Armed Conflict in Darfur, West Sudan

The Darfur region of western Sudan has been in a state of internal armed conflict since February 2003. The conflict has led to the death of over 200,000 people, rape of women and girls and destruction of entire rural villages. The conflict has continued unabated with over two million people displaced internally, or to neighboring Chad, and close to three million war-affected receiving humanitarian assistance. In September 2004, against the backdrop of the Secretary-Generals call in the General Assembly for the restoration of the rule of law and peace in Darfur, the United Nations Development Programme with the International Rescue Committee initiated a pioneering programme to strengthen the rule of law and protection in Darfur. Acknowledging the complex roots of the conflict in Sudans western region of Darfur, the current phase took significant shape in late 2002, when two rebel groups, the Sudan Liberation Movement/Army (SLM/A) and the Justice and Equality Movement (EJM) began organizing themselves in opposition to the Khartoum government. Only loosely affiliated, though citing such common grievances as the marginalization of the Darfur population, the groups ramped up their military activities in early 2003, mainly attacking local police offices and looting Government property and weaponry. Since 2003 allegiances within and among the groups have shifted, and there are now more than a dozen splinter factions. A general delineation may be drawn between those groups which support the May 2006 Darfur Peace Agreement and those which do not. Nature of Violations A large number of serious violations of human rights have been documented over the last two decades, including extrajudicial killings, disappearances, arbitrary arrest and torture, and mass rape. Recently, these violations have taken place in different contexts, in particular: (i) the conflict in Darfur: As document by the UN, the ACHPR and a number of observers, this conflict has been characterized by systematic attacks on civilians by militias, often with the apparent support of the Government of Sudan, which included air bombardment, killings, various forms of ill treatment and rape. Emergency legislation and public order offences have also reportedly been used to arrest alleged rebels and others and arrests are often arbitrary and individuals ill-treated and tortured in custody. Moreover, there has been a campaign of mass rape against girls and women in Darfur. A UN Commission of Investigation held that it is likely that the violations it found amount to war crimes and crimes against humanity. The International Criminal Court, which is investigating the situation in Darfur following referral by the UN Security Council, has charged two individuals with crimes against humanity and war crimes. The Government of Sudan has established Special Courts to investigate prosecute and try crimes committed in Darfur but these courts have only heard a few cases and convicted a few individuals in relation to isolated incidents for crimes such as armed robbery and rape. A large number of victims are affected by these violations. In Darfur alone, over 200,000 persons are estimated to have been killed and more than 2, 2 million have been displaced. It is difficult to estimate the number of victims of other violations. Given that they are often of a collective nature, it is realistic that thousands of individuals have suffered a violation of their rights- a much larger number faces a potential violation of their rights without adequate protection. Accountability for serious human rights violations - Defining international crimes in Sudanese laws The Criminal Act does not criminalize the international crimes of genocide, crimes against humanity and war crimes. In November 2005, the jurisdiction of the Nyala Criminal Court for Darfurs Incidents was extended to cover: Action which constitutes crimes pursuant to the Sudanese Criminal Act, other penal laws and the international humanitarian law. This appears to allow the Special Court to try war crimes. It is less clear whether the amendment also covers genocide and crimes against humanity, which do not explicitly form part of international humanitarian law. There is no jurisprudence to date that might provide such clarification. In addition, the jurisdiction of the Nyala Criminal Court, though important, only covers one part of Sudan and not the entirety of the country. The recently enacted Sudanese Armed Forces Act includes international crimes. However, it only applies to the armed forces and the definition of the crimes fall short of internationally recognized standards. The definition of torture in Article 115 (2) of the Criminal Act is deficient. It does not criminalize acts of torture in line with the internationally recognized definition contained in article 1 of the UN Convention against Torture and carries inadequate punishments. It also fails to provide for the possibility of prosecuting anyone suspected of torture for acts of torture committed in a third country (in line with the obligation to extradite or prosecute). Sudanese criminal law also does not recognize the crime of enforced disappearances, which states are bound to prosecute and punish under international law. Other UN bodies have played an important role, in particular the UN Human Rights Council Groups of Experts that have developed a detailed list of recommendations with regard to the situation in Darfur, many of which concern criminal legislation that applies throughout Sudan, and have engaged with the Government on implementation. The UN Human Rights Committee has engaged with the Government of Sudan and civil society groups in the course of the consideration of Sudans state party report under the International Covenant on Civil and Political Rights in 2007. The Committee made a number of specific recommendations on legislative reforms, such as concerning immunity legislation, custodial safeguards, rape and apostasy, and called on Sudan to ensure that its legislation gives full effect to the rights recognized in the Covenant. The Committee requested the Government of Sudan to report on the follow-up to a number of these recommendations within one year. This is an important dialogue on various aspects of criminal law reform that may influence debates within Sudan. However, the impact of the Committees recommendation may be limited given the nature of follow-up procedures, which does not allow sustained and detailed engagement on the issues. The International Criminal Court has been vested with investigating the situation in Darfur. As part of the admissibility requirement, the ICC may only prosecute individuals if Sudan has been unable or unwilling to do so itself, a principle known as complementarity. In response, Sudan set up Special Courts in Darfur and vested the Courts with the power to prosecute and try crimes under international humanitarian law. However, following charges being brought against two Sudanese nationals in 2007, the Government of Sudan has stopped any cooperation with the ICC. The ICC investigation does therefore, at least to date, not provide for a framework that fosters debate and engagement on criminal law reform although, arguably, some of the recent changes in legislation, such as the recognition of international crimes in the Armed Forces Act, has been prompted by the ICC investigations.

