At the ICC

Last Monday, three judges at the International Criminal Court in The Hague delivered their verdict on Ali Abdelrahman Kushayb: guilty on 27 counts of war crimes and crimes against humanity, committed in Darfur, Sudan, during 2003 and 2004.

It was an exemplary case, meticulously prepared and presented. It took three and a half years from the opening session to the verdict. Seventy-eight witnesses gave evidence in court. Stacks of documents were presented and pored over.

I was the first witness, summoned in April 2022 by both the prosecution and the defence – an unusual arrangement in a tribunal based on the adversarial system – to help the court establish agreed facts about the background to the case and the conflict in Darfur.

Witnesses who arrive at Schipol airport are asked to disembark last from the plane, so that an ICC staff member with diplomatic privileges can meet them at the gate and whisk them through the diplomats’ channel at immigration. They are checked into a hotel with a code number, no name, their itinerary choreographed so that they don’t encounter any other witnesses during their time in the city, in case they exchange notes or coach one another. When it is time to testify, a driver takes them to a secure underground garage, with individual metal-screened parking bays.

Since 2015 the court has been in a modern building designed by the Danish firm Schmidt Hammer Lassen. The exterior resembles a Mondrian sculpture that blends into the woods and sand dunes. It’s very different from the early 20th-century baronial Peace Palace a couple of miles away, where the International Court of Justice, the judicial arm of the United Nations, hears disputes between states. The ICC is concerned with individual responsibility for war crimes, crimes against humanity, genocide and crimes of aggression. It is intended to hear cases that a national judiciary cannot handle, especially crimes by high-ranking individuals in countries where courts follow presidential diktat.

The underground security doors in the witnesses’ entrance are so heavy that the staffer assigned to meet me struggled to open them. She led me down a featureless corridor, then into a lift with only two buttons: the basement and the floor with the witnesses’ suite. The courtroom has no natural light, and is unadorned apart from the barest symbols of the court itself: the scales of justice and two olive branches. Witnesses have the option of giving evidence from behind a screen, their faces blurred, their voices disguised.

Sudan is not a member of the ICC. Darfur was referred to the court by a vote of the UN Security Council in March 2005, after an investigation led by the Italian judge Antonio Cassese found strong evidence for mass atrocities and handed over a sealed list of 51 suspects, assumed to be government officials, army officers and leaders of the Janjaweed militia. The vote on Resolution 1593 was eleven in favour, none against, and four abstentions: Algeria, Brazil, China and the United States. The Bush administration had reservations about the ICC in general, but championed its role in Sudan.

Two years later, the ICC prosecutor Luis Moreno Ocampo issued arrest warrants for two men. Ahmed Haroun was head of the ‘Darfur desk’ that co-ordinated government and militia activities. Ali Kushayb was head of the Janjaweed in a corner of south-west Darfur where massacres, rapes, torture and ethnic cleansing had taken place.

One of the massacres was in a town called Dileig, in the district of Wadi Saleh, near a village where I had lived for some months in 1986. It had a weekly market where farmers brought their produce from the nearby valleys – vegetables, fruit, tobacco – to sell to lorry owners who plied the dry season roads to the fast-growing city of Nyala, the railhead for onward transport to Khartoum.

The villagers were ethnic Fur, and some of the elders could remember the days of the independent Fur sultanate, overthrown by the British in 1916. When I was there, tensions were noticeably brewing between them and Arab cattle herders, groups including the Salamat, Beni Halba and Ta’aisha. But I couldn’t have foreseen how these would explode into mass atrocity – arguably genocide – less than twenty years later, with tens of thousands killed and hundreds of thousands condemned to die of hunger and disease.

Kushayb was a former soldier who became a pharmacist. His father was from the Ta’aisha, his mother from southern Sudan. When the insurgents of the Sudan Liberation Army escalated their rebellion in 2003, they established a base in Wadi Saleh. The army mobilised militia and set about depopulating the surrounding area. Each Janjaweed unit commander was known as aqid. Kushayb was aqid al-ugada, commander of the commanders. He personally directed killings, torture, rape, burning. He was also responsible for starving people, but when the arrest warrant was issued, starvation crimes weren’t on the prosecution’s agenda. In the area around Dileig alone, Kushayb’s units forced 40,000 people to flee. They congregated in camps for displaced people, where the UN World Food Programme delivered rations. Most of them are still there. They were the among the first to go hungry when UN aid convoys were blocked by the current war.

