In response to the “Call for Submissions” issued by the UN Independent International Fact-Finding Mission for the Sudan (UN FFM Sudan), Human Rights Watch submits the following suggested recommendations on accountability efforts to advance justice for serious international crimes committed throughout Sudan by the Sudanese Armed Forces (SAF), the Rapid Support Forces (RSF), and their respective allies, operating within a context of complete impunity.
The following includes recommendations to be made to relevant actors, as well as potential steps to build medium and long-term justice strategies and concrete accountability efforts for Sudan.
As a general principle, all accountability efforts should center Sudanese voices, including survivors, victims, and civil society.
I. On the Creation of a Core International Justice Coalition for Sudan
Call on UN member states to establish a cross-regional, political coalition to advance accountability efforts for Sudan. Through a coalition, UN member states, including the Group of African States at the UN, could ensure justice remains a key point in any discussions and initiatives on Sudan, and engage with the RSF, the SAF and other Sudanese authorities, Sudanese and international civil society, and other stakeholders and partners in advancing justice efforts. The coalition could work to carry out the following initiatives:
- Mainstream discussions of accountability for serious crimes in Sudan into other existing regional and international fora, for example, the European Union-African Union Summit, UN Security Council and General Assembly sessions, the African Union Summit, and the African Union Peace and Security sessions.
- Ensure adequate resources for accountability processes, including at the International Criminal Court (ICC), the UN, and the AU, and for human rights groups in the international justice movement.
- Follow up and secure implementation of the UN FFM Sudan’s recommendations and other stepped-up justice responses, including through speaking at the highest levels of government to the need for focused efforts on accountability.
This group of states could pursue other concrete steps toward comprehensive accountability, in the immediate and long term, in line with the recommendations in this document. Although long-term accountability efforts may take more time to realize, states should initiate such efforts immediately, in tandem with short and medium-term efforts, to prepare adequately for a comprehensive justice framework for Sudan before and after the armed conflict ends in the country.
A core international justice coalition for Sudan or any other state-led effort could include and prioritize justice and accountability goals in all peace and political transitions negotiations at the highest levels and work to ensure amnesty or other impunity-conferring provisions for alleged perpetrators of international crimes are not included in any peace negotiations or agreement for Sudan.
The coalition could consult meaningfully with Sudanese civil society, victims, survivors, and their representatives in all initiatives to advance accountability for Sudan and ensure their voices are centered in discussions and decisions on how to best prepare for a post-conflict Sudan that prioritizes justice and accountability.
II. On Support for the International Criminal Court
The following are recommendations that could be made to relevant actors to support the work of the ICC to maximize its potential to fulfil its mandate successfully:
To the Government of Sudan:
- Fully cooperate with the ICC to advance its investigations in Darfur, including through:
- Immediately surrendering former Sudanese president, Omar al-Bashir, and former defense minister, Abdelraheem Hussein, wanted by the ICC on charges of crimes against humanity and war crimes, and when it comes to al-Bashir, also charged on genocide. Both are currently in Sudanese custody.
- Immediately locating, arresting, and surrendering former Sudanese minister of State for the Interior and former governor of South Kordofan, Ahmed Harun, wanted by the ICC on charges of crimes against humanity and war crimes, whose possible location and activities have been the subject of multiple recent media reports.
- Granting the ICC Office of the Prosecutor’s investigation team and other court staff full and unfettered access to all territory under their control in Sudan.
- Make a retrospective ad hoc declaration under article 12(3) of the Rome Statute accepting the ICC’s jurisdiction over the entire territory of Sudan so the court can expand its ongoing investigation of international crimes in Darfur to investigate and prosecute crimes across the country, which it is currently unable to do given the limitations of the 2005 UN Security Council referral of the situation in Darfur to the ICC.
- Accede to the Rome Statute to become a state party to the ICC.
To the RSF:
- Fully cooperate with the ICC to advance its investigations in Darfur, including through granting the ICC Office of the Prosecutor’s investigation team and other court staff full and unimpeded access to territory under their control in Sudan.
To ICC State Parties and Other Justice-Supporting States:
- Ensure that the ICC has adequate funding in its regular budget to allow for the robust, timely execution of its mandate across all situations under investigation, including in Darfur.