Regional and international bodies work on a plethora of issues in Sudan, with the main focus on the situation in Darfur. Immediate concerns over human rights violations and how to ensure protection have arguably been detrimental to a more concerted effort that would focus on putting in place a legal framework best suited to protect human rights and ensure accountability. UNMIS, UNDP and UNAMID can all play a stronger role on the ground in supporting civil society engagement in criminal law reform and in advancing key issues relating to the recognition of rights. Regional bodies, such as the African Union and the European Union, as well as the various UN bodies seized with the situation in Sudan could arguably develop a stronger focus on the need for legal reforms as a means to strengthen the rule of law and ensure human rights protection. XXX XXX XXX XXX XXX XXX

Acting under Chapter VII of the United Nations Charter, on 18 September 2004 the Security Council adopted resolution 1564 requesting, inter alia, that the Secretary-General rapidly establish an international commission of inquiry in order immediately to investigate reports of violations of international humanitarian law and human rights law in Darfur to fulfill four key tasks: (1) to investigate reports of violations of international humanitarian law and human rights law in Darfur by all parties; (2) to determine whether or not acts of genocide have occurred; (3) to identify the perpetrators of violations of international humanitarian law and human rights law in Darfur; and (4) to suggest means of ensuring that those responsible for such violations are held accountable. Have acts of genocide occurred?

The Commission concluded that the Government of the Sudan has not pursued a policy of genocide. Arguably, two elements of genocide might be deduced from the gross violations of human rights perpetrated by Government forces and the militias under their control. These two elements are, first, the actus reus consisting of killing, or causing serious bodily or mental harm, or deliberately inflicting conditions of life likely to bring about physical destruction; and, second, on the basis of a subjective standard, the existence of a protected group being targeted by the authors of criminal conduct. However, the crucial element of genocidal intent appears to be missing, at least as far as the central Government authorities are concerned. Generally speaking the policy of attacking, killing and forcibly displacing members of some tribes does not evince a specific intent to annihilate, in whole or in part, a group distinguished on racial, ethnic, national or religious grounds. Rather, it would seem that those who planned and organized attacks on villages pursued the intent to drive the victims from their homes, primarily for purposes of counter-insurgency warfare. The Commission does recognise that in some instances individuals, including Government officials, may commit acts with genocidal intent. Whether this was the case in Darfur, however, is a determination that only a competent court can make on a case by case basis. The conclusion that no genocidal policy has been pursued and implemented in Darfur by the Government authorities, directly or through the militias under their control, should not be taken in any way as detracting from the gravity of the crimes perpetrated in that region. 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. Accountability mechanisms

The Commission strongly recommends that the Security Council immediately refer the situation of Darfur to the International Criminal Court, pursuant to article 13(b) of the ICC Statute. As repeatedly stated by the Security Council, the situation constitutes a threat to international peace and security. Moreover, as the Commission has confirmed, serious violations of international human rights law and humanitarian law by all parties are continuing. The prosecution by the ICC of persons allegedly responsible for the most serious crimes in Darfur would contribute to the restoration of peace in the region. The alleged crimes that have been documented in Darfur meet the thresholds of the Rome Statute as defined in articles 7 (1), 8 (1) and 8 (f). There is an internal armed conflict in Darfur between the governmental authorities and organized armed groups. A body of reliable information indicates that war crimes may have been committed on a large-scale, at times even as part of a plan or a policy. There is also a wealth of credible material which suggests that criminal acts were committed as part of widespread or systematic attacks directed against the civilian population, with knowledge of the attacks. In the opinion of the Commission therefore, these may amount to crimes against humanity. The Sudanese justice system is unable and unwilling to address the situation in Darfur. This system has been significantly weakened during the last decade. Restrictive laws that grant broad powers to the executive have undermined the effectiveness of the judiciary, and many of the laws in force in Sudan today contravene basic human rights standards. Sudanese criminal laws do not adequately proscribe war crimes and crimes against humanity, such as those carried out in Darfur, and the Criminal Procedure Code contains provisions that prevent the effective prosecution of these acts