Access to justice for the victims of Darfur

Why South Africa should stand up when Sudan lets perpetrators off the hook

By Mossaad Mohamed Ali, Executive Director, African Centre for Justice and Peace Studies

The history of Sudan is of near-continuous armed conflict since the country gained independence from British colonization in 1956. Conflict broke out in Darfur region in 2003 when two armed movements took up arms against the government of Sudan claiming that the region had been subjected to political and economic marginalization. According to UN agencies more than 480,000 people were killed, and over 700 villages were completely or partially destroyed. Today, there are over 2.5 million displaced people in Darfur, forced from their homes by the ongoing conflict and humanitarian crisis in the region.

In May 2005, the UN Security Council referred the situation in Darfur to the International Criminal Court (ICC). Immediately after the ICC commenced its investigation, the government of Sudan established a special court to address the events in Darfur, in an attempt to demonstrate its primary jurisdiction over the crimes that took place in the region, in accordance with Article 17 of the Rome Statute of the ICC.

Nonetheless, the ICC Pre-Trial Chamber issued warrants of arrest against the President of Sudan, Minister of Defence, State Minister of Interior Affairs and others. They are allegedly criminally responsible for war crimes and crimes against humanity, with the President also facing three counts of genocide. None of the warrants of arrest against the defendants have been carried out due to the refusal of the government to cooperate with the ICC. Sudan has argued, among other things, that the Special Criminal Court on the Events in Darfur is able to prosecute those who bear the responsibility for the crimes in Darfur. However, the court has not demonstrated capacity or willingness to try the serious international crimes perpetrated in Darfur.

There has been little change in Sudan since the UN appointed International Commission of Inquiry on Darfur found in 2005 that the Sudanese justice system was unable and unwilling to address the situation in Darfur. The Commission’s 2005 report further found that measures taken by the government to address the crisis were grossly inadequate and ineffective, perpetuating what the UN Commission characterized as a climate of almost total impunity for human rights violations in Darfur.

It is true that the government has taken some measures to improve access to justice for the victims of Darfur through the establishment of judicial investigation mechanisms including the Special Court. Yet 12 years on there has been no progress in holding to account the perpetrators of the mass atrocities experienced by the people of Darfur. The Special Court has consistently failed to address the serious crimes committed in the region. A UN report published this year found that between 2012 and 2014 the Darfur Special Court ruled on just seven cases, while 33 were under trial and 25 were still being investigated, and according to the report, “none of the concluded cases had relevance to alleged violations [..] in Darfur.”

Moreover, Sudan has a legal obligation to hold the commanders accountable for their crimes against international humanitarian law, but there are serious concerns about the ability of the Special Court to prosecute high ranking officers because there is no basis of command responsibility in Sudanese law for holding commanders responsible for crimes committed by their subordinates.

A tight web of legal immunities for state officials further ensures those who bear the greatest responsibility will not be prosecuted. The National Security Act of 2010 governing Sudan’s feared National Intelligence and Security Service (NISS) provides that “no civil or criminal proceeding shall be instituted against a member [..] for any act connected with the official work of the member, save upon approval of the Director.” The provision also protects members of the government’s new Rapid Support Forces, which operate under the command of the NISS and have perpetrated mass crimes against civilians in Darfur, South Kordofan and Blue Nile since their deployment in 2013. Similar provisions can be found in the Police Forces Act of 2008 and the Armed Forces Act of 2007. The Armed Forces Act similarly protects Popular Defence Forces, a militia which includes some Janjaweed militias implicated in Darfur atrocities.

Against this catalogue of failings in the Sudanese legal system and the demonstrated lack of political will to hold those responsible for Darfur atrocities to account, conflict in Darfur continues to devastate the lives of civilians and cause mass forced displacement. Levels of violence are currently reported to be at their highest level since 2004 accompanied by an “especially high” number of killings. Earlier this year the UN Panel of Experts on Sudan characterized the Government strategy in Darfur as one of “collective punishment” and “induced or forced displacement” of communities from which the armed opposition groups are believed to come or operate. Government offensives on these communities over the past two years have featured aerial bombardment followed by ground attacks, the destruction and looting of villages, killings, mass rape and torture.

The victims of Darfur need the backing and solidarity of their fellow African citizens to see justice done. We call upon members of African civil society to support the victims of Darfur in their search for justice for atrocities committed since the beginning of the conflict. We condemn the call for African Governments to withdraw from the Rome Statute of the ICC. We strongly urge African Governments to prioritize access to justice for African victims of grave violations of human rights and international humanitarian law. African governments should honor their commitment to eradicate impunity for gross violations and ensure international justice mechanisms more effective and efficient for victims.

Mossaad Mohamed Ali is a Darfuri human rights lawyer and conflict resolution specialist. Together with the former UN Secretary General Kofi Anan, he was awarded the Olof Palme Human Rights and Peace Prize in 2006 for being an “outspoken and courageous critic of crimes against human rights”.

An edited version of this text was published as “Africa must stand up for justice in Darfur” by City Press, a Sunday newspaper in South Africa, on 6 December 2015, in response to actions undertaken by the South African government in breach of its obligations under the Rome Statute of the International Criminal Court to arrest and apprehend Sudan’s President Bashir.