Original: English

No. ICC-02/05-01/20

Date: 6 October 2025

TRIAL CHAMBER I

Before: Judge Joanna Korner, Presiding Judge

Judge Reine Alapini-Gansou

Judge Althea Violet Alexis-Windsor

SITUATION IN DARFUR, SUDAN

IN THE CASE OF

THE PROSECUTOR v. ALI MUHAMMAD ALI ABD-AL-RAHMAN (‘ALI KUSHAYB’)

Public

With public Annexes A, C and D, and confidential and public redacted Annex B

Trial Judgment

SECTION 1. OVERVIEW

I. INTRODUCTION

1. This case relates to crimes against humanity and war crimes which took place between August 2003 and March 2004, in Darfur, Sudan. The Sudan situation was referred to the International Criminal Court by the UN Security Council (Resolution 1593) on 31 March 2005. During the time relevant to the charges, an armed conflict, not of an international character, took place between the Government of Sudan (‘GoS’) using primarily an irregular force, the Janjaweed, on the one side, and the Sudan Liberation Movement/Army (‘SLM/A’) and the Justice and Equality Movement (‘JEM’) (collectively, ‘the rebels’), on the other.

2. Following an attack on the Al Fasher airport by the SLM/A on 25 April 2003, the GoS decided to quash the rebellion by force. In December 2003, the GoS issued an Emergency Plan designed to achieve that objective and further to impose control over areas inhabited by, or belonging to, perceived ‘rebellious’ non-Arab tribes (including the Fur, Masalit and Zaghawa). To this end, the GoS decided to make use of already existing and well-known tensions between Arabs and the Fur tribe in particular by creating an irregular force ‘from Arab tribes’ which would be supported by the GoS. This force was known as the Janjaweed.

3. Acting on the GoS’s instructions, the Janjaweed carried out armed operations against several predominantly Fur and non-Arab villages in Darfur. Some of these operations were carried out jointly with GoS Forces. During these operations, villages were pillaged and civilians were murdered, raped, persecuted, mistreated, and forcibly displaced. Whilst many more villages were targeted, the operations charged in this case concern Kodoom, Bindisi, Mukjar and Deleig. Fur men, (of all ages), who had fled with their families to Mukjar and Deleig from the ravaged villages, were detained, tortured and subsequently taken to areas outside the towns where they were executed, largely by members of the Janjaweed.

4. Within this context, this case concerns the alleged individual criminal responsibility for those crimes of the Accused, as leader of the Janjaweed.

5. In the view of the Chamber, in particular because during the course of the trial, conflict erupted again - and still continues - in Darfur, it is important that the issues which arose during the course of the trial (both legal and factual) are clearly set out in this judgment. The Chamber is of the opinion that public accessibility to a judgment is a salient aspect of the work of this court.

6. Accordingly, whilst the relevant facts and circumstances underpinning the Chamber’s decision are set out in further detail in the body of this judgment, the witness credibility assessments which are fundamental to the factual and legal findings have been placed into an annex.Footnote ¹ That annex, together with others, forms an integral part of the judgment.

II. THE ACCUSED

7. The Accused is a Sudanese citizen.Footnote ² His personal identification card records that he was born in Rahad Al-Berdi, South Darfur, in 1949.Footnote ³ He is Muslim and speaks Arabic.Footnote ⁴ He belongs to the Ta’aisha tribe, which is generally considered to be an Arab tribe in Sudan.Footnote ⁵

8. The full name of the Accused is formed of a series of names corresponding to his descent, it being a common practice in Sudan for names to be composed in this manner.Footnote ⁶ It is a matter of dispute between the parties whether, during the charged period, the Accused was the man known by the nickname ‘Ali Kushayb’ (the ‘Identification Issue’).Footnote ⁷ The Chamber will make factual findings hereinafter to this Identification Issue.Footnote ⁸

9. The Accused is a former member of the Medical Corps of the Sudanese Armed Forces, from which he retired in early to mid-1990s.Footnote ⁹ A certificate from the Council of Medical Assistance and Technical Professions of Sudan states that ‘Ali Muhammad Ali’ qualified as a medical assistant in 1984.Footnote ¹⁰ The highest rank held by the Accused while in the Sudanese Armed Forces was that of musa’id (warrant officer).Footnote ¹¹

10. Upon his retirement from the Sudanese Armed Forces, the Accused lived mainly in Garsila,Footnote ¹² a town located in the Wadi Salih area of West Darfur.Footnote ¹³ He opened a shop in Garsila market from which he sold medication, which was one among many shops situated near the Agricultural Bank.Footnote ¹⁴ As of 10 April 2012, the Accused was in possession of a licence from the Federal Council for Pharmaceuticals and Toxicology of Sudan to sell medicine.Footnote ¹⁵

11. It is a matter of dispute between the parties whether, during the charged period, the Accused was a leader of the Janjaweed.Footnote ¹⁶ The Chamber will make factual findings regarding whether the Accused held the position of authority alleged by the Prosecution hereinafter in this judgment.Footnote ¹⁷

12. An Order for Assignment of police recruits dated 28 July 2005, signed by the Commander of the Central Reserve Forces, states that ‘Abd-Al-Rahman’ was a member of a group of the Central Reserve Police.Footnote ¹⁸

13. In July 2013, the Accused was the subject of an assassination attempt in Nyala.Footnote ¹⁹

III. THE CHARGES

14. For ease of reference, the Chamber considers it appropriate to provide below a brief overview of the charges in the present case.

15. The confirmed charges concern 31 counts of war crimes and crimes against humanity allegedly committed in the Wadi Salih and Mukjar localities of West Darfur, Sudan between August 2003 and March 2004. These charges can be sub-divided into three categories: crimes committed (i) in Kodoom, Bindisi and surrounding areas between 15 and 16 August 2003 (Counts 1-11);Footnote ²⁰ (ii) in Mukjar and surrounding areas between the end of February 2004 and the beginning of March 2004 (Counts 12-21);Footnote ²¹ and (iii) in Deleig and surrounding areas between 5 and 7 March 2004 (Counts 22-31).Footnote ²²

16. With respect to the crimes committed in Kodoom, Bindisi and surrounding areas between 15 and 16 August 2003, the charges are as follows:

17. In relation to the crimes committed in Mukjar and surrounding areas between the end of February 2004 and the beginning of March 2004, the charges are as follows:

18. Finally, regarding the crimes committed in Deleig and surrounding areas between 5 and 7 March 2004, the charges are as follows:

19. The Chamber notes the references to the terms ‘surrounding areas’ in the charges. The Pre-Trial Chamber clarified that the geographical scope of the crimes committed in Kodoom and Bindisi extends ‘to the roads and fields surrounding Kodoom and Bindisi insofar as the victims were present in these locations when initially targeted’.Footnote ²⁷ In respect of the charged crimes committed in Mukjar and Deleig, the geographical scope of these charges ‘extends beyond the boundaries of these two towns only insofar as some of the victims were transported from there to other locations where they were allegedly executed’.Footnote ²⁸

SECTION 2. JURISDICTION

20. The Chamber accepts the Defence’s submission that the Chamber has ‘the primary jurisdiction’ to carry out the ‘definitive assessment’ as to whether the principle of nullum crimen sine lege has been violated in the present case.Footnote ²⁹

21. The Chamber finds that it has the authority and obligation arising from Article 19(1) of the Statute to satisfy itself that it has jurisdiction in any case brought before it.Footnote ³⁰ In the instant case, the Chamber recalls the Appeals Chamber’s statement in the Abd-Al-Rahman OA8 Judgment that ‘only once a link is drawn with the charges in this case can the question of the legality of the charges be definitely answered’.Footnote ³¹ It also notes that the Appeals Chamber, in the Abd-Al-Rahman Decision on Request for Reconsideration of OA8 Judgment, found that, pursuant to the procedure for challenging the Court’s jurisdiction set out in Article 19(4) and (6) of the Statute, ‘the alleged existence of new facts or evidence’, which had emerged since the Abd-Al-Rahman OA8 Judgment was issued, ‘would have to be considered first by the Trial Chamber’.Footnote ³²

I. RELEVANT BACKGROUND

22. On 17 May 2021, the Pre-Trial Chamber issued a decision in which it rejected the Defence’s jurisdictional challenge pursuant to Article 19(2)(a) of the Statute and affirmed that the Court had jurisdiction over the present case.Footnote ³³

23. On 1 November 2021, the Appeals Chamber confirmed the aforementioned decision of the Pre-Trial Chamber.Footnote ³⁴ The Appeals Chamber found that: (i) ‘the risk of international criminal liability was acute to such a degree that it was foreseeable to an officer of Mr Abd-Al-Rahman’s rank’;Footnote ³⁵ and that (ii) the charges brought against the Accused ‘draw upon norms that were recognised globally, including in Sudan, and were fully ascertainable at the time of the conflict in Darfur’.Footnote ³⁶ In reaching this conclusion, the Appeals Chamber took into account ‘the framework of laws applicable to the conflict in Darfur, the undertakings of the parties to the conflict, and the appreciation for those laws and undertakings that would reasonably belong to a commander in the militia’.Footnote ³⁷

24. On 10 March 2023, the Chamber issued a decision on the Defence’s application for leave to file a motion for acquittal, in which it rejected the Defence’s challenge against the legality ofall charges and thus of the Court’s jurisdiction, noting that ‘[a] motion for acquittal is not the appropriate avenue to decide on [a jurisdictional legal issue]’, and that ‘the Defence [would] have the opportunity to make legal submissions on this issue at the conclusion of the trial’.Footnote ³⁸

25. On 17 July 2023, the Appeals Chamber issued a decision in which it, by majority, dismissed in limine the Defence’s request for review of the Abd-Al-Rahman OA8 Judgment in light of the allegedly new facts that had emerged.Footnote ³⁹

26. In its Final Brief, the Defence seeks, again, a dismissal of the case on the basis that the Court lacks jurisdiction to prosecute the Accused, pursuant to Article 22(1) of the Statute.Footnote ⁴⁰ In support ofits submission, the Defence argues that ‘[a] holistic consideration of the entirety of the evidence’ presented at trial indicates that the test of foreseeability and accessibility with respect to the principle of nullum crimen sine lege has not been met in the present case.Footnote ⁴¹

27. The Chamber will review the submissions of the Defence and the Prosecution, as well as the observations of the CLRV, in this regard below.

II. TEST UNDER ARTICLE 22(1) OF THE STATUTE

28. The Chamber recalls that the principle of nullum crimen sine lege, found in Article 22(1) of the Statute, provides as follows:

29. The Appeals Chamber, in the Abd-Al-Rahman OA8 Judgment, noted that:

30. In light of the above, the Chamber considers that, in the context of the present case, the foreseeability and accessibility test is satisfied if: (i) the criminal laws, national or international, applicable to the Accused, at the time the conduct took place, described the prohibited conduct clearly and defined the crimes charged; and (ii) a reasonable person in the Accused’s position could have expected, at that moment in time, to find himself faced with the crimes charged, either nationally or internationally. The Chamber emphasises that, as the relevant jurisprudence of the Extraordinary Chambers in the Courts of Cambodia (‘ECCC’), the European Court of Human Rights (‘ECtHR’) and the International Criminal Tribunal for the former Yugoslavia (‘ICTY’) confirm,Footnote ⁴³ a chamber’s assessment of the second limb of the test is objective, on the basis of a reasonable person in the Accused’s position, and not the Accused’s subjective understanding of the law, or his belief in the lawfulness of his conduct.Footnote ⁴⁴

31. The Chamber will now examine whether the foreseeability and accessibility test has been met in the case at hand.

A. The criminal laws applicable to the Accused at the time of his conduct

32. The Chamber notes that it assessed the relevant Sudanese laws submitted in the case record which were in force at the time of the charged events between August 2003 and March 2004, and thus, were applicable to the Accused.

33. First, Part II, chapter 1 of the 1998 Sudanese Constitution provided fundamental rights and freedoms to the citizens of Sudan, including life and liberty, freedom of movement, minority and cultural rights, right to property, security of person, and fair trial rights.Footnote ⁴⁵ Specifically, Article 20 of the 1998 Sudanese Constitution provided for the right to life, liberty and ‘security of person’, and further stated that no one shall be ‘degraded or tortured’. Article 21 prohibited ‘discrimination based on race, sex or religion’. Article 23 guaranteed every citizen the right to freedom of movement and residence which cannot be restricted except in accordance with law. Article 28 stated that no one can be deprived of their right to property, ‘except by law to enforce public sharing, for the public interest and only in exchange for just compensation’. Article 30 stated that nobody shall be ‘arrested, detained or imprisoned except in accordance with law which shall prescribe the charge’.

34. Second, the 1991 Criminal Act of Sudan unambiguously described the prohibited conduct and defined the crimes of, inter alia, provoking hatred against or amongst sects by reason of ethnic, colour or language differences; murder; semi-intentional homicide; causing serious bodily injury; causing pain or disease; use of force on another person without their consent; intimidation; rape; gross indecency (acts contrary to another person’s modesty and sexual acts with another person not amounting to adultery or sodomy); insult, abuse and humiliation; kidnapping; unlawful confinement or detention; invasion of privacy; theft; robbery; armed robbery (hiraba); criminal misappropriation; destruction of property; and defiling and disturbing places of worship.Footnote ⁴⁶ These crimes are analogous to the crimes charged in the present case.

35. In this regard, D-0016, referring to Article 79 of the 1986 People’s Armed Forces Act, explained that acts of violation of international humanitarian law which constituted crimes under the 1991 Criminal Act could be prosecuted under the latter, even if they were committed by military personnel in the context of military operations.Footnote ⁴⁷ Referring to Articles 4 and 5 of the 1986 People’s Armed Forces Act, D-0016 stated that members of the Central Reserve Forces (‘CRF’), the Popular Defence Forces (‘PDF’) and people who worked with the Sudanese Armed Forces (‘SAF’), during emergency periods and temporary operations, were subject to its provisions.Footnote ⁴⁸ D-0016 also clarified that commission of a crime under the 1986 People’s Armed Forces Act did not exempt from incrimination under the 1991 Criminal Act, as the two statutes applied concomitantly.Footnote ⁴⁹

36. The Chamber notes that Sudan confirmed the aforementioned legal framework in its 9 March 2000 periodic report to the Committee on the Elimination of Racial Discrimination of the United Nations (‘UN’),Footnote ⁵⁰ and its April 2003 periodic report to the African Commission on Human and Peoples’ Rights.Footnote ⁵¹

37. On the basis of the foregoing findings, the Chamber assesses the Defence’s specific challenges.

38. First, the Defence alleges that there were ‘positive obligations to violate international humanitarian law’,Footnote ⁵² as there were ‘obstacles’ to the prosecution of the aforementioned crimes in Sudan, such as the ‘legal notion of Ghanima’, ‘amnesties, immunities, the doctrine of military necessity, and the absence of the definition oflawful order’.Footnote ⁵³

39. In respect of the Defence’s submissions pertaining to the purported legality of ‘ghanima’,Footnote ⁵⁴ the Chamber notes that ‘ghanima’ or ‘capture of equipment’ has its basis in the Sharia law and means ‘taking the loot’, ‘stealing from the spoils’ and ‘bounties’ of war, including ‘money, instruments, weapons, vehicles and so on, whether military or civilian equipment’, from the ‘camps and sites of the enemies’.Footnote ⁵⁵ The 1986 People’s Armed Forces Act defined ‘enemy’ as ‘includ[ing] external enemies, outlaw rebels and armed gangs in a state of readiness for combat operations’.Footnote ⁵⁶

40. The Chamber further notes that Article 52(b) of the 1986 People’s Armed Forces Act prohibited ‘attacking any house or other place in order to plunder, damage or destroy any crops, gardens or any other such property’,Footnote ⁵⁷ and that such acts would have also constituted ‘armed robbery (Hiraba)’ under the 1991 Criminal Act.Footnote ⁵⁸ D-0016 confirmed that ‘ghanima does not apply unless the armed forces attack an enemy camp’,Footnote ⁵⁹ that it is a crime for someone to take this property for himself or herself,Footnote ⁶⁰ and that taking away properties from a locality that was attacked would amount to the crime of hiraba or ‘stealing’.Footnote ⁶¹

41. Moreover, contrary to the Defence’s argument that Ahmad Muhammad Harun (‘Minister Harun’) declared the properties of the Fur as ghanima during his speech in Mukjar in August 2003,Footnote ⁶² the evidence in the present case does not demonstrate, nor does any applicable provision of the Sudanese law, that Minister Harun had the legal authority to make such a general declaration.Footnote ⁶³ The Chamber finds that there is no evidence that ghanima can be equated to pillaging. Equally, there is no evidence that ghanima created a positive legal obligation or provided a justification for the commission of the acts constituting the crimes charged.

42. With respect to the Defence’s submissions alleging the absence of a definition of unlawful order in the Sudanese domestic laws,Footnote ⁶⁴ the Chamber notes the evidence of D-0016 that Articles 28 and 60 of the 1986 People’s Armed Forces Act ‘stipulated indirectly the definition of lawful order’.Footnote ⁶⁵ These provisions clearly indicated that ‘the order coming from any leadership has to be lawful’ and ‘no unlawful order shall be executed’.Footnote ⁶⁶ Article 28 of this Act, in particular, ‘[bound] the […] armed forces personnel to execute any lawful order issued by higher officers and […] to do their work lawfully’, in accordance with the 1986 People’s Armed Forces Act, the Sudanese 1998 Constitution and ‘in virtue of any other applicable law’.Footnote ⁶⁷

43. The Chamber further notes that Article 60 of the 1986 People’s Armed Forces Act provided that disobedience to a lawful order is punishable by a term of imprisonment of 10 years or less.Footnote ⁶⁸ In this regard, the Defence claims that there was a general knowledge that the disobedience of any orders in operation ‘incurred [the] death penalty and possibly summary execution without trial’.Footnote ⁶⁹

44. However, the Chamber takes note of D-0016’s evidence that ‘[i]n all cases, there [was] no crime if a person disobey[ed] an unlawful order, it ha[d] to be a lawful order’,Footnote ⁷⁰ and that when ‘an officer […] issue[d] an unlawful order’, ‘the person who’s receiving the order [could] refuse to obey this order because it’s unlawful’.Footnote ⁷¹ According to D-0016, while execution of an unlawful order could incur criminal responsibility,Footnote ⁷² in practice, ‘people [didn’t] get referred to court straight away as soon as they refuse[d] obeying an order’, and they were ‘usually given information and an explanation about the importance of obeying the order and the consequences of disobeying it’.Footnote ⁷³ In addition, the Chamber notes Article 32 of the 1998 Sudanese Constitution, which specified that the death penalty may only be imposed as punishment for the most serious crimes, in accordance with the law, and that it cannot be imposed on persons below the age of 18, ‘on pregnant or lactating women, except two years after the birth’ and those above the age of 70, ‘except when they have committed the crimes of qisas [i.e. retribution] or hudud [prescribed penalties]’.Footnote ⁷⁴

45. Accordingly, the Chamber rejects the Defence’s arguments in relation to the definition of unlawful order in the Sudanese domestic laws.

46. As regards the Defence’s assertion that ‘the possible application’ of the doctrine of military necessity ‘contributed to strengthening an overall perception that everything was permissible while on operations on account of the GoS’,Footnote ⁷⁵ the Chamber notes that there is no evidence in this respect. The Chamber further notes that D-0016 provided a general overview of the use/abuse of the doctrine of military necessity in international humanitarian law and in Sudan.Footnote ⁷⁶ In any event, the Chamber notes that, as discussed below in this judgment, military necessity does not provide justification for the commission of the crimes with which the Accused is charged in the present case.Footnote ⁷⁷ Therefore, the Chamber rejects the Defence’s arguments in this regard.

47. In respect of the Defence’s suggestion that ‘amnesties [and] immunities […] created many obstacles’ to the prosecution in Sudan of the crimes with which the Accused is charged, the Chamber notes that there is no evidence before it which suggests that the Accused was granted any immunity or amnesty, in any form, by the Government of Sudan prior to or during the time of commission of the acts constituting the crimes charged, to render inapplicable the legal provisions discussed earlier vis-à-vis the Accused.Footnote ⁷⁸ In this regard, the Chamber notes that, when questioned by the Presiding Judge on whether there was an actual grant of an amnesty given by the GoS to its forces for any crimes that they may have committed during the period of 2003 and 2004, P-0120 responded ‘[n]o’.Footnote ⁷⁹ Accordingly, the Chamber rejects the Defence’s submissions in this respect.

48. Second, the Defence submits that in 2003 and 2004: (i) human rights were disregarded and the international human rights treaties were not implemented in Sudan, based on the evidence of the instances of torture, arbitrary arrests and detentions, as well as extrajudicial executions;Footnote ⁸⁰ (ii) international humanitarian law was not implemented domestically into the legal system of Sudan, as customary international law, as well as the relevant international treaties and conventions, did not directly become part of the domestic laws of Sudan;Footnote ⁸¹ and (iii) the definition of international crimes was absent in the domestic laws of Sudan.Footnote ⁸²

49. The Chamber finds that none of these issues impact or undermine the authority and applicability of the provisions of the 1991 Criminal Act, the 1986 People’s Armed Forces Act and the 1998 Sudanese Constitution. In this respect, the Chamber recalls D-0016’s evidence that ‘the acts described in the [Four] Geneva Conventions and the Rome Statute are crimes prohibited by the [1991 Criminal Act], even if [the 1991 Criminal Act used] different names for these acts and crimes’.Footnote ⁸³ In respect of the alleged disregard for human rights and prevalence of extrajudicial executions,Footnote ⁸⁴ the Chamber notes the evidence of D-0016 that it was ‘completely unacceptable, as the military criminal act is very clear about such offences and a person should have all the rights to a fair trial, especially when it comes to passing death sentences’.Footnote ⁸⁵ Non-compliance does not in and of itself vitiate the applicability of the law.

50. In the context of the present case, the test under Article 22(1) of the Statute does not require that the rules of international humanitarian law were implemented in the domestic legal system or that the definition of‘international crimes’ was adopted in domestic law with respect to the acts constituting the crimes charged. The first limb of the test is met when criminal laws applicable to the Accused, at the time the conduct took place, described the prohibited conduct clearly and defined the crimes charged such that a reasonable person in the Accused’s position could have expected, at that moment in time, to find himself faced with the crimes charged, domestically.Footnote ⁸⁶

51. Therefore, the Chamber is satisfied that the criminal laws applicable to the Accused, at the time of commission of the charged acts between August 2003 and March 2004, clearly described the prohibited conduct and defined crimes comparable to the crimes charged.

B. Whether a reasonable person in the Accused’s position could have expected, at the time of his conduct, to find himself faced with the crimes charged

52. The Chamber recalls that, at his first appearance before the Court, the Accused indicated that he fully understands and speaks Arabic.Footnote ⁸⁷ It also notes that, prior to the charged events in 2003 and 2004, the Accused: (i) spent a career as medical assistant in the Medical Corps of the SAF;Footnote ⁸⁸ (ii) could read and write, since it was a minimum requirement under Article 23 of the 1986 People’s Armed Forces Act for anyone who joined the SAF,Footnote ⁸⁹ as confirmed by D-0016;Footnote ⁹⁰ (iii) received a degree from a training school for general medical assistants in November 1984;Footnote ⁹¹ (iv) was registered with the Council of Auxiliary and Technical Medical Professions of Sudan;Footnote ⁹² (v) held the rank of musa’id or sol (warrant officer), the highest possible rank for a non-commissioned officer, at the time of his retirement from the SAF, around the early to mid-1990s;Footnote ⁹³ and (vi) opened a pharmacy in Garsila from which he sold medication, after retirement from the SAF.Footnote ⁹⁴

53. The Chamber further notes that, as discussed in detail below in this judgment, during the period of the charged events in 2003 and 2004, the Accused: (i) was the leader of the Janjaweed in the Wadi Salih and Mukjar localities, exercising oversight in relation to recruitment, distribution of ammunition, weapons, supplies and salaries of the Janjaweed, and commanding the Janjaweed (and in some instances GoS Forces) during operations; (ii) was the head of the Mujahidin Committee, a sub-committee of the Mobilisation Committee in Wadi Salih; and (iii) had access to high-level GoS officials, such as Hamdi Sharaf-Al-Din Sid Ahmad (‘Lt Hamdi’), Minister Harun, Ali Karti, Major General Suleiman Abdullah (‘Maj Gen Suleiman Abdullah’) and Abdullah Al-Tayyib Muhammad Torshein (‘Torshein’), and attended meetings with them.Footnote ⁹⁵

54. The facts outlined above demonstrate the Accused’s level of literacy and exposure to the rules and institutions of the State. Concerning the required degree of the Accused’s knowledge with respect to the relevant domestic laws of Sudan, the Chamber finds that, at the time of his conduct, the Accused was able to appreciate that his conduct was criminal ‘in the sense generally understood’, without reference to any specific provision.Footnote ⁹⁶

55. Therefore, on the basis of the evidence presented at trial and in light of the above, the Chamber is satisfied that a reasonable person in the Accused’s position could have expected, at the time of his conduct, to find himself faced with the crimes charged.

56. In this context, and on the basis of the foregoing findings, the Chamber addresses the specific challenges raised by the Defence.

57. First, the Defence contends that the Accused never received any training in international humanitarian law.Footnote ⁹⁷ In this regard, the Chamber recalls that the second limb of the test under Article 22 of the Statute is met when a reasonable person in the Accused’s position could have expected, at the time of his conduct, to find himself faced with the crimes charged, either nationally or internationally. As noted above, the Chamber has found that this requirement has been met in the present case, as a reasonable person in the Accused’s position, at the relevant time, would have been aware of the domestic criminal laws applicable to him.Footnote ⁹⁸ Therefore, it follows that it is immaterial to the Chamber’s current assessment whether the Accused received any training in international humanitarian law.

58. Second, the Defence alleges that the GoS officials invoked Sharia law in a deceptive manner to encourage the members of the GoS Forces and the Janjaweed to commit crimes in the context of the armed operations.Footnote ⁹⁹ In particular, the Defence submits that Minister Harun ‘invited’ the members of GoS Forces and the Janjaweed to resort to the concept of hiraba against the Fur people in Darfur,Footnote ¹⁰⁰ and that the chanting of ‘Allahu Akbar’ during armed operations led the GoS Forces and the Janjaweed to believe that they were pleasing God even when committing crimes in the course of the operation.Footnote ¹⁰¹

59. The Chamber also recalls that the domestic laws of Sudan applicable to the Accused, at the time of his conduct, clearly described the prohibited conduct and crimes comparable to the crimes charged, including armed robbery (hiraba).Footnote ¹⁰² Considering that, as noted above, the Accused held a high-ranking position as a senior Janjaweed leader with a substantial set of responsibilities and powers, and that he spent a considerable part of his career in the SAF, the Chamber is satisfied that a reasonable person in the position of the Accused would not have been ‘deceived’ into believing that his acts and conduct during the charged events were legal or justified.Footnote ¹⁰³ In addition, the Chamber emphasises that a mere suggestion, without support of any witnesses or documents, does not become part of the evidence to be taken into account for the purposes of this judgment.Footnote ¹⁰⁴

III. CONCLUSION

60. On the basis of the evidence before it, and having rejected all of the Defence’s challenges, the Chamber is satisfied that the requirement of nullum crimen sine lege, found in Article 22(1) of the Statute, is met in this case.

SECTION 3. DEFENCE’S ALLEGATIONS CONCERNING THE FAIRNESS OF THE PROCEEDINGS

61. The Defence raises a number of allegations concerning the fairness of the proceedings.Footnote ¹⁰⁵ In particular, the Defence submits that the fairness of the trial was ‘irremediably compromised’ by: (i) Sudan’s non-cooperation with the Court,Footnote ¹⁰⁶ and the Court’s failure to accord appropriate remedies to ensure the fairness of the proceedings in this regard;Footnote ¹⁰⁷ (ii) difficulties in the Defence’s investigations and presentation ofits case, as a result ofSudan’s lack of cooperation;Footnote ¹⁰⁸ (iii) the Prosecution’s failure to uphold its statutory obligations;Footnote ¹⁰⁹ and (iv) the Court’s failure to provide appropriate measures to protect the safety and well-being of witnesses.Footnote ¹¹⁰ The Defence, in essence, argues that these issues, individually and cumulatively, warrant a permanent stay of the proceedings.Footnote ¹¹¹

62. While the statutory framework does not explicitly provide for a permanent stay of proceedings, the jurisprudence of the Court confirms the availability of this remedy.Footnote ¹¹² In relation to the application of Article 21(3) of the Statute to alleged breaches of the accused person’s rights, the Appeals Chamber has held that ‘[w]here fair trial becomes impossible because of breaches of the fundamental rights of the suspect or the accused by his/her accusers, it would be a contradiction in terms to put the person on trial’, and that ‘[i]fno fair trial can be held, the object of the judicial process is frustrated and the process must be stopped’.Footnote ¹¹³ Not every infraction of the statutory framework justifies the granting of a request for stay of proceedings: the violation must be of such importance as to make a fair trial permanently impossible.Footnote ¹¹⁴ The unfairness in the treatment of the accused person must be of such a nature that it ‘rupture[s] the process to an extent making it impossible to piece together the constituent elements ofa fair trial’.Footnote ¹¹⁵ As such, a stay of proceedings is a ‘drastic remedy’ of an exceptional nature.Footnote ¹¹⁶

63. Accordingly, the Chamber has considered each of the Defence’s allegations with respect to the fairness of the proceedings and assessed whether they, individually or cumulatively, warrant a permanent stay of the proceedings.

64. As explained in detail below, the Chamber finds that the Defence’s submissions are unfounded. It also notes in this regard the Prosecution’s submission and the CLRV’s observation that the Defence has misrepresented the relevant facts and submitted ‘specious and repeated claims’ throughout the proceedings to ‘create an illusion ofunfairness’.Footnote ¹¹⁷

65. As a preliminary matter, the Chamber notes the Defence’s submission that it ‘does not relitigate as part of[the] Final Brief’ the 15 issues pertaining to ‘Sudan’s non-cooperation with the Court’, which are listed in Annex I to its Final Brief,Footnote ¹¹⁸ since these issues have been the ‘topic of many exchanges and much litigation throughout the proceedings’.Footnote ¹¹⁹ While the Defence characterises the 15 issues as ‘unresolved’,Footnote ¹²⁰ the Chamber confirms that, on the basis of the relevant submissions of the parties and participants, the Pre-Trial Chamber and this Chamber have already ruled upon these issues.Footnote ¹²¹ Moreover, as the Defence acknowledges, the Chamber’s ‘rulings thereon are final until considered by the Appeals Chamber’.Footnote ¹²² As such, the Chamber understands the Defence’s submission to be that these 15 issues are ‘on record’ for the Appeals Chamber’s consideration later on appeal.Footnote ¹²³ Therefore, the Chamber has reviewed only the Defence’s submissions that are set out in the Final Brief and those made under Rule 64 of the Rules in relation to witness statements throughout the duration of the trial. For the purposes of making the Chamber’s position clear and in order to prevent any misunderstanding, the Chamber, in this section of the judgment, repeats its prior determinations where necessary, in addition to addressing the additional arguments raised by the parties.

A. COOPERATION OF SUDAN

66. The Chamber notes that the Defence re-litigates in the Final Brief the following issues which have already been adjudicated upon and are also listed as such in Annex I to its Final Brief: (i) the alleged absence ofa ‘special agreement’ with Sudan as required under Article 4(2) of the Statute’;Footnote ¹²⁴ (ii) Sudan’s denial of all requests for cooperation submitted by the Defence;Footnote ¹²⁵ and (iii) the purported ‘incrimination ofcooperation with the Court under Sudanese law’.Footnote ¹²⁶

67. The Chamber recalls that, pursuant to Article 64(2) of the Statute, a chamber of the Court is obliged to ensure that the proceedings before it are conducted with full respect for the rights of the accused, including the rights of an accused enshrined in Article 67 of the Statute, and to guarantee the interests of justice and the fairness of the proceedings.Footnote ¹²⁷ In light of this obligation, the Chamber will address the aforementioned challenges of the Defence in order to assess whether there was unfairness or undue prejudice to the Accused’s rights.

A. Allegations concerning a special agreement pursuant to Article 4(2) of the Statute

68. The Defence has asserted throughout the proceedings that specific reference to Article 4(2) of the Statute is necessary in the text of an agreement concluded between the Court and a State for that agreement to be considered a ‘special agreement’ within the meaning of Article 4(2) of the Statute.Footnote ¹²⁸ In its Final Brief, the Defence attempts to re-litigate the issue of the ‘absence of a special agreement with Sudan authorising the Court to exercise its function and powers on its territory, as required under Article 4(2) of the Statute’.Footnote ¹²⁹

69. Article 4(2) of the Statute provides that the Court may exercise its functions and powers, as provided in the Statute by way of a special agreement on the territory of any other State. In the present case, the Chamber recalls Article 1 of the ‘Agreement on Cooperation between the International Criminal Court and the Republic of the Sudan (the ‘Cooperation Agreement’), which states its purpose as the establishment of mechanisms to operationalise and enhance cooperation between the Court and Sudan, and to facilitate the expeditious fulfilment of the Court’s mandate within the territory of Sudan in the context of the instant case.Footnote ¹³⁰

70. The Pre-Trial Chamber and this Chamber previously rejected the Defence’s repeated submissions in relation to the meaning of the term ‘special agreement’, as set out in Article 4(2) of the Statute,Footnote ¹³¹ as well as the Defence’s requests for reconsideration of, and leave to appeal, the decisions on this matter.Footnote ¹³² The Chamber has specifically held that the Cooperation Agreement was a ‘special agreement’ within the meaning of Article 4(2) of the Statute.Footnote ¹³³ In reaching this conclusion, the Chamber noted that the Defence provided no reason for its assertion that specific reference of Article 4(2) of the Statute is necessary in the text of an agreement entered into by the Court and a State for that agreement to be considered a ‘special agreement’ within the meaning of the Article 4(2) of the Statute.Footnote ¹³⁴ The Chamber found that, ‘despite the absence ofa reference to Article 4(2) of the Statute in its text[,] the purpose, scope and contents of the Cooperation Agreement clearly qualify it as a “special agreement” within the meaning of Article 4(2) of the Statute’.Footnote ¹³⁵

71. The Chamber notes that there is no evidence or information before it which indicates otherwise. Furthermore, the Defence, in its Final Brief, merely recalls its previous submissions that were rejected and does not present any new arguments. Accordingly, the Chamber finds that the Court’s previous decisions on this issue stand and will not further adjudicate upon this issue.

B. Allegations regarding the Defence’s requests for cooperation from Sudan and the measures undertaken by the Chamber

a) The measures undertaken by the Chamber in respect of the Defence’s requests for cooperation from Sudan

72. As a preliminary matter, the Chamber recalls that, contrary to the Defence’s assertion,Footnote ¹³⁶ it duly considered and ruled upon the Defence’s repeated submissions in relation to the requests for the Accused’s civil, criminal and military records from Sudan,Footnote ¹³⁷ as set out below.

73. On 11 February 2022, the Chamber issued its Decision on Defence’s Article 57(3)(b) Request,Footnote ¹³⁸ seeking assistance from Sudan in providing the following documents relating to the Accused’s background and identity for the preparation of his defence: (i) birth certificate; (ii) certificate of civil status; (iii) certificate of registered place of residence, specifically as regards the period between 1 August 2003 and 31 July 2004; (iv) records of service in the police and/or army of the GoS including, insofar possible, specific dates and places of enrolment, training, deployment and retirement, specifically as regards the period between 1 August 2003 and 31 July 2004; and (v) full criminal record, including details relating to any arrest, detention, prosecution, conviction or acquittal (the ‘Requested Documents’, collectively).Footnote ¹³⁹

74. On 24 May 2022, the Chamber partially rejected the Defence’s first request for a finding of non-cooperation by Sudan with respect to the requests for cooperation, which was filed on 22 April 2022,Footnote ¹⁴⁰ and invited Sudan to submit observations on any issue(s) that may have impeded or prevented the execution of the Decision on Defence’s Article 57(3)(b) Request.Footnote ¹⁴¹ In their observations of 30 June 2022, the Sudanese authorities apologised for the delay in providing the Requested Documents, clarified the conditions that prevented the provision of said documents, and promised to provide the requested documents on a rolling basis.Footnote ¹⁴²

75. On 4 November 2022, the Chamber issued the Decision on Defence’s Second Article 87(5)(b) Request in which it deferred its decision on the Defence’s second request for a finding of non-cooperation, filed on 11 October 2022,Footnote ¹⁴³ until after 13 January 2023, and required the Sudanese authorities to provide the Requested Documents no later than 13 January 2023.Footnote ¹⁴⁴ On 8 November 2022, the Chamber issued an addendum to this decision, requiring the Sudanese authorities to provide the Defence with additional documents (the ‘Additional Documents’) by the same deadline.Footnote ¹⁴⁵ It also invited the Sudanese authorities to file observations on these documents by 1 December 2022.Footnote ¹⁴⁶ On 29 November 2022, the Chamber rejected the Defence’s request of 11 November 2022 for leave to appeal the Decision on Defence’s Second Article 87(5)(b) Request.Footnote ¹⁴⁷

76. On 16 January 2023, the Defence filed a third request for a finding of non-cooperation by Sudan.Footnote ¹⁴⁸ In their communication of 12 January 2023, the Sudanese authorities stated that they were unable to respond to the Court’s requests ‘as it endangers the National Security of the State’.Footnote ¹⁴⁹ Following this communication, the Chamber scheduled a status conference on 17 January 2023 in which the Prosecution, Registry and Defence made oral submissions.Footnote ¹⁵⁰

77. On 20 January 2023, the Chamber issued the Decision concerning Documents Requested on 11 February 2022, requesting Sudan to provide specific reasons as to why they consider that the Requested Documents relate to the national security of Sudan within 21 days of notification of said decision.Footnote ¹⁵¹ Following notification of the Arabic translation of this decision to the Sudanese authorities on 25 January 2023, Sudan was requested to provide the documents by 15 February 2023.Footnote ¹⁵²

78. On 27 January 2023, the Chamber issued a decision, instructing the Defence to clarify and modify its request in respect of the Additional Documents.Footnote ¹⁵³ On 1 February 2023, upon the request of the Chamber,Footnote ¹⁵⁴ the Defence filed a modified request for legal assistance in respect of the Additional Documents.Footnote ¹⁵⁵

79. On 6 February 2023, the Chamber issued the Decision concerning Documents Requested on 8 November 2022, requesting Sudan to provide the documents listed in the Defence’s modified request within 21 days, or ifSudan still considered these documents to fall under Article 72 of the Statute, to provide specific reasons for that decision within the same deadline.Footnote ¹⁵⁶ Following notification of the Arabic translation of this decision to the Sudanese authorities on 9 February 2023, Sudan was requested to provide the documents by 2 March 2023.Footnote ¹⁵⁷

80. On 16 February 2023, the Chamber dismissed the Defence’s request of 3 February 2023 for leave to appeal the two decisions requesting cooperation from Sudan with respect to the Requested Documents and the Additional Documents.Footnote ¹⁵⁸

81. On 17 April 2023, the Chamber issued the Decision on Defence’s First Request for Postponement, in which it rejected the Defence’s request seeking the postponement sine die of the presentation of its case and therefore of all deadlines, but nonetheless amended the deadlines set out in the Second Directions on Conduct of Proceedings to provide more than four months to the Defence.Footnote ¹⁵⁹ On 11 May 2023, the Chamber rejected the Defence’s request seeking reconsideration or alternatively leave to appeal this decision.Footnote ¹⁶⁰

82. On 31 May 2023, noting that none of the documents requested by the Chamber were provided by the Sudanese authorities,Footnote ¹⁶¹ the Chamber issued the Decision on Defence’s Requests for Finding of Non-Compliance in which it found that ‘Sudan ha[d] failed to comply with the Chamber’s requests for cooperation’, pursuant to Article 87(7) of the Statute,Footnote ¹⁶² and requested the representatives of Sudan to appear at the status conference to provide submissions in respect of the documents requested by the Chamber.Footnote ¹⁶³

83. On 30 October 2024, the Chamber issued the Decision on Defence’s Request for Additional Evidence, accepting the submission of Sudan’s note verbale of 23 October 2024 into evidence.Footnote ¹⁶⁴

b) The Chamber’s determination

84. The Chamber first notes the Defence’s general assertion that the Chamber ‘systematically denied the remedies to ensure a fair trial at its disposal’, in violation of Article 64(2) of the Statute, and that the only remedy provided to the Defence was additional time, which was ‘not enough to redress fair trial shortcomings’ arising from ‘the security situation in Sudan’.Footnote ¹⁶⁵

85. In this regard, the Chamber recalls that ‘[g]iven the nature of this Court, neither an ongoing conflict nor a lack of State cooperation are exceptional in nature and should not be insurmountable, nor lead to impunity, nor prevent achieving justice for victims’.Footnote ¹⁶⁶ In the present case, in light of the ongoing armed conflict in Sudan, the Court has taken necessary steps required by the Statute in a timely manner to ensure Sudan’s cooperation and the fairness of the proceedings.Footnote ¹⁶⁷

86. This Chamber, in particular, acknowledged the impact of Sudan’s failure to comply with its requests for cooperation on the Defence’s ability to prepare its defence ‘in accordance with its chosen line of investigation’,Footnote ¹⁶⁸ and, upon the Defence’s requests, authorised adjournments in the proceedings on 17 April 2023,Footnote ¹⁶⁹ 7 July 2023,Footnote ¹⁷⁰ 11 December 2023,Footnote ¹⁷¹ and 23 January 2024,Footnote ¹⁷² which accorded reasonable time for the Defence to investigate and present its case, and to call witnesses from Darfur and outside Sudan.Footnote ¹⁷³ Moreover, the Chamber authorised the Defence to disclose evidence on a rolling basis, which was a facility not given to the Prosecution.Footnote ¹⁷⁴ In this respect, the Chamber recalls its previous finding that ‘it has granted the Defence a remarkable degree of latitude and flexibility in the preparation and presentation of its evidence’, and that ‘[t]he Defence’s assertion that the Chamber’s decisions according more time to the Defence are of limited value, is not borne out by the evidence’.Footnote ¹⁷⁵

87. The Chamber further notes that, even without the Chamber’s specific instruction to do so, it was ‘incumbent on the Defence to identify and put in place alternative measures to continue the presentation of its case’.Footnote ¹⁷⁶ Instead, the Defence focused almost exclusively on discussions and arguments with the Registry and repeated requests that the Chamber make a finding of non-compliance pursuant to Article 87(7) of the Statue.Footnote ¹⁷⁷ The Chamber’s conclusions in this regard remain unchanged, in particular that ‘many of the delays’ in the preparation and investigation of the Defence case were attributable to the Defence’.Footnote ¹⁷⁸

88. Second, in respect of the Requested Documents, the Chamber notes that, as noted above, it has applied its best efforts to obtain cooperation from Sudan by setting reasonable deadlines and providing open channels of communication with the Court.Footnote ¹⁷⁹ Namely, the Chamber addressed each request of the Defence in a timely manner and issued four decisions, on 24 May 2022, 4 November 2022, 8 November 2022 and 6 February 2023, respectively, in which it required that the Sudanese authorities provide the documents requested by the Defence.Footnote ¹⁸⁰ Following Sudan’s communication of 12 January 2023 invoking the national security of the State, the Chamber duly engaged in the process set out in Article 72 of the Statute in respect of the requested documents, and took all reasonable steps to resolve the matter by cooperative means.Footnote ¹⁸¹ The Chamber also issued two decisions, on 20 January 2022 and 6 February 2023, respectively, requiring that the Sudanese authorities present specific reasons why they considered that the requested documents related to Sudan’s national security.Footnote ¹⁸²

89. Moreover, as noted above, given the circumstances in the present case, the Chamber accepted the submission of Sudan’s note verbale of 23 October 2024 into evidence.Footnote ¹⁸³ The Chamber recalls that this note verbale contains information that the parties, particularly the Defence, and the Registry exerted considerable efforts to obtain, including excerpts of a document requested by the Chamber, pursuant to Article 57(3)(b) of the Statute, and a detailed explanation as to the Sudanese authorities’ inability to provide the other documents requested by the Chamber.Footnote ¹⁸⁴

90. In this context, the Chamber maintains its finding that the Defence’s disagreement with the Chamber’s exercise of its trial management powers does not automatically make the trial unfair, and that the alternative measures sought by the Defence would have neither contributed to the reception of the documents the Defence requested nor expedited the proceedings.Footnote ¹⁸⁵

91. Third, having before it the entirety of the evidence presented at trial, the Chamber adheres to its view that ‘it is not readily apparent […] how these documents may be considered to be so essential as to [have] prevent[ed] the [D]efence from putting forward any kind of a case’.Footnote ¹⁸⁶ It reiterates that there is a difference between ‘necessary’ and ‘essential’.Footnote ¹⁸⁷ The suggested possibility that these documents may have included exculpatory information is too hypothetical, without more, to lay a basis for a finding of unfairness.Footnote ¹⁸⁸

92. Specifically, as regards the Accused’s civil records, the Chamber notes that the Defence merely speculates and does not explain how and why these documents ‘would likely have confirmed whether Mr Abd-Al-Rahman was ever known as Ali Kushayb’.Footnote ¹⁸⁹ Nor does the evidence or information before it suggest that the civil documents in Sudan would usually include nicknames of individuals, or that the absence of a nickname on such documents would be proof that the person does not have a nickname.Footnote ¹⁹⁰

93. With respect to the Accused’s military records, the Defence asserts that these documents ‘would likely have provided decisive support for its intended notice of partial alibi regarding the events in Deleig’.Footnote ¹⁹¹ In this regard, the Chamber recalls the Defence’s submission of 22 June 2023, in which it indicated that while it was ‘not in a position to submit a proper notice of alibi’ due to the lack of Sudan’s cooperation, it intended to raise an alibi defence in respect of the Mukjar and Deleig incidents.Footnote ¹⁹² Subsequently, the Chamber instructed the Defence to ‘provide all further details ofits alibi defence, pursuant to Rule 79(1)(a) of the Rules, as and when it receives them’.Footnote ¹⁹³ However, during the trial, the Defence did not submit an alibi notification in accordance with Rule 79(1) of the Rules, nor has the Defence presented any credible evidence which would support the alibi defence it intended to raise.Footnote ¹⁹⁴

94. The Chamber - in line with its approach set out in the section of Evidentiary Principles and Considerations,Footnote ¹⁹⁵ and as detailed later in this judgment - has assessed the evidence on the criminal responsibility of the Accused for the crimes alleged in Mukjar and Deleig on the basis of the requisite standard of whether the Prosecution has been able to convince it of the Accused’s guilt beyond reasonable doubt.Footnote ¹⁹⁶ The Chamber notes that the evidence presented at trial, including the evidence provided by Defence witnesses, indicates that the Accused was not encamped in a CRF training facility in Al Obeid in late February or early March 2004, and was instead in Mukjar and Deleig.Footnote ¹⁹⁷ In particular, D-0031 gave evidence that the Accused ‘wouldn’t have been in El Obeid joining the RSF at the time of [the] Deleig incidents’.Footnote ¹⁹⁸

95. In respect of the Accused’s criminal record, the Chamber notes the Defence’s submission that this document ‘would eventually have proved’ that the ‘6 November 2006 Note of interview of Mr Abd-Al-Rahman (noting Ali Kushayb as an alias) is not authentic’.Footnote ¹⁹⁹ The Chamber notes that this submission is premised on the Defence’s speculation that: (i) if the Accused had been investigated by the Sudanese authorities, ‘that information would appear in his criminal record’; and that (ii) if there is no mention of such investigation in his criminal record, ‘[t]he absence […] would have been proofthat he was never investigated’.Footnote ²⁰⁰ There is no evidence or information before the Chamber which supports the Defence’s assertion. Accordingly, the Chamber finds that this submission of the Defence is speculative and unsubstantiated.Footnote ²⁰¹ In any event, the Chamber, for reasons set out below, has decided not to rely on the ‘6 November 2006 Note ofinterview’ of the Accused.Footnote ²⁰²

96. In light of the foregoing considerations, the Chamber finds that the measures undertaken by it in respect of the Defence’s requests for cooperation from Sudan did not raise an issue of the fairness of the proceedings, and thus rejects the Defence’s allegations in this regard.

C. Allegations concerning the Defence’s requests for the Chamber’s finding of non-cooperation pursuant to Article 87(7) of the Statute

97. The Chamber recalls that it has previously considered and ruled upon the Defence’s requests for a finding of non-cooperation by Sudan with respect to requests for cooperation.Footnote ²⁰³ In its Final Brief, the Defence repeats its prior submission concerning the Decision on Defence’s Requests for a Finding of Non-Compliance that the Chamber’s ‘reasons denying referral to the [UN Security Council] were flawed’.Footnote ²⁰⁴ According to the Defence, ‘[o]nce [the Chamber] had exercised its discretion and found that Sudan was not cooperating, it no longer had discretion to refer the matter to the [UN Security Council]’.Footnote ²⁰⁵

98. The Chamber finds that the Defence’s submission is based on its misunderstanding of the relevant legal framework. In this regard, the Chamber recalls Article 87(7) of the Statute, which provides that where the Security Council referred the matter to the Court, as in the present case, ‘the Court may make a finding [of non-compliance] and refer the matter to […] the Security Council’, when ‘a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute’.Footnote ²⁰⁶ As the Appeals Chamber noted, the use of the term ‘may’, as opposed to the term ‘shall’, in this provision indicates that ‘a Chamber has discretion to make or not to make a finding of non-compliance’.Footnote ²⁰⁷ The Chamber also recalls that this provision ‘consists oftwo cumulative conditions’, namely that (i) the State concerned failed to comply with a request to cooperate; and that (ii) this non-compliance is grave enough to prevent the Court from exercising its functions and powers under the Statute.Footnote ²⁰⁸ It is only when a chamber has established that both conditions are met that it may proceed to consider whether to refer the State to the UN Security Council, following a finding of non-compliance.Footnote ²⁰⁹ The Chamber emphasises that:

99. In the extant case, noting that the Sudanese authorities failed to provide the documents requested by the Chamber and did not provide the requested information on their invocation of Article 72 of the Statute, the Chamber found that ‘Sudan ha[d] failed to comply with the Chamber’s requests for cooperation’.Footnote ²¹¹ Following this finding of non-compliance, the Chamber carefully examined whether circumstances were such that a referral of the matter to the UN Security Council within the meaning of Article 87(7) of the Statute was warranted.Footnote ²¹² It found that it could not ‘exercise its discretion to refer Sudan to the UN Security Council’, since it could not conclude that ‘Sudan’s non-compliance ha[d] prevented the Court from exercising its functions and powers under the Statute’.Footnote ²¹³ It also found that, ‘[c]onsidering the complex and transitional political situation in Sudan and the fact that the object and purpose of Article 87(7) of the Statute is to foster cooperation’,Footnote ²¹⁴ ‘such a referral may not be an effective means to address the lack ofcooperation in the specific context of the case’.Footnote ²¹⁵

100. In light of the above, the Chamber is satisfied that it exercised its discretion properly in accordance with Article 87(7) of the Statute. Accordingly, the Chamber rejects the Defence’s submissions in this regard.

D. Alleged incrimination of cooperation with the Court under Sudanese law

101. Among the 15 adjudicated issues listed in Annex I its Final Brief, the Defence repeats in its Final Briefits prior submissions on the purported ‘incrimination ofcooperation with the Court under Sudanese law’.Footnote ²¹⁶

102. The Chamber recalls that it previously dismissed as ‘unfounded’ the Defence’s allegation that Sudan criminalised cooperation with the Court under Sudanese law.Footnote ²¹⁷ In reaching this conclusion, the Chamber considered the detailed information provided by the Registry,Footnote ²¹⁸ and found that ‘[n]o evidence ha[d] been put before the Chamber to suggest that the confirmation of decriminalisation [provided by the Sudanese authorities on 11 October 2021] is open to doubt’.Footnote ²¹⁹

103. The Chamber also recalls that it rejected the Defence’s request to reconsider the aforementioned finding.Footnote ²²⁰ The Chamber found that the facts provided by the Defence ‘[did] not directly have any bearing on the actual issue of criminalisation by [Sudan]’ and ‘[did] not demonstrate any error of reasoning or injustice vis-à-vis the Chamber’s finding that the cooperation with the Court is not criminalised under Sudanese law’.Footnote ²²¹

104. The Chamber notes that no further evidence or information was presented to the Chamber which supports the Defence’s claim. Nor has the Defence, in its Final Brief, provided any new arguments beyond its prior submissions.Footnote ²²² Therefore, the Chamber rejects the Defence’s submission in this regard.

E. Conclusion

105. In light of the foregoing considerations, and having rejected all of the Defence’s challenges concerning Sudan’s cooperation with the Court, the Chamber finds that the Accused did not suffer any prejudice that would justify the exceptional remedy of a permanent stay of the proceedings.

II. IMPACT OF SUDAN’S LACK OF COOPERATION

A. Alleged classification of the Defence’s investigation as a threat to Sudan’s national security

106. The Chamber recalls that it has rejected the Defence’s prior submissions alleging that Sudan classified the Defence’s investigation on Sudan’s territory as a threat to its national security.Footnote ²²³ The Chamber found that the Defence failed to support this claim with ‘any kind of evidence’, and that ‘there [were] no indications suggesting that Sudan regards a Defence mission as something which endangers Sudan’s national security’.Footnote ²²⁴

107. In its Final Brief, the Defence appears to mischaracterise Sudan’s specific response to the Court’s requests for the provision of the Requested Documents as a blanket classification of all Defence investigations as a threat to its national security. Specifically, the Defence asserts that the fact that there is no mention of‘Sudan’s earlier position that the Defence’s investigation was a threat to its national security’ in Sudan’s note verbale of 23 October 2024 confirms ‘how unfounded [Sudan’s earlier position] always was’.Footnote ²²⁵

108. However, there is no evidence or information before the Chamber which demonstrates that Sudan, at any point of the proceedings, classified the Defence’s investigation as a threat to its national security. Furthermore, the Chamber recalls that, as noted below, the GoS granted the Defence multi-entry visas with six months validity, and that the Defence went on an investigative mission in Sudan in June 2022.Footnote ²²⁶ Accordingly, the Chamber rejects the Defence’s arguments in this regard.

B. Delays caused in the investigation and the presentation of the Defence’s case, as a result of difficulties in contacting and protecting witnesses in Sudan

109. In its Final Brief, the Defence submits, again, that as a result of Sudan’s ‘non-cooperation with the Court’, it had difficulties in conducting investigations in Sudan, namely in contacting and obtaining protection services for its witnesses in Sudan.Footnote ²²⁷ The Defence avers that the loss of potential witnesses caused prejudice to the Accused.Footnote ²²⁸

110. The Chamber recalls that it has rejected the Defence’s repeated submissions pertaining to the ‘impossibility of protecting witnesses on the territory ofSudan’, and its requests for leave to appeal the decisions in this regard.Footnote ²²⁹ Moreover, as regards the Defence’s request during the trial to ‘order a halt on all field activities in Sudan’, the Chamber reiterated that ‘it does not have the power to prohibit ‘parties and participants in the case from undertaking investigative measures and missions in Sudan’.Footnote ²³⁰ In particular, the Chamber found as follows:

111. The Chamber notes that the aforementioned finding does not indicate that the Registry is not subject to judicial control, but rather ‘security is a matter for the Registry and not the parties, to assess’.Footnote ²³² In this regard, the Chamber recalls the Registry’s submission that it had undertaken substantial efforts to assist the preparation of the Defence’s missions to third countries,Footnote ²³³ and that existing security arrangements were sufficient to carry out missions as requested by the Defence.Footnote ²³⁴ The Registry further confirmed that it could facilitate video-link for the Defence’s interview of the witnesses living in Darfur and the witnesses travelling from Sudan to the Central African Republic.Footnote ²³⁵ The Chamber also recalls that the Prosecution made repeated offers to assist the Defence in the preparation of its case, including the facilitation of missions,Footnote ²³⁶ and that the Defence affirmed the Prosecution’s cooperation had proved to be effective.Footnote ²³⁷

112. In this context, the Chamber has noted that the Defence: (i) allocated significant time and resources to litigate before the Chamber the issues which were already adjudicated by the Pre-Trial Chamber; (ii) had been aware of possible difficulties in securing cooperation from Sudan since 2020 and should have planned accordingly; (iii) recruited its resource person 14 months after the charges against the Accused were confirmed; (iv) postponed missions to Sudan, without proper justification, on the basis of non-transmission of security-related documents by the Registry; (v) requested assistance for missions to third countries only in 2023; and (vi) had provided no information in respect of its exploration of other avenues to obtain evidence, notwithstanding it had been aware of the factual contours of the case since the confirmation of charges against the Accused in 2021.Footnote ²³⁸ The Chamber further recalls that the Appeals Chamber also cautioned the Defence to ‘represent the client expeditiously with the purpose of avoiding unnecessary expense or delay in the conduct of the proceedings’, in accordance with Article 24(5) of the Code of Professional Conduct for counsel.Footnote ²³⁹

113. Notwithstanding the strategy adopted by the Defence which caused delays in the present case,Footnote ²⁴⁰ the Chamber nevertheless acknowledged and took into account, on a number of occasions, the fact that the ongoing armed conflict in Sudan had created further challenges concerning the Defence’s on-site investigations in Sudan.Footnote ²⁴¹ As noted above, the Chamber authorised several adjournments in the proceedings, allowing the Defence adequate time to obtain evidence and continue with the presentation of its case.Footnote ²⁴² The Chamber reiterates that it is under no obligation to validate the limitations which the Defence imposed on itself.Footnote ²⁴³

114. Lastly, the Chamber notes that, contrary to the Defence’s assertion, the Prosecution did not acknowledge in the Prosecution’s Response to Defence’s Request for Status Conference that the Defence’s inability to visit Darfur, Kodoom, Bindisi, Mukjar, Deleig and Rahad Al-Berdi was ‘a major obstacle in the conduct of its investigation’.Footnote ²⁴⁴ Rather, the Prosecution submitted that the Defence ‘fail[ed] to specify in concrete terms how its inability to visit Sudan ha[d] in fact impacted its preparations’, and that, notwithstanding this failure of the Defence, it ‘accepts that the Defence may have legitimate reasons to visit Sudan to assist with its investigations’ and that ‘Sudan’s cooperation may be important in facilitating these investigations’.Footnote ²⁴⁵ The Chamber further notes that the Prosecution, in this submission, offered to ‘assist the Defence insofar as reasonable’ and ‘to use its contacts within the [GoS] to facilitate Defence requests for assistance where appropriate’.Footnote ²⁴⁶ Therefore, the Chamber considers that the Defence’s submission is misleading and taken out ofcontext.

115. The Chamber emphasises that, as can be seen in the foregoing and the record of the case, it duly took into consideration the difficulties encountered by the Defence arising from the circumstances in Darfur and in Sudan in general, when weighing the entirety of the evidence and information before it on this issue, in order to prevent any unfairness or undue prejudice towards the Accused. In light of the above, the Chamber rejects the Defence’s arguments in this regard.

C. Alleged non-delivery of visas to the Defence

116. The Chamber notes that the Defence attempts to mislead the Chamber in claiming that it ‘was granted visas for only one mission, in June 2022, and to Khartoum only’,Footnote ²⁴⁷ and that ‘[a]ll its other visa applications were ignored’.Footnote ²⁴⁸

117. This is a misrepresentation of the relevant facts, as the Defence was granted multi-entry visas with a six months validity on 3 February 2022.Footnote ²⁴⁹ In respect of the delay in obtaining visas, the Chamber previously noted that it was ‘partly due to the Defence’s own inaction from the time it was informed that the Sudanese authorities had granted the request for the issuance of visas of three members of the Defence’,Footnote ²⁵⁰ and found that ‘the Sudanese authorities [had] complied with their obligation under Article 28 of the Cooperation Agreement in relation to the granting ofvisas to the Defence team’.Footnote ²⁵¹

118. The Chamber also recalls that the Defence carried out one investigative mission to Sudan in June 2022 and unilaterally cancelled other investigative missions,Footnote ²⁵² refusing to accept the GoS’ visa requirements and engaging in interminable arguments with the Registry.Footnote ²⁵³ By contrast, the Prosecution and Registry accepted the GoS’ visa requirements and were able to conduct multiple missions to Sudan during the course of the trial.Footnote ²⁵⁴ In this regard, the Chamber further notes the Prosecution’s submission that, contrary to the Defence’s argument that the month of Ramadan presented ‘an insurmountable obstacle to carrying out investigative missions’,Footnote ²⁵⁵ the Prosecution interviewed many witnesses during its investigation, including during Ramadan.Footnote ²⁵⁶

119. In light of the above, the Chamber finds that it was the Defence’s own decision to go on only one mission during the period of 2021-2023, instead of making use of its six-month multi-entry visa by, for example, staggering six 30-day missions as the Prosecution did, or going on 12 two-week missions.Footnote ²⁵⁷ Accordingly, the Chamber rejects the Defence’s submissions concerning its visa applications.

D. Conclusion

120. In light of the foregoing, the Chamber finds that the Accused did not suffer prejudice as a result of Sudan’s non-cooperation with the Defence to the extent that would justify the exceptional remedy of a permanent stay of the proceedings.

III. ALLEGED FAILURE OF THE PROSECUTION TO UPHOLD ITS STATUTORY OBLIGATIONS

121. The Chamber notes that whenever issues in respect of the Prosecution’s statutory obligations were raised and demonstrated during trial, it evaluated whether, and to what extent, these alleged violations affected the reliability of the evidence to which they relate. In each instance, the Chamber addressed these issues in a manner that ensured the Accused’s right to a fair trial.Footnote ²⁵⁸

A. Alleged violation of Article 42(1) of the Statute

122. The Defence submits that the Prosecution ‘failed to act independently’ from the GoS in violation of Article 42(1) of the Statute, ‘[b]y falling for the GoS’ […] inducement to focus its investigation on [the Accused]’.Footnote ²⁵⁹

123. According to Articles 42(1) and 54 of the Statute, the Prosecutor enjoys discretion, entailing the power to select and investigate cases, which is a matter that falls within the mandate of the Prosecutor, with the exception of the powers granted to a pre-trial chamber under Article 53(3) of the Statute.Footnote ²⁶⁰ The Chamber also notes that the statutory framework of the Court is resolute in requiring that the Prosecutor shall exercise his or her functions ‘impartially and conscientiously’ at all times.Footnote ²⁶¹ In particular, Article 42(7) of the Statute instructs that ‘[n]either the Prosecutor or the Deputy Prosecutor shall participate in any matter in which their impartiality might reasonably be doubted on any ground’.

124. In the present case, the Chamber is not persuaded by the Defence’s speculation, without any substantiation, that the GoS ‘[i]nduc[ed] the Court to investigate and prosecute Mr Abd-Al-Rahman […] as an obvious attempt to deflect the [Prosecution’s] attention from perpetrators with senior positions within its government and/or army’, or that the Prosecution ‘blindly follow[ed] this thread handed to them by the GoS’.Footnote ²⁶² There is no evidence or information before the Chamber which supports these claims. Moreover, as a matter of public record, the Prosecution also carried out investigations and applied for arrest warrants with respect to other individuals in relation to the conflict in Darfur, Sudan.Footnote ²⁶³ Accordingly, the Chamber rejects the Defence’s arguments in this regard as purely speculative and unfounded.

B. Alleged failure to investigate exculpatory evidence pursuant to Article 54(1)(a) of the Statute

125. The Defence submits that, as a result of Sudan’s non-cooperation with the Court, the Prosecution failed to investigate in Darfur, notably in the places where the alleged offences took place’, ‘the town where Mr Abd-Al-Rahman lived at the relevant time of the charges, Garsila’,Footnote ²⁶⁴ or ‘the places where witnesses most likely to provide exculpatory evidence […] live’.Footnote ²⁶⁵ According to the Defence, this failure amounts to a breach of the Prosecution’s obligations under Article 54(1)(a) of the Statute.Footnote ²⁶⁶

126. The Chamber notes that paragraphs (a) and (b) of Article 54(1) of the Statute must be read in conjunction with each other.Footnote ²⁶⁷ While paragraph (a) of Article 54(1) of the Statute mandates that ‘[i]n order to establish the truth’, the Prosecutor ‘[s]hall […] extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under the Statute, and, in doing so, investigate incriminating and exonerating circumstances equally’, paragraph (b) of the provision requires the Prosecutor to ‘[t]ake appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court’. Consequently, should it be determined that there are reasonable grounds to believe that information not in possession of the Prosecution may be potentially exculpatory, Article 54(1) of the Statute obliges the Prosecution to make reasonable efforts to obtain that information.Footnote ²⁶⁸ The Chamber’s assessment under this provision is case specific.Footnote ²⁶⁹

127. In the present case, the Chamber first finds the Defence’s submission to be generalised and speculative, in that it does not specify how the Prosecution failed to effectively investigate incriminating and exonerating circumstances equally. The Defence does not specify nor even attempt to characterise the areas in which the Prosecution had failed to carry out its obligation to investigate exculpatory matters. Nor does the Defence substantiate how the alleged failure of the Prosecution caused prejudice to the Accused. The Chamber notes that Article 54 of the Statute does not impose on the Prosecution an infinite duty to investigate in the abstract.

128. Moreover, the Chamber recalls that, subsequent to the issuing of the first warrant of arrest against the Accused in 2007, the Prosecution carried out further investigations and gathered sufficient evidence to obtain a second warrant of arrest in 2018, in respect of crimes committed in Deleig and surrounding areas.Footnote ²⁷⁰ While the standard of proof with respect to a warrant of arrest is different from and lower than that at trial, the Chamber takes note of the fact that the Prosecution was able to carry out investigations between 2007 and 2017, even though the GoS at the time refused all forms of cooperation.Footnote ²⁷¹ The Chamber further notes that although the Prosecution had ‘never been able to go to Darfur to investigate’, due to the circumstances in Sudan,Footnote ²⁷² it brought witnesses from Darfur to, and conducted witness interviews in Khartoum, as well as in third countries,Footnote ²⁷³ including individuals who later provided evidence as Defence witnesses.Footnote ²⁷⁴ Accordingly, the Chamber is satisfied that the Prosecution has fulfilled its obligations under Article 54(1) of the Statute, and therefore rejects the Defence’s arguments in this regard.

129. Lastly, the Defence, by selective citation and misrepresentation of the remarks made by the Presiding Judge, attempts to mislead the Chamber in arguing that the Prosecution made a ‘surprisingly candid admission at trial’ to the effect that ‘[i]t conducted its whole investigation under the blinkered assumption that Mr Abd-Al-Rahman was Ali Kushayb, without ever asking itselfthe question ofwhether this really was one and the same person’, and that this admission ‘was commented [upon] as “a good one”’ by the Presiding Judge.Footnote ²⁷⁵ The Chamber first notes that the Prosecution did not make such an admission. When the Defence questioned whether the Prosecution was ‘suggesting that the identity of the person indicted was not an important information’, the Prosecution responded that ‘we knew that Mr Abd-Al-Rahman was Ali Kushayb at that point and that issue [i.e. the Defence’s allegation that the Accused is not Ali Kushayb] had not been raised’.Footnote ²⁷⁶ It was in this context that the Presiding Judge commented that the point which the Prosecution made was ‘a good one’, because ‘until [the Accused] appeared and [the Defence counsel] appeared, nobody knew that he was going to deny that he was one and the same person’.Footnote ²⁷⁷ Accordingly, the Chamber rejects the Defence’s submission.

C. Alleged breach of the Prosecution’s disclosure obligations under Article 67(2) of the Statute and Rule 77 of the Rules

130. The Defence submits that the Prosecution’s failure to conserve and disclose to the Defence any information with respect to its meeting with ‘a man named Ali Kushayb’ during its visit in Khartoum in June 2006 amounts to a breach of its disclosure obligations.Footnote ²⁷⁸ The Defence avers that the record of such a meeting ‘creates extensive doubt surrounding the Prosecution’s allegation that Mr Abd-Al-Rahman is Ali Kushyab’,Footnote ²⁷⁹ considering that the man named ‘Ali Kushayb’ with whom D-0016 said he met was ‘around his late 30s’ and ‘a member of the PDF’, whereas the Accused was ‘57 years old in 2006’ and ‘has never been in the PDF’.Footnote ²⁸⁰

131. The Prosecution submits that ‘[t]here was, and is, nothing to disclose about [a] meeting which never happened’.Footnote ²⁸¹ The Prosecution adds that it ‘never met with the [A]ccused in Khartoum or any other phantom Ali Kushayb’.Footnote ²⁸²

132. The Chamber notes that the Defence’s allegation ofnon-disclosure is premised on mere speculation that a meeting with a person named ‘Ali Kushayb’ ‘probably took place with the Prosecution delegation in Khartoum in June 2006’.Footnote ²⁸³ No evidence was presented at trial which supports the Defence’s claim that ‘the “introductory meeting” mentioned in the Road-Map must have been the meeting with Ali Kushayb mentioned by D-0016’.Footnote ²⁸⁴ The Chamber reiterates that a mere suggestion, without support of any witnesses or documents, does not become part of the evidence to be taken into account for the purposes of this judgment.Footnote ²⁸⁵ In the absence of any evidence in support of the Defence’s allegation, the Chamber accepts the Prosecution’s submissions that the alleged meeting never took place and that there is therefore no record of such a meeting in its possession or control within the meaning of Article 67(2) of the Statute. Considering that the Prosecution’s disclosure obligations under Article 67(2) of the Statute relate to material in its possession or control, the Chamber rejects the Defence’s arguments in this regard.

