Despite the International Criminal Court (ICC) being under immense pressure right now, its first conviction for crimes in Darfur, and the first for gender-based persecution as a crime against humanity, is a major win.
On October 6, a senior leader of the Sudanese pro-government militia known as the Janjaweed, Ali Muhammad Ali Abd-Al-Rahman, was found guilty on 27 charges of committing war crimes and crimes against humanity. The court rejected his defence of mistaken identity.
From around August 2003, Sudanese government forces and the Janjaweed carried out large-scale attacks on civilians in the Darfur region. This included targeted killings, summary executions, assaults, rapes, theft of livestock and the forced displacement of more than two million people.
The targets of this violence were mostly communities who shared the ethnicity of various rebel groups, and later other Arab and non-Arab tribes.
It has taken over 20 years, but the delivery of justice is a major development for international law, for Sudan and for the ICC itself. The case demonstrates that while the wheels of international criminal justice turn slowly, they do turn.
A milestone conviction
The case marks the first conviction arising out of Darfur, and the first from a referral to the ICC by the United Nations Security Council.
It was also the first investigation of a non-state party, meaning the accused was from a country that hasn’t signed the Rome Statute, the treaty that established the ICC.
Abd-Al-Rahman (sometimes known as Ali Kushayb or Ali Kosheib) was convicted for crimes committed between August 2003 and March 2004. Human Rights Watch published a report in December 2005 calling for accountability.
The ICC started investigating in 2005. An arrest warrant for Abd-Al-Rahman was issued that year, and a second one in 2020. He eventually surrendered himself to the ICC’s custody in 2020 and the trial began in 2022.
There are four other individuals yet to be arrested and tried. Notably, the former president of Sudan, Omar al-Bashir (the first sitting president to be indicted by the ICC), is still at large despite warrants for his arrest issued in 2009 and 2010.
Al-Bashir is wanted on five charges of crimes against humanity: murder, extermination, forcible transfer, torture and rape. He is also accused of genocide, as well as two counts of war crimes, including intentionally directing attacks against a civilian population.
Arrest warrants have also been issued for three former government ministers, with reports that one of them, along with al-Bashir, is in military custody in northern Sudan.
Justice for women and girls
With Sudan not a party to the Rome Statute, the conviction of Abd-Al-Rahman was only possible because the Security Council established an international commission of inquiry on Darfur. This reported that war crimes and crimes against humanity had likely been committed.
The Security Council then referred the Darfur situation to the prosecutor of the ICC as a threat to international peace and security, with the investigation starting on June 6 2005. A “confirmation of charges” hearing was held in May 2021.
This is an important precedent. It demonstrates why the Security Council should use its referral power under Article 13(b) of the Rome Statute to send cases to the ICC, even when accused individuals are from states that don’t want anything to do with the court.
The judges also ruled the attacks caused profound physical, cultural and social harm to women and girl victims. The transcript of the judgment contains harrowing testimony about the Janjaweed’s heinous actions.
This conviction signals the ICC’s commitment to pursuing justice for girls and women who are brutalised during conflicts. It also fulfils one of the goals of the late Cherif Bassiouni, the international law scholar who helped set up the ICC and pushed for a greater focus on punishing rape and gender-based crimes.
The ICC under pressure
Finally, this conviction comes at a time when the ICC itself is under significant pressure, internally and externally.
The court’s chief prosecutor is subject to an internal investigation for sexual misconduct, and the ICC itself was sanctioned by US President Donald Trump in February.
The US has also issued sanctions against the chief prosecutor and individual judges for investigating US forces in Afghanistan, and for issuing arrest warrants against Israeli Prime Minister Benjamin Netanyahu and former Israeli Defence Minister Yoav Gallant.
In August, the US went even further, sanctioning two more judges and two deputy prosecutors. This included Nazhat Shameem Khan, who issued statements on behalf of the court in the Darfur case.
In August, US Secretary of State Marco Rubio called the ICC a “national security threat”. The ICC has strongly condemned the sanctions, as have many other organisations and countries.
Nonetheless, with Abd-Al-Rahman’s sentencing still to come, the Darfur case represents a much-needed win for international law and for the ICC. For the victims, however, real justice will have to include a comprehensive and funded plan for compensation and rehabilitation.
Myra Williamson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
