Ali Mohammed Ali Abd-Al-Rahman

15.03.2012 ( Last modified: 27.05.2016 )
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facts

Ali Kushayb is believed to have been born in 1957. His father is from the Taisha tribe from west Darfur and his mother comes from southern Sudan. He was one of the most important militia leaders in the whole Wadi Salih area to the west of Darfur.

In this position, Ali Kushayb had control over the northern regions of Garsila and Deleig, to the south over the town of Mukjar as far as the border with Chad and to the west over the region of Kass up to Shattaya.

At the time of the events referred to in the indictment, Kushayb was said to be the Commander of thousands of Janjaweed militiamen. In the militia command structure, he had the rank of “Aqid al Oqada” (colonel of colonels) and was also known as the “Emir des Moudjahidine” or, in other words, as “Chief of the Religious Combatants”.

On or about August 2003, Kushayb was formally given a position in the army and always introduced himself to other military personnel as a member of the Popular Defence Forces (paramilitary reserve units of the army, generally described as militia units having had military training)

According to the material produced as evidence by the prosecution, Ali Kushayb issued orders to the Janjaweed militia and to the army to carry out numerous criminal acts against the civilian population, including mass rape and other sexual brutality, inhumane treatment, murder, looting of houses and marketplaces and forced transfer of people.

The crimes invoked in the indictment were allegedly committed between August 2003 and March 2004 during attacks against four towns and villages, namely Kodoom, Bindisi, Mukjar and Arawala (in the west of Darfur).

The Darfur conflict has been going on since 2003. According to UN-sources, at least 200’000 people have been killed and more than 2 million are thought to have been displaced.

The crimes investigated by the Prosecutor took place during attacks on the towns and villages of Kodoom, Bindisi, Mukjar and Arawala in West Darfur between August 2003 and March 2004.

On 31 March 2005, the United Nations Security Council adopted Resolution 1593, whereby it deferred the Darfur situation to the Chief Prosecutor of the International Criminal Court (ICC) based on Article 13 let.b of the Rome Statute of the ICC.

legal procedure

On 31 March 2005, the United Nations Security Council adopted Resolution 1593, whereby it deferred the Darfur situation to the Chief Prosecutor of the International Criminal Court (ICC) based on Article 13 let.b of the Rome Statute of the ICC.

After a thorough preliminary investigation of the available information, the Court decided to open up official investigations on 1st June 2005 (Art. 15 and Art. 53 of the Rome Statute).

On 27 February 2007, after an initial 20 month investigative phase into the crimes allegedly committed since 1st July 2002, the Prosecutor forwarded his conclusions and documents to the First Trial Chamber of the ICC. In a 94-page long document, the prosecutor requested that charges be brought against Ali Kushayb and Ahmad Muhammad Harun.

Under Art.17 of the Rome Statute, a case is not admissible before the ICC when it is the subject of an investigation or prosecution on the part of a State having the judicial competence to take action, unless such State is truly unwilling or unable to carry out such investigation or prosecution.

As proceedings were said to be underway in Sudan, the Prosecution needed to verify whether they were in fact being conducted in a correct manner.

This is of particular importance in the case of Ali Kushayb. On 19 January 2005, a Judicial Investigations Committee (JIC) was set up by the Sudanese government, with the mandate of overseeing the cases mentioned in the report of the National Commission of Inquiry (NCOI) and the UN International Commission of Inquiry, in order to determine for which cases complaints and arrest warrants should be filed.

Given that an investigation appeared be underway against Ali Kushayb, the Prosecutor of the ICC tried to obtain more detailed information on the inquiries. Kushayb had allegedly been imprisoned since 28 November 2006.

