Box 5925, Annapolis, MD 21403 info@srintl.org www.srintl.org
The
Sudan: A Prominent Case for the International Criminal Court
Introduction
Survivors'
Rights International (SRI) joins the growing body of international
organizations and individuals advocating to prosecute Sudan before the newly
established International Criminal Court (ICC). (See “An
International Tribunal for Sudan Should Be Established”) Accountability is necessary via an independent and
impartial justice mechanism, such as the ICC, for the attainment of a just and
lasting peace and to ensure a continued cessation to hostilities of consistent
and egregious violations of international humanitarian law committed by parties
to the conflict, particularly the Sudanese government, the National Islamist
Front (NIF). The level and past escalation of
atrocities that have been committed by the NIH on civilians (noncombatants)
demonstrate the need for an independent judicial procedure to be developed to
address acts of genocide, crimes against humanity, and war crimes perpetrated
in Sudan.
Today,
the Sudanese government[1]
is in grave violation of the Convention on the Prevention and Punishment of
Genocide; Crimes Against Humanity under customary international law and as
defined in the Statutes of the International Military Tribunal at Nuremberg,
the International Tribunal for the Far East, the International Criminal
Tribunal for the Former Yugoslavia, the International Criminal Tribunal for
Rwanda, and the International Criminal Court; and Common Article 3 of Protocol
II of the Geneva Conventions Governing the Rules and Conduct of War.
In the past, grave
breaches of international law such as genocide have previously prompted the UN
Security Council to intervene to halt atrocities and violations of fundamental
norms of international law in several conflicts: the former Yugoslavia, Rwanda,
East Timor, and Iraq to name a few.
(The number of deaths as a result of the war in Sudan surpasses all of
these conflicts combined.)
Similarly, under Chapter VII authority, the Security Council has
authorized international criminal tribunals to be formed. The establishment of the Nuremberg
Tribunal and the Tokyo Tribunal following World War II, and more recently, the
International Criminal Tribunal for the Former Yugoslavia, the International
Criminal Tribunal for Rwanda, and the emerging hybrid tribunal for Sierra Leone
set the precedent for the establishment of an international tribunal for Sudan
to prosecute grave breaches of international humanitarian law. In addition, section 11 of the Sudan
Peace Act (H.R. 2052) contains provisions that direct the U.S. Department of
State to investigate war crimes.
(See “The
Need for a Strong and Effective Sudan Peace Act”; and “SRI
Hails Congress and the Bush Administration for Passage of the Sudan Peace Act
and its Separate Mandate to Investigate Genocide, Crimes Against Humanity and
War Crimes by all Parties to the Conflict”)
International
Criminal Court (ICC)
Recently,
there has been talk of referring the case of Sudan to the ICC through the
Security Council. If this is done,
Sudan will be the first case to be tried by a permanent international court of
justice.
With
the adoption of the Rome Statute on July 17, 1998, the international community
created the world's first independent and permanent International Criminal
Court and its jurisdiction commenced on July 1, 2002. The ICC is able to
investigate and prosecute those individuals accused of crimes against humanity,
genocide, and crimes of war. The ICC complements existing national judicial
systems and will step in only if national courts are unwilling or unable to
investigate or prosecute such crimes. The ICC will also help defend the rights
of those, such as women and children, who have often had little recourse to
justice.
The Court will be of particular importance because:
· it will serve as a permanent deterrent to the
commission of mass atrocities and other egregious crimes as defined under
international humanitarian law. In most cases in the last fifty years
international mechanisms to prosecute people accused of these crimes have only
been set up after the crimes have occurred;
· it will have a much wider jurisdiction than existing
ad hoc tribunals. For example, the work of the International Criminal Tribunals
for the former Yugoslavia and Rwanda have been limited to crimes committed in a
particular territory while crimes committed in other territories have not been
addressed; and
· the Statute contains advanced provisions for the
protection of victims from re-traumatization as well as a provision that the
Court may order a convicted person to provide reparation, in the form of
compensation, restitution, rehabilitation, satisfaction, guarantees of
non-repetition, and any other type of reparation the Court deems appropriate.
Referring
Cases to the ICC
The ICC may exercise its
jurisdiction with respect to a crime with the provisions of this Statute if:
(a) A situation in which one or more of such crimes
appears to have been committed is referred to the Prosecutor by a State Party
in accordance;
(b) A situation in which one or more of such crimes
appears to have been committed is referred to the Prosecutor by the Security
Council acting under Chapter VII of the Charter of the United Nations;
(c) The Prosecutor has initiated an investigation of
such a crime in accordance with article; or
(d) A State Party may refer to the Prosecutor a
situation in which one or more crimes within the jurisdiction of the Court
appear to have been committed requesting the Prosecutor to investigate the
situation for the purpose of determining whether one or more specific persons
should be charged with the commission of such crimes.
