Entrenching Impunity
Government Responsibility for International Crimes in Darfur

VIII. Entrenching Impunity

There are immediate steps that the government of Sudan could take to bring some relief to the millions of displaced and conflict-affected civilians in Darfur, prevent future abuses, and begin the reversal of “ethnic cleansing.”  These steps would include the Sudanese government’s: acknowledgement that Sudanese security forces and militias have committed  atrocities; beginning the disarmament of the Janjaweed militias; suspending suspected war criminals from government positions pending investigation; dismissing police and security agents who have committed crimes; providing genuine security to civilians in Darfur, particularly along the roads and in the towns; and ending discriminatory practices towards targeted ethnic groups, including arbitrary arrest and detention.

To date the Sudanese government has shown no willingness to take any of these steps.  Despite overwhelming information that the Sudanese government has planned, coordinated, and implemented a campaign of ethnic cleansing resulting in crimes against humanity and war crimes in Darfur, not a single mid- or high-ranking civilian official or military officer has been investigated, disciplined, or prosecuted.

The Sudanese government launched an internal investigation in mid-2004, created at least three different ad hoc committees to respond to the allegations, and established a new tribunal to investigate and try perpetrators of crimes in Darfur.  The record so far amounts to little more than a superficial effort to show that something is being done in response to international demands. None of these initiatives have demonstrated any genuine will or effort to provide accountability or justice for the victims in Darfur.

A. No Disarmament of the Janjaweed

    Two officers were sitting in chairs and were ordering eleven soldiers to give the weapons to the Janjaweed. They had lists of Janjaweed, by names. They were writing down the serial number of the weapon next to the name of the Janjaweed to whom the weapon was actually handed over. It took a very long time, from 7 a.m. to 8 p.m.
    —Captured government soldier formerly based in Kebkabiya 166

The Sudanese armed forces provided weapons, ammunition, uniforms, communications equipment, vehicles, and other support to the Janjaweed militias incorporated in the Popular Defense Forces, as well as to the ethnic militias in looser affiliation with the armed forces. The distribution of arms was not random; it was organized and weapons were registered.  Individuals in the PDF and other militias received identification cards and numbers. Human Rights Watch has obtained copies of both weapons registration lists and individual identification cards issued to militiamen in the PDF.

Although the Sudanese government may no longer have full control over all the militia members it recruited, funded, armed, and coordinated, the fact remains that the Sudanese government has never tried to exercise such control. The “out of control” state of affairs provides the government with the deniability it believes it needs to counter international protests about the scale of killing, destruction, and displacement in Darfur; the same strategy it used in southern Sudan with the ethnic militias there. This “out of control” situation has been evolving for some time: instead of taking steps to reduce support to militia, since mid-2004—after it signed the humanitarian ceasefire agreement in N’djamena— the Sudanese government has widened the circle of militia groups to whom it gives full or partial support. While it was making various promises to disarm and rein in the militias, top Sudanese security officials in May and early June 2004, summoned several militia leaders to Khartoum and gave them allotments of supplies.167

In late May, the militia leader known as Abu Ashreen, a follower of Musa Hilal, allegedly spent several weeks in Khartoum and had close contacts with Maj. Gen. al Hadi Adam Hamid from Military Intelligence, who is close to General Director of Security, Gen. Salah Abdallah Ghosh. Abu Ashreen allegedly received weapons, medicines, uniforms, and other supplies in Khartoum, and was flown back to Fashir by Antonov in the first week of June.168 In June, another tribal leader from South Darfur reportedly received similar treatment.169

The Sudanese army regularly continued to supply militia camps in all three states with salaries, weapons, ammunition, and food. For instance, a former militia member who lived in the Misteriya camp noted that a helicopter came three times a week with letters, ammunition, and food.170

There have been no meaningful efforts by the Sudanese government to disarm the Janjaweed. Instead, the government has simply incorporated many Janjaweed into various units of the security forces. For instance, in Fashir, many Janjaweed militia members have been absorbed into the Central Reserve Police after training in Khartoum.171 This has led to problems within the security forces as well as continuing violence against civilians, in some cases directly from members of the “new” police. Most of Musa Hilal’s recruits in Misteriya base were also absorbed into various paramilitary groups by late 2004, after discussions between Hilal and Lieutenant Colonel Abdel Wahid about how best to distribute military identity cards to the recruits.172

