From Hope to Accountability: Reflecting on the 20th Anniversary of the Referral of the Situation in Darfur to the ICC

Regions: 
Africa
Topics
UN Security Council
31 March 2025
Author: 
Coalition for the ICC

Two decades ago, the United Nations Security Council referred the situation in Darfur, Sudan, to the International Criminal Court (ICC). For the victims in Darfur, the first-ever UN Security Council referral to the ICC was a beacon of hope that those who committed unspeakable crimes would one day be held accountable. 

Acting under Chapter VII of the United Nations Charter and Article 13 of the ICC Statute, on 31 March 2005, the UN Security Council adopted Resolution 1593, referring the situation in Darfur to the ICC. This decision was based on the International Commission of Inquiry’s findings (S/2005/60), which confirmed that grave crimes, including alleged crimes against humanity, war crimes, and genocide, had been committed since 1 July 2002, when the Rome Statute entered into force.  

Resolution 1593 was adopted with 11 votes in favour, none against, and four abstentions (Algeria, Brazil, China, and the United States). The Resolution invites the ICC Prosecutor to report to the UN Security Council every six months on the state of the investigation and prosecutorial activities in relation to the situation. 

“When the UN Security Council referred the situation in Darfur to the Court in 2005, it was a powerful acknowledgment that the atrocities unfolding in Sudan could not go unaddressed. It marked the first time the ICC was given jurisdiction over a situation in a non-State Party to Rome Statute, setting an important precedent for international accountability,” highlighted Mohammed Hassan, Executive Director of the Darfur Network for Human Rights (DNHR). The referral was “a cause for celebration in the Darfuri community”, underlined Olivia Bueno, Atrocities Watch Africa (AWA)’s Programme Director. “After years of suffering, the community hoped that the leaders of atrocities against them would be held accountable, a key demand of victims in order to be able to return.” 

After reviewing a substantial body of evidence, including a sealed list of suspects identified by the UN International Commission of Inquiry, thousands of documents from various sources, and interviews with over 50 independent experts, the ICC prosecutor officially opened an investigation on 6 June 2005 into crimes under the Rome Statute allegedly committed in Darfur since 1 July 2002. 

 

Two decades of accountability: The ICC's pursuit of justice in Darfur 

Over the past 20 years, the International Criminal Court (ICC) has played a crucial role in the search for justice in Darfur. While the path has been marked by both important advances and significant challenges, the ICC’s efforts have helped shine an international spotlight on the atrocities committed during the conflict in Sudan.  

“Looking back over the past twenty years, the ICC's intervention in Darfur has represented a significant step toward redressing victims and achieving justice, given the Sudanese government's lack of willingness and ability to prosecute the perpetrators who bear the greatest responsibility for the atrocities in Darfur. The ICC was and remains the only hope for the victims,” stated Mossaad Mohamed Ali, Executive Director of the African Centre for Justice and Peace Studies (ACJPS). 

The ICC has issued seven warrants of arrest for several high-profile suspects, including former Sudanese President Omar al-Bashir for five counts of crimes against humanity, three counts of genocide and two counts of war crimes. 

A milestone in the pursuit of justice for Sudan occurred with the voluntary surrender and subsequent trial of Ali Muhammad Ali Abd-Al-Rahman, widely known as Ali Kushayb. An alleged senior commander of the Janjaweed militia, an armed group that supported the Sudanese government during its counterinsurgency campaign in Darfur between 2003 and 2004, the ICC issued an arrest warrant for him in 2007. On 9 June 2020, he voluntarily surrendered in the Central African Republic and was subsequently transferred into the custody of the ICC at The Hague. 

Kushayb now faces 31 counts of war crimes and crimes against humanity, including charges of murder, rape, torture, destruction of property, persecution, and forcible transfer, crimes allegedly committed in villages such as Kodoom, Bindisi, Mukjar, and Deleig. During his trial, which began on 5 April 2022, the Prosecution presented evidence from 56 witnesses and over 37,000 documents, involving 1,593 victims represented by legal counsel. “The arrest of Ali Kushayb to the ICC and the start of his trial marked an important, though long overdue, step forward”, stated DNHR's  Mohammed Hassan. 

