Sudan’s Obligation to Prevent, Investigate and Punish Sexual ViolenceSudan is bound by international humanitarian law (the laws of war) and by international human rights law. Both bodies of law prohibit acts of sexual violence. International humanitarian law, largely derived from the Geneva Conventions and customary international law, sets out protections for civilians and other non-combatants during armed conflicts. It prohibits both states and non-state armed groups from committing rape and other forms of sexual violence.108 International human rights law binding on Sudan also contains protections from rape and sexual assault as forms of torture and other ill-treatment, and as discrimination based on sex.109 Sudan is not party to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).110 International human rights law also enshrines the right to an effective remedy. A victim’s right to an effective remedy obligates the state to prevent, investigate, and punish serious human rights violations.111 States must also provide reparations to victims of human rights violations. Among various reparations mechanisms, states should restore the right violated and provide compensation for damages.112 The UN has reaffirmed these principles specifically in relation to eliminating violence against women.113 In addition to its obligations under international law, Sudan also has a duty under its own laws to prevent and punish acts of sexual violence. The Interim National Constitution, adopted in 2005, contains a bill of rights that affirms personal liberties, rights of women, freedom from torture, and provides for the right to effective remedies.114 Sudan has failed to protect women and girls from sexual violence and provide redress to them. It has not taken meaningful action to prevent state actors (police, military, and other security forces personnel) or non-state armed groups from perpetrating sexual violence across Darfur. Nor has it provided effective remedies to the vast majority of victims of sexual violence although its courts are capable of prosecuting individual acts of sexual violence under the Criminal Act of 1991. When crimes of sexual violence are committed as part of armed conflict, they can be prosecuted as war crimes.115 States have an obligation to investigate alleged war crimes committed by their nationals, including members of their armed forces, and prosecute those responsible.116 Non-state armed groups also have an obligation to prevent sexual violence and should investigate and appropriately punish perpetrators.117 In addition to being war crimes, sexual violence crimes can also be crimes against humanity and even acts of genocide.118 The UN International Commission of Inquiry into Darfur concluded that rapes occurred during widespread and systematic attacks on civilians, and could be prosecuted as crimes against humanity.119 On March 31, 2005, the Security Council referred the situation in Darfur to the International Criminal Court (ICC), which has jurisdiction over war crimes, crimes against humanity, and genocide. A case is admissible before the court when a state is “unwilling or unable genuinely to carry out that investigation or prosecution.” In warrants of arrest issued against a Sudanese official and a Janjaweed leader on April 27, 2007, the ICC’s Pre-Trial Chamber included counts of rape among the 51 counts of war crimes and crimes against humanity against the accused for their leading roles in a series of attacks against civilians in West Darfur in 2003 and 2004.120 To date, Sudan has refused to execute the warrants. Sudan’s failure to address these crimes in domestic courts underscores the necessity of ICC prosecution in order to bring justice to victims of sexual violence in Darfur. 108 See article 3 common to the four Geneva Conventions of 1949, which implicitly prohibits rape and other sexual violence during internal armed conflicts as forms of cruel treatment, torture and outrages upon personal dignity. The Rome Statute of the International Criminal Court, article 8(2)(e)(vi), and the Second Additional Protocol of 1977 to the Geneva Conventions in article 4(2)(e), which applies to Sudan during internal armed conflicts, explicitly prohibits rape and “any form of indecent assault.” 109 The International Covenant on Civil and Political Rights (ICCPR) prohibits torture and other cruel, inhuman or degrading treatment (art. 7) and protects women’s rights to be free from discrimination based on sex (arts. 2(1) and 26). Sudan acceded to the ICCPR in 1986. See also, Convention on the Rights of the Child, G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force Sept. 2, 1990 (ratified by Sudan in 1990), articles 2, 37 and 43; and African [Banjul] Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, entered into force Oct. 21, 1986 (ratified by Sudan in 1981), articles 2, 5 and 18(3). 110 The CEDAW Committee has enumerated a wide range of obligations for states related to ending sexual violence, including ensuring appropriate treatment for victims in the justice system, counseling and support services, and medical and psychological assistance to victims. Committee on the Elimination of All Forms of Discrimination Against Women, "Violence Against Women," General Recommendation No. 19 (eleventh session, 1992), U.N. Document CEDAW/C/1992/L.1/Add.15. 111 See Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004) , para. 15, (“States Parties must ensure that individuals also have accessible and effective remedies to vindicate those rights,“ protected by the ICCPR). See also Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity (“Impunity Principles”), U.N. Doc. E/CN.4/2005/102/Add.1, February 8, 2005, adopted by the UN Commission on Human Rights in Resolution E/CN.4/2005/81, April 15, 2005, principle I; Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (“Reparations Principles”), adopted December 16, 2005, G.A. res. 60/147, U.N. Doc. A/RES/60/147 (2005), principle 11. 112 According to the Human Rights Committee, the ICCPR “requires that States Parties make reparation to individuals whose Covenant rights have been violated. Without reparation to individuals whose Covenant rights have been violated, the obligation to provide an effective remedy, which is central to the efficacy of [enforcing the ICCPR] is not discharged. … [T]he Covenant generally entails appropriate compensation.” Human Rights Committee, General Comment 31, para. 16. Compensation covers material losses, such as medical expenses and the loss of earnings, as well as economically assessable moral damage, such as pain and suffering. See Reparations Principles, principle 20. 113 United Nations General Assembly, "Declaration on the Elimination of Violence against Women," A/RES/48/104, December 20, 1993 (issued on February 23, 1994). 114 Interim National Constitution of the Republic of the Sudan, adopted July 10, 2005. 115 See ICRC, Customary International Humanitarian Law, pp. 591-93. 116 Ibid., pp. 607-10. 117 Ibid., pp. 536.1. 118 See Rome Statute of the ICC, articles 6 and 7(1)(g). 119 UN International Commission of Inquiry, para. 360. 120 International Criminal Court, Pre-trial Chamber I, Decision on the Prosecution Application Under 58(7) of the Statute, ICC-02/05-01/07, April 27, 2008, Counts 10, 13,14,42,43, http://www.icc-cpi.int/library/cases/ICC-02-05-01-07-1_English.pdf (accessed February 29, 2008). |