Guilty Unless Proven Innocent: A Critique of Ali Kushayb Judgment

In its recent judgment, the International Criminal Court (ICC) convicted Ali Kushayb of multiple war crimes and crimes against humanity. A Janjaweed militia leader who operated in Darfur in 2003–2004, Ali Kushayb routinely implemented Sudanese government’s military directives. The ICC Trial Chamber found that he intentionally directed attacks against the civilian population, destroyed property, and participated in murder, rape, and persecution on political and ethnic grounds (para. 941).

The Janjaweed’s atrocities and ethnic cleansing campaigns against non-Arab communities carried out in coordination with the Sudanese government during the Darfur conflict are extensively documented. Therefore, the outcome of this ruling itself is not surprising. More troubling, however, is the Court’s method of reasoning. The judgment adopts a notably formulaic approach to evidentiary assessment, often relying on generalized patterns of presumption while giving limited attention to operational circumstances in which specific acts were allegedly committed.

This post argues that the increasingly formulaic mode of adjudication adopted by the ICC and other international bodies risks substituting schematic legal constructs for rigorous, substantive evaluation of battlefield conduct without having due regard to military necessity, command dynamics, and operational reality. It does so with a focus on Ali Kushayb’s charges regarding intentional attacks against the civilian population and the destruction of enemy property under Articles 8(2)(e)(i) and 8(2)(e)(xii) of the Rome Statute respectively.

Intentional Attacks Against the Civilian Population

The ICC Trial Chamber found that Ali Kushayb committed the war crime of intentionally directing an attack against the civilian population of Kodoom and Bindisi between August 15-16, 2003. In the context of a non-international armed conflict, the crime is defined in Article 8(2)(e)(i) of the Court’s statute and draws from the principle of distinction as articulated in Article 13(2) of Additional Protocol II to the Geneva Conventions and is generally considered reflective of customary international law (§§ 4.8.2, 5.5.2, 17.7). These rules do not prohibit attacks directed against enemy fighters or civilians taking direct part in hostilities and must also be distinguished from incidental harm inflicted on the civilian population.

The ICC Trial Chamber examined whether Ali Kushayb intentionally directed attacks against the civilian population in the  two villages that belonged to non-Arab tribes (para. 843). The Sudanese government believed that these tribes provided material support and personnel for the Sudan Liberation Army (SLA). As such, it executed military operations against the SLA and affiliated villages, in conjunction with the Janjaweed militia (paras. 286, 330–31). In regard to attacks against the two villages, however, the Trial Chamber found that there was “no evidence” showing the presence of rebels or armed groups in these areas and, further, there was “no indication in the evidence that these towns contained structures that would constitute military objectives” (para. 845). This reasoning effectively presumes the illegality of military action in the absence of affirmative evidence showing the presence of a military objective (see the Chamber’s assessment of an eyewitness’s testimony at para. 61), sidestepping key considerations inherent in lawful targeting operations, such as civilian direct participation in hostilities and civilian infrastructure that might have qualified as a legitimate military objective due to its location or the adversary’s intended use.

According to the factual record, SLA rebel forces operated in a non-traditional manner, lacking readily identifiable uniform, structure, or equipment that would openly identify themselves as an armed group (paras. 337–38; see also Defense Final Brief para. 352). Such characteristics are common among many non-State armed groups and pose well-known challenges for compliance with the law of armed conflict. The International Committee for the Red Cross has also acknowledged that the operational practices of non-State armed groups often generate “confusion and uncertainty as to the distinction between legitimate military targets” and protected persons (p. 12). These concerns are directly implicated in the Ali Kushayb case, particularly where the realities of asymmetric warfare complicate the identification of rebel forces and the determination of military objectives.

This formulaic approach stands in contrast to a more careful method of reasoning applied elsewhere during the formative period of international criminal justice. In Prosecutor v. Strugar, for example, the Yugoslav Tribunal acknowledged practical difficulties when a belligerent party engaged in an irregular form of warfighting (para. 178). For this reason, the tribunal was cautious about characterizing the victims of war as civilians not taking direct part of hostilities without having regard to a variety of factors, such as their proximity to combat zones and the circumstances of their death (para. 271).

The ICC’s recent simplification of evidentiary assessment is reminiscent of the approach employed by the much-criticized Goldstone Report on the 2009 Gaza conflict. In this report, the fact-finding mission rejected the Israeli government’s assessment of “Hamas terrorist infrastructure” in the absence of evidence that the targeted Legislative Council building and the prison made an effective contribution to military action (paras. 32, 388–389). As Laurie Blank points out, this formulaic approach, along with a similarly presumptive assessment based on the erroneous premise that every civilian death creates prima facie evidence of disproportionate attack, shifts the burden to an attacker to adduce evidence that their attacks complied with the law (pp. 358, 367, 376). The Israeli government once pleaded, “In the context of wide-scale military operations, it is often extremely difficult to provide evidence demonstrating exactly why certain structures were damaged … forensic evidence that a particular site was used for military purposes is rarely available after an attack. Such evidence is usually destroyed in the attack or, if time allows, removed by the terrorist organizations who exploited the site in the first place” (para. 215).

