Human Rights Watch (Washington, DC)
29 June 2009
(Page 3 of 4)
The International Criminal Court represents the only real opportunity for justice for the most serious crimes in Darfur, particularly those for which senior government officials are responsible. All parties in Darfur should cooperate in full with the Court. At the same time, the GNU should make significant efforts to improve national accountability.
National accountability lacking
The GNU has done little to genuinely improve domestic accountability. On June 7, 2005, one day after the ICC prosecutor announced he was opening investigations into the events in Darfur, the Sudanese authorities established the Special Criminal Court on the Events in Darfur (SCCED). But, as documented in the Human Rights Watch report, "Lack of Conviction - The Special Criminal Court on the Events in Darfur," as of June 2006, authorities brought only 13 cases before these courts, all involving low-ranking individuals accused of minor offenses such as theft. In the sole case relating to a large-scale attack on civilians, the court merely convicted the accused of theft that occurred after the attack.
In August 2008, Sudan's justice minister, Abdelbasit Sabdarat, appointed a special prosecutor and legal advisers in each of Darfur's three states to investigate crimes that occurred from 2003 onward. In October 2008, Sudanese justice officials announced that the special prosecutor had completed an investigation into allegations against Ali Kosheib, a militia commander who is wanted by the ICC for war crimes and crimes against humanity and in February 2009 the Special Prosecutor for Darfur stated that three men including Kosheib had been charged in a case related to events in Deleig, Mukjar, Bandas and Garsila. However, there has since been no indication of any progress in this or any other case, and the special prosecutor has complained publicly that he has had difficulty accessing and interviewing victims.
An additional hurdle is that, despite recent revisions, Sudan's criminal code still does not allow for liability on the basis of command responsibility and Sudanese law provides immunities and other provisions that could preclude meaningful prosecution of war crimes and crimes against humanity. The Sudanese military in particular benefits from broad de facto and de jure immunities for criminal acts.
The GNU should urgently address these issues, including through thorough institutional and legal reform, and task the appropriate authorities to carry out a full investigation into all serious crimes committed in Darfur and prosecute - in accordance with international human rights standards - those responsible.
Given the absence of meaningful justice efforts in Sudan to date, significant questions over the political will necessary to pursue domestic prosecutions remain. As a result, international expertise and assistance would likely be a crucial component to advancing domestic efforts. This could take many forms, including through appointment of some international judges, prosecutors and defense counsel to work alongside Sudanese jurists. At the same time, as discussed below, the ICC remains the only and best forum for prosecuting those alleged to be responsible for the most serious crimes of concern to the international community as a whole, including the cases it has already initiated.
International Accountability
Even with greater efforts at the national level, the ICC is likely to remain the only forum in which those responsible for the gravest crimes in Darfur, particularly senior figures in the Sudanese government, may be brought to justice. The pervasive impunity domestically underscores that national courts are not willing or able - nor are they likely to become willing and able in the foreseeable future - to provide meaningful redress to victims of the worst crimes.
In addition, an effort to establish some form of hybrid international-national court to address the same cases being pursued by the ICC would be inconsistent with ensuring justice for victims. Establishing new mechanisms would likely result in major unjustifiable delay and thus be inconsistent with fighting impunity as provided for in article 4 of the African Union's constitutive act without any obvious benefit. The ICC has already conducted crucial investigative work and made substantial advances in particular cases to see justice is done. Of course, as the Darfur situation is already before the ICC, whether any national or hybrid effort would be sufficient to preempt the ICC's jurisdiction would be a matter for the ICC judges to decide. It is useful to recall that the International Commission of Inquiry on Darfur established by the UN Security Council in 2005 concluded on the basis of its investigation that the ICC was the only appropriate forum to try the most serious crimes committed in Darfur.
Darfuri Support for the ICC Prosecution
Many Darfuris have told Human Rights Watch that they wish to see the ICC investigation and prosecutions continue.
On March 4, 2009 Human Rights Watch interviewed a number of Darfuris about their views on the warrant the ICC had issued that day for President al-Bashir. The leader of a Sudanese non-governmental organization told us that the warrant "sends a decisive signal to all individuals who participated in the rapes, mass killing, pillaging, and burning of villages in Darfur that they are no longer immune from prosecution. This decision also put to the test the world resolve to protect civilians in need and to combat impunity. It is thus morally and legally binding upon all states member of the United Nations organization to cooperate with the ICC in implementing its mandate and to prosecute the perpetrators of the crimes committed in Darfur."
Another, a Sudanese human rights defender, said: "This decision is historically such a big decision... It paves the way for justice, peace, healing, redress, reconciliation, and all the hopes and intentions of this nation."
A Darfuri refugee who had been forced to flee the fighting in 2004 told us: "The warrant, it is so important. That man is a criminal. His people came in the night and they killed people for nothing. They dropped bombs from the sky. They did terrible things. Every month he gave guns and money and horses to Janjaweed to go and kill people - and if they did kill people he gave them more money. Even Arab tribes, even Janjaweed, they lost their lives for nothing too. I am so happy there is a warrant - every day I pray that this man is caught and taken to The Hague. Many people from Darfur will want to celebrate but it is difficult - there are other people there who are working with the government or who are brainwashed and they don't understand what is going on - they might be angry. But if you kill hundreds of thousands of people for nothing then you should get justice."
These accounts reinforce the view that justice for the worse crimes is essential to both peace and reconciliation in Darfur. African civil society groups echoed strong support for the ICC to provide justice when national courts are unable or unwilling to prosecute in statements signed in May 2009 at conferences in Banjul and Cape Town.
Failure of the GNU to Cooperate with the ICC
Despite the crucial work of the ICC in fighting impunity in Darfur, the Sudanese government has persistently refused to cooperate with the Court. The three warrants, for President Omar al-Bashir, for then-State Minister of Humanitarian Affairs Ahmed Haroun and for Janjaweed militia leader, Ali Kosheib, are outstanding. Haroun has recently been awarded a new government post as governor of Southern Kordofan.
In response to the case against al-Bashir, the government has adopted a two-pronged response. One has been to seek to put blame on the ICC and distract attention by closing down international and national organizations that were providing over 40 percent of the humanitarian aid in North Sudan.
The other response has been to seek to shore up support for a Security Council deferral of the case in accordance with article 16 of the Rome Statute of the ICC.
The GNU has argued that a deferral is necessary to obtain a peace agreement among the warring parties in Darfur. However, there is no plausible connection between the continuing failure of peace talks and the request for an arrest warrant. The deadlock is rooted in the lack of political will on all sides to achieve an agreement, and those factors have nothing to do with the International Criminal Court's case.
Be the first to Write a Comment!
AllAfrica aggregates and indexes content from over 125 African news organizations, plus more than 200 other sources, who are responsible for their own reporting and views. Articles and commentaries that identify allAfrica.com as the publisher are produced or commissioned by AllAfrica.
