ICC targets Sudan war enablers amid Kenyan links to militia gold

The eyes of the international community are turning towards the enablers of Sudan civil war, days after the country’s militias formed a parallel government in Nairobi and startling claims on Kenyan leadership involvement in illicit gold business emerged.

On the week Sudan’s Rapid Support Forces (RSF) was announcing “government of peace and unity” with tacit approval of Kenyan authorities, international justice stakeholders, including International Criminal Court officials, were in Nairobi discussing strategies of nabbing the enablers of the war.

An international justice symposium on “advancing accountability for international crimes in Africa” heard that shifting focus on the enablers would slow down the hurt on victims, with ICC Head of Team at the Office of Prosecutor, Pubudu Sachithanandan, welcoming help to nail them.

The forum also received tips from experts who have facilitated the sanctioning of enablers of conflicts

“Any country interested in accountability, any domestic judicial authority interested in working on Sudan, we are more than willing to build a relationship in that regard, Pubudu told the forum organized by the Wayamo Foundation.

Adejoke Babington-Ashaye, an international law expert with a focus on accountability for sexual and gender-based violence had pitched strongly for disruption of supply chains for warring parties, including the lucrative gold business which has been cited as a big factor in the war.

“If we think of Sudan, are there entities benefitting from the sale of gold, from mines controlled by RSF? Do we have the evidence? Can we work with other partners to identify them?

“Even if it’s not immediately possible to prosecute the direct perpetrators, maybe by disrupting the operations through targeting these other entities they work with, we can find a way to minimize the crimes that they are committing,” she said.

Adejoke’s plea is not without precedence. Already, General Mohamed Hamdan Dagalo aka Hemedti the head of RSF, is facing sanctions by the US government after he was accused of widespread abuses against civilians, including acts of genocide.

He was sanctioned alongside his brothers Algoney Hamdan Dagalo and Musa Abdelrahim Dagalo, the latter who represented him in the Nairobi event. The January 7 sanctions also affected RSF weapon suppliers, and companies associated with the three brothers, for “destabilizing Sudan and undermining the goal of a democratic transition.”

“For nearly two years, Hemedti’s RSF has engaged in a brutal armed conflict with the Sudanese Armed Forces for control of Sudan, killing tens of thousands, displacing 12 million Sudanese, and triggering widespread starvation,” US said when announcing the sanctions.

Among the seven companies sanctioned alongside the RSF leader is a United Arab Emirates (UAE)-based company which the US government accused of providing money and weapons to the militia group. 

Under Hemedti’s leadership, US said, the RSF has engaged in serious human rights abuses, including widespread sexual violence and executing defenseless civilians and unarmed fighters.

“As the overall commander of the RSF, Hemedti bears command responsibility for the abhorrent and illegal actions of his forces,” US said.

With acts of brazen impunity displayed through the formation of a parallel government in a foreign country, the US as well as other countries taking an active role in resolving the Sudan conflict, is under pressure to spread the sanctions to their enablers.

For a whole week, discussions on alleged gold business dealings between government officials and RSF leaderships have dominated the airwaves. It was triggered by claims on Tuesday by former Deputy President Rigathi Gachagua that top government officials are involved in gold trade, and that Kenyan public offices were being used to facilitate the trade.

“We cannot allow rebels who have been slapped with international sanctions because of genocide, to meet in government facilities in Nairobi,” he told KTN.

At the Wayamo forum, practitioners of international law rooted for “backdoor” route to stopping the Sudan chaos, including tracing financial records of entities or companies dealing with sanctioned militia leaders.

At grave risk of not just sanctions but also being indicted, are companies which have handled the Sudan gold or facilitated its entry into the international market, and their leadership. This course of action is not without precedent in international law.

In 2022, the US Justice Department filed criminal charges against a French cement manufacturing company over its involvement in the Syrian war. The company pleaded guilty and was fined Sh108 billion.

Similar suits ensued in France against the company and its directors, with NGO’s accusing it of complicity in crimes against humanity. Complainants drew parallels to the company’s continued, smooth operations in Syria and the raging war in the country involving hordes of militia groups.

