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International | Judicial decisions

International Criminal Court

A Commission of Inquiry set up by the UN Security Council in 2004 considered allegations that war crimes and crimes against humanity had been committed during the conflict. Subsequently arrest warrants were issued by the International Criminal Court (ICC) for a number of Sudanese Government officials and the head of the so-called Janjaweed (see National judicial decisions section). In early June 2008, the Government refused again to extradite the accused to The Hague for trial. In July 2008, the Prosecutor of the ICC requested that the President of Sudan, Omar al-Bashir, be indicted for war crimes, crimes against humanity, and genocide. This was the first ever request to the ICC for the arrest of a serving head of state. At a summit of the African Union (AU) in July 2009, AU leaders announced that they would not cooperate with the ICC in extraditing al-Bashir, as they feared this would compromise the peace process in Darfur. 
In the situation in Darfur, Sudan, three cases are being heard before Pre-Trial Chamber I:
  • The Prosecutor v. Ahmad Muhammad Harun (“Ahmad Harun”) and Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”): The former, the Former Minister of State for the Interior of the Government of Sudan and Minister of State for Humanitarian Affairs of Sudan, while the latter is the alleged leader of the Militia/Janjaweed. The arrest warrant issued against the two contains 51 counts of crimes against humanity (persecution, murder, forcible transfer, rape, inhumane acts, imprisonment or severe deprivation of liberty and torture) and war crimes (attacks against the civilian population, destruction of property, pillaging and rape, outrage upon personal dignity). They remain at large.

  • The Prosecutor v. Omar Hassan Ahmad Al Bashir, the current President of Sudan, indicted as an indirect (co-)perpetrator on five counts of crimes against humanity (murder, extermination, forcible transfer, torture and rape) and two counts of war crimes (intentionally directing attacks against a civilian population as such or against individual civilians not taking part in hostilities and pillaging). The ICC Prosecutor appealed the dismissal of the charge of genocide against the Sudanese President. In February 2010, the ICC Appeals Chamber rendered its judgment on the Prosecutor's appeal, reversing, by unanimous decision, Pre-Trial Chamber I’s decision of 4 March, 2009, to the extent that Pre-Trial Chamber I decided not to issue a warrant of arrest in respect of the charge of genocide. The Appeals Chamber directed the Pre-Trial Chamber to decide anew whether or not the arrest warrant should be extended to cover the charge of genocide

  • The Prosecutor v. Bahr Idriss Abu Garda, the Chairman and General Coordinator of Military Operations of the United Resistance Front, indicted as co-perpetrator or indirect co-perpetrator on three counts of war crimes (violence to life in the form of murder, whether committed or attempted, intentionally directing attacks against personnel, installations, material, units or vehicles involved in a peacekeeping mission and pillaging). The first appearance in the case took place on 18 May 2009. On 8 February 2010, Pre-Trial Chamber I refused to confirm the charges against Abu Garda. On 23 April 2010, the same chamber issued a decision rejecting the Prosecutor's application to appeal the decision declining to confirm the charges.

  • The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus: Abdallah Banda Abakaer Nourain is the Commander-in-Chief of the Justice and Equality Mouvement Collective-Leadership, one of the components of the United Resistance Front. Saleh Mohammed Jerbo Jamus is the former Chief of Staff of SLA-Unity, currently integrated in Justice and Equality Mouvement. They are charged with violence to life, intentionally directing attacks against personnel, installations, material, units or vehicles involved in peacekeeping and pillage. 
Further reading: "Sudan: Justice, Peace and the ICC", International Crisis Group, Africa Report No. 152, 17 July 2009

Permanent Court of Arbitration

The Government of Sudan and The Sudan People's Liberation Movement/Army (Abyei Arbitration), Final Award, 22 July 2009

In the aftermath of the 2002 Machakos Protocol, which provided for the progressive implementation of a peace agreement and an eventual referendum to determine whether southern Sudan should become independent, the north and south could not agree on the delimitation of the oil-rich Abyei region.

