Special courts not prosecuting war crimes - HRW

The special courts established by the Sudanese government to deal with atrocities committed in Darfur have failed to bring justice to the region's victims of war crimes, the international watchdog Human Rights Watch said in a report released on Thursday. "The cases before the court so far involve ordinary crimes, like theft and receiving stolen goods - which don't begin to reflect the massive scale of destruction in Darfur," said Sara Darehshori, senior counsel to the HRW international justice programme and author of the report. "Without some serious changes by the Sudanese government, these courts are not able to bring any form of justice to the victims." The Special Criminal Courts on the Events in Darfur (SCCED) were established on 7 June 2005, a day after the International Criminal Court (ICC) announced it had opened an investigation into crimes committed in Darfur. A Ministry of Justice statement challenging the ICC's jurisdiction made explicit reference to Article 17 of the Rome Statute, which requires the ICC to reject a case as 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." "Government statements and the timing of the establishment of the special court made it clear that the Sudanese government was most interested in creating a court that would take the jurisdiction away from the ICC," Darehshori said by telephone from New York. The 13 cases brought before the SCCED have involved only low-ranking individuals accused of relatively minor offences - no senior commanders or superiors have been charged for their role in the atrocities, the report found. Sudanese authorities had failed to press charges before the SCCED for a single major atrocity committed in Darfur, "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," it said. 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 incident unrelated to the violence that engulfed the region. Only one case involved a large-scale attack on civilians in the village of Tama, approximately 25km north of Nyala. Even in this case, "the three defendants were charged, and ultimately convicted, with acts of theft that took place the day after the attack" and not for any role in the attack or killings that occurred, the report said. The HRW report added that although the protocol in the SCCED had 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." "The application of the laws to safeguard the adherence to victim's rights is not coherent," Darehshori said. Major obstacles to the prosecution of war crimes in Darfur identified in the 31-page report included a lack of clarity in Sudanese law on which war crimes and crimes against humanity can be prosecuted; the absence of a legal basis to hold commanders accountable on the basis of "command responsibility" for crimes they may have failed to prevent or punish; and provisions granting immunity from prosecution to members of the armed forces, national security agencies and police. The new SCCED was originally established as a single court in El Fasher, the capital of North Darfur State, but two courts were added later in Nyala and El Geneina, the capitals of South and West Darfur, respectively. "The 13 cases brought so far are an insult to the victims," said Darehshori. "The failure of the justice system in Darfur makes ICC prosecutions all the more important. Khartoum must now cooperate fully with the ICC investigations. "Because the ICC is only going to be able to prosecute a handful of the perpetrators," she added, "it is crucial that the national courts also provide accountability for the atrocities that are occurring."