On 27 February 2007, under Article 58 of the Rome Statute of the International Criminal Court (ICC) the Prosecutor requested Pre-Trial Chamber I of the Court to issue summonses naming Ahmad Muhammad Harun and Ali Kushayb (also known as Ali Muhammad Ali Abd-Al-Rahman) and directing them to appear in Court for initial proceedings under Article 60 of the Statute. Harun is the former Minister of State for the Interior of the Government of Sudan. In early 2003 he was appointed head of the “Darfur Security desk”. It is alleged that as head of the “Darfur Security desk”, he managed and personally participated in the recruitment of Militia/Janjaweed to supplement the Sudanese Armed Forces. Kushayb was an important leader of the Militia/Janjaweed in the Wadi Salih locality of West Darfur. It is alleged that he commanded thousands of Militia/Janjaweed and that he personally led the attacks upon Kodoom, Bindisi, Mukjar and Arawala.

According to the Prosecutor’s evidence both men joined each other, and others, in pursuing the shared and illegal objective of persecuting and attacking civilian populations in Darfur. The Prosecution concluded that there are reasonable grounds to believe that Harun and Kushayb bear criminal responsibility in relation to 51 counts of alleged crimes against humanity and war crimes. The crimes alleged in the Application were perpetrated in the context of a non-international armed conflict in the Darfur region between the government of the Sudan and rebel armed forces, including the Sudanese Liberation Movement/Army (SLM/A) and the Justice and Equality Movement (JEM), from about August 2002.

The ICC is a court of last resort and may initiate cases only where there has not been any national investigation or prosecution of the relevant case or when there has been such an investigation or prosecution, but the state is unwilling or unable to genuinely carry out the investigation or prosecution. There was an investigation carried out by the relevant Sudanese authorities, but they did not cover the same persons and the same conduct as in the case of the ICC Prosecutor. The government of Sudan also informed the Prosecutor that Kushayb is under criminal investigation and was arrested on 28 November 2006. The Prosecutor, however, concluded that the Sudanese criminal investigation did not cover the same incidents and that they encompass a significantly narrower range of conduct. Sudan is not a Party to the Rome Statute. On 31 March2005, the United Nations Security Council adopted Resolution 1593 referring the situation in Darfur to the ICC Prosecutor.

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