Africa must stand up for justice in Darfur
The history of Sudan is of near-continuous armed conflict since the country gained independence from British colonisation in 1956. Conflict broke out in the Darfur region in 2003 when two movements took up arms against the government of Sudan, claiming that the region had been subjected to political and economic marginalisation. According to UN agencies, more than 480 000 people were killed, and over 700 villages were completely or partially destroyed.
Today, there are more than 2.5 million displaced people in Darfur.
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.
Nevertheless, the ICC pretrial chamber issued warrants of arrest against the president of Sudan, the minister of defence, the 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. Because of the refusal of the government to cooperate with the ICC, none of the warrants of arrest against the defendants has been carried out. Sudan has argued that, among other things, the Special Criminal Court on the events in Darfur is able to prosecute those who bear the responsibility for the crimes there. 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. 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 characterised as a climate of almost total impunity for human rights violations.
It is true that the government has taken some measures to improve access to justice for victims through the establishment of judicial investigation mechanisms, including the Special Criminal Court. Yet 12 years on, there has been no progress in holding to account the perpetrators of the mass atrocities. The Special Criminal 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 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 Criminal Court to prosecute high-ranking officers because there is no basis of 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 that 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, a UN panel of experts on Sudan characterised 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 bombardments followed by ground attacks, the destruction and looting of villages, killings, mass rape and torture.
The victims in 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 prioritise access to justice for victims of grave violations of human rights and international humanitarian law. Ali is executive director of the African Centre
for Justice and Peace Studies
DESTROYED A Sudanese rebel fighter sombrely watches the abandoned village of Chero Kasi burn less than an hour after Janjaweed militiamen set it ablaze in 2004