Ali Kushayb’s Arrest Highlights the Other Side of the U.S.–ICC Relationship

There has been a lot happening over the past couple of weeks, at home and abroad. So it would have been easy to miss the news that earlier this week, Ali Kushayb, a Sudanese war crimes suspect, turned himself in and was transferred to the International Criminal Court. This is a major breakthrough in an investigation that the United States has long supported. But it comes just as the Trump administration has intensified its attacks on the Court, announcing unprecedented steps to sanction ICC officials and their families.

Kushayb — a former commander of the Janjaweed, a militia that worked alongside the Sudanese armed forces in their campaign against the Fur, Massalit, and Zarghawa people in Darfur, Sudan, in the early 2000s — is charged with 50 counts of war crimes and crimes against humanity arising out that campaign.

The victims of those atrocities in Darfur — which include an estimated 300,000 deaths, widespread sexual violence, villages razed, and over a million displaced persons — have waited a long time for this moment. The situation in Darfur was referred to the ICC by the United Nations Security Council over 15 years ago, in March 2005. The United States — which had declared the violence in Darfur to be genocide following an empirical study of refugee accounts — abstained on that referral, allowing it to go forward, even when the Bush Administration was otherwise rather hostile towards the Court.

Kushayb, along with co-indictee Ahmed Haroun, was one of the first suspects for whom the Court issued an arrest warrant in its Darfur investigation, in April 2007 (a second arrest warrant for Kushayb was issued in January 2018). And Kushayb is the only individual from the alliance of Janjaweed and government forces, responsible for the vast majority of atrocities in the Darfur region, to come before the Court. Two leaders of rebel groups have also faced proceedings: Bahr Idriss Abu Garda and Abdallah Banda Abakaer Nourain. A Pre-Trial Chamber refused to confirm charges against Abu Garda, and a trial against Banda is currently on hold. But none of the government officials that have been indicted for the atrocities in Darfur have been transferred to The Hague for trial (although there have been recent suggestions that former President al Bashir, who is currently imprisoned in Sudan after a conviction for financial offences, might be).

Kushayb’s arrest has been welcomed by Darfuri communities and by the new Sudanese government. But it must also be welcome news for the ICC, where well-documented challenges and criticism have overshadowed welcome developments in recent years. It also came just days before the ICC Prosecutor was scheduled to brief the U.N. Security Council on the progress of the investigation in Darfur.

There is a lot to unpack in an event like this, far too much for a single blog post — the logistics of Kushayb’s surrender in the Central African Republic (CAR) alone highlights the importance of cooperation with U.N. peacekeeping missions and multiple states, and the transnational nature of threats addressed by the ICC. But above all, it serves as a reminder that justice for atrocity crimes — whether as an overarching value, or within a given situation — is a long-term objective.

There will often be barriers and opposition to accountability. It is impossible to tell when a breakthrough may come. Investigations require patience. This underscores the value of a permanent institution to investigate and prosecute atrocity crimes. As the Prosecutor put it:

No matter how long it takes or the obstacles placed in our path, my Office will not stop until the alleged perpetrators of Rome Statute crimes are brought to justice. Indeed, while many had either abandoned hope in the situation or actively sought to stifle progress, we maintained our focus and perspective.

The ICC will likely face challenges prosecuting Kushayb 15 years after beginning its investigation. Despite the Prosecutor’s assurance that she “continued to make important progress in the collection of evidence to strengthen our cases, in the Darfur situation,” one must imagine that there were points when the investigation was dormant (especially given that the Prosecutor reported in late 2014 that she was suspending that investigation because the international community had done little to carry out the arrest warrants).

But an ad-hoc body may well have been shut down, or it may have abandoned the investigation altogether, in the face of the consistent opposition from Sudan over those years, making this prosecution impossible when circumstances changed and the opportunity arose.

In short, this moment is what the ICC was designed for: the patient investigation and prosecution of individuals responsible for mass atrocities and organized campaigns of violence directed against civilian populations, where states have consistently refused or failed to act.

There is also a sad irony, however, that this breakthrough in the Darfur investigation comes at a moment when relations between the ICC and the United States are at a new low. The Darfur situation exemplifies how the ICC aligns with and supports U.S. interests. The United States has a long history of supporting justice and accountability for atrocities, dating back to the Nuremberg tribunals. The United States — under a Republican administration — authorized the ICC to investigate the atrocities in Darfur by allowing the U.N. Security Council to refer Sudan to the ICC. The United States supported this investigation for over a decade, resisting attempts to derail it. There has been, and remains, strong bipartisan support in the United States for atrocity prevention.

Yet now, at a moment of critical progress in the very investigation that marked a turning point in the U.S. relationship with the ICC and remains strongly in the U.S. national interest, the Trump administration is launching new, perplexing attacks against the Court. On Wednesday, Secretary of State Pompeo celebrated Gambia’s courage for bringing a case to one international court (the International Court of Justice) “regarding crimes against the Rohingya.” On Thursday, Secretary Pompeo announced an executive order to sanction officials of the ICC, another international court that is investigating crimes against the Rohingya.

There is an inescapable tension here. When the ICC Prosecutor reported to the U.N. Security Council last week on her investigation in Darfur, the U.S. representative barely mentioned the Court in its response — it noted reports that Kushayb has been detained and stated that he must be held accountable without even referring to the ICC. Instead, the United States noted its “longstanding and principled objection” to the ICC exercising jurisdiction over non-party nationals (absent a Security Council referral or state consent), and its concerns over the Afghanistan investigation. But it also stated that these concerns “in no way diminishes the United States’ commitment to supporting accountability for atrocity crimes, violations of international humanitarian law and gross violations of human rights.”

The question is how the United States will resolve this tension? Can the United States find a way to maintain those objections (where they are relevant) without eroding its commitment to accountability or undermining the Court’s activities in the majority of situations where they align with that U.S. interest — not just in Darfur, but in Myanmar, DRC, CAR, Libya, Georgia, or Ukraine?

Image: Protestors outside Downing street after they marched to raise awareness and rally against the crisis in Darfur on September 16, 2007 in London, England. Hundreds of protestors, many of whom are refugees, marched from the Sudanese Embassy on Cleveland Row, to Downing Street, shouting for “Peace in Darfur.” (Photo by Cate Gillon/Getty Images)

 

About the Author(s)

Ben Batros

Consultant on international law and accountability mechanisms with Strategy for Humanity. He served from 2005-2010 as Appeals Counsel at the International Criminal Court. Follow him on Twitter at (@BatrosBen).