Africa must stand up for jus­tice in Dar­fur

CityPress - - Voices - MOSSAAD MO­HAMED ALI voices@city­

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

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