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Part I: The SCCED

Events Leading to the Establishment of Special Criminal Court on the Events in Darfur

Since early 2003, Sudanese government forces and allied “Janjaweed”³ militias have been engaged in crimes against humanity, war crimes and “ethnic cleansing” in Darfur as the means of conducting a counter-insurgency campaign against two rebel movements, the Sudan Liberation Army/Movement (SLA/M)(which is now split into two factions) and the Justice and Equality Movement (JEM).  Human Rights Watch and others have documented the widespread crimes committed by Sudanese government forces and Janjaweed, including the targeted killing, summary execution and rape of thousands of civilians, the destruction of hundreds of villages, the theft of millions of livestock and the forced displacement of more than two million people in Darfur.⁴  The rebel movements are responsible for attacks on civilians and humanitarian aid workers and summary executions of captured combatants that may amount to war crimes. ⁵ All are guilty of repeated violations of the April 2004 ceasefire agreement.

Attacks by the government-backed Janjaweed militias have extended to villages in Chad, displacing thousands there.⁶  To date there have been no meaningful efforts to establish accountability for violations of international humanitarian law in Sudan by the Sudanese government or the rebels.  Indeed, the climate of impunity fostered by the failure to prosecute has encouraged government-backed militias and its own armed forces to continue to commit abuses.  This has clearly contributed to the worsening security environment in the region. ⁷

The unwillingness of the Sudanese government to prosecute serious abuses reflects a broader failing to reverse “ethnic cleansing” in Darfur.  Instead of disarming the militias, Khartoum has incorporated them into security, police and military forces.  Instead of acknowledging state responsibility for the scale and gravity of the crimes committed in Darfur, senior Sudanese officials continue to obfuscate, deny and evade responsibility for the atrocities and scorched earth campaign against civilians in Darfur.  Committees set up ostensibly to deal with these issues have produced no meaningful results.

On May 8, 2004, the Sudanese government established a national commission of inquiry by presidential decree.  This national commission, which was under enormous pressure to present a view compatible with the government’s position, concluded that while there were incidents of serious abuses, there were not widespread or systematic crimes.⁸

The international community has taken initial steps to end impunity for some of these horrific crimes.  The Security Council established the International Commission of Inquiry on Darfur in September 2004⁹ and in January 2005, just days after the national commission’s report was publicized, the International Commission submitted its 164-page report to the Security Council on widespread and grave crimes in Darfur.

The Security Council, on the basis of the findings of the International Commission of Inquiry, referred the matter of Darfur to the ICC in March 2005—the first such Security Council referral since the ICC was established on July 1, 2002.¹⁰  On June 6, 2005, the ICC Prosecutor announced his intention to open an investigation into the events that took place in Darfur.¹¹ 

The very next day, the Chief Justice and President of the Supreme Court in Sudan announced the creation of a Special National Criminal Court on the Events in Darfur.¹² 

Framework for Prosecution of Crimes in Darfur

Sudan was governed for many years by a combination of common law and Islamic law.  Islamic law was used for personal disputes between Muslims, such as matters of family law and inheritance.  In 1983, however, Sudan’s leader, President Jafa’ar Nimeiri, declared Sudan an Islamic state and imposed Islamic law, shari’a, on the entire country.  This was among the reasons leading to full-fledged resumption of civil war with the non-Islamic south.¹³  Shari’a was refined and strengthened in criminal law by the Criminal Act of 1991 and is still the basis of law in Darfur.¹⁴

In response to a power struggle inside the ruling party, a state of emergency was declared in Sudan in 1999 and lifted throughout the country in 2005.  However, it remains in place in Darfur and eastern Sudan. The state of emergency means important legal rights, such as due process guarantees and freedom of assembly, are suspended and the president has extraordinary powers to rule by decree.  The parallel use of laws and emergency decrees to govern Sudan makes it difficult to analyze the Sudanese legal system in an accurate manner. This is in part due to the difficulty in determining what laws have been promulgated in Northern and Southern Sudan and “where and when, if at all, they are effective.”¹⁵ 