133. In respect of the Defence’s submission alleging the Prosecution’s failure to challenge the relevant evidence of D-0016,Footnote ²⁸⁶ the Chamber recalls that the Court’s legal framework combines adversarial and inquisitorial elements, including with respect to the role of the Prosecution.Footnote ²⁸⁷ On the one hand, the Prosecution’s disclosure obligations under Article 67(2) of the Statute and Rule 77 of the Rules continue to apply throughout the trial, and Article 54(1)(a) of the Statute makes it clear that the Prosecution is conceived of as an ‘objective truth seeker and not as a partisan lawyer’ during the investigation phase.Footnote ²⁸⁸ However, the Prosecution’s duty to investigate both incriminating and exonerating circumstances is limited to the investigation stage, and thereafter at trial, the Prosecution is expected to focus on proving the confirmed charges.Footnote ²⁸⁹ The Chamber also recalls that the procedure does not require the non-calling party to put questions relating to every area of disagreement, but only those which relate to real issues in the case.Footnote ²⁹⁰ Therefore, the Prosecution cannot be reprimanded for limiting its witness examinations to questions in support of its own case theory.Footnote ²⁹¹ Rather, it was the obligation of the calling party, the Defence, to put forward its case and include the accuracy or veracity of the evidence given by D-0016, in its questioning of the witness.Footnote ²⁹²

134. Accordingly, the Chamber rejects the Defence’s arguments in this regard. In the same vein, the Chamber also rejects the Defence’s submissions relating to the Prosecution’s reliance on witnesses from the Sudanese diaspora and ‘some witnesses [who] were living in refugee structures’.Footnote ²⁹³ In particular, the Chamber finds speculative and without merit the Defence’s blanket argument that ‘the chances of finding exculpatory evidence among such a class of witnesses [diaspora] has inherently always been minimal’, or that the fact that they were refugees increased their risk of contamination.Footnote ²⁹⁴

D. Allegations concerning the Prosecution’s collection of evidence after the confirmation of charges hearing

135. The Chamber notes that the issue of‘[i]nadmissibility of evidence of the nickname Ali Kushayb collected after the Confirmation Hearing’ is listed as one of the 15 adjudicated issues in Annex I to the Final Brief.Footnote ²⁹⁵ In this regard, the Chamber recalls that, earlier in this case, it rejected the Defence’s general submission that any evidence obtained after the confirmation of charges hearing should automatically be excluded, finding that the statutory framework and the relevant jurisprudence of the Court do not bar the Prosecution from continuing its investigation after the confirmation of charges hearing or from seeking to rely, at trial, on evidence so obtained.Footnote ²⁹⁶ In that decision, the Chamber noted that its rejection of the Defence’s objection is ‘without prejudice to the Chamber’s eventual determination on the formal submission and admissibility ofindividual items of evidence’.Footnote ²⁹⁷

136. The Chamber notes that the Defence systematically raised this issue in its submissions under Rule 64 of the Rules, challenging the admissibility of numerous witness statements.Footnote ²⁹⁸ To the extent that the Defence repeats its argument, without the addition of any further factual or jurisprudential support, that any evidence obtained after the confirmation of charges hearing should automatically be excluded, the Chamber confirms its previous decision on this issue and therefore rejects this submission. Moreover, the Chamber emphasises that it has duly assessed individually the admissibility of each item of evidence, including the witness statements. Accordingly, the Chamber reiterates that the Prosecution’s collection of evidence after the confirmation of charges hearing did not raise an issue of the fairness of the proceedings.

E. Conclusion

137. In light of the reasons set out above, the Chamber rejects the Defence’s allegations concerning the Prosecution’s statutory obligations.

IV. ALLEGATIONS REGARDING WITNESS PROTECTION

A. Evidence which allegedly is not in compliance with the Court’s Information Security Policies

138. First, the Chamber notes that the Defence, in its Final Brief, repeats its submission that the evidence in the present case ‘proves the Court’s numerous failures to protect the integrity of its evidence against [the Accused] and the occurrence of actual interference on behalf of the Sudanese authorities’.Footnote ²⁹⁹ The Chamber also notes in this regard that the Defence systematically raised this issue in its submissions under Rule 64 of the Rules, challenging the admissibility of a number of witness statements.Footnote ³⁰⁰

139. In accordance with Article 68(1) of the Statute, a chamber of the Court shall take appropriate measures to protect the safety and well-being of witnesses, while preserving the rights of the Accused and a fair and impartial trial. With this obligation duly in mind, the Appeals Chamber and this Chamber have already considered and ruled upon the Defence’s submissions alleging the interference of the Sudanese authorities with the evidence and the difficulty of protecting witnesses in Sudan.Footnote ³⁰¹

140. The Appeals Chamber previously found that the Defence failed to demonstrate that the measures taken by the Registry and assessed by the Chamber were unreasonable, given the various relevant factors at hand.Footnote ³⁰² In particular, the Appeals Chamber noted the Chamber’s consideration of the following factors: (i) the wishes of the witnesses; (ii) the fact that the risk to the witness ‘could actually be greater if the witness testifies at the seat of the Court or from another video link location’; (iii) the Defence’s misunderstanding of ‘the role of the [VWU], its ability to operate in Sudan, and the fact that witness protection is a confidential matter between the calling party and the [VWU]’; and (iv) the fact that arrangements had ‘been made with the UN allowing the Registry to facilitate the video link from Sudan from UN premises’.Footnote ³⁰³ The Appeals Chamber also noted the Defence’s misrepresentation of the information set out in the email from the Registry dated 22 September 2022, which provided that the Court utilises ‘proportionate compensating controls and measures’ to reduce the risk of interference to ‘an acceptable level’, such as encrypting the ‘content of the confidential information’, and that, therefore, even ifa communication were intercepted, the data could not be read.Footnote ³⁰⁴

141. On the basis of the entirety of the evidence and information before it, the Chamber finds that the Defence’s assertion pertaining to the purported interference of Sudan is not supported by evidence.Footnote ³⁰⁵ Accordingly, the Chamber rejects the Defence’s submissions in this regard.

142. Second, the Chamber recalls that the Pre-Trial Chamber previously rejected the Defence’s request for the exclusion of witness statements that are improperly marked as ICC ‘Restricted’ instead of ‘Confidential’, in violation of the rules of protection of confidentiality of information.Footnote ³⁰⁶ It considered the purported risk of interference by the Sudanese authorities to be ‘largely speculative’, and found as follows:

143. The Chamber further recalls that, earlier in this case, the Defence submitted before it the same request, arguing that protecting the confidentiality of witness statements is central to the fairness of the proceedings.Footnote ³⁰⁸ The Chamber rejected this request, agreeing with the aforementioned reasoning of the Pre-Trial Chamber. In this regard, it noted the Defence’s acceptance that the witnesses statements are marked and that all parties regard and treat the statements as confidential, as well as the absence of any evidence indicating the alleged interference.Footnote ³⁰⁹ The Chamber also rejected the Defence’s request for leave to appeal this decision, finding that, contrary to the Defence’s claim that it placed a burden on the Defence to prove interference with the witnesses or the risk of interference, the Chamber merely requested the Defence to clarify the factual basis for alleging such interference.Footnote ³¹⁰

144. While the Defence does not make any submissions in this regard in its Final Brief, the Chamber notes that the Defence has systematically raised this issue in its submissions under Rule 64 of the Rules, challenging the admissibility of numerous witness statements.Footnote ³¹¹

145. In the absence of any evidence or information before the Chamber in support of the Defence’s claim or any substantiation by the Defence as to the factual basis of the alleged interferences by the Sudanese authorities, the Chamber finds that the Prosecution’s practice of marking the contested witness statements as ‘Restricted’ instead of ‘Confidential’ does not raise an issue of the fairness of the proceedings for the reasons set out in the above-mentioned previous decisions of the Court.

B. Allegations concerning protective measures

146. With respect to the Defence’s argument that the VWU ‘never had any opportunity of setting up protection programmes on Sudan territory’,Footnote ³¹² the Chamber finds that it is not accurate. The Chamber recalls the Registry’s confirmation in this respect that ‘the VWU [had] resumed operations in Sudan, and ongoing efforts to secure the cooperation of the Sudanese authorities, especially in witness protection arrangements, [was] continuing unabated’, and that, despite the operational environment in Sudan, the VWU was able ‘to receive protection referrals from the parties and participants, conduct the necessary assessments, and decide upon and implement protection measures’.Footnote ³¹³

147. Given the circumstances of the present case, the Chamber also granted, without any objection of the Defence, in-court protective measures to several witnesses to mitigate any risk for their safety should their testimonies become known to the Sudanese authorities.Footnote ³¹⁴ Further, the Chamber specifically instructed that ‘[w]henever possible, the VWU should provide remote assistance and support to Defence witnesses, particularly for those that ha[d] already been referred to the VWU or ha[d] expressed security concerns’.Footnote ³¹⁵

148. In light of the above, the Chamber rejects the Defence’s submissions in this regard.

C. Alleged breach of equality of arms in the conditions of appearance of the Defence witnesses

149. The Defence alleges a breach of equality of arms in the conditions of appearance of the Defence witnesses at trial, in violation of Article 61(7) of the Statute and the fairness of the proceedings. According to the Defence, its witnesses had to travel, by their own means and without support, to third countries, whereas ‘[n]one of the OTP witnesses was submitted to such level ofhardship’.Footnote ³¹⁶

150. The Chamber notes that the principle ofequality ofarms ‘does not require the creation of a situation of absolute equality’.Footnote ³¹⁷ Rather, what it does require is that ‘each party has a reasonable opportunity to adequately prepare for and present its case to the Court, without being placed at a substantial disadvantage vis-à-vis the opposing party’.Footnote ³¹⁸

151. In the present case, the Chamber recalls that travel arrangements had been made for the Defence witnesses to travel to and testify from the Court’s field office outside of Sudan, and that the Defence did not put forward any information warranting a change to those arrangements.Footnote ³¹⁹ Moreover, upon the Defence’s requests, seeking an exceptional measure of facilitating and acquiring video-link testimony from Darfur, Sudan, the Chamber carefully considered all of the circumstances surrounding the proposed method.Footnote ³²⁰ On the basis of the relevant submissions of the parties and the participants and in full knowledge of the information before the Chamber on the conditions of the witnesses’ appearance before the Court, the Chamber found that ‘the inconvenience to witnesses of lengthy travel and absence from their place of residence’ in the instant case ‘fall well short of amounting to exceptional circumstances’.Footnote ³²¹

152. In this regard, the Chamber further notes the Prosecution’s submission that it ‘assisted the Defence in getting their witnesses to [the] place where they could testify from’.Footnote ³²² Specifically, the Prosecution submits that it had to travel to the same place as the Defence witnesses and establish the following: (i) ‘that it was possible to travel there by public transport, that it could be done in just a few days, [and] that it was reasonably safe’; and (ii) ‘that the government ofthat third country would issue permits and would cooperate and assist’.Footnote ³²³ The Prosecution adds that ‘[t]o the best of[its] understanding, every witness who came on that route returned home safely and was not harmed there or back’, and that ‘there wasn’t fiery active combat at the time’ in the area where these witnesses had to travel.Footnote ³²⁴

153. Accordingly, the Chamber is satisfied that its previous determination on this issue stands, in that the arrangements made for the appearance of 23 Defence witnesses from locations outside of Sudan provided for an environment which, as required under Rule 67(3) of the Rules, was conducive to the giving of truthful and open testimony, and ensured the witnesses’ safety, security and well-being.Footnote ³²⁵ Moreover, as noted by the Prosecution above, no issues were reported in relation to the safety and well-being of any of these witnesses upon returning to their homes.

154. Lastly, the Chamber notes that the Defence does not substantiate how the conditions of appearance of the Prosecution witnesses were different from that of its witnesses, other than merely stating that a number of the Prosecution witnesses were admitted to the Court’s Protection Programme.Footnote ³²⁶

155. On the basis of the circumstances of the present case and in light of the above, the Chamber finds that the Defence was not placed at a substantial disadvantage vis-à-vis the Prosecution in the conditions of its witnesses’ appearance before the Court, and that the arrangements made for the appearance of the witnesses from locations outside of Sudan did not raise an issue of the fairness of the proceedings.

D. Conclusion

156. Therefore, the Chamber finds that the Accused did not suffer any prejudice in respect of witness protection in the present case that would justify the exceptional remedy of a permanent stay of the proceedings.

SECTION 4. EVIDENTIARY PRINCIPLES AND CONSIDERATIONS

I. THE EVIDENCE IN THE CASE

157. Pursuant to Article 74(2) of the Statute, the decision of a trial chamber on the guilt or innocence of the accused shall be based on ‘evidence submitted and discussed before it at trial’.Footnote ³²⁷

158. In the present case, according to Article 64(8)(b) of the Statute, and pursuant to the Chamber’s Directions on Conduct of Proceedings,Footnote ³²⁸ the parties and participants have requested the formal submission of evidence during the trial proceedings. In accordance with Rule 64(1) of the Rules, the parties and participants were required to raise issues as to the admissibility of evidence, on any of the standard evidentiary criteria, at the time of submission of the evidence to the Chamber or immediately after such an issue became known to a party or participant.Footnote ³²⁹

159. The Chamber also recognised that specific issues could arise necessitating a ruling on an evidentiary challenge at the time it was raised in order to provide clarity to the parties and participants, to avoid the calling of unnecessary evidence, or to otherwise advance the fairness or efficiency of the trial proceedings.Footnote ³³⁰ When the Defence raised issues regarding the admissibility of an item of evidence, where appropriate, the Chamber rendered a separate ruling or an interlocutory decision on it, prior to its deliberation on the evidence for the present judgment.Footnote ³³¹

160. When no procedural bars to the submission of an item of evidence were found to exist – or none were raised – the Chamber recognised the formal submission of that evidence within the meaning of Article 74(2) of the Statute. This was the formal action taken by the Chamber to indicate that such an item of evidence could be considered and relied upon in its determination of the accused’s guilt or innocence.Footnote ³³² Thereafter, the fact that an item of evidence had been ‘submitted’ within the meaning of Article 74(2) of the Statute was placed on the record of the case, and this status was reflected in the metadata of each item of evidence.Footnote ³³³

161. Consistent with the above considerations and aware that the ‘submission’ of evidence is a procedural act performed by the parties and participants,Footnote ³³⁴ the Chamber, in the present trial, has been deferential to the parties in terms of the documentary evidence they submitted for the Chamber’s consideration for the ultimate determination on the guilt or innocence of the accused.

162. During its deliberation, the Chamber assessed the standard evidentiary criteria for each item of evidence ‘submitted’,Footnote ³³⁵ and any arguments raised by the parties and participants in the course of the trial, as part of its holistic assessment of all evidence. The Chamber however does not refer to its assessment of each and every submitted item of evidence in the present judgment.Footnote ³³⁶ The Chamber notes that Article 74(5) of the Statute requires that the judgment under Article 74 of the Statute must ‘contain a full and reasoned statement of the Trial Chamber’s findings on the evidence and conclusions’. As confirmed by the Appeals Chamber, while trial chambers have a degree of discretion as to what to address explicitly in their reasoning, they must ‘explain with sufficient clarity’ the reasons for their determinations.Footnote ³³⁷

163. In the present case, the Chamber observes that the parties and participants submitted items of documentary evidence following the procedure set out by the Chamber, and had equal opportunity to make oral and/or written arguments, including on the standard evidentiary criteria, on any item of evidence submitted in the course of the trial. Such arguments have been duly considered as part of the Chamber’s determination of the Accused’s guilt or innocence, and addressed and disposed of in the present judgment as appropriate.

164. The Chamber hereby clarifies that where documents have been submitted, but were not referred to in this judgment, this signifies that they were either irrelevant or considered to be of insufficient probative value in light of the totality of the evidence on the record. In addition, the parties and participants availed themselves of their statutory right to make arguments in relation to the evidence submitted at trial, inter alia, during the submission of individual items of evidence, and in their final briefs and closing statements. These arguments have been considered by the Chamber for the purpose of the present judgment and are addressed herein as appropriate.

165. Other general allegations made by the Defence in relation to the admissibility of evidence are dealt with separately in the present judgment.Footnote ³³⁸

II. GENERAL EVIDENTIARY PRINCIPLES

A. The burden and standard of proof

166. Article 66(1) of the Statute provides that everyone is presumed innocent until proved guilty before the Court in accordance with the applicable law. The onus is on the Prosecution to prove the guilt of the accused.Footnote ³³⁹ Pursuant to Article 66(3) of the Statute, in order to convict an accused person, the Court must be convinced of the guilt of the accused person beyond reasonable doubt.

167. Accordingly, the ‘beyond reasonable doubt’ standard is to be applied to the facts that are indispensable for entering a conviction, namely those constituting the elements of the crimes or modes of liability charged.Footnote ³⁴⁰ It follows that each and every fact in a decision on conviction need not be proved beyond reasonable doubt.Footnote ³⁴¹ Towards this end, the Chamber must make a clear distinction between facts constituting the elements of the crime and the mode of liability, and any other set of facts introduced by the different types of evidence.Footnote ³⁴²

168. Reasonable doubt must be grounded in reason. The ‘reasonable doubt’ standard cannot consist of imaginary or speculative doubt. Accepting such a proposition is akin to requiring proof beyond all doubt, whereas the Statute requires proof beyond reasonable doubt.Footnote ³⁴³ Such doubt must have a rational link to the evidence, lack of evidence or inconsistencies in the evidence.Footnote ³⁴⁴ The reasonable alternative hypothesis should be compatible with at least some of the facts or evidence of the case.Footnote ³⁴⁵

169. The Chamber notes that the standard of ‘beyond reasonable doubt’ has been applied throughout its findings, where applicable and even when not specifically stated.

B. Indirect evidence

170. Under Article 69 of the Statute, indirect evidence (also known as hearsay), is admissible.Footnote ³⁴⁶ Moreover, the fact that evidence is indirect does not necessarily deprive it of probative value.Footnote ³⁴⁷ The indirect evidence in this case primarily falls into three separate categories: (i) witness evidence recounting what the witness had been told, rather than what they saw or heard themselves; (ii) evidence contained in reports, e.g., from UN agencies, the GoS; and (iii) circumstantial evidence.Footnote ³⁴⁸

171. The weight to be attributed to indirect evidence depends on the infinitely variable circumstances which surround it. As such the Chamber has assessed indirect evidence on a case by case basis. The Chamber has carefully assessed the relevance, probative value and potential prejudice of indirect evidence. It has considered the arguments made by the parties and participants during the course of the trial, as part of its holistic assessment of all evidence, in accordance with Rule 63(2) of the Rules when deciding on the guilt or innocence of the Accused.Footnote ³⁴⁹ Whenever factors rendered it unsafe so to do, the Chamber has not relied upon indirect evidence.Footnote ³⁵⁰

172. The Chamber has considered ‘renown’ as a form ofindirect evidence in this case. It is one of the ways witnesses learned the identity of the Accused from other people, who recognised the Accused because of his ‘renown’, which was derived from numerous factors such as the Accused’s personal history and attributes. Whilst this component of a witness’s evidence did not amount to the decisive factor in assessing the credibility and reliability of the identification of the Accused by the witness, it was nonetheless an aspect to be taken into account when assessing the quality – and therefore probative value – of that identification.Footnote ³⁵¹

C. Circumstantial evidence

173. Circumstantial evidence is evidence which does not directly prove a fact in dispute, but which allows the Chamber to draw a reasonable inference about the existence or non-existence of a fact based on the evidence. Its cogency depends on the unlikelihood of coincidence–events which can be explained rationally only by the existence of that fact. It is different from direct evidence, which establishes the existence or non-existence of a fact on its own.

174. Nothing in the statutory framework prevents a trial chamber from drawing inferences based on circumstantial evidence nor does the standard of proof beyond reasonable doubt or the principle of in dubio pro reo require that such evidence be excluded.Footnote ³⁵² Circumstantial evidence is not less powerful because it is circumstantial, rather than eye-witness, documentary, or scientific evidence; as it is evidence of surrounding circumstances which, by undesigned coincidence, are capable of proving a proposition.

175. The above-mentioned principles are reflected in the general introduction to the ‘Elements of Crimes’ which (after re-asserting the obvious point that a finding of criminal responsibility for crimes is only possible with intent and knowledge of the material elements thereof), states that ‘[e]xistence of intent and knowledge can be inferred from relevant facts and circumstances’.Footnote ³⁵³

176. The Chamber has assessed circumstantial evidence, and in appropriate instances, has drawn inferences on the basis of the same.Footnote ³⁵⁴ In making findings based on circumstantial evidence, the Chamber has borne in mind that it needs to be examined taken as a whole and with care, to ensure that it leads to the inescapable conclusion that the fact has been established beyond reasonable doubt. Therefore, the Chamber has only made a finding adverse to the Accused, on the basis of circumstantial evidence, when it was convinced that it was the only reasonable conclusion that could be drawn from the relevant evidence. When the Chamber has made an essential finding based on an inference, such as with respect to the elements of charged crimes and modes of liability, the Chamber has explained in detail how it reached the factual conclusion in question.Footnote ³⁵⁵

177. The final aspect of this type of evidence relates to some witnesses who in one or more respects gave evidence which could be seen as not being in their own interests, in that it suggested actions taken by the witness, which at best could harm their reputation, or at worst potentially expose them to criminal prosecution. The core principle is that, as a general rule, persons typically do not give evidence which harms their own interests unless those statements are true. This therefore provides a circumstantial basis for judges to find the evidence credible and place reliance thereon.

178. However, the Chamber, carefully examined, not only the context in which this evidence was given, but also all factors relating to the witness’s account of events, before concluding that it was both credible and reliable.

D. Corroboration

179. The principle of corroboration is the provision of evidence which supports and confirms other evidence. In accordance with Rule 63(4) of the Rules, there is no legal requirement for corroboration.Footnote ³⁵⁶ The Defence, on a number of occasions in its Final Brief, asserts that certain parts of witness evidence lacked corroboration and therefore the Chamber should place no reliance on that evidence.Footnote ³⁵⁷ The Chamber recalls that the Appeals Chamber has endorsed the proposition that trial chambers enjoy a broad discretion in assessing inconsistencies in the evidence and deciding whether corroboration is necessary.Footnote ³⁵⁸

180. In respect of the category of witness who have, or may have, their own interests to serve in reducing their culpability for the crimes and ascribing blame thereof to others, great caution was exercised by the Chamber before concluding that their evidence was in any respect credible and reliable.

181. These assessments have been made on a case-by-case basis, taking into account the circumstances of the facts to be proven and the evidence presented. However, the Chamber rejects the Defence’s over-arching argument that evidence, unless corroborated, should be deemed unreliable. In the present judgment, the Chamber reached certain findings on the basis of a single account, if satisfied that the witness is both credible and reliable.

E. Standard of proof for alibi or grounds excluding criminal responsibility

182. As will be seen in the section dealing with the Accused’s individual criminal responsibility,Footnote ³⁵⁹ the Defence raised the question of a potential alibi defence in respect of the charges relating to Mukjar and Deleig.Footnote ³⁶⁰ Whilst the Defence accepted that no evidence was adduced to lay the foundation for such a defence,Footnote ³⁶¹ the Chamber, nonetheless, deems it appropriate to set out the principles which it has taken into account.

183. The Chamber notes that there is no specific provision in the Statute regulating the burden and standard of proof with respect to alibi or grounds excluding criminal responsibility. However, the Appeals Chamber has held that in the absence of a specific provision in the Statute regulating the burden and standard of proof with respect to grounds excluding criminal responsibility, the general provisions of Article 66 of the Statute apply.Footnote ³⁶²

184. The Appeals Chamber concluded that ‘in all circumstances, including when a ground for excluding criminal responsibility is raised, the onus is on the Prosecutor to prove the guilt of the accused (article 66(2) of the Statute) and in order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt (article 66(3) of the Statute)’.Footnote ³⁶³ While generally, the Prosecution does not bear the burden per se of disproving each element of a ground excluding an accused’s criminal responsibility,Footnote ³⁶⁴ the Appeals Chamber held that it must establish the guilt of the accused beyond reasonable doubt, even when a ground for excluding criminal responsibility is raised.Footnote ³⁶⁵ It follows that the Prosecution may address and rebut any Defence’s evidence adduced in support of the alleged ground for excluding criminal responsibility.Footnote ³⁶⁶

185. The Chamber notes that the so-called ‘evidentiary burden’ of the Defence vis-à-vis the existence of an alibi or grounds purporting to exclude criminal responsibility does not mean that there is a shift in the burden of proof.Footnote ³⁶⁷ This is because the Prosecution is not relieved of its burden to establish the elements of the charged crimes and the modes of liability beyond reasonable doubt.Footnote ³⁶⁸

F. Agreed facts

186. In accordance with Rule 69 of the Rules, the parties may agree that an alleged fact which is contained in the charges, the contents of a document, and the expected evidence of a witness or other evidence is not contested. In such circumstances, the Chamber may consider such an alleged fact as being proven.Footnote ³⁶⁹

187. In the present case, the Prosecution and the Defence submitted five documents containing 134 agreed facts. These facts related to matters such as the Accused’s personal information and professional background, the Republic of Sudan, the conflict in Darfur in 2003 and 2004, names of weapons and equipment, geographical locations in West Darfur, and a map of West Darfur.Footnote ³⁷⁰ The Chamber notes in particular that the parties have agreed on important facts related to the existence of an armed conflict.Footnote ³⁷¹

188. The Chamber further notes that the reference to such facts in the present judgment is in itself indicative that the Chamber considers those facts to be accurate, having conducted its own review of the evidence.Footnote ³⁷²

III. WITNESS EVIDENCE

189. Out of the total of 74 witnesses who gave evidence either at the seat of the Court or via video-link,Footnote ³⁷³ 36 had their prior recorded statement introduced under Rule 68(3) of the Rules.Footnote ³⁷⁴ The prior recorded statements of 19 witnesses were introduced under Rule 68(2)(b) of the Rules, and nine under Rule 68(2)(c) of the Rules.

190. As regards the witnesses whose prior recorded statement was introduced under Rule 68(3) of the Rules, both parties and the participants had the opportunity to examine them in court. In these instances, the prior recorded statement complements and forms an integral part of the witness’s viva voce evidence and the Chamber has accordingly considered the prior recorded statement together with and in light of the witness’s in-court evidence, and vice versa.

191. The calling party was afforded the opportunity to speak to its witnesses in advance of their evidence being presented in court.Footnote ³⁷⁵ Any changes made to their statements or additional information provided were recorded in writing and signed by the witness. From 13 June 2022 (by agreement between the parties), in the interests of efficiency, rather than each change or addition being dealt with orally by the witness in the course of evidence, a document containing the alterations was entered into evidence.Footnote ³⁷⁶

192. As regards the witnesses whose prior recorded statements were introduced pursuant to Rule 68(2)(b) and (c) of the Rules, the Chamber has assessed their written statements and related material for the purpose of the present judgment. As with any other type of evidence submitted in the course of the trial, arguments made in the course of the trial by the parties and participants, concerning the relevance and probative value of the prior recorded statements of witnesses (introduced under Rule 68(2) of the Rules), have been taken into account for the purpose of the present judgment and are explicitly addressed as appropriate. The Chamber in its evaluation of this type of witness evidence, in addition to the considerations set out below, also took into account that the witnesses concerned did not appear before the Chamber, were not subject to cross-examination, and therefore had more limited probative value.

A. Assessment of credibility and reliability

193. The Chamber has assessed the credibility and reliability of the testimony of each witness and has evaluated on a case-by-case basis the weight to be given to the testimony in relation to the relevant issues.Footnote ³⁷⁷ The individual assessments are found in Annex B to this judgment.

194. The Chamber has taken into account a variety of factors in its assessment of witness evidence. This includes: (i) the richness of details and internal consistency of the narrative provided by the witness, as well as the coherence of the testimony with other evidence before the Chamber; (ii) the individual circumstances of the witness, including their relationship to the Accused, age, the provision of assurances against self-incrimination, any relationship with parties to the conflict, indication of bias against the Accused – or the lack thereof – and if appropriate, motives for giving evidence;Footnote ³⁷⁸ (iii) the unexpected or traumatic nature of the events, considering the context and specific impact/effect on the witness; and (iv) the fact that, given the significant passage of time in this case, the memory of some witnesses may have faded with regard to certain detail.Footnote ³⁷⁹

195. In this regard, the Chamber notes that many witnesses were unclear about issues such as dates, time and distance. As a general rule, mistakes or inconsistencies in respect of dates, time, distance, exact sequence of events, numbers, etc. have not negatively affected the Chamber’s assessment of the credibility of the witnesses. The Chamber reiterates that this is a non-exhaustive list of factors considered by the Chamber in its assessment of witness evidence.

196. The Chamber further notes that the Defence challenges the credibility and reliability of ‘insider witnesses’, stating generally that their evidence should be disregarded due to their testimony containing lies, inconsistencies and contradictions, as well as their personal motives to shift blame.Footnote ³⁸⁰ As noted above, the Chamber has assessed the credibility of these witnesses individually bearing in mind any specific challenges raised by the Defence.

197. Any assessment of witness evidence (as with other types of evidence) is fact dependent on the particular circumstances. Each statement made by a witness, whether written or oral, is assessed individually – while, at the same time, taking into account, holistically, the entire body of evidence available to the Chamber.Footnote ³⁸¹ When faced with competing versions of events, the Chamber has assessed the totality of the evidence to determine which it considers most probative. In its discretion, it has evaluated any inconsistencies to consider ‘whether the evidence taken as a whole is reliable and credible and to accept or reject the “fundamental features” of the evidence’.Footnote ³⁸²

198. As set out in Annex B, with particular witnesses, the Chamber has relied on ‘certain aspects of a witness’s evidence, while considering other aspects unreliable’.Footnote ³⁸³ The Chamber has principally focused its assessments on the parties’ submissions, both during the trial, as well as in their final briefs and closing statements. However, the Chamber has considered all aspects of the witness evidence even if they have not been specifically referred to in its credibility assessment (or in the parties’ submissions).

199. During trial, the Chamber adopted the procedure that if the non-calling party challenged the accuracy or veracity of the evidence being given by a witness, then this challenge should be included in the questioning of the witness.

200. The procedure was based on the following reasoning delivered in appeals at both the ICTY and the ICTR: ‘[It] seeks to facilitate the fair and efficient presentation of evidence whilst affording the witness being cross-examined the possibility of explaining himself on those aspects of his testimony contradicted by the opposing party’s evidence, so saving the witness from having to reappear needlessly in order to do so and enabling the Trial Chamber to evaluate the credibility of his testimony more accurately owing to the explanation of the witness or his counsel’.Footnote ³⁸⁴ The central purpose of this rule is to ‘promote the fairness of the proceedings by enabling the witness […] to appreciate the context of the cross-examining party’s questions, and to comment on the contradictory version of the events in question’.Footnote ³⁸⁵

201. As indicated in the judgment of the ICTR Appeals Chamber in Karera, the procedure does not require the non-calling party to put questions relating to every area of disagreement, but only those which relate to real issues in the case, e.g., the identification of the accused person. The witness credibility assessments reflect the most relevant areas in which suggestions of inaccuracy, mistake or untruthfulness were made.Footnote ³⁸⁶

202. In some cases, the witness accepted the suggestion that they had, or may have been inaccurate or mistaken or untruthful. However, for the most part, the witnesses to whom such suggestions were made rejected them, maintaining that their accounts were not inaccurate, mistaken nor untruthful.

203. The Chamber makes it clear that only if the content of a suggestion was accepted by the witness, or other witnesses or documents lent credence or support thereof, did it become part of the evidence to be taken into account for the purpose of this judgment. If no such credence or support was forthcoming then consideration of that suggestion, e.g. alleged motive for giving evidence, was limited to scrutiny of any impact it had on the witness’s credibility and reliability.

204. The Chamber has also assessed the coherence between the testimony given by a witness and their account in relation to the same facts given in other contexts as emerging from the evidence presented at trial. In this regard, the Chamber notes that throughout the trial, witnesses who gave in-court evidence were asked questions in relation to prior accounts they gave in other contexts.

205. Prior accounts were typically put to witnesses in three distinct situations: (i) when a witness declared himself/herself unable to respond to a question, in which case a prior account was used to refresh his/her memory; (ii) in cases where there existed, in the assessment of the examining party, a discrepancy between the statement given in court and a prior account; andc(iii) where the non-calling party, sought to challenge the reliability or the veracity of the witnesses’ evidence in whole or in part. In all cases the witness was then given an opportunity to explain the accuracy and truthfulness of the prior account, and veracity of his/her evidence in light of the challenge. By virtue of his/her in-court evidence, the relevant part of the prior account was incorporated into the evidentiary record. In case of apparent discrepancy between in-court evidence and a prior account, the Chamber has carefully considered the content and all circumstances in which such prior account had been made – inter alia, its context, purpose and the (expected) level of detail – as well as any explanation for such discrepancy provided by the witness during their in-court evidence.

206. Throughout the judgment, the Chamber, as already stated, has evaluated the relevant witness evidence, individually, including the credibility and reliability of witnesses, based on the particular and specific circumstances at hand, while, at the same time, taking into account, holistically, the entire body of evidence available to the Chamber. Indeed, certain aspects relating to the credibility of a number of witnesses, the reliability of their evidence and the relevance oftheir evidence to the Chamber’s disposal of the charges against the Accused are addressed, as appropriate, in the Chamber’s evidentiary analysis of the findings of facts of the present judgment.

B. Identification evidence

207. The issue of identification has been adjudicated upon by this Court and other international criminal courts and tribunals. Identification evidence does not need to be of any particular type,Footnote ³⁸⁷ but caution is required in assessing it due to ‘the vagaries of human perception and recollection’, in particular, where identification is made in ‘turbulent and traumatising circumstances’.Footnote ³⁸⁸ After having examined a number of domestic criminal law systems in relation to the question of identification evidence, the ICTY Appeals Chamber in Kupreškić et al. set out a list of evidential factors which the Chamber has taken into account as guidance when deciding on the reliability of an identification.Footnote ³⁸⁹

208. In light of the above, the Chamber finds that where the case against the accused person depends, to a large extent, on the correctness of one or more identifications of the accused and the case for the defence is that the witness(es) purporting to identify the accused are mistaken, the Chamber must be convinced beyond a reasonable doubt of the correctness of the identification.

209. Accordingly, the Chamber has taken into consideration, the overriding principles applicable to such evidence, inter alia, that: there is a need for caution to avoid the risk of injustice because a witness who is convincing based on his or her own honest belief may still be mistaken.

210. The Chamber has considered a number of factors in order to assess the circumstances and hence the reliability of identification evidence given by a witness. These include, but are not limited to:

• • the state of the light;

• • the duration of time during which the witness had the person, he or she says was the accused, under observation including in particular, the time during which the witness could see the accused’s face;

• • the distance between the witness and the accused;

• • whether anything physically impeded the observation;

• • whether the witness had ever seen the accused before and if so, the number of times and in what circumstances;

• • on the occasion(s) in which the witness had seen the person he or she said was the accused before, had he or she any reason to recognise him;

• • the length of time that had elapsed between the original observation of the accused and the subsequent observation during the event; and

• • any discrepancy between the description of the accused given by the specific witness and that given by other witnesses and/or the physical appearance of the accused in court (taking into account that more than 20 years have elapsed since the events).

• • the nature of the incident at which the identification was made i.e. was it unexpected/ fast-moving/shocking and/or involved a large number of persons.

211. Where there are several witnesses to an incident who purport to identify the accused, the Chamber has considered the quality ofeach witness’s evidence ofidentification separately and the possibility that more than one person may be mistaken, as well as any suggestion that a witness had been influenced by another. Having made a careful assessment, the Chamber is satisfied that it is entitled to use one witness’s evidence of identification (if it is sure that that witness’s account is independent, honest, credible and reliable) to support the evidence of identification given by another independent, honest, credible and reliable witness.

212. In a number of instances, a witness gave what may be characterised as ‘recognition’ evidence rather than that of ‘identification’. As regards recognition evidence, the Chamber notes that, whilst recognition of a person known to the witness may be more reliable than identification of a stranger, the Chamber must still exercise caution because mistakes may still be made by witnesses who purport to recognise the accused person. Accordingly, even in instances where a witness purports to recognise the Accused, the Chamber has taken this aspect into account in its consideration of the quality of the identification evidence.

213. These principles and considerations are only applicable to witnesses where the Defence’s suggestion is that they are mistaken; they are not pertinent where the suggestion is that a witness has deliberately lied.

a) In-court identification

214. Generally, little weight is attached to in-court identification (sometimes called ‘dock identification’), and virtually no weight is attached to it ifit is a first-time in-court identification of a stranger. Although the Chamber did not allow questions which directly sought in-court identifications,Footnote ³⁹⁰ some witnesses spontaneously made such identifications.Footnote ³⁹¹ In such instances, in-court identification has not been used to shore up a weak identification or to support a tenuous identification, nor has it been used if the witness did not know the Accused before the charged events.

215. However, in-court identifications made by witnesses who gave credible and reliable evidence to explain their recognition/identification of the accused are admissible, but solely with a view to assessing whether the person the witness purports to recognise before the events, and identified during the events, is the accused.

b) Use of video evidence for identification

216. A witness who was previously acquainted with a person may be able to identify the accused’s image on a video. Several witnesses, called by both parties, purported to identify the Accused on video footage.Footnote ³⁹² The Chamber did not ascribe any probative value to the purported identification of the Accused’s image on a video when there was no evidence that the witness knew the Accused before the events. However, as reflected in the credibility assessments, the Chamber has only relied on evidence of witnesses who made identifications of the Accused on video footage and provided convincing and reliable evidence of their prior knowledge of the Accused. The Chamber notes that in relation to the videos shown to witnesses, the Defence conceded that the Accused was the person so identified.Footnote ³⁹³

c) Use of photographs for identification

217. Several witnesses were shown a single photograph of the Accused either before giving evidence and/or in court. The witnesses were asked if they recognised the person depicted therein. The Chamber disparages the use of a single photograph in such an exercise and finds that the Prosecution ought to have compiled an array of photographs of similar size, colour and background lighting. Further, such an array of photographs should have been comprised of a number of photographs of persons having a resemblance to the Accused.Footnote ³⁹⁴ This procedure was not followed in this case.

218. The danger with a single photograph is that the witness may feel obliged to say that the person depicted is the accused person. In these circumstances, the Chamber has not relied upon the evidence of any single showing of a photograph bearing the likeness of the Accused, unless the Chamber is satisfied that the witness had given credible and reliable evidence on their knowledge of – and thus their ability to recognise – the Accused in a prior statement or in court, before being shown the photograph.

C. Allegations of lies told by witnesses

219. A number of witnesses, called by both parties, were directly, or by implication, alleged to have told lies either in the course of their evidence, or in hearings or documents outside – but connected – to the events which are the subject of this case.Footnote ³⁹⁵ Some of the witnesses called by the Prosecution admitted they had lied – largely in respect of information provided when, having fled Sudan as refugees, they sought asylum in other States. The Chamber affirms that self-evidently, an allegation – whether accepted or not – that a witness has lied about any matter is one which has to be examined with care when considering the credibility of that witness. When the allegation is denied, the Chamber has rigorously scrutinised the evidence relevant to that allegation, before making a finding that a lie is or may have been told and if so what effect that finding has on the overall credibility ofthat witness’s evidence on an issue in the case. The Chamber has also borne in mind the general principle, as reiterated in other cases,Footnote ³⁹⁶ that witnesses may be truthful in some respects and untruthful in others.

220. It is incumbent upon judges to examine the evidence as a whole to ascertain whether there is a reason revealed for untruthful evidence. When a witness admitted that he/she had lied, the Chamber considered the following circumstances:

• • was the lie deliberate, rather than accidental;

• • did it relate to a significant issue; and

• • what reason was given for the lie. e.g., fear or gaining an advantage which might otherwise be denied.

221. As already stated, some witnesses, in their asylum applications, provided false information or did not mention certain facts about which they testified in court. Whilst the Chamber considered the individual reasons provided by each witness for the lies, the evidence, taken as a whole, demonstrated that in their asylum applications, witnesses provided information that they considered would make the best case for asylum in their respective host States.Footnote ³⁹⁷ Hence, the Chamber considered whether the witnesses had lied or withheld information in their asylum applications with an intention to make the best case for asylum.

222. The Chamber also notes that asylum authorities of host States do not find asylum claims to be unfounded simply on the basis that the applicant lied or acted in bad faith.Footnote ³⁹⁸ Consequently, the Chamber finds that the fact that witnesses had provided false information or did not mention certain facts about which they gave evidence in court in their asylum applications is not in itself – without additional factors – material to, or determinative of, the Chamber’s assessment oftheir credibility.Footnote ³⁹⁹

D. Discrepancies between evidence in court and previous statements

223. A substantial number of witnesses were first contacted via telephone by investigators acting on behalf of the Prosecution.Footnote ⁴⁰⁰ A ‘Screening Note’ was compiled by the investigator, which was not shown to, or signed by the witness, nor read back to him/her until a later stage.Footnote ⁴⁰¹ Subsequently, a signed statement was taken by the Prosecution. Additionally, as already stated, before giving in-court evidence, witnesses giving evidence under Rule 68(3) of the Rules had the opportunity to correct, alter or add to their statements.

224. In court, the witnesses would sometimes be questioned by the parties about discrepancies in their accounts, e.g., a failure to mention ‘Ali Kushayb’ in the original screening notes, differences in dates or details of events, particularly those relating to attacks, conditions ofincarceration, or actions taken by ‘Ali Kushayb’.

225. The Chamber, as with the allegations of lies told by witnesses, has rigorously scrutinised the relevant evidence of each instance where such discrepancies appear when assessing the credibility and reliability of the individual witness. However, it has also identified a number of explanations common to the witnesses, namely:

• • the length of time which has elapsed since the events;

• • the unexpected and traumatic nature of the events; this is particularly relevant to witnesses who gave evidence of sexual assault upon themselves or others;

• • the age of the witness at the time of the events; and

• • in respect of Screening Notes, the fact that witnesses were unexpectedly contacted; could not see or verify the identity of the person questioning them; and connection and interpretation issues.

226. The Chamber is satisfied that the consistency of such explanations reflect the reality of the process involved in obtaining evidence of witnesses to events such as these, and as a general rule, absent any other factors specific to an individual witness, the Chamber does not find that the identified discrepancies are a bar to assessing the witness as credible.

E. Interpretation

227. A number of witnesses spoke only the Fur language. This required a two-stage interpretation, namely from the language of the questioner (English or French) into Arabic and then Fur and vice-versa. Some witnesses who gave evidence in Arabic were doing so in their second language.

228. Whilst generally interpretation was of an appropriate standard, on some occasions concerns were expressed as to its accuracy. In such instances, steps were taken at the time to mitigate the problems and overall the parties and participants did not express concern, either at the time or in their final submissions, that the evidence of the witnesses was being misrepresented.

229. The Chamber intervened at various stages, particularly when the evidence directly implicated the Accused, to ensure that any possible ambiguity or misunderstanding was clarified with the witness. Further, in its assessment of the credibility and reliability of such witnesses, the Chamber has taken this factor into account before drawing any inferences adverse to the Accused.

IV. NON-TESTIMONAL EVIDENCE

A. Documentary evidence

230. The Chamber has relied on a limited amount of evidence submitted through the bar table.Footnote ⁴⁰² The Chamber’s assessment ofthese items of evidence has been done on a case-by case basis and is noted at the relevant parts of this judgment. Generally, when deciding to rely on an item submitted through the bar table, the Chamber has taken into consideration whether the evidence goes to a key issue in dispute and whether it is corroborative of other evidence before it.

231. The Chamber notes the Defence’s challenges to the Prosecution’s lists of victims, as well as the lists of victims of the three operations created by various witnesses.Footnote ⁴⁰³ Generally, the Chamber has not relied on the lists created and provided by the witnesses as the sole source for a finding. It has only relied on some of these lists when: (i) it was part of and completed a witness’ in-court testimony, when the parties would have had the opportunity to question the witness on the list(s) in question; or (ii) when it was supported by the evidence of other witnesses.

B. ‘Facebook’ evidence

232. During its examination of some Defence witnesses,Footnote ⁴⁰⁴ the Prosecution, to a greater or lesser extent, used material downloaded from Facebook designed to counter the defence being advanced that the Accused had never used or been known by the nickname ‘Ali Kushayb’. That use was kept within strict parameters by the Chamber.Footnote ⁴⁰⁵

233. As a result, the Defence called an expert.Footnote ⁴⁰⁶ This enabled the Prosecution to place on the evidential record a substantial number of Facebook accounts allegedly linking the nickname with the purported sons of the Accused. The expert was not given any advance notice by the Prosecution of the accounts he was asked to examine nor the questions which would be asked.Footnote ⁴⁰⁷

234. The Chamber finds that the method by which the Prosecution introduced this evidence was unsatisfactory. First, as set out in its original ruling,Footnote ⁴⁰⁸ it is incumbent on the party which wishes to introduce such evidence to lay a proper foundation for seeking to question a witness thereon, as opposed to inviting the witness to comment thereon. Second, if an expert is to be asked to express an opinion on documents, the questioning party has a duty to give advance notice of those documents to the expert.

235. Accordingly for the purpose of this judgment, the Chamber has not relied on the content of the Facebook material, so produced in evidence in respect of the issue of whether the Accused was in fact the person also known as ‘Ali Kushayb’. The only relevance of the evidence relates to the credibility of some of the Defence witnesses.Footnote ⁴⁰⁹

SECTION 5. FACTUAL FINDINGS

236. In this section, the Chamber establishes the facts and circumstances of the case on the basis of the evidence submitted and examined at trial. These findings constitute the foundation for the Chamber’s decision under Article 74 of the Statute. The reasoning for the Chamber’s determination in this regard is provided in Annex B, where the Chamber addresses the credibility and reliability of the evidence which, directly or by way of inference, supports each of these findings on the facts and circumstances. The Chamber clarifies that, pursuant to Article 74(2) of the Statute, it has ensured that its findings of fact do not exceed the facts and circumstances described in the charges against the Accused as confirmed by the Pre-Trial Chamber.Footnote ⁴¹⁰

237. The Chamber begins by addressing the contested issue of the Accused’s identification. It then provides background on the conflict in Darfur in 2003 and 2004, and subsequently sets out, in chronological order, the facts and circumstances related to the three charged operations namely, (A) Kodoom and Bindisi, (B) Mukjar, and (C) Deleig. This section concludes with an examination of the Accused’s position of authority and influence during the period covered by the charges.

I. THE ACCUSED, ABD-AL-RAHMAN, WAS KNOWN AS ‘ALI KUSHAYB’

A. Introduction and analysis

238. The core issue before the Chamber is whether the Accused, Ali Muhammad Ali Abd-Al-Rahman, was the same person known to people (including witnesses), by the nickname ‘Ali Kushayb’ between 2003 and 2004 in the Wadi Salih and Mukjar localities of Darfur.Footnote ⁴¹¹

239. The Prosecution’s case against the Accused is premised on the basis that, during the charged period, the Accused was indeed widely known as ‘Ali Kushayb’.Footnote ⁴¹² It is therefore the Prosecution’s case that the Chamber should be satisfied that even when witnesses gave evidence of criminal acts of‘Ali Kushayb’—without making any link to the Accused—they were referring to the Accused.

240. The Defence contends that the Prosecution evidence falls short of proving beyond reasonable doubt that the Accused is ‘Ali Kushayb’ therefore, the Prosecution’s case fails.Footnote ⁴¹³ The Chamber further notes that the Defence also argued during trial that ‘Ali Kushayb’ is a fictitious figure invented to conceal the identity/identities of those actually responsible for the commission of the crimes.Footnote ⁴¹⁴

241. The Chamber has considered six categories of evidence in its assessment of the Prosecution’s position that the Accused, Ali Muhammad Ali Abd-Al-Rahman, was the same person known to people in the Wadi Salih and Mukjar localities of Darfur by the nickname ‘Ali Kushayb’ between 2003 and 2004. The evidence assessed includes: (a) the pre-surrender video recording of the Accused; (b) the analysis of the evidence of eight witnesses purporting to link the Accused with the name ‘Ali Kushayb’; (c) recognition of the Accused in photographs and videos; (d) agreed facts between the parties; (e) circumstantial evidence; and (f) contemporaneous documentary evidence and other material referred to by the Prosecution.

a) The pre-surrender video recording

242. On 9 June 2020, the Accused surrendered himself to the Court following the issuing of two arrest warrants which included both his full name, Ali Muhammad Ali Abd-Al-Rahman, and the nickname ‘Ali Kushayb’.Footnote ⁴¹⁵ Three months before the Accused’s surrender, the Prosecution received a video recording of the Accused in which he is viewed saying the following: ‘I’m Ali Muhammad Ali Abd-al-Rahman, and my nickname is Kushayb’ (the ‘pre-surrender video recording’).Footnote ⁴¹⁶

243. The Chamber recalls that the pre-surrender video recording was obtained following interaction between the Prosecution (via P-1049, an investigator for the Prosecution) and an intermediary (P-0869, the ‘Intermediary’) who was in contact with the Accused and who subsequently became a member of the Defence team representing the Accused.Footnote ⁴¹⁷

244. During the trial, the Chamber decided that the pre-surrender video recording had not been obtained in violation of Article 55(2) of the Statute, or of any rule of customary international law, human rights treaty or Article 21(1)(b) of the Statute.Footnote ⁴¹⁸ The Chamber therefore declined to exclude the pre-surrender video recording from the proceedings under Article 69(7) of the Statute.Footnote ⁴¹⁹ The Appeals Chamber, by majority, confirmed the Chamber’s decision, determining that Article 55(2) of the Statute did not apply to the circumstances in which the pre-surrender video recording was obtained (the ‘Abd-Al-Rahman OA12 Judgment’).Footnote ⁴²⁰

245. In its Final Brief, the Defence first argues that the pre-surrender video recording cannot be retained and used as evidence that the Accused had the nickname of ‘Ali Kushayb’ since the Identification Issue ‘goes to the very heart of the litigation’ on the Accused’s guilt or innocence.Footnote ⁴²¹

246. The Chamber notes that the Appeals Chamber clearly established that the Identification Issue is factual and preliminary in nature.Footnote ⁴²² As noted by the Appeals Chamber, specifically in the context of proceedings under Articles 55(2) and 60 of the Statute, discussions on the alleged crimes only take place after the identity of the person concerned has been established.Footnote ⁴²³ The Chamber is satisfied that its finding that the pre-surrender video evidence is admissible does not go to the guilt or innocence of the Accused, nor does it diminish the prosecutorial burden and standard of proof in relation to the Accused’s liability. Moreover, the finding that the Accused had the nickname ‘Ali Kushayb’ does not equate to a finding that the Accused is responsible for any of the alleged crimes. Accordingly, the Chamber rejects the Defence’s argument.

247. Second, the Defence argues that ‘no evidentiary weight can properly be attached to Mr Abd-Al-Rahman’s statement in the video that he is Ali Kushayb’.Footnote ⁴²⁴ It submits that, because the Prosecution investigator would have referred to the Accused as ‘Ali Kushayb’ throughout his communications with the Intermediary, the latter and - by extension - the Accused would have been under the impression that the Prosecution expected the Accused to identify himself as ‘Ali Kushayb’.Footnote ⁴²⁵ The Defence further argues that the Accused was motivated to do so, even if he did not recognise the nickname, in order to establish his innocence and avoid arrest by the Sudanese authorities.Footnote ⁴²⁶ The Defence invites the Chamber to infer that the Accused ‘operated under the beliefthat both the Prosecution and the wider public thought him to be Ali Kushayb’,Footnote ⁴²⁷ and this ‘is why he referred to himselfas such […] in the video’.Footnote ⁴²⁸

248. In order for the Chamber to draw the requested inference, there must be evidence, as opposed to suggestions, from which such an inference may be made. The Chamber finds none. Moreover, as previously determined by the Chamber (and confirmed by the Appeals Chamber), the idea of sending the video originated with the Intermediary, who was not acting on behalf of the Prosecution, but on behalf of the Accused.Footnote ⁴²⁹ Further, as determined by the Appeals Chamber, ‘the Prosecution did not influence the contents of the [v]ideo’ and ‘[t]he Prosecution was not present when the [v]ideo was recorded’.Footnote ⁴³⁰ Accordingly, the Chamber rejects the Defence’s third argument.

249. The Chamber notes that in the pre-surrender video recording, the Accused unequivocally and clearly stated ‘I’m Ali Muhammad Ali Abd-al-Rahman, and my nickname is Kushayb’.Footnote ⁴³¹ The Chamber is satisfied that this video constitutes direct evidence of the Accused identifying himselfas ‘Ali Kushayb’ and indicates that his voluntary surrender to the Court was made on the basis that the arrest warrants issued against him correctly identified him by both his full name and his nickname.

b) The analysis of evidence of eight witnesses purporting to link the Accused with the name ‘Ali Kushayb’

250. The Chamber considers the evidence given by eight Prosecution witnesses to be particularly instructive in relation to the Identification Issue. These are witnesses who: (i) knew the full name of ‘Ali Kushayb’ to be ‘Ali Muhammad Ali Abd-Al-Rahman’ (or a variant thereof); (ii) had a credible and reliable basis for their knowledge of his name and nickname; (iii) whose identification evidence contained credible indices of reliability; and (iv) gave evidence of interacting with, and/or seeing or being in the presence of ‘Ali Kushayb’ during the charged period. These witnesses are P-0012, P-0643, P-0883, P-0905, P-0935 and P-1021.Footnote ⁴³² The Chamber also relies on P-0874 and P-0878, who, despite not having a close personal relationship with ‘Ali Kushayb’, provided credible and reliable evidence that is relevant to the Identification Issue.Footnote ⁴³³ The Chamber has thoroughly discussed their evidence in relation to the Identification Issue in its assessment of their respective evidence in Annex B.Footnote ⁴³⁴

251. P-0012, P-0643, P-0883, P-0905, P-0935 and P-1021 all gave evidence that they knew the Accused as both: ‘Ali Kushayb’ or ‘Kushayb’ and ‘Ali Muhammad Ali Abd-Al-Rahman’ or a variant of Abd-Al-Rahman’s legal name.Footnote ⁴³⁵ P-0643, P-0883, P-0905 and P-0935 provided particularly specific explanations for understanding ‘Ali Kushayb’ to be the nickname of Abd-Al-Rahman.Footnote ⁴³⁶ P-0643 and P-0905 knew the Accused’s full name as a result of their positions in the Wadi Salih administration and the Garsila SAF base.Footnote ⁴³⁷ Thus, P-0643 gave evidence that, in his capacity as a political leader in Wadi Salih, he would invite ‘Ali Kushayb’ to events using his full name ‘Ali Muhammad Ali Abd-Al-Rahman’,Footnote ⁴³⁸ and when he was stationed at the Garsila SAF base, P-0905 heard ‘Ali Kushayb’ being referred to as ‘Ali Abd-Al-Rahman Kushayb’.Footnote ⁴³⁹ P-0883 and P-0935, on the other hand, both knew the Accused’s full name (i.e. ‘Ali Muhammad Ali Abd-Al-Rahman’) as a result of the relationships they had with members of his family: P-0883 was a former colleague of ‘Ali Kushayb’s’ younger brother, whose full name was Hassan Muhammad Ali Abd-Al-Rahman, while P-0935 worked with ‘Ali Kushayb’s’ son, whose full name was Muhammad Ali Abd-Al-Rahman.Footnote ⁴⁴⁰

252. The inferences drawn by P-0883 and P-0935 to reach the conclusion that the legal name of ‘Ali Kushayb’ was ‘Abd-Al-Rahman’ were reasonable and are supported by other evidence.Footnote ⁴⁴¹ The Chamber is satisfied that these two witnesses, on credible and reliable grounds, and based on their personal experiences, knew that the full name of the Accused (whom they knew as ‘Ali Kushayb’) was Ali Muhammad Ali Abd-Al-Rahman.

253. The Chamber is satisfied that credible testimonial evidence supports the allegation that the Accused was known in the Wadi Salih and Mukjar localities, by his civil name, Ali Muhammad Ali Abd-Al-Rahman, and by his nickname ‘Ali Kushayb’ before, during and after the charged period. The witnesses drew both direct and indirect links between Abd-Al-Rahman and ‘Ali Kushayb’.Footnote ⁴⁴²

c) Recognition of the Accused in photographs and videos

254. The Chamber notes that several of the witnesses purported to identify the Accused in court either directly or by dint of video evidence. As set out in the its Evidentiary Principles and Considerations,Footnote ⁴⁴³ the Chamber has ascribed no probative value to the purported identification of the Accused’s image on a photograph or video when there was no evidence that the witness knew the Accused before the events. However, when a witness was previously acquainted with the Accused, the Chamber has assessed their ability to recognise the Accused’s image on a video or photograph. In this regard, the Chamber has assessed the evidence of P-0643, P-0874, P-0883, P-0905 and P-1021 in the light of the fact that they were all previously acquainted with the Accused.Footnote ⁴⁴⁴

255. These witnesses were shown either one or a combination of the following: (i) a passport photograph of the Accused from 2006 (the ‘Passport Photo’);Footnote ⁴⁴⁵ (ii) a video of the Accused purportedly speaking in Rahad Al-Berdi in relation to teachers (the ‘Teachers Video’);Footnote ⁴⁴⁶ and (iii) a video of the Accused purportedly speaking in Um-Sory (the ‘Um-Sory Video’).Footnote ⁴⁴⁷ The Chamber notes that the Defence acknowledges that the Accused is depicted in the Passport Photo, and he is the speaker in the Teachers Video and the Um-Sory Video.Footnote ⁴⁴⁸

256. P-0643, who had also interacted with the Accused regularly,Footnote ⁴⁴⁹ was shown the Um-Sory Video and recognised ‘Ali Kushayb’ wearing the uniform of the CRF.Footnote ⁴⁵⁰ When P-0643 was shown the Passport Photo, he also recognised the person in the photograph as ‘Ali Muhammad Ali Abd Al-Rahman’, ‘Ali Kushayb’.Footnote ⁴⁵¹ Following ‘Ali Kushayb’s’ arrest in 2020, P-0643 said he also saw him on television and when shown an image in court, he recognised the person in the red shirt as Ali Muhammad Ali Abd Al-Rahman, ‘Ali Kushayb’.Footnote ⁴⁵² P-0643 also gave evidence about seeing images of‘Ali Kushayb’ in court at The Hague, and when shown an image during his testimony, he confirmed that the person in the image was ‘Ali Muhammad Ali Abd Al-Rahman’, ‘Ali Kushayb’.Footnote ⁴⁵³

257. P-0874, who had closely observed ‘Ali Kushayb’ regularly and over a long period of time,Footnote ⁴⁵⁴ was shown the Passport Photo and he identified the person depicted as ‘Ali Kushayb’.Footnote ⁴⁵⁵

258. P-0883, who had interacted with ‘Ali Kushayb’ regularly and over a long period of time,Footnote ⁴⁵⁶ was shown the Passport Photo and identified the person he saw as ‘Ali Muhammad Ali Abd-Al-Rahman’, nicknamed ‘Kushayb’.Footnote ⁴⁵⁷ P-0883 was also shown the Teachers Video,Footnote ⁴⁵⁸ and recognised the main speaker in the video as ‘Ali Muhammad Ali Abd-Al-Rahman’.Footnote ⁴⁵⁹

259. P-0905, who knew the Accused well before the charged period and had closely observed the Accused during the charged period,Footnote ⁴⁶⁰ was shown the Passport Photo, which he recognised to be of‘Ali Kushayb’.Footnote ⁴⁶¹

260. P-1021, who also knew ‘Ali Kushayb’ very well and had had significant close encounters with him over a long period time,Footnote ⁴⁶² was shown the Passport Photo, which he recognised to be of‘Ali Kushayb’.Footnote ⁴⁶³

261. Taken together with the other evidence that these witnesses have provided in relation to the Identification Issue, this recognition evidence supports the Prosecution’s position that the Accused is the man these witnesses knew during the relevant period as both ‘Ali Kushayb’ and ‘Ali Muhammad Ali Abd-Al-Rahman’ (or a variant of Abd-Al-Rahman’s full name).

d) Agreed facts

262. The Chamber has also taken into consideration the fact that the witnesses’ description of‘Ali Kushayb’ corresponds to some of the facts agreed between the parties in relation to the Accused’s background.Footnote ⁴⁶⁴ These include:

a) Both P-0643 and P-0883 stated that ‘Ali Kushayb’ belonged to the Ta’aisha tribe.Footnote ⁴⁶⁵ The Prosecution and the Defence agree that the Accused belongs to this tribe.Footnote ⁴⁶⁶

b) P-0643, P-0883, P-0935, P-0905, P-1021, P-0012, P-0878 and P-0874 all gave evidence that ‘Ali Kushayb’ had a shop in Garsila from which he sold medication, with P-0883, P-0935, P-0905, P-1021 and P-0012 specifying that the shop was situated near the Agricultural Bank in Garsila.Footnote ⁴⁶⁷ The Prosecution and the Defence agree that, upon retirement in around the early to mid-1990s, the Accused opened a shop in Garsila near the Agricultural Bank from which he sold medication.Footnote ⁴⁶⁸

c) P-0905 estimated that, between 2000 and 2004, ‘Ali Kushayb’ was approximately 50 to 60 years old.Footnote ⁴⁶⁹ P-0012 similarly estimated that ‘Ali Kushayb’ was in his fifties in the early 2000s.Footnote ⁴⁷⁰ The Accused was in his mid-50s in 2003-2004.Footnote ⁴⁷¹

d) P-0643, P-0883, P-0935, P-0878 and P-0874 gave evidence that ‘Ali Kushayb’ previously had a medical role in the military.Footnote ⁴⁷² P-1021 and P-0012 also specified that ‘Ali Kushayb’ had previously been in the military.Footnote ⁴⁷³ The Prosecution and the Defence agree that before retiring, the Accused had been part of the Medical Corps of the SAF.Footnote ⁴⁷⁴

e) P-0643, P-0935, P-0905 and P-0874 stated that ‘Ali Kushayb’ had attained the military rank of musa’id or ‘warrant officer’.Footnote ⁴⁷⁵ The Prosecution and the Defence agree that the Accused held the rank of musa’id.Footnote ⁴⁷⁶

f) P-0935, P-0883, P-0643, P-0905 and P-0874 all stated that ‘Ali Kushayb’ became a member of the CRF.Footnote ⁴⁷⁷ The Prosecution and the Defence agree that the Accused was recorded as being a member of the CRF in 2005.Footnote ⁴⁷⁸

263. The Defence argues that the above information has largely existed in the public domain since 27 February 2007, when the Prosecution’s Article 58(7) Application was published,Footnote ⁴⁷⁹ thereby suggesting that the witnesses’ evidence on this point may have been ‘contaminated’ by what they had heard in the media and on the news.Footnote ⁴⁸⁰

264. As regards the Defence’s broader ‘contamination’ argument, and the other overarching objections made by the Defence in respect of the evidence, the Chamber has addressed (and dismissed) these in its assessment of the witnesses’ evidence.Footnote ⁴⁸¹ The Chamber also notes that the Prosecution’s Article 58(7) Application did not include any reference to the fact that ‘Ali Kushayb’ had previously had a medical role in the SAF, that he had attained the rank of musa’id, and that he had become a member of the CRF.Footnote ⁴⁸² Moreover, the degree of contextual and descriptive detail provided by the evidence referred to above, such as P-0883, P-0935 and P-0905’s observations that people would drink tea in the vicinity of ‘Ali Kushayb’s’ pharmacy,Footnote ⁴⁸³ and their evidence that ‘Ali Kushayb’ had a son named Muhammad who was in the SAF and was killed during an operation in Jebel Marra in around 2004 to 2006,Footnote ⁴⁸⁴ is credible evidence of the fact that the witnesses, in their description of‘Ali Kushayb’s’ personal background and profession, were speaking from their own experiences of living in Garsila and frequenting the marketplace there. All these factors add credence to the witnesses’ evidence and further support the Prosecution’s allegation that the Accused, Ali Muhammad Ali Abd-Al-Rahman, was ‘Ali Kushayb’.

e) Circumstantial evidence

265. The Chamber refers to its general approach to circumstantial evidence in its Evidentiary Principles and Considerations.Footnote ⁴⁸⁵ None of the pieces of evidence listed below is capable, taken on its own, of allowing the Chamber to draw an inference adverse to the Accused in respect of the Identification Issue. However, when combined, the Chamber is satisfied that it has before it evidence which lends support to witness evidence proving that the Accused was known by the name ‘Ali Kushayb’ during the relevant period.

266. In addition to the eight witnesses referred to above, several witnesses gave credible and reliable evidence about a man they knew who was named ‘Ali Kushayb’.Footnote ⁴⁸⁶ For some, this was the only name they knew him by.Footnote ⁴⁸⁷ Although their evidence, taken in isolation, does not make the link between the Accused and the nickname ‘Ali Kushayb’, the Chamber is satisfied that, in its holistic assessment of the totality of the evidence, these witnesses gave circumstantial evidence to prove the following facts, some of which have been agreed upon by the parties, and as a result, further support the allegation that the Accused had the nickname ‘Ali Kushayb’:

a) ‘Ali Kushayb’ is originally from Rahad Al-Berdi;Footnote ⁴⁸⁸

b) ‘Ali Kushayb’ was from the Ta’aisha tribe;Footnote ⁴⁸⁹

c) ‘Ali Kushayb’ had a house in Garsila (built of red bricks);Footnote ⁴⁹⁰

d) ‘Ali Kushayb’ had a pharmacy at the Garsila market near the Agricultural bank;Footnote ⁴⁹¹

e) ‘Ali Kushayb’ used to be in the SAF as a medical personnel;Footnote ⁴⁹²

f) ‘Ali Kushayb’ was also known as ‘Abu Nasser or Nasir’ because it was the name of one of his sons;Footnote ⁴⁹³ and

g) ‘Ali Kushayb’ was often seen with a long axe during the charged incidents.Footnote ⁴⁹⁴

267. The Chamber is satisfied that the only reasonable and logical inference to be drawn from the stark confluence between the agreed facts, the evidence of other witnesses linking the nickname ‘Ali Kushayb’ to the Accused, and the evidence of the witnesses who only knew the name ‘Ali Kushayb’ is that those witnesses who only gave evidence of someone named ‘Ali Kushayb’ were referring to the Accused.

268. During its examination of some of the Defence witnesses, the Prosecution placed into evidence media reports of a conflict which took place in 2013 in the Rahad Al-Berdi area, between the Ta’aisha and Salamat tribes.Footnote ⁴⁹⁵ The fact that this conflict took place was confirmed by a number of Defence witnesses.Footnote ⁴⁹⁶ In the aftermath of this conflict, the Accused was the subject of an assassination attempt in Nyala,Footnote ⁴⁹⁷ which was reported by the media.Footnote ⁴⁹⁸ The Defence does not contest that the Accused was the subject of an assassination attempt in July 2013 in Nyala, and acknowledges that P-0883 was referring to this incident when he gave evidence of visiting ‘Ali Kushayb’ in hospital.Footnote ⁴⁹⁹ One such report identified the Accused by both his real name and his nickname ‘Ali Kushayb’.Footnote ⁵⁰⁰ The Chamber finds that, given the date of the reports (i.e. 2013), they have limited probative value vis-à-vis the Identification Issue. However, the reports add some support for the Prosecution’s case that the Accused was at all times known by this nickname and undermines the Defence case that at no time was the Accused known by that nickname or that ‘Ali Kushayb’ was an invented figure and did not actually exist.Footnote ⁵⁰¹

f) Contemporaneous documentary evidence and other material referred to by the Prosecution

269. The Chamber notes that the Prosecution refers to contemporaneous documentary evidence,Footnote ⁵⁰² and other material in support of its position that the Accused was known as ‘Ali Kushayb’, including: (i) items found among the Accused’s possession following his surrender to the Court, specifically an audio recording of a poem referring to ‘Ali Kushayb’;Footnote ⁵⁰³ (ii) excerpts from Facebook accounts which the Prosecution alleges belong to the Accused’s sons;Footnote ⁵⁰⁴ and (iii) the alleged interview of the Accused by the GoS authorities in 2006.Footnote ⁵⁰⁵ Considering the limited probative value of these items and in the light of the abundant evidence analysed above, the Chamber does not rely upon any of these items to determine the Identification Issue.Footnote ⁵⁰⁶

B. Conclusion

270. The evidence discussed above amounts to compelling and coherent evidence in support of the Prosecution’s allegation that the Accused, Ali Muhammad Ali Abd-Al-Rahman, was known as ‘Ali Kushayb’ during the relevant period. Several of the key witnesses provide convincing explanations for the basis of their understanding the full name of the man they knew as ‘Ali Kushayb’ was ‘Ali Muhammad Ali Abd-Al-Rahman’, and all describe ‘Ali Kushayb’s’ personal background in a manner consistent with that of the Accused.

271. For the reasons explained above, the Chamber is not persuaded by the Defence’s objections to the evidence discussed above; which does not cast reasonable doubt on the Prosecution’s position. Therefore, based on its holistic assessment of evidence of the witnesses discussed above, supported by the agreed facts, the pre-surrender video recording and other circumstantial evidence, the Chamber is satisfied beyond a reasonable doubt that the Accused was called/known as ‘Ali Kushayb’ throughout the charged events.

