Human Rights Watch (Washington, DC)
29 June 2009
(Page 4 of 4)
Sudan and its allies have also argued that the court is unjustly targeting African leaders. However, while the ICC's current investigations are entirely in Africa, three out of the court's four investigations were referred voluntarily by the governments where the crimes were committed. The fourth situation, Darfur, was referred by the UN Security Council. The ICC has not taken up any African situation on its own initiative.
The landscape in which international justice is applied has admittedly been uneven. Some of the worst crimes perpetrated since 2002 have been committed in states that are not parties to the court and are thus outside the ICC's jurisdiction, including in Sri Lanka, Burma and Iraq. Moreover, unfortunately, at this point leaders of powerful states are less likely to be prosecuted by international courts when they are implicated in serious crimes. Nevertheless, justice should not be denied where it can be achieved relatively more easily because it is politically impossible to ensure justice for all. Rather, the reach of accountability should be extended to wherever serious crimes in violation of international law occur. This can be done in part by expanding participation in the ICC.
We are aware of the African Union's position in support of deferral of the case against President al-Bashir. In our view, deferral would risk denying redress to the victims of horrific abuses, and would set a very dangerous precedent with implications for both Sudan and far beyond. Bartering away accountability for the most serious crimes would be a betrayal to the victims, and would encourage those alleged to be responsible for major atrocities in future to combine threats and negotiation, as the Sudanese authorities are now attempting to do, to avoid the rule of law.
While a deferral is limited to a renewable 12-month period, once a deferral takes effect, it would be extremely difficult to subsequently terminate it. There likely would be enormous pressure to renew it in a year's time and then again at the expiration of every succeeding year. This could encourage the Sudanese authorities to threaten more violence to extend a Security Council deferral, making the council hostage to threats of violence against noncombatants on the ground.
The Sudanese government and the leaders of rebel movements should cooperate fully with the ICC in accordance with the provisions of the Rome Statute and the relevant Security Council Resolutions. This is vital to justice and peace for Darfur.
Recommendations:
All parties to the conflict in Darfur should commit to cooperating in full with the ICC, as well as respecting the right of citizens to give evidence to the ICC.
The GNU should reform legislation to remove broad immunities for members of the security forces, and to ensure that individuals can be prosecuted on the basis of command responsibility. The GNU should give priority to the development of an effective, independent and impartial national justice system;
The GNU should instigate a full investigation into all serious crimes committed in Darfur and ensure domestic prosecutions - in accordance with international human rights standards - of those responsible.
Human Rights Watch welcomes the efforts of the African Union High-Level Panel on Darfur to ensure broad consultation and input from both Darfuris themselves and others with expertise in Sudan. However, consultation alone will not be enough to secure an end to human rights abuses and impunity in Darfur. Any peace agreement needs to address protection of civilians and the realization of human rights in Darfur, as well as real accountability for past crimes. However these issues should not wait for the signature of a peace agreement; the Panel should press the GNU and all parties to the conflict to urgently ensure both security and justice for the people of Darfur today.
Yours sincerely,
Georgette Gagnon
Executive Director, Africa Division
Richard Dicker
Director, International Justice Program
[1] Human Rights Watch Briefing Paper, Sudan: Human Rights Accountability Must Be Part of North-South Peace Agreement, November 2004, http://www.hrw.org/en/news/2004/11/18/sudan-human-rights-accountability-must-be-part-north-south-peace-agreement (accessed June 28, 2009)
[2] Report of the Secretary-General on the deployment of the African Union-United Nations Hybrid Operation in Darfur, June 9, 2009, S/2009/297
[3] Ibid.
[4] See UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, Adopted and proclaimed by General Assembly Resolution 60/147, 16 December 2005, http://www2.ohchr.org/english/issues/remedy/principles.htm (accessed June 29, 2009)
[5] Office of the United Nations High Commissioner for Human Rights, "Rule-of-Law Tools for Post-Conflict States: Truth commissions," HR/PUB/06/1, 2006, http://www.ohchr.org/Documents/Publications/RuleoflawTruthCommissionsen.pdf (accessed June 29, 2009), pg. 2
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