The International Criminal Court (ICC) will hold hearings starting on December 7 to determine whether to confirm charges against Ali Muhmmad Ali Abd-al-Rahman, a former commander of the Janjaweed, a government-backed militia group accused of committing atrocities in Sudan’s western region of Darfur.
The Single Judge of Pre-Trial Chamber II, Rosario Salvatore Aitala, announced the date of the confirmation of charges hearings at the tail end of Monday’s court session. Abd-al-Rahman made his first appearance before the ICC on Monday following his handover last week to the court in execution of two arrest warrants. The oldest of the arrest warrants against Abd-al-Rahman was issued on April 27, 2007.
Abd-al-Rahman surrendered himself in the Central Africa Republic after being a fugitive for 13 years. The details of who he surrendered himself to, where this happened and when he surrendered are not publicly known. But Central African Republic authorities handed him over to the ICC on June 9 and Abd-al-Rahman was then transferred to the ICC Detention Centre.
When Abd-al-Rahman appeared before Judge Aitala he wore glasses unlike the only image of him the court had in which he did not wear glasses. In the court’s past image it also was difficult to tell if Abd-al-Rahman was bald-headed because he had a white turban on. On Monday, Abd-al-Rahman was bald-headed, wearing a tawny suit and a striped maroon and white tie.
Abd-al-Rahman was not in Courtroom III but he took part in Monday’s hearing via video link from the ICC Detention Centre. This was one of the measures the court took to reduce the spread of Covid-19. Other measures included people in the court sitting some distance from each other.
For instance, the prosecution team normally sit together side by side and in one row behind the other. On Monday, ICC Prosecutor Fatou Bensouda was seated in one row alone and the lead prosecutor in the case against Abd-al-Rahman, Julian Nicholls was seated in the column of seats to Bensouda’s right. Similarly, the court officers usually sit in front of the judges. On Monday, they were seated on a row in front of Judge Aitala, but to either side of the judge.
Monday’s hearing was for Abd-al-Rahman to identify himself to Judge Aitala; for him to be informed what crimes he is alleged to have committed; and for Judge Aitala to confirm the language Abd-al-Rahman communicates best in.
Abd-al-Rahman told the court on Monday that he was born October 15, 1949. He said Ali Kushayb is not his name. Before Monday’s hearing all court documents used his name Ali Muhmmad Ali Abd-al-Rahman, but also referred to him as Ali Kushayb. Even at the start of Monday’s hearing Judge Aitala referred to him as Ali Kushayb but then changed once Abd-al-Rahman said that is not his name.
Once Abd-al-Rahman identified himself, then Judge Aitala asked the court officer to read the 53 counts of war crimes and crimes against humanity the prosecution allege he committed in Darfur between August 2003 and March 2004 as a commander of the Janjaweed. The prosecution allege Abd-al-Rahman was involved in widespread and systematic attacks on the village of Kodoom and the towns of Bindisi, Mukjar, Arawala and Deleig. The war crimes and crimes against humanity he is alleged to have committed include murder, rape, persecution and pillaging.
The details of the 53 counts of war crimes and crimes against humanity are in two arrest warrants issued against Abd-al-Rahman. The first one was issued on April 27, 2007 and contains 50 counts of war crimes and crimes against humanity Abd-al-Rahman is alleged to have committed. The second arrest warrant was issued on January 16, 2018 and it was unsealed last Thursday. That arrest warrant contains a further three counts of war crimes and crimes against humanity.
Abd-al-Rahman was not required to enter a plea on Monday because the hearing was just for him to be informed of the allegations against him. The ICC Registrar appointed a duty counsel, Cyril Laucci, to represent Abd-al-Rahman on Monday. Now that pre-trial proceedings against him have been began, Abd-al-Rahman may choose to appoint another lawyer to lead his defence team.
After the court officer read the charges Abd-al-Rahman is facing, Judge Aitala then informed him of some his rights as a suspect under the Rome Statute, the ICC’s founding law. The judge also determined that Abd-al-Rahman communicated best in Arabic and assured him that a translator will always be available whenever he wanted to talk to his lawyer or whenever he was in court.
Abd-al-Rahman is the first former government-affiliated person alleged to have committed atrocities in Darfur to appear before the ICC. The court has also issued arrest warrants for former Sudanese President Omar al-Bashir; and former Cabinet ministers Abdel Raheem Muhammad Hussein and Ahmad Muhammad Harun. They remain at large.
The ICC’s Office of the Prosecutor (OTP) investigated the cases against these former government officials and Abd-al-Rahman following a March 31, 2005 United Nations (UN) Security Council resolution to refer the situation in Darfur to the ICC. The Security Council passed the resolution after considering the report of a United Nations commission of inquiry that investigated allegations of atrocities committed in Darfur.
Without the Security Council resolution the OTP could not have investigated the Darfur atrocities because Sudan is not a member state of the ICC. A Security Council resolution referring a case to the ICC is the only way the OTP can investigate grave crimes committed in a non-member state of the ICC. All other ways the OTP investigates such cases require that the crimes in question were committed in the territory of a member state.
In its report on the atrocities committed in Darfur, the UN commission of inquiry said it identified 50 individuals it believed bore the greatest responsibility for those atrocities. The commission gave the UN Secretary General at the time, Kofi Annan, the list in a sealed file and recommended the names be passed on to the ICC prosecutor for further action. The commission also prepared a separate sealed file containing “evidentiary material” that was passed on to the head of the UN Human Rights Commission to pass on to the ICC prosecutor at an appropriate time.
Annan, appointed the five-member commission of inquiry in September 2004, following international outrage at the atrocities being reported to be occurring in Darfur. At the time different organisations estimated that between 15,000 and 30,000 people were killed in Darfur.
In its report, which was submitted in January 2005, the commission of inquiry said the United Nations estimated 1.8 million people had been displaced from their homes in Darfur because of the conflict there. In an August 30, 2004 report to the Security Council, Annan said the conflict in Darfur began in February 2003 as an armed rebellion against the government but it escalated because of “a scorched earth policy,” by armed militias. These militias, backed by the government, became known as the Janjaweed.
On Friday, Judge Aitala ordered the case against Abd-al-Rahman be severed from that of Ahmad Muhammad Harun. The first ICC arrest warrant against Abd-al-Rahman also names Harun in 42 of the counts of war crimes and crimes against humanity.
The judge said it was necessary to take this action because Harun was a fugitive and he had been in court to waive his right to be present during court proceedings. The ICC does not proceed with a court case in the absence of the person who has been charged with crimes. Judge Aitala said proceeding with the case against Abd-al-Rahman in the absence of Harun could result in delays in the case.
“Accordingly, without prejudice to reviewing the situation in light of the relevant developments, it is at this stage necessary to sever the case against Mr Kushayb from the present case … both with a view to protecting Mr Kushayb’s right to a fair and expeditious trial and in the interest of judicial economy,” said Judge Aitala in his Friday decision.
