ACPJS director: ‘Mixed Sudanese-ICC tribunal on Darfur war crimes impossible’

The New York-based African Centre for Justice and Peace Studies (ACPJS) calls on the Sudanese government to hand over those wanted by the International Criminal Court (ICC) as it deems a mixed Sudanese-ICC tribunal impossible.

“Surrendering the suspects wanted by the ICC is the only way that justice can be done to the victims and their relatives, and that the perpetrators will be punished for the terrible crimes they have committed in Darfur,” lawyer and ACPJS Executive Director Musad Mohamed Ali told Radio Dabanga in an interview.

“A trial in Sudanese courts for those wanted by the ICC for war crimes, crimes against humanity and genocide is out of the question,” he added.

He explained that the law in Sudan in the period 2003-2005, when the genocide in Darfur took place, did not include crimes as war crimes, crimes against humanity and genocide. “It is a legal principle that the law cannot be applied retroactively. It is therefore clear that those wanted by the ICC can’t be brought before Sudanese courts on accusations of genocide, war crimes and crimes against humanity.”

Ali valued the statement of Sovereign Council member Mohamed El Taayshi, spokesman for the Sudanese government at the peace negotiatings in Juba, who agreed with the armed rebel movements to hand over all those wanted to the ICC, including ousted president Omar Al Bashir.

He stressed that Sudan’s transitional government can be expected to have a real desire to cooperate with the ICC “as it reflects the voice of the Sudanese on the streets and the forces that carried out the glorious December Revolution”.

He said there are two options when involving the ICC.

The first scenario is handing over those wanted to the ICC in The Hague (the Netherlands), in accordance with Security Council Resolution No 1593 (2005). The Court has the authority to deal with crimes like war crimes committed in Sudan, when these were not included in Sudanese law at the time these crimes were committed.

The second scenario is to transfer the cases to the ICC, which will then sit in Sudan or in another country that is a party to the Rome Charter. The ICC judges will in that case apply the ICC (Rome Charter) law.

Mixed court

On the possibility of having a mixed court of Sudanese judges and ICC judges, Ali pointed out that this faces such challenges that it will be difficult to realise. He explained that Sudan has not had an independent, impartial and transparent judiciary for the past 30 years.

He also indicated that the Sudanese judiciary does not have any practical experience in international humanitarian law and human rights violations, and has not dealt with any trial on this type of crimes.

He added that Sudan does have an honest and impartial judiciary and that Sudanese judges may have theoretical knowledge on cases of an international nature. According to him, this is not enough to make it possible to have a mixed Sudanese-ICC tribunal on those suspected of committing war crimes, crimes against humanity and genocide in Darfur in the period 2003-2005.

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