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A Comprehensive Overview of Sudan's Legal Framework in Light

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A Comprehensive Overview of Sudan's Legal Framework in Light OCCASIONAL PAPER 3 A Comprehensive Overview of Sudan’s Legal Framework in Light of the Darfur Crisis Maude Fournier, L.L. B. CONTENTS About the Author 2 Summary 3 Introduction 4 Relevant Applicable International Law 4 Relevant Applicable National Law 6 Judiciary System 8 Conclusion 10 Endnotes 11 Bibliography 15 Legal Sources 16 About the Author Maude Fournier joined the Pearson Peacekeeping Centre (PPC) in May 2007. During her involvement with the PPC she worked on a variety of projects, one of which brought her to Mali in the fall of 2007 where she assisted in the delivery of a Disarmament, Demobilisation and Reintegration course for African peace- keepers. Prior to joining the PPC, Ms Fournier was involved with the Club des relations internationales de Montréal and has traveled to many places such as Nicaragua, Australia, and Western Europe. She is fluent in both French and English, has studied Spanish, and maintains her long term involvement as an Amnesty International volunteer. After completing her degree in civil law at the Université de Montréal, as well as her Québec Bar School Examinations, she is pursuing her graduate studies in the fall of 2008, at the Academy for International Humanitarian and Human Rights Law in Geneva, Switzerland. A Pearson Peacekeeping Centre Occasional Paper ©2008, Pearson Peacekeeping Centre, requests for permission to reproduce any part of this paper should be directed to the PPC at [email protected]. Messages, comments or questions for the author may be sent to the PPC at [email protected]. Material and opinions contained herein are solely those of the author and do not necessarily represent in whole or part those of the Pearson Peacekeeping Centre. Published by the Canadian Peacekeeping Press of Pearson Peacekeeping Centre. Financial support provided by the Government of Canada. HCI Building #37, Suite 5110 Tel: 1-613-520-5617 1125 Colonel By Drive www.peaceoperations.org Ottawa ON K1S 5B6 [email protected] A Comprehensive Overview of Sudan’s Legal Framework in Light of the Darfur Crisis Summary This paper will attempt to clarify Sudan’s legal framework, both at the international and national level, in an effort to understand how it influences and impacts current developments in Darfur. Sudan’s legal framework derives from an amalgamation of British, Muslim, and African influences, which results in a lack of predict- ability in the law and seems to leave great room for discretionary decisions. While the Government of Sudan (GoS) attempts to balance Islamic-influenced and human rights principles, Sudan’s national law falls short of respecting its international human rights obligations. Moreover, the conflict in Darfur renders an already complicated judicial system highly inadequate. Sudanese criminal law serves as a good example to demon- strate how both legislation and the judiciary fail to provide for its population. Occasional Paper 3 3 A Comprehensive Overview of Sudan’s Legal Framework in Light of the Darfur Crisis Introduction Sudan is the largest country in Africa and it is characterized by numerous ethnic groups, speaking different dialects, having different faiths, and originating from different socio-economic backgrounds. The disparity in the Sudanese population has been the root cause of many conflicts since the country gained its indepen- dence from Great Britain in 1956.1 These conflicts have opposed many groups such as Muslim-Christian, Arab- African, nomad-sedentary, etc., as they have laid the ground to Sudan’s development in all its forms, whether economic, social or legal.2 The rule of law has not escaped from the consequences of continuous conflicts. While laws are present, they prove to be incoherent at times, and their implementation remains a challenge. In substance, the Sudanese legal system is a melting pot of remedial British legacy, Arab-dominated government, tribal-specific tradi- tions, military-dependent power, and complex regional and international influence. Still today, Sudanese legislation remains unstable as decrees are issued on a regular basis, overruling laws. Furthermore, legal texts are scarce and extremely difficult to find.3 Consequently, establishing Sudan’s legal framework constitutes, in many ways, a challenge that this report modestly attempts to overcome. In light of the ongoing United Nations – African Union Mission in Darfur (UNAMID) operating in the Darfur region of Sudan, and of the alarming situation regarding gender-based violence, this report will focus on relevant legal texts and judicial institutions, at both international and national levels. Relevant Applicable International Law A state is bound by ratified treaties, customary and jurisprudential law. It is unnecessary to proceed to an in-depth analysis of all customary and jurisprudential principles applicable to the Sudan, as they are broad and numerous. However, the country has accepted to commit to the respect of certain