II. THE ARMED CONFLICT IN DARFUR IN 2003 AND 2004

272. In this section, the Chamber refers to several facts agreed by the parties. The Chamber recalls its general approach to the agreed facts as set out above.Footnote ⁵⁰⁷

273. In 2003 and 2004, Darfur was divided into three states: North, South and West Darfur.Footnote ⁵⁰⁸ Between at least August 2003 and at least April 2004, Wadi Salih and Mukjar were localities of West Darfur State.Footnote ⁵⁰⁹ The population of West Darfur was largely composed of the Fur and Masalit tribes, which were considered to be ‘non-Arab tribes’.Footnote ⁵¹⁰ The Beni Halba, Salamat, Ta’aisha, Misseriya, and Rizeigat were amongst the Arab tribes in West Darfur, including in Wadi Salih.Footnote ⁵¹¹

274. The Fur tribe had a three-tiered tribal administration system consisting of a sheikh, umdah and shartay. Footnote ⁵¹² The sheikh was the lowest in the tribal hierarchy and referred to as the chief of a village.Footnote ⁵¹³ The umdah was the local administrative head and tax collector.Footnote ⁵¹⁴ Finally, the shartay was the senior chief or administrator of the Fur.Footnote ⁵¹⁵

275. Whenever problems arose, the matter would first be raised with the sheikh.Footnote ⁵¹⁶ The sheikh served as a magistrate for minor offences, adjudicated disputes according to customary and Islamic law, and collected taxes.Footnote ⁵¹⁷ If the sheikh could not resolve a problem, it would be brought before the umdah and lastly before the shartay.Footnote ⁵¹⁸ These leaders were selected by the local population and the selected persons were automatically approved by the government, as it delegated the collection of taxes to these leaders.Footnote ⁵¹⁹

276. In 2003 and 2004, Omar Ahmad Zarruq was the shartay of the Fur.Footnote ⁵²⁰ He was in charge of all the people in Dar Kobra, which had 107 villages.Footnote ⁵²¹ Issa Harun Nour was the umdah of Mukjar town and some of the surrounding villages like Nyerli, Indry, Deimbo, Korofota, Eberla and Sigirgir.Footnote ⁵²² Yahya Ahmad Zarruq was the umdah of the area east of Mukjar, which included Sindu, Tendy and Dimbi.Footnote ⁵²³ There were also a number of sheikhs, including Idriss Abdul-Bashir, Khalid Umar, Muhammad Torjok and Musa.Footnote ⁵²⁴

277. The primary livelihood of the Fur people of the Wadi Salih and Mukjar localities was farming,Footnote ⁵²⁵ although some persons also raised livestock and carried out small-scale trade.Footnote ⁵²⁶ The fabric of people’s daily lives was intertwined with different seasons,Footnote ⁵²⁷ market daysFootnote ⁵²⁸ and land ownership.Footnote ⁵²⁹ During the charged period, most houses were built using grass, mud, straws and other earthen materials.Footnote ⁵³⁰

A. The main features of the conflict

278. From at least April 2003 until at least April 2004, the Sudan Liberation Movement/Army (SLM/A) and Justice and Equality Movement (JEM) carried out armed operations against the forces of the Government of Sudan, which included the Sudanese Armed Forces (SAF), the Popular Defence Forces (PDF), the Central Reserve Forces (CRF), the Popular Police Forces (‘PPF’), and the National Police (‘Police’) (collectively, the ‘GoS Forces’), in Darfur, Sudan.Footnote ⁵³¹ On 25 April 2003, the SLM/A attacked the airport in Al Fasher, North Darfur,Footnote ⁵³² destroying several military aircraft and causing multiple casualties.Footnote ⁵³³ This event was a turning point in the Government’s policy towards the rebels in Darfur, causing it to decide that the rebels, namely the SLM/A and JEM, should be defeated militarily (through an ‘all-out military campaign’).Footnote ⁵³⁴ This goal was reflected in the public speeches of several governmental officials and Janjaweed leaders.Footnote ⁵³⁵

279. On 18 December 2003, the National Security Council, which was the highest executive authority in charge of the security and military operations throughout the whole of Sudan, headed by the President of Sudan, Omar Al-Bashir (‘President Al-Bashir’),Footnote ⁵³⁶ adopted the ‘National Security Council 2004 plan for ending the rebellion in the states of Darfur’ (the ‘National Security Plan’ or ‘Emergency Plan’),Footnote ⁵³⁷ directing the recruitment of Arab militias into the GoS Forces to fight the SLM/A and JEM.Footnote ⁵³⁸

280. As a result of this plan, members of the Janjaweed were trained and armed by the GoS,Footnote ⁵³⁹ and some were partly integrated into the GoS Forces, namely the SAF, PDF, CRF, PPF or the Border Intelligence Unit (‘Border Guards’).Footnote ⁵⁴⁰ The Janjaweed were then used by the Government in counter-insurgency attacks, they were integrated or partly integrated into the GoS Forces, or used to fight alongside the GoS Forces.Footnote ⁵⁴¹ Military attacks were carried out against several localities, including in Kodoom, Bindisi,Footnote ⁵⁴² MukjarFootnote ⁵⁴³ and Deleig.Footnote ⁵⁴⁴

281. As noted by P-1042, the armed conflict’s impact on the civilian population (where the number of civilian casualties considerably exceeded the combatant casualties) was foreseeable in light of prior large-scale military campaigns in Sudan.Footnote ⁵⁴⁵ The attacks on villages were marked by large-scale destruction of property and pillage.Footnote ⁵⁴⁶ Large numbers of people were forced out of their homes.Footnote ⁵⁴⁷ Sexual violence was also widespread,Footnote ⁵⁴⁸ and women were systematically raped,Footnote ⁵⁴⁹ throughout the charged period in various locations in Darfur, including, inter alia, in Gausir (on 15-16 August 2003),Footnote ⁵⁵⁰ Forgo (August/September/October 2003),Footnote ⁵⁵¹ Taringa (November 2003),Footnote ⁵⁵² Arawala (December 2003),Footnote ⁵⁵³ Mindo (December 2003 and March 2004),Footnote ⁵⁵⁴ Tendy (January to February 2004),Footnote ⁵⁵⁵ Gaba (in February 2004),Footnote ⁵⁵⁶ Arawala (early 2004),Footnote ⁵⁵⁷ Mukjar (early 2004),Footnote ⁵⁵⁸ and Deleig (March 2004).Footnote ⁵⁵⁹

282. Nonetheless, these crimes were underreported and unpunished. In early 2003, the Chief Prosecutor of Al Geneina received an oral directive from Khartoum not to prosecute certain crimes, including killing of civilians, rape, looting of property and destruction of homes.Footnote ⁵⁶⁰ Victims could not file complaints with the Police or access medical care in hospitals.Footnote ⁵⁶¹ Moreover, rapes were not reported as this was considered taboo.Footnote ⁵⁶² As stated by P-0584, the Fur did not have the ability to report crimes:

283. On 8 April 2004, the GoS signed the Humanitarian Ceasefire Agreement on the Conflict in Darfur with the JEM and SLM/A.Footnote ⁵⁶⁴ On 28 May 2004, the African Union signed the Agreement with the Sudanese Parties on the Modalities for the Establishment of the Ceasefire Commission and the Deployment of Observers in the Darfur.Footnote ⁵⁶⁵ The UN Security Council, acting under Chapter VII of the UN Charter and determining that ‘the situation in Sudan constitute[d] a threat to international peace and security’, issued several resolutions in 2004 and 2005 on the situation in Darfur. In those resolutions, the UN Security Council called upon the GoS to disarm the Janjaweed, and all parties, to comply with international humanitarian law and prevent ongoing violations of the peace agreements.Footnote ⁵⁶⁶ On 31 March 2005, it referred the Situation in Darfur to the ICC.Footnote ⁵⁶⁷

284. During the time of the charges, a state of emergency was in force in Darfur, giving special powers to the President and temporarily modifying the legislation and restricting individual rights.Footnote ⁵⁶⁸

B. The Emergency Plan

285. The attack on Al Fasher airport on 25 April 2003 by the SLM/A was a turning point in the Government’s policy, in which it was decided that the rebels should be defeated militarily through an ‘all-out military campaign’. On 18 December 2003, the National Security Council headed by President Al-Bashir, adopted the Emergency Plan, directing the recruitment of Arab militias into the GoS Forces to fight against the rebels.Footnote ⁵⁶⁹ The Emergency Plan was to be implemented from 1 January to 31 December 2004.Footnote ⁵⁷⁰ This Emergency Plan was implemented in part through the State’s Security Committee of West Darfur.Footnote ⁵⁷¹

286. The Emergency Plan was encapsulated in a high level top-secret document.Footnote ⁵⁷² The political strategy elaborated therein by the National Security Council was based on the understanding that ‘non-Arab tribes’, in particular the ‘Fur, Zaghawa, [and] Masalit’ tribes, were ‘leading the Rebellion’ in Darfur.Footnote ⁵⁷³ The objectives of the plan were to ‘[r]estor[e] security in the states of Darfur and [end] the rebellion through military and security decisiveness’, fight the SLA and JEM, and ‘impos[e] control over all the villages and the regions to which rebel leaders belong (Fur, Zaghawa, Masalit)’ and ‘the areas inhabited by the rebellious tribes’.Footnote ⁵⁷⁴ The plan stated that this aim was to be achieved through the creation of semi-regular forces ‘from Arab tribes’, which were to be provided with training and arms, assigned to a commander, and be assisted by the Armed Forces with ‘fire support and air assets during military operations’.Footnote ⁵⁷⁵ The National Security Council decided to resort to Arab tribes in part because it considered that the regular forces in Darfur were composed of members of non-Arab tribes who would not be reliable.Footnote ⁵⁷⁶ The Ministry of Interior was also ordered to ‘draft young men from Arab tribes in Darfur into the Central Reserve Police’.Footnote ⁵⁷⁷

287. Based on the evidence, the Chamber is satisfied that in the Emergency Plan, non-Arab tribes, in particular the Fur, the Zaghawa and the Masalit, were targeted, on the basis that they were perceived to be associated with the rebels, and thus as the enemy.Footnote ⁵⁷⁸ The Emergency Plan defined the field ofoperations as being ‘the rebel movements’ camps’ and ‘the villages of the leaders and the soldiers […] because they offer them shelter and hide-out after they carry out their operations against government targets’.Footnote ⁵⁷⁹

288. According to P-0547, this meant that ‘they [were] all considered rebels and the village would be attacked without distinguishing between people indiscriminately, whether it was someone at his home or whether it’s someone working on a farm’.Footnote ⁵⁸⁰ In addition, this plan stated that one of the purposes of creating semi-regular forces from Arab tribes was to ‘assassinat[e] […] sympathisers from among community leaders (umdahs) and local administration officials’.Footnote ⁵⁸¹

289. Several witnesses gave evidence that ‘all African tribes’ and the ‘entire communities ofFur, Zaghawa, Masalit’ were targeted because, in the eyes of the Government, they were ‘all rebels’.Footnote ⁵⁸² P-0547, stated that the GoS considered all members ofthese tribes to be ‘rebels’.Footnote ⁵⁸³ P-0769 explained that at the beginning of the Emergency Plan, there is an excerpt of the Qur’an which shows that the Government considered that the ‘residents of Darfur became kufar or infidels’, that they are ‘against the Islamic State that was in Sudan at that […] point’ and ‘that’s why they have to be fought’ and ‘killed’.Footnote ⁵⁸⁴ ‘[T]aking control’ of the areas inhabited by the ‘rebellious tribes’, as mentioned in the Emergency Plan, was interpreted by witnesses as considering those villages ‘as an operation area’,Footnote ⁵⁸⁵ ‘occupy and get all its population out’,Footnote ⁵⁸⁶ monitoring and driving civilians out.Footnote ⁵⁸⁷ During his in-court testimony, P-0769 was asked whether he was aware of any operations launched ‘in furtherance of the Emergency plan’. He replied that on the basis of signals and reports received and stating that the SLM/A were posted in Mukjar and Bindisi, it was considered ‘imperative to purify and to cleanse’ these areas and therefore, ‘[Arab] militias were used for this purpose’, making a clear link between the Emergency Plan, and the military operations involving the Janjaweed in Mukjar and Bindisi.Footnote ⁵⁸⁸

C. The parties to the conflict

a) GoS Forces

290. During the time relevant to the charges, the Head of State, the President of Sudan, was President Al-Bashir. The Minister of Interior was Abdel Raheem Muhammad Hussein (‘Minister Hussein’),Footnote ⁵⁸⁹ and his deputy was the State Minister for the Ministry of the Interior, Ahmad Muhammad Harun.Footnote ⁵⁹⁰ The Minister of Defence was Bakri Hassan Salih.Footnote ⁵⁹¹ Major General Suleiman Abdullah was the Governor or wali of West Darfur state.Footnote ⁵⁹²

i. Regular forces

The Sudanese Armed Forces (SAF)

291. From at least April 2003 until at least April 2004, the SAF, also known as the ‘People’s Armed Forces’,Footnote ⁵⁹³ were the regular armed forces of Sudan.Footnote ⁵⁹⁴ According to Article 11(1) of the People’s Armed Forces Act of1986, the President of the Republic, President Al-Bashir,Footnote ⁵⁹⁵ was the Supreme Commander of the People’s Armed Forces,Footnote ⁵⁹⁶ with a line of command set out by Sudanese law.Footnote ⁵⁹⁷ The SAF were subordinate to the Minister of Defence.Footnote ⁵⁹⁸ Lieutenant General Abbas Arabi was the Chief of Staff of the SAF.Footnote ⁵⁹⁹ The SAF were a disciplined force with an organised hierarchy.Footnote ⁶⁰⁰

292. The SAF headquarters was in Khartoum.Footnote ⁶⁰¹ The Western Area Command of the SAF was located in Al Fasher, North Darfur,Footnote ⁶⁰² and was responsible for West, North and South Darfur.Footnote ⁶⁰³ General Ismat Abd-Al-Rahman Zain Al-Abidin (‘Gen Ismat al Zain’) was the Commander of the Western Command during the time of the charges.Footnote ⁶⁰⁴ At the time of the conflict in 2003 and 2004, there were five SAF Divisions in Darfur: Nyala, Al Fasher, Zalingei, Al Da’in and Al Geneina.Footnote ⁶⁰⁵

293. During the time of the charges, the Garsila Battalion was under the command of the 87^th Brigade, based in ZalingeiFootnote ⁶⁰⁶ and headed by Brigadier General Kamal.Footnote ⁶⁰⁷ The 87^th Brigade was under the command of the 21^st Division, based in Zalingei.Footnote ⁶⁰⁸ The Garsila Battalion, headed by Major Muhammad Musa Adam Khatir Bakhit (‘Maj Bakhit’)Footnote ⁶⁰⁹ and his deputy, Qasim Adam Dawoud,Footnote ⁶¹⁰ had a presence in Um Dukhun, Mukjar, Bindisi, Garsila, Deleig (commanded by Al Hedi Salem Jed Al Sid), Tanako (commanded by Staff First Sergeant and Military Intelligence officer Muqaddam Idriss), Sodija, and Arawala.Footnote ⁶¹¹ Mukjar, Bindisi, Deleig and Kodoom were under the authority of Maj Bakhit.Footnote ⁶¹²

294. Each regiment included one intelligence officer deployed by the Garsila Military Intelligence Office.Footnote ⁶¹³ The head of the Military Intelligence branch in Garsila was First LieutenantFootnote ⁶¹⁴ Hamdi.Footnote ⁶¹⁵

295. The 6^th Division of the SAF was under the command, first, of Colonel Ali Adam Harun,Footnote ⁶¹⁶ subsequently of Brigadier Ya’qub Ibrahim ManzulFootnote ⁶¹⁷ and, lastly, of Major General Muhammad Fa’iz (‘Maj Gen Fa’iz’).Footnote ⁶¹⁸

296. In February 2004, all deployed SAF forces had been moved to Garsila, except for the one in Deleig.Footnote ⁶¹⁹

297. The SAF had military police and intelligence arms.Footnote ⁶²⁰ The military police were in charge ofmilitary security. Its members wore a military uniform and had the authority to carry out arrests.Footnote ⁶²¹ The Military Intelligence was in charge of political security.Footnote ⁶²² Its members wore civilian clothingFootnote ⁶²³ and had no authority to carry out arrests.Footnote ⁶²⁴

298. SAF members wore a camouflage uniformFootnote ⁶²⁵ and drove Land Cruiser vehicles.Footnote ⁶²⁶

299. Some members of the SAF were seconded to the PDF to provide administration, communication, training and general services support, and to coordinate between the SAF and the PDF, and the Janjaweed.Footnote ⁶²⁷

The National Police

300. During the time of the charges, the Police in Wadi Salih had its headquarters in Garsila, with local offices in Mukjar, Bindisi, Um Dukhun, and Deleig.Footnote ⁶²⁸

301. Lieutenant Colonel Al-Jilli (‘Lt Col Al-Jilli’) was the commander for the Police in Garsila.Footnote ⁶²⁹ The chain of command in Wadi Salih was as follows in descending order: Khartoum, Al Fasher, Zalingei and Garsila.Footnote ⁶³⁰ Most of the non-commissioned officers in Garsila were Fur, but some were from the Masalit, Zaghawa, Tama and Arab tribes.Footnote ⁶³¹

302. The Police wore light and dark blue camouflage uniforms.Footnote ⁶³²

ii. Semi-regular and other forces

The Popular Defence Forces (PDF)

303. The PDF were a paramilitary entity comprised of volunteer citizens, created to assist the SAF and other regular forces with civil and military activities when required.Footnote ⁶³³ According to the 1989 Popular Defence Forces Act, the PDF’s functions included, among others, to ‘support the People’s Armed Forces and all other government forces whenever necessary’ and to ‘participate in the Nation’s defence’.Footnote ⁶³⁴

304. The PDF were under the authority of the Ministry of DefenceFootnote ⁶³⁵ and under the command of the SAF.Footnote ⁶³⁶ It was considered a ‘reserve force’ of the SAF.Footnote ⁶³⁷ They were armed and trained by the SAF, including in the use of weapons.Footnote ⁶³⁸ The PDF provided intelligence to the SAF and the National Intelligence and Security Service (‘NISS’),Footnote ⁶³⁹ and operational support to the SAFFootnote ⁶⁴⁰ and the Janjaweed.Footnote ⁶⁴¹ PDF members were mobilised temporarily, according to the needs of the regular army.Footnote ⁶⁴²

305. In 2003 and 2004, the PDF’s headquarters was in Khartoum.Footnote ⁶⁴³ The PDF’s headquarters in the Wadi Salih area was in Al Fasher, with branches in Zalingei, Garsila and Nyala.Footnote ⁶⁴⁴ The PDF chain of command in the Wadi Salih area was similar to that of the National Police.Footnote ⁶⁴⁵

306. Major General Mohamed Abbas Ahmed Al-Saad was the head of the PDF at the central level in Khartoum.Footnote ⁶⁴⁶ Ali Karti was the general commander of the PDF for the whole of Sudan.Footnote ⁶⁴⁷ In 2003 and 2004, the PDF coordinator in Garsila was Adam Abd-Al-Rahman, a Fur man nicknamed Jenif (‘Jenif’), and, following his death,Footnote ⁶⁴⁸ he was replaced by Abd-Al-Rahman Dawud Hammudah, nicknamed Hassaballah (‘Hassaballah’).Footnote ⁶⁴⁹ The PDF commander in Nyala at the time of the charges was Lieutenant Colonel Al Hirika,Footnote ⁶⁵⁰ and his deputy was Al Sharif.Footnote ⁶⁵¹ Lt Hamdi was also in charge of supervising weapons distribution to the PDF members.Footnote ⁶⁵² The PDF had an office in the Mukjar locality,Footnote ⁶⁵³ and its coordinator was Al-Sadiq Ahmad Uthman Zakariya, nicknamed Al-Sadiq Solonga (‘Solonga’).Footnote ⁶⁵⁴

307. At the locality level, the PDF consisted of a civilian coordinating body, headed by a PDF coordinator, responsible for, in particular, the selection and mobilisation of civilians into the PDF. It also consisted of a military body, headed by a PDF commander, whose duties included, leading military operations and trainings.Footnote ⁶⁵⁵

308. In addition to PDF commanders, emirs, traditional Arab tribe leaders, also led the fighters during military operations.Footnote ⁶⁵⁶

309. PDF members wore military uniforms,Footnote ⁶⁵⁷ except during reconnaissance missions when they wore civilian clothing.Footnote ⁶⁵⁸ PDF members had their own vehicles.Footnote ⁶⁵⁹

The Central Reserve Forces (CRF)

310. The CRF were subordinated to the Ministry of Interior. Civilians were recruited among the population to join the CRF and were trained by the Police.Footnote ⁶⁶⁰ The CRF were an ‘integral part’ of the police forcesFootnote ⁶⁶¹ and as such were governed by the Police Act.Footnote ⁶⁶² However, after the state of emergency was declared in Darfur, the CRF in said region were subject to military law.Footnote ⁶⁶³ Although the CRF were independent of the SAF,Footnote ⁶⁶⁴ they provided operational support to the latterFootnote ⁶⁶⁵ and received military training.Footnote ⁶⁶⁶ The CRF were also known as the ‘Abu Teira’Footnote ⁶⁶⁷ and wore the insignia of an eagle on their uniforms.Footnote ⁶⁶⁸

311. The official functions of the CRF included escorting and securing convoys.Footnote ⁶⁶⁹ The CRF were deployed during riots and other emergency situations.Footnote ⁶⁷⁰

312. The CRF had bases in Zalingei, Nyala, Al Fasher and Garsila.Footnote ⁶⁷¹ The chain of command was organised as follows: Khartoum - Nyala - Mukjar.Footnote ⁶⁷² The CRF in Khartoum reported to Minister Harun.Footnote ⁶⁷³

313. The commander of the CRF in Bindisi in early 2003 was Marko Gar Ater (‘Marko’),Footnote ⁶⁷⁴ who was then transferred to Mukjar around May 2003.Footnote ⁶⁷⁵

314. The CRF had a camp in Bindisi,Footnote ⁶⁷⁶ and between July and August 2003, the CRF was moved from Bindisi to Mukjar.Footnote ⁶⁷⁷

315. The CRF were stationed in a school building located in the south of Mukjar.Footnote ⁶⁷⁸ After the Sindu Operation in February 2004,Footnote ⁶⁷⁹ the CRF relocated to the police station in Mukjar.Footnote ⁶⁸⁰

316. From at least July or August 2003 until January or February 2004, Lieutenant Colonel Abdallah Himeidan (‘Lt Col Himeidan’) was the commander of the CRF in Mukjar.Footnote ⁶⁸¹ Lt Col Himeidan was replaced by Lieutenant Colonel Mustafa Ahmad Al-Tayyib (‘Lt Col Al-Tayyib’).Footnote ⁶⁸² John Koj, a CRF Master Sergeant, was under Lt Col Al-Tayyib’s authority.Footnote ⁶⁸³

317. The CRF wore uniforms in several different colours which changed over time.Footnote ⁶⁸⁴ In 2003 and 2004, these colours included khaki, beige, blue and camouflage green.Footnote ⁶⁸⁵ CRF members wore different caps depending on the type of operation they performed.Footnote ⁶⁸⁶

318. CRF members drove Land Cruisers and Mitsubishi military vehicles with open backs – a weapon was sometimes mounted at the back of the vehicles.Footnote ⁶⁸⁷ CRF officers were heavily armedFootnote ⁶⁸⁸ with weapons, including Kalashnikovs, DShK and GM3.Footnote ⁶⁸⁹

The Popular Police Forces (PPF)

319. The PPF were established as a reserve force for the regular police when President Al-Bashir came to power.Footnote ⁶⁹⁰ The PPF consisted of civilians who were recruited by the PoliceFootnote ⁶⁹¹ in the local communities.Footnote ⁶⁹² They were trained for regular police duties and combat operations by the Police and the SAF, respectively,Footnote ⁶⁹³ and received a salary.Footnote ⁶⁹⁴

320. The head of the PPF reported to the Director of the regular police.Footnote ⁶⁹⁵ In relation to operational matters, such as training, arming and deployments, the PPF were under the command of its headquarters in Khartoum,Footnote ⁶⁹⁶ and, ultimately, of the Minister of the Interior.Footnote ⁶⁹⁷ However, during the state of emergency declared in Darfur in 2003 and 2004, all police forces as a whole, including the PPF, became part of the SAF.Footnote ⁶⁹⁸ The PPF were considered a backup force of the Police.Footnote ⁶⁹⁹

321. The PPF in Garsila were under the command of Lt Col Al-Jilli.Footnote ⁷⁰⁰ The commander of the police in Bindisi, Mohamed Hassan Deleib, was also exceptionally in charge of the PPF in Bindisi.Footnote ⁷⁰¹

322. The PPF had an office in the Mukjar locality building.Footnote ⁷⁰² Ibrahim Sharaf-Al-Din was the commander of the PPF in Mukjar.Footnote ⁷⁰³ Hassan Muhammad Joma (‘Hassan Joma’), nicknamed Hassan Carter, was the PPF coordinator in Mukjar.Footnote ⁷⁰⁴ Jamal Adam Abdelrahim, Khalid Omer Ahmed Zarouq, Jamel Abdulrahim Mohammed, Haroun Bashir (nicknamed Al-Sadiq Bashar), Bakhit Naheed, Abakar Salih (nicknamed Korein) and Adil Mustafa were PPF officers in Mukjar.Footnote ⁷⁰⁵

The Janjaweed

323. The term Janjaweed, the use of which pre-dates the conflict in Darfur in 2003 and 2004,Footnote ⁷⁰⁶ refers in the popular language to horsemen from Arab tribes, carrying weapons and attacking villages.Footnote ⁷⁰⁷ Etymologically, it combines the terms ‘devil’, or ‘bad spirit’, and ‘horse’, meaning ‘devil on a horse’.Footnote ⁷⁰⁸ During the relevant period of the case, it was used to refer to irregular forces fighting on the side of the GoS.Footnote ⁷⁰⁹ The Accused’s position within the Janjaweed will be addressed in Section 5.IV. below.Footnote ⁷¹⁰

324. The members of the Janjaweed came from Arab tribes,Footnote ⁷¹¹ including the Ta’aisha,Footnote ⁷¹² Misseriya, Nawaiba, Salamat, Tarjam, Beni Halba, Al Khozam, Awlad Edd, and Masalit tribes.Footnote ⁷¹³ The Janjaweed Footnote ⁷¹⁴ were also referred to as the Fursan,Footnote ⁷¹⁵ the Mujahidin,Footnote ⁷¹⁶ the Arab militias,Footnote ⁷¹⁷ and the Bashmerga.Footnote ⁷¹⁸

325. In Arab tribes, the emir was the leader of the tribe and was in charge of all its affairs.Footnote ⁷¹⁹ Umdahs,Footnote ⁷²⁰ followed by agids, were under the authority of the emir.Footnote ⁷²¹ The agid al-ogada, 0085’s meaning ‘colonel of colonels’, managed and directed the agids of several tribes.Footnote ⁷²² The agid was in charge of the warfare of the tribe and led a group of Janjaweed.Footnote ⁷²³

326. Some of the leaders of the Janjaweed included Al-Dayf Samih (‘Samih’),Footnote ⁷²⁴ Musa Abdulrahman,Footnote ⁷²⁵ Garang,Footnote ⁷²⁶ Musa Jalombo,Footnote ⁷²⁷ Musa Hilal,Footnote ⁷²⁸ Sandal,Footnote ⁷²⁹ Umdah Dawd Dahab,Footnote ⁷³⁰ Umdah Abdullah Dahab,Footnote ⁷³¹ Umdah Husayn Sakin,Footnote ⁷³² Umdah Abdullah Madhi,Footnote ⁷³³ Umdah Abakr;Footnote ⁷³⁴ Adam Meris, the brother of Umdah Abakr,Footnote ⁷³⁵ Issa Mardom,Footnote ⁷³⁶ Hassan Daloum,Footnote ⁷³⁷ Muhammad Adam Bonjouse (‘Bonjouse’)Footnote ⁷³⁸ and Emir Hessine Sayyid Al Helu.Footnote ⁷³⁹

327. The Janjaweed wore a mix of military uniforms, regular clothes and jallabiyas,Footnote ⁷⁴⁰ and turbans or kadamols.Footnote ⁷⁴¹ The Janjaweed were armed with Kalashnikovs and GIMs.Footnote ⁷⁴²

328. The Janjaweed acted and participated in military operations at the Government’s request and on its side, and collaborated with GoS Forces during military operations on an ad hoc basis.Footnote ⁷⁴³

329. The mobilisation and arming of Arab tribes started after a meeting in September 2002.Footnote ⁷⁴⁴ This meeting, which gathered members of all Arab tribes in Darfur, was prompted by ‘security violations and tribal conflicts’ and had, among its objectives, to eradicate ‘tensions, malpractices and direct or indirect causes ofsecurity issues’.Footnote ⁷⁴⁵

330. The GoS, exploiting existing tribal tensions,Footnote ⁷⁴⁶ used the Janjaweed to assist them in countering the rebels.Footnote ⁷⁴⁷ The Janjaweed had little training,Footnote ⁷⁴⁸ and would attack their enemy in ‘an unexpected way’.Footnote ⁷⁴⁹ In the context of these joint operations in particular, the Janjaweed acted pursuant to instructions received from the GoS, through the Janjaweed leaders.Footnote ⁷⁵⁰ In the early stages of the conflict the Janjaweed used camels, horses, and donkeys as their mode of transport. The Government later provided them with more military equipment and they started using Land Cruisers and trucks mounted with a DShK on the back.Footnote ⁷⁵¹ The PDF ‘assisted’ the Janjaweed in operations in 2003 and 2004, notably during the attacks on Bindisi, Mukjar, Tanako and Silik.Footnote ⁷⁵²

331. During the period of the charges, the Janjaweed received funding, training and weapons from the GoS.Footnote ⁷⁵³

332. The Janjaweed had camps in Korto and Al Mangaya (both in the vicinity of Garsila),Footnote ⁷⁵⁴ and near Mukjar.Footnote ⁷⁵⁵

333. As a result of growing scrutiny by international organisations,Footnote ⁷⁵⁶ many Janjaweed were semi-regularised and gradually incorporated into the GoS Forces,Footnote ⁷⁵⁷ including the PDF,Footnote ⁷⁵⁸ the CRF,Footnote ⁷⁵⁹ the PPF,Footnote ⁷⁶⁰ the SAF,Footnote ⁷⁶¹ and the Border Guards. The Border Guards, or ‘Border Intelligence’ Brigade, headed by Musa Hilal, was one of the irregular groups within the Arab militia which had been semi-formalised by the GoS.Footnote ⁷⁶² As a result, it was at times difficult to distinguish between the Janjaweed and the GoS Forces, particularly the PDF.Footnote ⁷⁶³ Members of the Janjaweed subsequently received a salary,Footnote ⁷⁶⁴ and monetary compensation in case of death or injury on the battlefield.Footnote ⁷⁶⁵ They were also provided with weapons,Footnote ⁷⁶⁶ uniforms,Footnote ⁷⁶⁷ and ID cards,Footnote ⁷⁶⁸ and training camps were opened.Footnote ⁷⁶⁹

b) Opposing forces

334. At the material time, two main groups – namely, the SLM/A and the JEM – opposed the GoS Forces.Footnote ⁷⁷⁰

335. On 14 March 2003, the Darfur Liberation Front announced its transformation into the SLM/A.Footnote ⁷⁷¹ In a declaration issued that same day, the SLM/A presented itself as a political movement and ‘army’ representing the ‘popular resistance’ from marginalised areas, in response to the ‘ethnic and tribal wars, with the governments in Khartoum providing military assistance to some Arab tribes and organizations to fight against their non-Arab brethren’.Footnote ⁷⁷² They added that ‘brutal oppression, ethnic cleansing and genocide sponsored by the Khartoum Government left the people of Darfur with no other option but to resort to popular political and military resistance for purposes of survival’.Footnote ⁷⁷³ The SLM/A was divided into a political wing, the ‘Movement’, and a military wing, the ‘Army’.Footnote ⁷⁷⁴ From at least April 2003 until at least April 2004, Abd-Al-Wahid Muhammad Nur and Minnie Arkawi Minawi were the leaders of the SLM/A.Footnote ⁷⁷⁵

336. In or around August 2001, the JEM was founded as a political movement,Footnote ⁷⁷⁶ and had an armed wing from at least April 2003 until at least April 2004. The JEM’s Chairperson was Dr Khalil Ibrahim.Footnote ⁷⁷⁷

337. The rebels recruited members from different non-Arab tribes, mainly from the Fur, Zaghawa and Masalit tribes.Footnote ⁷⁷⁸ However, the traditional authorities of those tribes were not involved in deciding whether their members would join the rebels.Footnote ⁷⁷⁹ New recruits received military training.Footnote ⁷⁸⁰ Some members of the rebels wore uniforms while others did not.Footnote ⁷⁸¹ They nonetheless carried weapons and used Land Cruiser type vehicles.Footnote ⁷⁸² The rebels had armed presence in localities including Sindu, Jebel Marra, Garsila, and Silik.Footnote ⁷⁸³ Their presence was also reported in other villages, mainly in isolated mountainous areas.Footnote ⁷⁸⁴ It is estimated that by the end of 2003, the SLM/A had between 6,000 and 7,000 fighters while the JEM had nearly 1,000.Footnote ⁷⁸⁵ It was difficult to distinguish members of the two groups in the field.Footnote ⁷⁸⁶

338. The Defence refers to the Fur ‘self-defence groups’ as the ‘final category of protagonists of the armed conflict’, which it alleges, ‘most often fought on the side of the Rebellion’.Footnote ⁷⁸⁷ The Chamber is satisfied that on the basis on the evidence, the only conclusion that can be drawn is that those groups of armed men, formed in the villages, had a very local and circumscribed agenda: they were created, in some cases decades before the charged events,Footnote ⁷⁸⁸ to defend their own villages from the attacks and lootings by the Janjaweed, who wanted to steal their cattle.Footnote ⁷⁸⁹ Therefore, the Chamber is satisfied that the evidence referred to by the Defence does not support its contention. Indeed, the Chamber is satisfied that according to P-1042, the villagers were not even ‘organized’ in the sense of‘something that is formalised and registered’ but rather as ‘a crowd of adult men who are armed and are mobilizing themselves’.Footnote ⁷⁹⁰ They were armed with rifles but also at times only with sticks and swords.Footnote ⁷⁹¹

D. The use of government resources to recruit, train, arm, and fund the Janjaweed

339. In its counter-insurgency efforts, the GoS selectively recruited and armed members of Arab tribes.Footnote ⁷⁹² Indeed, during the period of the charges, calls to join the GoS Forces were discriminatory and based on one’s ‘ethnic belonging’ to these tribes.Footnote ⁷⁹³ The Mujahidin Committee in Wadi Salih and the SAF in Garsila provided weapons exclusively to members of Arab tribes.Footnote ⁷⁹⁴ Governmental authorities at the locality and state levels received complaints from members of non-Arab tribes regarding the distribution ofweapons ‘on an ethnic basis’.Footnote ⁷⁹⁵ Moreover, members of non-Arab tribes were dismissed or excluded from public service, including from the SAF, Police and NISS.Footnote ⁷⁹⁶ Their requests for weapons were denied by GoS officials at the SAF base in Garsila.Footnote ⁷⁹⁷

340. GoS officials participated in the recruitment, training, arming, funding, and distribution of supplies to the Janjaweed. Senior GoS officials, including Ministers Hussein and Harun, publicly acknowledged the GoS’ support to the Janjaweed.Footnote ⁷⁹⁸ P-0878 heard Minister Harun telling a crowd of Janjaweed: ‘You have […] stood by the side of the government, you have supported the government, and you have supported the armed forces. This is why, today, you are our forces and you are considered, as of today, governmental forces. We would train you. We would organise camps for you, for training. We would provide you with weapons and we would be giving you wages, or salaries, and we would also be feeding your horses.’Footnote ⁷⁹⁹

341. Arab tribal leaders, such as sheikhs, umdahs and agids,Footnote ⁸⁰⁰ also assisted in some of these efforts, particularly in the recruitment and arming of the Janjaweed.Footnote ⁸⁰¹ Janjaweed leaders like Musa HilalFootnote ⁸⁰² and the Accused Footnote ⁸⁰³ provided such assistance.

342. In early 2002, members of Arab tribes were recruited through the PDF.Footnote ⁸⁰⁴ When fighting in Darfur increased, members of these tribes were also recruited into the SAF, CRF, NISS and the PPF.Footnote ⁸⁰⁵ Between March 2003 and November 2004,Footnote ⁸⁰⁶ the State Security Committee of West Darfur ordered the mobilisation and deployment of large numbers of Janjaweed to units of the GoS Forces across West Darfur, which included the Police, the SAF, PDF and the PPF.Footnote ⁸⁰⁷ One such decision resulted in the creation of a Mobilisation Committee for Wadi Salih Locality,Footnote ⁸⁰⁸ which was tasked with mobilising the Janjaweed to fight the rebels.Footnote ⁸⁰⁹ Arab tribal leaders participated in meetings of the State Security Committee of West Darfur and/or were tasked with implementing its decisions.Footnote ⁸¹⁰

343. PDF coordinators were in charge of the selection and recruitment of Janjaweed into the PDF.Footnote ⁸¹¹ Regular SAF personnel were seconded to the PDF in order to train the Janjaweed in West Darfur.Footnote ⁸¹² Training was conducted in Mukjar, Khartoum, Al Geneina, and the ‘Jiebat camp’.Footnote ⁸¹³ Recruits were trained in the use of heavy weapons, such as RPGs, Goryunov, DShK, and Katyushas,Footnote ⁸¹⁴ and were briefed on their ‘jihad duties’.Footnote ⁸¹⁵

344. SAF (including Military Intelligence), CRF and PDF officers also participated in the distribution of weapons, including by overseeing, storing and handing them over to the Janjaweed.Footnote ⁸¹⁶ Weapons and ammunition, such as Goryunovs and Kalashnikovs, were distributed.Footnote ⁸¹⁷ For example, between August 2003 and March 2004, on a regular basis, aircraft originating from Khartoum delivered boxes with weapons to different locations in Mukjar.Footnote ⁸¹⁸ In early 2004, the delivery of such weapons increased significantly.Footnote ⁸¹⁹ Weapons arriving in these aircraft were received by the GoS Forces, who then provided them to the Janjaweed.Footnote ⁸²⁰

345. In addition, PDF coordinators, including Solonga and Hassaballah, disbursed salaries to the Janjaweed Footnote ⁸²¹ through Arab leaders.Footnote ⁸²² Salaries were frequently transferred from the Ministry of Defence and the Ministry of Interior to the Janjaweed.Footnote ⁸²³ Grain and money were also provided to the Janjaweed through regional zakat offices.Footnote ⁸²⁴

346. GoS officials also provided supplies to the Janjaweed such as uniforms and equipment, ID cards, weapons, ammunitions, and food for their horses. This took place on government premises, including the muhafiz, the zakat office, the CRF and PDF bases.Footnote ⁸²⁵

347. The Janjaweed received other benefits from the Government,Footnote ⁸²⁶ such as medical treatment,Footnote ⁸²⁷ compensation for death and injury, and confiscated lands,Footnote ⁸²⁸ and had access to GoS Forces’ bases for their armed operations, including the police station in Bindisi, and the PDF and SAF bases in Garsila.Footnote ⁸²⁹

348. It was widely known that the Janjaweed, and other paramilitary forces like the PDF, were more likely to commit crimes (like killing and raping women, looting and burning villages) than regular forces, whose actions were governed by law.Footnote ⁸³⁰

E. Public speeches by GoS officials and Janjaweed leaders

349. Between at least August 2003Footnote ⁸³¹ and March 2004,Footnote ⁸³² senior GoS officials travelled throughout West Darfur holding preparatory meetings and giving speeches to promote and encourage attacks by the Janjaweed and GoS Forces on towns and villages.

350. Minister Harun, in particular, frequently visited the Janjaweed and GoS Forces in the Wadi Salih region, including in the Garsila, Al Geneina, and Mukjar localities.Footnote ⁸³³ He usually travelled to these localities by helicopter.Footnote ⁸³⁴ He organised meetings to discuss the mobilisation of the Janjaweed.Footnote ⁸³⁵ As part of these efforts, he met with members of the GoS ForcesFootnote ⁸³⁶ and the Accused.Footnote ⁸³⁷

351. P-0020 was present during a PDF graduation ceremony in Kass held on 23 July 2003, where Minister Harun told the audience that there was a need ‘to teach the rebels a lesson’, that the conscripts had to do the ‘remaining cleaning job’ and that he had provided ‘enough soap’, which the witness understood as referring to arms and funding.Footnote ⁸³⁸ P-0020’s interpretation of the speech was that Minister Harun had given ‘full authorisation for destruction’, and P-0020 added that ‘[a]fter this meeting the whole area was attacked’.Footnote ⁸³⁹

352. In early August 2003, P-0916 saw and heard Minister Harun give a speech in which he stated ‘wipe out and sweep away the Fur do not keep anyone alive’.Footnote ⁸⁴⁰ The witness added that following the speech, Minister Harun left by helicopter, and ‘the attacks started’ and ‘Kushayb and his men started looting’.Footnote ⁸⁴¹

353. P-0932 saw Minister Harun in August 2003 giving a speech near the intermediary school located north of Mukjar which was attended by ‘many’ Janjaweed and senior government officials, such as Abdullah Al-Tayyib Muhammad Torshein (‘Torshein’), the mu’tamid or commissioner of Mukjar, and Minister Hussein.Footnote ⁸⁴² He heard Minister Harun telling them: ‘at this instant, you deliver this land to us with not a single Fur on it’ and claiming that ifan Arab kills a Fur ‘then he will have killed a [Kafir] [non believer]’ and ifhe takes their money then it is ‘a war gain for the Arabs’.Footnote ⁸⁴³

354. As described in more detail below, on or around 9 August 2003, the Accused addressed a crowd of Janjaweed and their leaders in Mukjar and said, ‘on behalf of the Janjaweed’, that ‘the Janjaweed were there to defend the property of the government and that they were alongside the armed forces’.Footnote ⁸⁴⁴ Minister Harun told the crowd to ‘wipe out and sweep away the Fur do not keep anyone alive’.Footnote ⁸⁴⁵ In his speech, Minister Harun referred to the Fur as ghanima and said that the Fur and their money were war booty or a ‘prize’ for the Janjaweed.Footnote ⁸⁴⁶ He added that the people of Mukjar must return the ‘property of the State’ that has been looted by their ‘children’ and that, if they did not return the property, ‘you will be looted, you will be killed, you will be raped’.Footnote ⁸⁴⁷ Ali Karti also gave a speech on that occasion, and said that the Janjaweed were ‘part of the PDF’, and that the GoS would train them, and give them weapons, wages and other assistance.Footnote ⁸⁴⁸

355. P-0757 recalled Minister Harun’s speech in front of Mukjar police station in mid-August 2003, in which he reiterated before several soldiers that ‘all the assets and belongings of that Fur people can be considered our prize’.Footnote ⁸⁴⁹ The witness interpreted Minister Harun’s speech as an indication to remove the Fur from Mukjar.Footnote ⁸⁵⁰

356. P-0020 provided evidence that President Al-Bashir gave a speech during a meeting at his residence in Khartoum at the end of 2003, attended by several senior GoS officials, such as Minister Hussein,Footnote ⁸⁵¹ 22 members of the Sudan National Assembly, and the head of the Western Command.Footnote ⁸⁵² P-0020 gave evidence that during this meeting, President Al-Bashir stated that as the ‘supreme commander of the armed forces’, he had issued his orders that ‘no stone, no trees, no plant, no human beings [would] be left safe and that he [did not] want any prisoner or casualties or wounded in the Darfur war’.Footnote ⁸⁵³

357. During a meeting of local representatives at the house of the shartay in Mukjar in November 2003, P-0012 heard Torshein inform the attendees that ‘if the rebels did not return from the mountains, the Janjaweed had the power to destroy the area’ and that ‘the children of the Fur had become rebels’.Footnote ⁸⁵⁴

358. On 1 February 2004, during a graduation ceremony of Fur police officers in Mukjar, Minister Harun stated that he wanted them to completely wipe out the whole area, that they could take all the belongings of the Fur and consider them as ‘a war prize’, and that he wanted them to demolish the whole area from Artala to Andi Koti.Footnote ⁸⁵⁵ He also said that not even a single tree should be standing there.Footnote ⁸⁵⁶ P-0913, who attended the speech, added ‘[w]hich indeed happened, they did take all belongings of the Fur’.Footnote ⁸⁵⁷ On the same occasion, Torshein stated that ‘all rebels around Sindu ha[d] to surrender otherwise air force and ground force will be used to defeat them’.Footnote ⁸⁵⁸

359. P-0903 gave evidence that, in February or March 2004,Footnote ⁸⁵⁹ he was at the Mukjar market and saw Minister Harun arrive in a military helicopter and give a speech to the public, stating ‘the Fur people and their money are your prize’,Footnote ⁸⁶⁰ ‘the Fur and the money of the Fur are booties and you may target anything you want […] on their land, including trees’.Footnote ⁸⁶¹

360. Between February and March 2004, the Accused addressed the Janjaweed in Arawala, used the term amsah aksah,Footnote ⁸⁶² and said that everybody should be killed.Footnote ⁸⁶³ On the same occasion, five male prisoners with their hands tied behind their backs were brought before the Accused, who was told ‘we caught them alive’, to which he answered ‘[w]hy did you bring them to me? So there’s no discipline here? […] I didn’t say bring me anyone. I said execute the operation straightaway’.Footnote ⁸⁶⁴ The men were then executed.Footnote ⁸⁶⁵

361. The Accused also used the term amsah aksah when he gave orders and instructions to the Janjaweed before or during attacks. In Arawala, the Accused told his men amsah aksah and ‘[a]nything you see, you have to kill or wipe. So no man has to stay alive’.Footnote ⁸⁶⁶ Similarly, in Dembow Kabdy, the Accused said ‘[w]e have one major fight, the Sindu fight. You don’t – don’t be cowards, move forward. Don’t be afraid. Amsah aksah, and never bring someone alive.’Footnote ⁸⁶⁷ In Um Jameina, the Accused told his men ‘[w]henever you encounter a man, you have to kill them’.Footnote ⁸⁶⁸ During the Kodoom and Bindisi Operation, the Accused shouted chants such as ‘Allahu Akbar’, ‘amsah aksah’ and ‘[w]ipe out, sweep away, amsah aksah’ when instructing the Janjaweed to commence their attacks during the operation.Footnote ⁸⁶⁹ The Accused was heard saying that the ‘motto’ used during the Kodoom and Bindisi attack was ‘[c]ut the straw, eat it raw. Don’t leave anyone behind, and bring no one alive’.Footnote ⁸⁷⁰

362. Those gatherings and speeches sometimes coincided with the distribution of equipment, weapons or money by the GoS.Footnote ⁸⁷¹ Sometimes they immediately preceded attacks and lootings.Footnote ⁸⁷²

Use of the term ‘amsah aksah’

363. The term ‘amsah aksah’ is a well-known expression used in the context of armed conflicts in Sudan.Footnote ⁸⁷³

364. This expression was used by the GoS senior officials and field commanders,Footnote ⁸⁷⁴ as well as by the Accused,Footnote ⁸⁷⁵ during their speeches when addressing their fighters and when giving orders to attack, to ‘encourage’ them ‘into action’, and ‘boost [their] morale’.Footnote ⁸⁷⁶ This expression was used by the fighters, the GoS Forces and the Janjaweed alike, when they ‘carried out the work’ on the battleground.Footnote ⁸⁷⁷

365. According to the evidence, this expression meant ‘killing’,Footnote ⁸⁷⁸ ‘with no limit’,Footnote ⁸⁷⁹ or ‘relentlessly’,Footnote ⁸⁸⁰ or, in a more metaphorical way, ‘wipe out’, ‘clean’, ‘sweep away’Footnote ⁸⁸¹ and ‘[d]o not leave behind any trace’.Footnote ⁸⁸² ‘Not leaving any trace behind’ also included ‘burning’.Footnote ⁸⁸³ Witnesses further explained that the expression amsah aksah meant the following:Footnote ⁸⁸⁴ ‘that killing and horrific aggressions can be carried out to justify that’;Footnote ⁸⁸⁵ ‘amsah aksah, never bring someone alive’;Footnote ⁸⁸⁶ ‘amsah aksah, and not to leave anybody alive. So amsah aksah and nobody stays alive. So I would wipe everything and kill everybody. […] no man has to stay alive.’;Footnote ⁸⁸⁷ ‘aksah amsah wipe it. Bring him alive, eat him alive, fresh.’;Footnote ⁸⁸⁸ ‘the fighters should be, of course, free to do what they do. There are no limits, so they can do what they like. So kill and kill without taking into account any other thing’;Footnote ⁸⁸⁹ that ‘there are no restrictions or limits that govern military and combat operations, and there is no regard for any other consideration’;Footnote ⁸⁹⁰ and that ‘these words mean genocide and killing prisoners. And [that] this contradicts with the war -- the war laws based on the Geneva Convention’.Footnote ⁸⁹¹ P-0547 explained that when civilians heard this expression, ‘they [were] scared to death’.Footnote ⁸⁹²

366. The Chamber is therefore satisfied that the expression ‘amsah aksah’, in its common use and by a common and tacit understanding shared by all on the battlefield (Janjaweed and GoS Forces members alike), meant that fighters shall kill and destroy without any limits.Footnote ⁸⁹³

F. Conclusion

367. The Chamber is therefore satisfied that, following the attack on the Al Fasher airport on 25 April 2003 by the SLM/A, the GoS decided to implement an ‘all-out military campaign’ to defeat the rebels, and that the Janjaweed, which were made up of members of Arab tribes, would be recruited to help the GoS forces in its counter-insurgency efforts. This materialised when a formal Emergency Plan was issued in December 2003. To this end, exploiting existing tribal tensions, and with knowledge of the Janjaweed’s past history of committing crimes, the GoS recruited, armed, trained and funded the Janjaweed. The GoS, in particular senior GoS officials such as Minister Hussein, Minister Harun, and Ali Karti, expressed their public support for the Janjaweed. These officials, together with the Accused, publicly encouraged the witness’s evidence, while considering other aspects unreliable, the Chamber disregards D0016’s evidence on this discrete aspect. The Chamber therefore rejects the Defence’s arguments in this respect (Janjaweed and GoS fighters to carry out attacks on towns and villages.

III. THE CHARGED OPERATIONS

A. Operation in Kodoom, Bindisi and the surrounding areas between 15 and 16 August 2003

368. In this section, the Chamber relies primarily on the evidence of P-0874, P-0878, P-0921 and P-1021 all of whom closely followed the Kodoom and Bindisi Operation from their respective proximate positions.Footnote ⁸⁹⁴ The Chamber also relies on the evidence of P-0029 and P-0986, who were present in Kodoom at the relevant timeFootnote ⁸⁹⁵ and on the evidence of P-0011, P-0012, P-0015, P-1073 and P-1074, who were present in Bindisi at the relevant time.Footnote ⁸⁹⁶

a) Relevant background

369. In 2003, Kodoom and Bindisi were administrative regions located in the Wadi Salih Locality,Footnote ⁸⁹⁷ West Darfur,Footnote ⁸⁹⁸ Sudan.Footnote ⁸⁹⁹ Kodoom was situated west of Mukjar and Bindisi was further westwards from Kodoom.Footnote ⁹⁰⁰ As regards other relevant villages: Nyerli and Tiro were situated between Mukjar and Kodoom; Merly and Drangal were situated further westwards, between Kodoom and Bindisi; and Seder was situated south of Kodoom.Footnote ⁹⁰¹

i. Kodoom

370. The neighbourhoods of Kodoom were Kodoom Derliwa, Kodoom Ronga Tass (also called Kodoom Wosta), Kodoom Tineh, and Kodoom Jureh.Footnote ⁹⁰² Wadis Arowa and Jurijarang, and the main north-south road that passed through Kodoom, demarcated the various neighbourhoods of Kodoom.Footnote ⁹⁰³ The school, the hospital, the police station and the mosque were in the neighbourhood of Kodoom Ronga Tass.Footnote ⁹⁰⁴ A cemetery and an open field separated the neighbourhoods of Kodoom Tineh and Kodoom Jureh.Footnote ⁹⁰⁵

371. There was a police presence in Kodoom.Footnote ⁹⁰⁶ Members of the police patrolled Kodoom on foot.Footnote ⁹⁰⁷ The police in Kodoom did not have any equipment or means of transportation.Footnote ⁹⁰⁸ The police of Kodoom and Bindisi withdrew to Mukjar after the rebels attacked Bindisi.Footnote ⁹⁰⁹

372. In August 2003, approximately 1,600 families were residing in Kodoom.Footnote ⁹¹⁰ Most of the people residing in Kodoom belonged to non-Arab tribes,Footnote ⁹¹¹ who were predominantly Fur,Footnote ⁹¹² but there was also a small number of people from the Tama and Misseriya Jabal tribes.Footnote ⁹¹³ In August 2003, there were no rebels or armed group present in Kodoom to defend it,Footnote ⁹¹⁴ and its inhabitants were not armed with weapons such as Kalashnikovs and machine guns (although some may have possessed hunting rifles, as this was the only ‘weapon’ the GoS allowed people to carry).Footnote ⁹¹⁵

ii. Bindisi

373. Bindisi was the headquarters of the local administration.Footnote ⁹¹⁶ Bindisi was divided into two parts by the wadi Salih: South (or Old) Bindisi and North (or New) Bindisi.Footnote ⁹¹⁷ Old or South Bindisi was located between wadi Salih in the north and wadi Baro in the south.Footnote ⁹¹⁸ New or North Bindisi included the area called Daguina.Footnote ⁹¹⁹ Eastwards of Bindisi, wadi Arowa flowed from the north to the south into the wadi Salih,Footnote ⁹²⁰ and further eastwards wadi Jurijarang also flowed from the north to the south into the wadi Salih.Footnote ⁹²¹

374. The town of Bindisi had a court, a town hall, police stations, a veterinary office, a zakat or Islamic tax office, a government pharmacy, an agricultural office, a health centre, two schools and a big market.Footnote ⁹²² There was no military base in Bindisi, but there was a PDF office.Footnote ⁹²³

375. Zakat is one of the pillars of Islam and the zakat office was a religious humanitarian organisation which, according to the principles of Islam, collected money, grain or cattle from people based on their earnings and wealth, and allocated the same to the poor and destitute.Footnote ⁹²⁴ In August 2003, Muhammad Abd-Al-Jabbar (‘Abd-Al-Jabbar’), a Fur man, was a director of the zakat office for Mukjar and Bindisi.Footnote ⁹²⁵

376. In August 2003, approximately 1,800 families were residing in Bindisi,Footnote ⁹²⁶ and its population was predominantly Fur.Footnote ⁹²⁷ There were no rebels or armed group to defend Bindisi (although some ‘herders’ possessed ‘basic weapons’ to protect their cattle).Footnote ⁹²⁸

377. Close to Bindisi town, within the Bindisi locality, were inter alia the villages of Jartaga, Rasowli, Juguma Al-Gharbiya, Juguma Al-Sharqiyya, Seder, Merly, Drangal and Gausir.Footnote ⁹²⁹

b) Events leading up to the Kodoom and Bindisi Operation

i. Rebel attacks on Bindisi and Mukjar

378. On or around 1 August 2003,Footnote ⁹³⁰ the rebels attacked Bindisi.Footnote ⁹³¹ The rebels attacked the police stations and the prison, and stole some vehicles belonging to the GoS.Footnote ⁹³² The rebels also attacked the locality building, the finance office of the locality, the zakat office, and accommodation belonging to the municipality.Footnote ⁹³³ The rebels ‘kidnapped’ around three individuals who were later killed or released.Footnote ⁹³⁴

379. On or around 8 August 2003,Footnote ⁹³⁵ the rebels attacked Mukjar.Footnote ⁹³⁶ The attack targeted the CRF base in the primary school.Footnote ⁹³⁷ The rebels also attacked a police station in the north of Mukjar and took a vehicle and some weapons.Footnote ⁹³⁸ A number of CRF members, policemen and rebels were killed in the attack.Footnote ⁹³⁹

ii. Arrival of the Accused and the Janjaweed in Mukjar

380. The Accused and a large contingent of Janjaweed arrived in the northern outskirts of Mukjar to support the CRF against the rebel attack.Footnote ⁹⁴⁰ Some members of the Janjaweed were on horseback or camelback while others were on foot.Footnote ⁹⁴¹ The Janjaweed were under the command of the Accused.Footnote ⁹⁴² The Accused was accompanied by Bonjouse and Samih.Footnote ⁹⁴³ Around this time, some members of the Janjaweed arrested people in Mukjar, destroyed shops and looted cattle from its market.Footnote ⁹⁴⁴

iii. GoS delegation’s visit to Mukjar

381. On or around 9 August 2003, a GoS delegation arrived in Mukjar.Footnote ⁹⁴⁵ Their helicopter landed east of the primary school in Mukjar.Footnote ⁹⁴⁶ The delegation was comprised of: Minister Harun;Footnote ⁹⁴⁷ Ali Karti;Footnote ⁹⁴⁸ Maj Gen Suleiman Abdullah;Footnote ⁹⁴⁹ Gen Ismat al Zain;Footnote ⁹⁵⁰ the director of security of South Darfur state;Footnote ⁹⁵¹ and the director of the police of West Darfur state.Footnote ⁹⁵² P-0878, who was present in the vicinity,Footnote ⁹⁵³ stated that the delegation first attended a ‘secret meeting’ at the Mukjar locality building.Footnote ⁹⁵⁴ Minister Harun presided over this meeting,Footnote ⁹⁵⁵ which was also attended by Torshein, Lt Col Himeidan, the Accused and some of the Accused’s deputies.Footnote ⁹⁵⁶

382. After this ‘secret meeting’, the delegation and the other attendees, including Torshein, Samih, Solonga and the Accused, attended a public gathering right outside the Mukjar locality building and addressed the crowd.Footnote ⁹⁵⁷ Most of the persons attending were members of the Janjaweed or their leaders – including Samih and Bonjouse.Footnote ⁹⁵⁸ Other attendees included P-0012, P-0878, Sheikh Muhammad Atim, and Suleiman Musa.Footnote ⁹⁵⁹

383. P-0878 heard the Accused address the crowd: the Accused spoke, ‘on behalf of the Janjaweed’, said that ‘the Janjaweed were there to defend the property of the government and that they were alongside the armed forces’.Footnote ⁹⁶⁰ P-0012 stated that throughout this meeting the Accused stood ‘very close’ to Minister Harun.Footnote ⁹⁶¹

384. Minister Harun addressed the crowd on behalf of the delegation.Footnote ⁹⁶² P-0878’s notes were based on recollection of Minister Harun’s address to members of the Janjaweed:

385. P-0012 heard Minister Harun tell the crowd that he was going to contribute 10 million Sudanese pounds to the Janjaweed and reassured them that the GoS would continue to help them.Footnote ⁹⁶⁴

386. Minister Harun was also heard telling the crowd to ‘wipe out and sweep away the Fur do not keep anyone alive’.Footnote ⁹⁶⁵ In his speech, Minister Harun referred to the Fur as ghanima and was heard saying that the Fur and their money were war booty or ‘prize’ for the Janjaweed.Footnote ⁹⁶⁶ P-0903, who is from the Fur tribe, interpreted Minister Harun’s statements as ‘dangerous’, felt ‘afraid’ and ‘immediately’ left the place.Footnote ⁹⁶⁷

387. During this gathering, Sheikh Suleiman Musa, a tailor in Mukjar urged Minister Harun from among the crowd to stop the Janjaweed from looting the houses and properties of the inhabitants of Mukjar.Footnote ⁹⁶⁸ P-0878 recalled Minister Harun replying that the people of Mukjar must return the ‘property of the State’ that has been looted by their ‘children’ and that, if they did not return the property then, ‘you will be looted, you will be killed, you will be raped’.Footnote ⁹⁶⁹ According to P-0878, Minister Harun was referring to the rebels as the ‘children’ of the people of Mukjar.Footnote ⁹⁷⁰ As mentioned earlier, the Accused was present at this meeting.Footnote ⁹⁷¹

388. Ali Karti addressed the Janjaweed and their leaders gathered in the crowd after Minister Harun.Footnote ⁹⁷² P-0878 recollected Ali Karti telling the Janjaweed that they were ‘part of the PDF’, and that the GoS would train them, give them weapons, wages and other assistance.Footnote ⁹⁷³ In response to Ali Karti’s speech, the members of the Janjaweed chanted, ‘Allahu Akbar. Down with the traitors’.Footnote ⁹⁷⁴

389. P-0012 stated that Torshein was introduced as the new commissioner of Mukjar at this public meeting.Footnote ⁹⁷⁵ P-0012 recollected Torshein’s address to the gathered crowd.Footnote ⁹⁷⁶ Torshein told them that President Al-Bashir had appointed him as the commissioner and that he and the GoS ‘would do everything to clear the area of rebels’.Footnote ⁹⁷⁷ He further said that they, i.e. the GoS, had the Janjaweed to defeat the rebels.Footnote ⁹⁷⁸

390. Finally, Samih recited a poem, in which he praised the GoS.Footnote ⁹⁷⁹ During this visit, the delegation gave the Janjaweed uniforms and 10,000 Sudanese Dinars.Footnote ⁹⁸⁰ Thereafter, the GoS delegation departed from Mukjar in the same helicopter.Footnote ⁹⁸¹

391. Soon after the gathering, members of the Janjaweed began arresting people, looting the market and the homes of the inhabitants of Mukjar.Footnote ⁹⁸² This caused many to flee their homes and seek refuge at the locality building, the mosque and the school.Footnote ⁹⁸³ P-0012 recollected that, when some of the inhabitants sought the assistance of the CRF, Lt Col Himeidan told them that the Janjaweed could do whatever they want as they were acting on the orders of Minister Harun.Footnote ⁹⁸⁴

iv. Operation in the north and east of Mukjar

392. Soon after the departure of the GoS delegation on or around 9 August 2003,Footnote ⁹⁸⁵ the Accused and the Janjaweed under his command initiated an operation to attack villages in the east and north of Mukjar.Footnote ⁹⁸⁶ All GoS forces, including the SAF, PDF and the CRF participated in this operation.Footnote ⁹⁸⁷ Nine villages were ‘burned down’ in the operation.Footnote ⁹⁸⁸ The operation lasted until 14 August 2003,Footnote ⁹⁸⁹ after which the Accused and the Janjaweed returned to Mukjar,Footnote ⁹⁹⁰ camping in the north-western outskirts of the town.Footnote ⁹⁹¹

v. Events in Mukjar on the morning of 15 August 2003

393. A convoy of three vehicles was dispatched by Lt Col Himeidan from the Mukjar CRF base early in the morning of 15 August 2003.Footnote ⁹⁹² P-0878 was informed about this convoy later on that same day.Footnote ⁹⁹³ P-0878 was also told that the purpose of this convoy was to inform the villages and towns about the movement of the Accused’s convoy and the Janjaweed towards Bindisi, and to reassure the inhabitants of the towns and villages that they would not be harmed.Footnote ⁹⁹⁴

394. Some time later on 15 August 2003,Footnote ⁹⁹⁵ Abd-Al-Jabbar was given a letter.Footnote ⁹⁹⁶ The letter, dated 13 August 2003,Footnote ⁹⁹⁷ was addressed to the director, or the deputy director of the zakat office, i.e. Abd-Al-Jabbar, and signed by Ja’afar Abd-Al-Hakam Ishaq Adam (‘Abd-Al-Hakam’), who was the Commissioner of Garsila in the Wadi Salih Locality.Footnote ⁹⁹⁸ It instructed Abd-Al-Jabbar to give the Accused and the Janjaweed 90 sacks of corn as food for the horses.Footnote ⁹⁹⁹ According to P-0878, the letter and the instruction to provide resources from the zakat office to the Janjaweed to feed their horses was unusual and said it was in fact ‘laughable’ to provide food meant for human consumption to horses.Footnote ¹⁰⁰⁰

395. Thereafter, the Accused took Abd-Al-Jabbar with him and set out from Mukjar towards Bindisi, with Hassaballah and Solonga, all in the same vehicle.Footnote ¹⁰⁰¹ The umdahs, who led the Janjaweed, travelled with this group, and according to P-0878 their role was to ‘observe their own people, their subordinates who were participants in the mission’ to ensure their and their tribe’s active participation, and ‘to observe the displacement of those people with their own eyes so that they are reassured that the plan is being executed, and also in order to get the money and belongings and animals of those citizens so that they can share it together at the end’.Footnote ¹⁰⁰² During the journey to Bindisi the umdahs, except Umdah Dawd Dahab, engaged in discussions with one another and with the Accused at some locations.Footnote ¹⁰⁰³

c) Forces involved

396. The operation in Kodoom, Bindisi and the surrounding areas took place over the course of two days. Kodoom was attacked on 15 August 2003 and Bindisi was attacked on 15 and 16 August 2003.Footnote ¹⁰⁰⁴ The Janjaweed contingent that took part in the operationFootnote ¹⁰⁰⁵ was comprised of thousands of members,Footnote ¹⁰⁰⁶ on horses, camels, donkeys, on foot,Footnote ¹⁰⁰⁷ and in vehicles.Footnote ¹⁰⁰⁸ The Accused commanded this contingent.Footnote ¹⁰⁰⁹ Samih was the ‘second person in command’.Footnote ¹⁰¹⁰ There were at least three Land Cruiser vehicles in the convoy of this contingent.Footnote ¹⁰¹¹ The Janjaweed were armed with various types of weapons, including assault rifles.Footnote ¹⁰¹² P-0878 and P-0874 noticed that the Accused was also armed.Footnote ¹⁰¹³ Some Janjaweed wore khaki uniforms, some wore jallabiyas and other ‘civilian clothing’.Footnote ¹⁰¹⁴ Some Janjaweed wore turbans or kadamols.Footnote ¹⁰¹⁵ There were 15 to 20 agids or colonels in the Janjaweed contingent, with each leading a group of about 150 to 250 members of the Janjaweed.Footnote ¹⁰¹⁶ The names of some of the agids were Umdah Abakr, the umdah of the Awatif;Footnote ¹⁰¹⁷ Adam Meris, the brother of Umdah Abakr;Footnote ¹⁰¹⁸ Issa Mardom;Footnote ¹⁰¹⁹ and Hassan Daloum.Footnote ¹⁰²⁰

d) Attacks on Nyerli and Tiro, on the way to Kodoom

397. P-0878 heard the Accused shout, ‘Allahu Akbar, Allahu Akbar. Wipe out, sweep away. Amsah aksah’, as he ordered the Janjaweed to move towards Nyerli.Footnote ¹⁰²¹ Some time after leaving Mukjar, on or around 15 August 2003, the Janjaweed reached Nyerli,Footnote ¹⁰²² a predominantly Fur village.Footnote ¹⁰²³ In Nyerli, the Accused instructed the Janjaweed to start attacking with rallying calls, instructing them to ‘wipe out and sweep away’.Footnote ¹⁰²⁴ Throughout the operation, the Accused chanted ‘Allahu Akbar’, ‘Amsah aksah’ and ‘[w]ipe out, sweep away, amsah aksah’ to instruct the Janjaweed to start attacking.Footnote ¹⁰²⁵ P-0878 heard the Accused say that, ‘I will kill whoever I want and leave whoever I want to live’,Footnote ¹⁰²⁶ and saw the Accused issuing instructions to Hassaballah throughout the operation.Footnote ¹⁰²⁷

398. The attack on Nyerli lasted two and a half to three hours,Footnote ¹⁰²⁸ during which the Janjaweed fired at and chased away the inhabitants, looted properties and burned down houses.Footnote ¹⁰²⁹ P-0878 later heard that three to four women were raped during this attack.Footnote ¹⁰³⁰ P-1021 stated that, upon seeing Nyerli being burned down, he asked the Accused why he did this and remembered the Accused answering that it was none of P-1021’s business.Footnote ¹⁰³¹

399. From Nyerli the Janjaweed moved south-west towards Tiro.Footnote ¹⁰³² Before entering Tiro, the Accused instructed Abd-Al-Jabbar to point out a route that the Janjaweed could take into Tiro where the vehicles would not get stuck in the mud.Footnote ¹⁰³³ As a director of the zakat office of the region, it was understood that Abd-Al-Jabbar knew the area well, and thus could do as instructed.Footnote ¹⁰³⁴ Soon after that, the Janjaweed arrived in Tiro.Footnote ¹⁰³⁵ The Janjaweed fired at and chased its inhabitants, who were predominantly Fur,Footnote ¹⁰³⁶ and burned down their houses.Footnote ¹⁰³⁷ People were killed during the attack.Footnote ¹⁰³⁸

400. During this attack, Shartay Omar Ahmad Zarruq and his bodyguard, Suleiman Harris,Footnote ¹⁰³⁹ were stopped by members of the Janjaweed.Footnote ¹⁰⁴⁰ They were both armed but they did not resist the Janjaweed. They handed over their weapons to the Janjaweed and they were not harmed.Footnote ¹⁰⁴¹ During the attack on Tiro, P-0878 also saw the burning hut of Al Faqih Adam’Izz-al-Din, who was a trader, an inhabitant of Tiro and a relative of Suleiman Harris. Some 45 days later Shartay Omar Ahmad Zarruq and Suleiman Harris told P-0878 that Al Faqih Adam’Izz-al-Din had tried to defend his shop with a weapon and members of the Janjaweed had killed him.Footnote ¹⁰⁴² P-0878 did not see anyone else in possession of a weapon or use a weapon.Footnote ¹⁰⁴³

401. Soon after the event in Tiro, the Accused was giving instructions to Hassaballah, when he was interrupted by Umdah Dawd Dahab.Footnote ¹⁰⁴⁴ P-0878 recalled Umdah Dawd Dahab telling the Accused:

402. P-0878 recalled the Accused’s response:

403. After this exchange and following the Accused’s instructions, the Janjaweed moved towards Kodoom.Footnote ¹⁰⁴⁷

e) Attack on Kodoom

404. Sometime in the morning of 15 August 2003, a convoy of three CRF Land Cruisers from Mukjar arrived in Kodoom.Footnote ¹⁰⁴⁸ Marko, a CRF officer of the rank of musa’id (Master Sergeant) who was travelling in the convoy,Footnote ¹⁰⁴⁹ told the people of Kodoom that a large Janjaweed contingent was going to the zakat office in Bindisi to obtain food for the horses and that they would pass through Kodoom.Footnote ¹⁰⁵⁰ Marko’s message was meant to reassure the inhabitants of Kodoom so that they would stay home and not flee the forthcoming attack.Footnote ¹⁰⁵¹ From Kodoom, Marko’s CRF convoy went on to Seder and then Bindisi, where inhabitants were given the same message.Footnote ¹⁰⁵²

405. The Accused, Hassaballah and Solonga held an open-air meeting in the eastern outskirts of Kodoom Derliwa.Footnote ¹⁰⁵³ P-0878 then heard the Accused instruct Hassaballah to ‘move on’.Footnote ¹⁰⁵⁴ The Janjaweed’s attack in Kodoom began sometime in the early afternoon on 15 August 2003.Footnote ¹⁰⁵⁵ After entering Kodoom, members of the Janjaweed spread out all across the town, and moved through the neighbourhoods, from east to west.Footnote ¹⁰⁵⁶ P-0878, who was travelling in the convoy of the Janjaweed, stated that Kodoom was attacked in the same way as Nyerli.Footnote ¹⁰⁵⁷

