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Part II: The Obstacles

Legal Framework

The International Commission of Inquiry found in its report of January 25, 2005 that the Sudanese legal system had serious flaws which made it incapable of acting to address the abuses in Darfur.⁴⁶  The new Special Criminal Court on the Events in Darfur does not address these flaws.   As discussed above, because of the use of decrees under the State of Emergency, it is difficult to know exactly what laws are being applied by the courts. At any given point, the Chief Justice or a state governor under emergency powers could issue a new decree establishing different procedures for prosecution without legislative or other participation.  This adds to the general lack of transparency surrounding the Sudanese legal system.  What follows is an assessment of the laws available at the time of this writing. 

Lack of proscription in the substantive law

The attacks and destruction that occurred in Darfur from 2003 to the present are properly categorized as violations of international humanitarian law and crimes against humanity.  However, crimes against humanity, genocide and war crimes are not included in the Sudanese Criminal Act of 1991 or in any of the statutes governing the military.  The absence of an explicit statutory basis which sets out the elements of the crimes in domestic statutes creates a potential barrier from the outset as to the likelihood that these crimes will actually be prosecuted in an appropriate manner.

Although crimes such as rape and murder, which are components of war crimes and crimes against humanity, are prohibited under Sudanese law, the prosecution of individual ordinary crimes does not adequately take into account the context in which the crimes occur, the fact that the crimes are committed as part of the prosecution of a conflict and that they may form part of a larger more organized campaign involving violations of civilians’ rights.  In addition, ordinary criminal liability does not attribute responsibility to military leaders for the acts of those under their control unless there is proof that the leader ordered the subordinate to commit a crime.  The inability to prosecute for command responsibility is discussed further below.

In November 2005, the Chief Justice attempted to rectify this lack of proscription by amending the Special Court decree to extend the jurisdiction of the court to state that the court can also apply “international humanitarian law.”⁴⁷  This raises the theoretical possibility that the SCCED does have the capacity to prosecute crimes over which the ICC has jurisdiction.   However, whether this is a legal reality is far from certain.  In the recent court ruling in the Tama case the defendants did face charges of looting as set out in the Rome Statute establishing the International Criminal Court.  The SCCED noted that Article 5(A) of the Order of the Establishment of Nyala Criminal Court for Darfur’s Incidents set the Court’s jurisdiction as: “Actions which constitute crimes pursuant to the Sudanese Criminal Act, other penal laws and the international humanitarian law.” In this case, however, the evidence did not support the initial charges brought under the Rome Statute.  Aside from this single charge, all of the cases in the Special Criminal Court’s first year of operations have relied on crimes under the 1991 Criminal Act and have not sought to rely on “international humanitarian law.” 

Prosecuting on the basis of command responsibility

The scale of atrocities committed in Darfur requires the full range of those most responsible for war crimes and crimes against humanity be prosecuted as well as the frontline soldiers who carried out the crimes.  To do this, prosecutions must be based not only on criminal liability for direct perpetration but also on command responsibility.  Command responsibility is applicable to military commanders or other superiors who “knew or should have known” that subordinates were committing or about to commit such crimes and either “failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation or prosecution.”⁴⁸  This basis of liability is essential for prosecuting commanders who in many cases will not have been the direct perpetrators and in some cases will not even have been present at the scene of the crime. However, it is the commanders who are leading the conflict who bear responsibility for the crimes committed by those under their command.  Reliance on charges based on regular criminal law in Darfur does not allow for development of a theory of command responsibility that would hold accountable local, state or national leaders who participated in the planning and/or sanctioning of crimes. 

As mentioned above, in a statement announcing the establishment of the Court, Chief Justice Jalal el-Din Mohammed Osman affirmed “that the Sudanese judiciary, as always, is capable and desirous of fully shouldering its responsibility in earnest for doing justice and restoring rights to their owners, free of any partiality, fear or influence, so that no person who has committed an offence may escape punishment, whatever his position or rank.”⁴⁹ However, this cannot happen where there is no basis in Sudanese law for holding superiors responsible for what their subordinates have done.