The Destruction of Enemy Property

The ICC held that Ali Kushayb destroyed civilian property without military necessity. Ali Kushayb directed Janjaweed operations against the villages of Kodoom and Bindisi in August 2003, where civilian houses and a mosque were destroyed (para. 854). The Rome Statute defines the crime of wanton destruction in the context of a non-international armed conflict in Article 2(e)(xii). The ICC’s Elements of Crime defines the requisite elements of the crime, requiring that the targeted property was protected under the law of armed conflict and that the “destruction or seizure was not required by military necessity.” The offense reflects the Hague Regulation Article 23(g) requirement that the seizure or destruction of an enemy’s property occurs only when “imperatively demanded by the necessities of war.”

The application of Article 23(g) is informed by a reasonable assessment of military necessity. First, the seizure or destruction of enemy property must bear a “reasonable connection” to the overcoming of enemy forces (§ 5.17.2), a requirement rooted in the Nuremberg Military Tribunal’s decision in the Hostage Case (1253–54). Second, despite the use of the term “imperative” the provision does not establish a heightened standard of military necessity for operations outside the conduct of attacks. Rather, the applicable standard permits the seizure or destruction of enemy property, including civilian property, where such actions are reasonably related to military operations. Without having regard to prevailing State practice, the ICC Trial Chamber adopted a restrictive interpretation of military necessity, treating the “imperative” qualifier as demanding the absence of any alternative before the destruction of civilian property may be justified (para. 1164).

The Ali Kushayb judgment relied primarily on post-strike evidence to establish the lack of military necessity for the Janjaweed’s destruction of property in Kodoom and Bindisi. The Trial Chamber found that there “was no indication in the evidence” that the destroyed property “served any military purpose or constituted a military objective” (para. 857). While stating that the government of Sudan regarded the inhabitants of the villages as “rebels,” the judgment nevertheless concluded without further elaboration that there was “no evidence of a rebel presence” at the relevant time (paras. 855, 857). As it did when finding the absence of a legitimate military objective, the judgment did little more than invoke an earlier factual assessment, itself based on limited eyewitness testimony concerning the presence of rebel fighters.

The Chamber did not explain why the available evidence was insufficient, nor did it assess whether Ali Kushayb’s denial of the villages’ protected status was reasonable under the law of armed conflict. The absence of rigorous evaluation is even more conspicuous as the Chamber acknowledged that government forces were engaged in an armed conflict with various rebel groups and that the rebel groups operated in a non-traditional manner (paras. 337–38). Instead, the Trial Chamber inferred from the immediate absence of SLA fighters that the property was protected under the law of armed conflict (para. 857). As with its analysis under Article 2(e)(i), the judgment’s methodology effectively assumes the lack of military necessity without articulating the reasoning supporting that conclusion.

The Trial Chamber’s reasoning also reflects an incorrect application of military necessity as a rule distinct from the law of targeting, which reinforces its formulaic approach. In the Ali Kushayb judgment, the Chamber turned to prior ICC case law to define military necessity due to the absence of guidance in the Elements of Crimes (para. 729). In doing so, it relied on the Trial Chamber judgments in Katanga (para. 894) and Ntaganda (para. 1164), which in turn referenced the 1863 Lieber Code as an authoritative source for defining military necessity. As such, the Trial Chamber would have recognized that any necessity of seizing or destroying enemy property could have been justified to the extent that such action was deemed indispensable for securing the ends of the war (art. 14).

Thus formulated, it is evident that military necessity operates differently in the context of the destruction of an enemy’s property under the opposing party’s control, compared to attacks directed against the adversary. Unlike the law of targeting, military necessity alone may justify the intentional destruction of civilian property for purposes such as constructing defensive positions or denying resources to the enemy. Failing to appreciate this distinction, the Trial Chamber assessed the legality of action by inquiring whether the property destroyed constituted a military objective (paras. 727–729, 857). While acknowledging that Ali Kushayb believed the villages belonged to an adversary (para. 855), the Chamber’s analysis of military necessity did not engage with alternative explanations for the property destruction.

Framed in this way, the inquiry has become largely predetermined according to the formulaic approach, framing military necessity narrowly in favor of humanitarian considerations, such as eliminating civilian harm, rather than as a context-dependent operational judgment. This approach suggests that the ICC’s narrow definition of military necessity, conflated with the concept of military objective for targeting, effectively creates a presumption against its existence. The resulting formulaic standard, denying military necessity in the absence of evidence showing military use, departs from the prevailing understanding of the law among states and enables international criminal courts and tribunals to treat the destruction of civilian property as presumptively lacking military necessity.

The result leaves unanswered whether Ali Kushayb acted reasonably. Although substantial evidence likely supports the final judgment that he indeed acted without military necessity, the legal analysis diverged from established standards regarding post-strike reviews or criminal prosecutions related to military operations.