Last October, French authorities committed the company to terrorism financing charges, as investigations into complicity in crimes against humanity continued. Crimes against humanity, alongside other international crimes, are prosecutable in Kenya under the International Crimes Act of 2008.

It is under the Act that 12 high ranking police officers have been accused of perpetrating international crimes relating to the 2017 post-election violence among them the now infamous killing of Baby Pendo.

At the justice forum, Supreme Court Judge Isaac Lenaola encouraged civil society organizations and other justice actors to enrich the jurisprudence of international law in Kenya by lodging cases such as Baby Pendo’s.

Justice Lenaola urged litigants in the matter to do their homework well so that the case adds value to the greater cause of justice: “Remember, it is a test-case that must set the law for Kenya. And we can lose the opportunity if the prosecution and the defence do not step up to answer these issues.”

He bemoaned the characterization of international justice mechanisms as foreign, wondering whether investigative agencies, judiciary and Kenyan society generally, was prepared to “look at these cases from the necessity and prism of the rule of law.”

Tina Alai works for the United Nations Commission on Human Rights in South Sudan as a Transitional Justice Advisor. She too, is rooting for increased focus enablers of intra and regional conflicts because “proper accountability takes time.”

She wants actors to document crimes, journalists to keep the story alive, lawyers to litigate creatively and strategically, strengthening of institutional capacities to prosecute international crimes, and strengthening of victim’s networks.

“We may succeed or not succeed on the Baby Pendo case, but the strong message is that we never want to hear, ever again that a police officer can hide behind command, structure, and operation to justify the killings and rape as a political instrument against the people,” she said.

At the forum, Centre for Advanced Defence Studies, a UK based NGO, demonstrated how it used open-source information to expose “a repressive cartel of state-affiliated actors” using its control to obstruct Sudan’s peace.

The group named as “deep state” controls banks, import-export companies and enjoys monopoly against civilian rivals.

“They have used banks to prolong the war, by continuing the flow of money to and from the country, to UK, Germany, US and others," Christopher Kiyaseh, an analyst at CADS, said.

“We were able to identify the enablers, and pile pressure on the main players in the conflict.

From our experience, these are network operations, and they have key notes that can be targeted, because the illicit ones must, at some point, cross the licit ones, and leave a digital trail. These pathways can be important to support strategic litigation,” he explained.

Mikel Delagrange, a former ICC official, told the conference that Sanctions add credibility to advocacy campaigns for justice for international crimes. He cited the RSF activities in Kenya as particularly inviting:

“When people are proposing to set up shadow governments in third party states, populations have a right to know who these people are, and if they have been sanctioned,” he said.

He said wars are costly affairs and money is essential to sustain them.

“We know of the illegal party that is being thrown in town for some of those people, we need to pick one or two of those people, and build a case around them,” Donald Deya of Pan Africa Lawyers forum said.

Stella Nderitu, another international justice practitioner, complained that lack of an impactful,  “decisive action” to change the trajectory of the Sudan war has been missing.

“In having a long term view for Sudan, it’s time we started advocating for AU to think of a court that will prosecute the crimes in Sudan, push them further to start articulating, and thinking of how to set up this court,” she said.

Prudu also pleaded for “greater, and effective cooperation” by the states when requests are passed to them. He said while third parties can collect evidence for international justice mechanisms, such evidence needs to be targeted to be able to link alleged perpetrators to the crimes.

Sarah Kasande, Head of Office, International Centre for Transitional Justice, Uganda, wants states to enhance capacity for international law practice through their law curriculums. She also said conversations on amnesty must not close the chapter on accountability.

According to Adejoke, players in the justice sector must not grow weary of pursuing international criminals. She says lack of political goodwill should not worry them too, as it cannot last forever.

“In Nigeria we like to say no condition is permanent. Omar Bashir once believed his leadership was secure. The same will be true for the commanders in Sudan. But we must continue to plant the seeds today that will germinate justice tomorrow. We must continue to collect the evidence.”

Chair of Independent International Fact-Finding Mission for Sudan Mohamed Chande called for collective action that focuses on holding perpetrators of crimes to account, and victims support.