The lack of prosecution on the basis of command responsibility has been remarked upon by officials examining whether Sudan is taking steps to bring to justice those who have committed serious violations in Darfur.  On February 26, 2006, Sudan reportedly gave a U.N. envoy, Sima Samar, a list of individuals who have been tried for crimes in connection with the Darfur conflict as part of its continuing effort to persuade the U.N. that Sudan is taking steps to handle the alleged crimes through its national judicial system and thus avoid ICC investigations.⁵⁰  According to the U.N. official, the list contained only the names of 15 officers from the police and army who had been tried for crimes between 1991 and 2003.⁵¹  She further stated that the special criminal courts in Darfur had not prosecuted anyone bearing command responsibility and that impunity continued to reign in Darfur.⁵²  Following her visit to Sudan from April 30 to May 5, 2006, the U.N. High Commissioner for Human Rights, Louise Arbour, also stated that “Despite a number of measures taken by the authorities, notably the establishment of special courts and committees, impunity remains the norm in most cases of human rights violations in Darfur.” She described Sudanese efforts at establishing accountability as “inadequate.”⁵³

Scope of immunities

Not only does Sudanese law lack a provision allowing for prosecution on the basis of command responsibility but Sudan has enacted many immunity provisions which impede the prosecution of those in the military, police and security agencies responsible for the crimes in Darfur. 

Immunity for members of national security forces was enshrined in the National Security Forces Act of 1999.  Article 33 of that Act states: “no civil or criminal proceedings shall be instituted against a member, or collaborator, for any act connected with the official work of the member, save upon approval of the Director. . . .”  Similar language can be found in other acts and decrees regulating government actors.  Article 46 of the 1999 Police Forces Act states: “no criminal procedure will be taken against any police officer for a crime committed while executing his official duty or as a consequence of those official duties without permission of the Minister of the Interior.”

A 1995 criminal decree setting forth requirements for bringing charges against members of the armed forces in criminal courts specifies that criminal courts have no authority to pursue charges without approval by the armed forces or a decree from the Chief Justice.⁵⁴   A temporary decree issued by the President on August 4, 2005 attempted to extend the immunity of the armed forces by amending the People’s Armed Forces Act with the following provision:

There shall not be taken any procedures against any officer, ranker [sic] or soldier who committed an act that may constitute a crime done during or for the reason of the execution of his duties or any lawful order made to him in this capacity and he shall not be tried except by the permission of the General Commander or whoever authorized by him.⁵⁵

This decree further protected the armed forces, including the PDF militia and Janjaweed, from prosecution without government consent. ⁵⁶  The PDF is a paramilitary force that was established to assist the armed forces and was often used to mobilize recruits or “jihadists” to fight in the civil war (1983-2005) against the predominantly non-Muslim southern rebels.⁵⁷  This decree is currently being challenged within Parliament by former rebels, the Sudan People’s Liberation Movement.⁵⁸

Aside from the immunity provisions, the Criminal Act provides another possible means for members of the military to avoid accountability. The 1991 Criminal Act creates a defense of “performance of duty or exercise of right.”  On the face of the law, Article 11 appears to provide a defense of following lawful orders for those who commit offenses.  Article 11 states that “No act shall be deemed an offence if done by a person who is bound, or authorized to do it by law, or by a legal order issued from a competent authority, or who believes in good faith that he is bound or authorized so to do.”  This provision on its face appears to be inconsistent with standards of international law which state that superior orders are not a defense to crimes against humanity and genocide.⁵⁹ While it is open to a court to deem that an order to commit a crime could not have been lawful or that the person could not have believed in good faith that it was lawful, whether or not this Article could be successfully invoked as a defense by perpetrators of war crimes remains to be seen.

Legal impediments for prosecution of rape

Widespread rape and other serious forms of gender-based violence were committed against women and girls as part of the attacks by Janjaweed and uniformed government forces on villages in all three states of Darfur. Gang rapes occurred, sometimes in public and accompanied by other forms of severe violence such as whipping, during the attacks on villages.  The International Commission found a pattern of women and girls being abducted, held in confinement and raped over a period of days. Rape and other sexual violence occurred during flight and continue to occur during attacks and when women leave camps for the internally displaced.⁶⁰ 

