“This chamber can’t turn back the clock,” said the International Criminal Court (ICC) chief prosecutor Karim Khan, addressing the court first. The court cannot make up for the tragedies and the loss that “many have endured and continue to endure”, erase “layers of generational trauma”, and stop the conflict “that has reverberated continuously over the last 20 years.” This process can show that “the rule of law means something” and that “the craving for justice [of the victims] is not to be underestimated,” he added.
The defendant Ali Muhammad Ali Abd-Al-Rahman is now 76 years old. He is accused of war crimes and crimes against humanity allegedly committed between 2003 and 2004 in West Darfur, Sudan. According to the prosecution, Abd-Al-Rahman, also known as “Ali Kushayb”, was a leading member of the Janjaweed government-backed militia, which is accused of mass killings and rapes in the counterinsurgency called by former President Omar al-Bashir against rebels. He is accused of cooperating with senior government officials, including the minister of interior, Ahmad Muhammad Harun, from whom he allegedly received arms and money. The prosecution stressed the widespread and systematic nature of crimes committed against civilians of the Fur communities in Wadi Salih and Mukjar, localities of West Darfur. The list of crimes include intentional attacks on a civilian population, murder and attempted murder, looting, destruction of property and livestock, inhumane acts, outrages upon personal dignity, rape, torture, forced transfer of population, and cruel treatment.
“We proved beyond reasonable doubt that the defendant is Ali Kushayb and that he was a militia leader,” said Khan, “and that he was actively involved in the commission of offences willingly and enthusiastically”. While he was armed to deal with the rebellion, civilians were targeted: “They have suffered, they’ve lost their lives, they’ve been scarred physically and emotionally in myriad different ways.” The prosecutor said their case, which included 81 witnesses, 56 heard in court and 25 testifying in the record, has proven all the charges. Khan told the judges - Joanna Korner, Reine Alapini-Gansou, and Althea Violet Alexis Windsoralks - about some of the groups who were mostly targeted, such as children who were born in displacement or as a result of rape, women who suffered from sexual violence, and the elders and community leaders who were tortured and often summarily executed.
“Forgive me for this lie, I don’t know that man”
The defence denied their client is Ali Kushayb. Abd-Al-Rahman himself spoke at the end of the proceedings, commenting on his surrender to the ICC in 2020. “I said my name was Ali Kushayb because I waited two months in hiding and I was afraid of being arrested [after the regime fell in 2019].” He said the court only received him after he mentioned the nickname. “Forgive me for this lie, I don’t know that man”.
Around 50 people followed the hearings from the public gallery in the Hague. Many were part of the Sudanese civil society. The ICC itself supported the visit of Sudanese journalists, civil society organisations, local leaders or victims’ groups to the closing statements. “It is my first time here. It’s a good feeling, this is a good start, at least,” said a Darfuri journalist who prefers to remain anonymous for security concerns. “It sends a good message, that everyone who commits a crime will be held accountable, but we need to make more effort to bring the others to justice. He was just a commander, but the one who empowered him is still free,” he told Justice Info. Former President al-Bashir, who is wanted by the ICC since 2009, has been held in custody since he was deposed in 2019.
In 2010, the United Nations estimated that some 300,000 people had died and 2.7 million had been displaced since the start of the conflict in 2003. In 2005, the situation in Darfur was referred to the Court by the UN Security Council and the investigation was opened afterwards. The trial began in April 2022. “Referrals should not be never-ending stories and today we are approaching [...] the end of the first chapter of a story which hopefully will vindicate the promise that has been made to victims,” said Khan.
“The suffering that they endure today is an echo of what has been subject to this particular trial,” he also underlined. Since April 2023, another civil war between the Sudanese Armed Forces (SAF) and the paramilitary Rapid Support Forces (RSF) which is considered to have grown out of the Janjaweed militia, has devastated Sudan and especially Darfur, replicating previous crimes, such as attacks on civilians and rape as a weapon of war.
“Often the simplest idea is the correct one”
During the first day of the closing statements, prosecutor Julian Nicholls responded to a defence argument that the government of Sudan had tried to use Abd-Al-Rahman to divert attention from al-Bashir and other higher officials – while launching an investigation against him in 2004. To Nicholls, this “was not very effective”, as Sudan did not surrender the accused to the ICC. Nicholls added that if he was framed and used as a scapegoat, “for the scope of this conspiracy to work”, it should have involved the “Sudanese justice system, Radio Dabanga, Facebook, all the prosecution witnesses…”
Defence lawyer Cyril Laucci had his lips curled into a smirk and the defendant laid back on his chair looking straight ahead, as Nicholls dismissed as “absurd” and “quite farcical” the defence line that he is not Ali Kushayb and only used this nickname to get the attention of the court when he was in danger: “often the simplest idea is the correct one, he said his nickname was Ali Kushayb because it’s the correct one,” Nicholls argued.
He added that 16 prosecution witnesses knew the accused both under his legal name and his nickname, from before and after the conflict. One of them for example, knew him from five years before the conflict and regularly visited his pharmacy in Garsila, in West Darfur. The prosecution showed a video filmed after the fall of Omar al-Bashir in 2019, where Abd-Al-Rahman addresses the crowd in his capacity of warrant officer in central reserve forces. At the end of his speech, a person is seen saluting him by saying “long live Ali Kushayb”. The prosecution also showed another video “from around 2013”, where the defendant is seen saying to a crowd of supporters that he has direct links with the president and that he had killed many people.
