Sudan: Executions Cynical Attempt to Hinder ICC

The recent execution of two Sudanese soldiers for war crimes in Darfur is another cynical attempt by Khartoum to hinder International Criminal Court, ICC, prosecutions of suspected war criminals, say analysts interviewed by IWPR.



The men were hung in late April, just days before ICC judges issued warrants for the arrest of a former government minister and a militia commander – the first two Sudanese suspects that prosecutors want to bring to The Hague to stand trial.



They were both low-ranking members of the country’s military intelligence, convicted in November 2005 by the Special Criminal Court on the Events in Darfur, SCCED, and sentenced to death for torturing and killing a 60-year-old rebel suspect at the Kutum military camp in Darfur.



One of the people named in the ICC arrest warrants, Janjaweed militia commander Ali Kosheyb, is also due to stand trial before the SCCED.



Khartoum set up the court in June 2005, one day after the ICC first announced it would investigate events in Darfur. Sudan has refused to cooperate and the court was Khartoum’s attempt to convince the international community it can hold war crimes trials at home.



Under the founding statute, ICC prosecutors can only move in if a country is unwilling or unable to conduct its own trials.



Sudan watchers, however, call the SCCED a sham, saying it is no substitute for the ICC and that the cases before it are show trials that have little to do with the administration of justice.



“The term special court was probably chosen by the Sudanese because it mimics the title of the Cambodia court,” said John Washburn, convener at the American NGO Coalition for the ICC. “What the Sudanese are doing is nothing like other tribunals which may have similar names, like the Cambodia court or the Special Court for Sierra Leone.



“They are immensely self-serving, and there’s zero possibility that they will address any of the senior people in which the [ICC] is interested.”



Golzar Kheiltash, a Washington DC-based international criminal lawyer and ICC advocate, calls the SCCED ad hoc, random and arbitrary.



“These executions should by no means be taken by the international community, or by the victims of Darfur, as the Sudanese government addressing the atrocities committed in Darfur. If anything, it demonstrates how easy it is for the government to resort to violence,” said Kheiltash.



“We are not seeing a consistent and good faith effort on the part of the Sudanese government.”



Critics of the court, including Human Rights Watch, HRW, which last year published an extensive report on the SCCED’s failings, say that in the two years since they were established, the handful of cases that have been tried have involved low-ranking individuals accused of relatively minor crimes like cattle theft and possession of stolen goods.



No commanders have been charged for crimes in Darfur as there are no provisions for prosecuting leaders on this basis under Sudanese law.



According to HRW, SCCED judges use a hybrid of Sudanese statutes, sharia law, law by decree and international law – making their work “opaque and arbitrary”. Also problematic, according to HRW, is a lack of explicit legal definitions for crimes against humanity.



The HRW report expresses concern about broad immunity provisions in Sudanese law, making it difficult to prosecute soldiers, members of national security agencies and the police. Also, Sudanese law does not contain an absolute prohibition on the admission of statements obtained by torture.



The brutal rape of women and children has been a feature of the conflict in Darfur where fighting between government forces and rebel groups has claimed hundreds of thousands of lives since 2003. Millions have fled the country or live in camps for internally displaced refugees. However, rape cases require a high burden of proof in Sudanese courts, including four male witnesses to the assault, while victims of sexual violence are often treated with indifference and outright hostility by the police.



“It would be almost impossible under existing national laws for a woman to prove she was raped,” said Kheiltash.



Sara Darehshori, senior counsel in HRW’s international justice programme, told IWPR there have been no new trials at the SCCED for about a year. She points out that two military intelligence officers convicted of torturing to death a young boy in their custody were granted amnesty.



“Two of the only people convicted of something significant were granted amnesty under the peace agreement, which wasn’t meant to cover these kinds of crimes,” she said.



It wasn’t until March - after ICC prosecutors had asked judges to issue summonses for Kosheyb and former interior minister Ahmad Haroun - that the SCCED again showed signs of life. The government said it would try Kosheyb and two others on charges relating to crimes in Darfur, a decision Darehshori said was intended to pre-empt the international court case.



But not much has happened since.



Kosheyb was placed in custody last November, and Darehshori said there was a court session in March. “What happened since then isn’t clear,” she said, adding that when the trial begins, international monitors should be allowed in.



Flawed though they may be, observers say the setting up of the special court marked a change of tactics by the Khartoum government. “They moved from a rhetoric of blanket denial to this ad hoc, arbitrary picking of individuals to say, ‘Look we’re addressing this issue’,” said Kheiltash.



Sudan watcher Eric Reeves believes the recent legal activity is the result of pressure on the government – not just from the ICC but also from key allies such as China. China depends on Sudanese oil and in return has defended President Omar al-Bashir on the international stage.



“[They] are in full-scale survivalist mode,” said Reeves, a Sudan researcher and analyst at Smith College in Massachusetts. “They’re getting pressure from all sides now. Even the Chinese have been moved to declare publicly that they would expect Khartoum to show more flexibility on the deployment of peacekeepers.



“If they’ve got China saying that, and they’ve got western nations breathing heavily … this is a lot of pressure from a lot of different quarters.”



Reeves points out that economic pressure is also building. Rolls Royce – which supplies engines to oil companies in Sudan – said last month it would pull out of the country, citing humanitarian concerns. The British aerospace firm followed German engineering giant Siemens and Swiss energy group ABB, which have both said they’re withdrawing from the country.



“Khartoum has made no comment on this but it has stung badly. The path of least resistance is to create additional show trials and execute people,” said Reeves.



Washburn agrees that there is an increase in legal activity in Sudan “whenever their anxiety level about the court rises”. He expects this will continue following the issuing of the arrest warrants on May 2. “As the pre-trial chamber starts to bear down we may well get a spasm of activity,” said Washburn.



Lisa Clifford is an IWPR reporter in The Hague.