The basic structure of the judicial system is set forth in the Interim National Constitution which is to last until 2011.  The Interim Constitution, which was passed by the National Assembly on July 6, 2005 as part of the January 2005 Comprehensive Peace Agreement between the government and the southern-based rebels, provides for an independent Constitutional Court consisting of nine justices.  Its duties include interpreting constitutional provisions at the request of the government, deciding disputes arising under the constitution, adjudicating the constitutionality of laws, and protecting “human rights and fundamental freedoms.” It has criminal jurisdiction over the President of the Republic, the vice presidents, the speakers of the National Legislature, the Justices of the National Supreme Court and the Southern Sudan Supreme Court.¹⁶  The Interim Constitution also defines the national judiciary as consisting of the National Supreme Court, the National Courts of Appeal and other national courts. The National Supreme Court is the court of final review for cases arising under national law including all criminal cases in which the death penalty has been imposed. The number, competencies and procedures of National Courts of Appeal are not set out in the Interim Constitution.¹⁷

The Judiciary Act of 1986 sets forth the arrangement of the lower courts which still exists in some form today.  Sudan is divided into 26 states or wilayat and subdivided into 133 districts.  Every state has a “judicial organ” consisting of a court of appeal based in the state capital, general courts and district courts.  The courts with primary jurisdiction over criminal matters are the district courts.  There are three levels of district courts and their jurisdiction is defined in the 1991 Criminal Procedure Act.  The highest level, the First Criminal Court, may impose the death penalty or any other sanction provided by law.  The Second Criminal Court may impose a sentence of imprisonment for a term not exceeding seven years and whipping or fines, and the Third Criminal Court may impose a sentence of imprisonment for a term of no more than four months and a maximum of forty lashes.  The courts’ authority to impose sentences is more limited when the proceedings are held summarily.¹⁸   

In addition to the regular criminal courts, the 1997 Emergency and Public Safety Act and the Judiciary Act allow the Chief Justice to establish special criminal trial and appeals courts.¹⁹ In the five years since a state of emergency was declared in Darfur in 2001, three separate sets of special courts have been established under the state of emergency provisions.  The Sudanese government first established special courts in 2001.  The original special courts were headed by one civilian judge sitting with a member of the military and a member of the police.  In 2003, these special courts were replaced by specialized courts, headed by a civilian judge only.²⁰  The specialized courts, like the special courts they replaced, have jurisdiction over crimes of particular interest to the state.²¹ These include offenses against the state (such as espionage), robbery, banditry, killing, unlicensed possession of firearms and “anything else considered a crime by the Wali (governor) or head of state or head of the judiciary.”²²  Judges who sit on the specialized courts are frequently lay people with no legal training or recruited from the military.²³  Observers report inconsistent application of criminal law and criminal procedure law across the criminal court system in Darfur.²⁴ There is also no clear delineation of the functions of the specialized courts and the new Special Criminal Court on the Events in Darfur which exist concurrently. They both have jurisdiction over the same crimes and it is unclear how it is decided which cases are assigned to which court.  As discussed below, the specialized courts have prosecuted crimes relating to the conflict while the SCCED has prosecuted ordinary crimes unrelated to the events at issue.²⁵  After the establishment of the new Special Criminal Court on the Events in Darfur, cases were reportedly withdrawn from the existing specialized courts without explanation or notice, including in many cases without proper notification to defense attorneys.²⁶ 

The Legal Basis for the SCCED

On June 7, 2005, the Chief Justice and President of the Supreme Court in Sudan established by decree the Special Criminal Court on the Events in Darfur.  The objective behind the creation of the court is clear.  When Sudanese authorities established the SCCED, they stated that it was “considered a substitute to the International Criminal Court.”²⁷  A Ministry of Justice statement challenging the ICC’s jurisdiction made explicit reference to Article 17 of the Rome Statute which allows the chambers of the ICC to determine a case is inadmissible “if the State which has jurisdiction is investigating or prosecuting the case unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.” ²⁸  Both President Omar El Bashir and former Foreign Minister Mustafa Osman Ismail (replaced in September 2005 by Lam Akol Ajawin, who was appointed by the Sudan People’s Liberation Movement under the CPA) have stated that they will refuse to extradite Sudanese nationals to be tried abroad, and that Sudan’s judiciary has sole jurisdiction over crimes in Darfur.²⁹

