Most Russian military personnel will never have heard of Ali Muhammad Ali Abd-Al-Rahman – and yet they should remember that name. On Tuesday, the International Criminal Court in The Hague opened the trial of Abd-Al-Rahman, an alleged rebel leader who is on trial for war crimes and crimes against humanity in the conflict in Darfur. For the first time, a leader is held accountable for serious crimes in the conflict in Western Sudan, a struggle that attracted world attention at the turn of the century.
Under the leadership of Abd-Al-Rahman, fighters have allegedly killed families, raped women and set fire to entire villages. The acts shook the consciences of people worldwide through their brutality.
Arrest warrants
The conflict in Darfur, except perhaps for the atrocities, has little in common with that in Ukraine. And yet this week’s Abd-Al-Rahman case holds an important lesson for Butja and other Ukrainian places: Even if the prosecution of perpetrators seems unrealistic now, circumstances could change in a few years’ time to allow for trials.
Nota bene the former president of the ICC, Judge Chile Eboe-Osuji, is gloomy about the prospects. In the twenty years of the Court’s existence, criminal prosecution of leaders of countries with nuclear weapons or a permanent seat on the UN Security Council has never been discussed, he said to the American weekly news week† That system is unchanged.
The Prosecutor of the Criminal Court, Karin Khan, admits that research in Ukraine poses ‘countless challenges’. The case surrounding the downing of flight MH17 also shows how difficult the trial can be in practice and how great the skepticism is that the perpetrators will ever be found and arrested.
The strength of international law, however, is patience. Prosecution of perpetrators in international politics is usually determined by those in power, but just like the weather, the political climate can change suddenly. The past decades have shown that arrest warrants are often valid longer than those in power at the top last.
Radovan Karadžić was on the run for thirteen years, Ratko Mladić for nearly sixteen. Although it seemed unrealistic for a long time that they would be tried, they were eventually arrested, brought to the International Criminal Tribunal for the former Yugoslavia in The Hague and sentenced.
Trial not unlikely
The crimes of which Abd-Al-Rahman is suspected took place 19 years ago, the investigation started 17 years ago, the first arrest warrant was issued 15 years ago. For nearly two decades, it seemed unlikely that Abd-Al-Rahman or his alleged ally, former Sudanese President Omar Al-Bashir, would appear in court. See you this week.
The fall of the Bashir regime in 2019 has changed the balance of power. Bashir is trapped in Sudan, Abd-Al-Rahman fled and eventually surrendered. These lawsuits show that the long-term trial of possible crimes in Butha and other Ukrainian places is not as unlikely as it may seem at the moment.
The international community has learned to secure evidence as quickly as possible, even without a concrete prospect of a trial. The more time that elapses between a crime and the investigation, the more difficult it becomes to find witnesses, reliable statements and forensic evidence.
Two types of evidence
Prosecutors are looking for two types of evidence: first, to prove that the crimes took place, how they can be qualified and by whom they were committed. For example, detectives investigate mass graves, the identity of the victims and the circumstances under which they were killed.
Second, evidence must be gathered that links senior military personnel and politicians — generals, ministers, the president and commander in chief — to the crimes or shows that they knew or could have known about it. For example, researchers are looking for command structures or orders, preferably in writing, with which orders were given to troops. Under international law, commanders can be held accountable for the actions of their subordinates. The International Criminal Court even prosecutes only high-ranking individuals, not ordinary soldiers.
Evidence gathered now can be used later. This lesson is already being applied in the conflicts in Syria and Myanmar: Since there are no courts or tribunals (yet) to prosecute international crimes in these countries, ways have been developed at the UN to collect and preserve evidence so that they can be can be used at a later time.
In fact, compared to these countries, detectives investigating crimes in Ukraine have an advantage: unlike in Syria and Myanmar, they are not refused entry by the local government and can conduct on-the-spot investigations as soon as the combat operations allow. Gathering and preserving evidence in Ukraine is a crucial first step to bring perpetrators to justice in the future, even if it seems impossible at the moment.
Benjamin Duerr is a lawyer and political scientist and a researcher at the Center for International Humanitarian Law in Stockholm.