- Support and protect the ICC as an independent and impartial judicial institution and support and protect its officials and those cooperating with it from any political interference and pressure. If unchecked, coercive measures against the court, its officials, and others supporting justice before the court will undermine international accountability for the worst crimes and deprive Sudanese victims, along with victims around the globe, of justice. Therefore, this commitment should include taking concrete steps to protect the court’s essential work from sanctions by enacting blocking statutes and other similar efforts.
- Use public and private diplomacy with Sudan’s warring parties to bring about robust and expeditious cooperation with the ICC, including surrendering fugitives, and providing access and support to ICC officials.
- Call on the government of Sudan to accept the ICC’s jurisdiction across the country, and on the UN Security Council to fully support the ICC’s work (see below).
To the UN Security Council:
- Reinforce their support for the ICC’s mandate in Darfur, including by enforcing the court’s findings of noncooperation and securing cooperation by Sudan’s warring parties.
- Expand the jurisdiction of the ICC’s Office of the Prosecutor to cover investigations of international crimes committed across the entire territory of Sudan, in line with Chapter VII of the UN Charter and article 13(b) of the Rome Statute, as the forum most capable of effectively prosecuting those bearing the greatest responsibility for rights abuses, and which can act as a critical reference point for the domestic system over the long-term.
III. On Evidence Preservation, Documentation, and Investigation of International Crimes in Sudan
To the parties to the conflict:
- Cooperate fully with independent international and regional investigations into international crimes, including the UN FFM Sudan and the African Commission for Human and Peoples’ Rights-mandated Joint Fact-Finding Mission to the Republic of Sudan (ACHPR Joint FFM), allowing full and unfettered access to territories under their control in Sudan.
To neighboring countries:
- Cooperate with other independent international and regional investigations into international crimes committed in Sudan, including the UN FFM Sudan and the ACHPR Joint FFM, allow access and provide support to their investigators.
To the African Union, the United Nations, the European Union, and their Member States:
- Support the regional and international investigative mechanisms and missions, such as the UN FFM Sudan and the ACHPR Joint FFM, to ensure they have the necessary political and financial resources to carry out their mandates, as well engaging in diplomatic efforts to ensure immediate and unfettered access to Sudan and neighboring countries.
- Increase significantly financial and technical support to civil society organizations to document human rights abuses and violations. This includes urgently filling the gap created by funding cuts by the United States government toward civil society organizations in Sudan—leading to the halting of programs providing support to human rights defenders in grave danger due to their human rights work, as well as programs that support efforts to document rights abuses— and using public and private diplomacy to condemn the warring parties’ targeting of human rights defenders and lawyers because of their role in documenting human rights abuses.
IV. On National Proceedings under Universal Jurisdiction and Other Extraterritorial Jurisdictions
To all governments:
- Investigate and, as appropriate, effectively prosecute individuals suspected of committing serious crimes in Sudan through the principle of universal jurisdiction and in accordance with national laws.
- Ensure cooperation between the relevant national jurisdictions and other domestic, regional, and international investigative efforts, including the UN FFM Sudan, the ACHPR Joint FFM, and the ICC.
- Commit to strengthening national legal frameworks and providing the necessary political will to allow domestic judicial authorities to independently and fairly investigate and prosecute alleged perpetrators of international crimes in Sudan, especially in those countries where authorities have knowledge of the physical presence of alleged perpetrators on their territory.
V. On a Specialized International Judicial Mechanism for Sudan (Hybrid/Internationalized Tribunal)
To the United Nations, the African Union, and their Member States:
- Explore together with representatives of Sudanese and international civil society and seriously consider the political, financial, and technical support needed to work toward the establishment of a special international judicial mechanism to investigate and prosecute international crimes in relation to Sudan, including through drawing best practices and lessons learned from similar judicial mechanisms. Such a mechanism could:
- Work in tandem and complementarity with the ICC.
- Either take the form of an ad hoc internationalized tribunal, a hybrid of mixed national-international tribunal, or an internationalized court or criminal chamber setting within the national Sudanese system, mostly in a post-conflict Sudan environment.
VI. On Reparations for Serious Violations of Human Rights and International Humanitarian Law
To the African Union, the United Nations and their Member States:
- Act on the UN FFM Sudan’s prior call to establish a dedicated entity to address the immediate needs of victims, survivors, and communities affected by rights abuses, including those committed during the Sudan armed conflict.
- Consider proposals put forward by civil society to include as part of such an entity a trust fund capable of delivering interim compensation and immediate assistance, and ensuring that these victims, survivors, and affected communities are supported as full participants in current and future justice and accountability processes.