406. P-0874 followed the Janjaweed from Mukjar to Bindisi,Footnote ¹⁰⁵⁸ and stated that ‘some citizens and some armed individuals’ with rifles resisted the Janjaweed in Kodoom.Footnote ¹⁰⁵⁹ P-1021, who travelled in the convoy of the Janjaweed during the operation, stated that he could ‘hear the Janjaweed firing, but no one was firing back from within the town or the locality’.Footnote ¹⁰⁶⁰ P-1021 also stated that, at some point during the attack on Kodoom, two injured members of the Janjaweed were brought to their vehicle, but he could not tell how they got injured.Footnote ¹⁰⁶¹ P-0932, who was residing in Kodoom at that time, stated that the Janjaweed faced ‘no resistance’ in Kodoom.Footnote ¹⁰⁶²

407. As they moved through the neighbourhoods of Kodoom, the Janjaweed fired at and chased people, killing many. They also looted the houses and livestock, set fire to the houses, beat P-0986 and used derogatory expressions against the victims.Footnote ¹⁰⁶³ Witnesses also gave evidence that they were told that members of the Janjaweed raped women during the attack on Kodoom.Footnote ¹⁰⁶⁴

i. Shooting and killings

408. Members of the Janjaweed shot and killed many people.Footnote ¹⁰⁶⁵ Some people were burned to death inside their homes.Footnote ¹⁰⁶⁶ P-0029 recounted that ‘they [i.e. the Janjaweed] started firing ammunition in the town and people started running away’ and that ‘[t]he members of the Janjaweed were firing at the citizens’.Footnote ¹⁰⁶⁷ P-0878 saw the Janjaweed ‘chasing the men and women of the village’.Footnote ¹⁰⁶⁸ P-0986 explained that ‘whenever [the Janjaweed] found anyone, they would shoot’.Footnote ¹⁰⁶⁹ Not all victims have been identified, but those killed include: Abdullah Hassan;Footnote ¹⁰⁷⁰ Bakhit Ibrahim;Footnote ¹⁰⁷¹ Dafalla Abdelaziz Hassan;Footnote ¹⁰⁷² Faqih Abd-Al-Rahman Abdullah (‘Abd-Al-Rahman Wassaba’);Footnote ¹⁰⁷³ Faqih Umar Ya’qub (the imam of Kodoom Tineh mosque);Footnote ¹⁰⁷⁴ Hasan Muhammad Hasan;Footnote ¹⁰⁷⁵ Isa Ahmad Bakhit,Footnote ¹⁰⁷⁶ Isa Ahmad Khalil;Footnote ¹⁰⁷⁷ Muslim Mohammed Ibrahim;Footnote ¹⁰⁷⁸ Saddiq Yahya Umar;Footnote ¹⁰⁷⁹ Sadiq Mahmad Ahmad;Footnote ¹⁰⁸⁰ and Ya’qub Muhammad Ahmad.Footnote ¹⁰⁸¹ P-0932 stated that approximately nine people were killed in the attack, but could not recall their names.Footnote ¹⁰⁸² Unidentified victims include two corpses seen by P-0874.Footnote ¹⁰⁸³ P-0921 gave evidence that he saw approximately 64 corpses in Kodoom, but did not specifically identify the corpses.Footnote ¹⁰⁸⁴ During the attack, some people had sought refuge in the mosque in Kodoom.Footnote ¹⁰⁸⁵ According to P-0932, these people were not attacked or harmed.Footnote ¹⁰⁸⁶

ii. Fleeing and displacement

409. Many inhabitants fled Kodoom with their families, children and livestock, and hid in the nearby forest, brooks and valleys.Footnote ¹⁰⁸⁷ P-0029 fled with his family and hid in the nearby forest.Footnote ¹⁰⁸⁸ P-0932 fled to Merly with his two children.Footnote ¹⁰⁸⁹ P-0986’s mother, father and three younger siblings fled to the nearby forest.Footnote ¹⁰⁹⁰ The attack forced many people, including P-0029, P-0932, P-0986 and P-0757, to leave Kodoom, and seek refuge in Mukjar and elsewhere.Footnote ¹⁰⁹¹ Many of them could not return to Kodoom after this attack because there was nothing left there.Footnote ¹⁰⁹² P-0874 recollected that ‘[a]ll that was left was the fire burning’, ‘we found nothing left in the village’, and that ‘those who survived did not stay there’, ‘[t]hey moved elsewhere’ and ‘were displaced’.Footnote ¹⁰⁹³

iii. Looting

410. During the attack, members of the Janjaweed looted property belonging to the inhabitants, such as beds, cattle and money.Footnote ¹⁰⁹⁴ P-0029 recounted that ‘[t]hey [i.e. the Janjaweed] collected the animals […] and the money’.Footnote ¹⁰⁹⁵ P-0874 saw the Janjaweed taking beds and ‘other things’, and a Janjaweed member, whom he recognised, taking a camel and a horse.Footnote ¹⁰⁹⁶ P-0878 recounted seeing members of the Janjaweed ‘looting the houses’.Footnote ¹⁰⁹⁷ P-0932 stated that the Janjaweed took ‘all of the money’, and ‘all of the livestock, cows, sheep, camels, donkeys and house contents’.Footnote ¹⁰⁹⁸ P-0986 saw the Janjaweed ‘searching through the houses and running after livestock, such as goats and sheep’.Footnote ¹⁰⁹⁹ P-0986 saw members of the Janjaweed competing to see who would be the first one to get the loot from houses and take the looted livestock and items with them.Footnote ¹¹⁰⁰ Members of the Janjaweed looted: P-0029’s two houses in Kodoom,Footnote ¹¹⁰¹ and two camels and a horse;Footnote ¹¹⁰² P-0932’s house;Footnote ¹¹⁰³ and four sheep, 12 goats and 16 cows belonging to P-0986’s family.Footnote ¹¹⁰⁴

iv. Burning of houses and property

411. During the attack, members of the Janjaweed burned down houses all across Kodoom.Footnote ¹¹⁰⁵ P-0029 recounted that ‘they [i.e. the Janjaweed] surrounded the houses, they burnt down the houses’.Footnote ¹¹⁰⁶ P-0878 recounted seeing members of the Janjaweed ‘burning the village’.Footnote ¹¹⁰⁷ Members of the Janjaweed burned down: the house of Sheikh Adam Dawi, a well-known religious leader in the region;Footnote ¹¹⁰⁸ P-0986’s house, with his furniture and grain.Footnote ¹¹⁰⁹ P-0029’s two houses in Kodoom;Footnote ¹¹¹⁰ and P-0932’s house.Footnote ¹¹¹¹

v. Beating and mistreatment

412. In the course of the attack, a member of the Janjaweed discovered P-0986 – who was pretending to be dead among two corpses – when a member of the Janjaweed stabbed him on his right foot with a bayonet.Footnote ¹¹¹² A Land Cruiser with a mounted gun and some people on board stopped close to P-0986’s location.Footnote ¹¹¹³ A man in civilian clothes – who P-0986 subsequently recognised as the Accused – got off the vehicle and approached P-0986 and the Janjaweed standing around him.Footnote ¹¹¹⁴

413. P-0986 recalled that the Accused asked the gathered Janjaweed, ‘[w]hy are you standing here?’Footnote ¹¹¹⁵ One ofthem answered, ‘[w]e came and found these people. We tried to see ifhe is alive or dead, and found that he is alive.’Footnote ¹¹¹⁶ The Accused then approached P-0986, put his foot on P-0986’s neck, called him an abid, and asked ‘[w]here are the people of this village?’Footnote ¹¹¹⁷ At that moment, P-0986 looked up and recognised the Accused.Footnote ¹¹¹⁸ As he looked up, one of the members of the Janjaweed standing alongside the Accused hit P-0986 in the face with the stock of a rifle.Footnote ¹¹¹⁹ P-0986 stated that he was in a ‘great deal of pain’ and was too terrified to answer, as the Janjaweed continued to kick him, hit him with rifle stocks and whip him with leather horse whips.Footnote ¹¹²⁰ Some members of the Janjaweed told P-0986, ‘[y]ou slaves, it is your year, this year you will all die!’Footnote ¹¹²¹

414. One of the members of the Janjaweed pointed his gun at P-0986, addressed the Accused in words meaning ‘Excellency Ali’ or ‘Commander Ali’, and asked the latter to permit him to kill P-0986 and go after the livestock that was running away.Footnote ¹¹²² P-0986 recalled that the Accused responded, ‘[n]o, do not shoot him. We have information that people from surrounding villages came to this village and we want him to tell us where these people are. First let him tell us where the other people are, all of them will die.’Footnote ¹¹²³ The Accused then instructed, ‘[d]o not kill him, just torture him until he tells where the other people are’.Footnote ¹¹²⁴ Thereafter, the Janjaweed – with the Accused’s foot still on P-0986’s neck – tied P-0986 hands and feet together behind his back, tied up his testicles with a plastic rope, and beat him.Footnote ¹¹²⁵ The Accused then instructed the Janjaweed, ‘[d]on’t kill him. Let’s catch the livestock running away and get the other people. After that, we can come back and ask where the people are. If after that you want to kill him, then kill him. If he tells where the people are, then you can kill him’.Footnote ¹¹²⁶ After which, the Accused then got back on the Land Cruiser and left.Footnote ¹¹²⁷ The Janjaweed did as they were instructed, but did not return to P-0986 to question him since at some point it began to rain.Footnote ¹¹²⁸ P-0986 was left tied up in the rain, and screaming in agony until he eventually lost consciousness.Footnote ¹¹²⁹ He lay there until the night, when he was found by some inhabitants who were returning to Kodoom to search for food for their children, and was carried to the forest.Footnote ¹¹³⁰

vi. Use of derogatory expressions

415. During the attack, P-0986 saw and heard members of the Janjaweed approach on horses, firing their guns and shouting ‘Nuba! Nuba!’Footnote ¹¹³¹ During their encounter, the Accused called P-0986 an abid.Footnote ¹¹³² Around this time, in the presence of the Accused, some members of the Janjaweed told P-0986, ‘[y]ou slaves, it is your year, this year you will all die!’Footnote ¹¹³³

vii. The Accused’s actions

416. The Accused was present in Kodoom during the attack.Footnote ¹¹³⁴ P-0878 stated that around Kodoom Ronga Tass, the Accused scolded some members of the Janjaweed for not taking the medicines he found scattered around a dead body.Footnote ¹¹³⁵ While in Kodoom, the Accused asked a CRF officer to give him the ammunition he was carrying. The CRF officer initially refused and contacted Lt Col Himeidan, who then instructed him to handover the ammunition to the Accused, which he did.Footnote ¹¹³⁶ As described earlier,Footnote ¹¹³⁷ during his encounter with P-0986, the Accused mistreated P-0986 and inter alia instructed the Janjaweed to the same effect.

f) Attacks on Merly, Seder and Drangal, on the way to Bindisi

417. After Kodoom,Footnote ¹¹³⁸ the Janjaweed attacked Merly, Seder and Drangal; starting with Merly in the south-west.Footnote ¹¹³⁹ Merly, Seder and Drangal were predominantly inhabited by the Fur.Footnote ¹¹⁴⁰ In Merly, members of the Janjaweed shot and killed people, looted property, and burned down houses.Footnote ¹¹⁴¹

418. Some Janjaweed split from the main contingent in Kodoom,Footnote ¹¹⁴² went south and attacked Seder.Footnote ¹¹⁴³ From Seder, that group moved east and rejoined the main contingent near Drangal.Footnote ¹¹⁴⁴ Around this time, members of the Janjaweed also attacked Drangal, killed some of its inhabitants and burned down houses.Footnote ¹¹⁴⁵

419. The Janjaweed then moved towards Bindisi.Footnote ¹¹⁴⁶

g) Attack on Bindisi

420. Sometime in the afternoon of 15 August 2003, Marko’s CRF convoy arrived in Bindisi.Footnote ¹¹⁴⁷ Like in Kodoom,Footnote ¹¹⁴⁸ the inhabitants of Bindisi were told that the Accused and the Janjaweed were coming to Bindisi to collect grain from the zakat office and the villagers were reassured that they would not be harmed.Footnote ¹¹⁴⁹ P-0012 and other inhabitants were also told that the Accused had obtained authorisation from Abd-Al-Hakam to obtain grain from the zakat office.Footnote ¹¹⁵⁰ Soon after, P-0012 and other inhabitants of Bindisi saw smoke rising from Tiro and then from Kodoom.Footnote ¹¹⁵¹ P-0012 stated that, at this point, he realised that Marko’s message was false.Footnote ¹¹⁵² Around this time, a man on horseback arrived in Bindisi, having escaped the attack in Kodoom, and told the inhabitants of Bindisi to flee.Footnote ¹¹⁵³

421. The Janjaweed attacked North and South Bindisi over the course of two days, 15 and 16 August 2003. The attack began in North Bindisi sometime in the late afternoon of15 August 2003,Footnote ¹¹⁵⁴ and continued into South Bindisi on 16 August 2004.Footnote ¹¹⁵⁵ P-0011 saw the Janjaweed separate themselves across North Bindisi when they arrived there.Footnote ¹¹⁵⁶ Sometime around sunset on 15 August 2003, it began to rain,Footnote ¹¹⁵⁷ which led to a pause in the attack.Footnote ¹¹⁵⁸ The Accused, Hassaballah, Abd-Al-Jabbar, Solonga and the majority of the Janjaweed spent the night of 15 August 2003 encamped in Daguina, which was around the north of Bindisi.Footnote ¹¹⁵⁹ The attack on South Bindisi began in the morning of 16 August 2004,Footnote ¹¹⁶⁰ P-0012 saw the Janjaweed divide into three groups as they dispersed across North Bindisi: ‘one [group] burned the village; one collected animals and broke into houses; and the third chased the people who were running away’.Footnote ¹¹⁶¹ After entering South Bindisi, members of the Janjaweed briefly exchanged fire with the police based at the police station there.Footnote ¹¹⁶² After which, they destroyed the police station.Footnote ¹¹⁶³

422. During the attack, the Janjaweed fired at and killed many inhabitants; chased them out of Bindisi; looted the market, livestock, and houses; burned down houses and property; beat people; made derogatory remarks; and raped women.

i. Shooting and killings

423. During the attack, the Janjaweed fired at the inhabitants of Bindisi, and at people trying to flee the attack, including women,Footnote ¹¹⁶⁴ and killed people.Footnote ¹¹⁶⁵ P-0129 stated that the Janjaweed ‘killed the inhabitants of the town indiscriminately’.Footnote ¹¹⁶⁶ The Janjaweed searched the fields around wadi Salih for people hiding there.Footnote ¹¹⁶⁷ P-0007’s brother,Footnote ¹¹⁶⁸ and P-0015’s father (shot in the head) were among the persons shot by the Janjaweed while they were trying to flee the attack.Footnote ¹¹⁶⁹ P-0015 stated, ‘[a]s we turned back to carry my father, he told us that we should leave him behind as he was already dead and we should save ourselves’.Footnote ¹¹⁷⁰ The Janjaweed also shot one of P-0015’s neighbours, who P-0015 saw lying ‘on the ground struggling’.Footnote ¹¹⁷¹ During the attack, P-0011 saw a member of the Janjaweed on horseback strike with a sword a woman who was carrying certain objects while she was trying to flee the attack and another woman who was raped while being questioned for carrying a suitcase.Footnote ¹¹⁷² P-0012 stated that injured people did not receive any treatment and died due to this lack of care.Footnote ¹¹⁷³

424. After capturing P-0011 and some other people when they were trying to flee the attack,Footnote ¹¹⁷⁴ the Janjaweed separated the men, numbering around 20, including Rashid Issa, Adam Bosch and Abd-Al-Nasir Ibrahim, tied their hands behind their backs, beat them with rifle stocks, and then opened fire, killing all of them.Footnote ¹¹⁷⁵ The following individuals were identified as some of the people killed during the attack: P-0015’s father;Footnote ¹¹⁷⁶ Abakar Abd-Al-Kabir;Footnote ¹¹⁷⁷ Abd-Al-Gadir Abdalla;Footnote ¹¹⁷⁸ Abd-Al-Nasir Ibrahim;Footnote ¹¹⁷⁹ Abdu Muhammad Abdulrahman (nickname ‘Truck’);Footnote ¹¹⁸⁰ Abubakar Harun;Footnote ¹¹⁸¹ Adam Abdalla;Footnote ¹¹⁸² Adam Abdallah Imam;Footnote ¹¹⁸³ Adam Bosch;Footnote ¹¹⁸⁴ Adam Suleiman;Footnote ¹¹⁸⁵ Ahmed (‘Gebna’);Footnote ¹¹⁸⁶ Baher Harun Atim (Imam of the mosque in South Bindisi);Footnote ¹¹⁸⁷ Daoud Ali Yusif;Footnote ¹¹⁸⁸ Darasalam Husayn;Footnote ¹¹⁸⁹ Hadg Baher;Footnote ¹¹⁹⁰ Halima Isa;Footnote ¹¹⁹¹ Harun Bahar Al-Din;Footnote ¹¹⁹² Hawa;Footnote ¹¹⁹³ Hussein (‘Jourgi’);Footnote ¹¹⁹⁴ Hussein Mohamed Abdulrahman;Footnote ¹¹⁹⁵ Ibrahim Gibna;Footnote ¹¹⁹⁶ Ismail Abdulkaram;Footnote ¹¹⁹⁷ Ismail Muhammad Abdulrahman;Footnote ¹¹⁹⁸ Kaltuma;Footnote ¹¹⁹⁹ Khaltouma Yahia Ahmed;Footnote ¹²⁰⁰ Khamis;Footnote ¹²⁰¹ Khamis Adam Idris (a tailor);Footnote ¹²⁰² Kony Harun;Footnote ¹²⁰³ Mohammed Khamiss;Footnote ¹²⁰⁴ Mudeser Ibrahim;Footnote ¹²⁰⁵ Omar;Footnote ¹²⁰⁶ Rashid Issa;Footnote ¹²⁰⁷ Zakariya Isaac;Footnote ¹²⁰⁸ and Zakariya Isaaq Adam.Footnote ¹²⁰⁹

425. When P-0007 returned to Bindisi around 15 days after the attack, he saw 17 rotting corpses.Footnote ¹²¹⁰ P-0012 saw eight to ten bodies, which he could not identify, of which: ‘[f]ive of the bodies were of old men, two were young men (about 17 or 19 years), one was a little girl and one was a woman’.Footnote ¹²¹¹ P-0913 stated that during the burial of the corpses, he was told about the killings of Abd-al-Qadir Abdallah Sulayman, Mohammed Khamiss, Mudathir Ibrahim Yusuf, and Omar Suleiman Muhammad.Footnote ¹²¹² P-1074’s father told her the names of 7 persons who were killed during the attack on Bindisi.Footnote ¹²¹³

ii. Fleeing and displacement

426. When the attack started, P-0015 (with her mother, brothers and sister, and 15 others), P-0913 and P-1074 (with her mother, brother and sister) fled to South Bindisi and the nearby forests and fields.Footnote ¹²¹⁴ The Chamber considers that the forest south of Bindisi falls within the meaning of ‘surrounding areas’ as indicated in the Confirmation Decision.Footnote ¹²¹⁵ The attack and the resulting destruction forced many inhabitants, including P-0012, P-0015, P-0085, P-1073 and P-1074, to leave Bindisi, and seek refuge in Mukjar and elsewhere.Footnote ¹²¹⁶ P-0913 and his brother fled Bindisi and sought refuge in Jartaga.Footnote ¹²¹⁷ Many of the inhabitants did not return to Bindisi and were displaced across the region.Footnote ¹²¹⁸ P-0874 gave evidence that people ‘ran for their lives’.Footnote ¹²¹⁹ P-0878 gave evidence that people ‘ha[d] no other choice than to leave their territory and their heritage’.Footnote ¹²²⁰ P-0012’s family first fled to Mukjar and then to Chad.Footnote ¹²²¹ P-0085 fled to Um Dukhun and then to Chad, and his family is scattered all across Darfur and neighbouring Chad.Footnote ¹²²² P-0129’s second wife and her children sought refuge in Mukjar.Footnote ¹²²³

iii. Looting

427. During the attack on Bindisi, the Janjaweed looted houses, shops and property belonging to the inhabitants.Footnote ¹²²⁴ The households of P-0878, P-0012, P-0129 and P-0913 were looted.Footnote ¹²²⁵ The Janjaweed looted property and documents from P-0129’s house.Footnote ¹²²⁶ P-0878’s house was ‘pillaged’ and he was only able to recover ‘two beds’.Footnote ¹²²⁷ The Janjaweed took away camels, horses, cattle and livestock belonging to P-0878, P-0913, P-1073, P-1074, and the other inhabitants of Bindisi.Footnote ¹²²⁸ They also looted the Bindisi cattle market.Footnote ¹²²⁹ They broke into and looted supplies from the shops and warehouses in Bindisi market, including the shops belonging to P-0012 and P-0913.Footnote ¹²³⁰ They stole sugar, tea and other things from P-0012’s shop in the market.Footnote ¹²³¹ P-1073’s family had a ‘donkey cart’ which was stolen by the Janjaweed.Footnote ¹²³² They particularly targeted and looted the shops and stores belonging to people of non-Arab tribes.Footnote ¹²³³ Some shops in the market with special markings were not looted.Footnote ¹²³⁴ The Janjaweed looted the police station in North Bindisi.Footnote ¹²³⁵ P-0878 and P-1021 gave evidence that members of the Janjaweed broke into and looted the zakat office and stores.Footnote ¹²³⁶ Umdah Hamdan Umar, a Janjaweed agid, took away the generator from the Bindisi zakat office.Footnote ¹²³⁷ The Janjaweed kept everything they looted from the houses and shops for themselves.Footnote ¹²³⁸ After capturing P-0015 and some other people,Footnote ¹²³⁹ a member of the Janjaweed took their belongings including their jerrycans, sacks and shoes.Footnote ¹²⁴⁰ P-0878 saw the Janjaweed pile up the looted property around the fires in their camps on the night of 15 August 2003.Footnote ¹²⁴¹

iv. Burning of houses and properties

428. During the attack, the Janjaweed set fire to and burned down the houses of the inhabitants of Bindisi.Footnote ¹²⁴² P-0012, P-0085 and P-1073 saw the Janjaweed set fire to houses during the attack.Footnote ¹²⁴³ The households of P-0878, P-0012, P-0129, P-1073 and P-0913 were burned down.Footnote ¹²⁴⁴ The ‘big mosque’ with its collection of Islamic books was burned down and destroyed.Footnote ¹²⁴⁵ The Janjaweed destroyed the police station in South Bindisi and burned all the documents, and also burned down the house of the chief of police.Footnote ¹²⁴⁶

v. Beatings and mistreatment

429. Members of the Janjaweed beat people during the attack.Footnote ¹²⁴⁷ After capturing P-0011 and other people,Footnote ¹²⁴⁸ the Janjaweed restrained and beat them ‘willy-nilly’ with rifle stocks. There were about 20 men in a group that was beaten, including Rashid Issa, Adam Bosch and Abd-Al-Nasir Ibrahim.Footnote ¹²⁴⁹ A member of the Janjaweed hit P-0011 with a rifle stock, then another said to the rest ‘[d]on’t beat this person, we need this person to tell us where their folk are’.Footnote ¹²⁵⁰ A member of the Janjaweed held on to P-0011’s neck while questioning her about the tora bora.Footnote ¹²⁵¹ Members of the Janjaweed also dragged and beat an elderly woman who was raped by several of them,Footnote ¹²⁵² and whipped Halima Hassan.Footnote ¹²⁵³

430. After capturing P-1073 and her sister,Footnote ¹²⁵⁴ members of the Janjaweed whipped and beat P-1073 and her sister.Footnote ¹²⁵⁵ Later, they tied P-1073’s hands,Footnote ¹²⁵⁶ and continued to beat and whip P-1073.Footnote ¹²⁵⁷ They beat P-1073’s sister with such force that she injured her back,Footnote ¹²⁵⁸ resulting in a scar which P-1073’s sister still bears.Footnote ¹²⁵⁹ P-1073 also has a scar on her back where members of the Janjaweed whipped her.Footnote ¹²⁶⁰ After capturing P-0015 and other people,Footnote ¹²⁶¹ members of the Janjaweed hit P-0015 and the others with rifle stocks and whipped them, one at least 15 times.Footnote ¹²⁶² A member of the Janjaweed asked a woman to put down the infant she was carrying.Footnote ¹²⁶³ When she refused to do so, he snatched the infant from her and threw the infant in the air.Footnote ¹²⁶⁴ The infant fell to the ground and stopped breathing for some time.Footnote ¹²⁶⁵

vi. Rape of women

431. Members of the Janjaweed raped numerous women.Footnote ¹²⁶⁶ During the attack on Bindisi, the Janjaweed chased peopleFootnote ¹²⁶⁷ and took some of the captured women and girls aside.Footnote ¹²⁶⁸ P-0921 gave evidence that some 50 women from Bindisi came to his house after the attack on Bindisi. He said at least three of them had been raped either in Bindisi or on their way to Mukjar.Footnote ¹²⁶⁹ Some of the victims who have been identified and who recounted what happened to them include witnesses P-0011,Footnote ¹²⁷⁰ P-1073Footnote ¹²⁷¹ and P-1074.Footnote ¹²⁷² Ten victims, including P-1073’s two sisters, were identified by various witnesses.Footnote ¹²⁷³ Witnesses identified victims as young as 13 to 15 years old,Footnote ¹²⁷⁴ and another witness was identified as an elderly victim.Footnote ¹²⁷⁵

432. Some witnesses gave details of penetration and some did not. For example, P-1073 stated that the three Janjaweed who raped her were not wearing a condom and two of them ejaculated inside her vagina.Footnote ¹²⁷⁶ Further, P-0011 recalled that none of the members of the Janjaweed had condoms on.Footnote ¹²⁷⁷ While some witnesses explicitly stated that they and/or others were subjected to vaginal or oral penetration (such as P-0011, P-0015, P-0007, P-1073 and P-1074),Footnote ¹²⁷⁸ the Chamber is satisfied that when the evidence generally states that women were ‘raped’, even if this detail is not explicit in the evidence, the only reasonable conclusion that can be made is that the witnesses meant that the Janjaweed penetrated the women’s vaginas with their penises (and in some instances such as P-1074,Footnote ¹²⁷⁹ the mouth).

433. The Chamber also notes that on some occasions, the Janjaweed worked in unison during the rapes and the women were raped multiple times.Footnote ¹²⁸⁰ For example, P-0011 and P-0015 described how the Janjaweed acted together, some members undressed the women, others threatened and held the women down, while others penetrated them.Footnote ¹²⁸¹ Members of the Janjaweed stripped the women of their clothes and used this to stuff the women’s mouths to stop them from screaming.Footnote ¹²⁸² Moreover, in some instances, the Janjaweed used their weapons or exerted violence upon the victims; for instance, a girl resisting would be held down by two men, one on her legs and another on her chest, so that the third man could penetrate her.Footnote ¹²⁸³ Similarly, an elderly woman was dragged by her neck, beaten and then held down and raped by two members of the Janjaweed.Footnote ¹²⁸⁴ P-0011, for example, described how the Janjaweed tore off her clothes with a knife and how she saw another woman being beaten and whipped at least 10 times whilst being dragged roughly 10 metres away where she was raped.Footnote ¹²⁸⁵ Other women were killed after being raped.Footnote ¹²⁸⁶ The Janjaweed also used violent and derogatory language when raping the victims.Footnote ¹²⁸⁷ The Janjaweed threatened the victims, for example, P-0011 who was threatened by a Janjaweed who put his sword on her neck and threatened to kill her if she uttered a word.Footnote ¹²⁸⁸ Some women were penetrated in public view and their rape was witnessed by others, including children.Footnote ¹²⁸⁹ The members of the Janjaweed forced some of the women and children at gunpoint to watch as they committed these acts.Footnote ¹²⁹⁰

434. Many of the victims suffered injuries immediately after.Footnote ¹²⁹¹ Some of the women who were penetrated were heavily bleeding or could not stand up or walk.Footnote ¹²⁹² For some of the women, the effects of the penetrations they suffered have been long-lasting, as they report that they still suffer physically and psychologically.Footnote ¹²⁹³ For example, P-0011 suffers from long-term pain in her legs and genital area.Footnote ¹²⁹⁴ P-1073 suffers from long term social and physiological consequences, particularly as she was only 15 years old when the Janjaweed penetrated her multiple times and humiliated her after members of the Janjaweed threw her out of the door and called her mother to come and collect her.Footnote ¹²⁹⁵ As a result of the rapes, P-1073 has a split in her vagina that is still open and has increased after childbirth.Footnote ¹²⁹⁶ P-1074 still suffers from pain in her ribs and has scars on her hip and chest from the injuries she sustained when the members of the Janjaweed beat and penetrated her.Footnote ¹²⁹⁷

vii. Use of derogatory expressions

435. Members of the Janjaweed hurled derogatory remarks at the inhabitants of Bindisi, such as ‘Nuba, Nuba’, ‘[w]e are going to kill you or we will exterminate you, we do not want slaves here’ and ‘[t]he land is ours and not yours’;Footnote ¹²⁹⁸ insulted women by calling them wives and mothers of tora bora and nuba;Footnote ¹²⁹⁹ and threatened to wipe out the people of Bindisi, declaring that the people of Bindisi were of no benefit to the Janjaweed.Footnote ¹³⁰⁰ After capturing P-0011 and some other people,Footnote ¹³⁰¹ members of the Janjaweed questioned the women, including P-0011, ‘[w]here are your tora bora men? Where did they go?’Footnote ¹³⁰² A member of the Janjaweed held on to P-0011’s neck and asked her about the tora bora.Footnote ¹³⁰³ Another member of the Janjaweed told P-0011, ‘[w]e want to kill you, but we need you to tell us where the tora bora are’.Footnote ¹³⁰⁴ After raping P-0011, a member of the Janjaweed declared ‘I’m not going to kill this person, I’m taking this person away with me, because we don’t want these people to stay alive’,Footnote ¹³⁰⁵ and thanked President Al-Bashir for giving them this ‘opportunity’.Footnote ¹³⁰⁶ Others, while raping other women, praised God as they had ‘taken [t]ora [b]ora’s wives’ and fire their guns and shout ‘I have found a virgin woman’.Footnote ¹³⁰⁷ P-0012 heard members of the Janjaweed chant ‘holy war against the slaves’.Footnote ¹³⁰⁸ P-0012 understood ‘slaves’ as a demeaning and discriminatory term referring to the Fur inhabitants of Bindisi.Footnote ¹³⁰⁹ After capturing P-1073 and her sister,Footnote ¹³¹⁰ members of the Janjaweed threatened them with their weapons and told P-1073, ‘[y]ou’re the sister of tora bora’, to which P-1073 replied, ‘I don’t know what that means’.Footnote ¹³¹¹

viii. The Accused’s actions

436. The Accused was present in Bindisi during the attack on 15 and 16 August 2003.Footnote ¹³¹² While in North Bindisi on the first day of the attack, P-0874 expressed his revulsion for the violent attacks on the villages and town in the presence of the Accused and Samih, and the Accused dismissively waved off P-0874.Footnote ¹³¹³ During the attack on South Bindisi, P-0012 saw the Accused and Samih with the Janjaweed from his hiding place.Footnote ¹³¹⁴ From his vantage point, P-0012 could see the Accused making hand gestures, which P-0012 interpreted as the Accused giving instructions to members of the Janjaweed.Footnote ¹³¹⁵

437. On the night of 15 August 2003, the Accused blew his whistle and convened the leaders (i.e. the agids) of the Janjaweed.Footnote ¹³¹⁶ P-0878 recollected the Accused’s address to the group:

438. The Accused then instructed the gathered Janjaweed to go back to their positions, have dinner and sleep early, and told them that he would speak to them again the next morning.Footnote ¹³¹⁸ During the night, while sitting around a fire, Issa Mardom and some members of the Janjaweed spoke about the acts, such as the rapes, that they had committed against the women of the villages they attacked earlier that day.Footnote ¹³¹⁹ The Chamber notes that P-0878 gave evidence that the Accused was in close proximity to him when he overheard Issa Mardom and other members of the Janjaweed discussing the matter. However, the Chamber is not satisfied that this in and of itself proves that the Accused actually overheard this conversation.Footnote ¹³²⁰

439. Early in the morning of 16 August 2003, the Accused blew his whistle again,Footnote ¹³²¹ and asked the agids to gather up, which they did.Footnote ¹³²² P-0878 recollected the Accused’s address to the gathered Janjaweed:

440. Issa Mardom, one of the agids, opposed the Accused’s new plan, and said, ‘[w]hat we have done is an unforgettable lesson and we ask you now that we don’t go to the remainder of the villages and that we go instead to Garsila’,Footnote ¹³²⁴ which angered the Accused. P-0878 recollected the Accused’s response:

441. The Accused, in effect, threatened the agids who refused to follow his instructions.Footnote ¹³²⁶ Issa Mardom did not respond to the Accused.Footnote ¹³²⁷ At around this time, the Accused instructed Hassaballah to return to Garsila with Abd-Al-Jabbar, Solonga, Umdah Dawd Dahab, and four other injured persons.Footnote ¹³²⁸ Hassaballah did as he was instructed.Footnote ¹³²⁹

B. Operation in Mukjar between the end of February and the beginning of March 2004

a) Introduction

i. Relevant background

442. From 2003 to 2004, Mukjar was located in Mukjar Locality in West Darfur.Footnote ¹³³⁰ Mukjar was located approximately 49 kilometres south-east of Garsila, approximately 59 kilometres south of Deleig, and approximately 19 kilometres east of Bindisi.Footnote ¹³³¹ To the south of Mukjar, there was a mountainous area; to the north there was the wadi Salih; to the west, there was mainly land and villages which extended as far as Bindisi, and to the east there were villages such as Arada and Inderi.Footnote ¹³³²

443. The population of Mukjar was predominantly Fur.Footnote ¹³³³ According to a report from the UN High Commissioner for Refugees, there were around 1,800 households in Mukjar before 2003. During the events of 2003 and 2004, this number increased to over 4,100.Footnote ¹³³⁴

444. In 2003, an administrative reorganisation converted all districts in Wadi Salih, Um Dukhun, Bindisi and Mukjar into localities headed by a commissioner or mu’tamid.Footnote ¹³³⁵ The locality of Mukjar became the Municipality/Locality of Mukjar and was headed by Torshein.Footnote ¹³³⁶ He reported to the wali or governor of West Darfur – who was Maj Gen Suleiman Abdullah at the time–,Footnote ¹³³⁷ who in turn reported to the President of Sudan.Footnote ¹³³⁸ However, Torshein also received orders from Minister Harun.Footnote ¹³³⁹

445. The villages of Artala, Jalkasim, Kirarow, Sindu, Rumaliya, Balda and Gorolla were part of Mukjar Locality.Footnote ¹³⁴⁰

446. In Mukjar, there was a locality building, a police station that included a prison,Footnote ¹³⁴¹ a small medical centre, a primary school, a secondary school, a mosque and a market.Footnote ¹³⁴² There was also a CRF base.Footnote ¹³⁴³

ii. Attacks on villages and displacement between early 2003 and early 2004

447. Between early 2003 and February 2004, predominantly Fur peopleFootnote ¹³⁴⁴ from approximately 88 surrounding villages fled to Mukjar.Footnote ¹³⁴⁵ Between August 2003 and March 2004, the Janjaweed and GoS Forces launched operations in numerous villages in the area surrounding Deleig,Footnote ¹³⁴⁶ which resulted in thousandsFootnote ¹³⁴⁷ of civilians from predominantly Fur villagesFootnote ¹³⁴⁸ being displaced to Deleig, Garsila and other towns.Footnote ¹³⁴⁹

448. For example, in early 2003, Artala was attacked by the Janjaweed and the villagers fled to Mukjar.Footnote ¹³⁵⁰ Around the same time, displaced persons from Gorolla, Abirla, Old Mukjar and Nyerli arrived in Mukjar following attacks on their villages.Footnote ¹³⁵¹

449. Similarly, members of the Janjaweed and GoS Forces attacked Arawala,Footnote ¹³⁵² Forgo,Footnote ¹³⁵³ Taringa,Footnote ¹³⁵⁴ Andi,Footnote ¹³⁵⁵ Fere,Footnote ¹³⁵⁶ Kaskeidi,Footnote ¹³⁵⁷ Um JameinaFootnote ¹³⁵⁸ and other villages.Footnote ¹³⁵⁹ During these attacks, they killed and injured civilians,Footnote ¹³⁶⁰ burned and destroyed homes,Footnote ¹³⁶¹ and looted property and livestock.Footnote ¹³⁶²

450. Many people were forced to flee the attacks of 15 and 16 August 2003 on Kodoom and Bindisi, and sought refuge notably in Mukjar.Footnote ¹³⁶³ P-0720 saw displaced persons coming from other villages west of Mukjar such as Gausir, Bergei, Kododo, Seder and Kubar.Footnote ¹³⁶⁴

451. According to a UN report, by October 2003, there were 31,097 internally displaced persons in the Mukjar locality, while the original population of Mukjar was around 6,997.Footnote ¹³⁶⁵ Consequently, resources were depleted, there was insecurity and people were living in close proximity to each other without shelter or access to basic needs.Footnote ¹³⁶⁶ In addition, internally displaced persons were too afraid to return to their homes and harvest any remaining crops.Footnote ¹³⁶⁷

452. Some people returned to Kodoom and Bindisi after the attacks of 15 and 16 August 2003.Footnote ¹³⁶⁸ A meeting was convened in Mukjar by sheikhs and imams from Kodoom, Bindisi and other villages.Footnote ¹³⁶⁹ The sheikhs and imams told the villagers that the Janjaweed were not coming back and therefore that they could return to their lives in the villages.Footnote ¹³⁷⁰

453. On 30 August 2003, Kodoom and Bindisi were again attacked by the Janjaweed, prompting a new wave of displacement.Footnote ¹³⁷¹

454. Between the end of August 2003 and February 2004, there were also attacks on the outskirts of Mukjar.Footnote ¹³⁷² Some displaced persons stayed at the locality building, while others went to the zakat office or to the school.Footnote ¹³⁷³ Others, like P-1074 and her family, were not able to take refuge and sheltered under trees.Footnote ¹³⁷⁴ Food for displaced persons in Mukjar was scarce.Footnote ¹³⁷⁵

455. In February 2004, multiple villages surrounding Mukjar were attacked by the Janjaweed and GoS Forces,Footnote ¹³⁷⁶ including Arada,Footnote ¹³⁷⁷ Tendy,Footnote ¹³⁷⁸ Abirla,Footnote ¹³⁷⁹ Dembow Kabdy,Footnote ¹³⁸⁰ Kirarow,Footnote ¹³⁸¹ Sigirgir,Footnote ¹³⁸² and Nyerli.Footnote ¹³⁸³ This resulted in the mass displacement of people living in those villages towards Mukjar and the nearby mountains.Footnote ¹³⁸⁴ Some displaced villagers had to live on the streets in Mukjar.Footnote ¹³⁸⁵ It was estimated that over 40,000 people arrived in Mukjar during this period.Footnote ¹³⁸⁶ Many brought their livestock with them to prevent it falling in the hands of the Janjaweed.Footnote ¹³⁸⁷

456. Following an attack on Arada in the evening of 12 February 2004,Footnote ¹³⁸⁸ Umdah Yahya Ahmad Zarruq and the sheikh decided that all the inhabitants should flee to the mountain south of the village.Footnote ¹³⁸⁹ Consequently, around 500 men, women and children fled from Arada to Mukjar.Footnote ¹³⁹⁰

b) Events leading up to the Mukjar Operation

457. In this section, the Chamber relies primarily on witnesses P-0012, P-0883 and P-0905,Footnote ¹³⁹¹ whose duties placed them in a position to give detailed and credible accounts of the events in question.

i. Delivery of weapons, ammunition and equipment and distribution of money

458. In 2003, Lt Hamdi received a signal communication from Ali Uthman Muhammad Taha, the then Vice President of Sudan,Footnote ¹³⁹² about a delivery of weapons and uniformsFootnote ¹³⁹³ to the Accused.Footnote ¹³⁹⁴ Lt Hamdi discussed the signal communication with Maj BakhitFootnote ¹³⁹⁵ and went to see the Accused afterwards.Footnote ¹³⁹⁶

459. Subsequently, between August 2003 and March 2004, military equipment and money were distributed to the Janjaweed in Mukjar.Footnote ¹³⁹⁷

460. Between September 2003 and February 2004, a member of the CRF and Samih,Footnote ¹³⁹⁸ regularly received money from Hassaballah, the PDF coordinator in Garsila,Footnote ¹³⁹⁹ to distribute among the Janjaweed.Footnote ¹⁴⁰⁰

461. P-0012 witnessed several distributions of weapons in Mukjar between October 2003 and February 2004.Footnote ¹⁴⁰¹ In October 2003, he saw uniforms, shoes and caps being provided to Samih and, in January 2004, he noticed an increase in the distribution of weapons.Footnote ¹⁴⁰² The weapons were delivered at various locations,Footnote ¹⁴⁰³ including at the police station, where the Janjaweed would come to collect them.Footnote ¹⁴⁰⁴

462. Around February 2004, the Accused coordinated the onward distribution of weapons to umdahs of the Arab tribes and the Janjaweed at the SAF base in Garsila over a period of two days.Footnote ¹⁴⁰⁵ Although Maj Bakhit oversaw the distribution from a distance as the commander in charge of the SAF base in Garsila,Footnote ¹⁴⁰⁶ the Accused decided who should receive the weapons.Footnote ¹⁴⁰⁷ Lt Hamdi and Hassaballah were also present during this distribution of weapons,Footnote ¹⁴⁰⁸ which included Kalashnikovs and machine guns.Footnote ¹⁴⁰⁹ The weapons were distributed to members of Arab tribes,Footnote ¹⁴¹⁰ but denied to Fur tribe members.Footnote ¹⁴¹¹

463. On the last day of this weapons distribution, a delegation of high-ranking GoS officials arrived by helicopter at the Garsila SAF base.Footnote ¹⁴¹² The delegation included Minister Harun, a brigadier general from the PDF, a brigadier general from the intelligence services, and the Head of the Third Division of the SAF in Al Fasher.Footnote ¹⁴¹³ During this visit, Minister Harun was seen leaving the aircraft and ordering boxes to be offloaded from the helicopter.Footnote ¹⁴¹⁴ Minister Harun then distributed the contents of those boxes, first to the Accused,Footnote ¹⁴¹⁵ then to the commander of the SAF base, the commander of the police, and the leader of the internal security forces.Footnote ¹⁴¹⁶ The box given to the commander of the SAF base contained a ‘large amount of money’.Footnote ¹⁴¹⁷ According to P-0883, the distribution of money was to boost morale and to reward those who had helped in the GoS counter-insurgency effort.Footnote ¹⁴¹⁸ He stated that the Accused received ‘the lion’s share’ of the money.Footnote ¹⁴¹⁹

ii. Minister Harun’s speech of 1 February 2004

464. On 1 February 2004, Minister Harun visited Mukjar and attended the graduation ceremony of Fur PPF officers.Footnote ¹⁴²⁰ Minister Harun and Torshein both gave speeches.Footnote ¹⁴²¹ P-0913 recalled Minister Harun saying that he wanted them to completely ‘wipe out’ the whole area.Footnote ¹⁴²² According to P-0913, Minister Harun was heard saying that they could ‘take all the belongings of the Fur’ and consider them as ‘a war prize’,Footnote ¹⁴²³ and that he wanted them to ‘demolish the whole area from Artala to Andi Koti’.Footnote ¹⁴²⁴ He reportedly said that ‘not even a single tree should be standing there’.Footnote ¹⁴²⁵ The Accused was not present during the graduation ceremony.Footnote ¹⁴²⁶

iii. Sindu Operation

465. In this section, the Chamber relies primarily on the evidence of P-0905, who closely followed the Sindu Operation from his proximate position.Footnote ¹⁴²⁷

466. At the beginning of 2004, a convoy of GoS Forces comprising members of the SAF and the PDF left Garsila for Mukjar.Footnote ¹⁴²⁸

467. The convoy first went to Arawala where it was joined by 700 to 800 members of the Janjaweed. Footnote ¹⁴²⁹ There, P-0905 heard the Accused give a speech to the Janjaweed in which he used the term ‘amsah aksah’ and instructed them to ‘kill everyone’ and ‘leave no one alive’.Footnote ¹⁴³⁰ During that speech, the Accused told the Janjaweed ‘[a]nything you see, you have to kill or wipe. So, no man has to stay alive. Women can be spared.’Footnote ¹⁴³¹ The Janjaweed looted the crops and burned down the houses in Arawala.Footnote ¹⁴³² The convoy stayed in Arawala for approximately three days.Footnote ¹⁴³³

468. Next, the convoy went to Um Jameina.Footnote ¹⁴³⁴ There, P-0905 recalled the Accused giving another speech to the Janjaweed and GoS Forces, instructing them to kill the men but spare the women.Footnote ¹⁴³⁵ The Accused told the Janjaweed: ‘No, you cannot kill the woman.[…] Do not kill the woman. If you kill the women you will not be victorious.’ P-0905, who was listening to this speech, stated that every time the Janjaweed went to war, they never killed women. According to him, they would torture and rape women, but not kill them.Footnote ¹⁴³⁶ The Janjaweed Footnote ¹⁴³⁷ and GoS ForcesFootnote ¹⁴³⁸ killed and assaulted people in Um Jameina, and also burned down the houses in the village.Footnote ¹⁴³⁹ P-0905 recalled how members of the Janjaweed killed a woman as she was giving birth, as well as her husband who was helping her during labour.Footnote ¹⁴⁴⁰ Later on the same day, the convoy left for Mukjar.Footnote ¹⁴⁴¹ The villages that were attacked by the convoy between Garsila and Mukjar were all predominantly Fur.Footnote ¹⁴⁴²

469. In late February 2004, a contingent of approximately 6,000 members of the Janjaweed gathered around Mukjar.Footnote ¹⁴⁴³ The Accused was the leader of those Janjaweed, as they took their orders and instructions from him.Footnote ¹⁴⁴⁴ They arrived in vehicles filled with military equipment, as well as on camel and horseback.Footnote ¹⁴⁴⁵ The Janjaweed had weapons such as Kalashnikovs, machine guns and DShKs.Footnote ¹⁴⁴⁶ The Accused was also armed with a Kalashnikov and an axe.Footnote ¹⁴⁴⁷

470. The Accused and his forces stayed in Mukjar for five or six days.Footnote ¹⁴⁴⁸ During this period, the SAF and the Janjaweed were stationed outside of Mukjar.Footnote ¹⁴⁴⁹ However, the Janjaweed would enter Mukjar, loot the properties of its inhabitants,Footnote ¹⁴⁵⁰ and fire their weapons to scare them.Footnote ¹⁴⁵¹ P-0012 stated that people were scared to go outside of their homes and that the security situation was ‘precarious and extraordinary’.Footnote ¹⁴⁵² On one occasion, while the Janjaweed were looting throughout Mukjar, P-0012 saw the Accused in a vehicle with Hassaballah.Footnote ¹⁴⁵³

471. Owing to the prevailing situation of fear, some inhabitants of Mukjar sought refuge at the locality building.Footnote ¹⁴⁵⁴ On the day they entered Mukjar, the Accused and the Janjaweed went to the locality building, where Torshein addressed them.Footnote ¹⁴⁵⁵ During this time, Torshein ordered all forces in Mukjar not to kill any civilians.Footnote ¹⁴⁵⁶ On the same day, Shartay Omar Ahmad Zarruq addressed the internally displaced persons and urged them to remain at the locality building for their safety.Footnote ¹⁴⁵⁷ P-0012 gave evidence that the Accused addressed the inhabitants and told them that ‘even if they ran, they could not save themselves unless their children came out of the mountains’.Footnote ¹⁴⁵⁸ P-0012 understood this to be a threat referring to the rebels who were alleged to be in the Sindu mountains.Footnote ¹⁴⁵⁹

472. The Accused then went to the police station.Footnote ¹⁴⁶⁰ Lt Col Al-Tayyib, the Head of the CRF in Mukjar, was in charge at the police station.Footnote ¹⁴⁶¹ P-0990, who was being detained at the police station at the time, saw and heard the Accused tell Lt Col Al-Tayyib, ‘I am Ali Abd-Al-Rahman Ali Kushayb’ and ‘I came from the governorate, heading to Sindu to face the rebels.’Footnote ¹⁴⁶²

473. While at the police station, the Accused held a meeting with high ranking officials, including Lt Col Al-Tayyib and a major from the SAF.Footnote ¹⁴⁶³ There was a disagreement about the provision of vehicles to the Accused for the Sindu Operation.Footnote ¹⁴⁶⁴ During that meeting, the Accused told the police chief that anyone coming from the direction of Sindu to Mukjar must be registered and detained until their return from the operation.Footnote ¹⁴⁶⁵ The police chief answered that the sheikhs had to register anyone from outside of Mukjar at the police station, and that failure to do so would result in the arrest of both the non-registered person and their sheikh.Footnote ¹⁴⁶⁶

474. Later, a convoy, comprising of Janjaweed and GoS Forces,Footnote ¹⁴⁶⁷ and led by the Accused, attacked various locations between Mukjar and Sindu in a joint operation.Footnote ¹⁴⁶⁸ Witnesses heard that the purpose of the Sindu Operation was to fight the rebels.Footnote ¹⁴⁶⁹

475. The convoy first headed to Dembow Kabdy.Footnote ¹⁴⁷⁰ There, more Janjaweed, including Samih’s forces,Footnote ¹⁴⁷¹ joined the convoy, bringing their total number to about 7,000.Footnote ¹⁴⁷² In Dembow Kabdy, P-0905 saw the Accused address the Janjaweed and say: ‘We have one major fight, the Sindu fight. You don’t […] be cowards, move forward. Don’t be afraid.’ and ‘amsah aksah, and never bring someone alive’.Footnote ¹⁴⁷³ The Janjaweed looted and burned down the village then left in the morning.Footnote ¹⁴⁷⁴

476. Then, the convoy went to Kirarow,Footnote ¹⁴⁷⁵ where it remained for two days.Footnote ¹⁴⁷⁶ The inhabitants of Kirarow had fled the village after hearing about the shooting and looting that had occurred in Dembow Kabdy.Footnote ¹⁴⁷⁷ They left their belongings behindFootnote ¹⁴⁷⁸ and again the village was burned down by the Janjaweed. Footnote ¹⁴⁷⁹ The number of Janjaweed further increased in Kirarow.Footnote ¹⁴⁸⁰

477. On the third day, P-0905 recalled seeing two military aircraft fly over the convoy.Footnote ¹⁴⁸¹ He overheard Maj Bakhit communicating with the aircraft pilots, saying they could see more than 80 military tents.Footnote ¹⁴⁸² P-0905 saw the aircraft fly over the convoy again and fire on what P-0905 believed to be a camp of‘armed groups’ at the foot of the mountain in Sindu.Footnote ¹⁴⁸³

478. The convoy continued towards Sindu and arrived at Lerwa, where they were ambushed by the SLM/A.Footnote ¹⁴⁸⁴ After fighting those forces, the convoy was able to reach Sindu.Footnote ¹⁴⁸⁵ Once the convoy entered Sindu, they did not meet any resistance and the second-in-command of the SLM/A surrendered.Footnote ¹⁴⁸⁶ Although the Janjaweed wanted to kill the said second-in-command, the Accused instructed them not to harm him as he was a ‘very important person’ for them, from whom they needed information.Footnote ¹⁴⁸⁷ Upon questioning by the Accused, the second-in- command revealed that ‘some ofour people went to Mukjar and they must be in prison now at the police station’Footnote ¹⁴⁸⁸ and confirmed that he could identify all of them.Footnote ¹⁴⁸⁹ The second-in-command was subsequently taken to Mukjar.Footnote ¹⁴⁹⁰

479. Throughout the Sindu Operation, the Janjaweed and GoS Forces suffered significant losses: two of their vehicles were destroyed by landmines,Footnote ¹⁴⁹¹ some of their soldiers were killed and they lost ammunition and vehicles.Footnote ¹⁴⁹²

c) Arrests

i. Return to Mukjar

480. A few days after the Sindu Operation,Footnote ¹⁴⁹³ the Accused and his forces returned to Mukjar,Footnote ¹⁴⁹⁴ attacking various villages along the way.Footnote ¹⁴⁹⁵

481. After arriving in Mukjar, the Janjaweed looted and burned down houses, before most of them left the town.Footnote ¹⁴⁹⁶ The GoS Forces went towards the police station and to their camp.Footnote ¹⁴⁹⁷

482. The GoS Forces that participated in the Mukjar Operation between late February and early March 2004 included the SAFFootnote ¹⁴⁹⁸ (including the Military Intelligence),Footnote ¹⁴⁹⁹ the PDF,Footnote ¹⁵⁰⁰ the PPF,Footnote ¹⁵⁰¹ the CRFFootnote ¹⁵⁰² and the Police.Footnote ¹⁵⁰³ Some of those forces had participated in the Sindu Operation.Footnote ¹⁵⁰⁴

ii. Checkpoints

483. In February and March 2004,Footnote ¹⁵⁰⁵ the Janjaweed and GoS Forces set up checkpoints in and around MukjarFootnote ¹⁵⁰⁶ to control the arrival of people who were fleeing the previous attacks on the surrounding villages, including in the context of the Sindu Operation.Footnote ¹⁵⁰⁷ P-0129, P-0675, P-0877, P-0903, P-0919, and P-0990 were among the men who were arrested at the checkpoints.Footnote ¹⁵⁰⁸ The Chamber relies on their evidence in respect of the following findings.

484. People were stopped and searched at the checkpoints.Footnote ¹⁵⁰⁹ Men were separated from women and children,Footnote ¹⁵¹⁰ systematically arrested and taken to the police station and its prison.Footnote ¹⁵¹¹ Young men in particularFootnote ¹⁵¹² were searched for weapons or physical signs that they had carried weapons.Footnote ¹⁵¹³ Elderly or injured men generally were not arrested on account of their age or health.Footnote ¹⁵¹⁴ Around 400, predominantly FurFootnote ¹⁵¹⁵ people, were arrested during this period.Footnote ¹⁵¹⁶

485. According to P-0990, one of the officers was instructed to register the name, village, umdah and sheikh of each of the young men.Footnote ¹⁵¹⁷

486. The checkpoints were manned by various forces, including the PPF,Footnote ¹⁵¹⁸ the CRF,Footnote ¹⁵¹⁹ the police,Footnote ¹⁵²⁰ the PDFFootnote ¹⁵²¹ as well as the Janjaweed.Footnote ¹⁵²² Some of the GoS Forces at these checkpoints had lists of persons that were suspected of being rebels.Footnote ¹⁵²³ The checkpoints were manned at all times.Footnote ¹⁵²⁴ PDF and PPF members of Fur ethnicity were placed at the checkpoints to identify Fur community members in order to arrest them.Footnote ¹⁵²⁵

487. One of the key actors who was identified by multiple witnesses as being present at the checkpoints and arresting people was PPF coordinator Hassan Joma.Footnote ¹⁵²⁶ Other persons carrying out the arrests were KoreinFootnote ¹⁵²⁷ Haroun Bashir, Ibrahim Sharaf-Al-Din Ibrahim, Ali Osman Ahmed, Ali Al Najar, and Solonga.Footnote ¹⁵²⁸

488. The arrests began a few days after the Accused and his forces left Mukjar to carry out the Sindu Operation.Footnote ¹⁵²⁹

489. Community leaders from Mukjar and the surrounding areas, such as umdahs and sheikhs, were also arrested.Footnote ¹⁵³⁰ Umdahs and sheikhs were detained immediately without being questioned.Footnote ¹⁵³¹ Umdahs Adam Husayn Abdelmahmoud and Issa Harun Nour were among the umdahs who were arrested at the checkpoints.Footnote ¹⁵³² While there is contradicting evidence as to the precise circumstances surrounding the arrest of Umdah Yahya Ahmad Zarruq, the evidence nonetheless supports a finding that he was arrested in Mukjar during the charged period and detained at Mukjar police station.Footnote ¹⁵³³

490. In addition to the above-mentioned witnesses, the following persons were arrested at the checkpoints: two of P-0903’s brothers,Footnote ¹⁵³⁴ Salah Suliman, Adam Suliman, Yahya Sharaf Al-Din Abdallah and Adam Naheed Numan.Footnote ¹⁵³⁵

491. Some witnesses reported that, while only men were arrested, women were also searched.Footnote ¹⁵³⁶ Sometimes children were arrested and detained.Footnote ¹⁵³⁷

492. At the checkpoints, the internally displaced persons from surrounding villages were often accused of being rebels.Footnote ¹⁵³⁸ They were called ‘tora bora’,Footnote ¹⁵³⁹ ‘nujus’ and ‘criminals’Footnote ¹⁵⁴⁰ by the persons manning the checkpoints. P-0903 reported that he was not given any reason for his arrest.Footnote ¹⁵⁴¹ One witness expressed the sentiment that everyone from the Fur tribe was perceived as being affiliated to or supporting the rebels.Footnote ¹⁵⁴²

493. The Janjaweed and GoS Forces confiscated livestock, including camels, horses, donkeys, cows, sheep, goats and pigeons, from the persons fleeing from the surrounding villages upon their arrival in Mukjar.Footnote ¹⁵⁴³

iii. Other arrests

494. During the same period, the Janjaweed Footnote ¹⁵⁴⁴ and GoS ForcesFootnote ¹⁵⁴⁵ conducted house to house searches and arrested people in their homes, the market and other places. On those occasions, witnesses identified PPF members, including Hassan JomaFootnote ¹⁵⁴⁶ and Korein conducting searches and arrests.Footnote ¹⁵⁴⁷ Children, elderly men and women were not arrested.Footnote ¹⁵⁴⁸ The arrests continued for a period of about two weeks,Footnote ¹⁵⁴⁹ during which people living in Mukjar were not permitted to leave the town.Footnote ¹⁵⁵⁰ A 13 year old boy was arrested and brought to Torshein’s office. Torshein released him, after calling him ‘tora bora’.Footnote ¹⁵⁵¹ The boy had to report back to Torshein’s office every day for a month.Footnote ¹⁵⁵²

495. Shortly after his return to Mukjar following the Sindu Operation, the Accused personally arrested a Fur man called Abakar Abdelmoula.Footnote ¹⁵⁵³ While in his Land Cruiser, the Accused pointed towards Abakar Abdelmoula and P-0720.Footnote ¹⁵⁵⁴ P-0720 quickly fled on his bicycle, but Abakar Abdelmoula was arrested by the Accused and taken to the police station.Footnote ¹⁵⁵⁵ Abakar Abdelmoula was later among those who were executed following his detention.Footnote ¹⁵⁵⁶

496. On or around 1 March 2004, four policemen of Fur ethnicity were brought to and detained at the police station.Footnote ¹⁵⁵⁷ The policemen were Mohamed Idriss Adam Taha, Adam Idriss Adam Hassan, Abdu Rosik and Abdu Nurlak.Footnote ¹⁵⁵⁸ The Accused was standing in front of the door of the detention room and was heard saying: ‘[t]omorrow we will show you who you are, and who we are’.Footnote ¹⁵⁵⁹

iv. Persons at the locality building

497. Some of the arrested persons were taken to the locality building, rather than or after a prior period of detention at the police station.Footnote ¹⁵⁶⁰ Generally, women and children were taken to the locality building.Footnote ¹⁵⁶¹

498. Others had sought refuge at the locality building following attacks in the region that occurred before February 2004.Footnote ¹⁵⁶² Following the Sindu Operation, many people fled to the locality as a result of the Accused and his forces returning to Mukjar.Footnote ¹⁵⁶³ The persons held at the locality building were predominantly Fur.Footnote ¹⁵⁶⁴

499. The locality building was a walled compound.Footnote ¹⁵⁶⁵ It was surrounded by a perimeter fence and guarded by members of the CRFFootnote ¹⁵⁶⁶ and the police.Footnote ¹⁵⁶⁷ Torshein’s office and the PPF office, as well as other administrative offices, were located in this building.Footnote ¹⁵⁶⁸

500. The confiscated livestock was also kept at the locality building.Footnote ¹⁵⁶⁹ The persons held at the locality building were not provided with food or water.Footnote ¹⁵⁷⁰ They were not registered or questioned.Footnote ¹⁵⁷¹

501. P-0892, who was a child during the events, witnessed the Janjaweed and PDFFootnote ¹⁵⁷² beating the people held at the locality building with whips.Footnote ¹⁵⁷³ P-0892 himself was beaten with a whip by the Janjaweed. Footnote ¹⁵⁷⁴ The Janjaweed and PDF also verbally abused them by calling them rebels and slaves and saying that they were going to wipe out the whole area in Sindu and Arada.Footnote ¹⁵⁷⁵

d) Detention at Mukjar police station

i. Taking of detainees to the police station

502. Following their arrests, at least 100 men and boys, predominantly from the Fur tribe, were taken to and detained at Mukjar police station.Footnote ¹⁵⁷⁶ The length of their detention varied, with some being detained for up to four weeks.Footnote ¹⁵⁷⁷

503. The arrested persons included P-0129, P-0675, P-0877, P-0903, P-0919, P-0932, and P-0990Footnote ¹⁵⁷⁸ upon whom the Chamber relies in respect of the following findings.

504. The Mukjar police station was located at the northern edge of the town, near the roads to Garsila and Bindisi.Footnote ¹⁵⁷⁹ There was only one entrance for vehicles to drive into the police station compound.Footnote ¹⁵⁸⁰ The entrance to the police station was from the south.Footnote ¹⁵⁸¹ Inside the police station, there were various rooms, such as a reporting room and a storage room.Footnote ¹⁵⁸² There were generators at the police station.Footnote ¹⁵⁸³ The detainees were held in several rooms, including the prison, the police presidency and the headquarters.Footnote ¹⁵⁸⁴ The prison was next to the police station in the northern direction and the door opened to the west.Footnote ¹⁵⁸⁵ The prison had two separate sections.Footnote ¹⁵⁸⁶ One section had iron bars and the other section had one small door.Footnote ¹⁵⁸⁷ There was a roundabout between the two buildings of the police station.Footnote ¹⁵⁸⁸ The first cell was approximately five metres by four metres.Footnote ¹⁵⁸⁹

505. The detainees came from different villages surrounding Mukjar, including: Kodoom, Korofota, Nyerli, Aderla, Siguederla, Tendy,Footnote ¹⁵⁹⁰ Dembow Kabdy,Footnote ¹⁵⁹¹ Arada,Footnote ¹⁵⁹² Sigirgir, Indiri, Artala, Balda, Rumaliya, Karraro, Dina, Zua, Gorolla, Sindu, Alamata, Balabang, Baladepi, Gossoma, Korojure, Morol, Mumu, Amshalay, Bergei, Nainkossé, Gausir and Bornyol.Footnote ¹⁵⁹³

506. All the detainees at the police station were male.Footnote ¹⁵⁹⁴ While the detainees were predominantly Fur,Footnote ¹⁵⁹⁵ some were from other tribes such as Muringa,Footnote ¹⁵⁹⁶ Tama, Borgo, Masalit or Zaghawa.Footnote ¹⁵⁹⁷ At least 100 persons were detained at the police station between late February and early March 2024.Footnote ¹⁵⁹⁸ Most detainees were adults.Footnote ¹⁵⁹⁹ However, P-0129 and P-0905 reported seeing children detained at the police station.Footnote ¹⁶⁰⁰

507. Additional detainees were brought in every day.Footnote ¹⁶⁰¹

508. Multiple witnesses recalled that, after being brought to the police station, their names were registered.Footnote ¹⁶⁰² Hassan JomaFootnote ¹⁶⁰³ and John KojFootnote ¹⁶⁰⁴ were among those who registered the names of the detainees. Lt Col Al-Tayyib had instructed John Koj to register and count the detainees.Footnote ¹⁶⁰⁵ P-0990 witnessed Ibrahim Sharaf-Al-Din Ibrahim taking the ledger with the names of the detainees from Hassan Joma and telling him that they should be lined up in groups of ten.Footnote ¹⁶⁰⁶ During his detention, P-0990 witnessed John Koj coming to the cell every day and submitting a report on the detainees to his superiors.Footnote ¹⁶⁰⁷ One day he said ‘tomorrow the government and government forces will come and will be led by Colonel Abdullah Himeidan. And these are Popular Defence Forces, popular police forces led by the leader of militias, the leader of the other colonels of the Janjaweed, and that’s Ali Kushayb’.Footnote ¹⁶⁰⁸

509. The policemen guarded the detainees.Footnote ¹⁶⁰⁹ P-0984Footnote ¹⁶¹⁰ recalled that the forces that were brought from Khartoum were also present at the police station.Footnote ¹⁶¹¹ Once he was brought to the police station, P-0675 recognised Samih, who was giving orders to the guards.Footnote ¹⁶¹²

510. A number of sheikhs and umdahs were detained at the police station.Footnote ¹⁶¹³ Among them were Umdah Yahya Ahmad Zarruq,Footnote ¹⁶¹⁴ Umdah Issa Harun Nour,Footnote ¹⁶¹⁵ Umdah Adam Husayn Abdelmahmoud,Footnote ¹⁶¹⁶ Sheikh Abdala,Footnote ¹⁶¹⁷ Sheikh Jobbor,Footnote ¹⁶¹⁸ Omar Ahmad Zarruq, Umdah Ahmed Mohamed Gantour, and Sheikh Issa Mohamed Ishaq.Footnote ¹⁶¹⁹ Doctor Muhammad Umar Ahmad Zarruq, the brother of Umdah Yahya Ahmad Zarruq, was also taken to the police station.Footnote ¹⁶²⁰ When P-0129 was brought to the police station, he saw the umdahs, including Umdah Yahya Ahmad Zarruq, Umdah Adam Husayn Abdelmahmoud and Umdah Issa Harun Nour, being detained on the veranda. They had been made to undress and were sitting in their underwear.Footnote ¹⁶²¹

ii. Conditions of detention

511. Several persons who shared a cell at the police station gave evidence before the Chamber, including P-0129, P-0877, P-0903, P-0919, P-0932, and P-0990.Footnote ¹⁶²² Considering their direct and personal experience of the events, the Chamber relies on their evidence to reach the following findings.

512. The condition ofdetention were ‘very difficult’ and ‘very bad’.Footnote ¹⁶²³ The detention cells were overcrowded,Footnote ¹⁶²⁴ dirtyFootnote ¹⁶²⁵ and hot.Footnote ¹⁶²⁶ Many detainees could not sleepFootnote ¹⁶²⁷ as there was no place to lie down or move around.Footnote ¹⁶²⁸ The detainees were sweating profusely.Footnote ¹⁶²⁹ It was difficult to breathe in the cell.Footnote ¹⁶³⁰ More and more detainees were added to the cells over the course of two days.Footnote ¹⁶³¹ Whenever new detainees were brought in, they would be pushed into the cell,Footnote ¹⁶³² so that people were positioned on top of each other.Footnote ¹⁶³³

513. There was a lack of light in the detention cells.Footnote ¹⁶³⁴ Some detainees reported that there were no windows in their cell.Footnote ¹⁶³⁵ In one of the cells, there was no light, except for sun light during the day.Footnote ¹⁶³⁶

514. The detainees were scared,Footnote ¹⁶³⁷ hungry, thirsty and tired.Footnote ¹⁶³⁸ They had limitedFootnote ¹⁶³⁹ or no access to a toiletFootnote ¹⁶⁴⁰ or other sanitary facilitiesFootnote ¹⁶⁴¹ and were forced to urinate and defecate in the overcrowded cells.Footnote ¹⁶⁴²

515. The detainees were given little to no foodFootnote ¹⁶⁴³ or water.Footnote ¹⁶⁴⁴ P-0990 recalled that the detainees were given half a loaf of bread and one glass of water per person.Footnote ¹⁶⁴⁵ The detainees were not provided with any medical treatment.Footnote ¹⁶⁴⁶

iii. Minister Harun’s visit to Mukjar police station

516. Minister Harun visited Mukjar on or around 1 March 2004.Footnote ¹⁶⁴⁷ On that day, two helicopters landed north of the market.Footnote ¹⁶⁴⁸ Minister Harun was accompanied by Abd-Al-Hakam,Footnote ¹⁶⁴⁹ a cameraman,Footnote ¹⁶⁵⁰ and other policemen and officers.Footnote ¹⁶⁵¹ Minister Harun gave a speech in which he saluted the PPF and thanked the Janjaweed.Footnote ¹⁶⁵² He told them ‘you did a good job chasing away the rebels and cleaning the area’.Footnote ¹⁶⁵³ Minister Harun also visited Mukjar police station, where P-0129 and P-0990 were detained at that time.Footnote ¹⁶⁵⁴ The Accused, Torshein and Lt Col Al-Tayyib were also present.Footnote ¹⁶⁵⁵

517. During Minister Harun’s visit, the detainees were ordered to leave their cell and stand outside between the roundabout and the cell, where the government officials had gathered.Footnote ¹⁶⁵⁶ The Accused was heard telling Minister Harun ‘[t]hese people are rebels. We arrested them with their umdahs.’Footnote ¹⁶⁵⁷

518. The detainees were photographed and filmed by a cameraman, while Minister Harun and other government officials called them ‘tora bora’ and accused them of being rebels.Footnote ¹⁶⁵⁸ Minister Harun was heard telling the detainees ‘[t]oday and tonight I am going to destroy you all’.Footnote ¹⁶⁵⁹ When Umdah Yahya Ahmad Zarruq tried to tell the government officials that they were not rebels, but unarmed citizens, Abd-Al-Hakam told him ‘[s]hut up. Don’t speak again.’Footnote ¹⁶⁶⁰ Minister Harun was heard instructing Lt Col Al-Tayyib ‘[b]ring all the rebels inside the cell and tomorrow morning bring them to Ali Kushayb.’Footnote ¹⁶⁶¹

519. Before Minister Harun left Mukjar on that day, from his prison cell, P-0877 heard someone give a speech but he could not recognise who was speaking.Footnote ¹⁶⁶² He remembers the speaker saying ‘[t]hings are now in your hands, you should plant panadora’Footnote ¹⁶⁶³ and he understood this expression to mean committing rape.Footnote ¹⁶⁶⁴ He also heard ‘noises’ and people shouting back ‘Allahu Akbar, God is the greatest’.Footnote ¹⁶⁶⁵ Minister Harun left Mukjar shortly after the end of the speech.Footnote ¹⁶⁶⁶

e) Physical and verbal abuse of detainees

520. Over the course of at least two days, the Accused as well as the Janjaweed, the police, and CRF personnel entered the cells, and physically and verbally abused the detainees.