The government response to the international outcry about sexual violence in Darfur took several forms.  In July 2004, it established National Judicial Committees to investigate allegations of rape in Darfur and then it subsequently established a State Committee on Combating Gender-Based Violence in Southern Darfur on March 6, 2005.  The mandate of the Judicial Committees was limited to rape and did not address other forms of sexual abuse and violence against women.  In addition they had few resources and no guidelines for conducting their work.⁶¹  The Committees met only for three weeks and their work led to only a handful of arrests.⁶²  The State Committee on Combating Gender Violence, which has a broader mandate to improve the performance of the government with respect to establishing accountability for sexual violence and support for survivors, has recently released a plan of action.  However there are no indications yet that its work has had a practical impact on the reported levels of sexual violence.⁶³ 

A number of issues call into question the Sudanese government’s ability and willingness to prosecute the sexual violence crimes in Darfur.  Despite the numerous consistent reports documenting patterns of rape,⁶⁴ the government has yet to prosecute any perpetrators for these crimes.  Rapes of girls and women who leave camps for internally displaced persons to collect firewood continue and are regularly reported by non-governmental organizations, yet no effort has been made to bring perpetrators, often armed militia, to justice.⁶⁵  Only one rape case has been brought before the SCCED, and in that case the initial conviction was overturned on grounds that the defendants, members of the military, were entitled to immunity. ⁶⁶ Although the Sudanese Armed Forces later withdrew the immunity from the defendants, opening the way for a retrial, the men were ultimately acquitted.

Major legal obstacles, in addition to the immunity provisions discussed above which protect many suspected perpetrators, continue to make victims reluctant to bring their cases to the police. If the SCCEDs rely on the domestic definition of the act of rape and the attendant requirements of proof, it will be extremely difficult for cases to be prosecuted successfully.  Rape is defined in the Sudanese Criminal Code as sexual intercourse, by way of adultery or sodomy, with any person without his consent. However under shari’a law, adultery can only be proved by the confession of the perpetrator, the testimony of four adult men who were witnesses to the act or pregnancy when the woman has no husband.⁶⁷ One reason for the high burden of proof is that if the rape constitutes the crime of adultery or sodomy it is punishable by death.  The requirement of multiple witnesses to corroborate witness testimony on rape, which is not typically committed in front of a crowd, makes it very difficult to obtain a conviction and less likely that victims will be inclined to press charges. Judges have refused to convict in cases of rape on the basis of corroborating medical reports in the absence of the testimony of four witnesses.⁶⁸ The burden is on the rape victim to provide corroborating testimony.  If a woman chooses to pursue a complaint that she was raped, but fails to prove that, although sexual intercourse took place, she did not consent, she could face charges of adultery (provable by pregnancy if she is unmarried) and, therefore, be in danger of facing criminal charges punishable by death or lashing.⁶⁹ Hence, the definition of rape and the elements proving the crime serve as a disincentive for victims to bring complaints to the police.   Indeed, rather than prosecute the perpetrators, the government appears more consistently to fine or prosecute the victims of rape for adultery related offenses, for filing false claims or, in one case, for murder when the victim stabbed a perpetrator.⁷⁰

In addition, Sudanese law requires a rape victim to obtain a “Form 8” from the police to submit to the medical practitioner before receiving medical care for sexual assault.  The Form 8, to be completed by qualified medical personnel, was intended to serve as medical evidence of physical harm.  However, it is limited in its scope to information about recent loss of virginity, bleeding, or presence of sperm, and does not allow a doctor to fully describe the extent of a victim’s physical injuries.⁷¹  The potential problems with the Form 8 are illustrated by a medical report cited in a United Nations High Commission for Human Rights (UNHCHR) paper which states that the victim “had been beaten seriously on her back, there are marks showing the beatings but there was no indication of rape, her hymen was torn a long time before.” ⁷²

The difficulty of obtaining the form from the police prior to receiving medical attention and the restrictions on allowing international health care workers to fill out the form were the subject of much controversy in the humanitarian community in 2004 and 2005.⁷³  In response to concerns that the procedure prevented victims from obtaining medical care, the Minister of Justice issued a circular that allowed sexual assault victims to receive medical treatment without the form and fill out a Form 8 at a later date prior to a trial if they want to pursue legal proceedings.⁷⁴  However, despite the circular and a joint effort by UNHCHR and the government of Sudan to make these clarifications known in Darfur, UNHCHR reports that in parts of Darfur police still require completion of a Form 8 before the victim may receive medical care—and some doctors also refuse to treat victims without first obtaining a Form 8.⁷⁵  In late November of 2005 the governor of the state of South Darfur issued a decree reiterating that rape survivors have the right to receive medical attention without a Form 8.  It further states that women or girls who become pregnant as a result of rape will not be charged with adultery. 

