On June 9, 2020, Sudanese Militia leader Ali Abd Al-Rahman, also known as Ali Kousayb, surrendered himself to International Crime Court (ICC) authorities. The event occurred thirteen years after the warrant for his arrest was first issued, on April 27, 2007. Koushayb’s alleged crimes occurred between 2003 and 2004 during the Darfur conflict as part of his involvement in the counter-insurgency efforts of the Sudanese government. Koushayb’s trial will be the first ever held for crimes committed by the Sudanese government during this conflict.
The conflict itself was a rebel-led ethnic effort by sub-Saharan Sudanese groups acting on complaints of oppression against an Arab-dominated Khartoum. The response of Omar Al-Bashir’s regime at the time was aerial bombardment and funding militias. Three hundred thousand people were killed; 2.7 million people were displaced. It was in this context that the United Nations established the International Commission of Inquiry on Darfur. When the Commission discovered evidence of crimes against humanity and war crimes, in January of 2005, they recommended the referral of the case to the ICC. The United Nations security council accepted this referral in March of the same year. When the ICC was given access to the information collected by the inquiry, the official investigation opened on June 6, 2005.
Koushayb allegedly commanded one of the militias involved in the conflict, gaining the moniker as the “colonel of colonels.” He is accused of enlisting and arming fighters, and funding, and providing supplies to the Janjaweed militia. He supposedly participated in clashes in Kodoom, Bindist, Mukjr, and Arawala, where the killing, rape, and torture of civilians occurred. The ICC alleges that he personally committed such crimes. He is also being tried for engaging in scorched-earth tactics as a coordinator for these aerial attacks. There are 53 total charges against him, including 22 counts of crimes against humanity. These charges include charges of murder and persecution. He is also charged with 28 counts of war crimes, including attacking of civilians, rape, and destruction of property. A warrant issued covertly in 2018 also contained three new charges of war crimes and crimes against humanity that were allegedly committed in the Deleig in March of 2004.
Recent developments in peace talks between Sudanese military leaders and Darfur rebel groups could explain Kushayb’s sudden surrender to ICC authorities. Kushayb is thought to have been living in Rahad El Berdi in South Darfur until the transition into the current Sudanese government. Fearing arrest, he escaped to the Central African Republic. Since the success of the Sudanese Uprising in toppling the Bashir regime earlier this year, new leadership could threaten the protection of those who worked in conjunction with Bashir. Current Sudanese military leaders have discussed the possibility of handing over such war criminals in peace talks with Darfur rebel groups. A charge in Sudan could lead to execution, whereas the ICC’s maximum sentence is life.
Kushayb initially heard his charges via video link on June 25, 2020, due to restrictions on physical appearances in court as a result of Covid-19. During the proceedings, Koushayb asked to be regarded by the name “Ali Muhammad Abdelrahman.” While Koushayb acknowledged that he was informed of such charges, he maintained that the charges were untrue. The confirmation hearing was scheduled by Judge Aitala for December of 2020.
The prosecutor of the ICC, Fatou Bensouda, released a statement on the surrender, stating that “the victims in the Darfur situation deserve to finally have their day in court.” The office of the Prosecutor also emphasized that five remaining arrest warrants remain in force, including one for former leader Omar Al-Bashir. Bensouda said in her statement that Sudan is obligated to provide evidence of a genuine investigation against the perpetrators or transfer the suspects.
The trial and investigation are governed by the Rome Statute, the document that established the ICC. The statute emphasizes that the jurisdiction of the court arises when the state is unwilling or unable to assume responsibility. The only exception, which is in the case of Darfur, comes with the referral from the United Nations Security Council.
This surrender works to establish the legitimacy of the court. As an international organization, the will of the court’s authority is subject to both the sovereignty of nations and also the ability for the court to secure the alleged criminals. In the past, the accused have been able to evade the court by being protected by country leadership. It is difficult to say that Kushayb would have surrendered himself were it not for the recent transfer of power in Sudan.