521. The Chamber is satisfied, on the basis of the consistent, probative evidence of five credible witnesses, that, on or around 1 March 2004,Footnote ¹⁶⁶⁷ the Accused entered at least one of the cells of the police stationFootnote ¹⁶⁶⁸ and physically and verbally abused the detainees.

522. On that occasion, the Accused was accompanied by several Janjaweed and GoS Forces.Footnote ¹⁶⁶⁹ Torshein, Lt Hamdi and Samih were also present.Footnote ¹⁶⁷⁰ The Accused introduced himselfas ‘Ali Kushayb’Footnote ¹⁶⁷¹ and as the leader of the Janjaweed. Footnote ¹⁶⁷² The Accused was wearing a labsa, while Samih was wearing a khaki uniform and an amulet.Footnote ¹⁶⁷³

523. The Accused then proceeded to hit the other detained umdahs and sheikhs with his axe,Footnote ¹⁶⁷⁴ including Umdah Adam Husayn Abdelmahmoud,Footnote ¹⁶⁷⁵ Sheikh Abdullahi Ahmad Hassan and Sheikh Ahmad Mohammed Barbayi.Footnote ¹⁶⁷⁶ The Accused was heard threatening to kill Umdah Yahya Ahmad ZarruqFootnote ¹⁶⁷⁷ and was seen hitting him on the shoulder with his axe and breaking his arm.Footnote ¹⁶⁷⁸

524. The Accused also hit other detainees with his axe, including P-0129,Footnote ¹⁶⁷⁹ P-0990,Footnote ¹⁶⁸⁰ Dr Muhammad Umar Ahmad ZarruqFootnote ¹⁶⁸¹ and Adam Naheed Numan.Footnote ¹⁶⁸² P-0129 saw the Accused hit and severely injure a boy of about 9 or 10 years old who was sitting next to Umdah Yahya Ahmad Zarruq.Footnote ¹⁶⁸³ Similarly, P-0877 saw the Accused hit two detainees named Abaker Mohammed Adam and Omar Adam Harun inside the cell.Footnote ¹⁶⁸⁴ Omar Adam Harun lay on the floor of the cell for two days and P-0877 thought he was dead.Footnote ¹⁶⁸⁵ The Accused used a whip to hit the detainees.Footnote ¹⁶⁸⁶

525. While hitting the detainees, the Accused hurled derogatory terms at them such as slaves,Footnote ¹⁶⁸⁷ magus,Footnote ¹⁶⁸⁸ tora bora Footnote ¹⁶⁸⁹ and rebels.Footnote ¹⁶⁹⁰

526. On or around 1 March 2004, the Janjaweed,Footnote ¹⁶⁹¹ the Police,Footnote ¹⁶⁹² and CRF personnelFootnote ¹⁶⁹³ also beat the detained persons at the police station,Footnote ¹⁶⁹⁴ including the umdahs and sheikhs. Footnote ¹⁶⁹⁵ All detainees were beaten without exception.Footnote ¹⁶⁹⁶ Some were beaten with sticks, others with whips.Footnote ¹⁶⁹⁷ The detainees fell over each other in their attempts to escape the beating.Footnote ¹⁶⁹⁸

527. In addition to being hit on the head with a stick,Footnote ¹⁶⁹⁹ P-0919 was also burned with an iron by members of the CRF while in the cell.Footnote ¹⁷⁰⁰ He explained that detainees would be asked if they were ‘tora bora’ and that, if they denied this, they would be burned with an iron for around ten minutes.Footnote ¹⁷⁰¹

528. P-0903 described how policemen threw what felt like hot plastic on him.Footnote ¹⁷⁰²

529. P-0877 recalled being interrogated by members of the CRF during his first detention at Mukjar police station in late February 2004.Footnote ¹⁷⁰³

530. The Janjaweed shaved the headsFootnote ¹⁷⁰⁴ and severed the ears of some detainees with a knife, while the Accused was standing near and watching as this happened.Footnote ¹⁷⁰⁵ P-0919 described how the person whose ear was severed was left with a bleeding wound.Footnote ¹⁷⁰⁶ The detainees whose heads were shaven and whose ears were severed were all from the Fur tribe.Footnote ¹⁷⁰⁷

531. The Janjaweed also verbally abused the detainees by threatening them,Footnote ¹⁷⁰⁸ calling them ‘abid’ and ‘tora bora’,Footnote ¹⁷⁰⁹ and accusing them of being rebels.Footnote ¹⁷¹⁰ For example, P-0877 recalled that John Koj came to his cell at night and said ‘Ask God, because tomorrow you will not be alive, so you have to say your prayers now.’Footnote ¹⁷¹¹

532. P-0990 stated that only the umdahs and sheikhs spoke up, the other detainees ‘could not talk at all’.Footnote ¹⁷¹² The only time regular detainees spoke was when they denied being rebels or tora bora. Footnote ¹⁷¹³ The detainees felt they could not look the officers in charge in the eye and therefore kept their heads down and looked at the ground.Footnote ¹⁷¹⁴

533. P-0129 recalled that Lt Hamdi questioned the detainees about the whereabouts of presumed rebels while pointing a gun at them.Footnote ¹⁷¹⁵ Other detainees were not asked anything while being assaulted and tortured.Footnote ¹⁷¹⁶

534. P-0919 described how, after the physical abuse, detainees could be heard shouting and crying.Footnote ¹⁷¹⁷ Others remained silent.Footnote ¹⁷¹⁸ Some detainees were reading quotes and verses from the Qur’an and saying ‘hamdulillah’.Footnote ¹⁷¹⁹ The detainees were left with wounds,Footnote ¹⁷²⁰ were bleeding,Footnote ¹⁷²¹ and ‘in agony’.Footnote ¹⁷²² Some detainees’ skin started to peel offand their wounds were so grave that they became disfigured.Footnote ¹⁷²³

535. The detainees were not given any medical treatment for the injuries they sustained as a result of the physical abuse.Footnote ¹⁷²⁴

536. Due to the appalling conditions of detention and the abuse inflicted by the Janjaweed and GoS Forces, many detainees suffered physical harm and at least three detainees died as a result of their injuries.Footnote ¹⁷²⁵ P-0932 gave evidence that every morning, bodies were ‘extracted’ from the cell.Footnote ¹⁷²⁶

f) Summary executions outside of Mukjar

537. For the findings in the section below, the Chamber has relied on the evidence of P-0905, P-0931 and P-0984, who closely followed the convoy from their proximate positions, as well as two detainees who survived the summary executions.

i. Meeting at the police station compound shortly before the transport of detainees

538. On or around 2 March 2004, several officials and officers held a meeting at the police station compound, including Lt Col Al-Tayyib, Torshein, Samih, Hassan Joma, Haroun Bashir, Lt Hamdi, Abd-Al-Mun’im and the Accused.Footnote ¹⁷²⁷

539. During that meeting, the Accused spoke first. He was heard saying loudly to Torshein that they needed to take the prisoners to Zalingei and that he was getting direct orders and instructions from Minister Harun and did not take ‘instructions from a wali or mu’atamid.’Footnote ¹⁷²⁸ P-0913 heard the Accused say that he wanted all the displaced persons in Mukjar dead, and when Lt Col Al-Tayyib replied that they should not kill those who came down from the mountains to surrender, the Accused was heard answering ‘I can communicate directly with the minister. Who are you to tell me this? I would only waste only one bullet to get rid of you.’Footnote ¹⁷²⁹

540. The Accused entered one of the cells housing the second-in-command of the SLM/A who had been captured in Sindu,Footnote ¹⁷³⁰ along with Muqaddam Idriss and Abd-Al-Mun’im, who were both intelligence officers.Footnote ¹⁷³¹ The second-in-command pointed out a number of detainees, and they were told to get up.Footnote ¹⁷³² The Accused told the commander of the police station that all the detainees were tora bora and had to be transferred to Zalingei or Garsila.Footnote ¹⁷³³

541. The Accused then instructedFootnote ¹⁷³⁴ the Janjaweed and GoS Forces who were present to open another cell.Footnote ¹⁷³⁵ He then entered the cell and ordered the detainees out,Footnote ¹⁷³⁶ and also instructed the Janjaweed and GoS Forces to take them out of their cells.Footnote ¹⁷³⁷ He told a police officer that he was there to bring the detainees to Garsila.Footnote ¹⁷³⁸ Detainees’ names were called one by one,Footnote ¹⁷³⁹ with some names being called by the Accused himself,Footnote ¹⁷⁴⁰ after which detainees would exit or be removed from the cell.Footnote ¹⁷⁴¹

542. The Accused hit several detainees with his axe as they were exiting the cell.Footnote ¹⁷⁴² For example, he hit Umdah Yahya Ahmad Zarruq on the shoulder with the handle of his axe as he was coming out of the cell.Footnote ¹⁷⁴³ The Accused hit Umdah Issa Harun Nour on the shoulder with his axe, and the Janjaweed hit him with sticks and whips.Footnote ¹⁷⁴⁴

543. Although a large number of detainees were taken out of the cells and loaded onto the vehicles, some remained in detention at the police station. P-0990, for example, was told by John Koj that he was not to leave the cell, and his name was not called.Footnote ¹⁷⁴⁵ Similarly, P-0903, P-0877 and P-0932 were not loaded onto the vehicles and remained in their cell.Footnote ¹⁷⁴⁶

544. Once outside, the Accused ordered the umdahs Footnote ¹⁷⁴⁷ to get into the vehicles and ordered the rest of the detainees to do the same.Footnote ¹⁷⁴⁸ The Accused also personally took some detainees from the cell and brought them outside to the vehicles.Footnote ¹⁷⁴⁹ He further instructed the Janjaweed and GoS Forces to load the detainees onto the vehicles,Footnote ¹⁷⁵⁰ which they did.Footnote ¹⁷⁵¹

545. There was general chaos and the detainees were crying.Footnote ¹⁷⁵² At some point, the Janjaweed and GoS Forces pulled detainees at random out of the cells and put them into vehicles.Footnote ¹⁷⁵³ Umdah Yahya Ahmad Zarruq was denied permission to get properly dressed before leaving the police station.Footnote ¹⁷⁵⁴ The Janjaweed beat the detainees during this time.Footnote ¹⁷⁵⁵

546. At least 52 detaineesFootnote ¹⁷⁵⁶ were loaded onto several vehicles,Footnote ¹⁷⁵⁷ including open-back Land Cruisers mounted with DShKs.Footnote ¹⁷⁵⁸ These vehicles belonged to the police, the SAF, and the CRF.Footnote ¹⁷⁵⁹

547. The Janjaweed ordered the detainees to lie face down in the vehicles and not to raise their heads.Footnote ¹⁷⁶⁰ They were packed so tightly that detainees were forced to sit or lie on top of each other.Footnote ¹⁷⁶¹ Some of the detainees, like P-0919,Footnote ¹⁷⁶² were blindfolded. The detainees were still being beaten as they were loaded onto the vehicles.Footnote ¹⁷⁶³ Once a vehicle was fully loaded with detainees, it was driven away, and another vehicle would be brought to be loaded with more detainees.Footnote ¹⁷⁶⁴

548. The umdahs, including Umdah Issa Harun Nour,Footnote ¹⁷⁶⁵ Umdah Adam Husayn AbdelmahmoudFootnote ¹⁷⁶⁶ and Umdah Yahya Ahmad Zarruq,Footnote ¹⁷⁶⁷ were loaded onto the first vehicles.Footnote ¹⁷⁶⁸ The Accused and Samih boarded this vehicle, which was mounted with a DShK.Footnote ¹⁷⁶⁹ Lt Hamdi sat in another open-back vehicle mounted with a DShK.Footnote ¹⁷⁷⁰

ii. Transport by vehicles

549. These Janjaweed and GoS Forces drove the detainees in a convoy, north of Mukjar in the direction of Garsila.Footnote ¹⁷⁷¹ While driving away, P-0913 heard the Accused say ‘Allahu Akbar, Toro Boro is over, prepare their graves’.Footnote ¹⁷⁷²

550. The Janjaweed and GoS Forces continued beating and insulting the detainees, including the umdahs, throughout the journey.Footnote ¹⁷⁷³ The Janjaweed threatened the umdahs by saying ‘we are going to kill you all’, which reduced them to tears.Footnote ¹⁷⁷⁴

iii. Summary executions

First execution site: Khor Talaba

551. The convoy travelled approximately one kilometre or about ten minutes before making a first stop.Footnote ¹⁷⁷⁵ The convoy stopped at a place called Khor Talaba,Footnote ¹⁷⁷⁶ not far from what would later become the United Nations – African Union Hybrid Operation in Darfur (‘UNAMID’) base.Footnote ¹⁷⁷⁷ At the time of the events, the khor was a dry valleyFootnote ¹⁷⁷⁸ located near a large tree.Footnote ¹⁷⁷⁹ Khor Talaba is also known as Khor Kushef or Khor Kushayb because of the people that were killed there.Footnote ¹⁷⁸⁰

552. After the vehicles stopped, the Accused ordered some of the detainees to get out of the vehicles.Footnote ¹⁷⁸¹ He was heard saying ‘Umdah Yahya, get down, Umdahs, get down’.Footnote ¹⁷⁸² The Accused beat the detainees with his axe as they were getting out of the vehicles.Footnote ¹⁷⁸³

553. The Janjaweed and GoS Forces also ordered some of the other detainees to get out of the vehicles.Footnote ¹⁷⁸⁴ The Janjaweed and GoS Forces beat the detainees,Footnote ¹⁷⁸⁵ and continued insulting them and calling them abid and tora bora.Footnote ¹⁷⁸⁶ A soldier told the detainees that ‘if any of you know verses from the Koran, you better start praying because these people are going to kill you’.Footnote ¹⁷⁸⁷ The Accused then ordered the detainees to lie down in a line.Footnote ¹⁷⁸⁸ After that, he instructed the Janjaweed and GoS Forces to shoot and kill the detainees.Footnote ¹⁷⁸⁹ P-0919Footnote ¹⁷⁹⁰ and the umdahs Footnote ¹⁷⁹¹ were among them. P-0905 heard the Accused saying: ‘Shoot again. Shoot again. Maybe one ofthem did not get shot, so shoot again’.Footnote ¹⁷⁹²

555. The Janjaweed and GoS Forces started shooting at the detainees.Footnote ¹⁷⁹³ Hassaballah,Footnote ¹⁷⁹⁴ Abikir, Ali Al Tarzi and Muqaddam Idriss were among those who shot the detainees.Footnote ¹⁷⁹⁵

556. During this event, the Accused was standing with Hassaballah,Footnote ¹⁷⁹⁶ Lt Hamdi, Lt Col Al-Jilli, Samih and Torshein.Footnote ¹⁷⁹⁷ P-0931 saw how Lt Col Al-Jilli and the Accused conferred just before the execution of the detainees.Footnote ¹⁷⁹⁸

557. During the shooting, P-0905 saw and overheard Lt Col Al-Tayyib ask the Accused why he was killing the detainees.Footnote ¹⁷⁹⁹ He remembers the Accused answering him ‘[w]ell, this is our operation. This is our work.’Footnote ¹⁸⁰⁰

558. The shooting lasted approximately 20 minutes.Footnote ¹⁸⁰¹ During and after the shooting, the Janjaweed were heard shouting ‘Tora bora, we are going to fuck you. Tora bora we are going to fuck you.’Footnote ¹⁸⁰²

559. One of the detainees survived the execution by pretending to be among the dead and lying still until nightfall.Footnote ¹⁸⁰³ Mohammed Abdelkarim, Abdu Mini and Hassan Abdalla were among the dead.Footnote ¹⁸⁰⁴ There were dead bodies everywhere and most detainees were covered in blood.Footnote ¹⁸⁰⁵

560. The evidence establishes that all detainees who were unloaded at this site, except for the survivor, were killed on that day at Khor Talaba.Footnote ¹⁸⁰⁶ Accordingly, on this basis, recalling its finding that the umdahs were unloaded from the vehiclesFootnote ¹⁸⁰⁷ and having found that they were identified among the corpses found at the site,Footnote ¹⁸⁰⁸ the Chamber is satisfied that umdahs Yahya Ahmad Zarruq, Adam Husayn Abdelmahmoud and Issa Harun Nour were among the detainees executed on or around 2 March 2004.

561. Many detainees wore jallabiyas.Footnote ¹⁸⁰⁹

Second execution site: between Eastern Juguma and Nyerli

562. After the first executions at Khor Talaba, the convoy went to another execution site, which was a 15 to 30 minutes’ drive, and was located between Eastern Juguma and Nyerli.Footnote ¹⁸¹⁰

563. At this location, the Accused again ordered some detainees to get out of the vehicles.Footnote ¹⁸¹¹ After being unloaded from the vehicles, these detainees were first beaten by the Accused and Samih and were then told to lie face down on the ground.Footnote ¹⁸¹² The Accused ordered his forces to execute the detainees.Footnote ¹⁸¹³

564. After that, the detainees were shot with GM3s and Kalashnikovs,Footnote ¹⁸¹⁴ while the Accused and Samih stood nearby.Footnote ¹⁸¹⁵ The soldiers continued shooting at the detainees using a DShK mounted on one of the vehicles, even after most of them were already dead.Footnote ¹⁸¹⁶

565. After the shooting, some soldiers started walking on top of the detainees.Footnote ¹⁸¹⁷ For about half an hour after the shooting, the soldiers were verifying whether there were any survivors so that they could kill them.Footnote ¹⁸¹⁸ One of the soldiers was heard saying that one of‘the slaves’ had money on him and saw the soldier taking the money from the corpse.Footnote ¹⁸¹⁹

566. One of the detainees who was shot at survived the execution by pretending to be dead.Footnote ¹⁸²⁰ He did not move while the soldiers were walking on top of him.Footnote ¹⁸²¹ There were bloodied bodies everywhere.Footnote ¹⁸²²

567. On this basis, the Chamber is satisfied that all detainees who were unloaded at this site, except for the survivor, were killed on or around 2 March 2004.Footnote ¹⁸²³ This includes P-0675’s brother.Footnote ¹⁸²⁴

iv. End of the operation and other execution sites

568. Multiple witnesses who were in Mukjar at the time of the executions heard shots coming from the direction of Garsila.Footnote ¹⁸²⁵ Many witnesses gave evidence that they never again saw the detainees who had been driven away.Footnote ¹⁸²⁶

569. Other detainees were brought to other locations between Mukjar and Garsila to be executed. For example, P-0877,Footnote ¹⁸²⁷ P-0675Footnote ¹⁸²⁸ and P-0581Footnote ¹⁸²⁹ reported having seen dead bodies at various other locations. Moreover, as noted above, almost all the detainees who were loaded onto vehicles were never seen again and the Accused had given clear instructions to kill them.Footnote ¹⁸³⁰ The corpses of other detainees, Abdallah Ahmed Hassan, and Bahr-al-Din Idris Mohamed Abdelrahman and Abdullah Jibril,Footnote ¹⁸³¹ were discovered at these other sites.

570. Having regard to the totality of the evidence, including the surrounding context and circumstances, the Chamber is satisfied that the only reasonable conclusion is that the detainees who were loaded onto the vehicles and brought to the execution sites were killed by the Janjaweed and GoS Forces on or around 2 March 2004.

571. Nonetheless, the Chamber, as set out in the credibility assessment of P-0905, is unable to come to a conclusion beyond reasonable doubt regarding the execution of the sheikh and the young boys near Khor Talaba.Footnote ¹⁸³²

572. The convoy then moved towards Garsila and stopped in Mara.Footnote ¹⁸³³

v. Discovery of bodies

573. Several witnesses gave evidence about bodies discovered not only at Khor Talaba,Footnote ¹⁸³⁴ where P-0877 reported counting 97 bodies,Footnote ¹⁸³⁵ but also at other execution sites in the areaFootnote ¹⁸³⁶ including near the UNAMID buildingFootnote ¹⁸³⁷ and near Nyerli.Footnote ¹⁸³⁸ All of the bodies found at Khor Talaba were maleFootnote ¹⁸³⁹ and were surrounded by spent ammunition.Footnote ¹⁸⁴⁰

574. The dates on which the bodies were discovered range from one day after the summary executionsFootnote ¹⁸⁴¹ to nine monthsFootnote ¹⁸⁴² after the summary executions. The recognition of the bodies was done sometimes by means of observation, through the recognition of clothing or accessories,Footnote ¹⁸⁴³ and sometimes on the basis of indirect evidence.Footnote ¹⁸⁴⁴ Considering all these circumstances, the Chamber is satisfied that the bodies of umdahs Yahya Ahmad Zarruq, Adam Husayn Abdelmahmoud and Issa Harun Nour were found at Khor Talaba.Footnote ¹⁸⁴⁵ The corpses of the following detainees were also found at the same site: Ibrahim Muhammad Ali Ballut, Adel Bady, Yusuf Muhajer, Adam Mohamed Babay, and Abd-Al-Jabbar Abd-al-Mawla.Footnote ¹⁸⁴⁶

C. Operation in Deleig between 5 and 7 March 2004

a) Relevant background

575. At the time of the events between 5 and 7 March 2004, the town of Deleig was located in the Wadi Salih Locality in West Darfur.Footnote ¹⁸⁴⁷ Deleig was approximately 17 kilometres north-east of the town of Garsila and 53 kilometres south-west of the town of Zalingei.Footnote ¹⁸⁴⁸ The population of Deleig was predominantly Fur.Footnote ¹⁸⁴⁹

576. In central Deleig there was an open field, used for playing football.Footnote ¹⁸⁵⁰ The Deleig police station was located on elevated ground on the eastern side of the field.Footnote ¹⁸⁵¹ To the south of the field was the Deleig primary school.Footnote ¹⁸⁵² Situated to the west of the field, some 200 metres from the police station, was the Ansar Al-Sunna mosque.Footnote ¹⁸⁵³ A sprawling market area wrapped around part of the grounds of the mosque.Footnote ¹⁸⁵⁴ Another large mosque, the Sheikh Sharif mosque, also known as Masjid Al-Kabir, was situated at the northern periphery of Deleig.Footnote ¹⁸⁵⁵

b) Events leading up to the Deleig Operation

577. In this section, the Chamber relies primarily on the evidence of witnesses P-0883, P-0905, P-0935, and P-0973, who, from their respective positions, closely followed the events that took place.Footnote ¹⁸⁵⁶ The Chamber also relies on the evidence of P-0643, who received accounts of the events.Footnote ¹⁸⁵⁷

i. Displacement of civilians to Deleig and surrounding towns

578. By early March 2004,Footnote ¹⁸⁵⁸ more than 16,000 internally displaced persons were staying in Deleig.Footnote ¹⁸⁵⁹ The living conditions of the displaced persons were dire. Those who could not stay with relatives or other villagersFootnote ¹⁸⁶⁰ sought shelter around the marketFootnote ¹⁸⁶¹ and the primary school,Footnote ¹⁸⁶² or slept under trees and on the streets.Footnote ¹⁸⁶³ Others built temporary shelters in and around Deleig and established makeshift camps.Footnote ¹⁸⁶⁴ The displaced persons and population of Deleig suffered from food shortage, poor sanitation and illness.Footnote ¹⁸⁶⁵

579. Around this time, there was a small Janjaweed presence in and around Deleig.Footnote ¹⁸⁶⁶ Members of the Janjaweed seized horses and other valuables and beat and verbally harassed displaced persons, referring to them as ‘tora bora’ and other derogatory names.Footnote ¹⁸⁶⁷ The small police presence in Deleig could do little to protect the displaced persons.Footnote ¹⁸⁶⁸

ii. Arrests and detentions in Garsila

580. Following the Sindu and Mukjar Operations in February and March 2004,Footnote ¹⁸⁶⁹ the forces which had conducted these operations returned to Garsila.Footnote ¹⁸⁷⁰ Around this time, prior to the Deleig Operation, many people who were suspected of being connected with the insurgency were arrested and detained at the Garsila SAF base.Footnote ¹⁸⁷¹ The Accused issued the orders for people to be arrested and provided intelligence to the SAF on suspected ‘insurgents’, which led to many arrests.Footnote ¹⁸⁷² He also personally brought some detainees to the Garsila SAF base.Footnote ¹⁸⁷³ Maj Bakhit approved the detentions, while Lt Hamdi gave the preliminary approval and oversaw the process.Footnote ¹⁸⁷⁴

581. Those detained at the Garsila SAF base included community leaders, coordinators, ‘regular citizens’, policemen from the Fur community, officials, civil servants, secretaries, administrative officers and tradesmen from the locality.Footnote ¹⁸⁷⁵ Specifically:

a) Adam Adam Degges Ahmed Abdulshafa (known as Kindiri), the umdah of Forgo (‘Umdah Kindiri’),Footnote ¹⁸⁷⁶ and Jiddo Khamis Abd-Al-Karim, the umdah of Gaba (‘Umdah Khamis’),Footnote ¹⁸⁷⁷ who were both Fur,Footnote ¹⁸⁷⁸ and had been displaced to Garsila,Footnote ¹⁸⁷⁹ were brought to Abd-Al-Hakam.Footnote ¹⁸⁸⁰ A meeting was convened regarding the captives, following which Umdah Kindiri and Umdah Khamis were detained at the prison inside the Garsila SAF base.Footnote ¹⁸⁸¹ According to P-0643, ‘the government considered them to be rebels’.Footnote ¹⁸⁸²

b) Jenif, a Fur man, and the Garsila PDF coordinator, was arrested and detained at the Garsila SAF base based on information received from the Janjaweed that he supported the rebellion.Footnote ¹⁸⁸³

c) Mohamed Suleiman Abdulshafa (also known as ‘Dirbo’), the umdah of Tanako (‘Umdah Suleiman’), a Fur man who fled to Garsila from Tanako, was surrendered to Abd-Al-Hakam.Footnote ¹⁸⁸⁴ Abd-Al-Hakam convened a meeting of the local security committee to discuss Umdah Suleiman. Based on information the security committee had received that Umdah Suleiman was training and assisting the rebels, it determined that he should be detained at the Garsila SAF base.Footnote ¹⁸⁸⁵ The Accused visited Umdah Suleiman at the Garsila SAF base.Footnote ¹⁸⁸⁶

d) The Accused brought Ismail Abdulaziz (known as Ismail Dikobi), the sheikh of the western neighbourhood (‘Sheikh Abdulaziz’), and Hassan Adam Musa, the Accused’s neighbour, to the prison in the Garsila SAF base.Footnote ¹⁸⁸⁷ According to P-0883, it was rumoured that Hassan Adam Musa had complained to Sheikh Abdulaziz that ‘Ali Kushayb’ was having an affair with his wife, and Sheikh Abdulaziz then proposed to the umdah of Garsila, Umdah Eid, that ‘Ali Kushayb’ be forced to swear that he would stop going to Hassan Adam Musa’s house.Footnote ¹⁸⁸⁸

582. Umdah Kindiri, Umdah Khamis and Jenif were subsequently interviewed while in detention and it was determined that they had not committed any crime.Footnote ¹⁸⁸⁹ On Maj Bakhit’s ensuing orders, Umdah Kindiri, Umdah Khamis and Jenifwere released. The three men fled to Deleig to join their families.Footnote ¹⁸⁹⁰

iii. SAF delegation’s visit to Garsila

583. Around early March 2004, prior to the Deleig Operation, a delegation of high-ranking officers arrived at the Garsila SAF base by helicopter.Footnote ¹⁸⁹¹ The delegation was sent by the command in Khartoum to monitor combat operations in the Wadi Salih area.Footnote ¹⁸⁹² The delegation remained in Garsila during the Deleig Operation.Footnote ¹⁸⁹³ During this time, the delegation met in the officers’ mess with the SAF commander, Abd-Al-Hakam, the head of the security apparatus and the police.Footnote ¹⁸⁹⁴ The Accused often accompanied the delegation during its stay.Footnote ¹⁸⁹⁵

584. As to its composition, the delegation included SAF Maj Gen Fa’iz, commander of the 6^th division in Al Fasher, Brigadier General Muhammad Khamis, a Military Intelligence commander in Khartoum, and the head of the PDF in Khartoum.Footnote ¹⁸⁹⁶

iv. Arrival of the forces in Deleig

585. Following the Mukjar Operation, the SAF troops returned to the Garsila SAF base.Footnote ¹⁸⁹⁷ On the instructions of the SAF commander, Maj Bakhit, Muqaddam Idriss instructed the SAF force which had conducted the operation in Mukjar to take a six day rest period and, thereafter, continue its mission in Deleig.Footnote ¹⁸⁹⁸ The same force which conducted the operation in Mukjar deployed to Deleig.Footnote ¹⁸⁹⁹ The operation in Deleig consisted ofa ‘joint deployment’ that included the SAF and the Janjaweed.Footnote ¹⁹⁰⁰

586. Around 5 March 2004,Footnote ¹⁹⁰¹ the Accused arrived at the Garsila SAF base in his vehicle and took custody of Umdah Suleiman, Sheikh Abdulaziz and Hassan Adam Musa.Footnote ¹⁹⁰² During this time, the Accused was heard saying ‘No, I am the commander’ […] ‘I have no time. I can’t wait for an authorisation from the commander. And I have just been with the commander already and I have instructions from him’.Footnote ¹⁹⁰³

587. While there is no direct evidence before the Chamber as to where Umdah Suleiman, Sheikh Abdulaziz and Hassan Adam Musa were transferred that day, the Chamber is satisfied that at least Hassan Adam Musa was detained for an interim period inside Deleig police station until he was removed therefrom on or around 7 March 2004.Footnote ¹⁹⁰⁴ The evidence also leads to the conclusion that Umdah Suleiman and Sheikh Abdulaziz remained in custody from the point at which they were removed from the Garsila SAF base on or around 5 March 2004 to when they were subsequently seen in the custody of the Janjaweed near the Deleig market on or around 7 March 2004.Footnote ¹⁹⁰⁵

588. A short time prior to the Accused’s departure from the Garsila SAF base, a convoy of three vehicles left the base in the direction of Deleig, purportedly bound for Kailek. Lt Hamdi led the convoy in a vehicle belonging to the intelligence services of Zalingei, accompanied by ‘a force’.Footnote ¹⁹⁰⁶ Soon thereafter, a convoy including vehicles used by the Accused and Hassaballah,Footnote ¹⁹⁰⁷ as well as SAF vehicles, departed from the Garsila SAF base in the direction of Deleig.Footnote ¹⁹⁰⁸ Amongst the contingent which deployed to Deleig that day were: the Accused, Lt Hamdi, First Lieutenant Seif-Al-Din Ahmad Ali Bakhit from the intelligence services of Zalingei, Hassaballah, Muqaddam Idriss, P-0905, and SAF Military Intelligence officers, Abd- al-Mun’im, Musaddiq Hassan Mansur (‘Mansur’), Abubakar Abdullah Muhammad Bakhit, Abdallah Musa Abdullah and Bakhit Abdo Maigari (‘Maigari’).Footnote ¹⁹⁰⁹

589. Between the late evening of Thursday 4 March 2004 and the early morning of Friday 5 March 2004, armed Janjaweed and GoS Forces, surrounded Deleig.Footnote ¹⁹¹⁰ Around 07:00 on 5 March 2004, a large number of Janjaweed and GoS Forces entered Deleig.Footnote ¹⁹¹¹ The Accused led this contingent.Footnote ¹⁹¹²

590. Some travelled in open-back khaki coloured Land Cruisers with DShKs mounted at the rear, while others came by horse or camel, or on foot.Footnote ¹⁹¹³ The asakir, or military personnel, could be distinguished by their full khaki uniforms.Footnote ¹⁹¹⁴ Most of the Janjaweed wore regular civilian clothes with items of khaki coloured camouflage military uniform and scarves or turbans wrapped around their heads.Footnote ¹⁹¹⁵

c) Arrest and mistreatment of Fur men and boys in Deleig

591. In this and the subsequent section, the Chamber relies primarily on the evidence of P-0584, P-0585, P-0607, P-0671, P-0712, P-0718, P-0725, P-0736, P-0907, P-0955, P-0973, and P-0994, each of whom observed the events from their respective proximate positions.Footnote ¹⁹¹⁶ The Chamber also relies on the evidence of P-0883 who received information in relation to the role played by the SAF in the Deleig Operation.Footnote ¹⁹¹⁷

592. Janjaweed and GoS Forces blocked access routes and established checkpoints around Deleig, including to the east of the Ansar Al-Sunna mosque at a pre-existing government checkpoint.Footnote ¹⁹¹⁸ They closely controlled all movements, checking those who sought to enter Deleig, and preventing anyone from leaving.Footnote ¹⁹¹⁹

593. From just after 07:00,Footnote ¹⁹²⁰ armed Janjaweed Footnote ¹⁹²¹ and GoS ForcesFootnote ¹⁹²² patrolled the streets of Deleig in Land Cruisers,Footnote ¹⁹²³ on foot and on horseback.Footnote ¹⁹²⁴ The Janjaweed and GoS Forces, in groups of five or six,Footnote ¹⁹²⁵ questioned those who left their homesFootnote ¹⁹²⁶ and conducted house to house searches for weapons and for Fur men and boys who were not from Deleig, and who they suspected of being, or supporting, rebels.Footnote ¹⁹²⁷

594. Lt Hamdi was present and issued instructions relating to the search and arrest operation in Deleig. Thereafter he continued to Kailek.Footnote ¹⁹²⁸ Military Intelligence officers Abd-Al-Mun’im and Mansur assisted in identifying those who came from Arawala and Gaba, where they had previously been deployed.Footnote ¹⁹²⁹ At least one Fur police officer, Abdelkarim Issa, assisted the Janjaweed to identify which Fur men and boys were from Deleig, albeit apparently somewhat unwillingly.Footnote ¹⁹³⁰

595. Members of the Fur community, particularly those who had been displaced to Deleig, were scaredFootnote ¹⁹³¹ and many hid to avoid interrogation and arrest.Footnote ¹⁹³² P-0607 hid in the back of a shedFootnote ¹⁹³³ and P-0725 hid in a dabanga (a small circular grain barrel).Footnote ¹⁹³⁴ P-0726 dressed as a woman in a traditional robe with a veil.Footnote ¹⁹³⁵

596. During the operation, Janjaweed and GoS Forces arrested predominantly FurFootnote ¹⁹³⁶ men and boys on the street,Footnote ¹⁹³⁷ outside mosques,Footnote ¹⁹³⁸ and in houses.Footnote ¹⁹³⁹ Many were arrested without interrogation or explanation.Footnote ¹⁹⁴⁰ Others were questioned about where they came from, their affiliation with rebels, and the whereabouts of weapons, prior to being arrested.Footnote ¹⁹⁴¹ The Janjaweed accused the Fur people of being tora bora, and used denigrating language when addressing them, referring to them as ‘abid’, meaning slave, and ‘himar’, meaning donkey – a particularly demeaning insult in the region.Footnote ¹⁹⁴² One Janjaweed said to P-0736, while gesturing to his uniform, words to the effect: ‘Look, the uniform is dirty, and you are dirty like this, we want to clean you’.Footnote ¹⁹⁴³ The Janjaweed also threatened, beat, kicked and hit with sticks and rifle stocks both men and women while executing the search and arrest operation.Footnote ¹⁹⁴⁴ P-0907, P-0584, P-0736, P-0973 and P-0718 were amongs those who were struck by the Janjaweed.Footnote ¹⁹⁴⁵ P-0584 lost consciousness as a result of the beating he sustained.Footnote ¹⁹⁴⁶

597. Janjaweed and GoS Forces tied the hands of many of the arrested Fur men and boys, and loaded them onto the open backs of Land Cruisers.Footnote ¹⁹⁴⁷ Some detainees were forced to lie face down in the vehicles,Footnote ¹⁹⁴⁸ while others were seated close to one another.Footnote ¹⁹⁴⁹ The vehicles transported the detainees to Deleig police station.Footnote ¹⁹⁵⁰

598. Armed Janjaweed and GoS Forces on foot and horseback herded other groups of Fur men and boys ‘like animals’Footnote ¹⁹⁵¹ to Deleig police station.Footnote ¹⁹⁵² They kicked and beat some of the detainees en route to the police station, using whips and wooden sticks.Footnote ¹⁹⁵³ One group of detainees, including P-0973, was first marched to an open area on the northern outskirts of Deleig, where they were detained face down on the ground for several hours and were randomly beaten by the Janjaweed.Footnote ¹⁹⁵⁴ One member of the Janjaweed stabbed P-0973 in the right arm with a bayonet at the end of his firearm, leaving a scar.Footnote ¹⁹⁵⁵ Some hours later, those detainees were marched to Deleig police station, some 45 minutes’ walk away, where they joined the other detainees.Footnote ¹⁹⁵⁶

599. Amongst those arrested in Deleig by the Janjaweed and GoS Forces on 5 March 2004 were P-0907, P-0584, P-0718 and P-0973.Footnote ¹⁹⁵⁷ Umdah Kindiri and P-0671’s father and brother were also arrested.Footnote ¹⁹⁵⁸

600. Women and some boys and elderly men were spared arrest.Footnote ¹⁹⁵⁹ Some Fur men who were identified as being local to Deleig or related to Deleig residents, such as P-0712, were not arrested.Footnote ¹⁹⁶⁰ Others, including P-0736, escaped arrest by speaking Arabic,Footnote ¹⁹⁶¹ or by bribing the Janjaweed with money.Footnote ¹⁹⁶²

601. The Janjaweed and GoS Forces continued to patrol the streets of Deleig until at least Sunday 7 March 2004.Footnote ¹⁹⁶³ There was no armed resistance to the search and arrest operation,Footnote ¹⁹⁶⁴ and the relatively small number of police in Deleig, many of whom were also Fur, were powerless to stop it.Footnote ¹⁹⁶⁵

The Accused’s involvement in the search and arrest operation

602. Sometime between 09:00 and 10:00 on 5 March 2004, two khaki green open back Land Cruisers mounted with DShKs, arrived outside the house where Umdah Kindiri was staying.Footnote ¹⁹⁶⁶ The Accused, accompanied by four armed men wearing camouflage uniforms, entered the house.Footnote ¹⁹⁶⁷ The Accused looked at Umdah Kindiri, instructed him to stand up and then kicked him.Footnote ¹⁹⁶⁸ He instructed his men to tie Umdah Kindiri’s hands and take him to the vehicle.Footnote ¹⁹⁶⁹ Accordingly, Umdah Kindiri was loaded onto the back of one of the vehicles with his hands bound behind his back.Footnote ¹⁹⁷⁰ The Accused did not say why Umdah Kindiri was being taken away.Footnote ¹⁹⁷¹ Umdah Kindiri’s family members were crying as he was dragged out of the house.Footnote ¹⁹⁷² The Accused instructed Umdah Kindiri’s family to stay inside and warned them that ‘if you step out and follow the vehicles you will be shot’.Footnote ¹⁹⁷³ Shortly thereafter, Umdah Kindiri and Umdah Khamis were seen in the back of the same vehicle, along with ‘soldiers’ and Janjaweed,Footnote ¹⁹⁷⁴ near the well at the market.Footnote ¹⁹⁷⁵ Umdah Kindiri’s family never saw him alive again.Footnote ¹⁹⁷⁶

d) Detention, mistreatment and killing of Fur men and boys at Deleig police station

603. In this section, in addition to P-0584, P-0607, P-0718, P-0907, and P-0973, the Chamber relies on the evidence of other witnesses who followed the events from close proximity, including P-0905 and P-0994.Footnote ¹⁹⁷⁷ The Chamber also relies on the evidence of witnesses who observed the events from some distance away, to the extent that their evidence is supported, including: P-0651, P-0671, P-0725, P-0736, P-0931 and P-0955.Footnote ¹⁹⁷⁸

i. Detention of Fur men and boys outside Deleig police station

604. From around 07:00, Janjaweed and GoS Forces detained the arrested men and boys, aged from around 13 to over 60, in a large unfenced area of about one acre on the south-west side of Deleig police station.Footnote ¹⁹⁷⁹ Upon their arrival outside the police station, or soon thereafter, the detainees were ordered to lie face down on the ground in systematic rows.Footnote ¹⁹⁸⁰ They were not permitted to raise their heads, or to look to either side.Footnote ¹⁹⁸¹ All the detainees appeared to be wearing civilian clothes, including jallabiyas.Footnote ¹⁹⁸² Some had their hands bound behind their backs.Footnote ¹⁹⁸³ Numerous members of the Janjaweed and GoS Forces surrounded the detainees, keeping them under close guard.Footnote ¹⁹⁸⁴ A small number of police were also present in and around the police station, with some serving as guards.Footnote ¹⁹⁸⁵ Several Land Cruisers were parked in the vicinity of the police station.Footnote ¹⁹⁸⁶

605. Members of the Janjaweed and GoS Forces continued to bring detainees to the open area outside the police station throughout the day.Footnote ¹⁹⁸⁷ At least 100 detainees were detained outside Deleig police station on 5 March 2004.Footnote ¹⁹⁸⁸

ii. Arrival of the Accused at Deleig police station

606. The Accused arrived at Deleig police station on 5 March 2004 some time before 13:00.Footnote ¹⁹⁸⁹ The Accused’s Land Cruiser was parked under a labob tree, near the police station.Footnote ¹⁹⁹⁰

607. The Accused commanded the Janjaweed at Deleig police station that day.Footnote ¹⁹⁹¹ Others present at the police station included Abd-Al-Mun’im, Muqaddam Idriss and Hassaballah.Footnote ¹⁹⁹² Following his arrival at the police station, the Accused patrolled the area around the prone detainees, talking to them.Footnote ¹⁹⁹³ P-0905 overheard the Accused saying words to the effect, ‘You escaped from Arawala and then you came here […] even ifyou fly to the sky I will get you’.Footnote ¹⁹⁹⁴

iii. Mistreatment of Fur men and boys outside Deleig police station

608. It was a hot day and the detainees were forced to lie on the ground in the sun for several hours.Footnote ¹⁹⁹⁵ The detainees received no food or water and were denied all requests, including access to a toilet.Footnote ¹⁹⁹⁶ When P-0584 asked a guard for water, he responded that there was no water for them because they were like ‘insects’,Footnote ¹⁹⁹⁷ and when P-0584 requested to go to the toilet, he was told to urinate on himself.Footnote ¹⁹⁹⁸ P-0584 subsequently asked a guard if he could perform the prayer, but was told, ‘[n]o, you are going to pray in a completely different world today’.Footnote ¹⁹⁹⁹

609. While the detainees were lying on the ground, the Janjaweed walked on their backs,Footnote ²⁰⁰⁰ stamped on them,Footnote ²⁰⁰¹ and hit them with fists, whips and sticks.Footnote ²⁰⁰² The Janjaweed ‘had no mercy’,Footnote ²⁰⁰³ and if they saw the detainees lifting their heads or looking around, they would hit them or stamp on their heads.Footnote ²⁰⁰⁴ When P-0907 raised his head, a member of the Janjaweed beat him in the back with a stick, which he held with both hands as if he was ploughing the land.Footnote ²⁰⁰⁵ One ‘army soldier’ referred to a Fur detainee, Abdallah Mussa, known as Mulenqwe (‘Mulenqwe’), as ‘tora bora’ and then stabbed him in the eye with a bayonet.Footnote ²⁰⁰⁶

610. The Accused stepped on the detainees lying on the ground with his shoesFootnote ²⁰⁰⁷ and struck them with his stick-like object.Footnote ²⁰⁰⁸ P-0907 gave evidence that the Accused walked on his back and the backs ofother detainees ‘as ifhe was walking on trees’.Footnote ²⁰⁰⁹

iv. Killings of detainees at Deleig police station

Killing of Jenif

611. Sometime later that day, the Accused stood at the entrance of the detention room inside the police station where Jenif was held.Footnote ²⁰¹⁰ Abd-Al-Mun’im, Muqaddam Idriss and Hassaballah were also present. The Accused asked Jenifwhere he took the PDF’s ammunition and weapons.Footnote ²⁰¹¹ Jenif responded that he did not take any ammunition or weapons, stating that everything was still in the storeroom of the municipality. Hassaballah told the Accused that Jenif took the weapons and ammunition and gave them to the tora bora in Arawala.Footnote ²⁰¹² Then, according to P-0905, the Accused said to Jenifwords to the effect of: ‘You’re a liar. You didn’t leave a single shot or a single weapon in the storeroom. You took everything in a vehicle to them. And Hassaballah is a witness. And then you escaped from there, you escaped to […] Arawala’.Footnote ²⁰¹³ The Accused told the first sergeant of the Deleig police station to get Jenif out of the detention room. The first sergeant opened the cell and when Jenif came out, the Accused hit him with his axe three times on the side of his head.Footnote ²⁰¹⁴ P-0905 recalled that as he did so, the Accused stated: ‘I’m not going to even spend one single shot on you because shots are expensive, we pay money for it. So all what I’m going to use is this axe’.Footnote ²⁰¹⁵ Jenif fell to the ground, bleeding very heavily from his nose, mouth and the wounds on his head. Jenif died some 10 minutes later.Footnote ²⁰¹⁶ The Accused then told the first sergeant to lift him up and throw him outside.Footnote ²⁰¹⁷

Killing of Adam Adam Abd-Al-Rahman (‘Sheikh Motor’)

612. Sometime after 13:00, Adam Adam Abd-Al-Rahman, the sheikh of Massa, also known as ‘Sheikh Motor’, was brought to the police station with a group of about six or seven people.Footnote ²⁰¹⁸ P-0907 recalled how the Accused asked Sheikh Motor who he was, to which he replied, ‘I am a sheikh.’Footnote ²⁰¹⁹ The Accused responded with words to the effect of, ‘[y]ou are a very fat person. You must have eaten people’s money or taken people’s money’.Footnote ²⁰²⁰ The Accused then struck Sheikh Motor in the head with the same axe he had used to hit Jenif, causing Sheikh Motor to fall to the ground.Footnote ²⁰²¹ Sheikh Motor lay on the ground making ‘a noise like someone who had been electrocuted’, before falling silent.Footnote ²⁰²² The Accused instructed his men from the Janjaweed to throw Sheikh Motor in the back of a vehicle.Footnote ²⁰²³ Four members of the Janjaweed lifted Sheikh Motor’s motionless body by the hands and legs and threw him in the back of a vehicle.Footnote ²⁰²⁴ Sheikh Motor died as a result of being struck by the Accused.Footnote ²⁰²⁵ Mohamed Issa Yusef and Abdelmawla Musa Abdullah were on the same vehicle, which transported the men to the execution site near Koska.Footnote ²⁰²⁶

v. Questioning and release from Deleig police station of some Fur men and boys

613. Throughout the course of the afternoon, a number of detainees were released from the area outside Deleig police station.Footnote ²⁰²⁷ While detained on the ground, some detainees were questioned, seemingly randomly, in Arabic, about who they were, where they were from and what they did.Footnote ²⁰²⁸ Some stated they were students and were permitted to leave.Footnote ²⁰²⁹ Another group of detainees, including P-0607, was told – without explanation – to stand up, turn to face the village, and leave the immediate area quickly, without looking back.Footnote ²⁰³⁰

614. Some detainees were released following the intervention of the Janjaweed, police and umdahs who recognised them. P-0907 gave evidence that the Janjaweed called certain people they knew, and that the Janjaweed suggested that they select and release people who had money, hoping to obtain money from them.Footnote ²⁰³¹ P-0907 subsequently heard that Umdah Adam Ismail also negotiated with the Janjaweed for the release of some children.Footnote ²⁰³² This is consistent with the account given to P-0712 by his classmate, who reported that at the police station, the Janjaweed ordered ‘Umdah Adam’ to identify P-0712’s classmate. Umdah Adam, in addition to a Fur police officer, Abdelkarim Issa, confirmed P-0712’s classmate was from Deleig, after which he was released.Footnote ²⁰³³

615. P-0994 gave evidence that he recognised some detainees being held outside the police station and managed to secure their release.Footnote ²⁰³⁴ He explained to various Janjaweed members – unofficially – that he knew these detainees very well and that they were innocent people who lived in his neighbourhood in Deleig and had never committed any crimes.Footnote ²⁰³⁵ According to P-0994, if the Janjaweed agreed to the release of a detainee, P-0994 looked around and then told the detainee to run away.Footnote ²⁰³⁶ P-0994 could not recall the names of all the released persons, but referred to two men by their first names, Adam and Badreddine, and two men nicknamed ‘Soor’ and ‘Mo’alem’.Footnote ²⁰³⁷

616. P-0584 gave evidence that, while lying on the ground, he pleaded with a policeman wearing a dark blue uniform to release him because he had been in the wrong area at the wrong time.Footnote ²⁰³⁸ The policeman asked P-0584 where he was from and he lied, saying he was from Beige.Footnote ²⁰³⁹ P-0584 was taken to an office in the police station, where he was questioned about his identity and village.Footnote ²⁰⁴⁰ A man in civilian clothes checked what appeared to be a handwritten register in a bookFootnote ²⁰⁴¹ but, as the name P-0584 had provided was apparently not listed, he was released.Footnote ²⁰⁴² P-0584 stated that after his release, about 200 metres from the police station, he was confronted by the Janjaweed, who accused him of being from the ‘tora bora’ and beat him.Footnote ²⁰⁴³ Although he explained he had just been released, they arrested him again and took him back to the area outside the police station, where he was again ordered to lie on his stomach, face down.Footnote ²⁰⁴⁴ P-0584 gave evidence that ‘[t]hey dealt with us as insects. They did not have any respect for us’.Footnote ²⁰⁴⁵

vi. Loading of detainees onto vehicles at Deleig police station

617. Sometime between 16:00 and 17:00,Footnote ²⁰⁴⁶ the Accused was in the open area outside the police station where the detainees remained lying on the ground.Footnote ²⁰⁴⁷ P-0905 recalled that the Accused instructed ‘his men’ to load the detainees onto awaiting Land Cruisers.Footnote ²⁰⁴⁸ Janjaweed and GoS Forces shoved the detainees forcefully onto the open backs of at least two Land Cruisers,Footnote ²⁰⁴⁹ without questioning them, while beating the detainees with anything they had, such as their boots, whips and wooden sticks.Footnote ²⁰⁵⁰ Some of the detainees climbed into the vehicles themselves, while others were picked up by two members of the Janjaweed by the feet and head and thrown into the back of the vehicles, ‘like bags ofgrain’.Footnote ²⁰⁵¹ The detainees were packed tightly in the open backs of the vehicles. Some detainees were seated,Footnote ²⁰⁵² while others were forced to lie on their fronts on top of one another.Footnote ²⁰⁵³ The Accused supervised the process, counting the number of men being loaded onto the vehicles until the capacity of each vehicle was reached.Footnote ²⁰⁵⁴

618. Children as young as 13 or 14 years old were among those loaded onto the vehicles.Footnote ²⁰⁵⁵ P-0907 recognised the son of Issa Harun, who was around 13 or 14 years old, being loaded onto the first vehicle. When Issa Harun protested and demanded that the Accused release his son, he refused. P-0907 recalled that Issa Harun then responded with words to the effect, ‘I will go wherever you take my son’, so the Accused told him to get onto the vehicle.Footnote ²⁰⁵⁶ Both Issa Harun and his son were subsequently taken to an execution site and were killed.Footnote ²⁰⁵⁷

619. Each vehicle had a driver, one of whom P-0994 identified as the Accused’s driver, Hussein, and between two to six armed men, who served as guards.Footnote ²⁰⁵⁸ Most of the guards were in uniform, but some wore civilian clothes and some kind of head cover.Footnote ²⁰⁵⁹ When the vehicles were loaded to capacity, with 20 to 30 detainees each,Footnote ²⁰⁶⁰ they departed from the police station.Footnote ²⁰⁶¹ Within approximately one hour,Footnote ²⁰⁶² the vehicles returned to the police station, empty but for Janjaweed and GoS Forces, to collect more detainees.Footnote ²⁰⁶³ At least four groups of detainees were transported from the police station over the course of the afternoon of 5 March 2004.Footnote ²⁰⁶⁴ The last batch of detainees was transported from the police station before sunset.Footnote ²⁰⁶⁵ Not all detainees being held outside the police station were loaded onto the vehicles,Footnote ²⁰⁶⁶ as there were too many detainees and too few vehicles.Footnote ²⁰⁶⁷

620. While P-0907 and P-0994 heard the Accused issue instructions for the detainees to be taken to Garsila,Footnote ²⁰⁶⁸ the vehicles departed the police station in different directions, transporting the detainees to several locations outside Deleig, where they were killed.Footnote ²⁰⁶⁹ The sequence of events by which the detainees were removed from the police station and executed is not entirely clear. P-0907 observed that sometimes the Accused was having ‘side conversations secretly’Footnote ²⁰⁷⁰ with his men, while P-0994 surmised that the reference to Garsila was a ‘passcode’.Footnote ²⁰⁷¹

621. The Accused was present at the police station for much of the afternoon. However, on one or two occasions, he left the police station in one of the vehicles which was part of the first or second sets of transport of detainees to the execution sites.Footnote ²⁰⁷²

e) Summary executions of detainees outside Deleig on 5 March 2004

i. North-west of Deleig, near Fere

622. In this section, the Chamber primarily relies on the evidence of P-0905, who observed the events from a proximate position.Footnote ²⁰⁷³ The Chamber also relies upon the evidence of P-0935,Footnote ²⁰⁷⁴ who received second hand accounts of the Deleig Operation.Footnote ²⁰⁷⁵ Additionally, the Chamber relies on the evidence of P-0651, P-0671, P-0712, and P-0994, who gave evidence on the aftermath of the operation.Footnote ²⁰⁷⁶

623. In the afternoon of 5 March 2004, a convoy of approximately 13 Land Cruisers departed from the police station, collectively carrying at least 70 to 80 detainees.Footnote ²⁰⁷⁷ The convoy travelled in a north-westerly direction, taking the road towards Zalingei to exit Deleig.Footnote ²⁰⁷⁸ It crossed the wadi (valley) of Deleig and then continued in a westerly direction. The convoy stopped not far from the main road of Deleig-Zalingei, close to the wadi of Deleig, in a location identified by the Accused.Footnote ²⁰⁷⁹ In addition to the Accused, Muqaddam Idriss, Abd-Al-Mun’im, P-0905, Hassaballah, and members of the Janjaweed and GoS Forces were among those present at this location.Footnote ²⁰⁸⁰

624. The Accused issued instructions for the detainees to be taken off the vehicles.Footnote ²⁰⁸¹ The detainees were then made to lie on their stomachs on the ground in a line.Footnote ²⁰⁸² Adopting military language, the Accused issued instructions for ‘the convoy’ to ‘execute the instructions’, which P-0905 understood to mean shoot at the detainees.Footnote ²⁰⁸³ Using Kalashnikovs and one Goryunov machine gun, members of the convoy shot dead all of the detainees present.Footnote ²⁰⁸⁴ Following the killings, the bodies were left on the ground.Footnote ²⁰⁸⁵ Members of the Janjaweed and the SAF participated in the killings.Footnote ²⁰⁸⁶

625. Around 6 March 2004, villagers discovered bodies at a site north-west of Deleig ‘near Fere’ and buried them in a mass grave. Recalling the approximate location of the site P-0905 marked on the satellite image, not far from Fere, the Chamber is satisfied that the location described by the villagers is the same execution site.Footnote ²⁰⁸⁷

ii. South of Deleig, in the area of Koska

626. In this section, the Chamber principally relies on the evidence of P-0584 and P-0907, both of whom, from their respective proximate positions, closely observed the events.Footnote ²⁰⁸⁸ The Chamber also relies on the evidence of P-0725, who saw a survivor of the killings when the latter returned to Deleig, in addition to P-0651 and P-0671, who observed corpses at the execution site in the days following the killings.Footnote ²⁰⁸⁹

627. Between 16:00 and 17:00,Footnote ²⁰⁹⁰ at least two vehicles transported at least 40 to 45 detainees from Deleig police station towards Koska.Footnote ²⁰⁹¹ Koska is an area located between two mountains, approximately two kilometres south-west of Deleig, on the road to Garsila.Footnote ²⁰⁹² Janjaweed and GoS Forces guarding the detainees on the vehicles hit the detainees during the journey.Footnote ²⁰⁹³ One of the detainees managed to escape during the journey by jumping from the vehicle in which he was being transported, evading gunshots from the guards as he fled and sought cover in a tree.Footnote ²⁰⁹⁴

628. In the valley of Koska, the vehicles drove through grassFootnote ²⁰⁹⁵ and stopped in an area where there were many short treesFootnote ²⁰⁹⁶ near the mountain of Koska.Footnote ²⁰⁹⁷ Janjaweed and GoS ForcesFootnote ²⁰⁹⁸ removed the detainees from the vehicles one by oneFootnote ²⁰⁹⁹ and told them to lie on their stomachs on the ground.Footnote ²¹⁰⁰ The Janjaweed and GoS Forces threatened to kill the detainees if they did not tell them about people carrying weapons. The detainees responded that they did not see or hear of anyone carrying weapons.Footnote ²¹⁰¹ Surrounding the prone detainees, from a distance of approximately five steps away, the Janjaweed and GoS Forces started shooting the detainees, then stopped, then resumed shooting.Footnote ²¹⁰² Most of the detainees were shot in the head and shoulder, while at least two were shot in the abdomen area.Footnote ²¹⁰³ After the shooting had ceased, the Janjaweed and GoS Forces started smoking and chatting.Footnote ²¹⁰⁴ They checked that the detainees were dead, shooting those who were not.Footnote ²¹⁰⁵ The vehicles, empty, but for the guards, subsequently returned along the same road.Footnote ²¹⁰⁶

629. One man, who was covered with the body and blood of another detainee, survived the shooting uninjured, and two other men, Adam Ahmad Abakar Musa (‘Abakar Musa’) and Mulenqwe, survived the execution, but were gravely injured.Footnote ²¹⁰⁷ It appeared as though everyone else was dead.Footnote ²¹⁰⁸

630. After nightfall, en route to Deleig, two groups of bodies were found along the side of the road.Footnote ²¹⁰⁹ There was a first group of 13 bodies and a second group of bodies, not far from the first.Footnote ²¹¹⁰ The victims were wearing jallabiyas, which were white in colour.Footnote ²¹¹¹

631. Later that evening, at the execution site near Koska, Mulenqwe was found alive but gravely injured.Footnote ²¹¹² Mulenqwe returned to Deleig.Footnote ²¹¹³ After the sunset prayer, but before midnight that night, Mulenqwe entered a small mosque in Deleig, about twenty minutes’ walk from the Ansar Mosque.Footnote ²¹¹⁴ Mulenqwe was in a terrible condition. He had what appeared to be a gunshot wound to his temple and a hole through his eye socket, which was bleeding heavily. His right hand was missing three fingers. Mulenqwe told those gathered at the mosque that everyone who had been taken away from Deleig had been killed. Mulenqwe died later that night.Footnote ²¹¹⁵

632. Within the next few days, villagers from Deleig, including P-0651 and P-0671, came across an execution site about thirty minutes’ walk south of Deleig, near Tolda mountain.Footnote ²¹¹⁶

633. At the execution site, the villagers found at least 40 to 42 male bodies, in civilian clothes, in a khor.Footnote ²¹¹⁷ Most of the bodies were lying face down, in a row, but some were twisted on their sides and backs. The bodies bore gunshot wounds to the head and back and were surrounded by a large amount of dried blood. There was a strong smell in the area.Footnote ²¹¹⁸ Some of the bodies had their hands tied behind their backs.Footnote ²¹¹⁹ The villagers dug graves and buried the bodies in groups of two or three.Footnote ²¹²⁰

634. In addition to Mulenqwe, Abakar Musa,Footnote ²¹²¹ Issa Harun and his son,Footnote ²¹²² the following victims were identified amongst those who were executed at Koska: Musa Mohamed Yahia, Mohamed Siddiq Yusef, Abu Bakar Suleiman Abakar and Zakaria Abdelmawla Abakar, both of whom were no more than 12 or 13 years old, and Mohamed Mohamed Adam.Footnote ²¹²³ Mohamed Issa Yusef, Abdelmawla Musa Abdullah and Sheikh Motor were taken to the execution site in a different vehicle.Footnote ²¹²⁴ P-0584 identified Omar Siddiq Abbakar Ishaq, among the victims.Footnote ²¹²⁵ P-0671 identified the bodies of his father and brother at the Koska execution site, despite their swollen faces.Footnote ²¹²⁶ P-0651 later learnt that Saleh-Al-Din Adam and Mohamed Adam were also among the victims.Footnote ²¹²⁷

f) Continued detention and mistreatment of detainees inside the police station and release thereof

635. As the vehicles transporting detainees from Deleig police station reached capacity, the Janjaweed instructed some of the remaining detainees to line up and go inside the police station.Footnote ²¹²⁸ The detainees were placed in a windowless jail cell inside the police station.Footnote ²¹²⁹ The brick cell was approximately five metres wide by six metres long and was densely packed with detainees.Footnote ²¹³⁰ The cell was hot and was so crowded that some detainees were lying on top of one another.Footnote ²¹³¹ Most detainees were unable to sit properly and crouched, their faces so close together that it was hard to breathe.Footnote ²¹³² The Janjaweed tried to cram more detainees into the cell, but they could not fit.Footnote ²¹³³

636. Amongst those detained in the police station were P-0973, Umdah Khamis, Umdah Kindiri, Hassan Adam Musa, Aboud Adam Ali and Badreddine Adam Mohammed Abdul Mula.Footnote ²¹³⁴ P-0973 gave evidence that Umdah Jiddo Khamis preached to everyone to remain calm.Footnote ²¹³⁵ P-0994 recalled that on 5 March 2004, while Umdah Kindiri was detained in the cell, he heard the Accused saying to him, ‘[t]his is your last day on earth, get ready for the al- qiyamah’ (the doomsday or judgment day), which P-0994 understood to mean death.Footnote ²¹³⁶

637. While the period of detention of the detainees inside the police station varied, most were held for between one to four days.Footnote ²¹³⁷ The detainees were forced to defecate where they crouched.Footnote ²¹³⁸ They were denied food and water, but for some peanuts given to them by a police officer.Footnote ²¹³⁹ P-0973 gave evidence that the detainees ‘were treated as animals’.Footnote ²¹⁴⁰

638. In addition to the intolerable conditions inside the police cell, some detainees were also physically mistreated. P-0973 gave evidence that he and Aboud Adam Ali were ordered to leave the cell and enter the rear of a vehicle with some armed Janjaweed.Footnote ²¹⁴¹ They were driven to an area just outside Deleig, where P-0973 had initially been detained before being brought to the police station.Footnote ²¹⁴² There, the Janjaweed beat P-0973 in the face and right ear, which caused bleeding and some permanent hearing issues. The Janjaweed also tied a metallic-type rope around his neck, pulling him with it. As they were doing this, the Janjaweed asked P-0973 why he was not killed like the others.Footnote ²¹⁴³ Some time later, the umdah of Deleig, Umdah Adam Ismail, arrived at the location where P-0973 was being held, as he was supposed to confirm that P-0973 was from Deleig. The Janjaweed immediately started whipping and abusing the umdah, who then ran away.Footnote ²¹⁴⁴

639. Some ‘males from the military’, dressed in military uniform, subsequently instructed P-0973 and Aboud Adam Ali to stand up.Footnote ²¹⁴⁵ There appeared to be an argument between the Janjaweed and the military personnel, but P-0973 could not determine what was being said.Footnote ²¹⁴⁶ The military personnel walked P-0973 and Aboud Adam Ali back to the police station and said to the Janjaweed and police there that if the detainees were from Deleig, they could leave and if not they should be taken prisoner.Footnote ²¹⁴⁷ P-0973 was returned to the police cell.Footnote ²¹⁴⁸

640. On Tuesday 9 March 2004, the Director of Deleig High School, ‘Mr Ismail’, attended the police station. P-0973, who was positioned near the cell door, overheard Mr Ismail speaking with Juma, a police officer, and a member the Janjaweed, and identifying P-0973 as his student. Mr Ismail provided some money to the Janjaweed, who then released P-0973.Footnote ²¹⁴⁹

g) Execution of community leaders and other detainees near Fere around 7 March 2004

641. In this section, the Chamber relies primarily on the evidence of P-0907, P-0973 and P-0994, who observed the events from their respective proximate positions.Footnote ²¹⁵⁰ The Chamber also refers to the accounts of multiple witness of the disappearance of the community leaders.

642. On the morning of 7 March 2004, several detainees, including Umdah Khamis, Umdah Kindiri and Hassan Adam Musa,Footnote ²¹⁵¹ were removed from the cell inside Deleig police station and were placed on the open back of a khaki coloured vehicle with a mounted DShK. P-0973 observed, through the open bars of the cell door, that the vehicle appeared to be the same as the vehicle onto which detainees were loaded outside Deleig police station two days prior. About four hours later, the same vehicle returned to the police station without the detainees.Footnote ²¹⁵²

643. That same morning,Footnote ²¹⁵³ P-0994 saw a Land Cruiser, in the back of which were six men, parked next to a restaurant at the Deleig market. P-0994 identified the men as Umdah Khamis, Umdah Suleiman, Umdah Kindiri, Sheikh Abdulaziz, Hassan Adam Musa, and Sherif Mohammedin (collectively, ‘community leaders’). Some of the community leaders wore jallabiyas, while Umdah Kindiri wore an araguiya.Footnote ²¹⁵⁴ P-0994 saw ‘the Accused and his driver Hussein’.Footnote ²¹⁵⁵ Other members of the Janjaweed were standing in proximity of the vehicle.Footnote ²¹⁵⁶ P-0994, who was physically ‘very close’ to the Accused at the time, saw and heard Salah Ismail (alias Mohammed Ismail), another police officer, trying to persuade the Accused to release Sherif Mohammedin.Footnote ²¹⁵⁷ P-0994 heard the Accused agree to release Sherif Mohammedin and instruct him to get out of the back of the vehicle.Footnote ²¹⁵⁸ P-0994 then heard the Accused instructing another Janjaweed, Umdah Abdallah Senousi, to take the detainees to catch up with the buses moving towards Nyala.Footnote ²¹⁵⁹ P-0994 observed Umdah Abdallah Senousi getting into the vehicle with other Janjaweed and driving off in a north-western direction.Footnote ²¹⁶⁰ The Accused and some of his subordinates remained where they were.Footnote ²¹⁶¹

644. That morning, P-0907, who was on a bus bound for Nyala, saw the vehicle with people which had transported detainees to the execution sites two days prior, along with around seven or eight people in the back, whom he identified as ‘the umdahs’, including Umdah Kindiri.Footnote ²¹⁶²

645. In the days that followed, word spread amongst the local population that the community leaders had been killed near Fere.Footnote ²¹⁶³ After 7 March 2004, these men were never seen alive again.Footnote ²¹⁶⁴

646. There is no direct evidence before the Chamber that the community leaders were killed. However, the Chamber is satisfied that the community leaders were last seen in the back of a Land Cruiser, in the custody of Janjaweed, in the vicinity of the Deleig market around 7 March 2004.Footnote ²¹⁶⁵ Multiple witnesses gave evidence that they learned soon thereafter that the community leaders were killed near Fere.Footnote ²¹⁶⁶ The community leaders have not since been seen alive.Footnote ²¹⁶⁷ Having regard to the totality of the evidence, including the surrounding context and circumstances, the Chamber is satisfied that the only reasonable conclusion is that the Janjaweed killed the community leaders on or around 7 March 2004.

h) Destruction of mass graves and execution sites

647. In this section, the Chamber relies on the evidence of P-0651 and P-0671, who saw corpses at the execution sites.Footnote ²¹⁶⁸ The Chamber also relies on the evidence of P-0883, P-0712 and P-0116, who received information in relation to the corpses being moved and the destruction of mass graves at the execution sites.Footnote ²¹⁶⁹

648. Following the killings, the bodies at each of the execution sites were left where they were, unburied.Footnote ²¹⁷⁰ Upon discovery of the corpses near Fere and Koska, members of the community buried the dead.Footnote ²¹⁷¹

649. The commander in Zalingei ordered the Accused to return and bury the corpses of the people who were shot at ‘Soja mountain’. He further stated that the Accused and his forces subsequently returned to the site to bury the corpses.Footnote ²¹⁷² Approximately one week after the killings, the PDF commander from Zalingei ordered the Accused to move the corpses from the execution site to a different location.Footnote ²¹⁷³ P-0883 understood that this was because an international organisation had learned of the locations of the corpses and the PDF wanted to conceal the evidence of the killings.Footnote ²¹⁷⁴ Camels were hired and people were promised a good reward to undertake the task of digging up and moving the corpses.Footnote ²¹⁷⁵ P-0883 stated that one person told him that the Accused gave him a bag of sugar and one hundred thousand pounds for completing the difficult task.Footnote ²¹⁷⁶

650. According to villagers in Deleig, the Commissioner of Garsila, Abd-Al-Hakam, a representative of the government who was associated with the Janjaweed,Footnote ²¹⁷⁷ threatened the villagers that they would be punished if they assisted any humanitarian or international organisations to locate the execution sites.Footnote ²¹⁷⁸ However, when Abd-Al-Hakam realised that the whole village knew about the execution sites, he ordered the Janjaweed to exhume the corpses and destroy any trace of the killings.Footnote ²¹⁷⁹ P-0116 also heard from many Fur people who were displaced to the IDP camps that Abd-Al-Hakam was responsible for the destruction of mass graves in the Wadi Salih area. He was told that large tents were erected, graves were exhumed and many bodies were subsequently burned.Footnote ²¹⁸⁰ According to P-0116, Abd-Al-Hakam had a close relationship with ‘Ali Koshib’, although he did not know if‘Koshib’ was involved in the destruction of the graves.Footnote ²¹⁸¹

651. On the basis of the above, the Chamber is satisfied that steps were taken to destroy, conceal or relocate bodies from at least one of the execution sites. However, noting that the evidence before it on this matter is indirect, vague and inconsistent, the Chamber does not draw any conclusions in relation to the perpetrators of these acts.

