Global Policy Forum

By Christine Butegwa *

If you're a woman in Darfur and you want to lay a charge of rape, the chances are that the charge will be changed to one of assault. Even if you want to persist in your charge of rape, you'll need four male witnesses to support your charge. As a result, sexual and gender based violence is one of the biggest violations of women's rights in Darfur, writes Christine Butegwa from Femnet. Hopes are high that the International Criminal Court will be able to change the situation.

On 30 November 2004, 7 female internally-displaced people (IDPs), one of whom was pregnant, were attacked by an armed militia group allegedly in military uniform, near the Deraij camp, 4 km east of Nyala, Southern Darfur State. The 7 women and girls were fetching firewood outside the camp where they were reportedly attacked, beaten with guns on their chests and heads, and stripped. The armed militia later took 3 of them to an abandoned hut where they were raped. The other 4 women and girls managed to escape. All 7 women and girls were seriously injured and later received medical treatment at the Amel Centre for Rehabilitation of Torture victims. One of the survivors of the violence was transferred to the Nyala hospital where she miscarried.

This is just one of the cases that the World Organisation Against Torture (OMCT) has received from Sudan. Since the unfolding of the conflict in Darfur in February 2003, intolerable crimes against humanity have been committed in a massive and systematic manner. Over two million people have been forced to flee their homes and over 70,000 people have been killed as a direct result of violence. Women and children have been the main target of these atrocities, specifically sexual and gender-based violence. Women and girls are vulnerable to rape whenever they venture out of the IDP camps in search of water or firewood. Despite the fact that in many cases, the survivors of gender-based violence can identify their attackers, justice has been denied. Now, the recent decision by the United Nations Security Council to refer the situation in Darfur to the International Criminal Court (ICC) may offer the only hope for many women and girls in Darfur to see justice done.

Lack of access to justice – a denial of women's rights in Darfur

Sexual and gender based violence is one of the biggest violations of women's rights in Darfur. Women's rights continue to be violated due to gender-based discrimination in the national laws of Sudan. According to Jane Lindrio Alao, a psychologist with the Amel Centre for Treatment and Rehabilitation of Victims of Torture based in Darfur, rape is not recognized as a crime in the law. Most people accused of rape are only charged with having committed assault, which is a lesser charge that can lead to a one year jail sentence. Under the law, rape can only be said to have occurred and admitted in court if there are 4 witnesses. "All the witnesses should witness the actual penetration. This means that if there were only 2 witnesses, the accused would not be charged. How many women have the luxury of having witnesses to rape?" says Ms. Alao.

The archaic and discriminatory laws have led to perpetrators of violence acting with impunity. According to Ms. Alao, the majority of the perpetrators are allegedly affiliated directly or indirectly with the government, such as the Popular Defence Forces and the Janjaweed militia. The Sudanese national courts are also affiliated to the government party and have therefore failed to provide justice to the people of Darfur. Women and other members of the community who dare to take rape cases to court are arrested and accused of waging war on the government.

The situation is compounded by the fact that the majority of civil society organizations in Sudan are pro-government and therefore do not acknowledge rape and other human rights violations occurring in Darfur. "Amel centre is the only NGO providing legal aid for victims to seek redress and justice for crimes committed. Most of the other local NGOs deal with sanitation and humanitarian efforts," says Ms. Alao.

The Darfur Consortium: African civil Society advocacy on Darfur

Previously, most high profile responses to the situation in Darfur had come from NGOs and governments outside Africa. The AU has now taken a more active role and brokered several ceasefire agreements and has troops on the ground in Darfur attempting to monitor these agreements. However, there was still a large gap in terms of African civil society finding an African solution to the Darfur crisis.

