Echoes of Darfur

When Trial Chamber I of the International Criminal Court delivered its judgment in Prosecutor v. Ali Muhammad Ali Abd-Al-Rahman (‘Ali Kushayb’) on 6 October 2025, it finally closed a file that had gathered dust for two decades. The Darfur situation, referred to the ICC by Security Council Resolution 1593 in 2005, had become emblematic of the Court’s structural limitations: a bold mandate stalled by politics and promises of accountability eclipsed by political opposition and backlash.

The 355-page decision – the first ever to emerge from that referral – convicted Ali Kushayb, a former Janjaweed commander in West Darfur, on 31 counts of war crimes and crimes against humanity, including murder, rape, torture, persecution, and forcible transfer. The judgment meticulously reconstructs the 2003-2004 attacks on Fur and other non-Arab communities and ties Ali Kushayb to a pattern of coordinated assaults involving both Sudanese government troops and militia auxiliaries. To date, it stands as the most detailed judicial account of the atrocities committed in Darfur, but it also reads as a test of the ICC’s ability to function after years of (forced) paralysis in the Darfur situation.

The route to this verdict was anything but linear. The Security Council’s previously unprecedented referral evoked the hope of swift justice, but delivered inertia. Arrest warrants against Omar al-Bashir, Ahmad Harun, and Abdel Rahim Hussein remain unexecuted to this day, as Sudan’s cooperation waxed and waned with shifting regimes over the years. Only when Ali Kushayb surrendered voluntarily in 2020 – reportedly seeking protection rather than submitting to justice – did the proceedings move forward. That (political) context may also help explain the judgment’s overall tone: careful, almost defensive, as if the Chamber were determined to prove that the institution could still function, even when the world had largely stopped watching developments in this situation.

Proving the Unprovable

Two decades after the events, evidentiary decay was inevitable. Witnesses had scattered across refugee camps and continents; physical evidence had been destroyed or lost; collective trauma had blurred recollection. The Chamber, however, responded with a meticulous evidentiary architecture built largely of circumstantial and mutually reinforcing testimony. Exemplarily, its voluminous annex of witness statements – kept confidential to protect identities – reflects this logic of thoroughly reconstructing what happened more than twenty years in the past: proof through pattern rather than through singular certainty.

This evidentiary method is not mere procedural housekeeping but represents the ICC’s adaptation to temporal distance. While earlier trials, such as Lubanga and Katanga, had already balanced witness security and public scrutiny, Ali Kushayb now elevates that balancing act into doctrine. Here, the Chamber effectively articulates a jurisprudence of delayed justice – an effort to rebuild facts after time and politics have done their worst. Arguably, that effort lends the judgment both forensic strength as well as a certain historical melancholy.

Legality in Abstraction

The judgment’s most ambitious section addresses Article 22(1) of the Rome Statute – the principle of legality (nullum crimen sine lege). Because Sudan was not a State Party in 2003–2004, the Defence argued that the accused could not have foreseen criminal liability before the Court. Drawing on the Appeals Chamber’s judgment of 1 November 2021 in Abd-Al-Rahman (OA8) – which upheld the Pre-Trial Chamber’s decision on the Defence’s exception d’incompétence – the Chamber applied a two-part test of foreseeability and accessibility, while further grounding its reasoning in Sudan’s domestic law, citing the 1991 Criminal Act, the 1986 People’s Armed Forces Act, and the 1998 Constitution. These instruments, the Chamber held, already prohibited murder, torture, rape, persecution, and pillage. Accordingly, any reasonable person in the accused’s position would have known that those acts were criminal.

This reasoning, while internally coherent, may not fully be in accordance with realities on the ground, as it ultimately rests on an abstract “reasonable commander” – a notional actor presumed to be versed in statutory norms and international humanitarian law. In effect, the Chamber hence replaces factual foreseeability with a normative assumption of legal awareness, thereby adhering to the well-established principle of ignorantia juris non excusat. While this preserves the appearance of legality, however, it also detaches it from the social realities in which the crimes occurred.

Yet, within the limits of the Rome Statute, that move is arguably pragmatic. By anchoring foreseeability in Sudanese domestic law rather than in the Statute itself, the Chamber avoided any taint of retroactivity and aligned its approach with established jurisprudence before other international bodies, notably Hadžihasanović at the ICTY and Vasiliauskas v. Lithuania at the ECtHR. The cost, however, is formalism: a conception of law as inherently accessible, even in contexts where governance has collapsed.

