International Criminal Tribunals as Actors of Domestic Change.

II) Domestic Change in Cases of Adaptation Toward ICT Decisions

Amani M. Ejami

The Impact of the International Criminal Court on the Reform of the Judiciary in Sudan

1. Criminal Accountability and the Sudanese Judiciary

Since the referral of the Darfur case to the International Criminal Court (ICC) by the United Nations Security Council (UNSC) in 2005, a series of events in Sudan has influenced the Sudanese justice system. Such impact is evident by the establishment of new institutions, the Special Criminal Court on the Events in Darfur (SCCED), the Special Prosecutor for Crimes against Humanity, the Justice and Reconciliation Commission, and the Gender Violence Unit. War crimes and crimes against humanity for the first time are added to Sudanese law. The ICC referral had coincided with the signing and implementation of the Comprehensive Peace Agreement (CPA) in 2005 between the Government of Sudan and the Sudan People’s Liberation Movement (SPLM), which ended up a two decade long civil war between the North and South of Sudan, which eventually led to the secession of South Sudan as an independent country in 2011.¹ The issue of justice and accountability has not been part of neither the CPA nor its predecessor, the Addis Ababa Accord 1972, despite the atrocities and serious violations of Human Rights and humanitarian law committed during the six-decade long civil war. The perpetrators of these crimes were shielded by blanket amnesties, leaving the impunity door wide open for further atrocities. Experiences of Human Rights Watch show that the “lack of justice for violent crimes too often fosters further abuses.”² The recent ongoing ethnic conflict in South Sudan is practical proof of the accuracy of this experience. The Darfur conflict has not been resolved within the CPA and the Sudanese government insisted that the negotiations be understood solely as a North-South affair.³ As such the international and regional mediators pressed the government and the ←13 | 14→Darfur rebels to conclude a separate peace agreement for the Darfur conflict. Consequently, the Darfur Peace Agreement (DPA) was signed in 2006 between the Sudan Government and a faction of the Sudan Liberation Movement/Army (SLMA) led by Minni Minawi, whereas the other faction, under the name Sudan Liberation Movement (SLM) led by Abd Elwahid M. Nour, and the Justice and Equality Movement (JEM) led by Khalil Ibrahim boycotted the accord. Accountability was taken out of the agenda by the government, which argued that this issue had been referred to the ICC.

The DPA 2006 failed and fighting intensified not only between the government and the rebels, but also between the rebels themselves. In 2007 the ICC Prosecutor issued two summonses followed by arrest warrants against two government officials. The government refused to co-operate with the ICC, risking a confrontation not only with the ICC but also with the international community in general.⁴ This confrontation ended with the issuance of an arrest warrant against the President, Omer Al Bashir, for committing war crimes and Crimes against Humanity in addition to genocide. It was the first such arrest warrant against a sitting president.⁵ The Sudanese government, which is under the enormous pressure of economic and commercial sanctions imposed unilaterally by the USA since 1997, which were further renewed in 2007, has maintained very antagonistic and hostile relations with the USA since the imposition of the Sharia laws in 1983. Consequently, the Sudanese government has perceived the court as an attempt of the Western UNSC members to change the Sudanese government by issuing an arrest warrant.⁶ The government of Sudan launched a campaign against the ICC and has so far gained the solidarity of many African and Arab governments. In 2009, the African Union Peace and Security Council (PSC) ←14 | 15→formed an investigation committee on Darfur headed by former South African President Thabo Mbeki. The African Union High Panel on Darfur (AUHPD) was created to investigate violations of Human Rights and humanitarian law and to make recommendations for accountability, peace, justice and reconciliation in Darfur.⁷ The AU PSC also mediated another peace accord in Doha (Qatar), which led to the adoption of the Doha Peace Document on Darfur (DDPD) between the government of Sudan and a faction of JEM. The mediators and the parties to the accord agreed to put the issue of accountability on the agenda of the negotiations. A chapter on transitional justice was included in the agreement. Therefore, one can argue that the inclusion of accountability in the DDPD was directly impacted by the intervention of the ICC, because accountability had not been part of the DPA.

