Held in custody by the Sudanese government since November 2007; accused of war crimes and crimes against humanity; arrest warrant issued by the ICC on 2 May 2007; Interpol Red Notice issued on 19 September 2007; released from custody due to lack of evidence on 1 October 2007
On 31 March 2005, the United Nations Security Council adopted Resolution 1593, whereby it deferred the Darfur situation to the Chief Prosecutor of the International Criminal Court (ICC) based on Article 13 let.b of the Rome Statute of the ICC.
After a thorough preliminary investigation of the available information, the Court decided to open up official investigations on 1st June 2005 (Art. 15 and Art. 53 of the Rome Statute).
On 27 February 2007, after an initial 20 month investigative phase into the crimes allegedly committed since 1st July 2002, the Prosecutor forwarded his conclusions and documents to the First Trial Chamber of the ICC. In a 94-page long document, the prosecutor requested that charges be brought against Ali Kushayb and Ahmad Muhammad Harun.
Under Art.17 of the Rome Statute, a case is not admissible before the ICC when it is the subject of an investigation or prosecution on the part of a State having the judicial competence to take action, unless such State is truly unwilling or unable to carry out such investigation or prosecution.
As proceedings were said to be underway in Sudan, the Prosecution needed to verify whether they were in fact being conducted in a correct manner.
This is of particular importance in the case of Ali Kushayb. On 19 January 2005, a Judicial Investigations Committee (JIC) was set up by the Sudanese government, with the mandate of overseeing the cases mentioned in the report of the National Commission of Inquiry (NCOI) and the UN International Commission of Inquiry, in order to determine for which cases complaints and arrest warrants should be filed.
Given that an investigation appeared be underway against Ali Kushayb, the Prosecutor of the ICC tried to obtain more detailed information on the inquiries. Kushayb had allegedly been imprisoned since 28 November 2006.
He had appeared once before the JIC concerning alleged involvement in five cases, namely Shattaya and Deleig (West of Darfur), as well as Nakuseh, Tanako, Arawala. Kushayb is thought to be responsible for participating in the attacks against these localities and in particular for his participation in the following acts:
-in March 2003 widespread pillaging and ransacking of 27 villages surrounding Shattaya and Kas, during which 371 persons, for the most part civilians, were killed;
-in November 2003 the attacks against Nankuseh (west Darfur);
-in December 2003 the attacks against Tanako (west Darfur) resulting in the deaths of around 130 people;
- an attack against the village of Arawala (west Darfur), during which murders and the forced displacement of the civilian population took place.
However, according to the JIC, no charges had been brought against him for the above cases. According to the Prosecutor, the JIC was to begin the second phase of its investigations in March 2007.
On 19 September 2007, Interpol issued a Red Notice against Kushayb and Harun.
On 1st October 2007, the Sudanese government announced the release of Kushayb who had allegedly been detained by the government since November 2006 on the grounds of alleged violations of Sudanese laws. In its announcement, the government declared that the ICC did not have jurisdiction over Sudan since it was not a State Party to the ICC, adding that the release of Ali Kushayb was a clear indication that there was no tangible evidence against him.