The Sudanese government has conducted a few exercises where alleged Janjaweed were ostensibly disarmed. These efforts, which took place in Geneina and Kass in 2004, were little more than propaganda aimed at the international community. In one such exercise, for instance, AMIS military observers were invited to observe the collection of several hundred firearms from militia members. According to a former AMIS member interviewed by Human Rights Watch, the serial numbers of the collected arms were in sequence, indicating that they had just been brought out of stock for the show.173

Short of attempting to forcibly disarm the Janjaweed, which now could prove difficult, the government has other options to control and disarm them that it has yet to explore, such as providing payments or other incentives in exchange for weapons.174


B. Individual Impunity from Prosecution

The Sudanese government has failed to investigate, let alone prosecute, local, regional, and national officials who planned, coordinated, and implemented “ethnic cleansing” or were otherwise implicated in war crimes and crimes against humanity (see also Annex 1).

The recent appointments of ministers and state ministers and other high-ranking officials in the new Government of National Unity is little more than a reshuffling of the persecutors of Darfur. Many civilian officials who may have been responsible for serious international crimes remain in government. For instance, the former minister of the interior, Abdelraheem Mohammed Hussein, is now minister of defense. His deputy, Ahmed Haroun, has made a lateral shift to the Ministry of Humanitarian Affairs, where he remains a deputy minister. The former minister of defense, Bakri Hassan Salih, is now minister of the presidency.

In Darfur, the civil service remains unchanged. According to the information available to Human Rights Watch, only a few of those implicated in the atrocities are no longer in official positions, namely Ahmed Angabo Ahmed, ex-commissioner of Kass; El Tayeb Abdallah Torshain, commissioner of Mukjar, and Adam Hamid Musa, ex-governor of South Darfur.  All three officials apparently left for reasons unrelated to their records; none of them was suspended from duty. Neither they nor any of the officials who remain in their positions have been investigated or prosecuted for crimes in Darfur.175

Other individuals who may have been responsible for crimes, including the provincial commissioners of Nyala, Kebkabiya and Nyertite, remain in their positions. The governor of North Darfur, Osman Mohammed Yusuf Kibir, and the governor of South Darfur, Alhaj Attar el-Mannan Idris (who replaced Adam Hamid Musa in mid-2004 and was present throughout the massive offensive of late 2004), remain in place and were recently re-nominated by President El Bashir to continue as governors. At least one individual, the former commissioner of Garsila, Ja’afar Abd el Hakh involved in the Wadi Saleh mass executions as described above, has been promoted: in October 2005, he was made governor of West Darfur state.

C. No Justice: The National Tribunal for Crimes in Darfur176

In late January 2005, the International Commission of Inquiry established by U.N. Security Council Resolution 1564 published the findings of its three-month investigation of crimes in Darfur. The Commission of Inquiry’s report concluded that there was insufficient evidence to conclude that there was a state policy of genocide, but stated:  “International offences such as the crimes against humanity and war crimes that have been committed in Darfur may be no less serious and heinous than genocide.”177  The report “strongly recommended” that the Security Council refer the situation in Darfur to the ICC, noting that “the Sudanese justice system is unable and unwilling to address the situation in Darfur.”178

On March 31, 2005, the U.N. Security Council acted on the recommendation and referred the situation in Darfur to the ICC.179 Under the Rome Statute of the International Criminal Court, the jurisdiction of the international court is complementary to that of national tribunals.180  In other words, if national courts initiate good faith proceedings against possible perpetrators of war crimes, crimes against humanity, genocide, and other crimes within its jurisdiction, the ICC is barred from proceeding with the same cases.  Although the Commission of Inquiry had already come to the conclusion that the Sudanese justice system was unable and unwilling to address the crimes in Darfur, the prosecutor of the ICC was obliged to make his own assessment prior to initiating an investigation.181

On June 6, 2005, ICC Prosecutor Luis Moreno Ocampo announced that the ICC would investigate the crimes in Darfur, focusing on “the individuals who bear the greatest criminal responsibility for crimes committed in Darfur.”182 The following day, June 7, the Sudanese government suddenly announced the establishment of the Special National Criminal Court for Darfur, a new tribunal to begin proceedings immediately in collaboration with state prosecutors in Darfur.183 The timing and speed of the tribunal’s establishment was another effort to defeat the ICC’s jurisdictionover crimes in Darfur, as some Sudanese officials even acknowledged.184 Ali Mohammed Osman Yassin, then Sudanese minister of justice, apparently told Sudanese press that the court was “considered a substitute to the International Criminal Court.”185

The new court was based in Fashir, with the authority to hold hearings in other locations. By June 18, 2005, the court held its first hearings in Nyala. By August, six cases had been or were in the process of being tried. The cases ranged from the rape of a sixteen-year-old girl by PDF members during an attack on a bus (see below), to incidents of armed robbery and murder by soldiers, to a case of looting of eighty sheep. None involved war crimes or defendants of any stature in the government forces, civilian administration, or militias.