Against this background, this chapter covers two sections. Its first section concentrates on Sudan, and gives an overview of the Sudan conflict in general as well as a chronology of the relations between Sudan with the ICC. It outlines the Sudanese government’s responses to atrocity-related accountability before the ICC. Then it identifies the legal and institutional developments subsequent to the ICC’s judicial intervention in Sudan. All these changes within the justice system shall be described in the context of the general political environment and the international pressure on Sudan, which inclined the Sudanese government to regard the ICC as a tool of Western countries to subdue the Sudanese government.⁸

2. The Historical Background of the Conflicts in Sudan

Sudan has long history of civil wars. Armed conflict has been present in one form or another for the last six decades. The War between North and South was rampant across Sudan even before its independence in 1956. Both parts where formally ruled by the Anglo-Egyptian Condominium between 1899 and 1956, but the territory and the administration were largely controlled by the British, who entrenched and deepened the divide between the two halves of Africa’s largest country. Until today, the North is predominately Muslim, while the Southern regions are mostly Christian and animist. Owing to the geographical, political, historical, and cultural differences between the South and the North, the British devised a system of a separate administration for each of the parts.⁹

In August 1955, already before the British withdrawal, the announcement that the British officers were to be replaced with Arabs provoked the Equatoria Corps, a unit of Southern Sudanese Soldiers, to start a mutiny that launched Sudan’s first civil war.¹⁰ It ended with the 1972 Addis Ababa Agreement between the Southern Insurgents, called the Anya Nya, and the government of Sudan, which granted significant regional autonomy to southern Sudan.¹¹ The discovery of oil in 1979 in the South and the construction in 1980 of a huge canal designed to divert water from the Nile for Egypt’s benefit prompted President Jaafar Muhammad Numeiri (1969–1985) to repudiate the Addis Ababa accord unilaterally.¹²

The situation deteriorated when President Jaafar Nimeiri introduced Sharia Law in 1983, leading to the second civil war under the leadership of Dr. John Garange, the founder of the Sudan People Liberation Movement (SPLM). However, on 30 June 1989, a military coup led by Omar Al Bashir overthrew the Sudanese government, introduced Islamic policies and enrooted the perception in the North that the conflict was a “jihad” of the North against the (non-islamic) South. As a result this has led to the most tragic cycle of suffering. Those who died in the south on the regime’s side were convinced that they would go straight ←16 | 17→to paradise. The Sudanese government started serious negotiations with SPLM in 2002 after the 9/11 attacks. In 2002, SPLM and the Sudanese Government signed the Machakos Protocol as a roadmap to a broader peace agreement. This protocol provided for a ceasefire and for the South the right to seek self-determination.¹³

In February 2003, the Western province of Darfur rose against the central government when the Sudan Liberation Movement/Army (SLM/A) and JEM began fighting against the government in Khartoum. Darfur is an entirely Muslim region populated by black Africans and Arabs with a total population of 7,516,000 divided into more than 30 ethnic groups.¹⁴ There are different explanations for the causes of the conflict. Some of these reasons are relating to the land, water access, monopoly on power by the Arabs and to the socio-economic and political marginalization of the Darfur region. There is another copycat factor, which stems from the conflict solution between the Sudanese government and the South. When Darfur’s inhabitants saw that the SPLM would probably profit from 20 years of war by obtaining 50% of the oil revenues and a seat in the central government, they rebelled in the belief that only violence would secure them a seat at the negotiating table. During 2003–2004, the attacks against civilians forced an estimated 2.7 million people into displacement, including around 250,000 refugees who went to Chad. Tens of thousands were killed or wounded and women and girls were raped, creating an immense longing for justice, accountability, and reconciliation.¹⁵

In September 2004, the American Secretary of State, Colin Powell declared the events in Darfur “genocide.”¹⁶ Powell’s statement was followed by the calls of the United States for the establishment of a UN Commission of Inquiry to determine whether the Sudanese government and its militias are guilty of genocide.¹⁷ ←17 | 18→That same month, in September 2004, the UNSC requested the UN Secretary General (UNSG) to establish an international commission of inquiry, to investigate reports of violations of international humanitarian law and Human Rights law in Darfur and to determine whether or not acts of genocide had occurred, and if so, to identify the perpetrators of such crimes.¹⁸

As the conflict in Darfur was escalating, the Comprehensive Peace Agreement (CPA) was signed in 9 January 2005 ending 21 years of civil war between North Sudan and the South, leaving two million people dead and four million people displaced. The CPA granted South Sudan autonomy for six years, after which a referendum on the question of independence would be held. The referendum was held on 8 January 2011, and the people of South Sudan voted almost unanimously for independence. Consequently, South Sudan became an independent State on the 9 July 2011. The Darfurians were hoping that the Darfur conflict would be solved within the CPA framework, and as the African Union High Panel on Darfur had stated in its report: “Many were hopeful that the Darfur conflict could be settled within the CPA framework. However, the Sudan Government was unwilling to make additional concessions to Darfur. The SPLM was eager to proceed with completing the CPA negotiations. However, rather than seeing the CPA and its democratisation provisions as an opening through which they could gain their political rights by democratic means, many Darfurian leaders instead saw the CPA as an exclusive agreement that privileged southern Sudan at their expense.”¹⁹

As a result of international pressure, the Sudanese Government signed the Darfur Peace Agreement (DPA) 2006 with a faction of Sudan Liberation Army led by Minnei Minawi in 2006.²⁰ The non-inclusion of other rebel factions weakened the agreement and as such did not manage to end the hostilities.

