Obvious Attempt to Derail ICC Cases on Darfur

Sudan’s recent legal actions against a militia commander and others accused of war crimes in Darfur hold little promise of bringing justice to victims of serious abuses, claims Human Rights Watch which accused the Sudanese government of trying to undermine investigations by the International Criminal Court (ICC).

“The Sudanese government is putting up more window dressing as part of its ongoing effort to block the investigations of the International Criminal Court,” said Georgette Gagnon. “No one should be fooled by these moves.”

Since the ICC prosecutor requested an arrest warrant for President Omar al-Bashir on July 14, 2008 for war crimes, crimes against humanity, and genocide, Sudan has made the appearance of holding alleged perpetrators accountable for serious crimes in Darfur.

The ICC statute allows the court to proceed in a case only if relevant national courts are “unwilling or unable genuinely to carry out the investigation or prosecution.” ICC judges have interpreted this to mean that national courts must charge the same person with the same crimes as those brought before the ICC.

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, Sudanese justice officials announced that the new 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.

Sudanese authorities have not publicly specified which charges they are investigating, but a justice official said that the investigation relates to “killing and looting” by Kosheib and two others. Kosheib was previously in custody in Sudan but was released for lack of evidence.

“Even if the government were serious about prosecuting Kosheib, limitations in Sudanese law mean that he could not be tried for the full range of crimes, including crimes against humanity, that have been committed in Darfur,” said Gagnon.

Sudanese criminal laws do not include international crimes such as crimes against humanity and genocide. The country’s criminal procedure code does not recognize the principle of command responsibility, which is necessary for prosecuting military officers for their failure to take action against subordinates who commit unlawful acts. Broad legislative immunity provisions in Sudanese law block efforts to prosecute members of the armed forces, including militia members, national security forces and the police. Significant obstacles also prevent prosecutions in Sudan for rape and other sexual violence crimes that continue to be widespread in Darfur. Cumbersome reporting procedures, social stigma and the threat of facing adultery charges dissuade female victims of sexual violence from coming forward.

Sudan is apparently considering revisions to the criminal code to include international criminal law provisions, but these are not believed to include provisions that would address command responsibility, remove existing immunities, or address obstacles to prosecuting rape and sexual violence.

“The Sudanese government has repeatedly said its courts can prosecute those responsible for crimes in Darfur, but so far we have only seen ordinary criminal cases such as livestock theft,” said Gagnon. “We’ve yet to see anyone held responsible for conflict-related crimes.”

In 2005, after the ICC prosecutor announced the opening of his investigations, Sudan established Special Criminal Courts for Events in Darfur for the same purpose. But, as documented in the Human Rights Watch report, “Lack of Conviction”, 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 convicted the accused of theft that occurred after the attack.