The following section discusses crimes that should be prosecuted
generally against the Sudanese government-crimes
against humanity, genocide and war crimes. (Refer to SRI's excerpted linked
definitions of these crimes).
Sudan On Trial at the ICC
The people of Sudan, Africa's largest country, are
enduring the longest and bloodiest uninterrupted civil war in Africa's
history. So far, 2 million people
have died and 4 million have been forced to flee their villages and homes,
largely due to the genocidal atrocities being committed upon them by the
government in Khartoum. Several credible human rights organizations,
international organizations and governments have recognized that the majority
and scale of atrocities committed against civilians and the number of war
crimes additionally committed against combating parties during war is not
proportionate or equal among parties to the conflict as the government of Sudan
(GoS) is primarily responsible for the majority of gross violations of
humanitarian law.
The government in Khartoum
(the capital of Sudan) indiscriminately bombs unarmed civilians and
humanitarian sites in central and southern Sudan such as schools, churches,
international humanitarian relief sites, open markets, and hospitals. It has
destroyed food supplies leaving thousands of civilians to starve, utilizes
militias groups such as the fierce Murahaleen to attack, burn and loot villages
while tolerating in exchange as payment the freedom of such militia groups to
murder, rape, abduct and enslave thousands of civilians – most of whom
are women and children. These
people are then sold into slavery in northern Sudan and often forced to convert
to Islam. The government also
instigates tribal and ethnic warfare among southerners in effort to keep the
south divided and employs a policy of statewide persecution based on race,
ethnicity, and religion. Both government forces and armed opposition groups
have reportedly carried out extrajudicial executions in the context of the
civil war. (See Sudan Alerts section links for facts and
background on the conflict. See also “Eradication
of Terrorism Forestalled by Khartoum’s Genocidal Policies and Oppressive
Rule”; “Capital
Markets Sanctions Hold Key to Cessation of Atrocities and Peace in Good Faith
by Khartoum”; “The
Need for a Strong and Effective Sudan Peace Act”; “Demand
for an End to Khartoum's Genocidal Campaign and for the Imposition of a Just
and Lasting Peace”; “What
Amounts to Genocide in Sudan?”;
“An
International Tribunal for Sudan Should Be Established”; and
“SRI
Hails Congress and the Bush Administration for Passage of the Sudan Peace Act
and its Separate Mandate to Investigate Genocide, Crimes Against Humanity and
War Crimes by all Parties to the Conflict.)
Over a two year period (1999
and 2000) the government increased the ferocity and frequency of military and
militia attacks. Commonly referred
to as a "scorched earth" strategy, the government stepped up aerial
bombings and ground attacks on villages to kill, terrorize, torch, and destroy
surrounding land needed for oil production and development making these areas
virtually uninhabitable for those who might consider returning. As a result, millions of civilians have
been forcibly displaced from their homes, unable to return even if they wished
to do so because large swaths of land have been burned and destroyed along with
homes, schools, hospitals, and markets.
Many of those civilians that have been forced to flee their homes have
fled to other provinces in southern and central Sudan (termed, Internally
Displaced Persons (IDPs) overcrowding existing inhabited areas.
The
government in Khartoum has also employed a strategy of "engineered
famine" against civilians by destroying food supplies and bombing and
obstructing international humanitarian relief sites and aid. This strategy as a
weapon of war targets those living in central and northern Sudan (such as the
Nuba – many of which are Muslim – and the Nubians) and those living
in southern Sudan, primarily Africans of indigenous tribal beliefs (the two
largest tribes being the Dinka and the Nuer) and Christians.
Additionally, the government in Khartoum is using its
policy of widespread persecution against non-Islamic, non-Arabic civilians and
those politically opposed to its government to justify and accelerate the
systematic commission of genocidal atrocities against these groups because
these groups also inhabit land surrounding oil fields and land marked for oil
development and/or exploration that the government therefore needs or wants
vacated.
Women continued to be raped and abducted in the context of the civil war.
Suspected perpetrators of sexual violence were not brought to justice. In
government areas women were also singled out for cruel, inhuman or degrading
punishments for adultery, in circumstances where men involved normally remained
unpunished. Women in the north continued to be harassed and ill-treated by
police enforcing the Public Order Law which restricts women's freedom of
movement, behavior and dress.
Finally, throughout the current peace process there
have been repeated reports of the GoS violating valid and internationally
monitored ceasefire agreements by bombing the opposition and continuing to
utilize militia groups for raiding.
Conclusion: The Challenges Ahead
There
are several difficult challenges that the international community and the civil
society in Sudan face in conducting a thorough investigation on war crimes,
crimes against humanity and acts of genocide perpetrated by the government in
the north. The first is that there
are serious gaps in the information available about the adverse conditions
facing the people in the south of Sudan.
