INTRODUCTION
In October 2025, the International Criminal Court (ICC) delivered a long-awaited verdict convicting a former Janjaweed militia leader for atrocities committed during the Darfur conflict. While this verdict has been widely described as a milestone for accountability, its broader global significance lies in reaffirming that even delayed prosecutions for mass atrocities can reinforce the international norm against impunity. However, this accountability is legally possible under the Rome Statute framework only within narrow conditions shaped by enforcement gaps, political dependence, and time.
BACKGROUND: DARFUR, ATROCITY CRIMES, AND ICC JURISDICTION
The Darfur conflict began in 2003, when armed rebel groups in Western Sudan accused the Sudanese government of sustained political and economic marginalisation. In response, government forces and allied militias, particularly the Janjaweed, launched a brutal counterinsurgency that resulted in widespread and systematic violence against civilian populations. Reports documented mass killings, rape, torture, forced displacement, and destruction of villages, largely targeting ethnic groups, such as the Fur, Zaghawa, and Masalit.[1]
In March 2005, the United Nations Security Council (UNSC), acting under Chapter VII of the UN Charter, referred the situation in Darfur to the ICC through Resolution 1593.[2] This referral was legally significant because Sudan was not a State Party to the Rome Statute. Nevertheless, under Article 13(b) of the Statute, the Security Council referral conferred jurisdiction on the Court and imposed a legal obligation on Sudan to cooperate with ICC proceedings.[3] This provision allows the UN Security Council to refer a situation in any country to the International Criminal Court, even if that country is not a member of the ICC Rome Statute, thereby allowing the ICC to have jurisdiction even over a non-State Party.
Following the referral, the ICC issued arrest warrants against several individuals, including then-President Omar al-Bashir.[4] However, for many years, these warrants remained unenforced due to Sudan’s non-cooperation and the absence of an independent enforcement mechanism at the international level. It was only in 2020 that Ali Muhammad Ali Abd-Al Rahman, commonly known as Ali Kushayb, a mid-level Janjaweed commander, surrendered himself to the Court.[5]
THE HISTORIC CONVICTION: SIGNIFICANCE AND LIMITATION
On 6 October 2025, the ICC’s Trial Chamber I delivered its verdict in The Prosecutor v. Ali Muhammad Ali Abd-Al-Rahman. Ali Kushayb was found guilty of 27 counts of war crimes and crimes against humanity committed between August 2003 and April 2004 in West Darfur.[6] The crimes included murder, torture, rape, persecution, attacks against civilians, pillaging and forcible transfer of populations.[7] In December 2025, the Court sentenced Kushayb to 20 years’ imprisonment.[8]
From a legal standpoint, the conviction confirms that the ICC is capable of conducting complex atrocity trials and applying established modes of individual criminal responsibility under Articles 7 and 8 of the Rome Statute, even decades after the commission of the crimes.[9] The Trial Chamber relied on extensive witness testimony, documentary evidence and contextual analysis to establish both the commission of the crimes and the accused’s role within the militia. In this sense, the judgment affirms that international criminal law is not merely symbolic, but it can concretise legal accountability despite prolonged delay and sustained non-cooperation by states.
COMMAND RESPONSIBILITY AND SELECTIVE ACCOUNTABILITY
Although only one individual was convicted, the legal basis of Kushayb’s liability is significant. The ICC did not treat him merely as a direct perpetrator of isolated acts of violence, but examined his role as a militia commander, exercising effective authority over Janjaweed forces in West Darfur. This engages the principle of command responsibility under Article 28 of the Rome Statute, which allows criminal liability to be imposed on superiors who knew or should have known that crimes were being committed by forces under their control and failed to prevent or punish such acts.[10] However, the conviction also exposes the limits of this doctrine as its effectiveness remains dependent on the accused being available before the Court, a condition rarely met in respect of senior, political and military leadership.
The conviction came after more than two decades between the commission of the crimes and the final judgement. During this time, many victims died without seeing justice, entire communities remained displaced, and new cycles of violence emerged in Sudan. Although accountability was eventually achieved, its ability to deter future crimes or provide timely relief to victims remains deeply constrained. The conviction highlights the persistent tension between legal accountability and practical effectiveness.