Yet official complaints had been filed in cases alleging war crimes. For instance, Human Rights Watch was told that tribal leaders from Hamada, South Darfur—which (as noted above in Section VI.B) suffered a brutal attack in January 2005, in which scores of civilians were killed—had filed complaints with the police in Nyala.  The state prosecutor and other local officials were also well aware of the attacks on the civilian populations of Marla, Khor Abeche and other villages, but insisted that the cases could not be taken to court because the identity of the perpetrators remained unknown.186 Knowledge of the identity of the perpetrators was hardly the real problem, however: Musa Hilal and other militia leaders had been publicly accused of crimes for months, and were even included on a U.S. State Department list of militia leaders. Other individuals, such as Brig. Gen. Ahmed Al Hajir Mohamed, who led the Sudanese armed forces in their South Darfur offensive in December 2004, were also named in publicly available AMIS reports. The problem was the refusal of the police, military and security to seriously investigate any allegation where government officials engaged in counterinsurgency operations might be implicated.

In South Darfur, Governor Alhaj Attar el-Mannan Idris set up investigation committees to look into some of the worst attacks, including the well-publicizedKhor Abeche attack of April 7, 2005, where Misseriya militias from Niteiga attacked and destroyed much of the town of Khor Abeche.187 The U.N. and AMIS strongly denounced the attack and publicly called for the leader of the Misseriya miltias, Nazir Al Tijani Abdel Kadir, to be placed on the U.N. sanctions list.188 No Sudanese judicial or investigatoryaction was taken on Khor Abeche or any other major case, however. According to a credible source, Governor Alhaj Attar el-Mannan tried to pressure the leaders from Hamada to withdraw their complaint.189

The Sudanese government has since made it even more difficult to prosecute soldiers implicated in war crimes or crimes against humanity.  On August 4, 2005, President El Bashir signed an amendment to the People’s Armed Forces Act, which conferred immunity from prosecution on any“officer, ranker or soldier” who committed crimes in the course of his duties, unless the prosecution was permitted by the “General Commander or whoever authorized by him.”190

Inaction on rape and sexual violence

The Sudanese government’s refusal to pursue the perpetrators of war crimes and crimes against humanity was highlighted by its attitude and legal antics regardingthe crime of rape. Despite numerous, consistent, and credible reports documenting the existence of patterns of rape and sexual violence that may amount to war crimes or crimes against humanity,191 the Sudanese government consistently refuses to acknowledge the scale and gravity of the crimes.192 Instead of investigating and prosecuting the perpetrators, the Sudanese police and other authorities have repeatedly failed to act appropriately on those complaints they have received. In some cases police officers have actively threatened or even abused women and girls suspected of being victims of rape.193  International humanitarian agencies providing medical care to rape victims have also been harassed for publicizing the scale of the problem and refusing to reveal the identity of their patients, which would be a violation of doctor-patient confidentiality.194

Although, as noted above, the new Special Court for Darfur has tried one case of rape, the circumstances of the trial provoked further concerns. The case involved a sixteen-year-old girl who had been raped when the bus she was traveling on was attacked by armed men in December 2004. According to credible reports received by Human Rights Watch, the girl and her lawyers were only informed that the court would hear the case the morning of the hearing. When the lawyers representing the victim protested at the lack of notice, the chief judge apparently said that given the court’s special status, “even five minutes notice” was considered sufficient to notify any witness to give testimony.195  In addition, although the victim’s lawyers requested a closed session—so that the girl could give her evidence without the media and public present—the judge refused, apparently stating that the public was there already and that it was important for people to see the case.196

Human Rights Watch heard from one source that initially the eight men accused of raping the girl were convicted by the Special Court, but that judgment was later reversed by the appeals court on the grounds that the defendants were immune from prosecution due to the August 4 presidential decree. The Sudanese Armed Forces then agreed for the defendants to be retried and the case returned to the Special Court, where the defendants were acquitted.197

