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Sudan: Interaction Between International and National Judicial Responses to the Mass Atrocities in Darfur

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Sudan: Interaction Between International and National Judicial Responses to the Mass Atrocities in Darfur SUDAN: INTERACTION BETWEEN INTERNATIONAL AND NATIONAL JUDICIAL RESPONSES TO THE MASS ATROCITIES IN DARFUR BY SIGALL HOROVITZ DOMAC/19, APRIL 2013 ABOUT DOMAC THE DOMAC PROJECT focuses on the actual interaction between national and international courts involved in prosecuting individuals in mass atrocity situations. It explores what impact international procedures have on prosecution rates before national courts, their sentencing policies, award of reparations and procedural legal standards. It comprehensively examines the problems presented by the limited response of the international community to mass atrocity situations, and offers methods to improve coordination of national and international proceedings and better utilization of national courts, inter alia, through greater formal and informal avenues of cooperation, interaction and resource sharing between national and international courts. THE DOMAC PROJECT is a research program funded under the Seventh Framework Programme for EU Research (FP7) under grant agreement no. 217589. The DOMAC project is funded under the Socio-economic sciences and Humanities Programme for the duration of three years starting 1st February 2008. THE DOMAC PARTNERS are Hebrew University, Reykjavik University, University College London, University of Amsterdam, and University of Westminster. ABOUT THE AUTHOR Sigall Horovitz is a PhD candidate at Faculty of Law of the Hebrew University of Jerusalem. She holds an LL.M. from Columbia University (2003). Ms. Horovitz worked as a Legal Officer at the United Nations International Criminal Tribunal for Rwanda, during 2005-2008. She also served with the Office of the Prosecution in the Special Court for Sierra Leone, in 2003-2004 and in 2010. ACKNOWLEDGEMENTS The author would like to thank the interviewees and the anonymous reviewer for their valuable input. This paper represents not the collective views of the DOMAC Project, but only the views of its author. © 2013 Sigall Horovitz Published by DOMAC Reykjavik University Menntavegi 1, 101 Reykjavik Iceland 1 DOMAC/19: Sudan EXECUTIVE SUMMARY Hundreds of thousands of civilians lost their lives and millions were displaced as a result of the armed conflict in the Darfur region of Sudan, fought between the Sudanese government and its allied “Janjaweed” militia on the one hand, and rebel groups on the other hand. At the time of writing, hostilities are ongoing and civilians continue to suffer from atrocities, after various attempts to end the conflict have failed. In March 2005, the UN Security Council referred the Darfur situation to the International Criminal Court (ICC), pursuant to the recommendation of the UN-appointed International Commission of Inquiry on Darfur. Four Sudanese officials were thus far charged by the ICC for atrocities committed in Darfur, including Sudan’s President Omar Al-Bashir, who was charged with genocide. The ICC also charged three Darfuri rebel leaders for attacking peacekeepers in Darfur, and they appeared before the ICC voluntarily. However, the four Sudanese officials who were charged are at large. Sudan has consistently refused to surrender them or otherwise cooperate with the ICC. Moreover, Sudanese national courts have not been prosecuting the Darfur atrocities. Thus, no one has been held accountable for the mass atrocities committed against the Darfuri population. This report posits that, given the limited capacity of international courts in terms of the number of perpetrators they can prosecute, an effective fight against impunity requires the international community to adopt a comprehensive approach which promotes the utilization of international and national accountability processes in parallel. However, such a comprehensive approach is difficult to contemplate in cases such as Darfur, where the relevant state authorities fiercely resist the establishment of any form of accountability for the atrocities. What we can and should hope for, in such cases, is that the international judicial involvement will eventually encourage (fair and ge nuine) national procedures that address the atrocities in parallel to the international process. Assessing whether and to what extent this happened in the Darfur case is the object of this report. To identify ICC impact on judicial developments in Sudan, the author analyzed various legal and other documents, and conducted in-depth interviews with five ICC officials and three UN judicial officials who worked on legal matters in Darfur between 2004 and 2009. 