The defence argued that the nickname was used as a result of the arrest warrant that the ICC issued in 2007 and led Sudanese people to internalise it. Laucci accused the prosecution of “not showing reliability in proving his identity” with official civil documents.
“Striking detainees with his axe”
Prosecution lawyer Edward Jeremy focused on the attacks in Kodoom and Bindisi of August 2003, where he said “the accused ordered and induced Janjaweed forces under his command to do the charged crimes”. People were murdered, tortured, chased away and their properties were burned. Rape was widespread and used “to destroy women and communities as a whole”, Jeremy added.
Abd-Al-Rahman is also accused of overseeing and being an active participant in the attacks of Mukjar and Deleig, dating back to the end of February and March 2004, where around 300 Fur men were detained and a large number of them were loaded on vehicles and summarily executed. He is accused of “striking detainees with his axe”, said prosecutor Laura Morris. She emphasised the importance of gender persecution in this case: “the fate [of the victims] was sealed because they were part of a target group for the perpetrators. The factors to identify them were: fur, male, fighting age, and from outside Mukjar. They were perceived as rebels or sympathisers”, she said, while they were only seeking refuge from the fighting.
“The evidence consistently demonstrates that Abd-Al-Rahman was the most senior Janjaweed commander in the Wadi Salih and Mukjar localities of West Darfur,” said Jeremy, adding that the defendant seemed to control around 2,500 men. The lawyer argued that he could achieve this position because of the authority he exercised in the area and his decades-long military experience. Pointing to his time in the Sudanese army and looking at the training on international humanitarian law given to army officials, Jeremy argued that the accused was aware of the illegality of his actions and “could have expected to face prosecution”.
1,592 participating victims
Then it was the victim's turn to speak. In a grainy video sent in October, Harun, a survivor of the alleged attacks on Bindisi, talked about the different tribes living in peace, until they turned against them with brutality: “imagine someone you know attacking you because of ethnicity.” "Victims’ lawyer Natalie Von Wistinghausen added that sentencing males for the crimes against humanity of persecution on the basis of gender would be a first at the ICC."
On the second day of hearings, von Wistinghausen greeted the Darfuris watching the ICC hearings from the Kalma Camp in Darfur and across the border in Chad, in a broadcast organized by local agents of the court. “It’s on their behalf that we are addressing you,” she told the judges, adding that each of the 1,592 participating victims have “unique views, histories, sorrows and hopes”. “The victims have emphasised that the wholesale impunity for the mass crimes allegedly committed during the 2003 and 2004 conflict has permitted the very same bad actors to hold on to power and now plunge the entirety of Sudan into devastation,” she said.
Threading victims’ stories, some told first-hand through pixeled videos and some read from statements, von Wistinghausen then talked about the devastating impact of the conflict on the victims: people were uprooted from their ancestral land, women who suffered from rape often faced stigma, children starved and those who are growing up now in the camps lack education, food, and healthcare. Before the war, “life was beautiful, full of joy. Now we live scattered”, said Harun who is now displaced in Deleig, in a camp located in West Darfur. Victims’ expectations include justice, accountability, expeditious proceedings and restoration of their rights and land, concluded von Wistinghausen.
“Not a Janjaweed, even less so their leader”
“Justice done to the victims must not be justice at the price of convicting an innocent person”, defence lawyer Laucci joined his hands solemnly and addressed the judges in French, at a pace that often left the interpreters breathless. During the rest of the second day and the morning of the third, he reiterated that “this is the story of a simple man, Abd-Al-Rahman”, an owner of a pharmacy, “nothing grandiose: four walls, a stall at the market”, who retired from the army where he served as a nurse. After the alleged events, he went back to the central reserve forces where he never rose to high ranks. “He was a small fish, what they call a ‘pound of flesh’ in The Merchant of Venice.”
According to Laucci, his client “was not a Janjaweed, even less so their leader”, and had no control over the perpetration of the charged crimes. He argued that at the time of the conflict, he was too old to take part in it, and that the leader of his tribe, the Ta’aisha, refused to join the counterinsurgency. This was led by a rival tribe that “would have rather cut his throat than have him as a leader”, said Laucci.
The defence case had counted 20 witnesses. Many of whom came to testify that the defendant's tribe did not take part to the counterinsurgency and that Abd-Al-Rahman was a respected and respectable man who valued inter-tribal unity. Laucci said that the prosecution had failed to establish that the accused had knowledge of the law and concluded that “moral element is lacking for all crimes charges and so a total acquittal is what the chamber should come to”.
“The words of a simple Sudanese citizen”
After three days of sitting and listening, almost expressionless, Abd-Al-Rahman took the stand on the third day, reading from a paper he held tight. “The words of a simple Sudanese citizen who joined the army at age 15”, he said. He talked about his pharmacy, where he cured all tribes, including the Fur people, and about the counterinsurgency, which he describes as “terrifying”.
“I am from the conflict zone in Darfur,” said the Sudanese journalist who attended the ICC. “I remember when they first announced the charges, the people were happy, the people were cheering because they thought the case would take a short time. But now, 20 years on, the victims are still in a very dire situation”.
Sudanese human rights defender Niemat Ahmadi, interviewed in The Hague outside of court, told Justice Info that this trial “is historic, as in Sudan we lived without seeing any officials being held accountable for crimes committed against individual citizens”. Ahmadi hopes that other trials will follow.