In October 2005, the Chairman of the new Special Court, Mahmoud Abkam, signaled that none of the major cases of mass rape in Darfur would be considered by the Special Court. He said: “the rape cases which the court was looking into were individual cases.… The court had not found anything on the ground about the cases which Western media always speak about.”198  He reiterated the Sudanese government’s dismissal of mass rape as a “Western fabrication,” and formalized the government’s position of not pursuing accountability for most of the rape cases.  Also in October 2005, in a meeting with the U.N. special rapporteur on human rights in Sudan, the newly-appointed minister of justice, Mohammed Ali al-Maradi, repeated the Sudanese government’s refusal to cooperate with the ICC investigation, noting that the Sudanese government was committed to prosecuting the suspects within the national legal system.199

D. Destroying Evidence?

Many civilians have claimed that government forces and Janjaweed have deliberately destroyed mass graves and other evidence.  The SLA has also made this claim, and stated that it recaptured the Abu Gamra area in February 2005, partly because they wanted to preserve the mass graves and other forensic evidence.

When Human Rights Watch researchers visited Abu Gamra in July 2005, there were few civilians left. The residential neighborhoods of the village had been entirely destroyed.  All that stood were the mud walls of burned huts.  The market, school, and mosque had also been destroyed, probably by Antonovs, helicopters, or bulldozers.  What was not destroyed was looted: for instance even the windows were ripped out of school walls.

Human Rights Watch visited the sites of two alleged mass graves, one from December 2003 and allegedly containing more than one hundred bodies, and the second apparently dug after the second attack in 2004, and reportedly also holding more than one hundred dead.  Researchers saw a field strewn with skeletons, some still wearing clothes.  They appeared to be where the victims had fallen and were still on the surface.

While Human Rights Watch cannot confirm the reports of government forces destroying mass graves and other forensic evidence of their abuses, the stories of such cleansing operations have now become numerous, not just from the Abu Gamra area, but also from other areas of Darfur such as Wadi Saleh. For instance, after the first visit by A.U. monitors to Garsila, West Darfur, in March 2005, Human Rights Watch heard credible reports that mass graves in and near the town containing the bodies of victims of the March 2004 executions were dug up and the remains burned.200

Human Rights Watch has also obtained copies of documents purportedly originating from Musa Hilal’s command base in Misteriya that are addressed to security agencies and national officials.  Human Rights Watch cannot confirm the authenticity of these documents, but if genuine, they are extremely damning. One of the documents, dated August 2004, orders that forces dispose of mass graves and other evidence.201

