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Sudan's junta is obstructing the International Criminal Court’s (ICC)  into crimes committed in Darfur out of fear that justice could embolden calls for incumbent generals to face trial, say activists and human rights experts.

In August 2021, ICC Chief Prosecutor Karim Khan a Memorandum of Understanding with the then civilian-military transitional government of Sudan to enhance mutual cooperation. But during a to Sudan, Khan said that cooperation has taken a “” under the current authorities, which came to power through a coup on 25 October 2021.

Khan that Sudan’s authorities need to allow the court to access key witnesses, establish a larger field presence, and extradite wanted suspects.

However, Sudan’s coup leaders are Khan’s efforts. Army Commander Abdel Fattah al-Burhan and the powerful paramilitary leader Mohamad Hamdan Dagalo, who heads the notorious Rapid Support Forces (RSF), are both implicated in the mass deaths of more than 300,000 people in , which took place mostly between 2003-2010.

While tens of thousands of people were discriminately and indiscriminately killed, died from diseases that were caused by living in unsanitary internally displaced camps after fleeing the violence and malnutrition. As a form of collective punishment, former president Omar al-Bashir’s regime systematically aid access to targeted communities.

During the atrocities, al-Burhan served as the head of military intelligence in Central Darfur and was tasked with arming recruits to fight in tribal militias. Dagalo, better known as Hemeti, was one of the young recruits that eventually became al-Bashir’s most trusted figure to coup-proof his regime. In April 2019, they both turned on al-Bashir as he faced down a .

“[Al-Burhan and Hemeti] both have killed people in Darfur. And if the court is ever able to complete its investigation, then there will be a lot of evidence and [calls] for justice aimed at people in the [coup] military government,” Nahla Yousef, an activist who has been documenting human rights abuses in South Darfur since 2005, told ������.

Obstacles to justice

In March of 2005, the UN Security Council resolution 1593, which referred the situation in Darfur to the ICC. Still haunted by the genocide that took place in Rwanda in 1994, the global community saw Darfur as a conflict that needed urgent diplomatic, humanitarian, and political intervention.

Despite good intentions, the root causes of the violence in Darfur were not well understood. For instance, al-Bashir stands accused of committing war crimes and conspiring to commit genocide, yet many experts the second charge for mischaracterising the conflict.

Rather than genocide, which requires proof of intent to destroy a specific group of people “in whole or in part,” a UN in 2005 concluded that the conflict may be better described as a brutal counter-insurgency where war crimes and crimes against humanity were committed on a systematic scale. Human Rights Watch and Amnesty also avoided the term genocide.

In January, Khan himself the UN Security Council that the case against al-Bashir and other suspects needed to be strengthened. He also stressed that the global community needs to show a greater commitment to pursuing justice today.

Mohamad Osman, who researches Sudan for Human Rights Watch (HRW), added that the lack of accountability or transitional justice could lead to more grave crimes in Darfur and elsewhere in the country.

“We have already seen fresh abuses happen as the region continues to fall off the grid of international priorities,” Osman told TNA.

In April, around 168 people were in what the government and many observers as “intercommunal” violence between Arabs and non-Arabs.

In Darfur, these since each category is historically constructed based on livelihoods and lifestyle rather than on religion or race. Sedentary farmers are traditionally considered African while camel herders self-identify as Arab. Both communities are black and Muslim and have inter-married for centuries.

Describing the fighting as ‘intercommunal’ also conceals the political character of the violence, which centres around disputes over land, a lack of security, and wealth extraction by government-backed armed groups and their foreign patrons.

Witnesses also said that some of the attackers in April RSF uniforms. They added that the RSF doesn’t appear to have full control over some senior commanders who may be more loyal to other tribal figures, thereby undermining Hemeti’s authority. If true, Hemeti’s ability to ensure security in Darfur is significantly compromised if his commanders don’t always listen to him.

To rehabilitate his image as a peacemaker, Hemeti has tried to broker a number of reconciliation deals across Darfur. However, at least 197 people – activists, tribal leaders and teachers – were last month in west Darfur for refusing to agree to Hemeti’s terms, according to the Darfur Bar Association which monitors abuses across the province.

Those arrested feared that Hemeti was not a neutral mediator due to his old tribal alliances, according to Bedour Zakaria, who lives in an internally displaced camp and documents rights abuses for the Darfur Network for Monitoring and Documentation (DNMD).

She added that many of the arrested tribal leaders suspected that Hemeti wanted to exploit their land through a superficial reconciliation agreement.

“Many of the Native Administration leaders believed that Hemeti was making a peace initiative as a pretext to exploit their land for resources, especially uranium,” Zakaria told ������.

Ending impunity

As violence continues to flare up across Darfur, targeted communities believe that the only recourse against human rights violations in the future is accountability. However, al-Burhan and Hemeti have no incentive to extradite wanted suspects to the ICC, possibly out of fear that they could be implicated in the testimonies of the accused.

Both men may also fear that cooperating with the ICC could strengthen civil society for an international investigation into the infamous sit-in dispersal on 3 June 2019, which saw more than 120 people murdered.

Human rights groups and open-source experts have revealed that the dispersal was a closely between all branches of the state, including the RSF and army. The former executed most of the killing, while the latter left them to die.

An alternative to extradition could see the ICC establish a hybrid tribunal in Sudan with the coup authorities. Although the ICC has never established a joint tribunal before, Khan has that this could be a possibility.

But Emma DiNapoli, a legal expert with Sudan for Redress, a non-profit advocating for transitional justice and an end to torture worldwide, told TNA that a joint tribunal may not be legally viable under the Rome Statue, the treaty that underpins the ICC.

“In theory, if there was a hybrid court created, there would be a lot of wrangling over selection of judges and rules of procedures,” she said.

“Like in many hybrid courts, you have a mix of international and national judges. If that were the case, who would the Sudanese judges be? Would Sudanese rules of procedure be used? These are all sticky areas, because the rules of procedure are flawed.”

Activists also raised concern that security forces could pursue high-profile witnesses who are asked to testify in Sudan’s capital of Khartoum. Osman from HRW agrees and stresses that the global community can only help victims obtain justice through pressuring the coup authorities to relinquish power and to full civilian rule.

“The ongoing violence in Darfur should be a wake-up call to the international community that the coup is a threat to any process of accountability or transitional justice. And with these military leaders, there will continue to be a lack of cooperation with the ICC,” he said.

Mat Nashed is a Lebanon-based journalist covering displacement and exile.

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