By Janet Sankale
The International Criminal Court’s Pre-Trial Chamber II recently held confirmation of charges hearings in the case The Prosecutor v. Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”).
This is an important step in the process of transitional justice at the International Criminal Court (ICC) and determines whether the prosecution’s evidence meets the threshold to send the case to trial.
The hearings for the Abd-Al-Rahman case were held from May 24-26, 2021 at the seat of the ICC in The Hague. The prosecution and defence counsels, as well as the legal representatives of the victims made their oral submissions before the judges. The judges of the pre-trial chamber started deliberations after the conclusion of the sessions and are expected to deliver their written decision within 60 days.
The judges have three options. First, they can confirm all or some of the charges they consider to be supported by sufficient evidence (i.e. substantial grounds to believe the suspect is guilty) and commit the suspect to be tried before a trial chamber.
Secondly, the judges can decline the charges if they find insufficient evidence to support them in court, and stop the proceedings against Abd–Al-Rahman.
The judges also have the option of adjourning the hearing and requesting the Prosecutor to provide further evidence, conduct further investigations, or amend any of the charges.
If the pre-trial chamber judges find that there are substantial grounds to believe that the person committed the alleged crimes, they can confirm the charges, either in full or in part, and allow the case to enter the trial stage.
In her opening statement on Monday 24, Prosecutor Fatou Bensouda stated that Ali Muhammad Ali Abd-Al-Rahman, commonly known as Ali Kushayb (according to the prosecution, but contested by the defence) is charged with 31 counts of crimes against humanity and war crimes. These include the crimes of torture, rape, and murder of civilians in the Wadi Salih and Mukjar localities of West Darfur State, between August 2003 and April 2004.
The prosecutor described Abd-Al-Rahman as “feared and revered” in equal measure as the “colonel of colonels”, and that he was a senior leader of the Janjaweed militia in the Wadi Salih and Mukjar localities during the period.
Bensouda noted that confirmation of charges was an important step in the process of achieving justice for the victims. “The evidence shows that Abd-Al-Rahman was a knowing, willing, and energetic perpetrator of these crimes,” she told the court. According to the prosecution, he played a crucial role, leading attacks, committing murders, and ordering other murders. The Prosecutor asked the chamber to confirm all the charges it had presented and commit the case for trial.
Cyril Laucci led Abd-Al-Rahman’s defence team, while 151 victims were represented by lawyers Paolina Massidda, Amal Clooney, and Nasser Mohamed Amin Abdalla. Laucci objected to the Prosecutor’s charges against his client and said he intended to contest the ICC’s jurisdiction over crimes committed in Darfur because of issues with the UN referral.
The United Nations Security Council (UNSC), through Resolution 1593, referred the situation in Darfur, Sudan, to the Prosecutor of the ICC. Although Sudan is not a party to the Rome Statute, it is a member of the United Nations (UN). The Darfur situation fell under the ICC jurisdiction in March 2005 under chapter VII of the UN’s Charter, which sets out the UNSC’s task to maintain peace and security. It allows the council to “determine the existence of any threat to the peace, breach of the peace, or act of aggression” and to take military and non-military action to “restore international peace and security”.
The Rome Statute allows the UNSC to refer a “situation” to the ICC, as one of the non-military actions at its disposal.
The referral was to investigate alleged crimes against humanity, war crimes, and genocide committed since 2002 by Sudanese officials, Janjaweed militia, and rebel forces. Abd-Al-Rahman is part of the Sudan situation together with former Sudanese president Omar al-Bashir, Ahmad Harun, Abdel Raheem Muhammad Hussein, Muhammad Hussein Abdallah Banda Abakaer Nourain (Abdallah Banda), and Bahar Idriss Abu Garda.
Harun, Nourain, and Hussein are still at large. The Pre-Trial Chamber declined to confirm the charges against Garda and the case is considered closed until or unless the Prosecutor presents new evidence.
The violence in Darfur began in 2003, when rebels protested against what they contended as the Sudanese government’s disregard for the western region and its non-Arab population. In response, the government, under the presidency of Omar al-Bashir, equipped and supported Arab militias – which came to be known as Janjaweed – to fight the insurrection in Darfur. The militias also terrorised civilians and prevented international aid organisations from delivering to the region much-needed food and medical supplies.
The ICC has accused Bashir of orchestrating genocide, crimes against humanity, and war crimes in Darfur. The ICC issued warrants of arrest on March 4, 2009 and July 12, 2010. Bashir was removed from office in 2019 and has been in the custody of the Sudanese government pending his transfer to the ICC, where his case remains in the pre-trial stage.
The ICC issued two arrest warrants against Abd-Al-Rahman, who voluntarily surrendered in the Central African Republic and was transferred to ICC custody on June 9, 2020. His initial appearance before the ICC took place on June 15, 2020, to verify his identity and ensure that he was informed of the charges against him and his rights under the Rome Statute. He has since been held at the ICC Detention Centre and has two times been denied provisional release while awaiting trial.
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