The new Special Criminal Court was originally established as a single court which would be seated in Fashir, the capital of North Darfur, and travel throughout Darfur.  The decree establishing this court gave it jurisdiction over the following:

(a) Acts which constitute crimes in accordance with the Sudanese Penal Code and other penal codes;

(b) Any charges submitted to it by the Committee established pursuant to the decision of the Minister of Justice No. 3/2005 of 19 January 2005 concerning investigations into the violations cited in the report of the [Sudanese government’s] Commission of Inquiry;

(c) Any charges pursuant to any other law, as determined by the Chief Justice.³⁰

New amended decrees issued in November and December 2005 broadened the Special Court’s jurisdiction to include “international humanitarian law” and established three permanent seats for the court in Nyala, Fashir and Geneina, the capitals respectively of South Darfur, North Darfur and West Darfur.³¹

The decrees set forth some court procedures, but make it clear that the SCCED is obligated to follow the 1991 Criminal Procedures Act and the 1994 Evidence Act.³²

In addition to these courts, on September 18, 2005 a Specialized Prosecution for Crimes against Humanity Office was established in Khartoum by a decree from the Acting Minister of Justice.³³  The Specialized Prosecution is tasked with “exercising the powers provided for in the Criminal Procedures Act, 1991, the international humanitarian law, the international conventions to which the Sudan is party and any other relevant law in relation to crimes against humanity and any other crimes stated in any other law and which infringes upon (constitutes a threat to) the security and safety of humanity.”³⁴  Its jurisdiction covers all of Sudan and it is based in Khartoum. It has reportedly provided some assistance to state prosecutors in Darfur in recent cases.

The SCCED in Action: Judging Ordinary Crimes, Not Crimes against Humanity

When first established, the Sudanese authorities announced that 160 accused were to be tried before the SCCED.³⁵  The identity of these 160 people is still unclear.  A year later, the reality has fallen far short of the pronouncement as only a small number of people have been brought before the SCCED.  Human Rights Watch has been able to collect information on a total of thirteen cases that have been brought before the SCCED to the date of writing this report.  The details of these cases are summarized below.  Only the “Tama case” (so-called as it relates to an October 23, 2005 attack on civilians in the village of Tama) brought before the Nyala SCCED is related to a large-scale attack against civilians, and even in this case the three defendants were charged, and ultimately convicted, with acts of theft that took place the day after the attack on the civilians and not for any role in the actual attack or killings that had occurred.  Two other cases involved prosecutions for murder by Military Intelligence (MI) officials for deaths while in custody due to torture in Darfur.  The other cases before the SCCED involve mostly ordinary criminal matters—in the larger context of the Darfur conflict—such as individual acts of armed robbery, weapon possession and murder that could have been prosecuted by the ordinary courts.  In one case, the SCCED prosecuted three civilians and three low-ranking military soldiers for the theft and slaughter of a herd of sheep, an event unrelated to the extensive attacks and widespread killings that engulfed Darfur in 2003 and 2004 and which continue to this day.

As mentioned above, the ordinary criminal courts in Darfur are prosecuting cases which are indistinguishable from those prosecuted before the SCCED.  For example, at the same time the SCCED in Geneina was prosecuting a Central Police reservist for the shooting of an unarmed student (see below), the regular Geneina criminal court was prosecuting a Central Police reservist for the rape of a ten-year-old girl in Mornei’s displaced persons camp in August 2005, as well as another Central Police reservist for the murder of a civilian.  Both courts are prosecuting ordinary crimes that happened to occur during the war rather than violations of international humanitarian law or crimes against humanity.