The present Award was rendered following a 7 July 2008 Arbitration Agreement between The Government of Sudan and The Sudan People’s Liberation Movement/Army. It evaluated and adjusted the delimitation proposed by the Abyei Boundaries Commission, established pursuant to the Comprehensive Peace Agreement signed by the Parties on 9 January 2005. The Tribunal established that Abyei is mainly composed of Ngok Dinka, a politically powerful tribe sympathetic to the south. Its new boundaries exclude a large Chinese-run oil field at Heglig and other fields, but include at least one working field. The Parties have expressed their satisfaction with the Award, as have the European Union and the United States.

Further reading: John R. Crook, "Abyei Arbitration – Final Award", ASIL Insight, Volume 13, Issue 15, 16 September 2009

African Commission on Human and Peoples' Rights

The complainant represented 14,000 Ethiopian refugees who fled Ethiopia prior to 1991, during the Mengistu regime, and who had lived in Sudan until they were subject of forced repatriation pursuant to a decision adopted by the Respondent State and the United Nations High Commissioner for Refugees (UNHCR) in September 1999. All Ethiopian refugees in Sudan had been previously granted asylum by the Government of Sudan in accordance with its international obligations. In September 1999, the Government of Sudan signed an agreement with the UNHCR to invoke the Cessation Clauses Article 1(C)(5) of the 1951 UN Convention Relating to the Status of Refugees with effect from 1 March 2000. By this agreement, Ethiopian refugees in Sudan would lose their right to work or receive any social assistance as a way of coercing them into repatriation back to Ethiopia. The African Commission examined the Cessation Clause and the non-refoulement principle under the Refugee Convention and came to the conclusion that the allegations concerning violations of Arts. 3, 4, 5, 6, 7, 12(3), (4) and (5) of the African Charter had not been proven.

The complainants alleged gross, massive and systematic violations of human rights by the Republic of Sudan against the indigenous Black African tribes in the Darfur region (Western Sudan), in particular, members of the Fur, Marsalit and Zaghawa tribes. These violations included large-scale killings, the forced displacement of populations, the destruction of public facilities and properties and the disruption of life through bombing by military fighter jets in densely populated areas. The Commission found violations of the right to freedom from discrimination, of the right to equality before the law and to equal protection of the law, of the right to life, of the prohibition of torture and cruel, inhuman and degrading treatment, of the right to personal liberty and of the protection from arbitrary arrest.

US courts

  • Liability for 2000 al-Qaida bombing of the USS Cole

In July 2007, US District Judge Robert Doumar of the US District Court for the Eastern District of Virginia ordered that Sudan pay almot $8 million to the families of seventeen crew members killed in the 2000 al-Qaida bombing of the USS Cole in the Yemenite port of Aden. After hearing expert testimony claiming that Sudan had allowed al-Qaida to run training camps  and provided its members with diplomatic passports for travel and to smuggle explosives, Judge Doumar found that

"There is substantial evidence in this case presented by the expert testimony that the government of Sudan induced the particular bombing of the Cole by virtue of prior actions of the government of Sudan."

Sudan's claim for sovereign immunity had been dismissed due to the country's having been listed as a state sponspor of terrorism since 1993. 

In 2009, a US federal judge ordered that Sudanese funds be unfrozen in order to allow for the compensation of victims' families. Prison sentences and one death sentence had been previously issued in courts in Yemen against those involved in the attack on the USS Cole.

In March 2009, the US Court of Appeals for the DC Circuit upheld the dismissal of a $50 million lawsuit against the US for the 1998 executive order authorizing a missile strike against a Sudan pharmaceutical plant. The order, issued by former president Bill Clinton, had been justified as a response to terrorist attacks on US embassies in Kenya and Tanzania. The pharmaceutical plant owned by El-Shifa Pharmaceutical Industries Company and Salah El Din Ahmed Mohammed Idris was allegedly financed by Osama bin Laden and served as a base for terrorist operations. The three-judge panel found that Clinton's order was purely a political question and therefore not subject to judicial review.

Sudanese claim under the US Alien Tort Statute alleging that they are victims of human rights abuses committed by the Government of Sudan and that Talisman Energy Inc., a Canadian corportation, aided and abettet these abuses. Claim dismissed on the grounds that plaintiffs have not been able to prove that Talisman's provided "substantial assistance" or "purposeful complicity" in genocide, war crimes or crimes against humanity.

Source: Jurist Legal News and Research, Gazette Archive.

Last updated: 28 May 2011

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