuals changed before, during, and after the Darfur atrocities of 2003 and 2004.  

However, Von Wistinghausen also highlighted in her opening statements that the ability to communicate with the participating victims had been greatly impacted by the ongoing armed conflict between the Sudanese Armed Forces (SAF) and the Rapid Support Forces (RSF), which began in April 2023. Because of the worsening violence in Darfur, two of the participating victims still living in Darfur were unable to travel and testify. As a result, although she included many testimonies from victims in both her opening statement and her trial brief, the Court was only able to hear live testimony from three victims (all of whom are now located outside of Sudan). 

The impact of the ongoing conflict on the survivors of prior Darfur atrocities cannot be underestimated. Although the Office of the Prosecutor of the ICC has so far refrained from making any statement about the current conflict between the SAF and the Janjaweed-rooted RSF, Von Wistinghausen’s opening statements made it clear that the current conflict cannot be understood separately from the events that led to the Ali Kushayb trial.  

She drew poignant connections between the ongoing conflict and the history of impunity for perpetrators of atrocities in Darfur during both days of public hearings. She began by listing the statistics of death and displacement from the current conflict, claiming that “history seems to be repeating itself”, while noting that this time the violence was impacting Sudan as a whole. She also emphasised that many participating victims (of which there are now 600) believe that justice and accountability for historic crimes in Darfur are central to the creation of lasting peace in Sudan. Therefore, she suggested that the ICC consider continuing gathering evidence during the current conflict for use in future prosecutions, both as a way to deter further violations and to give those affected hope that perpetrators of the current violence will be brought to justice. 

Highlights of Testimonies of Participating Victims 

Voices of participating victims were heard in the Court during Von Wistinghausen’s opening statements, either in pre-recorded videos, in person, or via live video feed. The testimonies began with six pre-recorded audio statements from survivors of the 2003 Janjaweed attacks in Darfur. Five of the survivors were long-term refugees in Chad, and one was a 94-year-old man living in a camp for internally-displaced persons in Darfur. All six individuals emphasised the difficulties of affording housing, food, healthcare, and education as long-term forcibly displaced individuals. Most of them also expressed their desire to return to their ancestral lands. 

After the pre-recorded testimonies were heard, a participating victim now living in Canada joined the courtroom via video feed to describe his experience of the Darfur atrocities when he was a child, and to explain how it had affected his life. He also made an impassioned plea for the international community to end the ongoing conflict in Sudan, emphasising that the pursuits of justice, peace, and truth are interconnected, and that the events of Darfur in 2003 and 2004 cannot be understood in a vacuum or as separate from the ongoing conflict.  

The second day of testimonies on 6 June, highlighted the experiences of survivors of conflict-related sexual violence. For example, one survivor testifying in court described how, in her refugee camp in Chad, many women who had been brutally raped during the war had no access to proper treatment for their mental or physical suffering. She also emphasized that young girls in the camp continued to be at risk of sexual violence when they collected firewood from Janjaweed-infiltrated areas around the camp. At the end of her testimony, she called for compensation and reparations for survivors of sexual violence and the ability to return to her homeland. 

Testimonies about the conditions of long-term refugees in Chad continued in open court on 7 June. The participating victim on the third day described his experience of the violence in Darfur in August 2003 and his journey to a refugee camp in Chad. He also described the conditions of the refugee camp in Chad, the difficulties the refugees faced in obtaining adequate food, water, healthcare, or education, and his experience completing his education in the camp. He emphasised his desire to return to his homeland in Darfur, to no longer be stateless, and to obtain justice and reparations for what happened to him. It was clear that his wishes could not be fulfilled as long as the current conflict continues.

The Impact of the Current Conflict on the ICC Proceedings on Darfur 

The current conflict has directly impacted the ongoing ICC investigations and cases in Darfur in multiple ways. First, as described above, it has directly impacted the participating victims in the Ali Kushayb case. In addition, it has also likely led to the re-victimisation of many of the victims of the crimes of the early 2000s.  

The Darfur conflict of the early 2000s led to the displacement of millions of people, both internally and beyond the borders of Sudan. By the outbreak of the current conflict, Sudan was home to 3.7 million internally displaced people, most of whom were in Darfur. In the current conflict, Darfur has seen some of the worst violence outside of Khartoum, including sexual violence, indiscriminate killings, and assassinations of political leaders.

In West Darfur, RSF-affiliated militias are massacring members of the same tribe that was targeted during the early 2000s genocide. Thousands have been killed over the past couple of weeks in El Geneina alone. Food aid, UN warehouses, and humanitarian organisations have been looted throughout Darfur, and homes and food markets have been razed. 

In addition to directly impacting the participating victims in the Ali Kushayb case, the ongoing conflict in Sudan has also threatened the ability of the Court to seek justice in future proceedings against the other perpetrators of the Darfur atrocities. For example, four ICC arrest warrants remain outstanding against former president Omar al-Bashir, Ahmed Muhammad Harun (former Minister of State for the Interior and former governor of South and North Kordofan); Abdel Raheem Muhammad Hussein (former Minister of National Defence and former Minister of the Interior); and Abdallah Banda Abakaer Nourain (former commander-in-chief of the Justice and Equality Movement Collective-Leadership). Although al-Bashir, Harun, and Hussein were previously understood to be in custody in Kober prison, all three are now believed to be located elsewhere. Military sources claim that al-Bashir and Hussein were transferred to a military hospital shortly after the outbreak of the current conflict, while Harun fled custody in the early stages of the fighting. 

As the victims’ legal representative highlighted in her opening statements, UN Security Council Resolution 1593 (2005) gave the ICC jurisdiction over international crimes perpetrated in Darfur after 1 July 2002. To ensure that Sudan does not continue this bloody cycle of violence, the ICC should consider investigating current crimes and the Security Council should consider expanding the ICC’s jurisdiction to cover international crimes committed across Sudan.  

As REDRESS highlighted in a briefing after the military coup of 25 October 2021, Sudan will remain stuck in a bloody cycle of coups and conflicts as long as those responsible are able to act with impunity. For this reason, at the beginning of the current conflict, jointly with Sudanese partners we urged the international community to use all legal and diplomatic means available to establish accountability for the gross human rights violations of the past few years.  

As the Ali Kushayb victims’ testimonies made clear, peace in Sudan will not come without justice, and justice will not prevail without an end to impunity for those responsible for international crimes.