Procedural Rights

In addition to flaws in the substantive laws that impede prosecutions, Human Rights Watch has concerns about procedural rights that may implicate defendants’ ability to receive a fair trial.

Access to counsel

Article 7 of the Decree Establishing the Special Criminal Court states: “The defendant shall be entitled to be represented by the defense counsel of his or her choice.  Such attorney shall be permitted to meet the accused, address the Court on his or her behalf and examine and interrogate witnesses within the limits of the statements contained in their depositions.”⁷⁶  The interim constitution and the Code of Criminal Procedure also grant the accused the right to be represented by counsel.⁷⁷ Despite the written guarantee of representation to a counsel of one’s own choosing, the extent to which this right is enjoyed in practice and at what stage the right to representation commences is unclear. The right to be represented during interrogation by police, for example, is not guaranteed.  The Rome Statute establishing the ICC, which provides authoritative guidance on international fair trial standards, assures suspects of the right to be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.⁷⁸  As mentioned above, while the practice so far in the SCCEDs has been inconsistent, there have been reports that in the first six cases before the SCCED, most trials were held in a single day often in the absence of witnesses and defense lawyers.  Lawyers representing victims were reportedly subject to harassment.⁷⁹

The right against self-incrimination

This principle is articulated in Article 14(3) (g) of the International Covenant on Civil and Political Rights, which states that the defendant has a right “not to be compelled to testify against himself or to confess guilt.”  The Rome Statute states that defendants’ rights include the right “To remain silent, without such silence being a consideration in the determination of guilt or innocence.”⁸⁰  Sudanese criminal law makes no reference to the right of the accused not to have inferences drawn against him if he refuses to testify. 

On the contrary, the Decree Establishing the Special Criminal Court on the Events in Darfur allows the court to address any questions it deems necessary to the defendants.  Although it states that “the defendant shall not be penalized if he or she refuses to answer those questions,” it then allows the Court freely “to infer whatever conclusions it deems just from such a refusal or such answers.”⁸¹ 

Admissibility of coerced statements

Sudanese law does not provide an absolute prohibition on admission of statements obtained as a result of torture.  States have a duty to ensure that statements extracted under torture are inadmissible at trial as an element of the absolute prohibition on torture, inhuman and degrading treatment.⁸²

The International Commission of Inquiry stated that when an accused informs the court that a confession was extracted by torture, the court is put on notice to challenge and to rule, giving reasons, on the admissibility of the confession. ⁸³  Although Article 115(2) of the Sudanese Criminal Act of 1991 prohibits torture of witnesses or accused, immunity laws could prevent the prosecution of someone accused of torture if he is a member of the national security or police or armed forces.  Moreover, the law does not prohibit consideration of coerced testimony.  Article 10(1) of the Evidence Act, by which judges of the Special Criminal Court are bound, states “evidence shall not be rejected merely because it has been obtained by unlawful means whenever the Court is satisfied with the genuineness of its substance.”⁸⁴  Article 11(4) of the Decree Establishing the SCCED allows it to convict the defendant on the basis of a confession, but there is no requirement that the court assess whether the confession was made voluntarily or is corroborated by other evidence.  The 1991 Code of Criminal Procedure does require criminal courts, in cases punishable by death, amputation or whipping of more than forty lashes, to take several precautionary steps before convicting on the basis of a confession.  These include hearing corroborating evidence presented by the prosecution, cautioning the accused as to the seriousness of the admission where admission is the only evidence against him, and adjourning for a period not exceeding one month to allow the defendant to reconsider his confession.⁸⁵  

