ICC trial of Darfur janjaweed ‘Colonel of Colonels’ Ali Kushayb resumes tomorrow

The trial on 31 counts of war crimes and crimes against humanity of former Darfur janjaweed leader Ali Muhammad Ali Abdelrahman, known as ‘Ali Kushayb’, and referred to as the ‘Colonel of Colonels’, will resume in Courtroom 2 at the International Criminal Court (ICC) in The Hague, the Netherlands, on Monday.

An official statement by the ICC press office says that the Abdelrahman trial is set to resume on Monday, with the testimony of the 16th prosecution witness, ‘Witness P-0892’. For security and protection of witnesses, the Trial Chamber has granted protective measures to some of the witnesses to testify under a pseudonym, have their voice and image disguised, as well as having their testimony heard from a private location.

“The witness is expected to testify about the link between Mr Abdelrahman and the nickname Ali Kushayb,” the ICC statement says. It is noteworthy that from the start of pre-trial proceedings, Ali Kushayb’s defence has always pivoted on ‘mistaken identity’, saying that he is not the person who perpetrated these crimes. However on the first day of the trail, following Prosecutor Khan’s opening, senior trial lawyer Julian Nicolls, told the court that the prosecution intends to present several witnesses (referred to only by a number for anonymity), who will testify that the accused is indeed Ali Kushayb, the feared so-called ‘Colonel of Colonels’.

The ICC press office says that Witness P-0892 will also testify about an alleged attack on the witness’s village by Sudanese government forces and the militia/janjaweed in February 2004, his alleged displacement with other villagers to Mukjar, displaced persons allegedly beaten and their belongings looted under the orders of the accused. Testimony will also include Sudanese government forces and the militia/janjaweed allegedly arresting displaced persons in Mukjar, detention conditions at Mukjar police station, alleged torture and execution of detainees, and the discovery of a mass grave outside of Mukjar around March/April 2004.

In previous sessions last week, The prosecution brought forth compelling witness testimonies to support the allegations against Abdelrahman. The court heard from the expert witness and Executive Director of the World Peace Foundation, Professor Alex de Waal, who answered questions about his report on Darfur and presented his accounts of the region.

Professor de Waal stated that during his time in Darfur in the early 2000s, he observed a huge discrepancy in inequality between Khartoum and Darfur. According to de Wall’s experiences, the infrastructure of most small towns in Darfur were in such disarray, that it would be rare to find a clinic, and in half those cases, “the clinic would have lost its roof”.

Witness P0712 spoke of attacks on villages they were in and described, burning, looting, and arrests, identifying the perpetrators of the attacks as the janjaweed.

P0712 explained the meaning of the word janjaweed, saying that they are a “group of people from Arab tribes who ride on horseback, own weapons, and kill people from different tribes”. He went on to list different examples of janjaweed atrocities in Darfur, explaining how they “pillaged and burnt down villages”.

The ICC proceedings can be streamed (with a short delay) on Monday, 13 June at 10:00 10:30 (CEST) via this link

Background:

From the start of pre-trial proceedings, Ali Kushayb’s defence has always pivoted on ‘mistaken identity’, saying that he is not the person who perpetrated these crimes. However following Prosecutor Khan’s opening, senior trial lawyer Julian Nicolls, told the court that the prosecution intends to present several witnesses (referred to only by a number for anonymity), who will testify that the accused is indeed Ali Kushayb, the feared so-called ‘Colonel of Colonels’. He also emphasised that rather than just ordering the commission of atrocities, Kushayb was an “enthusiastic active participant” in many of the atrocities with which he is charged. Nicolls also mooted that “after a perilous journey through the jungle across the border from Darfur”, Ali Kushayb surrendered voluntarily to the ICC in the Democratic Republic of Congo citing the arrest warrant in that name. Nicolls suggested that Kushayb was fleeing possible arrest and trial in post-Al Bashir Sudan, for crimes that would carry the death penalty in that country.

As the trial continues, the first expert witness is scheduled to start testifying tomorrow.

According to a statement by the ICC public affairs unit, Alex De Waal is a joint OTP/Defence expert witness. He is the Executive Director of The World Peace Foundation and Professor at Tufts University. He is expected to testify about, among other topics, an overview of the relevant events which took place before and during the armed conflict in Darfur in 2003-2004, as well as the root causes of the armed conflict, and the relationship between the militia/janjaweed and Sudanese government forces during Darfur conflict.

Lead-up to trial

On November 2, 2021, The Appeals Chamber of the ICC unanimously rejected an appeal by Ali Kushayb, against the Pre-Trial Chamber II decision of 17 May 2021, rejecting a challenge of the court’s jurisdiction by Kushayb’s defence counsel.

The Appeals Chamber of the ICC, composed of Judge Piotr Hofmański, presiding in this appeal, Judge Luz del Carmen Ibáñez Carranza, Judge Perrin de Brichambaut, Judge Solomy Balungi Bossa, and Judge Gocha Lordkipanidze, decided unanimously to reject the appeal against the Pre-Trial Chamber II decision of 17 May 2021 on the Defence’s jurisdictional challenge (exception d’incompétence).

Presiding Judge Piotr Hofmański, in rejecting the Defence’s four grounds of appeal, the Appeals Chamber highlighted, among other matters, that it found no error in the reasons given by the Pre-Trial Chamber defining a “situation” before the Court as defined in terms of temporal, territorial and in some cases personal parameters. It also found that the non-funding by the United Nations of the activities of the Court arising from a referral by the Security Council does not invalidate the UNSC resolution 1593 which referred the situation to the ICC. As for the alleged failure of the Pre-Trial Chamber to take into account the lack of the Security Council logistical and security support to the Court in Sudan, the Appeals Chamber finds that the Defence has not demonstrated how this alleged error of law relates to the jurisdiction of the Court.

Finally, and referring to the principle of legality, nullum crimen sine lege, the Appeals Chamber found that the referral of the Situation in Darfur, Sudan took place in the wake of serious violations of human rights and humanitarian law that were criminalised under international law at the time.

The Appeals Chamber also found that the crimes under the Statute were intended to be generally representative of the state of customary international law when the Statute was drafted. This weighs heavily in favour of the foreseeability of facing prosecution for such crimes even in relation to conduct occurring in a State not party to the Statute. Judge Ibáñez expressed her separate views concerning this ground of appeal and while agreeing with the outcome reached by the majority, she considered that, in her view, the jurisdiction of the Court over the conduct in this case pre-dates UNSC Resolution 1593, which only triggered the Court’s jurisdiction and thus there is no need to refer to any other sources of law.

Indictment

As previously reported by Radio Dabanga, Kushayb initially appeared before the ICC on June 15.He then appeared before Pre-Trial Chamber II on May 24-26 to hear submissions from the prosecution and legal representation of the victims.

The ICC issued arrest warrants against former Minister for Humanitarian Affairs, Ahmed Haroun, and Kushayb in 2007. Kushayb was transferred to the ICC’s custody on June 9, 2020 after surrendering himself voluntarily in the Central African Republic. Upon his arrest, the Sudanese government announced its support for his transfer to the ICC. Kushayb is also charged with a number of crimes by the Sudanese authorities.