In a recent briefing to the UN Security Council, the ICC Prosecutor underscored the trial’s profound impact on Darfuri communities. Echoing victims' testimonies, he stated that this process, “is not simply because of the historical significance of a trial, nor simply because of the importance of collective memory or truth-telling. But the fact that it gives victims hope that the promises made, however delayed, will be kept, not only by my Office or by the Court, but by you, by the [UN Security] Council and by the broader international community to honour the lives, the dignity and the value of the people of Darfur.”   

 

Justice Delayed is Justice Denied: Non-cooperation and resource shortfalls 

“For many victims and survivors of human rights violations, the issuance of arrest warrants including against former President Omar al-Bashir, Ahmed Haroun, Abdulrahim Mohammed Hussein were a moment of hope, recognition, and validation. It showed that even those in the highest positions of power could be held accountable. However, the lack of enforcement of these warrants and the continued impunity for perpetrators have also revealed the limitations of the Court when political will is absent” - Mohammed Hassan, Executive Director of the Darfur Network for Human Rights (DNHR). 

“From our experience working for justice in Sudan, we see that the greatest challenge is the impunity that still exists, whether through the national legal mechanisms or the ICC. Victims of war crimes and genocide in Darfur have waited nearly twenty years, but have yet to see any perpetrators brought to justice before Sudanese courts or the ICC. This delay in seeing justice served for victims is deeply frustrating and disappointing.”— Mossaad Mohamed Ali, Executive Director, African Centre for Justice and Peace Studies (ACJPS) 

The pursuit of justice for Darfur has faced persistent obstacles that continue to undermine accountability for grave international crimes in the region and in other situations under ICC investigation. "With only one trial ongoing, no reparations delivered, and no visible movement on outstanding arrest warrants, there is a real sense that justice has stalled", highlighted Danya Chaikel, the International Federation for Human Rights (FIDH) Representative to the International Criminal Court.

Chief among these challenges is a lack of sustained cooperation. Despite the clear mandate set out in Resolution 1593, which urges all “[UN Member] States and concerned regional and other international organizations to cooperate fully” with the Court, Sudan has consistently failed to cooperate, notwithstanding it being “a legal obligation to transfer these suspects to the ICC to stand trial, unless it can demonstrate to the Judges of the ICC that it is willing and able to genuinely prosecute them for the same cases.” 

However, this lack of cooperation is not confined to Sudan alone. Key suspects remain at large, and repeated instances of non-compliance have severely delayed judicial proceedings. Visits by suspects to various UN and ICC member states have only underscored the persistent gaps in enforcement and international cooperation. For instance, even with two outstanding arrest warrants issued against him, Jordan, an ICC State Party, failed to arrest former President al-Bashir during his 2017 visit. Alarmingly, “the delay in executing ICC arrest warrants and the absence of reparative measures have led to skepticism and frustration among survivors”, Mohammed Hassan explains. In the words of former ICC Prosecutor Fatou Bensouda: “what is needed is a dramatic shift in [the UN Security] Council’s approach to arresting Darfur suspects.”  

Another significant hurdle has been the chronic underfunding and resource constraints faced by the ICC. The Court’s operations in Darfur have been challenged by a zero nominal growth budgetary policy implemented by ICC states parties over many years, resulting in staffing and funding shortages that hamper its prosecution, defense, and victim participation functions. This financial strain has, in part, undermined the effective execution of arrest warrants and prolonged the delays in bringing suspects to justice. 

Despite making the referral, the UN Security Council has consistently fallen short in providing the essential cooperation and financial support needed to ensure effective ICC investigations and prosecutions arising from its referrals. In particular, the lack of adequate funding has significantly undermined the Court's ability to carry out comprehensive investigations and mount robust prosecutions. Moreover, the Council has not taken decisive action on repeated findings of non-compliance by states, nor has it fully supported the ICC’s efforts to enforce arrest warrants. As stressed by the European Union, “when the Court’s jurisdiction is triggered by the Security Council, the duty to cooperate must extend to all UN Member States, regardless of whether or not they are a Party to the Rome Statute. This is key for the execution of arrest warrants. Moreover, the Security Council cannot remain indifferent in case of States’ non-cooperation on existing referrals."  

Combined, the ongoing lack of cooperation and the lack of resources continue to impede the full realisation of accountability for the victims of Darfur. This failure not only delays justice but also perpetuates cycles of violence and impunity.  

