As the International Criminal Court (ICC) commemorated over two decades since its establishment, on July 4, 2023, Mr. Karim Khan, the ICC Prosecutor, submitted his thirty-seventh report to the United Nations Security Council (UNSC) in accordance with Resolution 1593 (2005). Addressing the UNSC nine days later, on July 13, 2023, Mr. Khan emphasized the urgent need for justice in war-torn Sudan, warning that history is repeating itself. He called upon the UNSC to take action, stating that we are not on the brink of a human rights catastrophe but rather in the midst of one.

The ICC prosecutor set forth plans to investigate alleged violations of international law arising from the ongoing conflict between the Sudanese Armed Forces (SAF) and the Rapid Support Forces (RSF). He highlighted the court’s close monitoring of reports concerning extrajudicial killings, the destruction of homes and markets, and looting in West Darfur. Additionally, he revealed plans to imminently deploy an investigative team to neighboring countries to gather evidence from those displaced by the violence. The Office of the Prosecutor has also launched a public campaign to amass information about the alleged crimes committed in Darfur.

While the prosecutor’s historic address to the UNSC is timely and carries immense weight, his findings are likely to ignite controversies questioning the credibility, effectiveness, and overall impact of the ICC, especially in the context of Sudan. The ICC’s role in Africa, and particularly in Sudan, has encountered setbacks in delivering justice. Despite facing significant challenges, the ICC must reshape its strategies to ensure justice is achieved, especially in an ongoing conflict like Sudan. The escalating violence in Darfur bears a disconcerting resemblance to the war crimes and crimes against humanity witnessed since 2003. What is particularly disturbing is that even individuals desperately seeking safety are not spared from these atrocities.

On June 14, 2023, Khamis Abakar, the Governor of West Darfur, was captured and brutally killed by the RSF, which is supported by Arab-affiliated militia fighters. This horrifying incident occurred shortly after Governor Abakar publicly accused the RSF of committing genocide in El Geneina. Shockingly, the RSF and its associated militias unleashed a rampage through the city, leaving a trail of devastation and a death toll surpassing 1,000, predominantly affecting the non-Arab Massalit community, since late April. Multiple reports point to the RSF’s alleged commission of war crimes in Darfur. The Office of the High Commissioner for Human Rights released a report outlining allegations of the RSF and its allied militia in West Darfur killing 87 ethnic Masalit. Potential ICC investigations could lead to charges against General Mohamed Hamdan Dagalo (Hemedti), the RSF commander; his brother Abdul Rahim Hamdan Dagalo, the RSF deputy commander; and those acting under their command or orders for crimes against humanity and war crimes committed in Darfur since the conflict erupted on April 15, 2023.

However, any potential indictments against the RSF commanders could jeopardize the chances of reaching a political solution to the ongoing conflict in Sudan. The ICC could face a difficult dilemma: how to prioritize justice over peace, considering the lessons learned from Darfur, where the peace versus justice debate impeded the delivery of justice. The pursuit of justice in Darfur has suffered significant delays, and alarmingly, the RSF, formerly known as the Janjaweed militia, continues to commit further atrocities and crimes in the region and other parts of Sudan. This presents a compelling obligation not only for the ICC but also for the international community to confront these grave offenses and hold the preparators accountable. It is crucial to recognize that justice serves as a necessary prerequisite for sustainable peace.

Sudan, arguably, provides a clear illustration of the ICC’s shortcomings. The ICC’s intervention has been viewed as a threat to national sovereignty, a catalyst to the conflict in Sudan, and a detriment to peacebuilding efforts. Under the guise of regional stability and peace, several African Union and Arab League states, some of which are ICC signatories, have previously refrained from cooperating with the court. The ICC’s failure in Sudan can indeed be attributed to its over-reliance on state cooperation. The court lacks its own enforcement mechanisms, relying on states to arrest and surrender suspects. This prioritization of peace over justice effectively shielded President Omar al-Bashir from prosecution in the past and thwarted justice, even during the short-lived transition when al-Bashir was removed from power in April 2019. Another crucial factor is the perception of neo-colonialism associated with ICC intervention in African countries. The ICC’s disproportionate focus on Africa has led to accusations of anti-African bias, which has significantly weakened its legitimacy and its ability to influence national actors. Some would argue that the ICC has “emerged very much as a European court for Africa, and some would say, in fact, a European Guantanamo Bay for Africa.”

Despite all the challenges that the ICC had faced in the past, we cannot afford to let history repeat itself in Sudan. The RSF is essentially a continuation of the Janjaweed militia, which was initially mobilized and recruited in the early 2000s by the Sudanese government under al-Bashir. Al-Bashir employed these militias, known as the Janjaweed or “devils on horseback,” to quash the rebellion in Darfur by the Sudan Liberation Army (SLA) and the Justice and Equality Movement (JEM). The Al-Bashir regime armed and supported the Janjaweed, enabling their brutal attacks on local non-Arab ethnic groups. Al-Bashir’s reliance on the Janjaweed followed a pattern set in the 1990s, when he used the Murahileen and other militias to fight in South Sudan, Kordofan, and the Nuba Mountains. In the 1990s, tribal militias (the Fursan) were also employed to crush the short-lived insurgency by Daud Bolad in Darfur.

The Janjaweed gained notoriety for their indiscriminate attacks on civilians, employing tactics such as mass executions, rape, sexual violence, looting, and the burning of entire villages. By 2004, the conflict had displaced millions of people, leading to one of the world’s most severe humanitarian crises. Regrettably, similar atrocities are occurring not only in Darfur but also in different parts of Sudan, including the capital, Khartoum. Hemedti’s name was previously associated with the ICC, among others, in relation to a Public Redacted Version of the Prosecutor’s Application under Article 58 of the Rome Statue on July 14, 2008.

The ICC must place justice at the forefront of its priorities. By doing so, it can deter future war crimes, establish respect for the rule of law, and lay the groundwork for long-term sustainable peace and political stability. While it is true that the ICC must navigate the delicate balance between peace and justice, akin to sailing between the Scylla and Charybdis, the experience in Darfur demonstrates that it could do more to prioritize justice, especially in terms of its enforcement mechanisms. Prioritizing peace in Darfur resulted in a two-decade delay in the pursuit of justice and proved that peace cannot be achieved without justice. Therefore, it is through prioritizing justice that the ICC can pave the way for any potential political agreement to endure in the future.

Abdelkhalig Shaib is an accomplished international attorney. He holds LLB and LLM degrees from the Faculty of Law at the University of Khartoum and an LLM degree from Harvard Law School. He is a qualified attorney in both Sudan and New York. He is one of the founding members of the Arab Association of Constitutional Law and actively participated in the Bahrain Independent Commission of Inquiry in 2011. He has served as a visiting fellow at Harvard Law School and offered crucial legal guidance to international organizations on matters concerning Sudan’s constitution-making, elections, and political accommodation. He actively participated in reviewing and providing detailed comments on Sudan’s Constitutional Charter of 2019 and played an active role as a member of the National Experts’ Committee, which was tasked with preparing a draft transitional constitution in 2022, an initiative led by the Sudan Bar Association.

Suggested citation: Abdelkhalig Shaib, Reimagining the ICC’s Role in Delivering Justice to Darfur: A Reflection of Its Agenda in Sudan, JURIST – Professional Commentary, July 27, 2023, https://www.jurist.org/commentary/2023/07/abdelkhalig-shaib-international-criminal-court-sudan/.

This article was prepared for publication by Hayley Behal, JURIST Commentary Managing Editor. Please direct any questions or comments to her at commentary@jurist.org