The judgment also highlights a persistent problem of selective accountability within international criminal law. Kushayb’s conviction stands in sharp contrast to the continued absence of senior political and military leaders before the Court, despite outstanding arrest warrants.[11] This disparity is largely attributable to the ICC’s reliance on state cooperation, as outlined in Articles 86 to 89 of the Rome Statute. The Court has no independent enforcement authority and depends entirely on state cooperation. As the Darfur situation demonstrates, international criminal responsibility becomes enforceable only when political protection collapses or circumstances change.
Another important aspect of the Darfur proceedings was the participation of victims in the ICC process. For many, this provided long-overdue recognition of their suffering in the absence of domestic accountability. Human rights advocates and the UN High Commissioner for Human Rights welcomed the verdict, highlighting its importance for victims and as an affirmation of the ICC’s relevance in situations where national systems fail to deliver accountability.[12] However, judicial findings cannot undo years of displacement trauma and continued violence, nor can they replace broad reparative measures or meaningful political solutions.
WHAT THIS TELLS US ABOUT THE ICC’S FUTURE?
The conviction of Kushayb should be understood, neither as a triumph nor as a failure. Its significance lies in its complexity. The Darfur conviction illustrates a paradox of the ICC system – the law has the mandate to prosecute and punish atrocity crimes, but the exercise of that mandate depends on political will, cooperation and resources that are often absent. The ICC’s ability to secure a conviction in such a challenging case demonstrates institutional resilience. Yet the prolonged delays, partial accountability and ongoing violence in Sudan reveal that resilience alone is insufficient to fully realise the promise of international criminal justice. The ICC’s intervention in Darfur should spur reflection on reforms, both legal and political, that can bridge the gap between aspiration and impact. Strengthening mechanisms, protecting evidence amid conflict and accelerating proceedings could make future judgments timelier and more effective.
CONCLUSION
The Darfur conviction marks an important step in the evolution of international criminal Justice. The judgment demonstrates that the machinery of international law can, even after decades, establish individual responsibility for atrocity, crimes and firm. The global commitment to accountability. The case also exposes limitations of international criminal law: prosecution is dependent on state cooperation, enforcement remains politically contingent, and justice often arrives long after victims have endured irreversible harm. The conviction of a single militia commander, while symbolically powerful, cannot substitute for broader accountability of other leaders involved in the conflict. Ultimately, the case reminds us that international criminal law is neither a panacea nor a failure. It is a constraint yet necessary instrument whose effectiveness will depend on sustained political support, institutional reform, and a renewed international commitment to ending impunity for mass atrocities.
Author: Malika Agarwal (National Forensic Sciences University, Delhi)
References:
[1] Darfur Destroyed: Ethnic Cleansing by Government and Militia Forces in Western Sudan (Human Rights Watch 2004)
[2] UNSC Res 1593 (31 March 2005) UN Doc S/RES/1593
[3] Rome Statute of the International Criminal Court 2002, art 13(b)
[4] ‘Warrant of Arrest for Omar Hassan Ahmad Al Bashir’ (International Criminal Court, 04 March 2009) <https://www.icc-cpi.int/court-record/icc-02/05-01/09-1> accessed 15 March 2026
[5] ‘Situation in Darfur (Sudan): Ali Kushayb is in ICC custody’ (International Criminal Court, 09 June 2020) <https://www.icc-cpi.int/news/situation-darfur-sudan-ali-kushayb-icc-custody> accessed 15 March 2026
[6] Prosecutor v Ali Muhammad Ali Abd-Al-Rahman (Judgment) ICC-02/05-01/20 (06 October 2025)
[7] Ibid
[8] ‘Public redacted version of Sentencing Judgment’ (International Criminal Court, 09 December 2025) <https://www.icc-cpi.int/court-record/icc-02/05-01/20-1281-red> accessed 15 March 2026
[9] Rome Statute of the International Criminal Court 2002, art 8
[10] Rome Statute of the International Criminal Court 2002, art 28
[11] ‘Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir’ (International Criminal Court, 12 July 2010) <https://www.icc-cpi.int/court-record/icc-02/05-01/09-95> accessed 12 March 2026
[12] ‘Türk welcomes ICC conviction of Sudan’s “Ali Kushayb”’ (ohchr, 06 October 2025) <https://www.ohchr.org/en/press-releases/2025/10/turk-welcomes-icc-conviction-sudans-ali-kushayb> accessed 12 March 2026