Fairness on a Tightrope

The Defence next turned to the notion of fairness. Sudan’s deliberate politics of obstruction – visa denials, surveillance measures, blocked access to witnesses – had, it argued, hampered adequate investigations and rendered them nearly impossible. The Chamber agreed that cooperation had indeed been affected but concluded that no substantial disadvantage had resulted for the Defence, also compared vis-à-vis the Prosecution [para. 155]. It thereby transformed structural inequality into a matter of degree: the Defence may have faced obstacles, yes, but not enough to compromise the trial’s overall integrity.

This reasoning reflects the ICC’s characteristic pragmatism. Hence, to halt proceedings or refer Sudan’s conduct to the Security Council under Article 87(7) of the Rome Statute might have been principled, but politically futile, nonetheless. The Court instead prioritised continuity over confrontation. The result, however, is formal parity without material equality. The Prosecution, supported by established cooperation networks, could continue gathering evidence; the Defence, constrained by an insecure investigation environment and limited resources, could not (at least not to the same degree). Yet, the symmetry of rights on paper was sufficient to declare the process fair – a vision of equality sustained procedurally rather than substantively.

A somewhat cautious wording employed by the bench also shapes the judgment’s treatment of individual responsibility. Unlike Lubanga and Katanga, which expanded co-perpetration through the theory of control over the crime, Ali Kushayb adopts a more balanced and conventional approach. The Chamber relied on both Article 25(3)(a) and Article 25(3)(b) of the Rome Statute, combining co-perpetration with ordering and inducing in roughly equal measure [paras. 790-806]. Hence, it reasoned that the Janjaweed’s command structure was fluid and overlapping, meaning that Ali Kushayb’s authority was real, but not absolute. By grounding liability partly in shared participation and partly in specific orders that contributed substantially to the crimes, the Court sought to capture both the horizontal and vertical dimensions of responsibility while maintaining evidentiary solidity.

The cost, however, is somewhat conceptual. The violence in Darfur resulted from a complex state-supported system, yet the judgment recasts it as the outcome of individual decisions made by commanders such as Ali Kushayb. While the focus on individual guilt is an inevitable trait of every criminal trial, modes of liability in international criminal law (also) operate as moral vocabularies: co-perpetration evokes collective enterprise, whereas ordering isolates individual agency. The Chamber thus chose the safe(r) path – securing conviction while flattening the complexity of collective atrocity through a blend of different modes of perpetration.

Truth Without Closure

Notwithstanding this focus on Ali Kushayb’s individual liability, the judgment also engages in an act of narration – that is to meticulously reproduce the facts of the Darfur situation in a court of law: it reconstructs Sudan’s Emergency Plan to suppress rebellion, traces coordination between government forces and Janjaweed militias, and documents patterns of killing, sexual violence, and forced displacement with remarkable detail (starting at para. 272 and ending at para. 657). In doing so, it provides the most comprehensive legal account yet of the Darfur campaign thus far – a record that fixes facts in law even as political memory fades.

Yet, judicial narration has its limits. The judgment – somewhat understandably – confines itself to the accused and to what the evidence permits, thereby leaving the broader structures of state policy and command unexamined. This restraint preserves the Court’s legal discipline, but it also narrows its ability to convey how systematic violence was enabled and sustained. The result is a portrait of responsibility that is precise but remains partial – an image of atrocity through the lens of one man’s culpability.

The timing of the decision moreover deepens this ambivalence. Violence has again erupted in Darfur, and the Court now speaks in the past tense while the same patterns repeat. The verdict thus functions more as documentation than as deterrence. Still, that acknowledgment matters for it restores a measure of recognition to victims long ignored and asserts that legal proceedings, however belated, remain the grammar through which injustice can be named.

Between Legality and Power

The Ali Kushayb judgment ultimately exposes the paradox at the heart of international criminal justice: its authority depends on the very political order that so often impedes it. The decision demonstrates that law can survive without power, but not without consequence. Yet that perseverance is double-edged. The Court’s restraint protects its legitimacy but narrows its reach; its capacity to convict individuals becomes the measure of its own limitation. In this sense, Ali Kushayb stands as both vindication and warning – a vindication of the Court’s endurance in securing a verdict in this case, and a warning that endurance alone may not suffice in other cases shaped by different constraints.