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At Long Last, the First International Criminal Court Trials on War Crimes in Darfur

28 Apr 2022
By Dr David Dorward
The ICC Chief Prosecutor Luis Moreno-Ocampo presented the Report of the Office of the Prosecutor on its investigations in Darfur, Sudan, to the UN Security Council (UNSC) in December 2010.  Credit: Peter de Groot/CICC,

The International Criminal Court (ICC) has spent nearly two decades pursuing those accused of war crimes during the 2003-2004 civil war in the Darfur region of Sudan. The protracted prosecution has become embroiled in the complex cultural politics of Sudan.

Sudan came to independence in 1955, at the time the largest country in Africa. Yet it had never been a unitary state. Instead, power was concentrated in a small political elite in the capital, Khartoum. Over decades of British colonial rule, Sudan had been administered as three quite distinct cultural regions. First, various Muslims groups who saw themselves as “Arabs,” living along the Red Sea and the lower Nile Valley. Second, the diverse non-Muslim Nilotic African tribes in the South. A third region could be found in the West, in what had been the precolonial sultanate of Darfur, the Fur and other African Muslim peoples.

Despite its strategic location on the Red Sea, Sudan remained a backwater until the discovery of oil in the south in 1978.  Sudan became a prime example of the “resource curse,” as oil revenue fuelled power struggles, ethnic clashes, and corruption.

General Omar al-Bashir and the National Islamic Front, led by Hassan al-Turabi, came to power in a coup in 1989. They established a repressive regime based on oil-revenue patronage and Islam as a vehicle for Sudanese nationalism. The Islamisation policy increased tensions and eventually led to war against the non-Muslim peoples of southern Sudan.

The civil war with the south spilled over into Darfur, where drought had led to clashes between Fur farmers and nomadic “Arab” camel herders over access to pasture and watering sites. The al-Bashir regime supported the migratory Arab pastoralists in divide-and-rule ethnic politics. By 2003, opposition in Darfur had mobilised behind two competing rebel groups, the Sudan Liberation Movement (SLM), supported by Muammar Gaddafi of Libya, and the Justice and Equity Movement (JEM), with a more radical agenda for greater local autonomy, human-rights, and revenue-sharing within Sudan. Both were fighting for a seat at the oil revenue negotiating table, a direct challenge to the central government in distant Khartoum.

In January 2005, a peace accord, brokered by the United States, the United Nations (UN), and the African Union, agreed to divided oil revenue equally between the central government in Khartoum and a semi-autonomous regional government in southern Sudan. However, the agreement marginalised Darfur, denying the region a direct share of oil revenue.

The al-Bashir government armed local “Arab” militias, the Janjaweed, in their attempts to suppress the Darfur rebellion. Various international human rights organisations documented accusations of ethnic cleansing by both the Janjaweed and government forces. Civilian casualties numbered in the hundreds of thousands.

The oil agreement broke down, and protracted civil war eventually led to the independence of South Sudan in 2011. The relationship has been marked by ongoing disputes over oil-revenue sharing — 75 percent of the oil comes from South Sudan but is piped northward through Sudan to a port on the Red Sea.

The Sudan is not a party to the 1998 Rome Statute establishing the ICC, but in 2005, the UN Security Council referred several prominent Sudanese to the ICC for alleged war crimes and crimes against humanity during the war in Darfur. While a number of those initially accused, including members of the rebel Sudan Liberation Movement (SLM), have subsequently died, the ICC has outstanding warrants against five individuals.

First, and most prominent is Omar al-Bashir, former president of Sudan. In 2009, he became the first head of state to be charged with genocide. Second is Ahmed Harun, formerly security chief and governor of Southern Kordofan state. Third, Abdel Raheem Mohammed Hussein, former defence and interior minister during the worst period of the atrocities in Darfur. Fourth, Ali Mohanned Ali Add-Rahman, also known as Ali Kushayh, the former leader of the pro-government Janjaweed militia. Finally, Abdallah Banda Abakaer, the leader of rebel Justice and Equity Movement (JEM) in Dakar, who was charged with war crimes over a 2007 attack on a UN-African Union peacekeeping mission.

In 2018 and 2019, peaceful protest movements erupted across Sudan over rising costs of living, political oppression, corruption, and demands for government reform. On 11 April 2019, the al-Bashir government was overthrown in a coup by military officers seeking to retain their power and privileges. The military refused to negotiate with protest leaders and on 3 June 2019, fired on protesters outside the military headquarters in Khartoum. Following international protests, a power-sharing agreement led to the formation of a civilian-led transitional government, pending a proposed national election. Al-Bashir and 27 former officials were set to stand trial over the 1989 coup. The transitional government signed the Juba Peace Agreement with both the Justice and Equity Movement (JEM) and the Sudan Liberation Movement (SLM), bringing them into the transitional government, and proposed a special court on crimes in Darfur and cooperation with ICC. The military were accused of plotting several coups and refused to cooperate. However, a key factor in military opposition to the transitional government was undoubtedly the move to reclaim public assets distributed as patronage under al-Bashir.

On 25 October 2021, army chief General Abdel Fattah al-Burhan staged yet another coup, detaining members of the transitional government and establishing an overarching military Sovereign Council. Many former al-Bashir functionaries were restored to office, sporadic state-sponsored violence resumed in Darfur, and reforms, such as efforts to reclaim public assets, were abandoned. Many of the former Janjaweed militia responsible for atrocities in Darfur were recruited into the feared Rapid Support Forces commanded by strongman General Mohamed Hamdan Dagalo, the deputy leader of the military government. Nevertheless, the United States agreed to lift sanctions against Sudan after it agreed to normalise relations with Israel in 2021. Popular protests have continued and been met with brutal armed oppression. Ordinary people continue to suffer, and annual inflation hit 300 percent in February 2022.

The ICC does not try individuals in absentia. While the military Sovereign Council signed a memorandum of understanding in June 2021 giving the ICC access to Sudan, it has effectively stalled the transfer of al-Bashir and his two former ministers to the ICC. Many in the current military government fear ICC trials may implicate them in crimes against humanity.

The former JEM rebel leader, Abdallah Banda Abakaer, had a pretrial hearing in 2014, but subsequently disappeared and remains at large. Only Ali Mohanned Ali Add-Rahman (Ali Kushayh), the former leader of the pro-government Janjaweed militia who was living in exile in the Central African Republic, has surrendered himself to the ICC, doing so in June 2020. He feared extradition to Sudan, a trial under the transitional government, and a potential death penalty. His pretrial hearing was in May 2021. After the military coup in October, he filed an appeal, which was rejected in November. His trial, the first ICC trial for crimes in Darfur, commenced on 5 April 2022 in The Hague. He has pleaded not guilty to all 31 counts of war crimes and crimes against humanity, initially claiming “mistaken identity.”

The evidence against Ali Kushayh in an open court may increase pressure on the military junta in Sudan to hand over the others they hold in custody, but that is unlikely.

Dr David Dorward is the former Director of the African Research Institute, an Honorary Associate of LaTrobe University and a past President of the African Studies Association of Australasia and the Pacific.

This piece is published under a Creative Commons Licence and may be re-published with attribution.