D. Aftermath of the events

652. Following the Kodoom and Bindisi, Mukjar and Deleig Operations, victims suffered long term physical injuries and psychological harm. The injuries worsened as no medical care was available.Footnote ²¹⁸² Victims of rape in particular still experience physical pain from the rapes they had to endure.Footnote ²¹⁸³ A second attack on Kodoom and Bindisi resulted in a new wave of displacement.Footnote ²¹⁸⁴ Many rape victims remain isolated and not ‘belong[ing] to the society’ due to feeling ashamed.Footnote ²¹⁸⁵ One witness said of the impact of witnessing the torture of the detainees at Deleig police station that it was a painful date that he will remember until the day of judgment.Footnote ²¹⁸⁶

653. The pillaging of property in Bindisi market was most severe as many Fur people relied on this market, including those from surrounding villages, since there is no market in Kodoom.Footnote ²¹⁸⁷ The intentional burning and looting of farms and food sources resulted in victims being left without the means to sustain themselves.Footnote ²¹⁸⁸ The destruction of homes and livelihoods represented more than a loss of shelter and property for the victims: it severed their ties to the land.Footnote ²¹⁸⁹

654. After the summary executions outside ofMukjar, the remaining detainees were released from the police station,Footnote ²¹⁹⁰ some following payments by their families.Footnote ²¹⁹¹

655. People were forbidden to leave Mukjar,Footnote ²¹⁹² and for about a month after the summary executions, the GoS Forces continued to conduct roll calls: men had to sit outside while their houses were searched.Footnote ²¹⁹³ Men continued to be arrested and killed by GoS Forces in Mukjar after the summary executions.Footnote ²¹⁹⁴

656. The execution of the sheikhs and umdahs, in particular had a significant impact on the Fur communities in Mukjar and Deleig, given their symbolic and substantive role and importance.Footnote ²¹⁹⁵ These leaders offered guidance, resolved disputes, and maintained communal cohesion.Footnote ²¹⁹⁶ This loss left many in the Fur community without the leaders on whom they were dependent in their daily life.Footnote ²¹⁹⁷

657. As a result of the operations in Kodoom, Bindisi, Mukjar and Deleig, many people left the regionFootnote ²¹⁹⁸ and took refuge in camps for displaced persons, such as Kalma, or sought refuge in Chad.Footnote ²¹⁹⁹ The displaced persons lived in difficult conditions with illnesses spreading, which impacted the elderly and children in particular, leading to a number of deaths.Footnote ²²⁰⁰

IV. THE ACCUSED’S POSITION OF AUTHORITY AND INFLUENCE IN 2003 AND 2004

658. The Chamber recalls its finding that the Accused was also known as ‘Ali Kushayb’.Footnote ²²⁰¹ Accordingly, in considering the Accused’s position within the Janjaweed, the Chamber relies upon the evidence of witnesses who refer to him as either Abd-Al-Rahman or ‘Ali Kushayb’, including the various transliterations of these names.

659. The evidence which establishes the Accused’s position of authority and influence during the charged events falls into several categories.

A. His relationship with the leadership of the GoS

660. Before the Janjaweed attacks, the Accused attended meetings between August 2003 and February 2004 at the Garsila SAF base and the Mukjar locality building with senior GoS officials at the state and locality levels, such as Minister Harun, Maj Gen Suleiman Abdullah and Torshein, as well as with senior and mid-level GoS officials from the SAF, the PDF and the CRF.Footnote ²²⁰² At one of these meetings, senior GoS officials Minister Harun and Ali Karti publicly expressed their support for the Janjaweed,Footnote ²²⁰³ and the Accused was heard saying ‘on behalf of the Janjaweed’ that ‘the Janjaweed were there to defend the property of the government and that they were alongside the armed forces’.Footnote ²²⁰⁴ Soon after these meetings, the Janjaweed, under the Accused’s command, carried out attacks in Mukjar, and in several locations between Mukjar and Sindu.Footnote ²²⁰⁵

661. Senior GoS officials, such as Minister Harun, requested the Accused’s presence at other meetings and at the distribution of salaries to the Janjaweed. P-0883 stated that every time Minister Harun visited Garsila he would seek the Accused’s presence at meetings.Footnote ²²⁰⁶ P-1021 indicated that the GoS, through Minister Harun, would give the Accused salaries for the Janjaweed. He further stated that after the rebel attack, he saw Minister Harun delivering salaries in the Mukjar locality, and that Minister Harun called on the Accused telling him ‘I’ve received the salaries’.Footnote ²²⁰⁷

662. Several witnesses working for the GoS gave evidence that the Accused received instructions from the ‘government’, from ‘higher-ups’ and from the Ministry of Interior.Footnote ²²⁰⁸ P-0643 stated that the Accused ‘implemented the orders of the government’.Footnote ²²⁰⁹ P-0874 said that the Accused ‘was working for the government’ and further stated that when Ministers Hussein and Harun would fly to the area by aircraft, the Accused was among the persons attending meetings and taking ‘part in decision-making’.Footnote ²²¹⁰ P-0883 indicated that the Accused ‘got his orders from the command’ and that the instructions he received ‘came directly from the ministry of interior’.Footnote ²²¹¹ P-0935 stated that the Accused ‘got his orders from higher- ups’.Footnote ²²¹² Importantly, on one occasion, when declining an invitation to join a meeting of the Mukjar Security Committee, the Accused himself was heard stating that ‘[his] instructions [came] from the top’ and that he ‘only took instructions from Harun and Hussein’.Footnote ²²¹³ Similarly, at a meeting at Mukjar police station immediately prior to the transport of detainees, the Accused was heard saying to Torshein that he was getting direct orders and instructions from Minister Harun.Footnote ²²¹⁴

663. On the basis of the circumstances surrounding the Janjaweed attacks led by the Accused, the consistent and clear evidence given by several witnesses, and the statements made by the Accused himself, the Chamber is satisfied that the Accused received instructions from senior GoS officials, including Ministers Hussein and Harun, to carry out military operations.

B. His relationship with the GoS Forces at the locality level

664. GoS officials at the locality level either directly provided supplies such as weapons, ammunition and food for horses to the Accused for the Janjaweed or issued instructions to this effect. For example, a letter signed by Abd-Al-Hakam instructed Abd-Al-Jabbar to give the Accused and the Janjaweed several sacks of corn as food for the horses of the Janjaweed.Footnote ²²¹⁵ While in Kodoom, in the context of the Kodoom and Bindisi Operation, Lt Col Himeidan instructed P-0921 to give ammunition to the Accused.Footnote ²²¹⁶ P-0643 stated that the Accused was receiving weapons for the Janjaweed from Lt Hamdi.Footnote ²²¹⁷

665. The Accused cooperated in other ways with GoS officials at the locality level. At the Garsila SAF base, the Accused frequently met with Lt Hamdi and other high-ranking officials from Khartoum.Footnote ²²¹⁸ P-0883 described Lt Hamdi’s relationship with the Accused as ‘close’.Footnote ²²¹⁹ The Accused also provided intelligence which led to the arrest and detention of suspected rebels.Footnote ²²²⁰

666. Moreover, the Accused was invited to attend meetings of the MukjarFootnote ²²²¹ and Garsila Security Committees. The Garsila Security Committee would summon or invite the Accused in order to seek information from him about the insurgency. On the basis of this information, the Committee would take action, such as providing support to the Janjaweed or ordering the arrest of suspected rebels.Footnote ²²²²

667. Furthermore, the Accused was a member of, and participated in, important GoS decision-making bodies related to counter-insurgency efforts at the locality level. The Accused was the head of the Mujahidin Committee,Footnote ²²²³ a sub-committee of the Mobilisation Committee in Wadi Salih,Footnote ²²²⁴ which was in charge of mobilising, organising and preparing the Janjaweed for ‘war’.Footnote ²²²⁵ He was appointed to that position by the Commissioner of Wadi Salih, Abd-Al-Hakam.Footnote ²²²⁶ Similarly, the Accused was a member of the larger Mobilisation Committee,Footnote ²²²⁷ which was in charge of the mobilisation to fight the insurgency in Darfur.Footnote ²²²⁸ This Committee was headed by Abd-Al-Hakam.Footnote ²²²⁹

668. Accordingly, and consistent with its findings on the events relating to the charged operations, the Chamber is satisfied that the Accused and GoS officials worked together in order to implement the Government’s counter-insurgency efforts at the locality level. The Accused worked jointly on the ground with GoS forces, leading the Janjaweed in joint operations in Kodoom and Bindisi, Mukjar and Deleig.Footnote ²²³⁰ In the context of these operations, the Accused issued instructions to members of the GoS forces, including Hassaballah.Footnote ²²³¹ In some of these joint operations, the Accused had authority over both the Janjaweed and the GoS forces.Footnote ²²³² More specifically, during the Mukjar and Deleig Operations, the Accused instructed members of GoS Forces to transfer detainees, open cells, load detainees onto vehicles and to shoot and kill detainees.Footnote ²²³³

C. His role in the recruitment of members of the Janjaweed and in the distribution of matériel to them

669. The Chamber is satisfied that GoS resources destined to support the Janjaweed were channelled through the Accused. For example, as set out above, Abd-Al-Jabbar gave the Accused several sacks of corn as fodder for the horses of the Janjaweed.Footnote ²²³⁴ A delegation of high-ranking GoS officials arrived at the Garsila SAF base, including Minister Harun, and delivered several boxes containing money to the Accused and other GoS officials.Footnote ²²³⁵ According to P-0883, the Accused received the ‘lion’s share’ of the money.Footnote ²²³⁶

670. In addition, P-0012 stated that the GoS gave the Accused weapons, salaries and uniforms to be given out to the agids.Footnote ²²³⁷ P-0643 gave evidence that the weapons in the Mujahidin Committee were distributed by the Accused and by members of the Arab tribes. He further gave evidence that weapons were issued by the police and handed to the Accused for onward distribution.Footnote ²²³⁸ P-1021 gave evidence that salaries distributed by the Accused to the Janjaweed came from the GoS.Footnote ²²³⁹ P-0547 stated that commanders such as the Accused, had ranks ‘only for administrative purposes’ and would receive money from Minister Harun in order to carry out ‘the actions in the field’.Footnote ²²⁴⁰ P-0874 explained that upon instructions the CRF in Mukjar handed over to the Accused weapons brought from Khartoum.Footnote ²²⁴¹ P-0913 mentioned that Lt Col Al-Tayyib provided the Accused with several boxes of ammunition, which were subsequently loaded by members of the Janjaweed onto vehicles.Footnote ²²⁴² The above evidence is consistent with that of P-0905 and P-0011 who, more generally, stated that the Accused received or distributed weapons at GoS buildings.Footnote ²²⁴³

671. The Chamber is satisfied that the Accused oversaw the recruitment of members of the Janjaweed, and the distribution of ammunition, weapons, salaries and supplies to them.Footnote ²²⁴⁴ The Accused equally instructed his deputies to distribute salaries to the Janjaweed within their purview.Footnote ²²⁴⁵

672. Although, as submitted by the Defence, there is some evidence which suggests that Emir Hessine Sayyid Al Helu, a tribal leader who had authority over all Arab tribes in Wadi Salih,Footnote ²²⁴⁶ also played a role in the mobilisation, arming, and the conduct ofoperations of‘Arab tribes militia’,Footnote ²²⁴⁷ the Chamber is not persuaded that this detracts from the above finding on the role the Accused had in the recruitment of members of the Janjaweed and distribution of resources to them. The evidence shows that Arab tribal leaders were also involved in the implementation of the GoS’ counter-insurgency efforts.Footnote ²²⁴⁸

D. His role within the Janjaweed

673. The Accused demoted or threatened lower-level Janjaweed leaders.Footnote ²²⁴⁹ The Accused issued instructions to lower-ranking members of the Janjaweed prior toFootnote ²²⁵⁰ or during the operations in Kodoom and Bindisi,Footnote ²²⁵¹ MukjarFootnote ²²⁵² and Deleig.Footnote ²²⁵³ On several occasions, the Accused instructed the forces under his command to ‘amsah aksah’,Footnote ²²⁵⁴ meaning to ‘kill or wipe’.Footnote ²²⁵⁵

674. The Accused’s deputies were Bonjouse,Footnote ²²⁵⁶ Samih,Footnote ²²⁵⁷ Hamuda HamdanFootnote ²²⁵⁸ and Umdah Hamdan Umar.Footnote ²²⁵⁹ Each of them exercised authority over smaller geographical areas: Samih over Mukjar, Bonjouse over Zame Bayaa, Hamoda Hamdan over Bindisi, and Umdah Hamdan Umar over Garsila.Footnote ²²⁶⁰

E. His apparent position as ‘agid al-ogada’

675. The Chamber notes that several witnesses described the Accused as the ‘agid al-ogada’, and stated that he introduced himself as such.Footnote ²²⁶¹ P-0643 gave evidence that the Accused was appointed head of the Mujahidin Committee given his title of ‘agid al-ogada’.Footnote ²²⁶² Given the role the agid al-ogada had in Arab tribes,Footnote ²²⁶³ it is understandable that several witnesses formed the view that the Accused was a Janjaweed leader because he held the title of agid al-ogada. Whilet this is relevant to the perception of the Accused’s authority, the Chamber emphasises that the evidence shows that the Accused’s authority did not stem from his title as agid al- ogada, but rather, as stated above, from his de facto authority over the Janjaweed and on some occasions over members of the GoS Forces.

F. His enlistment in the CRF

676. According to the Defence, the Accused would have trained with the CRF between March 2004 and July 2005, and would have been formally admitted and incorporated within the CRF in July 2005.Footnote ²²⁶⁴ Noting the partial overlap with the temporal scope of the charges, the Chamber considers that, effectively, the Defence is suggesting that the Accused could not have been a Janjaweed leader during the whole of the charged period, (particularly the events in Deleig), given his role in the CRF at the time.Footnote ²²⁶⁵

677. Having reviewed the parties’ submissions and the totality of the evidence on this point, the Chamber finds that the Accused enlisted in the CRF sometime between 2004 and 2005.Footnote ²²⁶⁶ However, the only evidence that it could have been before the events of the Deleig Operation comes from D-0035 and D-0032.Footnote ²²⁶⁷

678. This evidence is countered by the overwhelming credible and consistent evidence confirming the Accused’s presence during the Deleig Operation.Footnote ²²⁶⁸ The Chamber is satisfied that the limited and inconsistent evidence raising the possibility that the Accused was deployed to the CRF in early March 2004 does not raise any reasonable doubt regarding the Accused’s presence and authority over the Janjaweed in the aforesaid location and within the timeframe of the charges.

679. The Chamber notes that a core Defence challenge is that the Accused could not have been a Janjaweed leader, given: (i) the neutrality of the Ta’aisha tribe;Footnote ²²⁶⁹ (ii) the long-standing tensions between the Salamat, on the one hand, and, on the other, the Fur and Ta’aisha tribes; and (iii) the serious consequences the Accused would have faced for disobeying an instruction from the Nazir of the Ta’aisha.Footnote ²²⁷⁰ Regardless of the Ta’aisha’s position regarding the armed conflict, the Chamber is satisfied based on the evidence taken as a whole, that this does not undermine its findings regarding the Accused’s authority over the Janjaweed. Considering the overwhelming evidence described in the foregoing paragraphs, the Chamber is satisfied that the Accused exercised de facto authority as a Janjaweed leader during the relevant period of the charges.

680. On the basis of the above considerations, namely, the Accused’s relationship with the leadership of the GoS and GoS Forces at the locality level, his role within the Janjaweed, including in the recruitment of the members of the Janjaweed and distribution of matériel to them, the Chamber equally rejects the Defence’s submission that the Accused was no more than a simple pharmacist at the time.Footnote ²²⁷¹ It is clear that, even before the conflict, the Accused was not only well-known in the Wadi Salih area but well respected. Part of that respect appears to have derived from his military backgroundFootnote ²²⁷² but additionally the pharmacy which he operated in Garsila was recommended to those seeking medication,Footnote ²²⁷³ and he travelled to various markets.Footnote ²²⁷⁴ More importantly, witnesses described how the pharmacy and its immediate environs were a meeting place for the Accused and leaders of Arab tribesFootnote ²²⁷⁵ and some came to know him because he was called in to mediate in tribal negotiations.Footnote ²²⁷⁶ The Chamber finds that he was an influential figure in the area before the conflict.Footnote ²²⁷⁷ The Chamber further notes that the Accused’s leadership position is consistent with the public awareness of his authorityFootnote ²²⁷⁸ and GoS report referring to the Accused as ‘Commander of the Al-Fursan’.Footnote ²²⁷⁹

SECTION 6. APPLICABLE LAW

681. In the following section, the Chamber will set forth the relevant applicable law regarding the contextual elements of the war crimes and crimes against humanity, the elements of the individual crimes and the modes of criminal responsibility with which the Accused has been charged.

I. CONTEXTUAL ELEMENTS

A. War crimes

a) Armed conflict not of an international character and perpetrator’s awareness

682. The war crimes charged in this case relate exclusively to a non-international armed conflict. Pursuant to Article 8(2)(f) of the Statute, an armed conflict not of an international character exists when there is protracted armed violence between governmental authorities and organised armed groups or between such groups within a State.Footnote ²²⁸⁰ According to paragraphs (d) and (f) of Article 8(2) of the Statute, an armed conflict of this character excludes situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of similar nature.Footnote ²²⁸¹

683. Trial Chambers have considered varying factors when determining the ‘protracted’ character of a conflict,Footnote ²²⁸² and whether an entity qualifies as an ‘organised armed group’.Footnote ²²⁸³

b) Nexus requirement and perpetrator’s awareness

684. Acts of war crimes are required to have been committed ‘in the context of’ and be ‘associated with’ a non-international armed conflict.Footnote ²²⁸⁴

685. What is required is that the perpetrator’s conduct must have a sufficiently close link to the hostilities taking place in any part of the territories controlled by the parties to the conflict.Footnote ²²⁸⁵ The armed conflict alone need not be the root of the conduct of the perpetrator and the conduct need not have taken place in the midst of the battle.Footnote ²²⁸⁶ Nonetheless, the armed conflict must play a major part in the perpetrator’s decision, in his/her ability to commit the crime or the manner in which the crime was ultimately committed.Footnote ²²⁸⁷

686. In determining whether the nexus is established, the Chamber may consider, amongst other factors: (i) the status of the perpetrator and the victim; (ii) whether the act may be said to serve the ultimate goal of a military campaign; and (iii) whether the crime is committed as part of, or in the context of, the perpetrator’s official duties.Footnote ²²⁸⁸

687. The Elements of Crimes prescribe that the conduct constituting each war crime took place ‘in the context of’ and is ‘associated with’ an armed conflict not of an international character.Footnote ²²⁸⁹

688. As a mental element, for each war crime, the perpetrator must have been aware of the factual circumstances that established the existence of an armed conflict.Footnote ²²⁹⁰

B. Crimes against humanity

689. The chapeau of Article 7(1) of the Statute stipulates that a ‘“crime against humanity” means any of the […] acts [listed in the Article 7(1) of the Statute] when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’.

690. It is therefore necessary to establish: (i) the existence of an attack ‘directed against any civilian population’; (ii) that the ‘attack’ was ‘widespread’ or ‘systematic’; (iii) the existence of the requisite nexus between the act committed within the ambit of Article 7 and the ‘widespread or systematic attack’; and (iv) as a mental element, knowledge of that nexus by the perpetrator.Footnote ²²⁹¹

a) Attack directed against any civilian population

691. An ‘attack’ is defined in Article 7(2)(a) of the Statute as: (i) a course of conduct involving the multiple commission of acts referred to in Article 7(1) of the Statute; (ii) directed against any civilian population; and (iii) pursuant to or in furtherance of a State or organisational policy to commit such attack.Footnote ²²⁹²

i. Course of conduct involving the multiple commission of acts referred to in Article 7(1) of the Statute

692. An attack in this context need not be military in nature and must involve the commission of any of the acts listed in Article 7(1) of the Statute.Footnote ²²⁹³ The Appeals Chamber has held that the requirement that the ‘acts form part ofa “course ofconduct” indicates that Article 7 of the Statute is meant to cover a series or overall flow of events, as opposed to a mere aggregate of random or isolated acts’ and that ‘[a]n aggregate of random or isolated acts could not fulfil these criteria’.Footnote ²²⁹⁴ As such, the ‘multiple commission of acts’ sets a quantitative threshold involving a certain number of acts falling within the course of conduct.Footnote ²²⁹⁵ Additionally, the Appeals Chamber found that ‘a single incident or operation in which multiple crimes are committed could amount to a crime against humanity provided that the relevant contextual elements are met’.Footnote ²²⁹⁶

693. Therefore, a trial chamber does not need to have regard ‘to other military operations or the wider activities of the state or organisation in question, including activities that did not involve the commission of crimes’ for the purposes of establishing that there was a course of conduct involving the multiple commission of acts referred to in Article 7(1) of the Statute or that an attack targeted a civilian population.Footnote ²²⁹⁷

ii. Directed against any civilian population

694. Article 7(1) of the Statute requires that the attack must be ‘directed against any civilian population’, namely a collective, as opposed to individual civilians.Footnote ²²⁹⁸ By using the term ‘any’ civilian population, Article 7(1) of the Statute is not limited to populations defined by a common nationality, ethnicity, or other similar distinguishing features.Footnote ²²⁹⁹ There is no legal requirement that the ‘main aim or object of the relevant acts was to attack civilians’ as‘[a]n attack directed against a civilian population may also serve other objectives or motives’.Footnote ²³⁰⁰ The question of whether the attack was directed at a civilian population is a factual issue to be assessed by the Chamber.Footnote ²³⁰¹

695. In determining whether an attack was directed against any civilian population, the Chamber may, in its assessment, consider, inter alia, the following factors:

696. When crimes against humanity are alleged to have been committed during an armed conflict, as in this case, it is not necessary to prove that all individual victims were civilians within the meaning of international humanitarian law,Footnote ²³⁰³ and the presence within a civilian population of individuals who do not fall under the definition of ‘civilians’ does not deprive the population of its civilian character.Footnote ²³⁰⁴ As held by the Appeals Chamber:

iii. Pursuant to or in furtherance of a State or organisational policy to commit such attack

697. Article 7(2)(a) of the Statute requires that the attack must be committed ‘pursuant to or in furtherance ofa State or organizational policy to commit such attack’.Footnote ²³⁰⁶

698. The State or organisational policy required by Article 7 of the Statute may consist of a pre-established design or plan, but it may also crystallise and develop extemporaneously as actions are undertaken by the perpetrators.Footnote ²³⁰⁷ The existence ofa ‘policy’ may be inferred from a variety of factors, such as: (i) a recurrent pattern of violence; (ii) the existence of preparations or collective mobilisation orchestrated and coordinated by that State or organisation; (iii) the use of public or private resources to further the policy; (iv) the involvement of organisational forces in the commission of crimes; (v) statements, instructions or documentation attributable to the organisation condoning or encouraging the commission of crimes or; (vi) an underlying motivation.Footnote ²³⁰⁸

699. In principle, a State or organisation committing a systematic attack against a civilian population will satisfy the policy requirement.Footnote ²³⁰⁹

700. With respect to the phrase ‘pursuant to or in furtherance of’, the policy requirement ensures that the acts constituting the course of conduct are linked.Footnote ²³¹⁰ The requisite nexus is one that exists between the course of conduct and the policy.Footnote ²³¹¹ This ensures that acts which are unrelated or perpetrated by individuals acting randomly on their own are excluded.Footnote ²³¹²

b) Widespread or systematic attack

701. The ‘attack’ is required to be ‘widespread’ or ‘systematic’. The term ‘widespread’ connotes the large-scale nature of the attack and the number of targeted persons.Footnote ²³¹³ The assessment of whether the attack is widespread is neither exclusively quantitative nor geographical, but must be carried out on the basis of all the relevant facts of the case.Footnote ²³¹⁴ The term ‘systematic’ reflects the organised nature of the violent acts, referring often to the existence of ‘patterns of crimes’ and the improbability of their random or accidental occurrence.Footnote ²³¹⁵ In examining whether an attack was systematic, the Chamber shall assess whether a series of repeated actions which took place were intended to have the same effect on a civilian population, and consequently, it may consider whether: (i) identical or similar criminal practices can be identified; (ii) the same modus operandi was used; or (iii) victims were treated in a similar manner across a wide geographic area.Footnote ²³¹⁶

c) Nexus requirement and perpetrator’s awareness

702. As stipulated in the chapeau of Article 7(1) of the Statute, the individual act must be committed as part of a widespread or systematic attack directed against a civilian population.Footnote ²³¹⁷ The Chamber must determine the existence of the requisite nexus between the widespread or systematic attack and the act within the ambit of Article 7(1) of the Statute, taking into account the characteristics, aims, nature and consequences of the acts concerned,Footnote ²³¹⁸ and knowledge of that nexus by the perpetrator of the act.Footnote ²³¹⁹

703. In that regard, the Chamber must examine whether the act is part of the widespread or systematic attack, considered as a whole with due regard to the nature of the act at issue, its aims and consequences. This analysis must also be conducted in respect of the various components of the attack (including the policy, the patterns of crimes, or the type of victims).Footnote ²³²⁰

704. Finally, as to the mental element, the perpetrator must have known that the conduct was part of, or intended it to be part of, a widespread or systematic attack directed against a civilian population.Footnote ²³²¹ However, it is not necessary that the perpetrator be aware of the precise details of the plan or policy of the State or organisation.Footnote ²³²²

II. THE CRIMES

705. Unless otherwise provided in the Statute, the material elements of the crimes must have been committed with ‘intent’ and ‘knowledge’ within the meaning of Article 30 of the Statute.Footnote ²³²³ Article 30(2) of the Statute provides that ‘a person has intent where’:

1. (a) In relation to conduct, that person means to engage in the conduct;

2. (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.

706. ‘Knowledge’ under Article 30(3) of the Statute ‘means awareness that a circumstance exists or a consequence will occur in the ordinary course of events’. The standard for this foreseeability of events is virtual certainty.Footnote ²³²⁴

A. Attack against a civilian population (Article 8(2)(e)(i) of the Statute)

707. Article 8(2)(e)(i) of the Statute provides that ‘[i]ntentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities’ is a war crime.

708. The Elements of Crimes set out the following elements:Footnote ²³²⁵

1. 1. The perpetrator directed an attack.

2. 2. The object of the attack was a civilian population as such or individual civilians not taking direct part in hostilities.

3. 3. The perpetrator intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack.

709. The first material element is that the perpetrator directed an attack. An ‘attack’ constitutes any ‘acts ofviolence against the adversary, whether in offence or defence’;Footnote ²³²⁶ and to ‘direct’ an attack means that the perpetrator selected the intended target and decided on the attack.Footnote ²³²⁷ No particular harm to civilians need be caused; the crime is directing or launching the attack as such.Footnote ²³²⁸

710. The war crime of attacking civilians pertains to the category of offences committed during the actual conduct of hostilities. This means that the crime must be committed against civilians ‘before [they] have fallen into the hands of the attacking party’.Footnote ²³²⁹

711. As regards the second and third elements, the civilian population or individual civilians must have been the primary object of the ‘attack’; directing the attack against military objects that affects civilians incidentally does not suffice under Article 8(2)(e)(i) of the Statute.Footnote ²³³⁰

712. During a non-international armed conflict, civilians are persons who are not members of State armed forces or organised armed groups of a party to the conflict.Footnote ²³³¹ During such conflict, civilians are protected and they lose that protection only through active participation in hostilities and for such time as they participate.Footnote ²³³² Taking an active part in the hostilities is understood as acts of war that by their nature or purpose strike at the personnel and matériel of enemy armed forces.Footnote ²³³³

713. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.Footnote ²³³⁴ This general presumption of protection under IHL also applies during non-international armed conflicts. The burden is on the Prosecution to establish the status of the victim as someone taking no active part in the hostilities.Footnote ²³³⁵ The Prosecution must prove that in the circumstances at the time, a reasonable person could not have believed that the individual or group he or she attacked was a fighter or directly participating in hostilities.Footnote ²³³⁶ The presence within a civilian population of some members of an armed force or civilians directly participating in hostilities does not deprive the population of its civilian character.Footnote ²³³⁷

714. The crime under Article 8(2)(e)(i) of the Statute may encompass attacks that are carried out in an indiscriminate manner, that is by targeting an area, as opposed to specific objects, or not targeting specific military objects or persons taking a direct part in hostilities, so long as the perpetrator was aware of the presence of civilians in the relevant area.Footnote ²³³⁸ It may also include attacks that are launched without taking necessary precautions to spare the civilian population or individual civilians.Footnote ²³³⁹

715. As to the mental elements, pursuant to Article 30 of the Statute,Footnote ²³⁴⁰ the perpetrator must have (i) deliberately launched an attack; and (ii) meant for the civilian population as such, or individual civilians not taking direct part in hostilities, to be the object of the attack.Footnote ²³⁴¹

B. Pillaging (Article 8(2)(e)(v) of the Statute)

716. Article 8(2)(e)(v) of the Statute provides that ‘[p]illaging a town or place, even when taken by assault’ is a war crime.

717. The Elements of Crimes set out the following elements:Footnote ²³⁴²

1. 1. The perpetrator appropriated certain property.

2. 2. The perpetrator intended to deprive the owner of the property and to appropriate it for private or personal use.

3. 3. The appropriation was without the consent of the owner.

718. The first element ofthis war crime relates to ‘pillaging a town or place’. The pillaging of a town or place comprises all forms of appropriation of property, including appropriation committed by individuals in their own interest and acts of organised or systematic appropriation.Footnote ²³⁴³ Pillaging extends to the appropriation of all types of property, private or public, movable or immovable.Footnote ²³⁴⁴

719. Trial Chambers have found that the appropriation need not have occurred on a large scale to constitute the crime of pillaging.Footnote ²³⁴⁵

720. With regard to the second element, the perpetrator must have specifically intended to deprive the owner of the property and to appropriate it for private or personal use.Footnote ²³⁴⁶ The use of the term ‘private or personal use’ indicates that ‘appropriations justified by military necessity cannot constitute the crime of pillaging’.Footnote ²³⁴⁷ Appropriations justified by military necessity require that the appropriation’s use be directed to further the war effort and thus be used for military purposes.Footnote ²³⁴⁸ If combatants appropriate property essential to their survival, such as food, this alone does not make the appropriation one of military necessity.Footnote ²³⁴⁹

721. The third material element requires that ‘[t]he appropriation was without the consent of the owner’.Footnote ²³⁵⁰ When the property owner has fled, such appropriations must be assumed to have been without the owner’s consent, absent any contrary indication.Footnote ²³⁵¹ This could be the case, for example, when items are appropriated from an empty house whose residents have fled.Footnote ²³⁵²

722. As to the mental elements of the crime, pursuant to Article 30 of the Statute,Footnote ²³⁵³ the perpetrator must have: (i) acted deliberately; and (ii) meant to ‘deprive the owner’ ofhis or her property and to ‘appropriate it for private or personal use’, or been aware that this consequence would occur in the ordinary course of event.Footnote ²³⁵⁴ Further, under Article 30(3) of the Statute, the perpetrator must also have known that the appropriation was without the consent of the owner.Footnote ²³⁵⁵

C. Destroying or seizing the enemy’s property (Article 8(2)(e)(xii) of the Statute)

723. Article 8(2)(e)(xii) of the Statute provides that ‘[d]estroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict’ is a war crime.

724. The Elements of Crimes set out the following elements:Footnote ²³⁵⁶

1. 1. The perpetrator destroyed or seized certain property.

2. 2. Such property was property of an adversary.

3. 3. Such property was protected from that destruction or seizure under the international law of armed conflict.

4. 4. The perpetrator was aware of the factual circumstances that established the status of the property.

5. 5. The destruction or seizure was not required by military necessity.

725. As regards the first material element, to ‘destroy’ can be, either by act or omission, to set ablaze, demolish, pull down or damage so badly that it is no longer fit for purpose;Footnote ²³⁵⁷ and the ‘property’ destroyed can be movable or immovable, private or public items.Footnote ²³⁵⁸ The act of destruction can be committed during or outside the conduct of hostilities.Footnote ²³⁵⁹

726. The second material element requires that the property must belong to the ‘adversary’,Footnote ²³⁶⁰ namely to individuals or entities considered to be aligned with the opposing party to the conflict, adverse or hostile to the perpetrator.Footnote ²³⁶¹ Regarding the destruction of property belonging to persons who had no stated or apparent allegiance to a party involved in the conflict, it may be established nonetheless that these persons or entities were ‘adverse’, or were considered as such by the perpetrators; for example, by showing that they were not aligned to or supportive of the perpetrators’ party or its objectives.Footnote ²³⁶²

727. The third material element requires that ‘[s]uch property was protected from that destruction or seizure under the international law of armed conflict’.Footnote ²³⁶³ The property is protected under international law when it does not constitute ‘military objectives’, namely ‘objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage’.Footnote ²³⁶⁴ Indeed, objects of the adversary lose their protection under international law of armed conflict if and for such time as they are ‘military objects’.Footnote ²³⁶⁵ For the purpose of determining as to whether or not property was ‘protected’, the applicable standard is that, a reasonable person, in the circumstances of the case, could not have believed that the property attacked and destroyed was a military objective.Footnote ²³⁶⁶

728. The fourth element, which is a mental element, will be dealt with below.Footnote ²³⁶⁷

729. Finally, the crime of destruction of property requires that the destruction was not required by military necessity. This relates to situations where destruction is ‘imperatively demanded by the necessities of the conflict’.Footnote ²³⁶⁸ Such a compelling necessity must be assessed on a case-by-case basis,Footnote ²³⁶⁹ taking account of the particular circumstances prevailing at the time, including whether the destroyed property was defended.Footnote ²³⁷⁰

730. As to the mental elements, pursuant to Article 30 of the Statute,Footnote ²³⁷¹ the perpetrator must have: (i) acted deliberately; and (ii) meant to destroy the property, or was aware that this destruction would occur in the ordinary course of events.Footnote ²³⁷² In addition, the perpetrator must have been aware that the property was property of the adversary and aware of the factual circumstances that established the ‘status of the property’.Footnote ²³⁷³ It is therefore not necessary to establish that the perpetrator had concluded, following an assessment of the situation, that the property was effectively protected from destruction under international humanitarian law.Footnote ²³⁷⁴ Lastly, the perpetrator must have been aware of the fact that the destruction was not justified by military necessity.Footnote ²³⁷⁵

D. Forcible transfer of population (Article 7(1)(d) of the Statute)

731. Article 7(1)(d) of the Statute provides that ‘[d]eportation or forcible transfer of population’ is a crime against humanity, and Article 7(2)(d) of the Statute provides that it means the ‘forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law’.

732. The Elements of Crimes set out the following elements:Footnote ²³⁷⁶

1. 1. The perpetrator deported or forcibly transferred, without grounds permitted under international law, one or more persons to another State or location, by expulsion or other coercive acts.

2. 2. Such person or persons were lawfully present in the area from which they were so deported or transferred.

3. 3. The perpetrator was aware of the factual circumstances that established the lawfulness of such presence.

733. Footnote 12 of the Elements of Crimes explains that ‘[t]he term “forcibly” in this element is “not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment”’.Footnote ²³⁷⁷ Footnote 13 of the Elements ofCrimes specifies that ‘“forcibly transferred” is interchangeable with “forcibly displaced”’.

734. Different types of conduct displayed by the perpetrator can amount to ‘expulsion or other coercive acts’ which forced the victim to leave the area where he or she was otherwise lawfully present.Footnote ²³⁷⁸ Chambers have considered that the following acts amounted to coercive acts: ‘the destruction of homes in residential areas, the brutality of killings and injuries, the rape of [certain individuals], public announcements to the effect that [certain groups needed to] leave’,Footnote ²³⁷⁹ and the ‘deprivation of fundamental rights, killing, sexual violence, torture, enforced disappearance, destruction and looting’.Footnote ²³⁸⁰ It therefore must be demonstrated that one or more acts on the part of the perpetrator resulted in forcibly displacing the victim.Footnote ²³⁸¹

735. Incidental displacement as a result of an entirely lawful attack, or collateral consequences of a lawful attack, do not amount to forcible transfer or displacement.Footnote ²³⁸² However, in order to establish the forced character of a displacement, there is no need to establish that ‘unlawful targeting’ took place and that the displaced population was the object of an unlawful attack designed to coerce its departure.Footnote ²³⁸³ Rather, it must be demonstrated that there was a genuine lack of choice on the part of the individuals displaced.Footnote ²³⁸⁴ While individuals may agree, or even request, to be removed from an area, consent must be real in the sense that it is given voluntarily and as a result of the individual’s free will.Footnote ²³⁸⁵ When assessing whether the persons transferred had a genuine choice to remain or leave and whether the resulting displacement was unlawful, the Chamber will therefore consider the prevailing situation and atmosphere,Footnote ²³⁸⁶ and all other relevant circumstances.Footnote ²³⁸⁷

736. In order to assess the existence of a genuine lack of choice, chambers have had regard to the following circumstances: the atmosphere in a municipality of such a coercive nature that the persons leaving could not be considered as having voluntarily decided to give up their homes;Footnote ²³⁸⁸ threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, or by taking advantage of a coercive environment;Footnote ²³⁸⁹ in the case of detained persons, their living conditions and (mis)treatment (which included illegal detention, threats, beatings and mistreatments and an atmosphere of fear or a ‘coercive prison regime which was such that they were not in a position to exercise genuine choice’); the vulnerability of the victims.Footnote ²³⁹⁰

737. In the case of Milutinović et al., an ICTY Trial Chamber stated:

738. The second material element is that the victims ‘were lawfully present in the area from which they were so deported or transferred’.Footnote ²³⁹² Victims need not have had legal residence in the area from which they were forcibly displaced.Footnote ²³⁹³

739. As to the mental elements, pursuant to Article 30 of the Statute,Footnote ²³⁹⁴ the perpetrator must have: (i) acted deliberately; and (ii) meant to transfer or displace the victims, or been aware that this transfer or displacement would occur in the ordinary course of events. In addition, the perpetrator must have been aware of the factual circumstances that established the lawfulness of the displaced individuals’ presence in the area.Footnote ²³⁹⁵

E. Rape (Articles 7(1)(g) and 8(2)(e)(vi) of the Statute)

740. Articles 7(1)(g) and 8(2)(e)(vi) of the Statute provide that rape is a crime against humanity and a war crime, respectively.

741. The Elements of Crimes set out the following elements, both as a crime against humanity and as a war crime:Footnote ²³⁹⁶

1. 1. The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body.

2. 2. The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.

742. The concept of ‘invasion’ in the first element is intended to be broad and inclusive, ensuring gender-neutrality.Footnote ²³⁹⁷

743. The establishment of one of the coercive circumstances or conditions set out in the second material element is sufficient alone for penetration to amount to rape within the meaning of Articles 7(1)(g) and 8(2)(e)(vi) of the Statute.Footnote ²³⁹⁸ Coercive circumstances need not be evidenced by a show of physical force – threats, intimidation, extortion, and other forms of duress which prey on fear or desperation may constitute coercion.Footnote ²³⁹⁹ There is no requirement of resistance on the part of the victimFootnote ²⁴⁰⁰ and the victim’s lack of consent need not be proven.Footnote ²⁴⁰¹ Coercion may be inherent in certain circumstances, such as armed conflict or the military presence of hostile forces amongst the civilian population.Footnote ²⁴⁰² Several factors may contribute to creating a coercive environment, such as: (i) the number of people involved in the commission of the crime; (ii) whether the rape is committed during or immediately following a combat situation, or is committed together with other crimes; (iii) the detention of the victim; (iv) psychological pressure; or (v) abuse of power.Footnote ²⁴⁰³

744. As to the mental elements, pursuant to Article 30 of the Statute,Footnote ²⁴⁰⁴ the perpetrator must have: (i) acted deliberately; and (ii) meant to invade the body of the victim, or been aware that this invasion would occur in the ordinary course of events. In accordance with Article 30(3) of the Statute, the perpetrator must have been aware that the invasion was committed by force, threat offorce, coercion or by taking advantage ofa coercive environment, or that ‘the invasion was committed against a person incapable of giving genuine consent’.Footnote ²⁴⁰⁵

F. Torture (Articles 7(1)(f) and 8(2)(c)(i) of the Statute)

745. Article 7(1)(f) of the Statute provides that ‘[t]orture’ is a crime against humanity, and Article 8(2)(c)(i) of the Statute that it is a war crime. Article 7(2)(e) of the Statute further defines torture as a crime against humanity as ‘the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions’.

746. The Elements of Crimes set out the following elements for the crime of torture as a crime against humanity:Footnote ²⁴⁰⁶

1. 1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons.

2. 2. Such person or persons were in the custody or under the control of the perpetrator.

3. 3. Such pain or suffering did not arise only from, and was not inherent in or incidental to, lawful sanctions.

747. The Elements of Crimes set out the following elements for the crime of torture as a war crime:Footnote ²⁴⁰⁷

1. 1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons.

2. 2. The perpetrator inflicted the pain or suffering for such purposes as: obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind.

3. 3. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities.

4. 4. The perpetrator was aware of the factual circumstances that established this status.

748. The crimes of torture as a crime against humanity and as a war crime share the first element that relates to the severity of the pain inflicted.Footnote ²⁴⁰⁸ The word ‘severe’ implies an important degree of pain and suffering caused to the victim, and may be met by a single act of the perpetrator or by a combination of acts when viewed as a whole.Footnote ²⁴⁰⁹ Severity can only be assessed on a case-by-case basis in the light of all the circumstances of the case.Footnote ²⁴¹⁰ Indeed, a violation of a person’s physical and psychological integrity has several gradations and may encompass actions with physical and psychological effects that vary in intensity depending on endogenous and exogenous factors (such as manner, method used and length of the mistreatment, age, sex, health, context and vulnerability of the victim).Footnote ²⁴¹¹ The pain and suffering may be either physical or mental.Footnote ²⁴¹² It is not necessary to prove that the pain or suffering involved specific physical injury, impairment of a bodily function or death, and the consequences of torture do not have to be visible, nor must the injury be permanent.Footnote ²⁴¹³ Further, it is not necessary to prove that the ‘perpetrator personally completed a particular value judgement’ as to the severity of the pain inflicted.Footnote ²⁴¹⁴

749. The remaining material elements are distinct for each crime. For torture as a crime against humanity, the second material element requires that ‘such person or persons were in the custody or under the control of the perpetrator’. The Statute does not require the perpetrator to have acted in an official capacity.Footnote ²⁴¹⁵ The use of the terms ‘custody’ and ‘under control of the perpetrator’ in this element should not be equated with ‘imprisonment or other severe deprivation of liberty’; rather it should be interpreted broadly in the sense that a person need not be in actual custody and some form of control is sufficient to establish this element.Footnote ²⁴¹⁶

750. The third material element for torture as a crime against humanity is exclusionary in nature. It provides that the pain or suffering ofsuch person or persons ‘did not arise only from, and was not inherent in or incidental to, lawful sanctions’.Footnote ²⁴¹⁷ This element of exclusion is not a requirement for the proof of the war crime of torture.Footnote ²⁴¹⁸

751. As to the mental elements, for both the crime of torture as a crime against humanity and as a war crime, pursuant to Article 30 of the StatuteFootnote ²⁴¹⁹ the perpetrator must have: (i) acted deliberately and; (ii) meant to inflict severe physical or mental pain or suffering upon one or more persons, or been aware that this pain or suffering would occur in the ordinary course of event. In addition, the second element of the war crime of torture requires that the perpetrator inflicted the pain or suffering ‘for such purposes as: obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind’.Footnote ²⁴²⁰ This specific ‘purpose’ must be part of the motivation behind the conduct of the perpetrator but it need not be the ‘predominant or sole purpose’ of the infliction of pain and suffering.Footnote ²⁴²¹ Finally, the fourth element of torture as a war crime requires that the perpetrator must have been aware of the factual circumstances that established the status of the victim.Footnote ²⁴²²

G. Other inhumane acts (Article 7(1)(k) of the Statute)

752. Article 7(1)(k) of the Statute provides that ‘[o]ther inhumane acts of similar character intentionally causing great suffering or serious injury to body or to mental or physical health’ are crimes against humanity.

753. The Elements of Crimes set out the following elements:Footnote ²⁴²³

1. 1. The perpetrator inflicted great suffering, or serious injury to body or to mental or physical health, by means of an inhumane act.

2. 2. Such act was of a character similar to any other act referred to in article 7, paragraph 1, of the Statute.

3. 3. The perpetrator was aware of the factual circumstances that established the character of the act.

754. The category of ‘other inhumane acts’ under Article 7(1)(k) of the Statute ‘serves as a “residual category” of crimes against humanity, designed to criminalise an act that does not specifically qualify as any of the other crimes under Article 7(1) of the Statute, based on the understanding that an exhaustive enumeration of inhumane acts is impossible’.Footnote ²⁴²⁴ If the underlying conduct is an act already enumerated in Article 7(1) of the Statute, a conviction under Article 7(1)(k) of the Statute can be entered only when the conduct in question, assessed in its entirety, falls completely outside any act under Article 7(1)(a)-(j) of the Statute or when the full scope of the culpable conduct is not reflected by its qualification under the enumerated crime(s) alone.Footnote ²⁴²⁵

755. The Chamber notes that the term ‘character’ in the second element of Article 7(1)(k) of the Statute refers to the ‘nature and gravity of the act’.Footnote ²⁴²⁶ A conviction can be entered under Article 7(1)(k) of the Statute if the perpetrator inflicted great suffering, or serious injury to body or to mental or physical health, by means of a course of conduct which, despite also comprising acts falling under one or more of the enumerated crimes, is, in its entirety, not identical but is nonetheless ‘similar’ in character as to its nature and gravity, to those enumerated crimes.Footnote ²⁴²⁷

756. Trial Chambers and international tribunals have considered the following to constitute inhumane acts: forced marriage, forcible circumcision and penile amputation, mental suffering caused by brutal killings and mutilations committed in front of family members, striking people with a machete and injuring protesters by mortar fire, enforced disappearance of persons, deportation or forcible transfer of population, forced prostitution, serious beatings, subjection to deplorable conditions of detention and requiring persons to witness the beatings or killings of others.Footnote ²⁴²⁸

757. The Appeals Chamber has held that as Article 7(1)(k) of the Statute ‘is an open provision’ – meaning that different types of conduct may amount to other inhumane acts as long as they satisfy the elements of Article 7(1)(k) of the Statute – ‘a chamber may have recourse to any relevant international instruments, such as conventions and treaties, in order to determine whether a specific conduct qualifies as a form of other inhumane acts’.Footnote ²⁴²⁹

758. As to the mental elements, pursuant to Article 30 of the Statute,Footnote ²⁴³⁰ the perpetrator must have: (i) acted deliberately; and (ii) meant to inflict great suffering, or serious injury to body or to mental or physical health, or been aware this suffering or injury would occur in the ordinary course of events. In addition, the perpetrator must have been aware of the factual circumstances that established the character of the inhumane act,Footnote ²⁴³¹ but need not have made ‘a value judgement as to the “inhumane” character of the act’.Footnote ²⁴³²

H. Cruel treatment (Article 8(2)(c)(i) of the Statute)

759. Article 8(2)(c)(i) of the Statute provides that ‘cruel treatment’ is a war crime.

760. The Elements of Crimes set out the following elements:Footnote ²⁴³³

1. 1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons.

2. 2. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities.

3. 3. The perpetrator was aware of the factual circumstances that established this status.

761. The first and second elements of the war crime of cruel treatment are identical to the firstFootnote ²⁴³⁴ and thirdFootnote ²⁴³⁵ elements of the war crime of torture.

762. The Statute and the Elements of Crimes make no distinction as to the degree of suffering and pain required in the first element for torture as a crime against humanity and war crime or cruel treatment as a war crime.Footnote ²⁴³⁶ As stated above, for the crimes of torture, the level of intensity must be determined on a case-by-case basis, bearing in mind all the circumstances of the caseFootnote ²⁴³⁷ (i.e. duration of the treatment, physical and mental effects, age, sex, health, context, vulnerability and other particular circumstances of the victim).Footnote ²⁴³⁸ The personal characteristics of the victim must also be taken into account when determining whether their personal integrity was violated, because these characteristics may change the individual’s perception of the reality and, consequently, increase the suffering and feeling of humiliation experienced by the victim.Footnote ²⁴³⁹

763. Finally, the purposive element of the war crime of torture,Footnote ²⁴⁴⁰ (meaning that ‘[t]he perpetrator inflicted the pain or suffering for such purposes as [….] obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind’),Footnote ²⁴⁴¹ is the sole element distinguishing this crime from the war crime of cruel treatment. Hence, when an act does not satisfy the purposive requirement of the war crime of torture but satisfies the other elements, it constitutes the war crime of cruel treatment.Footnote ²⁴⁴²

764. As to the mental elements, pursuant to Article 30 of the Statute,Footnote ²⁴⁴³ the perpetrator must have: (i) acted deliberately; and (ii) meant to inflict severe physical or mental pain or suffering, or been aware that this pain or suffering would occur in the ordinary course of events. In addition, the fourth element of cruel treatment as a war crime requires that the perpetrator must have been aware of the factual circumstances that established the status of the victim.Footnote ²⁴⁴⁴

I. Outrages upon personal dignity (Article 8(2)(c)(ii) of the Statute)

765. Article 8(2)(c)(ii) of the Statute provides that ‘[c]ommitting outrages upon personal dignity, in particular humiliating and degrading treatment’ is a war crime.

766. The Elements of Crimes set out the following elements:Footnote ²⁴⁴⁵

1. 1. The perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons.

2. 2. The severity of the humiliation, degradation or other violation was of such degree as to be generally recognized as an outrage upon personal dignity.

3. 3. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities.

4. 4. The perpetrator was aware of the factual circumstances that established this status.

767. The question of whether the ‘severity’ of the humiliation, degradation or violation is ‘generally recognized’ as an outrage upon personal dignity entails an objective assessment of a reasonable person and must be assessed on a case-by-case basis.Footnote ²⁴⁴⁶ This objective component has been defined as requiring that the ‘humiliation to the victim must be so intense that the reasonable person would be outraged’.Footnote ²⁴⁴⁷ The suffering or injury caused does not need to have long term effects.Footnote ²⁴⁴⁸

768. The Court’s legal framework does not provide a definition of conduct that humiliates, degrades or otherwise violates someone’s dignity or an ‘inhumane treatment’.Footnote ²⁴⁴⁹ The jurisprudence of this Court and international tribunals has established that the following acts constitute outrages upon personal dignity: rape, hanging naked prisoners from handcuffs or forcing them to maintain a certain position for a long time, forcing someone to dance naked on a table or to undress and do gymnastics in a public courtyard, using detainees as human shields or making them dig trenches, or forcing detainees to, inter alia, relieve themselves in their clothing.Footnote ²⁴⁵⁰

769. The third element requires that the victims were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities.

770. As to the mental elements, pursuant to Article 30 of the Statute,Footnote ²⁴⁵¹ the perpetrator must have: (i) acted deliberately; and (ii) meant to cause the humiliation, degradation or violation of the dignity of the victim, or been aware that such a consequence would occur in the ordinary course of events. The perpetrator need not have completed a value judgment as to the severity of the humiliation, degradation or violation inflicted.Footnote ²⁴⁵² In addition, it must be proven that the ‘perpetrator was aware of the factual circumstances that established’ the status of the victim.Footnote ²⁴⁵³

J. Murder and attempted murder (Articles 7(1)(a) and 8(2)(c)(i) of the Statute)

771. Article 7(1)(a) of the Statute provides that ‘[m]urder’ is a crime against humanity, and Article 8(2)(c)(i)-1 of the Statute that it is a war crime.

772. The Elements of Crimes set out the following elements, both as a crime against humanity and as a war crime:Footnote ²⁴⁵⁴

1. 1. The perpetrator killed one or more persons. and that the crime of murder as a war crime has the following additional elements:Footnote ²⁴⁵⁵

2. 2. Such person or persons were either hors de combat, or were civilians, medical personnel, or religious personnel taking no active part in the hostilities.

3. 3. The perpetrator was aware of the factual circumstances that established this status.

773. The first element common to both murder as a crime against humanity and as a war crime is that murder is committed when the perpetrator killed one or more persons,Footnote ²⁴⁵⁶ as a result of an act or omission.Footnote ²⁴⁵⁷ A causal link must be established between the perpetrator’s conduct and the victim’s death.Footnote ²⁴⁵⁸ Where the perpetrator’s actions do not ultimately cause the death of a person, liability for attempted murder may arise pursuant to Article 25(3)(f) of the Statute. For the crime of attempted murder to be established, as per Article 25(3)(f) of the Statute, it must be proven that the perpetrator took action that commenced the execution of the murder by means of a substantial step, but the murder did not occur because of circumstances independent of the perpetrator’s intentions.Footnote ²⁴⁵⁹

774. While the Prosecution must demonstrate, to the extent possible, the location, date and means of killing, it is not required to demonstrate for each killing the identity of the victim or of the perpetrators.Footnote ²⁴⁶⁰ The elements ofmurder may be satisfied whether or not a victim’s body has been recovered; a victim’s death may thus be proven by circumstantial evidence so long as the only reasonable inference that can be drawn therefrom is that the victim died.Footnote ²⁴⁶¹

775. Pursuant to Article 8(2)(c) of the Statute and the Elements of Crimes, the killing of civilians only qualifies as murder if they are persons taking no active part in hostilities at the relevant time, ‘including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause’.Footnote ²⁴⁶² In determining whether victims were taking an active part in hostilitiesFootnote ²⁴⁶³ at the time of their alleged murder, the Chamber may consider the relevant facts and specific situation of the victims, including the location of the alleged murders, whether the victims were carrying any weapons at the time they were killed, and their clothing, age, and gender.Footnote ²⁴⁶⁴

776. As to the mental elements, pursuant to Article 30 of the Statute,Footnote ²⁴⁶⁵ the perpetrator must have: (i) acted deliberately; and (ii) meant to kill one or more persons, or been aware that death would occur in the ordinary course of events.Footnote ²⁴⁶⁶ In addition, for the crime of murder as a war crime, and consistent with the knowledge requirement under Article 30(3) of the Statute, the perpetrator must have been aware of the factual circumstances that established the protected status of the victim.Footnote ²⁴⁶⁷ It is not necessary for the perpetrator to have assessed the situation and reached a legal conclusion as to whether the victim was hors de combat, a civilian, a member of medical personnel or religious personnel taking no active part in the hostilities.Footnote ²⁴⁶⁸

777. Since the attempted commission of a crime is characterised by the fact that the perpetrator did not fulfil all objective elements despite their intention to do so, there are no distinctions to be drawn between the mental elements required for murder in its consummated form and those required for its attempted form.Footnote ²⁴⁶⁹

K. Persecution (Article 7(1)(h) of the Statute)

778. Article 7(1)(h) of the Statute provides that ‘[p]ersecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3,Footnote ²⁴⁷⁰ or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court’, is a crime against humanity. Article 7(2)(g) of the Statute further provides that it means ‘the intentional and severe deprivation offundamental rights contrary to international law by reason of the identity of the group or collectivity’.

779. The Elements of Crimes set out the following elements:Footnote ²⁴⁷¹

1. 1. The perpetrator severely deprived, contrary to international law,Footnote ²⁴⁷² one or more persons of fundamental rights.

2. 2. The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such.

3. 3. Such targeting was based on political, racial, national, ethnic, cultural, religious, gender as defined in article 7, paragraph 3, of the Statute, or other grounds that are universally recognized as impermissible under international law.

4. 4. The conduct was committed in connection with any act referred to in article 7, paragraph 1, of the Statute or any crime within the jurisdiction of the Court.

780. As regards the first material element, the plain language of the statutory provision indicates that only a ‘severe deprivation’ ofa person’s ‘fundamental rights’, when ‘contrary to international law’, meets the threshold for persecution.Footnote ²⁴⁷³ ‘Fundamental rights’ may include a variety of rights such as the right to life, the right to personal liberty, the right not to be subjected to torture or cruel, inhumane or degrading treatment, the right to freedom of expression, the right to freedom of movement, and the right to private property.Footnote ²⁴⁷⁴

781. Persecution can be committed either by one act or in a series of acts.Footnote ²⁴⁷⁵ If the conduct relied upon is, in and of itself, one of the other acts listed in Article 7 of the Statute, it will, in principle, result in a deprivation of fundamental rights of one or more individuals and the deprivation will meet the minimum level of severity required.Footnote ²⁴⁷⁶

782. The Chamber observes that, from the range of rights implicated, the conduct underlying an act of persecution may constitute an act listed in paragraph 1 of Article 7 of the Statute, but it need not be the case.Footnote ²⁴⁷⁷ For example, a broad range of acts such as, exclusion from professions, denial of access to public services and restrictions on family life have been found to constitute acts of persecution.Footnote ²⁴⁷⁸ Thus, discriminatory order, policies, decisions or other regulations, as well as restrictions on movement to certain places and times, provided that they infringe on basic rights and reach the necessary level of gravity, can form underlying acts of persecution.Footnote ²⁴⁷⁹

783. With respect to other types of underlying acts, the Chamber will need to assess these acts on a case-by-case basis ‘in their context and with consideration oftheir cumulative effect’ in order to determine whether, taken alone or in combination with other acts, they have resulted in the ‘severe’ deprivation of one or more individual’s fundamental rights.Footnote ²⁴⁸⁰ In assessing whether a series of violation amount to a severe deprivation of fundamental rights, the number of fundamental rights implicated and the nature of the deprivation are also relevant considerations.Footnote ²⁴⁸¹

784. In respect of the second element, the Chamber notes that it is a mental element, and will be dealt with below.Footnote ²⁴⁸²

785. The third element requires that the person or persons within the group or collectivity are targeted on specified discriminatory grounds as listed (‘[s]uch targeting was based on political, racial, national, ethnic, cultural, religious, gender as defined in article 7, paragraph 3, of the Statute, or other grounds that are universally recognized as impermissible under international law’)Footnote ²⁴⁸³ or any other ground universally recognised as impermissible under international law. One such ground will suffice, although a combination of more than one may equally form the basis for the discrimination.Footnote ²⁴⁸⁴ The targeted group can be defined both in a positive or a negative manner, meaning that it may be the case that the perpetrator targeted only members of a certain group or collectivity, or that the perpetrator targeted individuals for not belonging to a certain group or collectivity.Footnote ²⁴⁸⁵ Thus, it is not required that the members of the targeted group hold common views or consider themselves as an identifiable group.Footnote ²⁴⁸⁶

786. To determine if a group or collectivity is a protected group, the factors of relevance are: (i) the particular political, social, and cultural context; (ii) the objective factors relevant to the discriminatory ground alleged; and (iii) the subjective perception of belonging of both the perpetrator and the victim.Footnote ²⁴⁸⁷ While it must be demonstrated that the perpetrator targeted certain persons, a group, or a collectivity, based on one of the prohibited grounds, it is not required that all victims of the crime of persecution be members, sympathisers, allies of, or in any other way related to, the protected group.Footnote ²⁴⁸⁸

787. For the purposes of the present judgment, the discriminatory targeting of persons, groups or collectivity on the basis of ‘political’, ‘gender’ and ‘ethnic’ grounds is relevant. ‘[P]olitical’ grounds include targeting by reason of political affiliations, whether actual or only perceived by the perpetrator.Footnote ²⁴⁸⁹ Article 7(3) of the Statute defines ‘gender’ as ‘the two sexes, male and female, within the context of society’. As previously noted by this Court, the same victim or group of victims can be victimised under multiple grounds and a ‘combination of more than one [ground] may […] form the basis for the discrimination’.Footnote ²⁴⁹⁰ A victim can suffer a higher risk of victimisation because of the intersection of different factors of discrimination.Footnote ²⁴⁹¹

788. In relation to the fourth element, the Chamber observes that connection to either an act referred to in Article 7(1) of the Statute or a crime falling within the jurisdiction of the Court is required.Footnote ²⁴⁹² Further, it is the persecution which must be connected with a crime – not the individual acts underlying the same.Footnote ²⁴⁹³

789. As to the mental elements, pursuant to Article 30 of the Statute,Footnote ²⁴⁹⁴ the perpetrator must have: (i) acted deliberately; (ii) meant to deprive one or more person of their fundamental rights, or been aware that this consequence would occur in the ordinary course of event.Footnote ²⁴⁹⁵ In addition, the perpetrator’s conduct must be carried out with the requisite intent, i.e. an intent to discriminate against the targeted persons on any of the grounds enumerated in Article 7(1)(h) of the Statute.Footnote ²⁴⁹⁶ The perpetrator must target the victim because the perpetrator perceives the victim as belonging to a particular group or collectivity.Footnote ²⁴⁹⁷ This specific intent may be inferred from the general behaviour of the perpetrator as well as the circumstances surrounding the commission of the crime.Footnote ²⁴⁹⁸

III. MODES OF LIABILITY

A. Responsibility within the meaning of Article 25(3)(a) of the Statute

790. Under Article 25(3)(a) of the Statute, ‘a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: [c]ommits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible’. Of relevance for this judgment are the modes of liability of‘individual’ and ‘joint’ commission ofa crime.

a) Commission as an individual (‘direct perpetration’)

791. A person commits a crime ‘as an individual’ – or as a direct perpetrator – by personally carrying out the material elements of the crime with the requisite intent and knowledge pursuant to Article 30 of the Statute, as well as any other applicable provision.Footnote ²⁴⁹⁹

b) Commission ‘jointly with another […] person’ (‘co-perpetration’)

792. Joint commission (co-perpetration) involves the execution of the material elements of the crime by a plurality of persons.

793. According to the jurisprudence of the Court, the ‘concept of co-perpetration based on joint control over the crime is rooted in the principle of the division of essential tasks for the purpose of committing a crime between two or more persons acting in a concerted manner. Hence, although none of the persons has overall control over the offence because they all depend on one another for its commission, they all share control because each of them could frustrate the commission of the crime by not carrying out his or her task’.Footnote ²⁵⁰⁰ In these circumstances, any person making a contribution ‘can be held vicariously responsible for the contributions of all the others, and, as a result, can be considered as a principal to the whole crime’.Footnote ²⁵⁰¹

i. Material elements

794. Consistent with the established jurisprudence of the Court, the Chamber recalls that, to hold an individual criminally responsible as a co-perpetrator under the notion of‘control over the crime’,Footnote ²⁵⁰² it must be satisfied that (i) there was a common plan between at least two persons, and (ii) the contribution of the co-perpetrators was essential.

795. As regards the first material element, the Chamber must be satisfied that the accused and at least one other individual worked together (‘jointly’) in the commission of the offence on the basis of an agreement or common plan.Footnote ²⁵⁰³ It is this agreement or common plan that ties the co-perpetrators together and justifies reciprocal imputation of their respective acts.Footnote ²⁵⁰⁴ Accordingly, participation in the commission of the offence without coordination with one’s co-perpetrator(s) falls outside the scope of co-perpetration.Footnote ²⁵⁰⁵ The agreement or common plan may be express or implied, previously arranged or materialise extemporaneously.Footnote ²⁵⁰⁶ Its existence may be inferred from subsequent concerted action of the co-perpetrators,Footnote ²⁵⁰⁷ and proven by direct evidence or inferred from circumstantial evidence.Footnote ²⁵⁰⁸ While the common plan between individuals need not be specifically directed at the commission ofa crime’,Footnote ²⁵⁰⁹ it must nonetheless involve ‘a critical element of criminality’, meaning that, in the context of the specificities of the case it was virtually certain that the implementation of the common plan would lead to the commission of the crimes.Footnote ²⁵¹⁰

796. With regard to the second material element, the requirement that the co-perpetrator’s contribution be ‘essential’ has been consistently established in the Court’s jurisprudence.Footnote ²⁵¹¹ The accused must make an essential contribution without which the commission of the offence would not be possible.Footnote ²⁵¹² To hold an accused liable as a co-perpetrator under Article 25(3)(a) of the Statute, it has to be established, inter alia, that he or she had control over the crime, by virtue of his or her essential contribution to it and the resulting power to frustrate its commission, even if that essential contribution was not made at the execution stage of the crime.Footnote ²⁵¹³

797. It is not necessary that each co-perpetrator, having joint control over the offence, personally and directly carry out the offence, or that he or she be present at the scene of the criminal offence, as long as he or she exercised, jointly with others, control over the criminal offence.Footnote ²⁵¹⁴

798. The Appeals Chamber also found that ‘[p]rovided that the incidents occur within the framework of a criminal common plan, to which the co-perpetrator made an essential contribution with intent and knowledge, it is not necessary for the co-perpetrator to make an essential contribution to each criminal incident’.Footnote ²⁵¹⁵ Consistent with the principle of causation, which requires a causal link between the conduct of an accused and the crime, an accused’s essential contribution must be to the crime for which he or she is responsible. However, the contribution of a co-perpetrator which, on its face, is not directly to a specific crime, but to the implementation of the common plan more generally may still suffice.Footnote ²⁵¹⁶ The decisive consideration for determining whether an accused person qualifies as a co-perpetrator is whether the individual contribution of the accused within the framework of the agreement was such that, without it, the crime could not have been committed or would have been committed in a significantly different way.Footnote ²⁵¹⁷

799. What is required is a normative assessment of the role and activities of the accused person in the specific circumstances of the case, taking into account the division of tasks.Footnote ²⁵¹⁸ The ‘essential contribution’ can be made not only at the execution stage of the crime, but also, depending on the circumstances, at the planning or preparation stage, including when the common plan is conceived.Footnote ²⁵¹⁹ Acts that do not, as such, form the actus reus of the crime may nevertheless be taken into account when determining whether the co-perpetrator made an essential contribution to that crime.Footnote ²⁵²⁰

ii. Mental elements

800. With regards to the mental elements, the Chamber must be satisfied of the co- perpetrators’ mutual awareness that implementing the common plan would result in the fulfilment of the material elements of the crimes, and that they nevertheless performed their actions with the requisite intent and knowledge pursuant to Article 30 of the Statute, as well as any other applicable provision.Footnote ²⁵²¹ It is precisely the co-perpetrators’ mutual awareness and acceptance of the consequence of their action that justifies that the contributions made by the others may be attributed to each of them, and that they be held criminally responsible as principals to the whole offence.Footnote ²⁵²²

801. The Appeals Chamber found that in order to find an accused criminally responsible as a co-perpetrator for specific criminal acts of murder or rape that took place on particular dates and in particular locations, it need not be established that he or she was aware of the details of these events, including whether and which specific acts had been committed. Rather, what must be established is that the person possessed the requisite mens rea with respect to each of the crime as such in the sense of murder, rape, persecution, pillage, etc., committed in implementation of the common plan.Footnote ²⁵²³

B. Responsibility for ‘ordering’ within the meaning of Article 25(3)(b) of the Statute

802. Pursuant to Article 25(3)(b) of the Statute, ‘a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court ifthat person: […] [o]rders, solicits or induces the commission of such crime which in fact occurs or is attempted’.Footnote ²⁵²⁴ As regards the mode of liability of ‘ordering’, the actus reus means that a person in a position of authority instructs another person to commit an offence.Footnote ²⁵²⁵

803. First, the accused (the ‘accessorial perpetrator’) must have been in a de jure or de facto position of authority vis-à-vis the physical perpetrator of the crime.Footnote ²⁵²⁶ No formal superior-subordinate relationship between the accused and the physical perpetrator is required; the accused need only possess the authority to order the physical perpetrator to commit the criminal act(s).Footnote ²⁵²⁷ The assessment of the accused’s authority is based on the circumstances and perceptions of the physical perpetrator.Footnote ²⁵²⁸

804. Second, the accused must have ordered or instructed the physical perpetrator to either: (i) commit the crime which in fact occurred or was attempted; or (ii) perform an act or omission in the execution of which a crime was carried out.Footnote ²⁵²⁹ The accused need not have given the order directly to the physical perpetrator, it could have been given through an intermediary.Footnote ²⁵³⁰ There is no requirement that an order be given in writing or in any particular form, and the existence of an order may be proven through circumstantial evidence.Footnote ²⁵³¹ The Chamber notes that ‘ordering’ may be inferred from a variety of factors, such as the number of criminal acts; the number, identity and type of physical perpetrators involved; the effective command and control exerted by the accused over the physical perpetrators; the logistics involved; the widespread occurrence of the criminal acts; the tactical tempo of operations; the modus operandi of similar acts; the involvement of other actors; the location of the accused at the time; and his knowledge of criminal acts committed under his authority.Footnote ²⁵³²

805. Third, the order must have had a direct effect on the commission of the crime.Footnote ²⁵³³

806. Fourth, with regard to the mental element, the accused intended or meant to order the commission of the crime, or must have been aware that the crime would be committed (or attempted) in the ordinary course of events in the realisation or implementation of the order.Footnote ²⁵³⁴

SECTION 7. LEGAL FINDINGS

807. In this section of the judgment, the Chamber establishes its legal findings, which consists of applying the law, as set out above, to the factual findings and analysing the elements of the crimes and modes of liability charged. The Chamber begins by examining the contextual elements of crimes against humanity and war crimes. It then turns to the specific elements of each crime charged, analysing them in turn. The Chamber addresses separately and subsequently the Accused’s liability as direct perpetrator for crimes alleged to have been personally committed by him. The Chamber finally evaluates the Accused’s liability for other crimes: first, as co-perpetrator under Article 25(3)(a) of the Rome Statute, for having committed jointly with others certain crimes in both Mukjar and Deleig; and second, as an accessorial perpetrator under Article 25(3)(b) of the Statute, for ordering the commission of other crimes in Kodoom and Bindisi.

I. CONTEXTUAL ELEMENTS

A. War crimes

808. The Prosecution and the Defence agree on the facts underlying the existence of an armed conflict not of an international character in Sudan, including Darfur, from at least April 2003 until at least April 2004.Footnote ²⁵³⁵ The Chamber has made a legal determination bearing in mind that, unless a full review of the evidence shows that an agreed fact is erroneous, it is not necessary for the Chamber to conduct an extensive analysis of the relevant evidence and provide detailed reasoning in support of its legal conclusion.