Some defendants in other Sudanese criminal courts have attempted to retract their confessions on the basis that they were obtained by torture.  Nevertheless, the specialized courts, which, as discussed above, were established in 2003 to deal with unrest in the region and currently co-exist with the Special Criminal Court on the Events in Darfur, have reportedly refused to invalidate the confessions and have failed to open investigations into claims of torture.⁸⁶  There are documented cases in which defendants have been convicted of death penalty offenses on the basis of confessions where there is credible evidence that the confessions were made on the basis of coercion.  For example, Human Rights Watch documented the case of a policeman convicted of participating in “rebel insurgency” on grounds of a confession made as a result of torture.  He was spared execution only ten minutes before it was scheduled to occur.⁸⁷  In practice, even in the face of medical evidence and testimony corroborating use of torture, Sudanese courts have long ruled confessions extracted by force are admissible.⁸⁸ 

The Death Penalty and Corporal Punishment

Capital punishment, amputation and corporal punishment are increasingly considered impermissible under international law. International human rights law favors abolition of the death penalty.⁸⁹  The right to be free from torture and cruel, inhuman and degrading treatment is provided for in the International Covenant on Civil and Political Rights (Article 7), the Convention against Torture (Articles 2 and 16), and the African Charter on Human and Peoples’ Rights (Article 5).  A state may not invoke provisions of its domestic law in order to justify disregarding its obligations under international law to protect all persons from torture or cruel, inhuman and degrading treatment or punishment.  In particular, the Special Rapporteur on Torture advised that “those States applying religious law are bound to do so in such a way as to avoid the application of pain-inducing acts of corporal punishment in practice.”⁹⁰

Sudanese criminal law, by which the Special Criminal Court is bound,⁹¹ is based on shari’a and calls for the death penalty to be imposed for a number of crimes including offenses against the state, murder, adultery (if the defendant is married) or repeated acts of sodomy.⁹²  Article 36 (2) of the interim constitution allows the death penalty to be inflicted on children under eighteen years of age for crimes of hudud which include  offenses proscribed in the Koran such as armed robbery and apostasy.  Amputation or public whipping is the prescribed penalty for many offenses including armed robbery, intentional wounding of another, gambling, sodomy, rape, gross indecency, indecent and immoral acts and prostitution.⁹³  These punishments are still in use.  On August 31, 2005, the government executed two prisoners convicted of capital offenses committed when the defendants were less than eighteen years of age.⁹⁴  On December 25, 2005, the special criminal court in Zalingi, West Darfur sentenced a defendant to cross amputation of the right hand and left foot after convicting him of murder and robbery.⁹⁵  As of September 18, 2005, 479 people were on death row in Sudan.⁹⁶

Practical Obstacles: Lack of Political Will

Despite the establishment of the new courts and the prosecutor’s office, the Sudanese government has done little to demonstrate its professed intent to ensure justice for the crimes committed in Darfur during the conflict.  In December 2005, the president of the SCCED, Judge Mahmoud Mohammed Said Akbam, said that the court has been unable to hold accountable individuals who may have committed grave crimes because of the reticence of witnesses and the general insecurity in the region.⁹⁷  Other representatives of the Sudanese government have also stated that the government cannot investigate or prosecute individuals responsible for crimes in Darfur because witnesses refuse to come forward and identify the perpetrators.⁹⁸

While it is true that witnesses and victims in general may not trust government prosecutors and police, many victims have nevertheless come forward to file complaints with the police.  Reports by the U.N. Commission and U.N. Panel of Experts (in both cases listing names of abusers in confidential annexes to reports), the U.S. Department of State, Human Rights Watch, the international media and others have all named numerous individuals bearing responsibility for crimes in Darfur.⁹⁹  The African Union Mission in Sudan has been providing information about attacks to the government of Sudan through its Cease Fire Commission for nearly two years. One government representative (and one representative each for the two rebel groups) is present on each Cease Fire Commission that conducts any investigation into alleged violations of the cease fire agreement. The reports are prepared by consensus. They contain information about attacks by Janjaweed and the government of Sudan on the civilian population.  The reports include names of witnesses interviewed, a summary of their testimony, photos and even the name of the commander of the attacking forces.¹⁰⁰  These reports were signed, and sometimes commented upon, by a high-ranking Sudanese official, often a colonel, as part of the ceasefire monitoring procedure.  Yet nothing has been done to follow up with prosecutions, even in those cases that were filed after the SCCED was established.  NGOs have also filed hundreds of cases with the prosecutor in Nyala many of which include the names of alleged perpetrators.  Very few of those cases have been investigated and brought before the courts.¹⁰¹

