Last week the International Criminal Court’s (ICC) Prosecutor Fatou Bensuda was on her last official mission in Dafur, Sudan, before her nine-year term as Prosecutor expires on 16 June 2021. The mission was viewed as symbolic in the ICC’s effort to bring justice for the serious crimes committed in Dafur, from 2003 to 2004, that led the UN Security Council to refer the Sudan situation to the ICC for investigation and prosecution of the perpetrators in 2005. During the mission, the Prosecutor held meetings with key government officials and visited victims affected by the conflict many of whom remain in internal displacement camps, in Dafur.         

The Prosecutor’s visit followed the historic commencement of the first hearing at the ICC, since the Court issued arrest warrants in relation to the Dafur situation against 5 accused persons. The hearing on the confirmation of charges of Ali Muhammad Ali Abd-Al-Rahman, also known as ‘Ali Kushayb’ commenced on 24 May and ended on 26 May 2021. The purpose of the hearing was for the Court to establish if the Prosecution has sufficient evidence to establish substantial grounds that the suspect committed the 31 charges brought against him, before the trial commences. The pre-trial chamber is expected to issue its decision within 60 days after the close of the confirmation of charges hearing.

Ali Muhammad Ali Abd-Al-Rahman, a senior leader of the Janjaweed militia, who with the support of the government, led  attacks on towns and villages, to crush the revolt by civilians that had arisen in the Dafur region against the government, is accused of committing crimes against humanity and war crimes, including persecution, murder, torture and rape. Other accused persons include former President Omar-al-Bashir, who is in custody in Sudan, serving a two year sentence for crimes related to corruption, committed under his leadership.

During the confirmation of charges hearing, the Court heard oral submissions from the Prosecutor, the Legal Representatives of the Victims and the Defence. For purposes of the confirmation of charges hearing the Court allowed 151 victims to participate in this stage of the proceedings. In a situation where the long-term effects of the conflict has as of today, left over 2.8 million people displaced and 480,000 people killed, the 151 victims participating in the proceedings represent just but a very small fraction of the victims of the crimes committed in Dafur, during the 2003 – 2004 conflict. The process of admitting more victims to participate in the case, will re-open if the charges are confirmed and the trial commences. However, previous cases brought before the Court have shown that the number of victims who get to participate in the trial process are equally a small representation of the large numbers of affected populations.

On 20 May 2021, Counsel from the Office of Public Counsel for Victims (OPCV), filed submissions with the ICC Pre-trial Chamber highlighting the concerns of victims, relating to the risk of many victims being locked out of participating in the Ali Muhammad Ali Abd-Al-Rahman case, due to the limited scope of crimes and geographical areas of focus delinenated by the Prosecution in its charges. The OPCV noted that “victims have been waiting for justice for crimes suffered for almost 18 years. Since Mr. Abd-Al-Rahman surrendered to the Court in June 2020, they have hoped that they would be able to contribute to the search for the truth about the events at the origin of their victimization and that their voice would finally be heard in the proceedings”. During the confirmation of charges hearing, Amal Clooney the Legal Representative for victims also questioned whether the charges of genocide and violence against women should have been included.

The Prosecutor in her opening statement at the hearing on 24 May 2021, noted that “the confirmation of charges hearing, was an important step in the process of seeking justice for victims  through fair and transparent proceedings”.

Over the years there has been a lot of rhetoric on how international criminal justice proceedings serve justice for victims, but unfortunately, this has not practically translated to any tangible or meaningful prioritization and engagement of victims. The Rome Statute of the ICC permits victims to participate in proceedings, testify, present evidence, claim reparations, and be availed with protection measures. The ICC has tended to deal with only a small fraction of victims of the situations before it, due to a variety of reasons including, the limited time fixed for allowing victims to submit applications for participation in both the pre-trial and trial proceedings, the lack of effective and sustained outreach to inform victims of their rights and facilitate them to express interest in participation, and limitations introduced by the Prosecution’s failure to comprehensively frame the investigation and prosecution to cover the broadest possible geographic and temporal scope, applicable to the conflict.

Failure to comprehensively frame the case and ensure victims to participate in ICC proceedings, means that a vast majority of victims of international crimes are left out of the possibility of participating in proceedings or claiming for reparations if the case is successful. Although, the ICC also offers collective reparations, which may expand the impact of reparations for affected communities, increasingly there is a shift towards the Court also taking into account individualized needs of victims, these can only be done if from the onset the ICC is able to ensure victims substantively participate in the proceedings.

While the progress made in the commencement of the first Dafur case 19 years since the first arrest warrant issued against Abd-Al-Rahman, and the subsequent visit by the outgoing ICC Prosecutor to Dafur are great steps towards the long-awaited process for justice and accountability. Much more needs to be done, and must be seen to ensure meaningful support, and engagement to ensure victims’ concerns and views are taken into account in the ICC proceedings. The Office of the Prosecutor must also continue to impress upon the Sudan government to surrender other suspects in its custody or reach, whose arrest warrants were issued by the ICC, including former President Omar al Bashir, to stand trial before the ICC, while also urging that the government to develops effective and meaningful avenues for domestic redress for victims, many of whom continue to suffer and live in abject poverty.

Documents for the Ali Muhammad Ali Abd-Al-Rahman case can be found at https://www.icc-cpi.int/darfur/abd-al-rahman

For further information, please contact Stella Ndirangu, Director – Africa, (Victim Advocates International, s.ndirangu@victimadvocatesinternational.org).