809. Having reviewed the relevant evidence before it, the Chamber notes, in relation to the organisational requirement: (i) that the SLM/A and the JEMFootnote ²⁵³⁶ had a military presence in several areas of the territory;Footnote ²⁵³⁷ (ii) an important number of fighters;Footnote ²⁵³⁸ (iii) military equipment;Footnote ²⁵³⁹ and (iv) the military capacity to attack localities, including police stations and military bases.Footnote ²⁵⁴⁰ In relation to the intensity requirement, the Chamber further notes: (i) the involvement of the Government and the fact that a strategic plan was adopted at the highest state level with the aim of defeating the rebellion,Footnote ²⁵⁴¹ (ii) the Government’s use of public resources to recruit, train, arm, and fund the Janjaweed;Footnote ²⁵⁴² (iii) the number of casualties during the attacks;Footnote ²⁵⁴³ (iv) the extent of destruction;Footnote ²⁵⁴⁴ (v) the number of civilians who fled the areas where fighting occurred;Footnote ²⁵⁴⁵ (vi) that agreements on cease-fire were signed by both parties;Footnote ²⁵⁴⁶ and (vii) that the situation attracted the attention of the UN Security Council acting under Chapter VII of the UN Charter, which led it to refer the situation in Darfur to the Court.Footnote ²⁵⁴⁷

810. Therefore, the Chamber is satisfied that the two requirements for the existence of an armed conflict not of an international character, namely the organisational requirement and the intensity requirement, are fulfilled, and concludes that there was an armed conflict not of an international character in Sudan, including Darfur, from at least April 2003 until at least April 2004. This armed conflict involved the GoS and the Janjaweed on one side, and the SLM/A and the JEMFootnote ²⁵⁴⁸ (two organised non-state armed groups), on the other side. International humanitarian law therefore applied to the conduct of all members of the Janjaweed participating in the hostilities, including the Accused, during the temporal scope of the case.

811. As regards the nexus requirement, the Chamber notes that all the physical perpetrators of the crimes discussed below in Section 7.II on the crimes charged were either members of the Janjaweed or of regular or semi-regular governmental forces, and were mobilized, armed and deployed in that capacity in order to attack the villages of Kodoom and Bindisi (as well as other villages en route), and subsequently those of Mukjar and Deleig. The crimes were therefore committed as part of, or in the context of, the perpetrators’ official duties.Footnote ²⁵⁴⁹ The Chamber also notes that all the crimes occurred in the context of these Government-backed military attacks and the physical perpetrators were acting, and armed, for that purpose by the Government. The Chamber further notes the speeches made by GoS officials and Janjaweed leaders prior to the attacks and the commission of crimes.Footnote ²⁵⁵⁰ These speeches encouraged the attacks, and the expressions used clearly encouraged the commission of crimes such as the murder of civilians, outrages upon personal dignity, and the pillaging and destruction of properties in violation of international humanitarian law principles.Footnote ²⁵⁵¹

812. On the basis of these considerations, and having examined the conduct underlying the crimes and their context, the Chamber is satisfied that such conduct took place in the context of and was associated with an armed conflict not of an international character. The nexus requirement is therefore met with respect to each war crime.

813. Noting the Accused’s role and position within the Janjaweed, one of the parties to the conflict,Footnote ²⁵⁵² namely that he was often present on the ground during military operationsFootnote ²⁵⁵³ and cooperated closely with GoS officials in the implementation of the GoS counter-insurgency efforts, immediately before and throughout the period of the charges,Footnote ²⁵⁵⁴ the Chamber is satisfied that the Accused was aware of the factual circumstances establishing the existence of the armed conflict.

814. Finally, on the basis of the factual context in which the crimes were committed, as described above,Footnote ²⁵⁵⁵ the Chamber is satisfied that the other physical perpetrators were also aware of the factual circumstances establishing the existence of the armed conflict.

B. Crimes against humanity

a) The existence of an attack directed against a civilian population

i. Course of conduct involving the multiple commission of acts referred to in Article 7(1) of the Statute

815. The Chamber is satisfied that, from at least August 2003 until at least April 2004, members of the GoS forces and Janjaweed fighters committed multiple acts referred to in Article 7(1) of the Statute, namely murder, attempted murder, torture, other inhumane acts, rape, forcible transfer and persecution, in the localities of Kodoom, Bindisi, and surrounding areas, Mukjar and Deleig.Footnote ²⁵⁵⁶ The breadth, similarity and number of these acts, which occurred over a period ofsome six months, clearly demonstrate that they were part of‘a series or overall flow ofevents’. This constitutes a course ofconduct involving the multiple commission ofacts referred to in Article 7(1) of the Statute, within the meaning of Article 7(2)(a) of the Statute.

816. Whilst the crimes mentioned above, committed in the context of the charged incidents, are in themselves sufficient to constitute a course of conduct within the meaning of Article 7(2)(a) of the Statute, the Chamber notes that they were committed in the context of a wider State policy, according to which other operations were launched and acts referred to in Article 7(1) of the Statute were committed.

817. Applying these principles of law, the Chamber is satisfied that similar acts were also conducted during the following uncharged attacks: three to four women were raped during the attack on Nyerli on or about 15 August 2003,Footnote ²⁵⁵⁷ and inhabitants were murdered during the attacks in Tiro,Footnote ²⁵⁵⁸ in Merly, in Drangal,Footnote ²⁵⁵⁹ and in Um Jameina.Footnote ²⁵⁶⁰ The congruence between the conduct during the uncharged attacks and the charged attacks satisfy the Chamber that the course of conduct commenced before the three charged operations.

ii. Directed against any civilian population

818. The Chamber recalls that when crimes against humanity are alleged to have been committed during an armed conflict, as in this case, it is not necessary to prove that all individual victims were civilians within the meaning of international humanitarian law. There is no legal requirement that the ‘main aim or object of the relevant acts was to attack civilians’. The question of whether the attack was directed at a civilian population is a factual issue to be assessed by the Chamber.Footnote ²⁵⁶¹

819. In Bindisi, the Chamber is satisfied that at least 16 rapes were committed against women.Footnote ²⁵⁶² The Chamber also notes that there is no indication in the evidence, nor was it argued by the parties, that women directly participated in the armed conflict in Darfur, either on the side of the Government, or among the rebel groups. Therefore the Chamber is satisfied that all the victims of rape in Bindisi were civilians.

820. The Chamber is also satisfied that during this operation, at least 46 individuals were killed.Footnote ²⁵⁶³ The victims were killed inside their homes; whilst fleeing the attack, whilst hiding in the surrounding fields; after they had been captured (some of whom had their hands tied).Footnote ²⁵⁶⁴ The Chamber further recalls that, at the time of the attacks, Kodoom and Bindisi were inhabited by civilians. There was no indication in the evidence of rebel or armed presence in any of these villages at the relevant time.Footnote ²⁵⁶⁵

821. The Chamber also recalls the circumstances in which those crimes occurred. During the course of this operation in Kodoom and Bindisi, the Janjaweed also committed the following acts of violence: they beat, fired at and chased the inhabitants, and set fire to their houses and properties.Footnote ²⁵⁶⁶ The crimes of forced displacements took place in the same circumstances, in Kodoom and Bindisi.Footnote ²⁵⁶⁷

822. In Mukjar and Deleig, the Chamber recalls that the victims of the crimes of torture and murder were amongst the at least 100 predominantly Fur men and boys victims detained at Mukjar police station, between late February and early March 2004,Footnote ²⁵⁶⁸ and amongst the at least 100 Fur men and boys detained in Deleig between 5 and 7 March 2004.Footnote ²⁵⁶⁹ The Chamber recalls that among them, there were sheikhs and umdahs who were the civilian leaders of their communities,Footnote ²⁵⁷⁰ and young boys.Footnote ²⁵⁷¹ These men and boys were arrested during house to house searches,Footnote ²⁵⁷² or on the streets or outside mosques.Footnote ²⁵⁷³ The Chamber finally recalls that even if there were some fighters among the detainees, this does not affect the civilian character of the population that was being attacked in terms of article 7(1) of the Statute.Footnote ²⁵⁷⁴ Considering all the circumstances described above as a whole, and bearing in mind the explicit goal of the State policy described below,Footnote ²⁵⁷⁵ the Chamber is satisfied that the attack was directed against a civilian population.

iii. The existence of a State policy to commit such attack

823. First, the Chamber recalls that the attack against the civilian population mounted by GoS forces and the Janjaweed, was part of a plan designed at the highest level of the State. After the assault on El Fasher airport on 25 April 2003, the Government of Sudan decided that the rebels should be defeated militarily and put a plan in place.Footnote ²⁵⁷⁶ On 18 December 2003, the plan was formalised by the NSC’s adoption of the Emergency Plan.Footnote ²⁵⁷⁷

824. Second, one of the objectives of this plan was to attack civilians and to target specific communities (non-Arab tribes). The explicit objectives of the Emergency Plan were to ‘[r]estor[e] security in the states ofDarfur and [end] the rebellion through military and security decisiveness’, fight the SLA and JEM, and ‘impos[e] control over all the villages and the regions to which rebel leaders belong (Fur, Zaghawa, Masalit)’ and ‘the areas inhabited by the rebellious tribes’.Footnote ²⁵⁷⁸ These aims were to be achieved through the creation of semi-regular forces ‘from Arab tribes’ and their support by the Government.Footnote ²⁵⁷⁹ The Government Emergency Plan shows that the conflict had an ethnic dimension: the entire communities of the Fur, Zaghawa and Masalit were to be targeted and attacked, because their members were all perceived as associated with the rebels, and thus as the enemy.Footnote ²⁵⁸⁰ The Emergency Plan specifically stated that the Government’s project included ‘assassinate sympathisers from among community leaders (umdahs) and local administration officials.’Footnote ²⁵⁸¹ Such orders, coming from the highest level of the State, did not take into account the basic international humanitarian law principle of distinction, and, at a minimum, made no distinction between fighters and civilians, who all seemed to be the targets of the planned military operations.Footnote ²⁵⁸²

825. Third, in the execution phase of the plan, this objective to attack civilians and to target specific communities was conveyed by the Government to the direct perpetrators, namely the Janjaweed and the GoS forces, through speeches and the use of a specific language. Between at least August 2003 and March 2004, senior GoS officials travelled throughout West Darfur giving speeches to promote and encourage the attacks.Footnote ²⁵⁸³ In training camps, at graduation ceremonies, or shortly before the attacks, fighters were encouraged by the Accused, GoS officials and Janjaweed leaders, including through the use of the term ‘amsah aksah’, to commit crimes against civilians and to target specific communities, namely the non-Arab tribes, including the Fur, and to deliver the land with ‘not a single Fur on it’.Footnote ²⁵⁸⁴

826. The content ofthose speeches, including the use of‘amsah aksah’, were explicit orders to:

• • take no prisoners and kill anyone, including civilians: ‘wipe out and sweep away the Fur do not keep anyone alive’,Footnote ²⁵⁸⁵ ‘[President Al-Bashir said that] no stone, no trees, no plant, no human beings [would] be left safe and that he [did not] want any prisoner or casualties or wounded in the Darfur war’,Footnote ²⁵⁸⁶ ‘[the Accused said that the ‘motto’ was] [c]ut the straw, eat it raw. Don’t leave anyone behind, and bring no one alive’,Footnote ²⁵⁸⁷ ‘never bring someone alive’;Footnote ²⁵⁸⁸

• • destroy everything and ‘wipe out’ entire areas: ‘not even a single tree should be standing there’;Footnote ²⁵⁸⁹

• • act without any limits: ‘Bring him alive, eat him alive, fresh’, ‘[amsah aksah’ means] there are no restrictions or limits that govern military and combat operations’, ‘the fighters should be, of course, free to do what they do. There are no limits, so they can do what they like’, ‘[amsah aksah] these words mean genocide and killing prisoners’;Footnote ²⁵⁹⁰ and

• • looting and pillaging: ‘the Fur and their money were war booty [sic] or a “prize” for the Janjaweed’.Footnote ²⁵⁹¹

827. ‘Amsah aksah’, also used as a ‘motto’ by the fighters, GoS Forces and Janjaweed alike, when they ‘carried out the work’ on the battleground,Footnote ²⁵⁹² was described by witnesses as meaning that the fighters could do what they like, without any limit.Footnote ²⁵⁹³

828. The Chamber is satisfied that the language used by GoS officials and Janjaweed leaders, including the Accused, dehumanised the non-Arab tribes targeted, who would be the future victims of the crimes. In the speeches, they were represented as objects, a ‘booty’ or a ‘war prize’,Footnote ²⁵⁹⁴ or something that could be eaten;Footnote ²⁵⁹⁵ they were placed on the same level as ‘trees’ and ‘stones’;Footnote ²⁵⁹⁶ they were described as something that the fighters could do what they wanted with, with no limits.Footnote ²⁵⁹⁷ The non-Arab tribes targeted and the places they lived in were also repeatedly represented, as something that needed to be ‘cleaned’.Footnote ²⁵⁹⁸

829. In addition, the speeches and instructions were given in a specific context. These preparatory meetings and speeches coincided with the distribution of military equipment, weapons or money by the GoS and/or immediately preceded attacks and lootings.Footnote ²⁵⁹⁹ They were made in the historical context of pre-existing tribal tensions between non-Arab tribes and Arab tribes.Footnote ²⁶⁰⁰ They were addressed to fighters comprised of GoS forces and Janjaweed specifically selected on the basis of their belonging to Arab tribes.Footnote ²⁶⁰¹ Therefore, those speeches, addressed to fighters member of Arab tribes, in this specific context of pre-existing tribal tensions, and which dehumanised members of non-Arab tribes, encouraged, as intended, the commission of crimes against them.

830. Fourth, the existence of the State policy is further demonstrated by the fact the GoS invested significant human and material resources in the execution of the plan, and was involved in the organisation of the attack. Indeed, the GoS provided human and financial resources for its implementation, by creating semi-regular forces, including, the Janjaweed, which were recruited, trained, armed and mobilized by the Government.Footnote ²⁶⁰² In this respect, the Chamber recalls that the Government recruited the Janjaweed and mobilized other paramilitary forces, like the PDF, in the knowledge of their greater proclivity to commit crimes than the regular forces whose actions were regulated by the law.Footnote ²⁶⁰³ On the ground, military leaders (including Janjaweed leaders) received orders from the Government.Footnote ²⁶⁰⁴

831. The Chamber is satisfied that the attack occurred pursuant to a preconceived governmental strategy, formalized in the Emergency Plan, the execution of which involved the commission of crimes. Those crimes specifically targeted civiliansFootnote ²⁶⁰⁵ from non-Arab tribes in Wadi Salih, in particular the Fur, who were perceived as associated with the rebels, and thus as the enemy. The crimes committed were undoubtedly the intended outcome of the implementation of this State policy which, as demonstrated above, was designed, actively promoted, and put into action by GoS officials and Janjaweed.

832. Accordingly, the Chamber is satisfied that the legal requirement under Article 7(2)(a) of the Statute, namely that the attack was directed against a civilian population pursuant to a State policy, is met.

b) The systematic and widespread nature of the attack

833. The Chamber will first assess whether the attack was systematic. It recalls that the attacks on the non-Arab civilian population in Kodoom, Bindisi, Mukjar and Deleig unfolded following a largely similar pattern and were clearly pre-planned and coordinated. The Janjaweed, (at times together with GoS forces), attacked villages, searched for and murdered civilians, either during the course of a military assault (in Kodoom and Bindisi), or after having arrested, detained and mistreated them (in Mukjar and Deleig). The pattern of operations followed in Kodoom was repeated later in Bindisi, namely: the perpetrators first reassured the population to encourage them not to flee;Footnote ²⁶⁰⁶ then attacked the town, killing and raping civilians, pursuing those who were running away, looting goods and burning houses.Footnote ²⁶⁰⁷ Similarly, the pattern followed in Mukjar by the Janjaweed and GoS forces was later repeated in Deleig, namely: perpetrators carried out house to house searches,Footnote ²⁶⁰⁸ arrested individuals at checkpoints,Footnote ²⁶⁰⁹ before torturing them and submitting them to other inhumane acts during detention, and murdering some of them.Footnote ²⁶¹⁰

834. The systematic nature of the attack is further demonstrated by the fact that the relevant operations were planned and organised by the State, which recruited, trained, and rewarded the Janjaweed.Footnote ²⁶¹¹ The criminal acts are consistent with the encouragement the perpetrators received from the speeches of senior GoS officials and Janjaweed leaders, including the Accused.Footnote ²⁶¹²

835. On the basis of the modus operandi of the various operations, which was repeated across several locations and over the course of a six month period, the Chamber is satisfied that the attack against the civilian population was systematic, rather than random or accidental.

836. Second, the Chamber will now turn to assess whether the attack was also widespread. The Chamber recalls its findings to the effect that: (a) in Kodoom, members of the Janjaweed ‘shot and killed many people’, among which at least 46 victims;Footnote ²⁶¹³ (b) in Bindisi, members of the Janjaweed raped ‘numerous women’, at least 16Footnote ²⁶¹⁴ and several individuals were victims of other inhumane acts;Footnote ²⁶¹⁵ (c) during the attacks on Kodoom and Bindisi on 15 and 16 August 2003, ‘numerous inhabitants’, including children, were victims of forced displacements;Footnote ²⁶¹⁶ (d) the victims of torture at Mukjar police station were among the ‘at least 100 predominantly Fur men and boys’ detained, and at Deleig police station, they were among the ‘at least 100 Fur men and boys^’ arrested and detained;Footnote ²⁶¹⁷ (e) members of the Janjaweed and GoS Forces shot and killed no fewer than three detainees at Mukjar police station and 50 detainees outside of Mukjar, and no fewer than 114 detainees in the areas surrounding Deleig.Footnote ²⁶¹⁸ The Chamber is also satisfied that the civilians inhabitants of Kodoom and Bindisi present during the attacks, and all predominantly Fur men arrested and detained in Mukjar and Deleig were victims of the crime of persecution.Footnote ²⁶¹⁹

837. In view of its large-scale nature and the number of targeted persons, the Chamber is satisfied that the attack against the civilian population was also widespread.

838. Whilst the crimes mentioned above, committed in the context of the charged incidents, are by themselves sufficient to show the widespread nature of the attack, the Chamber recalls, furthermore, that it is satisfied that additional and similar acts were also conducted during the uncharged attacks in Nyerli, Tiro, Merly, Drangal, and Um Jameina.Footnote ²⁶²⁰

c) The existence of a nexus between the crimes and the attack directed against any civilian population and perpetrator’s awareness ofthat nexus

839. The Chamber recalls that the physical perpetrators of the crimes of murder and attempted murder, torture, other inhumane acts, rape, forcible transfer and persecution, were all Janjaweed (at times together with members of the GoS Forces). These forces, led by the Accused,Footnote ²⁶²¹ committed the crimes in the exercise of their activities, acting pursuant to instructions received from GoS officials, and to implement the Government policy described above.Footnote ²⁶²² They participated in the three charged operations which resulted in the commission of the crimes.Footnote ²⁶²³ Bearing in mind this factual context, and also having examined each underlying conduct and their factual circumstances, the Chamber is satisfied that all acts within the ambit of Article 7(1) of the Statute were committed as part of a systematic attack against a civilian population and that the perpetrators, including the Accused, must have known that such conduct was part of such an attack.

II. CRIMES CHARGED

A. Cumulative convictions

840. Cumulative conviction is a situation where the same facts satisfy the legal definition of multiple crimes.Footnote ²⁶²⁴ The Chamber notes that there is no provision in the Statute explicitly requiring it to exclude some legal qualifications of facts on the ground that they are an impermissible concurrence with other legal qualifications of the same facts.Footnote ²⁶²⁵ Additionally, the provisions on sentencing may be considered in themselves adequate to address, in the context of the determination of the sentence to be imposed, those instances in which a person is convicted of more than one crime on the basis of the same conduct.Footnote ²⁶²⁶

841. The Chamber agrees with the consistent practice of trial chambers of the Court regarding the existence of certain limitations on the permissibility of concurring crimes and consequential cumulative convictions.Footnote ²⁶²⁷ In particular, various trial chambers have consistently held that convictions may be entered cumulatively if the conduct in question violates two distinct provisions of the Statute, each having a ‘materially distinct’ element not contained in the other, i.e. an element which requires proof of a fact not required by the other.Footnote ²⁶²⁸

842. The Chamber observes that, in the present case, situations in which the same conduct fulfils the legal elements of more than one crime include: (i) analogous crimes against humanity under Article 7 and war crimes under Article 8 of the Statute; (ii) torture and other inhumane acts as crimes against humanity under Article 7(1)(f) and (k) of the Statute; (iii) torture and cruel treatment as war crimes under Article 8(2)(c)(i) of the Statute; and (iv) persecution as a crime against humanity under Article 7(1)(g) and other charged crimes. These concrete questions of concurring crimes are discussed in the legal analysis below. In the event of cumulative convictions arising in the present case, these will be addressed in the determination of the sentence imposed.Footnote ²⁶²⁹

B. Attack against a civilian population as a war crime (Count 1)

a) The charges

843. Under Count 1, the Accused is charged with intentionally directing attacks against the civilian population of Kodoom and Bindisi and surrounding areas as such, or against individual civilians not taking direct part in hostilities, as a war crime, between 15 and 16 August 2003, pursuant to Article 8(2)(e)(i) of the Statute.Footnote ²⁶³⁰

b) Findings of the Chamber

844. The Chamber reiterates that on 15 and 16 August 2003, the Janjaweed conducted an operation during which both Kodoom and Bindisi were attacked.Footnote ²⁶³¹ Their contingent possessed vehicles, such as Land Cruisers, and was equipped with various types of weapons, such as assault rifles.Footnote ²⁶³² Over the course of this operation, the Janjaweed moved through the neighbourhoods, firing at and chasing civilians, as well as setting fire to houses and properties.Footnote ²⁶³³ On the basis of these facts, the Chamber is satisfied that the first legal element of intentionally attacking civilians as a war crime, i.e. that the perpetrator directed an attack, is met.

845. The Chamber notes that Kodoom and Bindisi were inhabited by civilians.Footnote ²⁶³⁴ Whilst there is some evidence that isolated individuals had weapons and resisted the attack in Kodoom,Footnote ²⁶³⁵ the Chamber notes that there is no evidence of rebels or armed groups being present in Kodoom and Bindisi.Footnote ²⁶³⁶ In any event, even if rebels or armed persons were present, this does not deprive the civilian population of its civilian character.Footnote ²⁶³⁷ The Chamber further notes that Kodoom and Bindisi primarily consisted of civilian structures.Footnote ²⁶³⁸ There is no indication in the evidence that these towns contained structures that would constitute military objectives. On the basis of these facts, the Chamber is satisfied that the second legal element of intentionally attacking civilians as a war crime, i.e. that the object of the attack was a civilian population as such, is met.

846. With respect to the mental elements, on the basis of the facts discussed above,Footnote ²⁶³⁹ the Chamber is satisfied that the various acts underlying the attack were launched deliberately by the Janjaweed involved in the Kodoom and Bindisi Operation. In relation to the special intent requirement, the Chamber recalls its finding that Kodoom and Bindisi were targeted as they were primarily inhabited by non-Arab tribes.Footnote ²⁶⁴⁰ As stated above, the GoS considered all members of non-Arab tribes, including the Fur, to be rebels.Footnote ²⁶⁴¹ In the lead up to the Kodoom and Bindisi Operation, Minister Harun gave a speech in Mukjar in which he told a group of Janjaweed to ‘wipe out and sweep away the Fur do not keep anyone alive’.Footnote ²⁶⁴² Rather than taking any necessary precautions to spare the civilians, the perpetrators, (immediately prior to the attacks), as already stated, gave reassurances to the local population that they would not be harmed; this was done to ensure that they would not flee the forthcoming attacks.Footnote ²⁶⁴³ Given these circumstances, the Chamber finds that the perpetrators meant for the civilian population of Kodoom and Bindisi as such to be the object of their attack. The Chamber is therefore satisfied that the mental elements of intentionally attacking civilians as a war crime, pursuant to Articles 8(2)(e)(i) and 30 of the Statute, are met.

c) Conclusion

847. Accordingly, the Chamber is satisfied that members of the Janjaweed committed the war crime of intentionally directing an attack against the civilian population of Kodoom and Bindisi on 15 and 16 August 2003.

C. Pillaging as a war crime (Count 4)

a) The charges

848. Under Count 4, the Accused is charged with pillaging as a war crime, in Kodoom and Bindisi, between 15 and 16 August 2003, pursuant to Article 8(2)(e)(v) of the Statute.Footnote ²⁶⁴⁴

b) Findings of the Chamber

849. The Chamber found that, on 15 August 2003, in Kodoom, the Janjaweed took possession of household items, livestock and money.Footnote ²⁶⁴⁵ The Janjaweed were seen searching through houses.Footnote ²⁶⁴⁶ On 15 and 16 August 2003, in Bindisi, members of the Janjaweed broke into houses, commercial locations, warehouses, the police station and the zakat office, and took personal belongings from civilians, livestock, supplies and a generator.Footnote ²⁶⁴⁷ On the basis of these facts, the Chamber is satisfied that the first legal element of pillaging as a war crime, i.e. that the perpetrator appropriated certain property, is met.

850. The Chamber notes that the persons from whom the property was taken were not in a position to agree voluntarily to the Janjaweed taking their property, either because they were absent or owing to the coercive circumstances in which the appropriations occurred.Footnote ²⁶⁴⁸ In this regard, the Chamber notes that at the time these acts of appropriation were being committed, the members of the Janjaweed committed other crimes against the inhabitants.Footnote ²⁶⁴⁹ Considering these circumstances, the Chamber finds that appropriation took place without the consent of the owners of the looted goods. This legal element is thus met.

851. As regards the mental elements, the Chamber notes that the appropriation of property, i.e. household items, livestock, money, supplies, a generator, and personal items belonging to civilians, did not serve an inherently military purpose nor were they taken from locations serving one.Footnote ²⁶⁵⁰ This is supported by the fact that this looting followed Minister Harun’s speech labelling the money of Fur people as booty or ‘prize’ for the Janjaweed,Footnote ²⁶⁵¹ and that members of the Janjaweed indeed kept the appropriated property for their personal use,Footnote ²⁶⁵² and not for any military purpose. On the basis of these considerations, the Chamber finds that these appropriations were deliberate, not justified by military necessary, and, in the absence of evidence indicating the contrary, that the perpetrators meant to deprive the owners of their property and to appropriate them for private or personal use. For the same reasons, the Chamber also considers that the only reasonable conclusion is that the perpetrators must have known that the appropriation was conducted without the consent of the owner. The Chamber is therefore satisfied that the mental elements of pillaging as a war crime, pursuant to Article 30 of the Statute and the specific intent requirement under Article 8(2)(e)(v)(2) of the Elements of Crimes, are met.

c) Conclusion

852. Accordingly, the Chamber is satisfied that members of the Janjaweed committed the war crime of pillaging in Kodoom on 15 August 2003 and in Bindisi on 15 and 16 August 2003.

D. Destroying the enemy’s property as a war crime (Count 5)

a) The charges

853. Under Count 5, the Accused is charged with destruction of the property of an adversary, without military necessity, as a war crime, in Kodoom and Bindisi, between 15 and 16 August 2003, pursuant to Article 8(2)(e)(xii) of the Statute.Footnote ²⁶⁵³

b) Findings of the Chamber

854. The Chamber found that, on 15 August 2003, members of the Janjaweed burned down houses across Kodoom, as well as items that were located inside them. On 15 and 16 August 2003, in Bindisi, the members of the Janjaweed burned down houses and the ‘big mosque’ (with its collection of Islamic books). Members of the Janjaweed destroyed the police station in South Bindisi, along with documents found in it.Footnote ²⁶⁵⁴ On the basis of these facts, the Chamber is satisfied that the first legal element of destruction of an adversary’s property as a war crime, i.e. that the perpetrator destroyed certain property, is met.

855. The Chamber notes that Kodoom and Bindisi were predominantly Fur villages,Footnote ²⁶⁵⁵ and therefore the property destroyed (with the exception of the South Bindisi police station, as explained below), belonged primarily to, or at least was perceived to belong to members of the Fur tribe. The Chamber recalls its finding that the GoS considered all members of non-Arab tribes, including the Fur, as being rebels.Footnote ²⁶⁵⁶ The Janjaweed, who were fighting on the side of the GoS, considered the Fur tribe and the predominantly Fur villages as the adversary or as being aligned with the opposing party (i.e. the rebels) to the conflict. On the basis of these considerations, the Chamber is satisfied that the second legal element of destruction of an adversary’s property as a war crime is met, i.e. that the destroyed property was property of an adversary, is met.

856. As regards the destruction of the South Bindisi police station, along with the documents contained within it, there is no indication that they belonged or were perceived to belong to an individual or entity different from the GoS. Given this, and recalling its finding that the Janjaweed were fighting on the side of the GoS,Footnote ²⁶⁵⁷ the Chamber considers that this specific incident does not fulfil the requirements of the second legal element of destruction of an adversary’s property as a war crime. Therefore, the Chamber does not consider it in its analysis under Count 5.

857. There is no indication in the evidence that the property destroyed, which was of a civilian nature, served any military purpose or constituted a military objective, and a reasonable person could therefore not have believed that the property destroyed qualified as such. The Chamber further notes that there was no evidence of a rebel presence in these locations at the relevant time.Footnote ²⁶⁵⁸ Importantly, the Chamber observes that Kodoom and Bindisi were under the control of the attacking forces (i.e. the Janjaweed) when the properties were being destroyed.Footnote ²⁶⁵⁹ The Chamber therefore finds that the property destroyed was protected from that destruction under international humanitarian law. Similarly, there is no evidence that the destruction was required by military necessity. The Chamber is therefore satisfied that the third and fifth legal elements of destruction of an adversary’s property as a war crime, respectively, that the destroyed property was protected from that destruction under the international law of armed conflict, and that the destruction was not required by military necessity, are met.

858. Turning to the general mental elements under Article 30 of the Statute, the Chamber is satisfied, based on the nature of the conduct undertaken by the Janjaweed throughout the Kodoom and Bindisi Operation,Footnote ²⁶⁶⁰ that their conduct was deliberate, that they meant to destroy property, and that they did so with knowledge that such destruction was not justified by military necessity. In light of the circumstances prevailing at the relevant time,Footnote ²⁶⁶¹ and in the absence of evidence suggesting otherwise, the Chamber also finds that the perpetrators must have been aware of the factual circumstances that established the status of the property and that such property was the property of the adversary. On the basis of the above, the Chamber is satisfied that the mental elements of destruction as a war crime, pursuant to Article 30 of the Statute, are met.

c) Conclusion

859. Accordingly, the Chamber is satisfied that members of the Janjaweed committed the war crime of destroying the enemy’s property in Kodoom on 15 August 2003 and in Bindisi on 15 and 16 August 2003.

E. Forcible transfer of population as a crime against humanity (Count 10)

a) The charges

860. Under Count 10, the Accused is charged with forcible transfer as a crime against humanity, concerning the expulsion of Fur persons lawfully present in Kodoom and Bindisi, between 15 and 16 August 2003, pursuant to Article 7(1)(d) of the Statute.Footnote ²⁶⁶²

b) Findings of the Chamber

861. The Chamber recalls its findings that on 15 and 16 August 2003 members of the Janjaweed intentionally attacked the civilian populations of Kodoom and Bindisi.Footnote ²⁶⁶³ Members of the Janjaweed pillaged, destroyed property, mistreated and murdered civilians and raped women.Footnote ²⁶⁶⁴ These acts forced numerous inhabitants, including children, to flee to nearby forests, fields, and towns in Sudan and Chad – many of them were unable to return.Footnote ²⁶⁶⁵ In this regard, the Chamber notes that witnesses gave evidence that people ‘ran for their lives’, ‘ha[d] no other choice than to leave their territory’ and that they ‘were displaced’.Footnote ²⁶⁶⁶ In these circumstances, and further noting the extent to which Kodoom and Bindisi were destroyed,Footnote ²⁶⁶⁷ the Chamber finds that the persons who fled did not have a genuine choice to remain and were thus forced to leave with no hope of return. Given this, and noting that the evidence on the record does not reveal any grounds under international law permitting such displacement, the Chamber finds that the resulting displacement was unlawful. On the basis of these facts, the Chamber is satisfied that the first legal element of forcible transfer as a crime against humanity, i.e. that the perpetrator forcibly displaced, without grounds permitted under international law, one or more persons to another location by coercive acts, is met.

862. The Chamber recalls that the individuals who were forcibly displaced were inhabitants of Kodoom and Bindisi.Footnote ²⁶⁶⁸ On this basis, and in the absence of any evidence suggesting that their presence was unlawful, the Chamber is satisfied that the second legal element of forcible transfer as a crime against humanity, i.e. that victims were lawfully present in the area from which they were forcibly transferred, is met.

863. In relation to the general mental elements under Article 30 of the Statute, the Chamber recalls that the Kodoom and Bindisi Operation was carried out pursuant to the Emergency Plan, which gave instructions to drive civilians out of areas inhabited by ‘rebellious tribes’.Footnote ²⁶⁶⁹ The Chamber further recalls that the Fur were considered one of such tribes, and that Kodoom and Bindisi were predominantly Fur villages.Footnote ²⁶⁷⁰ Given these facts, and noting the facts discussed above,Footnote ²⁶⁷¹ the Chamber is satisfied that the relevant conduct of the members of the Janjaweed was deliberate and that they meant to transfer or displace the victims. For the same reasons, the Chamber is satisfied that the perpetrators were aware of the factual circumstances that established the lawfulness of the displaced individuals’ presence in the area.

864. In addition, the Chamber finds that the Janjaweed were aware that as an inevitable consequence of their actions (including pillaging, destroying property, mistreating and murdering civilians, and raping women) and the instructions they received to ‘wipe out’ predominantly Fur villages such as Kodoom and Bindisi,Footnote ²⁶⁷² the inhabitants therein would flee. Given this, and recalling the extent to which Kodoom and Bindisi were destroyed,Footnote ²⁶⁷³ the Chamber finds that the Janjaweed were aware that it was unlikely that the population would return. In this regard, the Chamber recalls that according to P-1042, the armed conflict’s impact on the civilian population was foreseeable in light of prior large-scale military campaigns in Sudan.Footnote ²⁶⁷⁴ On the basis of all these considerations, the Chamber is satisfied that the members of the Janjaweed were aware that the transfer or displacement of victims would occur in the ordinary course of events.

c) Conclusion

865. Accordingly, the Chamber is satisfied that members of the Janjaweed committed forcible transfer as a crime against humanity against the inhabitants of Kodoom and Bindisi on 15 and 16 August 2003.

F. Rape as a crime against humanity and as a war crime (Counts 8 and 9)

a) The charges

866. Under Counts 8 and 9, the Accused is charged respectively with rape as a crime against humanity, pursuant to Article 7(1)(g), and as a war crime, in Bindisi and surrounding areas, between 15 and 16 August 2003, pursuant to Article 8(2)(e)(vi) of the Statute.Footnote ²⁶⁷⁵

b) Findings of the Chamber

867. The Chamber found that, between 15 and 16 August 2003, in Bindisi, members of the Janjaweed had sexual intercourse with no fewer than 16 women of all ages.Footnote ²⁶⁷⁶ On the basis of these facts, the Chamber is satisfied that the first element of rape as a crime against humanity, pursuant to Article 7(1)(g), and rape as a war crime, pursuant to Article 8(2)(e)(vi), i.e. that the perpetrator invaded the body of a person by conduct resulting in sexual penetration, is met.

868. The Chamber notes that these acts were committed concomitantly with an attack directed against the civilian population, including the burning of houses and properties, the shooting and killing of many inhabitants, the looting and the beating of people.Footnote ²⁶⁷⁷ In addition, several of these rapes were committed in circumstances which included: (i) the use of physical force and sharp objects; (ii) the use of explicit threats and other violent and derogatory language; (iii) the commission by several members of the Janjaweed successively or simultaneously; (iv) the perpetration out in the open for other women to watch; and (v) the commission against girls between 15 and 18 years of age.Footnote ²⁶⁷⁸ On the basis of these facts, the Chamber is satisfied that second element of rape as a crime against humanity, pursuant to Article 7(1)(g), and rape as a war crime, pursuant to Article 8(2)(e)(vi), i.e. that the invasion was committed by force, or by threat of force or coercion, is met.Footnote ²⁶⁷⁹

869. As regards the general mental elements under Article 30 of the Statute, the Chamber is satisfied, on the basis of the facts discussed above,Footnote ²⁶⁸⁰ that the conduct of members of the Janjaweed resulting in the sexual penetration of the victims was deliberate and that they meant to invade the bodies of the victims. Given the nature of the underlying conduct, as well as the circumstances prevailing at the relevant time,Footnote ²⁶⁸¹ the Chamber is also satisfied that all perpetrators must have been aware that they had used, created and/or taken advantage of force, threat of force and coercion to commit the crime. On the basis of the above, the Chamber is satisfied that the mental elements of rape as a war crime and as a crime against humanity, pursuant to Article 30 of the Statute, are met.

c) Conclusion

870. Accordingly, the Chamber is satisfied that members of the Janjaweed committed rape, as a war crime and as a crime against humanity, in Bindisi between 15 and 16 August 2003, against no fewer than 16 women.

G. Torture as a crime against humanity and as a war crime (Counts 12-13 and 22-23)

a) The charges

871. Under Counts 12 and 13, the Accused is charged respectively with torture as a crime against humanity and as a war crime, at Mukjar police station between late February and early March 2004, pursuant to Articles 7(1)(f) and 8(2)(c)(i) of the Statute.Footnote ²⁶⁸²

872. Under Counts 22 and 23, the Accused is charged respectively with torture as a crime against humanity and as a war crime in Deleig, between 5 and 7 March 2004, pursuant to Articles 7(1)(f) and 8(2)(c)(i) of the Statute.Footnote ²⁶⁸³

b) Findings of the Chamber

873. The Chamber recalls that, over the course of at least two days between late February and early March 2004, members of the Janjaweed and GoS Forces verbally and physically abused at least 100 predominantly Fur men and boys, at Mukjar police station.Footnote ²⁶⁸⁴ This included beating the detainees using sticks and whips, burning them, shaving their heads and severing their ears.Footnote ²⁶⁸⁵ In addition, the conditions of their detention were inhumane: the cells were overcrowded, dirty and hot; the detainees were given little to no food or water; they were forced to urinate and defecate in the cells; and they were not provided any medical treatment.Footnote ²⁶⁸⁶ The Chamber also found that, as a result of these dire condition of detention and the abuse inflicted by the Janjaweed and GoS Forces, at least three man detained at Mukjar police station died.Footnote ²⁶⁸⁷

874. The Chamber found that, between 5 and 7 March 2004, members of the Janjaweed and GoS Forces also physically abused at least 100Footnote ²⁶⁸⁸ Fur men and boys arrested during the search and arrest operation in different areas of Deleig.Footnote ²⁶⁸⁹ The Janjaweed and GoS Forces kicked, beat, whipped and stabbed the detainees.Footnote ²⁶⁹⁰ The Chamber also found that the Janjaweed and GoS forces brought the detainees to an open area near Deleig police station where they were made to lie face down on the ground in the hot sun for prolonged periods of time.Footnote ²⁶⁹¹ While the detainees were lying on the ground, members of the Janjaweed walked on their backs, stomped on them, and hit them with fist, whip and stick.Footnote ²⁶⁹² The Chamber recalls that the detainees inside Deleig police station were beaten, whipped and pulled by the neck while tied with a metallic-type rope.Footnote ²⁶⁹³ In addition, the victims were detained in intolerable conditions: the small cell was so over overcrowded that it was hard to breathe, the detainees were denied food and water, and had to defecate where they crouched.Footnote ²⁶⁹⁴ Finally, the Chamber recalls that the acts of torture and mistreatment committed by the Janjaweed left many victims with long term psychological and physical harms.Footnote ²⁶⁹⁵

875. On the basis of these facts, the Chamber is satisfied that the first legal element of torture as a crime against humanity, pursuant to Article 7(1)(f) of the Statute, and torture as a war crime, pursuant to Article 8(2)(c)(i) of the Statute, namely that the perpetrator inflicted severe physical or mental pain or suffering on the victim, is met with respect to victims of both the Mukjar and Deleig Operations.

876. At the relevant time, the men and boys arrested and/or detained at Mukjar and Deleig police stations were in the custody and under the control of the Janjaweed and GoS Forces. Therefore, the second element of torture as a crime against humanity, pursuant to Article 7(1)(f) of the Statute, namely that the person or persons were in the custody or under the control of the perpetrator, is also met.

877. The Chamber recalls that the victims in this case were subjected to the acts described above while being detained. Furthermore, there is no indication in the evidence that the harsh treatment meted out occurred as a result of lawful sanctions. The third constitutive element of torture as a crime against humanity under Article 7(1)(f) of the Statute, namely that the pain or suffering inflicted did not arise only from, and was not inherent in or incidental to, lawful sanction, is therefore likewise met.

878. With regard to the second legal element of torture as a war crime, pursuant to Article 8(2)(c)(i) of the Statute, the Chamber found that some of the detainees in Mukjar were asked if they were tora bora. If they answered negatively, they were interrogated;Footnote ²⁶⁹⁶ threatened, called abid and tora bora; and accused of being rebels.Footnote ²⁶⁹⁷ In Deleig, the Janjaweed and GoS Forces also questioned the detainees about their affiliation with the rebels and weapons.Footnote ²⁶⁹⁸ They were also referred to as ‘tora bora’, ‘abid’ and ‘himar‘.Footnote ²⁶⁹⁹ On the basis of these considerations, the Chamber is satisfied that the second element of Article 8(2)(c)(i) is met as the Janjaweed and GoS Forces inflicted pain and suffering to punish and intimidate the detainees and for reasons based on political and ethnic discrimination. This legal element is thus met with respect to all detainees victimised.

879. In relation to the status of the victims, the Chamber notes that most of the detainees in Mukjar were arrested at checkpoints trying to enter Mukjar, following attacks on their villages;Footnote ²⁷⁰⁰ the sheikhs and umdahs were arrested as civilian leaders of their communities;Footnote ²⁷⁰¹ and there is some evidence that boys as young as 9 or 10 years old were detained at Mukjar police station.Footnote ²⁷⁰² The Chamber notes that the detainees at Deleig police station were similarly arrested during house to house searches,Footnote ²⁷⁰³ on the streets or outside mosques;Footnote ²⁷⁰⁴ that the umdahs were civilian leaders of their communities;Footnote ²⁷⁰⁵ and that some detainees had their hands bound behind their backs.Footnote ²⁷⁰⁶ The Chamber notes that there is no evidence before it, nor has it been suggested by the Defence, that there was any resistance, ongoing hostilities, or other circumstance that would render the victims from the Mukjar or Deleig Operation lawful targets under IHL. Under these circumstances, the Chamber is satisfied that the detainees were protected under IHL, either as civilians taking no active part in the hostilities at the relevant time or hors de combat. Accordingly, the Chamber finds that the third element of torture as a war crime, pursuant to Article 8(2)(c)(i) of the Statute is met.

880. Turning to the general elements under Article 30 of the Statute, the Chamber is satisfied, on the basis of the facts discussed above,Footnote ²⁷⁰⁷ that the members of the Janjaweed and the GoS Forces who engaged in the relevant conduct did so deliberately and meant to inflict severe pain and suffering upon each and every victim. In light of the circumstances prevailing at the relevant time, most importantly their arrest, detention and mistreatment,Footnote ²⁷⁰⁸ the Chamber also finds that the perpetrators were necessarily aware of the factual circumstances establishing the victims’ protected status under IHL. Accordingly, the general mental elements under Article 30 of the Statute are met with respect to torture as a crime against humanity and as a war crime.

c) Conclusion

881. Accordingly, the Chamber is satisfied that members of the Janjaweed and GoS Forces committed torture, as a crime against humanity and a war crime, at Mukjar police station between late February and early March 2004, against at least 100 Fur men and boys, and in Deleig between 5 and 7 March 2004, against at least 100 Fur men and boys.

H. Other inhumane acts as a crime against humanity (Counts 6, 14 and 24)

a) The charges

882. Under Counts 14 and 24, the Accused is charged with other inhumane acts as a crime against humanity, at Mukjar police station between late February and early March 2004, and in Deleig between 5 and 7 March 2004, pursuant to Article 7(1)(k) of the Statute.Footnote ²⁷⁰⁹

883. Under Count 6, the Accused is charged with other inhumane acts as a crime against humanity, in Bindisi and surrounding areas between 15 and 16 August 2003, pursuant to Article 7(1)(k) of the Statute.Footnote ²⁷¹⁰

884. The facts underlying the charge of other inhumane acts as a crime against humanity under Counts 14 and 24 are identical to those underlying the charge of torture as a crime against humanity under Counts 12 and 22. The permissibility of this further concurrence of crimes must therefore be considered by the Chamber. In light of the established facts, the Chamber observes that there is no act underlying the charge under Counts 14 and 24 which may be considered as different but of similar character, in terms of harm and protected interests involved, compared to those already qualified as a crime against humanity of torture under Counts 12 and 22. In these circumstances, due to the residual nature of Article 7(1)(k) of the Statute, concurrent legal qualification under this provision is not permissible. For this reason, and given its conclusions above on the crime of torture as a crime against humanity,Footnote ²⁷¹¹ the Chamber will not further consider the charge of other inhumane acts under Counts 14 and 24, and will restrict its assessment to the facts under Count 6.

b) Findings of the Chamber

885. The Chamber recalls its findings that on 15 and 16 August 2003, in Bindisi, members of the Janjaweed beat several persons (including an elderly woman who had just been raped), including by using objects such as rifle stocks and whips, which resulted in at least two victims sustaining physical injuries on their backs. Victims were subsequently killed or raped within sight or earshot of other individuals, and some women were forced to watch other women being raped. Several victims of rape suffered injuries immediately thereafter, or long-lasting physical and psychological effects. The Chamber further recalls that a member of the Janjaweed snatched an infant from a woman, and threw the infant into the air. The infant fell to the ground and stopped breathing for some time. Members of the Janjaweed stripped women of their clothes (at least in one instance, using a knife) immediately before raping them out in public view and in front of others.Footnote ²⁷¹² The Chamber finds that the aforesaid actions amount to inhumane acts and that the perpetrators inflicted great suffering or serious injury to body, physical and mental health upon the victims. The Chamber is therefore satisfied that this legal element is met.Footnote ²⁷¹³

886. In addition, the Chamber notes that the above inhumane acts were carried out as part of a course of conduct which resulted in the commission of acts that fulfil the requirements of the crimes of murder and rape.Footnote ²⁷¹⁴ On this basis, the Chamber is satisfied that the second legal element of other inhumane acts as a crime against humanity, i.e. that the act was of a character similar to any other act referred to in Article 7 of the Statute, is met.

887. As regards the general mental elements under Article 30 of the Statute, the Chamber is satisfied, on the basis of the facts discussed above,Footnote ²⁷¹⁵ that the perpetrators acted deliberately and that they meant to inflict great suffering, or serious injury to body, mental or physical health to the victims. For the same reasons, the Chamber is satisfied that the perpetrators were aware of the factual circumstances that established the character of the inhumane acts.

c) Conclusion

888. Accordingly, the Chamber is satisfied that members of the Janjaweed committed other inhumane acts as a crime against humanity in Bindisi between 15 and 16 August 2003.

I. Cruel treatment as a war crime (Counts 15 and 25)

a) The Charges

889. Under Counts 15 and 25, the Accused is charged with cruel treatment as a war crime, at Mukjar police station between late February and early March 2004, and in Deleig between 5 and 7 March 2004, pursuant to Article 8(2)(c)(i) of the Statute.Footnote ²⁷¹⁶

890. The facts underlying the charge of cruel treatment as a war crime under Counts 15 and 25 and the charge of torture as a war crime under Counts 13 and 23 are identical. This is therefore a situation of concurrence which must be specifically considered by the Chamber. In this regard, the Chamber notes that the legal elements of the war crime of cruel treatment are entirely encompassed within the legal elements of the war crime of torture, with the latter containing an additional (mental) constitutive element.Footnote ²⁷¹⁷ In these circumstances, while the same facts under consideration indeed fulfil the legal elements of both crimes, concurrence of crimes and consequent cumulative conviction, is not permissible. For this reason, and given its conclusions above on the crime of torture as a war crime,Footnote ²⁷¹⁸ the charge of cruel treatment under Counts 15 and 25 will not be further considered by the Chamber.

J. Outrages upon personal dignity as a war crime (Counts 7, 16 and 26)

a) The charges

891. Under Count 7, the Accused is charged with outrages upon personal dignity as a war crime in Bindisi between 15 and 16 August 2003, pursuant to Article 8(2)(c)(ii) of the Statute.Footnote ²⁷¹⁹

892. Under Count 16, the Accused is charged with outrages upon personal dignity as a war crime at Mukjar police station between late February and early March 2004, pursuant to Article 8(2)(c)(ii) of the Statute.Footnote ²⁷²⁰

893. Under Count 26, the Accused is charged with outrages upon personal dignity as a war crime, in Deleig between 5 and 7 March 2004, pursuant to Article 8(2)(c)(ii) of the Statute.Footnote ²⁷²¹

b) Findings of the Chamber

Bindisi Operation

894. The Chamber recalls that, on or about 15 and 16 August 2003, in Bindisi, the Janjaweed arrested and mistreated people. The Janjaweed: (i) separated the men and women, forced some men to kneel, tied their hands behind their backs, assaulted them with rifle stocks and then killed them in front of other detained individuals; (ii) whipped and beat women of all ages, which resulted in physical injuries; (iii) struck a women with a sword; (iv) stripped some women of their clothing; and (v) snatched an infant from its mother, threw it into the air and let it fall to the ground.Footnote ²⁷²²

895. In establishing that the Janjaweed humiliated and degraded the female captives to such a degree of severity as to be generally recognised as an outrage upon personal dignity, the Chamber reiterates that the Janjaweed raped no fewer than 16 women, including children and an elderly woman.Footnote ²⁷²³ Namely the Janjaweed, (i) whipped one woman at least 10 times and beat her before she was raped by two men within the view of other women, and then left her bleeding heavily;Footnote ²⁷²⁴ (ii) the Janjaweed, one after the other, got on top of an elderly woman and raped her in front of a witness;Footnote ²⁷²⁵ (iii) did not wear condoms when raping the women; and (iv) on one occasion members of the Janjaweed ejaculated inside one of the captive women.Footnote ²⁷²⁶

896. Further, the Chamber recalls that the Janjaweed: (i) raped most women jointly, on multiple occasions and often in front of other women and children, who were forced to watch while being held at gunpoint, (ii) undressed, stripped, threatened and held down the women and girls whilst raping them within the view of other women;Footnote ²⁷²⁷ (iii) used weapons to exert violence (inter alia using a knife to tear offa woman’s clothing, held a sword to another’s neck to keep her quiet, and threatened some women with guns to force them to watch the Janjaweed rape other women in front of them); (iv) silenced some women by stuffing their mouths with cloths torn from their clothing;Footnote ²⁷²⁸ and (v) killed some women after raping them.Footnote ²⁷²⁹

897. In addition, the Chamber reiterates that members of the Janjaweed used derogatory expressions during the sexual violence committed against the detainees, namely: (i) threats of death and accusations of being relatives of tora bora;Footnote ²⁷³⁰ (ii) restrained a rape victim by the neck whilst questioning if she knew where the tora bora were;Footnote ²⁷³¹ (iii) exclaimed ‘we don’t want these people to stay alive’ whilst raping them; (iv) thanked President Al-Bashir for giving them this ‘opportunity’ and praised God for taking ‘[t]ora [b]ora’s wives’;Footnote ²⁷³² and (v) some fired their weapons in the air as they exclaimed, ‘I have found a virgin woman’.Footnote ²⁷³³

898. In establishing the severity of the humiliation perpetrated by the Janjaweed, the Chamber recalls that women from Bindisi were raped in public, experienced physical pain and sustained scars, and have suffered long term effects including psychological and social consequences.Footnote ²⁷³⁴ Namely, (i) the vulnerability from the young age of the child victims (at least one victim was only 13 years old and another 15 years old); (ii) that one witness suffered permanent physical damage of a split in her vagina which worsened after childbirth;Footnote ²⁷³⁵ (iii) if they resisted, victims were further mistreated or attacked by multiple perpetrators;Footnote ²⁷³⁶ and (iv) the social stigmatisation that surrounded the rape preventing many women from seeking help and returned the witness to her parents after being raped.Footnote ²⁷³⁷

899. The Chamber finds that the nature of the detention, mistreatment and rape, the manner in which it was imposed and the use of derogatory expressions by the members of the Janjaweed humiliated, degraded or otherwise violated the dignity of the detained Fur men, women and children. In relation to the severity, the Chamber is satisfied that the conduct of the members of the Janjaweed in Bindisi was of such degree as to be to be generally recognised as an outrage upon personal dignity.

900. On the basis of these facts, the Chamber is persuaded that the first and second legal elements of outrages upon personal dignity as a war crime are met, namely that the Janjaweed humiliated, degraded or otherwise violated the dignity of one or more persons and that this conduct was such that the humiliation, degradation and other violations of dignity each victim suffered reached the degree of severity that constitutes an outrage upon personal dignity, with respect to the inhabitants of Bindisi and the surrounding areas, as discussed above.

901. In relation to the status of the victims, in Bindisi, the Chamber reiterates its findings above.Footnote ²⁷³⁸ With respect to the detained, mistreated and raped victims from Bindisi and the surrounding areas, without evidence to the contrary, the Chamber is satisfied that they were protected under IHL either as civilians taking no active part in the hostilities or hors de combat at the time of the acts were committed. The Chamber accordingly finds that the third element of outrages upon personal dignity as a war crime is satisfied in relation to the victims.

Mukjar and Deleig Operations

902. With regard to the Mukjar Operation, the Chamber reiterates the verbal and physical abuse perpetrated upon Fur men and boys at Mukjar police station between late February and early March 2004, by members of the Janjaweed and GoS Forces as discussed above.Footnote ²⁷³⁹ The Chamber is satisfied that the members of the Janjaweed and GoS Forces humiliated, degraded and otherwise violated the dignity of at least 100 predominantly Fur men and boys detained at Mukjar police station.

903. In establishing that the severity of the humiliation was of such a degree so as to be generally recognised as an outrage upon personal dignity, the Chamber reiterates that the members of the Janjaweed, the Police and the CRF physically and verbally abused the detainees, including young boys.Footnote ²⁷⁴⁰ This humiliation included: (i) physical assault and mistreatment;Footnote ²⁷⁴¹ (ii) use of derogatory expressions to degrade and threaten such as nujus, tora bora and abid;Footnote ²⁷⁴² (iii) photographing and filming the detainees whilst being called tora bora and accused of being rebels, followed by threats of being destroyed by Minister Harun and other government officials;Footnote ²⁷⁴³ (iv) forcing detainees to lie face down and not raise their heads, stacking detainees on top of one another; and mistreating them as they were thrown onto the back of vehicles;Footnote ²⁷⁴⁴ and (v) shaving the heads and severing the ears of some detainees, causing bleeding.Footnote ²⁷⁴⁵

904. Further, regarding the conduct which humiliated and degraded the detainees in Mukjar, the Chamber reiterates that, on or about 1 March 2004, the Janjaweed and GoS Forces: (i) physically abused detainees by beating them, striking them with sticks, and whips;Footnote ²⁷⁴⁶ (ii) denied umdah Yahya Ahmad Zarruq permission to get dressed properly; and (iii) loaded the detainees, including the umdahs, onto the vehicles where they were beaten and told they would be killed.Footnote ²⁷⁴⁷

905. Considering the above, the Chamber is satisfied that the circumstances of the detention, the mistreatment the detainees endured, and the derogatory expressions used towards them at Mukjar police station humiliated and degraded the personal dignity of the detained Fur men, boys and umdahs. The Chamber recalls that the severity of the abuse inflicted by the perpetrators was of such intensity that the detainees were shouting and crying, whilst some read verses from the Qur’an, some were left with wounds, in agony and the skin of some detainees started to peel off, leaving them disfigured.Footnote ²⁷⁴⁸ The level of violence employed, the public nature of the violence, the helplessness of the detainees, their vulnerability, and the filming of the detainees during Minister Harun’s visit on or around 1 March 2004, render the degree of degrading conduct so severe as to be generally recognised as an outrage upon personal dignity.

906. With regard to the Deleig Operation, the Chamber recalls its findings as mentioned above on the mistreatment of Fur men and boys, during the arrests in Deleig, the transportation of the detainees to and from Deleig police station and the mistreatments outside and inside of Deleig police station.Footnote ²⁷⁴⁹ In order to establish that the Janjaweed humiliated and degraded the detainees to such a degree as to be generally recognised as an outrage upon personal dignity, the Chamber recalls the physical assault and mistreatment of captives during the search and arrest operation, namely: (i) some detainees had their hands tied behind their backs and some were forced to lie face down in the open backs of Land Cruisers and;Footnote ²⁷⁵⁰ (ii) men were herded back to Deleig police station after enduring several hours of beating in the northern outskirts of Deleig.Footnote ²⁷⁵¹ Similarly, outside Deleig police station, detainees were ordered to lie face down on the ground in rows, some with hands tied behind their backs, and some detainees were not allowed to raise their heads or, if they did so, were beaten with sticks.Footnote ²⁷⁵²

907. Further, the Chamber recalls the mistreatment and detention of Fur men and at least one childFootnote ²⁷⁵³ whilst being transported from Deleig police station, particularly by repeatedly beating them with boots, whips and sticks, while subjecting them, at least in one instance, to verbal abuse through the use of derogatory expressions.Footnote ²⁷⁵⁴

908. The Chamber recalls the circumstances of an umdah’s arrest, in particular: (i) the physically violent arrest at his home in front of his family, including, being kicked and dragged; (ii) the death threats made by the Accused to the family; and (iii) the family seeing their relative alive for the last time while he was detained in the back of a Land Cruiser and taken away by members of the Janjaweed.Footnote ²⁷⁵⁵ The Chamber is satisfied that this arrest was particularly degrading upon the dignity of P-0995 and his family in light of, their young age, the fear instilled, and that their father was a leading community figure.

909. The Chamber is convinced that the acts of the Janjaweed and the GoS Forces were humiliating and degrading upon the personal dignity of the detainees outside Deleig police station. The Chamber is persuaded that the circumstances of the detention, the mistreatment endured and the derogatory expressions used whilst in detention humiliated, degraded or otherwise violated the personal dignity of the detainees at Deleig police station. Considering the degrading nature of the circumstances of the arrests in Deleig, the conditions of detention inside and outside of Deleig police station, and the violent beatings by the perpetrators which they endured, the Chamber is satisfied that the severity of the humiliation and degradation was of such a high degree so as to be generally recognised as an outrage upon personal dignity.

910. On the basis of these facts, the Chamber is satisfied that the first and second elements of outrages upon personal dignity as a war crime, that the Janjaweed and the GoS Forces humiliated, degraded or otherwise violated the dignity of one or more persons and the humiliation, degradation and other violations of dignity each victim suffered was so severe as to constitute an outrage upon personal dignity, are met with respect to at least 100 Fur men and boys taken to Mukjar police station and at least 100 Fur men and boys taken to Deleig police station.

911. In relation to the status of the victims, in Mukjar and Deleig, the Chamber reiterates its findings above.Footnote ²⁷⁵⁶ The above highlights that the detainees at Mukjar and Deleig police stations were protected under IHL, either as civilians taking no active part in the hostilities or hors de combat. The third element of the war crime of outrage upon personal dignity is thus met in relation to the victims referred to in this charge for the Mukjar and Deleig Operations.

912. With respect to the mental elements, based on the facts and circumstances discussed above, the Chamber is satisfied that the members of the Janjaweed and GoS Forces who engaged in the relevant conduct in Bindisi, Mukjar and Deleig did so deliberately, were aware of the factual circumstances establishing the victims’ protected status, as civilians taking no active part in the hostilities or hors de combat, and meant to cause humiliation, degradation or violation of dignity.Footnote ²⁷⁵⁷ Accordingly, the Chamber is satisfied that the general mental elements under Article 30 of the Statute are met with respect to outrage upon personal dignity as a war crime for all underlying conduct.

c) Conclusion

913. Accordingly, the Chamber is satisfied that members of the Janjaweed and GoS Forces committed the war crime of outrage upon personal dignity in Bindisi on 15 and 16 August 2003, in Mukjar between late February and early March 2004, and in Deleig between 5 and 7 March 2004.

K. Murder and attempted murder as a crime against humanity and as a war crime (Counts 2-3, 17-20, 27-30)

a) The charges

914. Under Counts 2 and 3, the Accused is charged respectively with murder as a crime against humanity and as a war crime, in Kodoom, Bindisi and surrounding areas, between 15 and 16 August 2003, pursuant to Articles 7(1)(a) and 8(2)(c)(i) of the Statute.Footnote ²⁷⁵⁸

915. Under Counts 17, 18, 19 and 20, the Accused is charged respectively with murder and attempted murder as a crime against humanity and as a war crime, outside of Mukjar between late February and early March 2004, pursuant to Articles 7(1)(a) and 8(2)(c)(i) of the Statute.Footnote ²⁷⁵⁹

916. Under Counts 27, 28, 29 and 30, the Accused is charged respectively with murder and attempted murder as a crime against humanity and as a war crime, in Deleig and surrounding areas, between 5 and 7 March 2004, pursuant to Articles 7(1)(a) and 8(2)(c)(i) of the Statute.Footnote ²⁷⁶⁰

b) Findings of the Chamber

Kodoom and Bindisi Operation

917. The Chamber recalls that, on 15 and 16 August 2003, members of the Janjaweed killed civilians in Kodoom and Bindisi, including by gunfire or by burning them inside their homes.Footnote ²⁷⁶¹ Whilst there is evidence that many victims were killed, the Chamber is satisfied that at least 46 victims were killed.Footnote ²⁷⁶² On the basis of these considerations, the Chamber is satisfied that the first legal element of murder as a crime against humanity and as a war crime, i.e. that the perpetrator killed one or more persons, is met.

918. With respect to the second legal element of murder as a war crime, the Chamber notes that victims were killed when they were inside their homes, fleeing the attack, hiding in fields, captured or with their hands tied up.Footnote ²⁷⁶³ The Chamber further notes that the circumstances establish that, at the time of the attacks, Kodoom and Bindisi were inhabited by civilians, and that there were was no evidence of rebel or armed presence in any of these villages at the relevant time.Footnote ²⁷⁶⁴ On the basis of these facts, the Chamber is satisfied that all victims were civilians not taking direct part in the hostilities or hors de combat. This element is thus met.

919. Turning to the mental element under Article 30 of the Statute, the Chamber notes that the perpetrators were instructed to ‘[w]ipe out, sweep away, amsah aksah’ and were thus given a clear instruction to commit killings during the Kodoom and Bindisi Operation.Footnote ²⁷⁶⁵ Given this, noting the facts discussed above and the manner in which the operation was conducted,Footnote ²⁷⁶⁶ the Chamber is satisfied that the members of the Janjaweed that engaged in the relevant conduct did so deliberately, intending to kill one or more persons. In addition, considering the circumstances prevailing at the relevant time,Footnote ²⁷⁶⁷ the Chamber is satisfied that the perpetrators were aware of the factual circumstances that established the protected status of the victims. Accordingly, the Chamber is satisfied that the general mental elements under Article 30 of the Statute are met with respect to murder as a crime against humanity and as war crime.

Mukjar and Deleig Operations

920. The Chamber recalls that, during the Mukjar Operation, members of the Janjaweed and GoS Forces shot and killed no fewer than 50 detaineesFootnote ²⁷⁶⁸ at at least two execution sites outside of Mukjar.Footnote ²⁷⁶⁹ The Chamber recalls that at least three detainees died as a result of the injuries they sustained during their detention at Mukjar police station.Footnote ²⁷⁷⁰ Considering the dire conditions of detention and the physical pain and suffering inflicted by the Janjaweed and GoS Forces on all detainees, the Chamber finds that there was a causal link between the conduct of the Janjaweed and GoS Forces and the victims’ death.

921. The Chamber also found that, during the Deleig Operation, members of the Janjaweed and GoS Forces shot and killed no fewer than 70 detainees at an execution site near FereFootnote ²⁷⁷¹ and no fewer than 38 detainees near Koska.Footnote ²⁷⁷² Finally, the Chamber found that, during the Deleig Operation, the Janjaweed killed at least six community leadersFootnote ²⁷⁷³ near Fere.Footnote ²⁷⁷⁴

922. Considering the above, the Chamber finds that the first legal element of both murder as a crime against humanity, pursuant to Article 7(1)(a) of the Statute, and murder as a war crime, pursuant to Article 8(2)(c)(i) of the Statute, i.e. that the perpetrator killed one or more persons, is met.

923. The Chamber recalls that two detainees were shot at by members of the Janjaweed and GoS Forces at execution sites outside of Mukjar, but both survived.Footnote ²⁷⁷⁵ Similarly, during the Deleig Operation, one detainee was fired upon at the execution site near Koska but was not injured.Footnote ²⁷⁷⁶ Another detainee was also transported in a vehicle heading to the execution site near Koska, but managed to escape during the journey by jumping from the vehicle and evading gunshots from the guards.Footnote ²⁷⁷⁷ On the facts, the requirements of Article 25(3)(f) of the Statute are met: the conduct of the Janjaweed and GoS Forces with respect to these four victims represented a substantial step commencing the execution of the crime against humanity and the war crime of murder, whereas the completion of the crime, namely the death of the victims, did not occur due to independent circumstances following/during their transport to the execution sites and shooting.

924. The Chamber has previously found that the detainees in MukjarFootnote ²⁷⁷⁸ and DeleigFootnote ²⁷⁷⁹ were civilians taking no active part in the hostilities or hors de combat. All persons brought to the execution sites were previously detained at either Mukjar or Deleig police station. Accordingly, the Chamber finds that the second element of (attempted) murder as a war crime, pursuant to Article 8(2)(c)(i) of the Statute, i.e. that the person or persons killed were either hors de combat, or were civilians, medical personnel, or religious personnel taking no active part in the hostilities, is also met.

925. Turning to the general elements under Article 30 of the Statute, the Chamber is satisfied, on the basis of the facts discussed above,Footnote ²⁷⁸⁰ that the members of the Janjaweed and GoS Forces who engaged in the relevant conduct did so deliberately. In both MukjarFootnote ²⁷⁸¹ and DeleigFootnote ²⁷⁸² the detainees were told to lie down in a line prior to being shot. In Mukjar, the perpetrators were instructed to shoot at the detainees multiple timesFootnote ²⁷⁸³ and walked on top of them to ensure that everyone had been killed,Footnote ²⁷⁸⁴ while in Deleig they shot the detainees from a close range,Footnote ²⁷⁸⁵ and checked that they were dead, shooting those who were not.Footnote ²⁷⁸⁶ The Chamber further recalls in relation to the detainees that died as a result of their detention at Mukjar police station, that the Janjaweed and GoS Forces did not provide any medical treatment to them,Footnote ²⁷⁸⁷ while inflicting the type of serious injury which were fatal if left untreated, like blows to the head and bleeding wounds.Footnote ²⁷⁸⁸ Accordingly, the Chamber is satisfied that the perpetrators meant to cause the victims’ death or, with respect to the deaths which occurred during detention at Mukjar police station, were at least aware that it would occur in the ordinary course of events.

926. As previously established by the Chamber in relation to the crime of torture,Footnote ²⁷⁸⁹ and considering that all persons brought to the execution sites were previously detained at either Mukjar or Deleig police stations, the Chamber is satisfied that the perpetrators were necessarily aware of the factual circumstances establishing the victims’ protected status under IHL. Accordingly, the general mental elements under Article 30 of the Statute are met with respect to murder as a crime against humanity and as a war crime.

c) Conclusion

927. Accordingly, the Chamber is satisfied that members of the Janjaweed and GoS Forces committed murders, as a war crime and a crime against humanity, during the three charged operations, and attempted murders during the Mukjar and Deleig Operations. On the basis of the above findings, the Chamber is satisfied that no fewer than 46 victims were killed in Kodoom and Bindisi; no fewer than three detainees were killed at Mukjar police station and no fewer than 50 detainees were killed outside of Mukjar; and no fewer than 114 victims were killed in Deleig and its surrounding areas. The Chamber is also satisfied that members of the Janjaweed and GoS Forces attempted to kill at least four persons during the Mukjar and Deleig Operations. The Chamber considers, however, that the killings claimed considerably more lives, but imprecision of the evidence tendered prevents it from arriving at a definite breakdown. To this end, it refers to the various testimonies which, although imprecise regarding the actual total number, speak of many more victims killed during the three operations.

L. Persecution as a crime against humanity (Counts 11, 21, 31)

a)  The charges

928. Under Count 11, the Accused is charged with persecution as a crime against humanity, on political and ethnic grounds, concerning the predominantly Fur population of Kodoom, Bindisi and surrounding areas perceived as belonging to, or being associated with, or supporting the rebel armed groups, by way of the criminal acts listed in Counts 1-10, between 15 and 16 August 2003, pursuant to Article 7(1)(h) of the Statute.Footnote ²⁷⁹⁰

929. Under Counts 21 and 31, the Accused is charged with persecution as a crime against humanity, on political, ethnic, and gender grounds, concerning Fur men perceived as belonging to, or being associated with, or supporting rebel armed groups, by way of the criminal acts listed in Counts 12-20, in Mukjar and surrounding areas, in late February/early March 2004, and in Deleig and surrounding areas, between 5 and 7 March 2004, by way of the criminal acts listed in Counts 22-30, pursuant to Article 7(1)(h) of the Statute.Footnote ²⁷⁹¹

930. The Chamber recalls that the acts underlying the crime against humanity of persecution are, in the present case, also underlying acts for other crimes charged. The Chamber finds that the material elements of the relevant crimes differ and therefore a cumulation ofconviction for all these crimes is legally permissible.Footnote ²⁷⁹² In particular, the Chamber notes that while torture as a war crime requires a prohibited purpose, one of which may be discrimination, discrimination is not per se required for the war crime of torture to be constituted. By contrast, discriminatory intent is a necessary mental element for the crime against humanity of persecution. Thus, cumulative convictions for torture as a war crime and persecution as a crime against humanity are allowed.Footnote ²⁷⁹³

b) Findings of the Chamber

931. The Chamber finds that, as required by the first material element of the crime against humanity of persecution, the Janjaweed, contrary to international law, severely deprived civilians of fundamental rights in the course of the operations in Kodoom, Bindisi and surrounding areas, Mukjar, and Deleig. The Janjaweed deprived civilians of, inter alia, the right to life,Footnote ²⁷⁹⁴ the right not to be subjected to cruel, inhumane or degrading treatment,Footnote ²⁷⁹⁵ the right to bodily integrity,Footnote ²⁷⁹⁶ the right to personal liberty and security of person,Footnote ²⁷⁹⁷ and the right to private property:Footnote ²⁷⁹⁸ rights which they enjoyed – without any doubt – pursuant to international law.Footnote ²⁷⁹⁹ Therefore, the Chamber is satisfied that the circumstances of victimisation and the severe nature of the deprivation of the abovementioned rights is clearly established in its findings on the facts and the law in relation to Counts 1-10 in respect of Kodoom and Bindisi, Counts 12-13, 16-20 in respect of Mukjar, and Counts 22-23, 26-30 in respect of Deleig, made above.

