Background Briefing

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Executive Summary

On June 7, 2005, one day after the Prosecutor of the International Criminal Court (ICC) announced he was opening investigations into the events in Darfur, the Sudanese authorities established the Special Criminal Court on the Events in Darfur (SCCED) to demonstrate the government’s ability to handle prosecutions domestically.  The timing of the establishment of the SCCED belies a motivation for the establishment of the Court beyond that of offering accountability and justice to victims of war crimes in Darfur.  Statements made by senior Sudanese government officials at the time made clear that one goal in establishing the SCCED was to divest the ICC of jurisdiction.  A Ministry of Justice statement challenging the ICC’s jurisdiction made explicit reference to Article 17 of the Rome Statute which requires the ICC to reject a case as inadmissible “if the State which has jurisdiction is investigating or prosecuting the case unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.” 1  Sudanese authorities have repeatedly stated they will not cooperate with the ICC because Sudan is capable of trying the cases in Darfur.2

The Sudanese authorities have had one year to demonstrate that the SCCED is an effective and meaningful forum where the perpetrators of serious human rights violations in Darfur can be brought to justice.  The information Human Rights Watch has been able to gather on the Court’s first year of operations indicates there is no genuine willingness on the part of Sudanese authorities to ensure that the perpetrators of the atrocities in Darfur are brought before the SCCED for prosecution.  Nor is there evidence that the SCCED has the capacity to try these cases effectively even if appropriate cases are brought before it.  The 13 cases brought before the SCCED to date have involved only ordinary crimes, such as theft, possession of stolen goods or individual murders unrelated to larger attacks.  Sudanese authorities have failed to press charges before the SCCED for a single major atrocity committed in Darfur.  No official has been charged on the basis of command responsibility for these crimes, even though both the crimes and many perpetrators have been named and are well-known within Sudan and to the international community.

This paper sets out the results of an examination by Human Rights Watch into the background of the establishment of the SCCED, the legal context in which the Court operates and information on how the initial trials before the SCCED have been conducted.  Human Rights Watch concludes:

  • The procedure and laws to be applied by the Court are far from clear and the hybrid of Sudanese statutes, shari’a law, law by decree and references to international law which could be applied make the Court’s work opaque and arbitrary. 

  • The absence of explicit definitions in Sudanese law of crimes against humanity and violations of international humanitarian law makes it less likely that these crimes will actually be prosecuted in an appropriate manner.

  • No provisions exist for prosecuting leaders on the basis of command responsibility.  Reliance on ordinary criminal law means that local, state or national leaders are unlikely to be held accountable for the acts of their subordinates unless direct involvement of the leaders in the crimes can be demonstrated.  Prosecution of leaders is essential to enforcing accountability in Darfur.

  • Broad immunity provisions in Sudan’s laws create obstacles to successfully prosecuting members of the armed forces (including the Popular Defense Forces and some Janjaweed), national security agencies and police, for their role in the events.

  • The high burden of proof for rape cases, as well as the threat of prosecution for adultery, makes it difficult for rape victims to bring their cases to the police.

  • Sudanese law raises serious concerns about the ability of the courts to conduct trials consistent with international fair trial standards. For example, Sudanese law does not provide an absolute prohibition on admission of statements obtained as a result of torture. 

  • Demonstration of the lack of political will to take these cases begins at the lowest levels.  Police often refuse to take complaints from victims and do not investigate cases brought to them.

  • Victims or witnesses who do report crimes to the police often face indifference, harassment or possibly even arrest.  Victims of sexual violence in particular are treated with disregard, if not outright hostility, by police.

Without a reversal of policy on the part of the Sudanese government and political will to punish past atrocities and prevent further crimes, the Sudanese government cannot be said to have demonstrated ability and willingness to establish accountability for the crimes in Darfur.

[1] “Sudan: Judiciary challenges ICC over Darfur cases,” IRIN, June 24, 2005, [online], (retrieved May 30, 2006). A recent ruling by Pre-Trial Chamber 1 of the ICC has indicated that for a case to be found inadmissible, national proceedings must encompass both the person and the conduct which is the subject of the case before the Court(International Criminal Court Decision concerning Pre-Trial Chamber 1’s Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, February 24 2006, para. 31).

[2]  See “Sudan rejects handing over Darfur suspects,” UPI, April 2, 2005 [online] (retrieved May 31, 2006); “Only Sudanese judiciary can try Darfur war crimes – al-Bashir,” Sudan Tribune, February 19, 2006 [online], (retrieved May 30, 2006); “Sudan vows not to extradite suspects of Darfur war crimes,” Xinhua News Agency, February 19, 2006 [online], (retrieved May 30, 2006).

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