I met some survivors in the camps shortly after Kushayb’s arrest warrant was issued. They hoped Nato or the United Nations would swoop in and apprehend the culprits, whisking them off to The Hague for swift prosecution and long prison sentences. They expected scores of culprits to be led away in handcuffs – they knew who they were and were ready to testify.

But the ICC has no police force and the peacekeepers despatched to Darfur by the UN and African Union had no mandate to enforce arrest warrants. Quite the opposite. When Moreno Ocampo demanded a warrant for the president, Omar al-Bashir, senior UN officials convened an emergency meeting in New York, worried that he might expel the UN mission, close down humanitarian operations and abort the preparations for southern Sudan to hold its referendum on independence. The UN reassured Bashir that they would not arrest him, or other men wanted by the ICC, and he let them stay. Ten years later, with no indication that any suspects would ever appear in court, the ICC set the Darfur file aside.

Unexpectedly, in 2020, Kushayb surrendered himself. He had taken refuge in the Central African Republic and was apparently afraid of extradition to Sudan, where the new civilian government might treat him more harshly. Life in a Dutch prison cell seemed a better option. No sooner had he arrived in The Hague than members of his community, fearful that their misdeeds might be exposed, began to denounce him. Kushayb told his defence team – provided by the court, as he had neither private money nor support from the Sudanese government – that it was a case of mistaken identity, and he wasn’t the man they wanted. It was never a convincing ruse, but the court had to spend many days listening to eyewitnesses arguing both sides. The judges decided that the man in the dock was the real Ali Kushayb.

He was charged with 31 counts of war crimes and crimes against humanity. Kushayb’s second line of defence boiled down to claiming that the rebels deserved what they got. The defence counsel’s most convincing argument was that Sudanese counterinsurgency had always been conducted like this (in the LRB in 2004 I called it ‘genocide by force of habit’). The judges didn’t take this as any exoneration either.

The prosecution and defence closed their arguments in December last year. The judges took ten months to come to their final decision: guilty on all counts (four of the charges were considered repeats, for which additional verdicts were not needed). Sentencing will follow at a later date, yet to be determined.

The ICC’s deputy prosecutor, Nazhat Shameem Khan, described the conviction as a ‘crucial step towards closing the impunity gap in Darfur’:

It sends a resounding message to perpetrators of atrocities in Sudan, both past and present, that justice will prevail, and that they will be held accountable for inflicting unspeakable suffering on Darfuri civilians, men, women and children.

That’s an affirmation of faith, not a realistic hope. The conclusion of the trial is like a beam of light from another galaxy. In the twenty years since the ICC opened its investigation, no other culprit for the crimes in Darfur has been arrested. Kushayb faced justice only because he surrendered himself. During the trial, as the prosecution’s patient parade of witnesses gave evidence, a new war broke out in Sudan, with the heirs of the Janjaweed, the Rapid Support Forces, rampaging through many of the same areas, killing, burning and raping. This time they have cellphones and circulate ‘trophy videos’ of their atrocities, making no secret of their crimes.

The peace plan for Sudan currently being hammered out by the ‘Quad’ of Egypt, Saudi Arabia, the United Arab Emirates and the United States, includes a ceasefire, humanitarian aid and political talks between the RSF and the Sudanese army, but no mention of accountability. The US has sanctioned the current ICC prosecutor, Karim Khan, and other members of the court, following last year’s arrest warrants against Benjamin Netanyahu and Yoav Gallant, and is threatening sanctions against the ICC as a whole, and anyone associated with it.

The Kushayb trial demonstrates that the ICC is scrupulous and just. The question is whether the governments that are members of the court, such as the UK and all European Union states, will rally to support it.