 

Pathways to accountability for Darfur  

"Despite the limited progress, Sudanese civil society and human rights defenders have been the backbone of justice efforts. They have taken enormous personal risks to document atrocities, support survivors, and preserve evidence, often in the face of harassment, violence, or exile. Their efforts have kept justice demands alive when institutions faltered. Their role is vital and it must be actively supported and protected", stressed FIDH's Danya Chaikel.

Darfuri activists and local human rights groups have tirelessly campaigned for accountability, demanding that perpetrators face trial and calling on “the international community, particularly the member states of the Rome Statute, [to] provide all necessary financial and human resources to support efforts to achieve justice in Darfur", as remarked by Mossaad Mohamed Ali. For civil society in Darfur, “the road ahead must focus on three interconnected priorities: truth, justice, and dignity for the victims of Darfur”, Mohammed Hassan emphasised.  

Building on this vision, a comprehensive strategy is essential: 

  • Rome Statute ratification: It is crucial for Sudan to ratify the Rome Statute of the International Criminal Court. By joining the ICC, Sudan would signal a strong commitment to international justice and take a significant step towards ending the near-total impunity that has long fuelled conflict in Darfur. Furthermore, ratification would pave the way for enhanced cooperation with the ICC, including the transfer of suspects long at large such as Omar al-Bashir to The Hague, an essential move towards accountability. This decisive action would not only reinforce international legal obligations but also deliver justice for the victims of Darfur. In parallel, Sudanese authorities must actively work to end the conflict, reform the judiciary, and eliminate immunity provisions that shield perpetrators, as underlined by Danya Chaikel.

  • Strengthened international cooperation: All states, particularly those party to the Rome Statute, must honour their legal obligations. This includes actively arresting and surrendering suspects, in addition to providing "support for documentation efforts, cooperation with requests from the ICC and political engagement to advance cooperation by other states with requests”, as stressed by AWA’s Olivia Bueno. The international community must work with local governments to ensure that political and diplomatic efforts support these legal processes.  

  • Enhanced accountability mechanisms: The UN Security Council, as the body that referred the Darfur situation to the ICC, must take active measures to enforce compliance among member states. This means not only demanding cooperation but also taking decisive action when states fail to meet their obligations, ensuring that non-cooperation is met with appropriate consequences. “States should also recognize that the ICC will not be able to deliver on the full set of accountability needs in Sudan and should therefore explore, in collaboration with the Sudanese, what other mechanisms, from reparations to truth commissions might be needed and support those efforts,” said Olivia Bueno. 

  • Victim/Survivor-centred justice: Justice must be defined by and with the communities affected. This includes ensuring that victims have a meaningful role in ICC proceedings, that witnesses are effectively protected, and that access to reparations and psychosocial support is expanded. The Darfur Network for Human Rights calls on the International Criminal Court to “scale up its outreach efforts in Darfur, especially among displaced populations” so that the voices of survivors are heard and their needs are fully addressed. In this line, the International Federation for Human Rights emphasises that "for the Office of the Prosecutor, this means prioritising investigations into ongoing atrocities, pursuing outstanding arrest warrants, and addressing the nexus between past crimes in Darfur and those committed across Sudan since April 2023. The Court must also dramatically improve outreach to victims and coordinate more effectively with Sudanese civil society." 

  • Support to local justice mechanisms: Darfuri NGO Voices call for enhanced support to local justice systems, emphasising that "the international community should strengthen domestic capacities for justice, including legal reforms, support to Sudanese lawyers and civil society organizations, and the creation of hybrid or special courts that can work in tandem with international processes.”  

Ultimately, the path forward demands a reinvigorated collaboration among the ICC, the UN Security Council, states, and civil society. Sudan, as well as all UN Member States, must respect and act upon their responsibilities. As we reflect on the 20th anniversary of the Darfur referral, we call upon the global community to honour the resilience of Darfuri victims and survivors by ending impunity and delivering the justice that they have long deserved. The time to act is now, so that the legacy of Darfur is not one of endless waiting, but of transformative progress and accountability. 

 

Photo credit: Amnesty International organises a Darfur rally. 25 September 2008 © Amnesty International