Sudanese activists hope the International Criminal Court (ICC) will provide justice for the victims of crimes committed in Darfur two decades ago, even as fresh abuses are reported in a new war that has enveloped large parts of Sudan.
Many blamed a climate of impunity for emboldening old and new perpetrators to commit grave crimes, amid the nationwide conflict between the Sudanese army and the paramilitary Rapid Support Forces (RSF).
Rights groups and the United Nations have accused the RSF of committing summary executions, burying victims in mass graves and using rape as a weapon of war. The United States responded to these reports by sanctioning two senior RSF commanders on September 6.
Today, near the border of Sudan, I made three major announcements.
1: The United States is providing nearly $163 million in additional humanitarian assistance for the people of Sudan and neighboring countries.
2: @USTreasury is sanctioning Abdelrahim Hamdan Dagalo for his…
— Ambassador Linda Thomas-Greenfield (@USAmbUN) September 6, 2023
“The crimes committed under [former President] Omar al-Bashir in 2003 are the reason for the crimes being committed today. He’s the one that gave legitimacy and power to the Arab militias [that later become the RSF],” said Selma Ahmed,* a human rights lawyer from West Darfur who fled to Egypt in May.
Despite the new cycle of violence, some form of justice for thousands of victims may finally be within reach. The ICC’s Chief Prosecutor Karim Khan said in August that the case against former Sudanese Arab militia leader Ali Muhammad Ali Abd-al-Rahman – better known as Ali Kushayb – should conclude early next year.
Al-Bashir and three other suspects are not in the custody of the ICC, yet a conviction against Kushayb could establish a precedent of accountability amid efforts to gather evidence for fresh investigations, experts and activists told Al Jazeera.
“Kushayb is the biggest perpetrator who is responsible for killing probably the most people [in 2003],” said Mohamad Sharif, a human rights lawyer who fled West Darfur to Chad in June.
Building a case
Kushayb faces 31 counts of war crimes and crimes against humanity for acts that he allegedly committed between 2003 and 2004.
At the time, he was commanding one of the Arab tribal militias that the government outsourced to crush an insurgency by mostly non-Arab armed groups who were rebelling against Darfur’s political and economic marginalisation.
Many of those Arab militias, known as the Janjaweed, were later repackaged into the RSF in 2013.
Since the conflict in Sudan broke out in April, some of the worst atrocities have been in West Darfur.
— Human Rights Watch (@hrw) July 15, 2023
The indictments against Kushayb are supported by 56 witnesses who appeared before the court when Khan presented his case in April.
Despite the mounting evidence, Emma DiNapoli, a human rights lawyer who focuses on Sudan, suspects that Kushayb’s lawyers will argue that he did not receive training in international human rights law and that he did not commit crimes that violate Sudanese law.
“Those would be bad arguments [if they make them] because crimes like genocide, war crimes and crimes against humanity are all customary law,” DiNapoli told Al Jazeera.
Meanwhile, human rights monitors in Darfur are gathering evidence of new crimes committed since the outbreak of the war on April 15. In July, activists told Al Jazeera that they welcomed Khan’s announcement that he was launching a new probe.
But Somaya Amin*, an activist who fled Darfur to Uganda in May, said that the court must assume a more active role in helping monitors document evidence.
“We need help with classification and documentation. We need help from the court in order to build cases against criminals [from the RSF and the army],” she told Al Jazeera over the phone.
“We are asking the court to listen to the voices affected by this war and to especially investigate reports of sexual violence,” she added.
Fear of reprisal
Some activists fear that any sentence against Kushayb or new indictments issued by the ICC could put more people at risk.
Ahmed, the lawyer now in Egypt, told Al Jazeera that there is a precedent of human rights monitors and witnesses of atrocities being threatened and killed.
She referenced an attack on a camp housing non-Arab, internally displaced people in January 2021 in West Darfur, where Arab militias and RSF fighters killed more than 160 people, according to Amnesty International.
Human rights lawyers from West Darfur said that about 20 of the victims were killed for opening up police reports against Arab fighters and RSF commanders who attacked the same camp a year earlier.
“The attackers came to kill the witnesses in their homes after threatening them [for weeks] over the phone,” she told Al Jazeera. “The others that didn’t die in the attack refused to open new cases against the perpetrators.”
The RSF and allied Arab militias are accused of having settled more scores during the war. In May, they killed attorney Khamis Arbab, according to activist groups and people close to him, for his role in building cases against RSF fighters for involvement in attacks on displacement camps.
Sharif, who was his friend and colleague on the case, warned that activists should think twice before helping the ICC gather incriminating evidence. He worries that the court won’t be able to protect communities from reprisal.
“I’m scared of anyone submitting documents or evidence to the court or cooperating with the court,” he told Al Jazeera from a refugee camp in Chad.
“I’m scared that we’ll all get killed due to the procedures of the ICC.”
The ICC is tasked with pursuing justice for the gravest crimes in the world and should not be expected to deter abuses, said Mohamad Osman, Sudan researcher for Human Rights Watch.
He said that the task of protecting civilians was the mandate of the joint United Nations and African Union peacekeeping mission (UNAMID). However, the UN Security Council terminated UNAMID’s mandate at the start of 2020, despite mounting violence in Darfur.
“The failure to protect civilians is more due to the lack of peacekeepers than the ICC,” Osman said.
DiNapoli added that the court can at least protect witnesses who testify by using voice or face distortion and pseudonyms. As a last resort, the court could also relocate witnesses and their families if they are believed to be in grave danger.
However, the ICC cannot protect entire communities or activists and has no power to provide security for anyone not involved in a case.
“We’re coming up against the limits of what the ICC’s protection mandate can do,” DiNapoli said.
Despite the danger, Ahmed believes that many human rights monitors will help the court since they realise that violence will not stop until perpetrators fear repercussions.
That’s why she and many others hope Kushayb gets convicted.
“If the ICC sentences Kushayb, then his victims will finally get their right to justice,” she told Al Jazeera.
“His victims will rejoice.”
*Names have been changed to protect the identities of interviewees for security reasons