Home Jurisdiction Darfur Janjaweed leader Ali Kushayb’s challenge to ICC jurisdiction fails

Darfur Janjaweed leader Ali Kushayb’s challenge to ICC jurisdiction fails

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The Appeals Chamber of the International Criminal Court (ICC) in The Hague in the Netherlands unanimously rejected an appeal by the former leader of the Janjaweed of Darfur Ali Muhammad Ali Abdelrahman (also known as Ali Kushayb), against the decision of Pre-Trial Chamber II of May 17, 2021, rejecting a challenge to the jurisdiction of the tribunal by Kushayb’s defense attorney.

In a declaration from The Hague, the ICC announced that the ICC Appeals Chamber, composed of Judge Piotr Hofmański, presiding over this appeal, Judge Luz del Carmen Ibáñez Carranza, Judge Perrin de Brichambaut, Judge Solomy Balungi Bossa and Judge Gocha Lordkipanidze, unanimously decided to dismiss the appeal against the Decision of Pre-Trial Chamber II of May 17, 2021 on the exception to the competence of the Defense (exception of incompetence).

Presiding Judge Piotr Hofmański, read a summary of the Judgement in open court Monday. In rejecting the four Defense grounds of appeal, the Appeals Chamber stressed, inter alia, that it found no error in the reasons given by the Pre-Trial Chamber defining a “situation” before the Court such as ‘it is defined in terms of time, territory and in some cases personal parameters. He also noted that the non-funding by the United Nations of the activities of the Court resulting from a referral by the Security Council does not invalidate the UNSC Resolution 1593 who referred the situation to the ICC. As to the alleged failure of the Pre-Trial Chamber to take into account the lack of logistical and security support from the Security Council to the Court in Sudan, the Appeals Chamber concludes that the Defense has not demonstrated how this alleged error of law relates to the jurisdiction of the Court.

Finally, and referring to the principle of legality, nullum crimen sine lege, the Appeals Chamber found that the referral of the situation to Darfur, Sudan, had taken place as a result of serious violations of human rights and humanitarian law which were criminalized under international law. era.

The Appeals Chamber also found that the crimes covered by the Statute were intended to be generally representative of the State of customary international law during the drafting of the Statute. This weighs heavily in favor of the predictability to be prosecuted for such crimes, even if they are conduct committed in a State not party to the Statute. Judge Ibáñez expressed her separate opinions on this ground of appeal and while agreeing with the result reached by the majority, she held that, in her view, the jurisdiction of the Court over the conduct in this case is predated UNSCR 1593, which triggered the jurisdiction of the Court and it is therefore unnecessary to refer to other sources of law.

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As previously reported by Radio Dabanga, Kushayb, who faces 31 counts of war crimes and crimes against humanity allegedly committed in Darfur, first appeared before the ICC on June 15. He then appeared before Pre-Trial Chamber II from May 24 to 26 to hear submissions from the prosecution and legal representation for victims.

Kushayb has yet to plead and his defense so far has been largely based on his name being Abd-Al-Rahman and not the person referred to as Ali. Kushayb.

The ICC issued arrest warrants against former Minister of Humanitarian Affairs Ahmed Haroun and Kushayb in 2007. Kushayb was transferred to ICC custody on June 9, 2020 after voluntarily surrendering to the Central African Republic. Upon his arrest, the Sudanese government announced its support for his transfer to the ICC. Kushayb is also accused of a number of crimes by the Sudanese authorities.


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