932. In this context, the Chamber notes that during the time of the charges, a state of emergency was in force in Darfur.Footnote ²⁸⁰⁰ In this regard, the Chamber notes Article 132(1)(a) of the 1998 Sudanese Constitution, which provides that during a state of emergency, the President, ‘by law or exceptional order’, may ‘[s]uspend some or all of the provisions in the Chapter on individual rights and liberties’, ‘except the following: the prohibition of torture, […], the prohibition of discrimination based on race, sex or religion, freedom of thought […]’.Footnote ²⁸⁰¹ The Chamber further notes that, pursuant to Article 4(1) of the ICCPR, as well as the UN Human Rights Committee’s General Comment on this provision, States derogating from the Covenant in circumstances of public emergency must ensure that such derogations: (i) do not exceed those ‘strictly required by the exigencies of the situation’; (ii) ‘are not inconsistent with their obligations under international law’; and (iii) ‘do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin’.Footnote ²⁸⁰² Moreover, pursuant to Article 4(2) of the ICCPR, no derogation may be made with respect to the right to life and the right not to be subjected to cruel, inhumane or degrading treatment. Having considered the fundamental nature of the rights identified above, and the relevant findings on the facts and the law in relation to the manner in which these rights were deprived in the instant case, the Chamber is satisfied that the declaration of a state emergency during the time of the charges does not provide justification under international law for the severe deprivation of civilians’ fundamental rights in the present case.

933. In respect of the second and third elements, the Chamber first reiterates its factual finding that the inhabitants of Kodoom and Bindisi predominantly belonged to the Fur tribe.Footnote ²⁸⁰³ The Chamber is satisfied that, during the Kodoom and Bindisi Operation, the Janjaweed targeted the inhabitants of Kodoom and Bindisi by reason of them being predominantly Fur. This is supported by the factual findings that: (i) immediately prior to the Kodoom and Bindisi Operation, Minister Harun was heard telling the Janjaweed, during a speech in Mukjar, that they should ‘wipe out and sweep away the Fur’, he referred to the Fur as ghanima, and said that the Fur and their money were booty or ‘prize’ for the Janjaweed;Footnote ²⁸⁰⁴ (ii) during this same operation, the Janjaweed, acting upon orders by the Accused, attacked other predominantly Fur villages including Nyerli, Tiro, Merly, Seder and Drangal;Footnote ²⁸⁰⁵ (iii) after the attack on North Bindisi, the Accused was heard telling the Janjaweed that they ‘taught the enemy a lesson that the enemy will never forget’ and ’[t]he Fur will never forget this lesson’;Footnote ²⁸⁰⁶ and (iv) the use of derogatory expressions by the Janjaweed during the Kodoom and Bindisi Operation.Footnote ²⁸⁰⁷

934. The Chamber recalls that, during the operations in Mukjar and Deleig, the Accused, the Janjaweed and GoS Forces targeted for arrests, detention, torture and mistreatment, and subsequently executed, predominantly Fur men, including community leaders.Footnote ²⁸⁰⁸ This is supported by the factual findings that: during the Mukjar Operation, the Janjaweed and GoS Forces: (i) arrested and detained four Fur policemen at Mukjar police station;Footnote ²⁸⁰⁹ (ii) arrested and detained a number of predominantly Fur persons at the Mukjar locality building;Footnote ²⁸¹⁰ (iii) arrested and detained at least 100 predominantly Fur men at Mukjar police station;Footnote ²⁸¹¹ (iv) tortured, mistreated and killed predominantly Fur men at Mukjar police station;Footnote ²⁸¹² (v) summarily executed predominantly Fur male detainees, including community leaders;Footnote ²⁸¹³ and (vi) separated men from women and children, and did not arrest women, children and elderly men.Footnote ²⁸¹⁴ During the Deleig Operation, the Janjaweed and GoS Forces: (i) conducted house to house searches for Fur men who were not from Deleig;Footnote ²⁸¹⁵ (ii) arrested and mistreated (during arrests and transfer) predominantly Fur men from across Deleig;Footnote ²⁸¹⁶ (iii) detained and mistreated predominantly Fur men in and around Deleig police station;Footnote ²⁸¹⁷ (iv) summarily executed predominantly Fur male detainees, including community leaders;Footnote ²⁸¹⁸ and (v) did not arrest women, some boys and elderly men.Footnote ²⁸¹⁹ The Chamber further recalls that, during an operation preceding the Mukjar Operation, the Accused told the Janjaweed to ‘kill or wipe’ all men but not women.Footnote ²⁸²⁰

935. Second, the Chamber reiterates its factual findings that: (i) during the charged period, the GoS perceived non-Arab tribes, including the Fur, to be associated with the rebels, and as per the Emergency Plan targeted them as the enemy;Footnote ²⁸²¹ (ii) several witnesses gave evidence that ‘all African tribes’ and the ‘entire communities of Fur, Zaghawa, Masalit’ were targeted indiscriminately, because in the eyes of the GoS, they were ‘all rebels’;Footnote ²⁸²² (iii) during the Kodoom and Bindisi Operation, the Janjaweed referred to the Fur inhabitants as tora bora (i.e. a rebel) and nuba (i.e. a derogatory term, meaning ‘black’);Footnote ²⁸²³ (iv) during the Mukjar Operation, the Accused and the Janjaweed referred to the detainees as tora bora, abid, magus, slaves and rebels;Footnote ²⁸²⁴ and (v) during the Deleig Operation, the Janjaweed and GoS Forces accused the Fur of being tora bora (i.e. rebels).Footnote ²⁸²⁵

936. As is evident from the above findings, the Chamber is satisfied that: (i) in Kodoom and Bindisi, the Janjaweed targeted the predominantly Fur inhabitants based on the perception that they were affiliated with the rebels, and the fact that they were Fur, thus discriminated them based on perceived political affiliation and ethnic identity; (ii) in Mukjar and Deleig, the Janjaweed and GoS Forces targeted predominantly Fur men of fighting age based on the perception that they were affiliated with the rebels, and the fact that they were Fur, thus discriminated them based on their political affiliation, ethnic identity and perceived gender role.Footnote ²⁸²⁶ The Chamber emphasises that the fact that some members of the Fur tribe were recruited by the rebels does not provide any justification for the aforementioned conduct of the perpetrators.Footnote ²⁸²⁷

937. In light of the foregoing, the Chamber is satisfied that, as required by the mental elements of the crime against humanity of persecution, pursuant to Article 30 of the Statute and the second element under Article 7(1)(h), the perpetrators deliberately carried out their conduct with the requisite discriminatory intent, i.e. an intent to discriminate against the targeted persons on any of the grounds enumerated in Article 7(1)(h) of the Statute.Footnote ²⁸²⁸ The Chamber is also satisfied that the third material element of the crime of persecution for Counts 11, 21, 31 is met.

938. Finally, in light of the above findings, the Chamber is satisfied that the fourth material element, i.e. connection with any act referred to in Article 7(1) of the Statute or any crime within the jurisdiction of the Court, is met in respect of Kodoom and Bindisi, Mukjar, and Deleig.

c) Conclusion

939. Accordingly, the Chamber is satisfied that members of the Janjaweed and GoS Forces committed the crime against humanity of persecution, pursuant to Article 7(1)(h) of the Statute, during the course of the three charged operations.

M. Conclusion

940. The Chamber recalls that the crimes under Counts 1, 3-5, 7, 9, 13, 16, 18, 20, 23, 26, 28, and 30 took place in the context of and were associated with an armed conflict not of an international character, and that the perpetrators, all members of the Janjaweed or of the GoS forces, were aware of the factual circumstances establishing the existence of such armed conflict.Footnote ²⁸²⁹ The Chamber recalls that the crimes under Counts 2, 6, 8, 10-12, 17, 19, 21-22, 27, 29, and 31 were committed as part of a widespread and systematic attack against the civilian population, and that the perpetrators, all members of the Janjaweed or of the GoS forces, must have known that such conduct was part of such an attack.Footnote ²⁸³⁰

941. Accordingly, having found that all specific material and mental elements were met for each crime, the Chamber is convinced beyond reasonable doubt that the following crimes were committed:

• – During the Kodoom and Bindisi Operation: attack against a civilian population as a war crime (Count 1), murder as a crime against humanity and war crime and (Counts 2 and 3), pillaging as a war crime (Count 4), destroying the enemy’s property as a war crime (Count 5), other inhumane acts as a crime against humanity (Count 6), outrages upon personal dignity as a war crime (Count 7), rape as a crime against humanity and as a war crime (Counts 8 and 9), forcible transfer of population as a crime against humanity (Count 10) and persecution as a crime against humanity (Count 11).

• – During the Mukjar Operation: torture as a crime against humanity and war crime (Counts 12 and 13), outrages upon personal dignity as a war crime (Count 16), murder and attempted murder as a crime against humanity and as a war crime (Counts 17-18 and 19-20), and persecution as a crime against humanity (Count 21).

• – During the Deleig Operation: torture as a crime against humanity and war crime (Counts 22 and 23), outrages upon personal dignity as a war crime (Count 26), murder and attempted murder as crimes against humanity and war crimes (Counts 27-28 and 29-30), and persecution as a crime against humanity (Count 31).

III. COMMISSION AS AN INDIVIDUAL (DIRECT PERPETRATION)

A. The charges

942. The Accused is charged for the direct commission, pursuant to Article 25(3)(a) of the Statute, of:

• – the crime against humanity and war crime of torture (Counts 12-13 and 22-23), the war crime of outrages upon personal dignity (Counts 16 and 26), and the crime against humanity of persecution (Counts 21 and 31), against captives and/or detainees in Mukjar between the end of February and the beginning of March 2004 and in Deleig between 5 and 7 March 2005;Footnote ²⁸³¹

• – the crime against humanity and war crime of murder (Counts 27-28) and the crime against humanity of persecution (Count 31) against three Fur male detainees, in and/or near the Deleig police station on 5 March 2004.Footnote ²⁸³²

B. Findings of the Chamber

a) Torture and outrages upon personal dignity of detainees at Mukjar and Deleig police stations

943. As regards the Mukjar Operation, the Chamber recalls its findings that, on or around 1 March 2004, the Accused, accompanied by several Janjaweed and GoS Forces, entered at least one of the cells at the police station and hit detainees, using an axe and a whip.Footnote ²⁸³³ The Accused hit Umdah Yaya Ahmad Zarruq on the shoulder with his axe, breaking his arm, and he severely injured a boy of about 9 or 10 years old who was nearby.Footnote ²⁸³⁴ He also hit several other detainees, including P-0129, P-0990, Umdah Issa Haroun Nour, Umdah Adam Husayn Abdelmahmoud, Sheikh Abdullahi Ahmad Hassan, Sheikh Ahmad Mohammed Barbayi, Adam Naheed Numan, Abaker Mohammed Adam and Omar Adam Harun.Footnote ²⁸³⁵ After this assault, Omar Adam Harun had been so severely beaten that he lay on the ground for two days during which P-0877 thought he was dead.Footnote ²⁸³⁶ While assaulting detainees at Mukjar Police Station, the Accused hurled derogatory terms at them such as slaves, magus, tora bora and rebels.Footnote ²⁸³⁷

944. As regards the Deleig Operation, the Chamber recalls its findings that the Accused, together with other members of the Janjaweed, stepped on the back of the detainees lying face down on the ground outside the Deleig police station and struck them with a stick-like object, likely the handle of an axe.Footnote ²⁸³⁸ Victims were already in a weak and vulnerable state when the Accused assaulted them, some had their hands bound behind their backs.Footnote ²⁸³⁹ The Accused patrolled the area around the prone detainees and said to them: ‘even ifyou fly to the sky I will get you’.Footnote ²⁸⁴⁰

945. In light of the above, the Chamber is satisfied that the Accused subjected the victims to severe physical and mental pain and suffering. The Chamber is also satisfied that this same conduct humiliated, degraded or otherwise violated the dignity of the victims. The Chamber is satisfied that by these actions, the first material elements of torture as a crime against humanity and as a war crime, as well as of the war crime of outrages upon personal dignity, are established. On the basis of these same facts and circumstances, the Chamber is also satisfied that the only reasonable conclusion is that the Accused’s conduct was deliberate and that, in doing so, the Accused meant to cause the suffering and humiliation he inflicted on the victims.

946. Regarding the second element of the crime of outrages upon personal dignity, i.e. the severity of the humiliation, the Chamber is satisfied that the physical and verbal abuse, in the context of the degrading and humiliating nature of the detention conditions, amounts to a humiliation that was so severe that a reasonable person would be outraged.Footnote ²⁸⁴¹ Accordingly, the Chamber concludes that the second element of the crime of outrages upon personal dignity has been satisfied.

947. Concerning the victims’ status, the Chamber refers to its prior findings that the detainees were in the custody and control of the Janjaweed and GoS forces at the relevant timeFootnote ²⁸⁴² and protected under IHL, either as civilians taking no active part in the hostilities or hors de combat. Footnote ²⁸⁴³ The Chamber therefore finds that the relevant material elements for the war crimes of torture and outrages upon personal dignity are met.

948. On the basis of the above circumstances,Footnote ²⁸⁴⁴ the Chamber is also satisfied the Accused was aware of the factual circumstances that established the status of the victims. The Chamber is unpersuaded by the Defence submission that a mistake of law applies to the Accused which would negate the mental elements of knowledge under Article 30(3) of the Statute. The Chamber notes that the relevant war crimes only require knowledge of certain factual circumstances and, accordingly, it need not be established that the Accused assessed the situation and/or was aware of the legal status of the victims or objects.Footnote ²⁸⁴⁵ The Chamber is satisfied that, in the case at hand, the knowledge requirements under Article 30(3) and 8(2)(c)(i) and (ii) of the Statute are met and finds unsubstantiated the Defence allegations that a ground to exclude criminal liability exists.Footnote ²⁸⁴⁶

949. The Chamber refers to its finding above that the third element of torture as a crime against humanity is met, namely that the pain or suffering inflicted on the detainees did not arise only from, and was not inherent in or incidental to, a lawful sanction.Footnote ²⁸⁴⁷

950. Finally, regarding the last element of torture as a war crime, the Chamber notes that victims: (i) were arrested and held in detention on suspicion of being or supporting the rebels, and, as such, considered as ‘the enemy’;Footnote ²⁸⁴⁸ (ii) were predominantly Fur men;Footnote ²⁸⁴⁹ and (iii) included community leaders, such as sheikhs and umdahs, who had a significant role in the Fur community.Footnote ²⁸⁵⁰ The Chamber further recalls that while physically assaulting the detainees at Mukjar police station, the Accused hurled derogatory terms at them such as slaves, magus, tora bora and rebels.Footnote ²⁸⁵¹ On the basis of these considerations, the Chamber is satisfied that the second element of the war crime of torture is met, as the Accused inflicted the pain and suffering to punish and intimidate the detainees at the Mukjar and Deleig police stations and, as further discussed below,Footnote ²⁸⁵² on discriminatory grounds.Footnote ²⁸⁵³

b) Murder at Deleig police station

951. The Chamber found that, on 5 March 2004, while they were being detained at Deleig police station, both Jenif and Sheikh Motor were struck directly on the head by the Accused with his axe.Footnote ²⁸⁵⁴ The Chamber recalls that, while he was hitting Jenif, the Accused stated: ‘I’m not going to even spend one single shot on you because shots are expensive, we pay money for it. So all what I’m going to use is this axe’.Footnote ²⁸⁵⁵ The two men died as a result of their head injury.Footnote ²⁸⁵⁶ The Chamber further recalls that the Accused then instructed others at the police station to discard the bodies.Footnote ²⁸⁵⁷

952. On the basis of the above, the Chamber is satisfied that the Accused personally caused the death of these men and therefore, the first material element of the war crime and the crime against humanity of murder are met. On the basis of these same facts and circumstances, the Chamber is also satisfied that the only reasonable conclusion is that the Accused’s conduct was deliberate and that he meant to cause the two victims’ death.

953. The Chamber notes that Jenif and Sheikh Motor were both detained when they were struck by the Accused, and therefore protected under IHL, either as civilians taking no active part in the hostilities or hors de combat. On the basis of the above circumstances, the Chamber is satisfied that the Accused was aware of the factual circumstances that established the status of the victims. The Chamber is thus satisfied that the second and third elements of the war crime of murder are met.

c) Persecution

954. The Chamber is satisfied that, by physically and verbally abusing detainees and by killing Jenif and Sheikh Motor, the Accused severely deprived them, contrary to international law, of their right to life, bodily integrity and/or their right not to be subjected to torture or cruel, inhumane or degrading treatment.Footnote ²⁸⁵⁸ Since the underlying conduct itself qualifies as other crimes within the jurisdiction of the Court, the requisite connection is necessarily established.Footnote ²⁸⁵⁹ The first and fourth elements of the crime against humanity of persecution are thus met.

955. With respect to the third element of the crime against humanity of persecution, i.e. that the targeting was based on discriminatory grounds universally recognized as impermissible under international law, the Chamber refers to its finding above that the basis for discrimination of the targeted group was a combination of ethnic, political and gender grounds.Footnote ²⁸⁶⁰

956. Finally, the Chamber refers to its finding that the Accused shared the co-perpetrators’ discriminatory intentFootnote ²⁸⁶¹ and notes the particularly cruel nature of his relevant criminal conduct, namely inflicting severe pain and suffering on multiple male detainees, including a boy, while using derogatory and discriminatory language against them.Footnote ²⁸⁶² The Chamber further recalls that, just before striking Jenif on the head, the Accused blamed him for having collaborated with the rebels in Arawala.Footnote ²⁸⁶³ Given the above considerations, the Chamber is satisfied that the only reasonable conclusion is that the Accused deliberately targeted Jenif, Sheikh Motor and other detainees at the Mukjar and Deleig police stations by reason of their identity as Fur male perceived as being or supporting the rebels.Footnote ²⁸⁶⁴ The Chamber is accordingly satisfied that the mental elements of the crime against humanity of persecution, pursuant to Article 7(1)(h) and 30 of the Statute, are met with respect to the abovementioned conduct.

C. Conclusion

957. The Chamber is therefore convinced, beyond reasonable doubt, that the Accused is criminally responsible, as a direct perpetrator within the meaning of Article 25(3)(a) of the Statute, for the commission of the following crimes:

• – in relation to several detainees at the Mukjar and Deleig police stations: torture as a crime against humanity, under Article 7(1)(f) of the Statute, and as a war crime, under Article 8(2)(c)(i) of the Statute (Counts 12-13, 22-23); outrages upon personal dignity as a war crime, under Article 8(2)(c)(ii) of the Statute (Counts 16 and 26); and persecution as a crime against humanity, under Article 7(1)(h) of the Statute (Counts 21 and 31); and

• – in relation to Jenif and Adam Adam Abd-Al-Rahman also known as ‘Sheikh Motor’: murder as a crime against humanity, under Article 7(1)(a) of the Statute, and as a war crime, under Article 8(2)(c)(i) of the Statute (Counts 27-28); and persecution as a crime against humanity, under Article 7(1)(h) of the Statute (Counts 21 and 31).

IV. COMMISSION ‘JOINTLY WITH ANOTHER’ (CO-PERPETRATION)

A. The charges

958. The Accused is charged for the joint commission, pursuant to Article 25(3)(a) of the Statute, of the crime against humanity and war crime of torture (Counts 12-13, 22-23), the war crime of outrages upon personal dignity (Counts 16, 26), the crime against humanity and war crime of murder and attempted murder (Counts 17-20, 27-30), and the crime against humanity of persecution (Counts 21, 31), in Mukjar and surrounding areas between the end of February 2004 and the beginning of March 2004,Footnote ²⁸⁶⁵ and in Deleig and surrounding areas between 5 and 7 March 2004.Footnote ²⁸⁶⁶

B. Findings of the Chamber

959. For the reasons set out below, the Chamber is satisfied that two common plans existed at the time of the relevant events (one in Mukjar, and another one in Deleig), as submitted by the Prosecution.Footnote ²⁸⁶⁷ The Chamber finds that these plans were agreed upon with a view to implement the State policy to attack civilians and target specific communities, namely non-Arab tribes in Wadi Salih, in particular the Fur, who were perceived as associated with the rebels, and thus as the enemy. The Chamber reiterates that the objectives of the Emergency Plan adopted on 18 December 2003 by the Security Council headed by President Al-Bashir were to ‘[r]estor[e] security in the states of Darfur and [end] the rebellion through military and security decisiveness’, fight the SLA and JEM, and ‘impos[e] control over all the villages and the regions to which rebel leaders belong (Fur, Zaghawa, Masalit)’ and ‘the areas inhabited by the rebellious tribes’.Footnote ²⁸⁶⁸ To this end, the Sudanese government recruited, trained, armed and funded the Janjaweed, which, alongside the GoS Forces, carried out armed operations in Darfur, including in Mukjar and Deleig.Footnote ²⁸⁶⁹ The Chamber is therefore satisfied that the evidence supports the existence, throughout the period of the charges, of a broader plan to quash the rebellion through the commission of the crimes enumerated.

a) Mukjar Common Plan

960. The Chamber finds that between at least February 2004, when the first check-points were set up in Mukjar,Footnote ²⁸⁷⁰ to at least March 2004, when the detainees were murdered,Footnote ²⁸⁷¹ the Accused shared a common plan with several members of the Janjaweed and GoS Forces. The ultimate goal of the common plan was to murder predominantly Fur men, who were perceived as belonging to, or being associated with, or supporting the rebel groups. The agreement also involved arresting, detaining, interrogating and punishing them, through the commission of the crimes of torture, outrages upon personal dignity and persecution (the ‘Mukjar Common Plan’).Footnote ²⁸⁷²

961. The Chamber is convinced that both this ultimate goal (murdering the detainees), as well as the other criminal acts charged and that occurred in the course of its implementation (the commission of the crimes of torture, outrages upon personal dignity and persecution) were the specific and intended outcome of the Mukjar Common Plan.

962. The Chamber finds that at the time of the Mukjar Operation an agreement existed between the following individuals: the Accused; Minister Harun, the State Minister for the Ministry of the Interior;Footnote ²⁸⁷³ Samih, one of the leaders of the Janjaweed and one of the Accused’s deputies;Footnote ²⁸⁷⁴ Lt Hamdi, the head of the SAF Military Intelligence branch in Garsila;Footnote ²⁸⁷⁵ Hassaballah, the PDF coordinator in Garsila at the material time;Footnote ²⁸⁷⁶ and Muqaddam Idriss, an intelligence officer and SAF First Sergeant.Footnote ²⁸⁷⁷ Except for Muqaddam Idriss, the individuals who agreed the common plan held high positions in the different GoS Forces, namely the PDF and the SAF, or within the Janjaweed, who participated in the Mukjar Operation. These co-perpetrators were deployed on the ground, directly participated in the implementation of the plan and acted with the same common agreement. In addition to those identified by name above, the Chamber is satisfied that other members of the Janjaweed and GoS forces, also deployed on the ground and who directly participated in the commission of the crimes, were also members of the Mukjar Common Plan.Footnote ²⁸⁷⁸

963. The Chamber is satisfied of the existence of the common plan between the Accused and the individuals identified above, particularly on the basis that the co-perpetrators clearly acted in a coordinated and planned manner. The modus operandi of the arrests, the detentions, the mistreatment in detention, and the executions, was methodical and shows coordinated preparation and planning between the perpetrators: they were carried out with the use of check-points,Footnote ²⁸⁷⁹ the registration of the displaced persons and detainees,Footnote ²⁸⁸⁰ the use of lists of suspects,Footnote ²⁸⁸¹ the use of official detention facilities,Footnote ²⁸⁸² and the use of vehicles to transfer the detaineesFootnote ²⁸⁸³ to different execution sites.Footnote ²⁸⁸⁴

964. The Chamber further notes that each of the co-perpetrators was present and actively involved in the preparation and implementation of elements of the plan, and in the logistical preparation necessary to conduct such an operation. The co-perpetrators interacted with one another in different combinations before the operation and during the implementation of the common plan. The fact that the Accused and other co-perpetrators issued consistent instructions and orders further demonstrates the existence of a common plan or agreement.

965. More specifically, the co-perpetrators were involved in the distribution of weapons to the fighters, prior to the Mukjar Operation.Footnote ²⁸⁸⁵

966. The co-perpetrators made public speeches encouraging the commission of crimes comprised in the common plan.Footnote ²⁸⁸⁶ For example, on 1 February 2004, Minister Harun made a speech in Mukjar in which he said that he wanted the fighters to completely ‘wipe out’ the whole area, that they could ‘take all the belongings of the Fur’ and consider them as ‘a war prize’, and that he wanted them to ‘demolish the whole area from Artala to Andi Koti’.Footnote ²⁸⁸⁷

967. The co-perpetrators gathered at meetings in which features of the common plan were discussed.Footnote ²⁸⁸⁸ For example, on or about 2 March 2004, several officials met at the police station compound, including Al-Tayyib, Samih, Lt Hamdi, Abd-Al-Mun’im and the Accused.Footnote ²⁸⁸⁹ During this meeting, the features of the implementation of the common plan were discussed: the Accused told Torshein that they needed to take the prisoners to Zalingei, and that it was an order of Minister Harun.Footnote ²⁸⁹⁰ The Accused was also heard saying that he wanted all the displaced persons in Mukjar dead.Footnote ²⁸⁹¹

968. The co-perpetrators were present and/or issued instructions or directly participated in the mistreatment of the detainees at the Mukjar police station.Footnote ²⁸⁹² For example, Lt Hamdi, and Samih were present when the Accused physically and verbally abused the detainees, on or around 1 March 2004.Footnote ²⁸⁹³ Lt Hamdi questioned the detainees about the whereabouts of presumed rebels while pointing a gun at them.Footnote ²⁸⁹⁴

969. The co-perpetrators organised and participated in the transfer of detainees to the execution sites. They were present at the execution sites and participated in the murder of the victims. For example, the Accused instructed the Janjaweed and GoS Forces to take the detainees out of their cells and load them onto vehicles.Footnote ²⁸⁹⁵ The Accused, Samih and Lt Hamdi were part of the convoy that transferred the detainees to the executions sites.Footnote ²⁸⁹⁶ At the first execution site at Khor Talaba, the Accused, Hassaballah, Lt Hamdi, and Samih were present when the detainees were murdered on the Accused’s instructions.Footnote ²⁸⁹⁷ Muqaddam Idriss and Hassaballah were among those who shot the detainees.Footnote ²⁸⁹⁸ At the second execution site, located between Eastern Juguma and Nyerli, the Accused ordered some detainees to get out of the vehicles, and both Samih and the Accused beat the detainees.Footnote ²⁸⁹⁹ The Accused also ordered his forces to execute the detainees.Footnote ²⁹⁰⁰ The Accused and Samih stood next to 10 soldiers who opened fire and shot at the detainees.Footnote ²⁹⁰¹

970. Having considered all these elements and the circumstances prevailing at the time of the Mukjar Operation, the Chamber is therefore satisfied of the existence of a common plan specifically directed at the commission of the crimes of murder, torture, outrages upon personal dignity and persecution.

971. The Chamber further notes that the co-perpetrators were present and witnessed the escalating nature of the commission of the crimes, which began with the mistreatment of the detainees. The Chamber also recalls the nature of the tasks undertaken by each of the co-perpetrators, including the fact that the Accused and others gave direct instructions and engaged in the direct perpetration of the crimes. In light of this and reiterating the circumstances prevailing at the time, the Chamber is therefore satisfied that the co-perpetrators, including the Accused, had mutual awareness that their joint efforts in the implementation of the common plan would result in the commission of each of the crimes it encompassed. The Chamber is also satisfied, as explained below, that the Accused shared this intent and awareness.Footnote ²⁹⁰²

b) Deleig Common Plan

972. The Chamber finds that, at least between on or about 5 and 7 March 2004, the Accused shared a common plan with several members of the Janjaweed and GoS Forces. The ultimate goal of the common plan was to murder predominantly Fur men, who were perceived as belonging to, or being associated with, or supporting the rebels. The agreement also involved arresting, detaining, interrogating and punishing them through the commission of the crimes oftorture, outrages upon personal dignity and persecution (the ‘Deleig Common Plan’).Footnote ²⁹⁰³

973. The Chamber is satisfied that both this ultimate goal (murdering the detainees), as well as the other criminal acts charged and that occurred in the course of its implementation (the commission of the crimes of torture, outrages upon personal dignity and persecution) were the specific and intended outcome of the Deleig Common Plan.

974. The Chamber finds that at the time of the Deleig Operation, an agreement existed between the following individuals: the Accused; Lt Hamdi, the head of the SAF Military Intelligence branch in Garsila;Footnote ²⁹⁰⁴ Hassaballah, the PDF coordinator in Garsila after Jenif’s death;Footnote ²⁹⁰⁵ and Military Intelligence officers Muqaddam Idriss,Footnote ²⁹⁰⁶ Abd-Al-Mun’im,Footnote ²⁹⁰⁷ and Mansur.Footnote ²⁹⁰⁸ As set out below,Footnote ²⁹⁰⁹ each of them was present during different phases of the preparation and implementation of the common plan. These co-perpetrators were deployed on the ground, directly participated in the implementation of the plan and acted with the same common agreement. In addition to those identified by the Chamber, the Chamber is satisfied that other members of the Janjaweed and GoS forces, also deployed on the ground during the Deleig Operation, and who directly participated in the commission of the crimes, were also members of the Deleig Common Plan.

975. The Chamber is satisfied of the existence of the common plan between the Accused and the individuals identified above, on the basis that the co-perpetrators clearly acted in a coordinated and planned manner. The Chamber reiterates that during the Deleig Operation between 5 and 7 March 2004, the Janjaweed and GoS Forces jointly deployed, surrounded and entered Deleig,Footnote ²⁹¹⁰ where they established checkpoints and conducted searches and arrests of predominantly Fur men and boys who were not from Deleig and were suspected of being, or supporting, rebels.Footnote ²⁹¹¹ They subsequently detained them, including several community leaders, inside or around the Deleig police station, where they were subjected to mistreatment and questioning.Footnote ²⁹¹² Those who were not released were killed at the Deleig Police station or loaded onto vehicles to be killed in execution sites outside Deleig.Footnote ²⁹¹³ The Chamber is satisfied that the following demonstrates the methodical preparation, planning and coordination in furtherance of the Deleig Common Plan by the Accused and his co-perpetrators: (i) the selective arrests and detentions of ‘insurgents’ in Garsila;Footnote ²⁹¹⁴ (ii) the joint deployment of the Janjaweed and GoS Forces from Garsila to Deleig;Footnote ²⁹¹⁵ (iii) the surrounding of Deleig by the Janjaweed and the GoS Forces and the establishment of check-points and controls of all movement;Footnote ²⁹¹⁶ (iv) the conduct of searches and arrests;Footnote ²⁹¹⁷ (v) the detentions at or outside the Deleig police station;Footnote ²⁹¹⁸ (vi) the questioning and release of some detainees;Footnote ²⁹¹⁹ (vii) the transfer and execution of detainees at specific locations.Footnote ²⁹²⁰

976. The Chamber further finds that the existence of the Deleig Common Plan may be inferred from the Accused and the co-perpetrators’ multiple interaction and concerted and coordinated actions in the unfolding of the Deleig Operation, as shown below. Each of the co- perpetrators was present and actively involved in the preparation and implementation of elements of the plan, and in the logistical preparation necessary to conduct such an operation. The co-perpetrators interacted with one another in different combinations before the operation and during the implementation of the common plan. The fact that the Accused and other co-perpetrators issued consistent instructions and orders further demonstrates the existence of a common plan or agreement.

977. More specifically, the co-perpetrators organised the deployment of the forces in charge of the Deleig Operation. For example, prior to the Deleig Operation, the same Janjaweed and GoS Forces, who had conducted the Mukjar Operation, were jointly deployed from Garsila to Deleig on Muqaddam Idriss’s instructions.Footnote ²⁹²¹ Amongst the forces deployed to Deleig were the Accused, Lt Hamdi, Hassaballah, Muqaddam Idriss, Abd-al-Mun’im, and Mansur.Footnote ²⁹²² On 5 March 2004, the Accused led the Janjaweed and GoS Forces that entered Deleig.Footnote ²⁹²³

978. The co-perpetrators also organised and participated in the arrest of the victims.Footnote ²⁹²⁴ During the Deleig Operation, the search and arrest of predominantly Fur men and boys was carried out in Lt Hamdi’s presence and pursuant to his instructions, with the assistance of Abd-Al-Mun’im and Mansur.Footnote ²⁹²⁵ The Accused personally conducted the arrest of Umdah Kindiri.Footnote ²⁹²⁶

979. The co-perpetrators were present and/or issued instructions or directly participated in the mistreatment of the detainees. They were present at the execution sites and participated in the murder of the victims. For example, at the Deleig police station on 5 March 2004, where the victims were detained and mistreated, the Janjaweed were under the Accused’s command and Abd-Al-Mun’im, Muqaddam Idriss, and Hassaballah were present.Footnote ²⁹²⁷ On that same day, they were also present alongside the Accused when detainees were killed inside Deleig police station - such as Jenif after being accused by Hassaballah of supporting the rebels - and at the execution site in the North-west of Deleig near Fere, at a location identified by the Accused.Footnote ²⁹²⁸

980. Having considered all these elements and the circumstances prevailing at the time of the Deleig Operation, the Chamber is therefore satisfied of the existence of a common plan specifically directed at the commission of the crimes of murder, torture, outrages upon personal dignity and persecution.

981. The Chamber further notes that the co-perpetrators were present at the different sites where the crimes were committed. The Chamber also recalls the nature of the tasks undertaken by each of the co-perpetrators, including the fact that the Accused and others gave direct instructions and engaged in the direct perpetration of the crimes. In light of this and reiterating the circumstances prevailing at the time, the Chamber is therefore satisfied that the co-perpetrators, including the Accused, had mutual awareness that their joint efforts in the implementation of the common plan would result in the commission of each of the crimes it encompassed. The Chamber is also satisfied, as explained below, that the Accused shared this intent and awareness.Footnote ²⁹²⁹

c) Essential contribution

982. For the reasons set out below, the Chamber is satisfied that the Accused made an essential contribution to each of the crimes that were part of the Mukjar and Deleig Common Plans.

983. The Chamber first refers to the role and reputation of the Accused within the Wadi Salih area. The Accused was well-known in the area and was widely regarded as a Janjaweed leader. The evidence does not clearly reveal why a retired Musa’id in the medical corps of the SAF, who became a pharmacist, should have achieved such a position in the area. However, the evidence does clearly reveal that he had such a position. The Accused had authority over Janjaweed leaders and other lower-ranking members. The Accused had direct access to key figures at the highest level of the Sudanese government, such as Ministers Hussein and Harun, and at the locality level, such as Lt Hamdi.Footnote ²⁹³⁰ The combination of these factors made the Accused a leader who commanded respect and therefore obedience from others. The Chamber considers that the implementation of the GoS’s counter-insurgency efforts, such as the Mukjar and Deleig Operations, required such a leader.

984. Second, the Chamber refers to the acts and role of the Accused immediately prior to the Mukjar and Deleig Operations. The Chamber recalls that GoS resources destined to support the Janjaweed were channelled through the Accused and that he oversaw the recruitment of members of the Janjaweed and the distribution of matériel to them.Footnote ²⁹³¹ Specifically in relation to the Mukjar and Deleig Operations, the Chamber recalls that around February 2004, in the lead up to these operations, the Accused coordinated the distribution of weapons to the Janjaweed at the Garsila SAF base.Footnote ²⁹³²

985. Third, the Chamber notes that the Accused was present and intervened throughout the different stages (preparation and execution) of the Mukjar Common Plan and personally carried out the material elements of some of the crimes that were part of the same. More specifically, the Chamber recalls that the Accused: (i) prior to the Mukjar Operation, held meetings with high-ranking GoS officials in relation to the implementation of the Common Plan;Footnote ²⁹³³ (ii) led the Janjaweed in this joint operation with the GoS Forces;Footnote ²⁹³⁴ (iii) personally committed crimes which were part of the Mukjar Common Plan, namely the crimes of outrages upon personal dignity and torture, in the presence of members of the Janjaweed and the GoS Forces;Footnote ²⁹³⁵ (iv) prior to the Mukjar Operation, instructed GoS Forces how to carry out, and, during the Operation, personally participated in, arrests;Footnote ²⁹³⁶ (v) was present as detainees were being brought to the police station;Footnote ²⁹³⁷ (vi) took steps to identify ‘rebels’, namely by instructing the second-in-command of the SLM/A, who had been captured during the Sindu Operation, to point them out in a cell at the police station;Footnote ²⁹³⁸ (vii) physically and verbally abused detainees at the police station, and was present as members of the Janjaweed did the same;Footnote ²⁹³⁹ (viii) liaised with Minister Harun and other senior GoS officials in relation to the custody of detainees;Footnote ²⁹⁴⁰ (ix) gave orders to GoS officials in relation to the transfer of detainees;Footnote ²⁹⁴¹ (x) personally took detainees out of their cells and loaded them onto vehicles, and ordered members of the Janjaweed and the GoS Forces to do the same;Footnote ²⁹⁴² (xi) supervised the transport of detainees to the execution sites;Footnote ²⁹⁴³ (xii) at the execution sites, mistreated detainees in the presence of members of the Janjaweed and GoS Forces, and was present while members of the Janjaweed and GoS Forces were doing the same;Footnote ²⁹⁴⁴ and (xiii) at the execution sites, ordered members of the Janjaweed and GoS Forces to execute the detainees.Footnote ²⁹⁴⁵

986. Fourth, as regards the Deleig Operation, the Chamber notes that the Accused was present and intervened throughout the different stages (preparation and execution) of the Deleig Common Plan and personally carried out the material elements of some of the crimes that were part of the same. More specifically, the Chamber recalls that the Accused: (i) led the Janjaweed in this joint operation with the GoS Forces;Footnote ²⁹⁴⁶ (ii) personally committed crimes, which were part of the Deleig Common Plan, namely the crimes of outrages upon personal dignity, torture and murder in the presence of members of the Janjaweed and the GoS Forces;Footnote ²⁹⁴⁷ (iii) personally brought detainees to the Garsila SAF base, and provided intelligence which led to, and issued orders for, the arrest of persons, some of whom were later detained and killed in Deleig;Footnote ²⁹⁴⁸ (iv) was present, issued orders during, and participated in the search and arrest operation;Footnote ²⁹⁴⁹ (v) was present at the Deleig police station, including in the open area outside the police station where detainees were held and mistreated;Footnote ²⁹⁵⁰ (vi) commanded the Janjaweed at the Deleig police station;Footnote ²⁹⁵¹ (vii) questioned detainees;Footnote ²⁹⁵² (viii) decided whether detainees should be released;Footnote ²⁹⁵³ (ix) physically and verbally abused detainees in the presence of members of the Janjaweed and GoS Forces;Footnote ²⁹⁵⁴ (x) committed killings in the presence of members of the Janjaweed and the GoS Forces;Footnote ²⁹⁵⁵ (xi) gave instructions to members of the Janjaweed and GoS Forces to load detainees onto vehicles, and supervised this process;Footnote ²⁹⁵⁶ (xii) supervised the transport of detainees to execution sites;Footnote ²⁹⁵⁷ and (xiii) at one execution site, ordered members of the Janjaweed and the GoS Forces to take the detainees off the vehicles and execute them.Footnote ²⁹⁵⁸

987. In light of the above, and consistent with its findings on the common plans, the Chamber is satisfied that: (i) the Accused’s participation in the preparation of the Mukjar and Deleig Common Plans was key in defining the contours of both plans and in securing human and material resources to ensure their implementation; (ii) the Accused’s leadership of the Janjaweed, allowed the Janjaweed to act as a single and unified force operating jointly with the GoS Forces; (iii) instructions from the highest level of the Sudanese government regarding the Mukjar and Deleig Operations, were communicated to and implemented by the Accused; and (iv) the Accused’s instructions to members of the participating forces (GoS Forces and Janjaweed alike) and supervision at several stages of the Mukjar and Deleig Operations, allowed both operations to progress until completion. Additionally, the Accused’s presence at the relevant sites and personal commission of crimes which were part of the common plans, demonstrate his essential contribution.

988. Accordingly, the Chamber is satisfied that the Accused’s leadership of the Janjaweed, combined with his presence and his actions in preparation of, and throughout, the Mukjar and Deleig Operations, within the framework of the relevant Common Plans, amount to an essential contribution to the crimes of murder and attempted murder (Counts 17-20, 27-30), torture (Counts 12-13, 22-23), outrages upon personal dignity (Counts 16, 26), and persecution (Counts 21, 31), which would have been committed in a significantly different way without such contribution.Footnote ²⁹⁵⁹ This legal element is thus met. On the same basis, the Chamber is satisfied that the Accused was aware of his essential role and as such his ability to, jointly with others, control the commission of the crimes.

989. The Chamber notes the Defence’s arguments that the Accused was not the ‘highest authority’ or that he was not the one issuing orders at every step of the Mukjar and Deleig Operations.Footnote ²⁹⁶⁰ The Chamber however emphasises that it need not find that the Accused had the sole responsibility or was mainly responsible for these crimes, nor that he made an essential contribution to each criminal incident to find him liable as a co-perpetrator. Rather, as stated above, the decisive consideration is whether, without the Accused’s contribution, the crime(s) could not have been committed or would have been committed in a significantly different way.

Accordingly, the Chamber rejects the Defence’s arguments on this point.

d) Mental elements

990. The Chamber is satisfied, based on the nature of the acts and conduct constituting his essential contribution,Footnote ²⁹⁶¹ and the absence of allegations or evidence suggesting otherwise, that the Accused’s conduct was deliberate. The requirement under Article 30(2)(a) of the Statute, i.e. that the Accused meant to engage in the relevant conduct, is thus met.

991. In assessing the Accused’s knowledge and intent with respect to the criminal conduct of the Janjaweed and GoS Forces during the Mukjar and Deleig Operation, the Chamber first refers to its finding that the Accused is liable as a direct perpetrator for the commission of other instances of the same crimes. The Chamber recalls that the Accused personally carried out, with intent, the material element of the crimes of torture and outrage upon personal dignity committed against several captives and detainees, as well as the killing of two men.Footnote ²⁹⁶² He did so in a particularly cruel manner, against some community leaders, and in front of members of the Janjaweed and GoS Forces.

992. The Chamber further recalls the words of the Accused at the relevant time, in particular a few clear and specific instructions which leave no doubt as to how the Accused expected those who would execute the Common Plans to behave, in particular with respect to the fate of the captives. Not only did the Accused use derogatory terms to refer to themFootnote ²⁹⁶³ or threatened to kill some of them,Footnote ²⁹⁶⁴ he specifically said that he wanted them dead.Footnote ²⁹⁶⁵ When on board the vehicle transporting the Mukjar detainees to the first execution site, the Accused stated ‘prepare their graves’.Footnote ²⁹⁶⁶ When they arrived at the site, and after having ordered the detainees to get out of the vehicle and lie down in a line, the Accused instructed some members of the Janjaweed and GoS Forces to shoot and kill the detainees, which they did.Footnote ²⁹⁶⁷ The Chamber notes that similar instructions to kill other Mukjar detainees who had been transported to another execution site were also given by the Accused.Footnote ²⁹⁶⁸ Moreover, and while the evidence does not allow the Chamber to establish the precise words he used, the Chamber is satisfied that similar instructions to kill the Deleig detainees were also issued by the Accused,Footnote ²⁹⁶⁹ who had participated in their mistreatment earlier that day at Deleig police station and supervised the loading and transport of these detainees to the execution site.Footnote ²⁹⁷⁰ The Chamber further recalls that, in the context of a prior operation, the Accused gave a speech instructing the Janjaweed to ‘kill everyone’ and ‘leave no one alive’.Footnote ²⁹⁷¹

993. More generally, the Chamber refers to the Accused’s acquiescing presence on the ground throughout the various stages of the Deleig and Mukjar Operations. The Chamber recalls that the Accused, as a leader exerting authority over all troops present,Footnote ²⁹⁷² was nearby while members of the Janjaweed and GoS Forces, conforming with his instructions, proceeded to the arrest, detention, and mistreatment of captives, as well as their transport to and killing at execution sites.Footnote ²⁹⁷³

994. For the reasons set out above, the Chamber is satisfied that the Accused, throughout the relevant period, and in the context of the implementation of the Common Plans, intended that members of the Janjaweed and GoS Forces should: i) kill civilians not taking an active part in the hostilities and/or persons hors de combat; ii) inflict severe physical and mental pain and suffering upon them; iii) humiliate, degrade or otherwise violate their dignity; and, by doing so, also iv) deprive them of some of their fundamental rights. The knowledge and intent requirement for all relevant crimes, pursuant to Article 30(2)(b) and (3) of the Statute, are therefore met.

995. The Chamber recalls that the victims of the crimes charged under Counts 12-13, 16-23, 26-31 were all arrested and/or detained by the Janjaweed and GoS Forces during the Mukjar or Deleig Operations. These men and boys were victimized either in or around Mukjar and Deleig Police stations, or while they were being transported to and/or had arrived at the sites where they would be killed. On the basis of the relevant circumstances,Footnote ²⁹⁷⁴ his presence as well as his personal role in these events,Footnote ²⁹⁷⁵ the Chamber is convinced that the only reasonable conclusion is that the Accused knew the factual circumstances that established the victims’ protected status under IHL. The knowledge requirements under Articles 30(3) and 8(2)(c)(i) and (ii) of the Statute are thus met.Footnote ²⁹⁷⁶

996. Finally, as explained above, the victims were singled out and targeted by the Janjaweed and GoS Forces, to be tortured and subsequently killed, because of their identity as a protected group.Footnote ²⁹⁷⁷ The Chamber refers to its findings that the Accused previously ordered Janjaweed to commit certain crimes, targeting the Fur population and their property specifically.Footnote ²⁹⁷⁸ The Chamber further recalls that, in the context of speeches he gave to the Janjaweed during operations conducted at the beginning of 2004, i.e. immediately before the Mukjar Operation, the Accused instructed his troops to kill the men, but spare the women.Footnote ²⁹⁷⁹ As explained above,Footnote ²⁹⁸⁰ the Accused then took part and led the Mukjar and Deleig Operations with the objective to murder, arrest, detain, interrogate, punish, through the commission of the crimes of torture, outrages upon personal dignity and persecution, predominantly Fur men, who were perceived as belonging to, or being associated with, or supporting the rebels.Footnote ²⁹⁸¹ On that basis, the Chamber is convinced that the only reasonable conclusion is that the Accused’s acts and conduct were deliberate and undertaken with a discriminatory intent on a combination of ethnic, political and gender grounds. As such, the requisite discriminatory intent for the crime against humanity of persecution is met. For the same reasons, and as explained above,Footnote ²⁹⁸² the Chamber is also satisfied that the requisite intent for the war crime of torture is met.

C. Conclusion

997. The Chamber notes that, in its Final Brief, the Defence stated that it had intended to raise an alibi for Counts 22-31 in relation to the crimes committed in Deleig.Footnote ²⁹⁸³ The Defence also acknowledged that no evidence was adduced in support of this alibi.Footnote ²⁹⁸⁴ The Chamber, nonetheless, considered whether there was any evidence which could undermine the accounts of the witnesses who identified the Accused as not only being present, but taking part in the events which form the factual basis for the charges.Footnote ²⁹⁸⁵ Having found no such credible evidence, the Chamber is convinced, beyond reasonable doubt, that the Accused is criminally responsible, as a co-perpetrator within the meaning of Article 25(3)(a) of the Statute, for the commission of the following crimes in relation to at least 200 captives and/or detainees during the Mukjar and Deleig Operations: torture as a crime against humanity, under Article 7(1)(f) of the Statute, and as a war crime, under Article 8(2)(c)(i) of the Statute (Counts 12-13 and 22-23); outrages upon personal dignity as a war crime, under Article 8(2)(c)(ii) of the Statute (Counts 16 and 26); murder (and attempted murder) as a crime against humanity, under Article 7(1)(a) of the Statute, and as a war crime, under Article 8(2)(c)(i) of the Statute (Counts 17-20 and 27-30); and persecution as a crime against humanity, under Article 7(1)(h) of the Statute (Counts 21 and 31).

V. ACCESSORIAL LIABILITY FOR ORDERING

A. The charges

998. Considering the Chamber’s findings as regards the Accused’s criminal responsibility pursuant to Article 25(3)(a) of the Statute in respect of Counts 12-31,Footnote ²⁹⁸⁶ in the present section the Chamber examines only whether the Accused is individually responsible pursuant to Article 25(3)(b) of the Statute in respect of Counts 1-11.

999. The Accused is charged with accessorial liability for ordering pursuant to Article 25(3)(b) of the Statute, for the war crime of attack against a civilian population (Count 1), the crime against humanity and war crime of murder and attempted murder (Counts 2-3), the war crime of pillaging (Count 4), the war crime of destroying the enemy’s property (Count 5), the crime against humanity of other inhumane acts (Count 6), the war crime of cruel treatment (Count 7), the crime against humanity and war crime of rape (Counts 8-9), the war crime of forcible transfer of population (Count 10), and the crime against humanity of persecution (Counts 11) committed in Kodoom, Bindisi and surrounding areas between 15 and 16 August 2003.

B. Findings of the Chamber

1000. The Chamber recalls that before the commencement of the trial, notice was given to the parties and participants of the possibility that the legal characterisation of the facts under Counts 1-11 may be subject to change to include the mode of liability of ‘ordering’ under Article 25(3)(b) of the Statute.Footnote ²⁹⁸⁷ The Chamber notes that the Defence had ample time and opportunity to prepare and adjust its defence, and also addressed the mode of liability of ‘ordering’ in its closing submissions.Footnote ²⁹⁸⁸ Therefore, the Chamber is satisfied that no unfairness arises from this recharacterisation. Accordingly, pursuant to Regulation 55(1) of the Regulations and in light of the totality of the evidence, and as analysed in the paragraphs below, the Chamber hereby modifies the legal characterisation of the facts in accordance with its previous notice.

1001. The Chamber notes that although the crimes charged under Counts 1 to 11 relate only to attacks on Kodoom, Bindisi and surrounding areas,Footnote ²⁹⁸⁹ it is evident from its findings on the facts that the Kodoom and Bindisi Operation comprised of a sequence of attacks, over the course of two days, on multiple towns and villages which - although not charged - included Nyerli, Tiro, Merly, Seder, and Drangal.Footnote ²⁹⁹⁰ Therefore, the Chamber finds that it must take into account the Accused’s actions (including issuing orders and/or instructions) for the entire duration of the operation, in order to fully capture and assess the Accused’s role (his authority and instructions to the Janjaweed), to establish his individual criminal responsibility for Counts 1 to 11.

1002. First, the Chamber is satisfied that the Accused held a de facto position of authority vis-à-vis the Janjaweed during the Kodoom and Bindisi Operation. This is founded upon the following factual findings:

a) the Accused was the leader of the Janjaweed in the Mukjar and Wadi Salih localities between July 2003 and August 2004;Footnote ²⁹⁹¹

b) he commanded the Janjaweed contingent that arrived in Mukjar after the rebel attack on or around 8 August 2003;Footnote ²⁹⁹²

c) during the visit by the GoS delegation in Mukjar on or around 9 August 2003, he met with the delegation and spoke ‘on behalf of the Janjaweed’ at a public gathering, which included members of the Janjaweed;Footnote ²⁹⁹³

d) after the departure of the GoS delegation on or around 9 August 2003, he led the Janjaweed in an operation to attack villages situated east and north of Mukjar;Footnote ²⁹⁹⁴

e) he commanded the Janjaweed contingent that undertook the Kodoom and Bindisi Operation on 15 and 16 August 2003;Footnote ²⁹⁹⁵

f) in the midst of the attack on Kodoom, a member of the Janjaweed addressed the Accused as ‘Excellency Ali’ or ‘Commander Ali’ and sought his permission to kill P-0986;Footnote ²⁹⁹⁶ and

g) during the operation, the Accused subdued and dismissed challenges to his plan or instructions from other Janjaweed agids, GoS officials and members of the GoS forces.Footnote ²⁹⁹⁷

1003. Second, the Chamber is satisfied that the Accused issued instructions and directions to the Janjaweed throughout the Kodoom and Bindisi Operation to commit the crimes charged under Counts 1 to 11. The Chamber is satisfied that this is the only reasonable conclusion, based on its holistic assessment of the entirety of the evidence, in particular, the following facts:

a) the Accused was present on the ground throughout the entirety of the operation;Footnote ²⁹⁹⁸

b) the Accused exercised effective command and control over the Janjaweed as he directed them at all stages of the operation;Footnote ²⁹⁹⁹

c) criminal acts committed by the Janjaweed during the operation were widespread and followed a similar pattern, including during the (uncharged) attacks on Nyerli, Tiro, Merly, Seder and Drangal;Footnote ³⁰⁰⁰

d) throughout the operation, the Accused issued instructions to Hassaballah, who was a senior figure in the Janjaweed and PDF;Footnote ³⁰⁰¹

e) right before the attack on Kodoom, in its eastern outskirts, the Accused held a meeting with Hassaballah and Solonga, who were senior figures in the Janjaweed and PDF, after which the Accused was heard instructing Hassaballah to ‘move _on’;3002

f) in the midst of the attack on Kodoom, a member of the Janjaweed addressed the Accused as ‘Excellency Ali’ or ‘Commander Ali’ and sought his permission to kill P-0986;Footnote ³⁰⁰³

g) around the same time, the Accused instructed the Janjaweed to question, mistreat and then kill P-0986, and also to chase after livestock and fleeing inhabitants of Kodoom;Footnote ³⁰⁰⁴

h) on the night of 15 August 2003, the Accused blew his whistle and convened the Janjaweed agids, he addressed them, and instructed them to go back to their positions, have dinner and sleep early, and that he would speak to them the next morning;Footnote ³⁰⁰⁵

i) in the morning of 16 August 2003, prior to the attack on South Bindisi, the Accused blew his whistle again, convened the Janjaweed agids, and instructed the Janjaweed to ‘destroy the remainder of the villages of Bindisi and Mukjar, south of Bindisi and then eastward of Bindisi all the way to Mukjar’;Footnote ³⁰⁰⁶

j) during the same address to the Janjaweed, the Accused threatened the agids who refused to follow his instructions;Footnote ³⁰⁰⁷ and

k) during the attack on South Bindisi, P-0012 saw the Accused making hand gestures, which he interpreted as the Accused giving instructions to members of the Janjaweed.Footnote ³⁰⁰⁸

1004. Furthermore, the Chamber recalls that during the operation, the Accused shouted chants like ‘Allahu Akbar’, ‘amsah aksah’ and ‘wipe out and sweep away’ as instructions to the Janjaweed to commence its attacks on the villages and townships.Footnote ³⁰⁰⁹ As regards the meaning and significance of the phrases ‘amsah aksah’ and ‘wipe out and sweep away’, the Chamber reiterates its factual finding that in the context of the conflict in Darfur, they were understood to mean to kill without any limit or ‘relentlessly’, to leave no trace (by burning), and metaphorically to ‘wipe out’, ‘clean’ and ‘sweep away’.Footnote ³⁰¹⁰ In fact, a few days prior to the Kodoom and Bindisi Operation, Minister Harun visited Mukjar, and in a public address told the gathered Janjaweed to ‘wipe out and sweep away the Fur do not keep anyone alive’ and that the Fur and their money was booty or ‘prize’ for the Janjaweed.Footnote ³⁰¹¹ At the same time he told the predominantly Fur population of Mukjar that they would be ‘raped’, ‘killed’ and their properties ‘looted’.Footnote ³⁰¹² The Accused was present at this public meeting, standing close to Minister Harun; and also addressed the crowd, speaking ‘on behalf of the Janjaweed’, he said that the Janjaweed were there to defend the property of the GoS and that they ‘were alongside’ the SAF.Footnote ³⁰¹³

1005. The Chamber finds that, in the context of the armed conflict in Darfur, Minister Harun’s use of the phrases ‘amsah aksah’ and ‘wipe out and sweep away’ along with rape, killing and looting, and the fact that it was being uttered by a GoS minister, effectively communicated to those present at the public meeting that ‘amsah aksah’ and ‘wipe out and sweep away’ authorised inter alia rape, killing civilians and pillaging. The cohort that attended this public meeting, i.e. the Accused and the members of the Janjaweed, also undertook the Kodoom and Bindisi Operation. Therefore, when the Accused issued instructions to the Janjaweed using the phrases ‘amsah aksah’ and ‘wipe out and sweep away’ prior to the commencement of the attacks on the villages and townships, including Kodoom and Bindisi, he and the Janjaweed were well aware of the meaning and significance of the phrases he used to instruct. This finding that the crimes were sanctioned by the State and thus the Janjaweed understood the Accused’s instruction as a license to commit them, is supported by the fact that, during the attack on Bindisi, after raping, beating and mistreating P-0011, a member of the Janjaweed declared ‘we don’t want these people to stay alive’, and thanked President Al-Bashir for giving them this ‘opportunity’.Footnote ³⁰¹⁴

1006. Third, in light of earlier discussion, the Chamber is also satisfied that the Accused’s instructions had a direct effect on the commission of the crimes by the Janjaweed. This is based on the factual findings that:

a) as discussed above, the Accused commanded the Janjaweed contingent that undertook the Kodoom and Bindisi Operation,Footnote ³⁰¹⁵ and directed them at all stages of the operation;Footnote ³⁰¹⁶

b) it was after the Accused issued his instructions in the manner discussed above, that the Janjaweed commenced their attacks on the villages and townships during the Kodoom and Bindisi Operation;Footnote ³⁰¹⁷ and

c) it was during two such attacks, on Kodoom and on Bindisi, that the crimes charged under Counts 1-11 were committed by the Janjaweed.

1007. Further, the fact that, in the midst of the attack on Kodoom, a member of the Janjaweed sought the Accused’s permission to kill P-0986,Footnote ³⁰¹⁸ demonstrates that the Janjaweed were acting directly pursuant to the instructions of the Accused.

1008. Fourth, the Chamber is also satisfied that the Accused was aware and could foresee that the crimes charged under Counts 1 to 11 would be committed in the ordinary course of the attacks on Kodoom and Bindisi during the implementation of his orders. In particular, the Chamber reiterates the following facts:

a) as discussed earlier, the Accused was aware of the meaning and significance of the phrases ‘amsah aksah’ and ‘wipe out and sweep away’ and the Janjaweed’s understanding of this phrase in his instructions to them;

b) the Accused was present on the ground during the Janjaweed’s attacks on Kodoom and on Bindisi,Footnote ³⁰¹⁹ which means that he saw and was aware of the manner in which his orders were being implemented by the Janjaweed;

c) the Accused’s presence on the ground for the entirety of the operation means that, prior to the charged attacks, he saw and became aware of the manner in which the Janjaweed were implementing his orders during the course of the attacks on the villages of Nyerli and Tiro (prior to the attack on Kodoom) and also Kodoom, Merly, Seder and Drangal (prior to the attack on Bindisi).Footnote ³⁰²⁰

1009. The Chamber further finds that, at various points during the Kodoom and Bindisi Operation, prior to and during the attacks on Kodoom and on Bindisi, several incidents occurred which demonstrate that the Accused was aware that crimes were being committed in the course of implementation of his orders.Footnote ³⁰²¹ This is based on the factual findings that:

a) after the Janjaweed’s attack on Nyerli, during which they fired at and chased people away, raped women, looted properties and burned down houses,Footnote ³⁰²² P-1021 asked the Accused why he did it, the Accused told him that it was none of his business;Footnote ³⁰²³

b) after the Janjaweed fired at and chased away the inhabitants of Tiro, who were predominantly Fur, and burned down their houses, the Accused dismissed the exhortations of a Janjaweed agid that what he was doing was wrong;Footnote ³⁰²⁴

c) in the midst of the attack on Kodoom, the Accused saw members of the Janjaweed beat P-0986, and he instructed them to question, torture and then kill P-0986, and also to chase after livestock and fleeing inhabitants of Kodoom;Footnote ³⁰²⁵

d) after the Janjaweed’s attack on North Bindisi, P-0874 expressed his revulsion about the way in which the attacks were carried out, which the Accused dismissively waved off;Footnote ³⁰²⁶ and

e) on the night of 15 August 2003, the Accused clearly indicated that the attacks were carried out as he intended when he thanked and commended the Janjaweed, and told them that they ‘taught the enemy a lesson’ and ‘the Fur will never forget this lesson’;Footnote ³⁰²⁷

1010. The Chamber also notes that the attacks on Kodoom and Bindisi were not isolated incidents. The Chamber reiterates its factual finding that during the period of the conflict in Darfur, between August 2003 and March 2004, attacks on villages were marked by a disproportionate number of casualties amongst the civilian population, sexual violence, and large-scale destruction of property and pillaging.Footnote ³⁰²⁸ The Chamber also reiterates its finding on the facts that the impact on the civilian population of a large-scale armed operation in Sudan - such as the Kodoom and Bindisi Operation - was foreseeable.Footnote ³⁰²⁹

1011. Furthermore, the Chamber notes that during the Sindu Operation, in Arawala and Um Jameina, P-0905, heard the Accused tell the Janjaweed that ‘[w]omen can be spared’ and not to kill the women.Footnote ³⁰³⁰ Primarily, these incidents took place around six months after the Kodoom and Bindisi Operation. There is no evidence before this Chamber that the Accused issued similar instructions during the Kodoom and Bindisi Operation. Moreover, P-0905 explained that the instruction meant that the Janjaweed ‘never killed women’ instead they would ‘torture’ and ‘rape’ them.Footnote ³⁰³¹ The Chamber notes that during the same operation, the Accused used the phrase ‘amsah aksah’, and told the Janjaweed to ‘never bring someone alive’.Footnote ³⁰³² Therefore, the Chamber is satisfied that the Accused’s order not to kill women was not intended to be understood that women should be ‘spared’ from the commission of other crimes, during the Kodoom and Bindisi Operation.

C. Conclusion

1012. The Chamber is therefore convinced, beyond reasonable doubt that the Accused is criminally responsible within the meaning of Article 25(3)(b) of the Statute for ordering the Janjaweed to commit the following crimes during the Kodoom and Bindisi Operation:Footnote ³⁰³³ attack against a civilian population as a war crime, under Article 8(2)(e)(i) of the Statute (Count 1); murder as a crime against humanity, under Article 7(1)(a) of the Statute and as a war crime, under Article 8(2)(c)(i) of the Statute (Counts 2 and 3); pillaging as a war crime, under Article (2)(e)(v) of the Statute (Count 4); destroying the enemy’s property as a war crime, under Article 8(2)(e)(xii) of the Statute (Count 5); other inhumane acts as a crime against humanity, under Article 7(1)(k) of the Statute (Count 6); outrages upon personal dignity as a war crime, under Article 8(2)(c)(ii) of the Statute (Count 7); rape as a crime against humanity, under Article 7(1)(g) of the Statute and as a war crime, under Article 8(2)(e)(vi) of the Statute (Counts 8 and 9); forcible transfer of population as a crime against humanity, under Article 7(1)(d) of the Statute (Count 10); and persecution as a crime against humanity, under Article 7(1)(h) of the Statute (Count 11).

SECTION 8. DISPOSITION

1013. For the foregoing reasons and on the basis of the evidence submitted and discussed before this Chamber at trial and the entire proceedings, pursuant to Article 74(2) of the Statute,

THE CHAMBER FINDS

ALI MUHAMMAD ALI ABD-AL-RAHMAN

Under Count 1 of the charges, GUILTY of the war crime of attack against a civilian population under Articles 8(2)(e)(i) and 25(3)(b) of the Statute, committed during the Kodoom and Bindisi Operation;

Under Count 2 of the charges, GUILTY of the crime against humanity of murder under Articles 7(1)(a) and 25(3)(b) of the Statute, committed during the Kodoom and Bindisi Operation ;

Under Count 3 of the charges, GUILTY of the war crime of murder under Articles 8(2)(c)(i) and 25(3)(b) of the Statute, committed during the Kodoom and Bindisi Operation;

Under Count 4 of the charges, GUILTY of the war crime of pillaging under Articles 8(2)(e)(v) and 25(3)(b) of the Statute, committed during the Kodoom and Bindisi Operation;

Under Count 5 of the charges, GUILTY of the war crime of destroying the enemy’s property under Articles 8(2)(e)(xii) and 25(3)(b) of the Statute, committed during the Kodoom and Bindisi Operation;

Under Count 6 of the charges, GUILTY of the crime against humanity of other inhumane acts under Articles 7(1)(k) and 25(3)(b) of the Statute, committed during the Kodoom and Bindisi Operation;

Under Count 7 of the charges, GUILTY of the war crime of outrages upon personal dignity under Articles 8(2)(c)(ii) and 25(3)(b) of the Statute, committed during the Kodoom and Bindisi Operation;

Under Count 8 of the charges, GUILTY of the crime against humanity of rape under Articles 7(1)(g) and 25(3)(b) of the Statute, committed during the Kodoom and Bindisi Operation;

Under Count 9 of the charges, GUILTY of the war crime of rape under Articles 8(2)(e)(vi) and 25(3)(b) of the Statute, committed during the Kodoom and Bindisi Operation;

Under Count 10 of the charges, GUILTY of the crime against humanity of forcible transfer of population under Articles 7(1)(d) and 25(3)(b) of the Statute, committed during the Kodoom and Bindisi Operation;

Under Count 11 of the charges, GUILTY of the crime against humanity of persecution on political and ethnic grounds, under Articles 7(1)(h) and 25(3)(b) of the Statute, committed during the Kodoom and Bindisi Operation;

Under Count 12 of the charges, GUILTY of the crime against humanity of torture, under Articles 7(1)(f) and 25(3)(a) of the Statute, committed during the Mukjar Operation;

Under Count 13 of the charges, GUILTY of the war crime of torture, under Articles 8(2)(c)(i) and 25(3)(a) of the Statute, committed during the Mukjar Operation;

Under Count 16 of the charges, GUILTY of the war crime of outrages upon personal dignity under Articles 8(2)(c)(ii) and 25(3)(a) of the Statute, committed during the Mukjar Operation;

Under Count 17 of the charges, GUILTY of the crime against humanity of murder under Articles 7(1)(a) and 25(3)(a) of the Statute, committed during the Mukjar Operation;

Under Count 18 of the charges, GUILTY of the war crime of murder under Articles 8(2)(c)(i) and 25(3)(a) of the Statute, committed during the Mukjar Operation;

Under Count 19 of the charges, GUILTY of the crime against humanity of attempted murder under Articles 7(1)(a) and 25(3)(a) of the Statute, committed during the Mukjar Operation;

Under Count 20 of the charges, GUILTY of the war crime of attempted murder under Articles 8(2)(c)(i) and 25(3)(a) of the Statute, committed during the Mukjar Operation;

Under Count 21 of the charges, GUILTY of the crime against humanity of persecution on political, ethnic and gender grounds, under Articles 7(1)(h) and 25(3)(a) of the Statute, committed during the Mukjar Operation;

Under Count 22 of the charges, GUILTY of the crime against humanity of torture, under Articles 7(1)(f) and 25(3)(a) of the Statute, committed during the Deleig Operation;

Under Count 23 of the charges, GUILTY of the war crime of torture, under Articles 8(2)(c)(i) and 25(3)(a) of the Statute, committed during the Deleig Operation;

Under Count 26 of the charges, GUILTY of the war crime of outrages upon personal dignity under Articles 8(2)(c)(ii) and 25(3)(a) of the Statute, committed during the Deleig Operation;

Under Count 27 of the charges, GUILTY of the crime against humanity of murder under Articles 7(1)(a) and 25(3)(a) of the Statute, committed during the Deleig Operation;

Under Count 28 of the charges, GUILTY of the war crime of murder under Articles 8(2)(c)(i) and 25(3)(a) of the Statute, committed during the Deleig Operation;

Under Count 29 of the charges, GUILTY of the crime against humanity of attempted murder under Articles 7(1)(a) and 25(3)(a) of the Statute, committed during the Deleig Operation;

Under Count 30 of the charges, GUILTY of the war crime of attempted murder under Articles 8(2)(c)(i) and 25(3)(a) of the Statute, committed during the Deleig Operation;

Under Count 31 of the charges, GUILTY of the crime against humanity of persecution on political, ethnic and gender grounds, under Articles 7(1)(h) and 25(3)(a) of the Statute, committed during the Deleig Operation;

MODIFIES, pursuant to Regulation 55 of the Regulations of the Court, the legal characterisation of the mode of liability for crimes committed during the Kodoom and Bindisi Operation so as to apply ‘ordering’ instead of‘inducing’ under Article 25(3)(b) of the Statute; and

FINDS that a cumulative conviction is impermissible for the following charges:

Count 14: crime against humanity of other inhumane acts under Articles 7(1)(k) and 25(3)(a) of the Statute, during the Mukjar Operation;

Count 15: war crime of cruel treatment under Articles 8(2)(c)(i) and 25(3)(a) of the Statute, during the Mukjar Operation;

Count 24: crime against humanity of other inhumane acts under Articles 7(1)(k) and 25(3)(a) of the Statute, during the Deleig Operation; and

Count 25: war crime of cruel treatment under Articles 8(2)(c)(i) and 25(3)(a) of the Statute, during the Deleig Operation.

Done in English. A French translation will be prepared, but the English version remains authoritative.

[Signatures]

Dated 6 October 2025

At The Hague, The Netherlands