While it could be argued that the relatively minor nature of the initial cases before the SCCED could have been expected when the SCCED was first established because it was a new court, recent cases brought before the Court do not indicate a trend towards addressing the more serious crimes committed during the conflict in Darfur.  Six of the thirteen cases on which Human Rights Watch was able to collect information (including the two listed below) were opened in 2006 by the Geneina SCCED.  Of these, four involved individual murders committed by civilians, a fifth involved the prosecution of a political activist for supporting rebel groups in Darfur and a sixth involved the prosecution of a Central Police reservist for the killing of an unarmed student protester.  The Tama case before the Nyala SCCED referred to above related to the October 2005 attack on Tama village in South Darfur that resulted in the deaths of twenty-eight civilians.  However, the two low-ranking members of the Border Military Intelligence service and the civilian who were ultimately prosecuted were charged with looting after the attack and not for any role in the attack itself or any of the killings.

In December 2005, the Minister of Justice, Mohamed Ali al-Maradi, publicly announced that investigations were complete with respect to the January 2005 joint Sudan Armed Forces and Janjaweed militia attack on Hamada, South Darfur, which led to the deaths of more than eighty civilians, and that court proceedings would begin the following week.³⁶ However, at the time of the writing of this report, these hearings have not commenced.  A Sudanese government official reported to U.N. Mission in Sudan Human Rights staff that investigations had not gone forward because the governor of South Darfur is preventing the prosecution from proceeding because he favors “reconciliation” between the tribes.³⁷  Furthermore, the Minister of Justice made it clear that no officials had been investigated in these attacks and that the role of government planes in the bombing of the village would not be addressed when the case went to court.³⁸

Nine cases have been concluded or are in the process of being heard by the SCCED so far, and another four cases have been referred to the SCCED (all of them in Geneina) but have not yet been heard by the court. While the practice so far in the SCCEDs has varied, there have been reports that most of the initial trials were held in a single day, often in the absence of witnesses and defense lawyers.³⁹   The following details are known about the cases that have been heard by the SCCED so far:⁴⁰

1) On June 18, 2005, the SCCED sitting in Nyala began the prosecution of two soldiers and eight members of the Popular Defense Forces (PDF) for rape and armed robbery.⁴¹  The case involved a December 20, 2004 incident in which an estimated fifteen attackers robbed a bus traveling from Nyala to Fashir and raped a female prisoner who was on the bus. She was in police custody for transfer to the Fashir Juvenile detention center.  The accused were arrested by an army patrol immediately after the incident.  On August 27, 2005, all ten defendants were acquitted of all charges by the SCCED.

2) On June 23, 2005, the SCCED sitting in Nyala began the prosecution of four members of the Ma’alia ethnic group, including an eleven-year-old boy and a seventy-two-year-old man, for the armed robbery of a transport vehicle near the South Darfur town of Gereida. On July 25, 2005, the SCCED found the three adult defendants guilty of armed robbery, and imposed custodial sentences ranging from five to seven years.  The eleven-year-old minor was also found guilty of armed robbery, and sentenced to a rehabilitation school for three years.

3) On June 25, 2005, the SCCED sitting in Nyala began the prosecution of a male defendant for armed robbery, intentional wounding and illegal possession of weapons charges.  The case involved the March 22, 2005 shooting at a four-car humanitarian convoy which gravely wounded an official of the United States Agency for International Development (USAID).  The defendant was detained soon after the shooting by Sudanese police and Popular Defense Forces, who found him in the area of the incident with an AK-47 weapon.  On August 28, 2005, the accused was convicted for possession of illegal weapons, but acquitted on the charges of armed robbery and intentional wounding.

4) On July 3, 2005, the SCCED sitting in Fashir began the prosecution of three civilians and three low-ranking military soldiers for the theft and slaughter of fifty-one sheep.  The men were charged with armed robbery and one of the civilian defendants, a butcher, was also charged with receiving stolen goods.  On August 13, 2005, the SCCED found the butcher guilty of receiving stolen goods, and also convicted the three soldiers of armed robbery.  The two other civilians were acquitted.

5) On July 5, 2005, the SCCED sitting in Fashir began the prosecution of two Military Intelligence officers for the March 11, 2005 murder of a young boy who was tortured to death while in custody.⁴²  The deceased and two relatives, all young Zaghawa boys (the Zaghawa is one of the ethnic groups targeted by the Sudanese government in Darfur), were detained by Military Intelligence in Kutum, North Darfur, in March 2005.  The deceased died while in the custody of Military Intelligence soon after being detained.  The two Military Intelligence defendants were arrested on April 4, 2005, and charged with murder (Article 130) and causing intentional injuries (Article 139).  On August 15, the SCCED convicted the two Military Intelligence officers of murder.