The absence of an infrastructure on the ground that is both credible and
well-developed to collect and document accurate and in-depth information about
the current human rights crisis further compounds the issue of
inaccessibility. In addition, the
absence of a specific mandate to look into the allegations of violations means
there are no war crimes experts in the country at the moment. The civil society itself in Sudan is extremely
weak and in its infancy. Hence,
there are no trained human rights experts in the country at the moment to
assist in large-scale fact-finding. The local NGOs do collect some information,
but due to the lack of training, personnel and security concerns about the
future of their programs, cannot afford to provide a strong support base for
concerned organizations outside of Sudan.
While
there is pressure on international organizations to collect, document and
investigate the human rights violations in Sudan, it is extremely important to
keep in mind that a well-thought out, professional and substantive research
methodology is vital in prosecuting legal cases of violations of international
humanitarian law. In other words,
credibility of the research methodology that will be employed for fact-finding
should not be questionable.
Sudanese citizens need to be trained on international humanitarian law
and human rights law, to monitor human rights violations, gather evidence of
war crimes and other genocidal atrocities, to interview witnesses/victims, and
to analyze collected data and evidence for documentation and future use in any
justice mechanism should one be established beyond the ICC internationally or
domestically that is specifically for Sudan.
More
specifically, Sudanese should be trained on how to conduct interviews with
survivors and witnesses, and how to corroborate any testimony with verified
reports. Any possible evidence
collected must be credible and unbiased.
Investigative teams must also be trained to note patterns of atrocities
and whether officials are persistently denying the existence of such patterns
upon questioning. Furthermore,
witness protection plans must be viable realities.
In short, the international community should remain
cognizant of the following hurdles:
q
Collection of
Evidence
Collecting evidence for trial purposes
against the NIH and against opposition armies constitutes one of the biggest
challenges for Sudan. Although the
international community is aware of the level of atrocities that have been and
continue to be committed by the NIF and other armed opposition groups; in a
court of law prosecution of these crimes will be difficult absent a more
detailed investigation of mass atrocities according to legal elements that
would be required to be proved at the ICC. The need for the collection and documentation of evidence
from trained Sudanese and recognized experts in investigating violations of
international humanitarian law for use by justice mechanisms is crucial.
q
Witnesses
Witness protection is of the utmost importance.
Evidence or identities collected from witnesses’ testimonies should not
be treated as immediate public information or used for personal gain prior to
its use in justice mechanisms.
Proven plans of protection must be implemented for all witnesses.
q
Interviewing of Witnesses
The “who, how and where” of an
interviewer’s work, and the impression of interviewee of the interviewer
affects the gathering of credible evidence. Privacy of these witnesses is crucial specifically when
interviewing rape victims or gathering evidence of the use of rape as an act of
genocide and/or a weapon of war.
Strong cultural and religious frameworks, family and community pride,
and shame influence the testimony of rape victims further requiring special
sensitivity and awareness of interviewers.
q
Logistical Problems
- Sudan's remoteness,
especially in areas such as the Nuba Mountains account for additional
prospective complications for gathering evidence and training indigenous
Sudanese how to do the same, particularly in regard to written
documentation as opposed to oral accounts of testimony that may be shared
throughout and among communities in oral societies that are not accustomed
to written accounts or tracking specific details such as dates and times,
or names of perpetrators.
SRI's
Recommendations
To
address these logistical problems, SRI recommends the following:
1)
Lawyers and
investigators should be added to the Civilian Persons Monitoring Team (CPMT),
or comprise a new and separate team, who have international humanitarian law
expertise and the distinct ability to conduct legal analysis and provide an
objective assessment of past and reoccurring atrocities beyond separate human
rights violations. The fact that
many organizations and governments have a plethora of mandates and objectives
to address, and may thus be unable to carry out independent assessments of
violations of international humanitarian law in Sudan, it is critical to use
independent investigators that are working with a narrow mandate.
2)
Sudanese should be
trained by experts in investigating violations of international humanitarian
law on how to conduct credible investigations and develop witness protection
programs. Sudanese should also be
trained on how to document and analyze the evidence gathered. Training in computer and equipment use,
interviewing techniques, confidentiality, legal elements, library methods
should be included in any training programs initiated to investigate genocidal
atrocities.
3)
A documentation center
should be established to house recordation of war crimes, genocide and crimes
against humanity in Sudan. The
documentation center should be established in neutral territory if possible as
decided by Sudanese and to be manned by Sudanese representative of the
country’s diverse ethnic, religious and racial diversity.
For further information
refer to the following:
2.
The Sudan Peace
Process; Report for Congress; June 4, 2003.
3.
Rome Statute of the International Criminal
Court.
4.
International Justice: The
International Criminal Court; Human Rights Watch.
5.
International Criminal Tribunal for Rwanda.
6.
International Criminal Tribunal for Yugoslavia.