Operational Considerations

The Ali Kushayb judgment’s diluted approach to the analysis of targeting distinction and military necessity for the destruction of enemy property is entirely flawed and disconnected from operational considerations shared among military commanders and legal advisors. The disconnect is attributable to two reasons: (1) the approach creates an untenable standard for military personnel; and (2) it fails to account for evidentiary challenges associated with post-strike analysis.

First, the ICC’s formulaic approach creates an untenable standard for commanders to abide by, having no regard to the commander’s judgment based on the information reasonably available at the time of decision, rather than information that subsequently comes to light. Known as the Rendulic Rule, it cautions against post-hoc review based on information revealed afterward and emphasizes whether the commander exercised an “honest judgment” during an operation. The rule exists because civilian harm, while tragic, does not automatically mean that the targeting was a deliberate attack against civilians or military necessity was lacking if the commander acted reasonably “on the information available” at the time of the strike. Instead, the rule allows for “honest error” in light of the war’s brutality and the fog of war (para. 1246).

In Ali Kushayb, the judgment’s departure from the Rendulic Rule results in an untenable standard for military operations. The Chamber’s formulaic approach, finding a violation in the absence of contrary evidence, effectively treats civilian casualties in armed conflict as conclusive evidence of a violation without considering the complex reality of the battlefields. It is an attempt to justify uninformed post-hoc review while bypassing a careful assessment of whether a commander’s decision was unreasonable based on the information available at the time.

Second, analyzing post-strike evidence falls short of meeting evidentiary challenges if the review fails to consider the commander’s assessment before the strike or operation. Non-State armed groups may operate without distinctive uniforms and even exploit their civilian appearance, making them appear like civilian casualties after a strike. Such activity can include readily discernible behavior, such as participating in ground combat, or less evident behavior, such as that of Anwar al-Aulaqi who, while not serving as a frontline fighter in ground combat, operated as a facilitator and recruiter for al-Qaeda (p. 38). His physical separation from the battlefield and post-strike evidence may have lacked immediate signs of his involvement in hostilities. The Ali Kushayb approach fails to appreciate that the absence of overt military indicators after a strike is insufficient to deny the presence of a military objective during armed conflict.

Likewise, identifying evidence of military necessity after the destruction or seizure of enemy property often requires granular insight into the contingent and time-sensitive judgments made by commanders on the battlefield. Unlike the destruction of an established military base or piece of equipment, post-strike evidence may offer no readily apparent justification for the destruction or seizure of civilian-character property under the doctrine of military necessity. A civilian vehicle destroyed to clear a field of fire, or the removal of civilian buildings to create a defensive zone around a fire base, may leave little observable trace of their operational rationale once the action has been completed. By applying the ICC’s formulaic approach, post-hoc review has the risk of disregarding the operational reasons behind the commander’s decision and instead infers the absence of military necessity from the lack of clear post-strike evidence about the person or object exhibiting an overtly military character in the aftermath of the military operation.

Conclusion

The ICC’s formulaic approach to the principles of distinction and military necessity departs from established rules and review standards under the law of armed conflict. Through this simplification, the Court effectively imposes a more stringent standard of care for the identification of military objectives and the assessment of military necessity than international law requires or military legal advisers generally consider reasonable in practice. The results risks generating confusion and arbitrary constraints that predispose findings of civilian harm toward qualification as war crimes. This approach may ultimately weaken the law of armed conflict if military personnel perceive compliance as a no-win proposition, in which post-hoc reviews apply standards that would encourage abuse of civilian protection and discourage lawful operational judgment.

These problems are likely to be even more pronounced in the context of Large-Scale Combat Operations (LSCO), where decisions are made on fast-paced and highly contested battlefields. In counter-insurgency operations, States often enjoyed the time and operational space to develop targets, employ precision weaponry, and subject decisions to multiple layers of review. By contrast, LSCO will compress decision-making timelines, deny commanders sufficient time to review information, and require the application of the law of armed conflict without the overlay of more restrictive policy constraints. Future conflicts will exacerbate evidentiary challenges, as modern military forces are increasingly likely to operate under the conditions of “distributed command and control,” without the consistent physical presence of legal advisers at every echelon of command. In this context, the ICC’s formulaic approach risks facilitating unwarranted allegations of war crimes in future conflicts by subjecting commanders’ time-constrained battlefield judgments to post-hoc standards ill-suited to the operational realities of LSCO.

Acknowledgement: The authors are grateful to CDT Gene Kang for research assistance, particularly for surveying International Criminal Court cases and the reports of UN Human Rights Council-mandated Special Rapporteurs and Commissions of Inquiry over the past twenty years. All errors remain solely our own.

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MAJ Evin Stovall is an Assistant Professor in the Department of Law and Philosophy at the United States Military Academy, West Point, New York. He is also the Executive Officer of the Lieber Institute for Law & Warfare.

Hitoshi Nasu is a Professor of Law in the Department of Law and Philosophy at the United States Military Academy.

The views expressed are those of the authors, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense. 

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Photo credit: International Criminal Court