Evidence of the lack of desire or intent to pursue prosecutions begins with action by the police.  UNHCHR reports indicate that “police and other government officials also proactively obstructed justice by refusing to investigate human rights abuses or conducting inadequate investigations of human rights abuses committed by militia in Darfur.”¹⁰²  Police have refused to take complaints from victims.¹⁰³  In some cases, the officer in charge claims that the office cannot investigate if the victim cannot identify the perpetrators or otherwise provide the police with evidence.¹⁰⁴ Even when victims identify perpetrators and report their location to the police, police either fail to investigate or arrest suspects.  Police have also reportedly refused to investigate cases brought more than twenty-four hours after the crime occurred.¹⁰⁵  Given the difficulties in travel in the region, this could prove a major obstacle to filing of complaints.  The failure of the police to investigate further discourages victims from making complaints and fosters an atmosphere of impunity. 

Victims who report crimes are also fearful of retaliation by perpetrators.¹⁰⁶  In one instance, a thirty-six-year old woman in an IDP camp in West Darfur was beaten by three army officers in November after attempting to lodge a complaint against a Janjaweed who attempted to kill her daughter.¹⁰⁷

The reason for the lack of accountability in Darfur was summed up by a recent statement by the President of the SCCED, Judge Akbam: “Higher authorities are not interested in these cases to be presented to the court or for them to even come to the knowledge of the court.”¹⁰⁸

Treatment of Witnesses and Victims of Sexual Violence

No laws exist to take into consideration the protection and welfare of victims.  Sudan is completely devoid of witness and victim protection programs and, in the case of vulnerable victims of rape, no support services or counseling is available from the state. An investigation of two police stations in South Darfur conducted by UNHCHR and the members of the Sudanese government showed that neither police station had female police officers present, no proper procedures existed for registering sexual or gender-based violence cases, and no space was available for survivors to report their complaints confidentially.¹⁰⁹

The lack of support for victims of sexual violence in particular is not simply demonstrated by lack of services and protection.  The government’s attitude towards rape cases has been one of disregard if not outright hostility.¹¹⁰  On May 30, 2005, the Country Director of Medicins Sans Frontieres (MSF) was arrested and charged with offenses against the state (which carry capital penalties) because of a MSF report publicizing the continuing prevalence of rape in Darfur.¹¹¹  Judge Abkan has said the rape cases the court was looking into were individual cases and that there were no testimonies indicating that rape was the result of a planned and systematic attack.¹¹²  The Minister of Justice, Mohamed Ali al-Maradi, has said that reports being published by the western media against Sudan were baseless.¹¹³  In her statement following her visit to Sudan in May 2006, U.N. High Commissioner Louise Arbour stated “In discussing the critical situation in Darfur with Sudanese local and national authorities I was struck, as I was during my first visit, by their efforts to minimize the gravity of the problem.  All other accounts differ from official claims that there is no significant problem of rape and sexual violence specific to Darfur, or that the military does not act in concert with armed groups in attacks that frequently result in civilian casualties.”¹¹⁴

This attitude has filtered down to police stations.  Police and other officials reportedly tell victims that they are “lying and making up stories” and refuse to investigate their claims.¹¹⁵  Women who report rapes are often harassed and threatened with prosecution for adultery, bad behavior and acting against the state.¹¹⁶  People who have brought sexual violence complaints to the police have even been arrested for bringing false charges.¹¹⁷  For example, on March 6, 2006, the police arrested a woman on charges of furnishing false information after she reported the rape and abduction of women outside the Ardameta camp.  On January 23, 2006, three sheikhs who informed a government delegation to Kerenek, West Darfur about assaults and torture of civilians and the rape of thirty-six women were reportedly arrested the next day by police and charged with making false allegations.¹¹⁸  According to a U.N. document one policeman reported that he was instructed not to report rapes because it is “shameful” and “brings a bad image to Sudan.”¹¹⁹

For the few victims who make it to court, there is no evidence to indicate they will be treated any better by the judicial system.  In the only rape case to be brought before the SCCED to date, the sixteen-year-old victim was only informed that the court would hear the case the morning of the hearing.  When her lawyers protested, the judge apparently said that given the court’s special status, “even five minutes notice” was sufficient. The judge also refused the victim’s lawyers request for a closed hearing. ¹²⁰