ICC vs former Darfur JEM commander Abdallah Banda: Prosecutors ask for withdrawal of war crimes charges as ‘evidence deteriorated after 10+ years’

In a blow to the prospects of ensuring accountability and eliminating impunity for war crimes and atrocities in Sudan and Darfur, the Office of the Prosecutor of the International Criminal Court (ICC) in The Hague, the Netherlands, has asked judges to withdraw war crimes charges against the former commander of Sudan’s Justice and Equality Movement (JEM) ‘Collective Leadership’ faction, Abdallah Banda Abakaer Nourain, saying the evidence against him has deteriorated to the point where there are no longer substantial grounds to believe he is criminally responsible for the alleged offences.

A statement issued by the Office of the Prosecutor today says that “in filings made public this week, prosecutors asked Trial Chamber IV to authorise the withdrawal of charges relating to alleged crimes committed in Darfur, arguing that more than a decade after the case was first brought, the available evidence no longer supports proceeding to trial”.

‘More than a decade after the case was first brought, the available evidence no longer supports proceeding to trial…’

In March 2011, Judges of Pre-Trial Chamber I of the ICC decided that two rebel commanders, namely Abdallah Banda, a field commander of the Justice and Equality Movement (JEM) faction known as ‘Collective Leadership’, and Saleh Jerbo, who was the chief-of-staff of the breakaway ‘Unity’ faction of the Sudan Liberation Army in 2025, were criminally responsible and should stand trial for “violence to life” and “pillaging” regarding for a murderous attack on an African Union base in 2007, an assault that killed 12 peacekeepers.

The charges against Banda were confirmed in March 2025, after a warrant for arrest was issued in 2024. However, on October 2023, the ICC announced that it was terminating proceedings against Saleh Jerbo, saying at the time that despite the absence of an official death certificate, the evidence it had received points towards the death of Saleh Mohammed Jerbo Jamus on 19 April 2013. “In the present circumstances, it is appropriate to terminate the case against Jerbo without prejudice, but to resume such proceedings should information become available that he is alive”.

In February 2010, the ICC declined to confirm charges against rebel leader Bahar Idriss Abu Garda, who was also initially accused of complicity in the attack, “due to a lack of sufficient evidence to establish substantial grounds to believe that he could be criminally responsible for war crimes”.

‘An objective assessment of the evidence’

In its new petition to the Court, the prosecution said its decision followed “an objective assessment of the evidence”, guided by “the interests of fairness and justice” and its obligation to investigate both incriminating and exonerating evidence equally.

Banda, a former commander of the Justice and Equality Movement (JEM), was charged with three counts of war crimes over his alleged role in the 29 September 2007 attack on African Union peacekeepers at the Haskanita Military Group Site in Darfur. Twelve peacekeepers were killed and eight others seriously wounded.

The ICC’s Pre-Trial Chamber confirmed the charges against Banda in March 2011. After he failed to appear before the court, Trial Chamber IV issued an arrest warrant in September 2014, finding that he had absconded.

The Office of the Prosecutor said, however, that developments over the intervening years had fundamentally weakened the case.

‘Developments over the intervening years have fundamentally weakened the case…

It cited the loss or unavailability of witnesses, the unwillingness of some witnesses to cooperate, serious credibility concerns affecting others, and newly obtained exculpatory evidence as reasons why it no longer believes the legal threshold for prosecution has been met.

With investigations effectively exhausted and the passage of time making further inquiries unlikely to produce new evidence, prosecutors concluded there was little prospect of altering that assessment.

The request to withdraw the charges was originally filed confidentially on 5 October 2023 in accordance with orders from the chamber, but could not be disclosed publicly until this week.

If the judges approve the request, the case against Banda will come to an end. However, the withdrawal would be without prejudice, meaning prosecutors could bring fresh charges based on the same or similar facts should sufficient new evidence emerge.

“We do not take this decision lightly,” said the ICC’s deputy prosecutor, Nazhat Shameem Khan, who oversees the Banda case.

“We acknowledge the impact it will have on the victims who have been waiting for years for justice. We are grateful for their cooperation with our investigation, and for their courage to come forward. We hope many will understand that while the Prosecution has a duty to ensure that justice is achieved, we also have an obligation to proceed to trial only on the basis of sufficient evidence.”

Shameem Khan stressed that the decision related only to Banda and did not affect the ICC’s wider work in Sudan.

“The withdrawal of charges concerns only Mr Banda. Our Office will continue efforts in cases pending before the Court over past atrocities as well as our ongoing investigation into current crimes in Darfur. The Situation in Darfur remains a key priority for our Office,” she said.

The ICC noted that Prosecutor Karim A.A. Khan KC recused himself from the Banda case when he took office in June 2021 because he had previously acted as Banda’s defence counsel. Responsibility for the case has since rested with Deputy Prosecutor Shameem Khan.