legal obligations that are pertinent to the current situation, and remains responsible for their violation. In order to comprehend the scope of the Government of the Sudan’s (GoS) responsibility toward its population, it is necessary to under- stand the sources of these commitments. Sudan has ratified treaties such as the International Covenant on Civil and Political Rights (ICCPR).5 It is an agreement to the respect and promotion of individual human rights, which all members of the United Nations should strive to defend. Among others, the agreement guarantees the rights to life, freedom of opinion, and the abolition of slavery. However, section of the Covenant foresees the possible derogation of these rights in situations of ‘public emergency,’6 with the exception of the peremptory jus cogens norms, rights that cannot legitimately be violated, under any circumstances such as the ‘right of life.’ Whether or not the current ‘state of emergency’ proclaimed by the GoS constitutes a ‘public emergency,’ is a matter that will be discussed later. The permitted freedom of opinion, as guaranteed by the GoS, has been greatly criticized by many non-gov- ernmental organisations (NGOs) on the ground.7 They deplore the media monopoly and constant surveil- lance as well as threat of detention for journalists.8 Many interrogations and arrests have also been reported by NGOs in the past year, a situation which translates into a perceived lack of transparence. Sudan has also ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR).9 It is an agreement to the respect and promotion of collective rights, such as labour rights, education, democracy and healthcare. It is meant to be a common goal that guides development, and requires individual UN member states to report on the matter to the UN General Assembly. Occasional Paper 3 A Comprehensive Overview of Sudan’s Legal Framework in Light of the Darfur Crisis The International Convention on the Elimination of All Forms or Racial Discrimination (ICERD)10 is another instrument, ratified by the Sudan. While it strives to ensure people’s equality before the law, the text does not address gender inequalities. A subsequent international convention was created to rectify the situation.11 However, the Sudan has not yet ratified it and it is questionable whether or not it plans to do so. Women’s rights are thus only protected by national legislation, which makes them vulnerable to interpretation based on Islamic tradition. The Convention on the Rights of the Child (CRC)12 was also ratified, but its implementation is questionable as children under the age of 18 are still being trialed and sentenced to what international law, and more specifi- cally the CRC, considers to be ‘cruel, inhuman and degrading punishment.’ For example, there are still reports of children being sentenced to lashes and even death.13 The Geneva Conventions, codified customary law, were also ratified by the Sudan without any reserva- tions.1 Both Additional Protocols referring to international armed conflict and non international armed conflicts have also been ratified without any reservation. However, their implementation remains to be dem- onstrated as many organisations report violations on a daily basis. President Al Bashir has repetitively addressed the current situation as being under the government’s control, and underlining the non international nature of the Darfur crisis.15 Also, the Al-Bashir regime denies any refer- ence to ‘genocide’ to describe the crisis, as this could open the gates to international involvement under the responsibility to protect.16 However, these legal concerns are widely debated and their intricacy will not be fully discussed in this report, as they call upon very different considerations. Unfortunately, these instruments are commonly violated by the GoS. For example, the displacement of peo- ple in areas where they lack the basic necessities is a clear infringement to the ‘right of life.’17 Such displace- ment does not respect the basic standard of living, protected under the ICESCR.18 These examples, along with many others can be reported directly from individuals to the African Commission on Human and Peoples’ Rights, since Sudan is part of the African Union.19 However, the availability of such a process is not widely known and not a priority for internally displaced people. This brief overview of ratified international instruments is helpful in determining part of Sudan’s legal frame- work. However, perhaps more telling is Sudan’s refusal to adhere to certain conventions. For instance, a great concern of the international community is the absence of recognition of the International Criminal Court (ICC). The GoS has not signed the Rome Statute,20 thus denying the ICC’s competence in Sudan. However, as more than half of the world’s nations recognize the institution’s jurisdiction,21 and following the Security Council’s referral of the situation in Darfur, under Resolution 1593, to the ICC and urging the country to cooperate,22 the Sudan has been politically and diplomatically pressured into recognizing the court.
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