ICC: New witnesses testify today against Janjawid leader of Darfur Ali Kushayb

The trial of former janjawid leader of Darfur, Ali Muhammad Ali Abdelrahman (known as “Ali Kushayb”), who was charged with 31 counts of war crimes and crimes against humanity between 2003 and at least 2004, is due to resume today International Criminal Court (ICC) in The Hague, Netherlands.

Witness in the 31st indictment (witness P-0916) will testify about the alleged attacks by armed rebel groups against Mukjar during the period from July to August 2003, and the campaigns launched during the month of February 2004, in during which the men were arrested and detained in Mukjar from August to October 2003.

Kushayb and his militia are accused of attacking villages, including Kudoum and Bindisi, which resulted in the displacement of civilians from these villages to Mukjar and the alleged detention, seizure and execution of villagers, including community leaders , in Mukjar in the period from February to March 2004.

During the trial, previous witnesses gave various examples of atrocities committed by the janjawid in Darfur, explaining in one instance how they “looted and burned villages”.

*Since the start of pretrial proceedings, Ali Kushayb’s defense has always pivoted on “mistaken identity”, claiming that he is not the person who perpetrated these crimes. However, on the day the trial opened on Tuesday, lead prosecution counsel Julian Nicolls told the court that the prosecution intended to call several witnesses (named only by anonymity number) , who will testify that the accused is indeed Ali Kushayb, the dreaded so-called “colonel of colonels”.

On November 2, 2021, the ICC Appeals Chamber unanimously dismissed an appeal by Ali Kushayb, against the decision of Pre-Trial Chamber II of May 17, 2021, dismissing a challenge to the jurisdiction of the Court by the Kushayb’s defense attorney.

The ICC Appeals Chamber, composed of Judge Piotr Hofmański, presiding over this appeal, Judge Luz del Carmen Ibáñez Carranza, Judge Perrin de Brichambaut, Judge Solomy Balungi Bossa and Judge Gocha Lordkipanidze, decided unanimously to dismiss the appeal against the Pre-Trial Chamber II Decision of 17 May 2021 on the Defense’s objection to jurisdiction (objection to jurisdiction).

Presiding Judge Piotr Hofmański, in dismissing the Defense’s four grounds of appeal, the Appeals Chamber noted, inter alia, that it found no error in the reasons given by the Pre-Trial Chamber defining a “situation before the Court as defined in terms of temporal, territorial and in some cases personal parameters. It also noted that the non-funding by the United Nations of the Court’s activities resulting from a referral by the Security Council does not invalidate UNSC resolution 1593 which referred the situation to the ICC. As to the alleged failure of the Pre-Trial Chamber to consider the Security Council’s lack of logistical and security support to the Court in Sudan, the Appeals Chamber finds that the Defense has failed to demonstrate how this error of law alleged relates to the jurisdiction of the court.

Finally, and referring to the principle of legality, nullum crimen sine lege, the Appeals Chamber found that the referral of the situation to Darfur, Sudan, had taken place following serious violations of human rights and humanitarian law criminalized under international law at the time.

The Appeals Chamber also found that the crimes covered by the Statute were intended to be generally representative of the state of customary international law at the time the Statute was drafted. This weighs heavily in favor of the foreseeability of being prosecuted for such crimes, even in relation to conduct that occurred in a state not party to the Statute. Judge Ibáñez expressed her separate views on this ground of appeal and, while concurring with the decision reached by the majority, she held that, in her view, the Court’s jurisdiction over conduct in the case predates UNSCR 1593, which merely triggered the jurisdiction of the Court and therefore there is no need to refer to other sources of law.