To fill this gap, the Darfur Consortium was created in September 2004 in Pretoria, South Africa on the same occasion that the African Commission on Human and Peoples' Rights held its third extraordinary session dedicated to examining the situation in Darfur. The Darfur Consortium is a network of Africa-based and Africa-focused CSOs that hopes to reflect the unique perspective of African civil society and provide a forum for unified action, particularly through sustained engagement with the institutions of the AU. The Consortium brings together more than 200 African CSOs.

At a meeting in Kampala in February 2005, the Darfur Consortium embarked on a campaign to support the International Commission of Inquiry's recommendation that the situation in Darfur be referred to the International Criminal Court (ICC) for further investigation. The Commission argued that the Sudanese justice system had shown itself unwilling or unable to prosecute offenders. The Darfur Consortium engaged in an intense advocacy and lobbying campaign with members of the United Nations Security Council on the Commission's recommendation. On March 31, 2005, the Security Council approved UN Security Council Resolution 1593/2005 granting the ICC jurisdiction to investigate ongoing atrocities in Darfur. Although some members of the Security Council such as Algeria, Nigeria and the United States, felt that an African tribunal would be the most appropriate mechanism, the Darfur Consortium argued that the ICC was both an African and an international mechanism. According to Dr. Yitiha Simbeye, a member of the Consortium and Dean at the Faculty of Law in Makumira University, Tanzania, the Consortium also supported the referral to the ICC because it is a permanent court and this would therefore save on time and resources required to set up a new one. "The ICC referral and present jurisdiction also signals to the Darfurians that the whole world is concerned with the situation in Darfur," says Dr. Yitiha.

The International Criminal Court: Justice for women in Darfur

The ICC is the first permanent, independent court capable of investigating and bringing to justice individuals who commit the most serious violations of international humanitarian law, namely war crimes, crimes against humanity, and genocide. The Court has its seat in The Hague, in the Netherlands and was established in accordance with the Rome Statute on 1 July 2002. The ICC website indicates that by May 2005, 99 countries had ratified the Rome Statute, out of which 27 are African States.

Sudan is not a State party to the ICC treaty. However, the ICC has jurisdiction over non-State parties in instances where that country accepted the ICC's jurisdiction on an ad hoc basis or, as in the case of Sudan, the UN Security Council referred the situation to the Court.

Unlike the International Court of Justice (ICJ), the principal judicial organ of the United Nations that deals primarily with disputes between States, the ICC has jurisdiction over matters involving individual criminal responsibility. The Rome Statute also identifies crimes of sexual violence such as rape, sexual slavery, enforced prostitution and forced pregnancy as crimes against humanity when they are committed as part of a widespread or systematic attack directed against a civilian population. The ICC has created a Victims and Witnesses Unit within the Registry to provide protective measures, security arrangements, counseling and other assistance for witnesses and victims. The ICC therefore offers an alternative avenue for justice for the women and girls who comprise almost 90% of the victims of the Darfur conflict.

Although the ICC does have its limitations, including the fact that it requires national government cooperation, both the Darfurians and the Darfur Consortium have high hopes in it. For the Darfur Consortium, their advocacy strategy will now move from advocating for referral to the ICC to pushing for ICC cooperation by the Government of Sudan, monitoring the GoS to prevent it from attempting to circumvent the ICC process and giving CSO support to the ICC prosecutor in the investigation process.

Although some CSOs and traditional leaders in countries such as Uganda have been against the Government of Uganda's referral of the Northern Uganda conflict to the ICC citing it as a possible deterrent to peace efforts in the area, the Darfur Consortium feels that the ICC is important for the peace process in Sudan. "I believe the long- term disenfranchisement of victims can in itself negatively affect the peace process. Penal measures against perpetrators give victims confidence," argues Dr. Yitiha.

For the women's movement in Darfur, what they are looking for is fair trials and compensation of the victims of sexual violence. "IDPs are keeping silent and protecting themselves, waiting for the day of the ICC," says Ms. Alao.

About the Author: Christine Butegwa is Communications Officer with the African Women's Development and Communication Network (FEMNET)