How to bring a Sudanese military leader to justice

After neglect for some time, world attention is again reverting to Darfur, Sudan, as horrifying stories emerge of the brutalities going on there. Ironically, that is against the backdrop of a historic happening: the first verdict of the International Criminal Court (ICC) concerning events in the same area more than two decades ago.

The Court examined 1,861 items of evidence and 74 witnesses before ruling last month that Ali Muhammad Ali Abd Al Rahman, better known as Ali Kushayb, was guilty of 27 counts of crimes against humanity and war crimes committed between August 2003 and March 2004. It triggered nightmarish memories of the time when I headed the UN in Sudan with a grandstand view of these atrocities.

The judge spoke with cold authority and obviously suppressed feelings as she dissected Ali Kushayb’s misdeeds: murder, execution, rape, forced displacement, property destruction and pillage, persecution, torture and other inhumane mistreatments, and obscure “outrages against human dignity” that hinted at unspeakable abominations. What else was left in the catalogue of inhumanity?

The judge’s litany was a masterclass for students of abuse and barbarity. Not just to understand what happened and how but, more importantly, why? What causes an educated, respected former Sudanese military officer to turn against the people among whom he has lived all his life? Ethnic hatred appears to be the poison: Ali Kushayb hails from an Arab tribe, and his victims were largely the non-Arab Fur.

At least 300,000 non-Arab Darfuris, mostly of black African origin, were slaughtered and 2.7 million were displaced. The ICC case was important because its investigations showed how modern genocides happen and gave crucial insights for stopping and preventing them.

Through the proceedings sat the elegantly groomed Ali Kushayb, looking like a benign grandfather. His calm academic demeanour betrayed his role beyond the direct perpetration of evil acts to that of designing them and motivating others to carry them out. He reminded me of the genocide commanders I encountered in Kigali central prison – as smart as they were malign.

My own emotions were complicated. On one hand, I felt vindicated – at last. But I felt no triumph as Ali Kushayb was here only because he had surrendered voluntarily, calculating that he was safer under lock-and-key than pursued by friends-turned-enemies when Sudanese politics shifted. Meanwhile, top ringleaders, charged with genocide, remain at large.

Neither did I feel relief and hope because Darfur continues to be the centre of Sudan’s continued agony with no resolution in sight. The mass atrocities reported in the North Darfur city of El Fasher last week add to the long list of human rights abuses that have taken place in the country since war erupted in April 2023.

I wondered if my mood came from the austere setting of the Court, which resembled the mortuary of the hospital where I once practised medicine, and the honourable judges were like pathologists explaining their diagnosis while poring over an interesting body. Sudan is not dead, but millions endure a living death.

I dwell so much on feelings because those are all that is left two decades after the first genocide of the millennium wiped out everything else. Ali Kushayb is in his late 70s and the survivors are ageing fast too. Will the verdict give them peace and closure before they pass away?

My experience from talking to other genocide survivors from the Holocaust, Rwanda, Srebrenica, as well as Iraqi Yazidis and Cambodians, is that the past never goes away. The passage of time provides more space to hurt, even if this dulls a little. Whether accountability through justice provides healing is not straightforward.

What are the other objectives of justice in the types of cases that reach the ICC? The Court is lauded for pioneering a victim-centred approach, allowing 1,591 of them to participate in Ali Kushayb’s trial. The theory is that processing their trauma through an objective process that establishes the truth and counters denials and misinformation restores victim dignity. Commendable, but broken hearts are stubbornly resistant.

Can money mend the shattered? Reparations are intended to make amends to victims of international crimes. The UN General Assembly has comprehensive principles for restitution, rehabilitation and compensation for damage, loss and injury. This is accompanied by the notion of “satisfaction”, which means acknowledgement of misdeeds and “commemorations and tributes to victims”, alongside “guarantees of non-repetition”.

As is often with UN norms, application is challenging. How does one assign monetary value to the trauma from ethnic cleansing, torture or multiple rapes? And who is to pay? In principle, the perpetrator, Ali Kushayb, faces a potential life sentence and is hardly capable of stumping up. Perhaps it should be the Rapid Support Forces as the direct successors of the Janjaweed in which Ali Kushayb was a commander? The RSF is wealthy with a monopoly over Darfur’s riches, including gold, but they can hardly be compelled while war and atrocities continue.

Darfuris can access the ICC’s Trust Fund for Victims, established by signatories to the Rome Statute. But its 2023 report indicated revenue of €7.6 million ($8.7 million) and expenses of €10 million. It is capable of little more than urgent humanitarian support for the most desperate cases linked to Court activities. Even if the victims' fund was properly resourced – unlikely under present circumstances – there is a risk of perverse signalling to war criminals and genocidaires. Not obliging them to shoulder the costs of their actions – when the international community picks up the reparation – feeds impunity. The deterrent benefits of justice are not achieved this way.

So, if the benefits for victims are not clear, what about justice’s wider contribution to peace? Politicians and diplomats say that the negotiations necessary to end wars are hampered by threatening talk of accountability. So, make peace first, and then think of justice. Meanwhile, the human rights side insists that unprincipled compromises unravel peace agreements. The quality and sustainability of peace depend on integrating justice.

The experience of diverse places such as Latin America, South Africa, Rwanda, Sierra Leone, Cambodia and latterly Ethiopia/Tigray is mixed. Whether peace is sustained depends more on whether the original root causes of conflict are tackled and less on whether justice for wartime misconduct is administered.

The type of justice is also important. Local and traditional mechanisms closest to where the harm occurs bring greater satisfaction than proceedings in distant courtrooms. However, when countries are unable or unwilling to deliver justice, international mechanisms such as the ICC are unavoidable, used sparingly and only for the highest-level criminals.

What does this say about the utility of the ICC verdict on Ali Kushayb? It will not bring peace to Sudan any time soon. It also appears unlikely to deter repeat atrocities as witnessed in Sudan in the past two years. But could it worsen the situation if combatants intensify their efforts, learning from history that justice generally favours the winning side?

With so many concerns and disappointments from the playing out of justice in many contexts, is the ICC process worthwhile? Perhaps this is an irrelevant question as the thirst for justice is innate and unquenchable, and aggrieved people will pursue it however they can. The more options they have, the better.

It is worth recalling, however, that the best justice is blind. That means not just impartial but pursued for its own sake – regardless of costs and consequences. Where that takes Sudan is unknown and Darfuris will have to wait a while for the monument to their suffering. Regardless, their quest for justice – whatever the delays and denials along the way – remains vital for the preservation of humanity – theirs and ours.