6) On August 9, 2005, the SCCED sitting in Fashir began the prosecution of four members of Military Intelligence for the March 2005 death while in custody of a sixty-year-old rebel suspect at the Kutum military camp.  The elderly suspect was detained by Military Intelligence on suspicion of collaborating with the rebels and died from injuries sustained from torture on the same day as his arrest.  One of the four accused, a Military Intelligence officer, escaped from custody during the trial.  On November 16, 2005, the SCCED convicted two Military Intelligence privates (the lowest rank in Military Intelligence) of murder, and sentenced them to death.  The third accused, the Chief of Military Intelligence at Kutum military base—the only command-level officer to be charged by the SCCED to date—was acquitted of the charges.

7) In February 2006, the Geneina SCCED began the prosecution of a Central Police reservist for the shooting of an unarmed student on December 21, 2005.  The defendant was accused of opening fire on a crowd of students who wanted to demonstrate to protest an attack on a nearby village by Arab militia.⁴³  The Central Police reservist was discharged following the incident, and was prosecuted as a civilian for murder (Article 130).  In late March 2006, after several days of hearings in February and March, the Central Police reservist was found guilty and sentenced to death.

8) On February 15, 2006, the Nyala SCCED began the only hearings so far in a case involving a large-scale attack on civilians.  The case was set against the background of the October 23, 2005 attack by Janjaweed militias on the village of Tama,⁴⁴ approximately 25 kilometers north of Nyala, which resulted in the deaths of twenty-eight civilians.⁴⁵  Charges were brought against two low-ranking members of the Border Military Intelligence service and a civilian who were arrested by Sudanese police officials while allegedly looting Tama village on October 26, 2005.  No allegations have been made that the defendants were involved with the killings of civilians in the village.  On March 20, 2006, the men were charged before the SCCED for looting, under Article 21 of the 1991 Criminal Code (criminal conspiracy) and also Article 8(b)(16) of the Rome Statute of the International Criminal Court (“Pillaging a town or place, even when taken by assault.”). On May 3, 2006, the SCCED acquitted the men of the robbery charges and Rome Statute charges related to the attack of October 23, 2005, due to the absence of evidence that the men were actually present during the attack. The Court did find the men guilty under the Sudanese criminal code for the theft of property of the villagers of Tama. The Court imposed sentences of three years on the two members of Border Military Intelligence and two years on the civilian defendant. The extra year imposed on the members of the Border Military Intelligence was allegedly to reflect the aggravating factor that the men had been responsible for protecting the villagers.

9) On March 22 and 23, 2006, the Geneina SCCED began the prosecution of a forty-three-year-old member of the opposition Sudan Federal Democratic Alliance, Sharif Abakir Ismail, for undermining Sudan’s constitutional system (Article 50 of 1991 Criminal Act); waging war against the State (Article 51); Sedition (Article 63); and membership in a criminal or terrorist organization (Article 65).  The defendant was arrested in late October 2005 at a police checkpoint, and had been held in Military Intelligence custody for two months prior to being transferred to police custody.   Allegations have been made that the defendant was tortured in Military Intelligence custody.  The case has been adjourned until May 2006, in order to allow the SCCED time to clarify the status of the Sudan Federal Democratic Alliance within the current Government of National Unity.

The Geneina General Court has also referred another four cases to the Geneina SCCED, all of them of civilians accused of single cases of murder of other civilians.  At the time of the publication of this report the four cases have yet to proceed to trial, so the exact nature of the charges remains uncertain.  However, none of the four cases involves large-scale killings and none of the defendants in the cases are security officials.

In short, the cases brought before the SCCED to date have not begun to address issues of accountability in the region. The cases have dealt with individual abuses, which are marginally related to the serious and widespread violations committed in Darfur and have failed to seek to bring to justice those most responsible for these extensive violations. This is the result of a lack of political will, which is reflected both in the cases chosen and in the laws governing the courts.