2 DOMAC/19: Sudan TABLE OF CONTENTS Executive Summary ........................................................................................................................1 Table of Contents ............................................................................................................................2 List of abbreviations ........................................................................................................................3 1. Introduction ………………………………………………………………………………...4 1.1 Object of Report ………………………………………………………………………...5 1.2 Structure and Methodology ………………………………………………………...6 2. Country Background ………………………………………………………………………...7 2.1 General ………………………………………………………………………………...7 2.2 Political and Legal Systems ……………………………………………………...…9 3. Conflict Background ……………………………………………………………………….10 3.1 The Conflict in Darfur ……………………………………………………………….10 3.2 The Mass Atrocities ……………………………………………………………….11 4. Conditions for Prosecutions in Sudan ..…..……………………………………….13 4.1 Legal Capacity to Prosecute the Atrocities ……..………………..………………….13 4.2 Political Will to Prosecute the Atrocities ……………………………………….19 5. National Judicial Response to the Atrocities ……………………………………….20 6. International Judicial Response to the Atrocities: ICC ……………………………….24 6.1 ICC Background ……………………………………………………………………….24 6.2 ICC Case Concerning Sudan .....…………………………………………………….25 7. ICC – Sudan Relations ……………………………………………………….27 7.1 Sudan’s Non-Cooperation with the ICC ...….……………………….……………… 27 7.2 Third Parties’ Influence on ICC-Sudan relations ………………………………….30 8. ICC’s Impact on Sudan’s Judicial Response to the Atrocities ……………………….33 8.1 Impact on National Prosecution Rates and Trends .…………………………..….34 8.2 Normative Impact ..………………………………………………………………..….39 8.3 Impact on Domestic Sentencing Practices ..……………….……..…………...….40 8.4 Capacity Building Impact ...……....……..…………………………………………...41 9. Conclusion and Recommendations ……………………………………………….42 3 DOMAC/19: Sudan LIST OF ABBREVIATIONS AFA ……………………………………………………………………….….. Armed Forces Act AU ……………………………………………………………………….………… African Union AUPD ………………………………………………….……… AU High-Level Panel on Darfur CPA ……………………………………… North/South Comprehensive Peace Agreement DPA …………………….…………………………………………... Darfur Peace Agreement HRW …………………………………………………………………… Human Rights Watch ICC …………………………………………………………… International Criminal Court ICID ……………………………………….…. International Commission of Inquiry on Darfur JEM ………………………………………………………… Justice and Equality Movement NCP …………………….…………………………………….……… National Congress Party OTP ………………………………………………… The Office of the Prosecutor of the ICC SCCED …………………………………….. Special Criminal Court for Events in Darfur SLA ……………………………………………………………….. Sudan Liberation Army SPLM ………………………………………………… Sudan People’s Liberation Movement URF …………………………………………………………………… United Resistance Front UN ……………………………………………………………………………... United Nations UNAMID ………………………………….. United Nations African Union Mission in Darfur 4 DOMAC/19: Sudan 1. INTRODUCTION Hundreds of thousands of civilians lost their lives and millions were displaced as a result of the armed conflict in Darfur, a region in western Sudan. The conflict broke out in 2003, between the Sudanese government and its allied “Janjaweed” militias, on the one hand, and two Darfuri rebel groups, the Sudan Liberation Army (SLA) and the Justice and Equality Movement (JEM), on the other hand. 1 International pressure led to various peace negotiations, but with little success. At the time of writing, hostilities are ongoing and civilians continue to suffer from atrocities. In October 2004, the United Nations (UN) appointed an International Commission of Inquiry on Darfur (ICID) to investigate the atrocities and suggest means to hold the perpetrators accountable. 2 The ICID investigation revealed that serious atrocities, including crimes against humanity, were committed in Darfur by members of the Sudanese government and Janjaweed militias.3 The ICID also concluded that Darfuri rebels committed crimes against civilians which may amount to war crimes. 4 It recommended that the UN Security Council refer the situation in Darfur to the International Criminal Court (ICC or Court) in The Hague. 5 In March 2005, the UN Security Council referred the situation to the ICC through its Resolution 1593.6 At the time of writing, the ICC has charged seven individuals for atrocities committed in Darfur, four of them are Sudanese officials and three are Darfuri rebel leaders. The officials include: Sudan’s President Omar Al-Bashir, the first sitting head of state to be charged by the ICC; Sudanese Governor Ahmed Harun; Janjaweed militia leader Ali Kushayb; and Defence Minister Abdel Raheem Muhammad Hussein. The latter three were charged with crimes against humanity and war crimes, and Al-Bashir 1 “Darfur: The Quest for Peace, Justice and Reconciliation”, Report of the African Union High-Level Panel on Darfur (AUPD), 29 October 2009, available at <http://www.universaljurisdiction.org/images/reports/sudan/UJ-AUDP- Final_report_on_Darfur.pdf>
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