Global Policy Forum

By Fritzroy A. Sterling

A leading human rights group has published a report charging that Sudan's Special Criminal Court on the Events in Darfur (SCCED) has failed to prosecute any official, high-ranking or otherwise, on charges related to war crimes and atrocities committed against the black Muslims of Darfur by government-supported and financed Janjaweed Arab militias.

There have been countless accusations against the Khartoum government and the Janjaweed militias since the start of the conflict in early 2003, including the displacement of hundreds of thousands people, looting and burning of entire villages, mass killings, kidnapping of children and raping of women and young girls, all of which prompted the then-U.S. secretary of state, Colin Powell, to denounce the killings as "genocide".

Of the 13 cases that have been brought before the SCCED to date, not one case is related to the attacks or atrocities committed in Darfur, according to the briefing, confirming the suspicion of some critics that the court would not effectively prosecute those guilty of crimes against the people of Darfur. "The cases that have been brought before the court do not even begin to address the more serious attacks on the people from Darfur," senior counsel to the International Justice Programme at Human Rights Watch and author of the briefing paper, Sara Darehshori, told IPS. "There is no real effort on the ground to prosecute and ultimately bring justice to the victims."

The SCCED was established one day after the chief prosecutor of the Hague-based International Criminal Court, Luis Moreno-Ocampo, announced that the ICC would begin investigating the events in Darfur on Jun. 6, 2005, prompting critics to argue that the SSCED's creation was merely to "divest the ICC of jurisdiction", without ever having any real intention of prosecuting the perpetrators. "The timing was suspicious and we at Amnesty International have questioned their motivation," Vienna Colucci, director of the Amnesty USA Programme for International Justice and Accountability, told IPS. "This is the same system that did not respect human rights and even persecuted human rights personnel there."

The ICC is bound by a statue which prevents it from probing a case if the "State which has jurisdiction is investigating or prosecuting the case" -- which, some critics argue, was the loophole that the Khartoum government's exploited when it hastily established the SCCED. According to the briefing report, there is no distinction between the roles of the Specialised Courts in Sudan and the SCCED, and some judges who reside over cases on the Specialised Courts have little or no judicial training. Amnesty International called for the abolishment of the Specialised Courts in Darfur and the SCCED shortly after its establishment in 2005, arguing that the courts accept "evidence obtained under torture, limit the right of appeal of those accused, and can hand down sentences of death, amputation or flogging".

Sudan's legal declaration and ratification of Shari'a -- Islamic law -- under the Criminal Act of 1991, coupled with the fact that some areas of Darfur are still governed under a continued state of emergency decree, creates a tangled web of legal complications that could hamper any efforts for transparency in the SCCED prosecution proceedings, considering that crimes against humanity and genocide are not included in the Criminal Act of 1991, and declarations of states of emergencies inherently restricts certain basic rights, like the right to gather and redress grievances against the government.

"There is an ongoing assertion as to whether the Sudanese government is willing or able to do the prosecuting themselves," said Darehshori. "The national justice system needs to be strengthened to ensure that justice is brought to the victims of Darfur." With the lack of sincerity from Khartoum, its unwillingness to fully cooperate with the ICC, and the SCCED's glaring and seemingly intentional contradiction of purpose, some critics question whether the perpetrators will ever be held accountable for their deeds, or whether any real accountability will implicate the very government in charge of invoking its own laws to guarantee that justice is served.

"This is the tricky question -- touching on the impunity gap," said Darehshori. Indeed, if the nation does not succeed in closing this impunity gap, the ICC chief prosecutor's task of holding the perpetrators responsible will be an onerous one that will not result in a large number of prosecutions and could set a dangerous precedent for the government of Sudan to continue flouting basic human rights.

"If there was a genuine willingness, if the government was committed to punitive measures, they would be willing to corporate with the ICC's investigation," said Colucci.