In 2010, new peace talks between rebels and the government in Doha under the auspices of the AU organ, the African Peace and Security Council, led to a framework agreement in July 2011, known as the Doha Document for Peace in Darfur (DDPD). This agreement, like its predecessor, failed to end the hostilities in Darfur since it was signed with only one faction of JEM. As a result, violence escalated again.²¹

3. The National and International Legal Framework

The Sudanese legal system is grounded in British common law and Islamic law, which was introduced in 1983. Sources of law are Sharia law, judicial precedents and customs. The judiciary consists of regular, special and customary courts. Sudan adopts a dualist approach to international law whereby international law provisions apply only when implemented through domestic legislation. Sudan adopted The Interim National Constitution of 5 July 2005 (INC), as part of the CPA framework.²² However, article 27(3) of the INC 2005 provided that “all rights and freedoms enshrined in international Human Rights treaties, covenants and instruments ratified by the Republic of the Sudan shall be an integral part of this Bill.”

The Sudanese government is bound by a number of international Human Rights treaties: the International Covenant on Civil and Political Rights (ICCPR),²³ the International Covenant of Economic, Social and Cultural Rights (ICESCR),²⁴ the Convention on the Rights of the Child (CRC),²⁵ the Convention on the Elimination of all forms of Racial Discrimination (CERD),²⁶ the Convention on the Prevention and Punishment of the Crime of Genocide,²⁷ and an African Charter on Human and People’s Rights.²⁸ The Sudanese government is also bound by International Humanitarian Law, including the four Geneva Conventions of 1949,²⁹ the Optional Protocol to the Convention on the Rights of the Child on the involvement of Children in armed conflict,³⁰ the Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the protection of Victims of Non-International Armed Conflicts Protocol (II),³¹ and the Convention for the Protection of Cultural Property in the Event of Armed Conflicts.³² However, the country neither incorporated crimes against humanity, nor war crimes nor genocide in its penal law up to 2008, although the country ←19 | 20→was engaged in a series of civil wars in the South since independence and was involved in the current crisis in Darfur.

4. The Response to War Crimes Before the ICC Referral

During the first civil war in Sudan, which began in 1955, both the government forces and Anya-Nya committed various Human Rights violations. Massacres were carried out in South Sudan during 1964–1965. In 1972, the Addis Ababa Peace Agreement was signed, which contained a general amnesty covering the years of war.³³ Following this peace accord, two laws were adopted; the first one was The Southern Provinces Regional Government Act of 1972, under which “the southern provinces of the Sudan shall constitute a Self-Government Region within the Democratic Republic of The Sudan” with legislative and executive organs and the English language as the official language in the South.³⁴

The second law was The Amnesty Act of 1972. According to it, amnesty was granted to “any person who has on or after the 18th day of August, 1955, committed inside or outside Sudan an illegal act or omission in connection with mutiny, rebellion or sedition in the Southern Region in the Sudan.” Accordingly, “no action against such person civil or criminal shall be taken and that any person undergoing sentence or in custody pending investigation or trial shall be released.”³⁵ According to this law, more than two thousand detainees and prisoners for crimes connected with the rebellion were released. The victims were pressing the government to take action against the perpetrators of violations, which did not bear any fruit. Among the victims was a man from west Equatoria in the South, who had his ears and lips cut-off by men of Anya-Nya movement, after having been charged with spying. His claim for compensation was denied by the Law of General Amnesty.³⁶

In Sudan, the experience of using the law to prosecute Human Rights violations has been the limited experience of the 1985–86 transitional limited period. Immediately after the fall of President Nimeiri in 1985, Sudanese Human ←20 | 21→Rights activists pressed for the prosecution of persons who had committed Human Rights abuses during the Nimeriri regime, which assumed power in May 1969 by a military coup against a democratic government (1964–1969). The government successfully prosecuted the leaders of the original 1969 coup for overthrowing a democratically elected government, and six members of the May coup were convicted and imprisoned. Despite this, the government failed to set up a special prosecutor’s office or a special court to assist the victims to litigate.