[166] Human Rights Watch interview with government soldier in SLA custody, North Darfur, July 14, 2005. Human Rights Watch interviewed all detained combatants in a private room, without any SLA captors present. [167] Confidential communications to Human Rights Watch from an international observer in Khartoum, June 4, 2004.
[168] Ibid.
[169] Ibid.
[170] Confidential e-mail communication to Human Rights Watch from someone who interviewed the former militia member, June 26, 2004.
[171] Interviews with Sudanese residents of Fashir, February 2005.
[172] Human Rights Watch interview, Kebkabiya, North Darfur, October 4, 2004.
[173] Human Rights Watch interview with former A.U. military observer, Netherlands, September 15, 2005.
[174] The potential for Janjaweed groups to challenge the government is suggested by recent reports that particularly in West Darfur the alliance between the Sudanese government and some of its ethnic militias is fraying.  See Marc Lacey, “Chaos grows in Darfur Conflict as Militias Turn on Government,” The New York Times, October 18, 2005.
[175] Adam Hamid Musa currently heads a (reportedly government-backed)  organization called the Darfur Peace and Development Forum, and attended the peace talks in Abuja, Nigeria, in October 2005. See “Darfur Forum Representatives Arrive for Talks in Abuja,” Xinhua, October 9, 2005, at http://www.sudantribune.com/article.php3?id_article=11995.  Ahmed Angabo Ahmed’s whereabouts are currently unknown.
[176] Human Rights Watch will analyze the new Sudanese tribunal on Darfur in greater detail in a forthcoming report.
[177] United Nations, “Report of the International Commission of Inquiry on Darfur to the United Nations Secretary General,” at http://www.un.org/News/dh/sudan/com_inq_darfur.pdf
[178] Ibid., p. 5.
[179] S/1593/2005
[180] This “principle of complementarity” states that it is the primary responsibility and duty of the national government to prosecute the most serious international crimes, while allowing the ICC to step in only as a last resort if the state fails to implement its duty—that is, only if investigations and, if appropriate, prosecutions are not carried out in good faith. Bona fide state efforts to discover the truth and to hold accountable those responsible for any acts of genocide, crimes against humanity or war crimes will bar the ICC from proceeding, even against those “most responsible.” For further information see the Rome Statute of the International Criminal Court and “Questions and Answers about the ICC,” at http://www.hrw.org/campaigns/icc/qna.htm.
[181] The obligation of the ICC Prosecutor to assess the willingness and ability of a state's justice system to take action is ongoing. This ongoing obligation was cited by the ICC Prosecutor in "The Statement of the Prosecutor of the International Criminal Court Mr. Luis Moreno Ocampo to the Security Council on 29 June 2005 Pursuant to UNSCR 1593” (2005)  p. 4.
[182] “The Prosecutor of the ICC Opens Investigation in Darfur,” ICC, The Hague, June 6, 2005, at http://www.icc-cpi.int/press/pressreleases/107.html
[183] The Chief Justice signed decree no.702 establishing the Special National Criminal Court on Darfur on June 7,
2005 (the day after the OTP announced the start of the investigation), with immediate effect. On June 11, Justice Makmoud Mohammed Said Abkam, a member of the Sudanese Supreme Court, was named president of the new court.
[184] Press Release of Chief Justice Jalal el Din Mohammed Osman, June 7, 2005, at http://www.sudan-embassy.de/pages/special_court_for_crimes_in_darfurpag.html
[185] “Sudan: Judiciary challenges ICC over Darfur cases,” IRIN, June 24, 2005, at http://www.irinnews.org/report.asp?ReportID=47802&SelectRegion=East_Africa&SelectCountry=SUDAN
[186] Confidential communication to Human Rights Watch from an international observer, August 16, 2005.
[187] Decree No. 26 h 1426, on file with Human Rights Watch.
[188] Edith Lederer, “Over  350 Militiamen Attack, Destroy Darfur Village-UN, AU,” Associated Press, April 9, 2005, at http://www.sudantribune.com/article_impr.php3?id_article=8971
[189] Confidential communication to Human Rights Watch from an international observer, July 28, 2005.
[190] The decree reads:
Temporary Decree, People’s Armed Forces Act 1986, Amendment 2005
Seeking Permission to Institute Criminal Procedures Against Any Officer, Ranker or Soldier
There shall not be taken any procedures against any officer, ranker 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.
Made under my signature August 4th 2005, Omer Hassan Ahmed Al Bashir 
[191] See the report of the International Commission of Inquiry, and also Amnesty International, “Darfur: Rape as a Weapon of War,” AFR 54/076/2004, July 19, 2004, at http://web.amnesty.org/library/index/engafr540762004
[192] Emily Wax, “Sudanese Rape Victims Find Justice Blind to Plight,” The Washington Post, November 8, 2004. See also United Nations, ”Access to Justice for Victims of Sexual Violence” United Nations High Commissioner for Human Rights, July 29, 2005, at http://www.ohchr.org/english/press/docs/20050729Darfurreport.pdf
[193] Katharine Houreld, “Gang-raped and Pregnant, These Women Thought Their Ordeal Was Over When They Went to the Police. They Were Wrong.” The Sunday Telegraph, London, March 13, 2005, at http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2005/03/13/wsudan13.xml
[194] In May 2005, two staff members from Médecins sans Frontières (MSF) were arrested by the Sudanese government on charges of “crimes against the state” and publishing false reports. Two months earlier MSF had published a report, “The Crushing Burden of Rape: Sexual Violence in Darfur, Sudan,” which starkly described the prevalence of rape and sexual violence in Darfur: MSF had treated almost five hundred women and girls who had been raped in less than five months. Charges against the two MSF staff were dropped after considerable public outcry and diplomatic pressure, but other agencies privately complained of similar threats to their staff and programs. See the MSF report at http://www.msf.org/msfinternational/invoke.cfm?component=report&objectid=99CD9F41-E018-0C72-09C703FCC9098A2B&method=full_html
[195] Communication from individual present at the trial to Human Rights Watch, July 6, 2005.
[196] Ibid.
[197] Human Rights Watch interview with Sudanese lawyer, November 2005.
[198] “Darfur Rape Cases are Individual,” Sudan Tribune, October 24, 2005, at http://www.sudantribune.com/article.php3?id_article=12245
[199] “Sudan Reiterates Opposition to Try Darfur Suspects Before ICC,” Sudan Tribune, October 17, 2005, at http://www.sudantribune.com/article.php3?id_article=12116
[200] Human Rights Watch interview, location withheld, April 2005.
[201] Document on file with Human Rights Watch.

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