He had appeared once before the JIC concerning alleged involvement in five cases, namely Shattaya and Deleig (West of Darfur), as well as Nakuseh, Tanako, Arawala. Kushayb is thought to be responsible for participating in the attacks against these localities and in particular for his participation in the following acts:

-in March 2003 widespread pillaging and ransacking of 27 villages surrounding Shattaya and Kas, during which 371 persons, for the most part civilians, were killed;

-in November 2003 the attacks against Nankuseh (west Darfur);

-in December 2003 the attacks against Tanako (west Darfur) resulting in the deaths of around 130 people;

– an attack against the village of Arawala (west Darfur), during which murders and the forced displacement of the civilian population took place.

However, according to the JIC, no charges had been brought against him for the above cases. According to the Prosecutor, the JIC was to begin the second phase of its investigations in March 2007.

On 19 September 2007, Interpol issued a Red Notice against Kushayb and Harun.

On 1st October 2007, the Sudanese government announced the release of Kushayb who had allegedly been detained by the government since November 2006 on the grounds of alleged violations of Sudanese laws. In its announcement, the government declared that the ICC did not have jurisdiction over Sudan since it was not a State Party to the ICC, adding that the release of Ali Kushayb was a clear indication that there was no tangible evidence against him.

context

The conflict in the western Sudanese province of Darfur began in 2003 as tensions surrounding the use of land and water resources exploded between the sedentary tribes (Four, Masalit and Zaghawa, for example) and the nomadic Arab tribes.  Two armed rebel groups were created to fight for additional rights for the disadvantaged tribes of African origins.  The Sudanese government reacted with massive military operations and by supporting and arming the nomadic Arab militia, the Janjaweed (also known as “Fursan,” “Moujahadeen” and “Bashmerga”) in order to combat these rebels. This led to extremely violent violations of human rights as well as numerous attacks on civilian populations and targets. The report of the United Nations investigative commission on Darfur, published in January 2005, as well as those of numerous NGOs testify to the occurrence of mass executions, mass rapes, the expulsion of the civilian population, the destruction of villages by the Janjaweed, some with the direct support of the Sudanese government, but all with at least its tacit approval. Both sides of the conflict have mainly attacked civilians. It is estimated that 300,000 people have lost their lives since the beginning of the conflict and that more than 2.7 millions have been displaced. During 2008, there were more than 315,000 new internally displaced people and refuges in Eastern Chad.

After a number of unsuccessful negotiations, a peace accord was finally signed on May 5, 2006 in Nigeria with the help of the African Union between the Sudanese government and one of the rebel groups, Minni Minnawi’s Sudanese Liberation Army (SLA).  Part of the SLA, led by Abdul Wahid, as well as Khalil Ibrahim’s Justice and Equality Movement refused to sign on to the accord at first, but finally ratified it in June 2006.

However, the situation in Darfur quickly unravelled after the signature of the peace treaty: the rebel groups who had not participated in the accord organized themselves into the National Redemption Front (NRF) and attacked an army stronghold in July 2006. The government responded by sending additional troops to the Darfur region in August of the same year. This led to more violent attacks against civilians by both sides.

Even measures taken by the international community have not succeeded in helping the situation. African Union troops stationed in the Sudnan since the end of August 2006 (AMIS) have not been able to stop the massacres and have themselves been under attack. Through resolution 1706 (2006), the United Nations Security Council authorized the transfer of UN troops (UNMIS) to the region. The Sudanese government refused this movement of personnel. By November 2006, African Union and UN troops joined forces in a hybrid mission which is still in Sudan today.

United Nations’ Security Council resolution 1593 (2005) compelled the Chief Prosecutor of the International Criminal Court to investigate alleged crimes in the Sudan. This was not well receives in Khartoum. In fact, Sudanese authorities have refused to comply with the ICC’s investigtion even following injunctions to do so by this court. Although the Sudan has not ratified the Rome Statute, it is obliged to comply with the ICC because resolution 1593 was adopted under Chapter 7 of the United Nations Charter. The day after the investigation began at the ICC, the Sudanese government created the Special Criminal Court on the Events in Darfur. A Human Rights Watch report published in June 2006 claimed that this parallel special court was created solely to derail the ICC investigation by abusing the principle of complimentarity enshrined in Article 17 of the Rome Statute.