The Rapid Support Forces (RSF) capture of Sudan’s el-Fasher, and the massacres that accompanied it, has prompted renewed accusations against the United Arab Emirates of its alleged complicity in the atrocities perpetrated by the notorious paramilitaries.

The UAE, as a state, has already been accused of complicity in genocide at the International Court of Justice due to its links to the RSF, but the court dismissed the case, even before it started, over lack of jurisdiction.

On the other hand, the International Criminal Court (ICC), the other Hague-based court which prosecutes individuals, rather than states, for international crimes, has an existing investigation into atrocities in Sudan, and has so far only prosecuted Sudanese nationals for their role in the Darfur conflict two decades ago.

Since it is widely documented that the UAE is the RSF’s main patron, can the ICC prosecute Emirati officials too? 

For ICC experts, the short answer is yes, but realistically, pursuing Emiratis before the court will likely face major obstacles.

“There are significant challenges to bringing such a case,” Melanie O’Brien, international criminal law scholar and president of the International Association of Genocide Scholars, told Middle East Eye.

“The jurisdiction the court has is only over crimes committed in Darfur. So what we would then need is to be able to connect someone who is in the UAE to crimes being committed in Darfur, and work out how we could exercise jurisdiction.”

El-Fasher is the capital of North Darfur state, so within the ICC’s mandate.

Sergey Vasiliev, an ICC expert and professor at the Open University of the Netherlands, said the legal basis is there, but practically there might be other hurdles.

“There is a jurisdictional basis for the ICC to investigate the reported ongoing massacres in el-Fasher, as well as to investigate and prosecute UAE officials for complicity in the RSF’s alleged crimes,” he told MEE.

“But whether or when the ICC office of the prosecutor would take the step of going after UAE officials and citizens is a different issue. It is a matter of prosecutorial strategy and discretion.”

Neither Sudan nor the UAE have ratified the ICC’s founding treaty, the Rome Statute. So how is the court exercising jurisdiction? And how can that extend to nationals of a state that is not a party to the conflict?