Although the Darfur atrocities were more publicized abroad, the conflict in the South was much more entrenched than of the one in Darfur, with deeper ethnic, political and religious roots; countless villages were destroyed, girls and women were raped, whole families were brutally killed, children abducted into forced labour or even sold as slaves.³⁷ An estimated 2 million civilians were killed, more than six times the number thought to have been killed in Darfur.³⁸ Despite that, no one was held accountable for the atrocities in the South and no changes were made to the existing justice institutions and laws in order to prosecute war crimes and crimes against humanity. The consequences are a deepening of the cleavages among the involved groups and an entrenchment of tensions between them. In this respect, the escalating cycles of revenge killings that characterize inter-communal and politically motivated conflicts in South Sudan can be seen as a direct consequence of the pervasive culture of impunity in the country. People do not have confidence in the state to provide justice, so they take matters into their own hands to seek retribution. Since impunity is the norm, individuals that engage in revenge killings can be confident that they will not be punished for their crimes as long as they have the upper hand in the conflict.³⁹

5. The International Criminal Court and Sudan

Sudan signed the Rome Statute of the ICC on 8 September 2000, but has not ratified it. However, the ICC could assume jurisdiction over cases referred to it by the UNSC acting under chapter VII of the UN Charter under the complementarity principle.⁴⁰ Before it did, in May 2004, President Al Bashir established the ←21 | 22→National Commission of Inquiry to investigate crimes committed in Darfur.⁴¹ The National Commission confirmed that both the government and the rebels in Darfur had committed war crimes. It also found that rape had occurred, although had not been widespread and systematic. The National Commission was later described by the ICID as devoid of impartiality and as being under great pressure to approve the government’s claims.⁴²

Between July 2004 and November 2004, the UNSC issued several resolutions calling upon the Sudanese government to take steps to end the violence and Human Rights violations in Darfur and bring to justice Janjaweed militia leaders and their associates who were accused of Human Rights and international humanitarian law violations as well as other atrocities.⁴³ In January, The International Commission of Inquiry on Darfur (ICID) submitted its report to the UNSG.⁴⁴ The report did not consider the atrocities in Darfur to amount to genocide,⁴⁵ but it confirmed that serious violations of Human Rights law and humanitarian law had been committed. A sealed list of 51 individuals against whom evidence existed for such violations was submitted to the UNSG. The list included Sudanese army officers, militia commanders, and foreign military officers. The ICID recommended to the UNSC to refer the Darfur case to the ICC according to article 13 (b) of the Rome Statute. The ICID stated that, “The Sudanese justice system is unable and unwilling to address the situation in Darfur. This system has been significantly weakened during the last decade.”⁴⁶ Two months later the UNSC, acting under chapter VII of the UN Charter, decided to refer the situation in Darfur since 1 July 2002 to the Prosecutor of the ICC by adopting UNSC resolution 1593.⁴⁷ This is considered as the first ever such referral that gave jurisdiction to the ICC.⁴⁸ At the beginning of June, the ←22 | 23→ICC prosecutor opened an investigation.⁴⁹ It lasted until February 2007, when the prosecution requested an arrest warrant against Ahmed Harun, a former State Minister in the Humanitarian Affairs Ministry and currently Governor of the Southern Kordofan State and Ali Kushayb, a militia (Janjaweed) commander. The prosecution claimed that Harun had recruited, funded and armed the Militia/Janjaweed to supplement the Sudanese Armed Forces (SAF), and that both suspects had committed massive crimes against the civilian population. According to the prosecuton, Kushayb was a key part of that system, personally delivering arms and leading attacks against villages.⁵⁰ On that basis pre-trial chamber 1 of the ICC issued an arrest warrant for 51 counts of crimes against humanity and war crimes against Haroun and Kushayb. In November 2008, three rebel commanders, Bahar abu Garda, Abdallah Banda and Salah Jerbo were accused of responsibility for deadly attacks against peacekeepers in Haskanita in 2007 and were also summoned by the ICC prosecutor.⁵¹ Abu Garda appeared voluntarily before the ICC. His case was heard from 19 to 29 October 2009. On 8 February 2010, the pre-trial chamber decided not to confirm the charges against him. His case never went to trial. This was different with another case, which aroused much more public attention in the world and soured the relations between the ICC and the Sudanese government much more. On 14 July 2008, the Prosecution presented its evidence to Pre-Trial Chamber 1, requesting an arrest warrant against President Omer Al Bashir for 10 charges of genocide, crimes against humanity and war crimes. The Prosecution alleged that President ←23 | 24→Al Bashir had used the state apparatus to commit massive crimes in Darfur.⁵² At that stage, the ICC pre-trial chamber did not yet endorse the genocide charges, but in March 2009 issued an arrest warrant against President Omer Hassan Al Bashir, accepting seven counts of crimes against humanity and war crimes, while rejecting three counts of genocide.

On 3 February 2010, the Appeals Chamber found that the Pre-Trial Chamber applied an erroneous standard of proof and directed the pre-Trial Chamber to decide on the basis of the correct standard of proof whether a warrant of arrest for genocide should be issued. On 8 February 2010, pre-trial chamber 1 decided to confirm the charges of genocide against President Al Bashir. At the beginning of the following month, the ICC issued another arrest warrant against a member of the Sudanese government, this time against Abdel Raheem Muhammad Hussein, the defence minister, for seven counts of crimes against humanity and six counts of war crimes committed in Darfur.⁵³