It was the height of summer in Europe – holiday time for many – whilst in Darfur, continued hostilities. An ill-tempered missive from the judges issued on 23 July in which they “deplored” the position taken by the prosecutor, but agreed to terminate the proceedings, provided a curious coda to one of the International Criminal Court (ICC)’s failures in Sudan.
Over the 20 years since Darfur was referred to the Hague court by the United Nations Security Council, much of the diplomatic discourse has focused on an alleged genocide against the African communities committed by Arab militias aligned with the then Sudanese authorities. The ICC’s involvement marked it as part of the peace and justice toolbox for conflict resolution and dealing with rogue regimes. But when the court’s first prosecutor Luis Moreno Ocampo dared to challenge the sitting head of state, President Omar al Bashir, with an accusation of genocide, it sparked a crisis in how the court was seen across Africa. The diplomatic fallout for the court was the main lens through which Darfur was assessed.
The prosecutor’s other cases attracted little attention. But it had sought to provide some balance to its Darfur engagement. A notorious rebel attack on 29 September 2007 against the African Union Mission in Sudan base at Haskanita in North Darfur, in which 12 peacekeepers were killed and eight were severely wounded, provided a perfect vehicle. Those charged – Saleh Mohammed Jerbo Jamus (Jerbo) and Abdallah Banda Abakaer Nourain (Banda) – were commanders of rebel factions alleged to have been involved. They were charged by the ICC with war crimes for their alleged roles in that attack.
Rebels who showed respect to the ICC
It was a mark of the positive respect with which the ICC was held as one of the ‘saviours’ of the people of Darfur by the rebels that both Jerbo and Banda came to the Hague voluntarily in 2010 in response to a summons to appear. Jerbo then died in 2013. Banda’s summons was converted to an arrest warrant in 2014.
According to Banda’s current lawyer Charles Achaleke Taku, Banda has been consistently willing to come to The Hague “to clear his name” but required certain guarantees including “protection for his family”. He is “not a fugitive from justice”, says Taku. “If he came, he did not want to be kept in the detention centre for months and years.” Banda, now working as a general in the field, fighting for his Darfur communities against new rebel forces, has the support of his bosses in Khartoum, who were prepared to guarantee his appearance in court, according to his lawyer.
Taku is also confident that he had a defence case ready, prepared to bring witnesses to show that Banda himself was 10 km away from Haskanita, and had no knowledge of the attack, and that he could show the attack itself was against a legitimate military target, which could negate the war crimes charges.
“No reasonable prospect of conviction”
It’s nearly 20 years since the attack happened. The ICC prosecutors has been telling judges – confidentially to start with – for several years that it no longer had the evidence needed to convict Banda. At a hearing on 21 July 2026, Cara Pronk-Jordan, senior legal coordinator for the prosecution told judges that “the evidence no longer presents a reasonable prospect of conviction at trial.” She says this conclusion was drawn following “a continuing and rigorous reassessment of the evidentiary record, exhausting all reasonable investigative avenues”.
When he was elected prosecutor in 2021, Karim Khan promised that he would check all evidence in all cases to assess whether the cases were viable. There’s no record that Khan formally recused himself from the case, despite representing Jerbo and Banda in the early stages of the case. Pubudu Sachithanandan, the prosecution lead for Darfur told judges that “the office carried out an internal evidence review in February 2023”, and “in March 2023 concluded that there was no reasonable prospect of convicting Mr Banda on the available evidence.” Then the deputy prosecutor Nazhat Shameem Khan commissioned an external advisor to review the decision, who came to the same conclusion. In October that year judges were informed.
“A very, very wise and professional” position (defence)
Sachithanandan told the court that there were various problems with the evidence including whether in fact it could be proved that Banda “was aware of the factual circumstances establishing the unlawful nature of the relevant attack.” Another issue concerned unreliable witnesses. One “had engaged in serious dishonest conduct” and their testimony “could not be regarded as credible or reliable”. Another had credibility issues and stopped cooperating. A new witness’ evidence also “substantially weakened the prosecution’s previous inference regarding the purpose of the attack and introduced a credible alternative explanation”. That alternative explanation could have blown up the prosecution’s case with the information that maybe the rebels were attacking a legitimate military target, not – as originally portrayed – solely, African Union peacekeepers.
Pronk-Jordan told judges that “our duty is not simply to prosecute; it is to ensure that prosecutions are pursued only where they can be properly and fairly sustained.”
Taku described the prosecutor’s position as “very, very wise, and very professional”.
Closing a chapter for those waiting for justice
And for the 103 recognised victims in the case? Helene Cissé, legal representative of victims told the court, “the victims cannot accept this decision, cannot understand this decision,”
Her co-counsel, Jens Dieckmann, said that “it is not merely terminating a case; by doing so, it is closing a chapter in the lives of men and women who have waited for almost 19 years for justice. For them, for the participating victims in the Banda case, this is not a procedural application; this would be, in fact, the end of hope.” He said that their clients believed in the promise of ICC “they believed over all the years that international justice still recognised them as human beings whose suffering mattered. Today, many of them will inevitably ask us: did we really have that right?”
Sachithanandan had reiterated for judges that in November 2025, the prosecution renewed its request to the Chamber to reconsider its first decision not to authorise the withdrawal of charges. “The prosecution at that time was of the view that, firstly, compelling Mr Banda to appear for trial when the prosecution had already concluded it could not prove the charges would amount to an injustice. The prosecution was also of the view that it would also create unrealistic expectations amongst the victim community -- who had been waiting for over a decade for the trial to commence.”
“Clearly, the pre-trial chamber was unhappy with the prosecutor’s determination in the Banda case”, says Marco Longobardo, reader in international law at the University of Westminster. “On the one hand, the decision can be criticised because the prosecution refused to follow the indications of the chamber about the possibility of using available evidence to continue the proceedings. Such a determination on evidence is unfortunate due to the late stage of the proceedings, and it frustrates the expectations of victims. On the other hand, it might be better to terminate a case in which the prosecution drags its feet rather than waste resources on it. This is one of the cases in which I think the Rome Statute and its collateral rules should be clearer in delineating the boundaries of prosecutorial discretion, to avoid institutional conflicts, opaque decisions, waste of resources, and frustrated victims’ expectations.”
“The message could become painfully simple,” Dieckmann told judges, “and it is: if you can evade arrest long enough, justice eventually disappears. Flight may pay. Time defeats accountability”.
