Impunity

It is widely recognised that there is a close nexus between impunity and the persistence and scope of human rights violations. In Sudan , impunity for officials is facilitated by the lack of recognition of international crimes, inadequate offences, immunity legislation and special courts. The Criminal Code now recognises the crimes of genocide, crimes against humanity and war crimes (following an amendment in May 2009). The Armed Forces Act of 2007 for the first time recognised international crimes in the context of armed conflict. However, the definition of international crimes in both acts is partly at variance with their internationally recognised understanding. In addition, modes of criminal liability, such as command or superior responsibility, are not fully recognised.

The definition of torture in Article 115 (2) of the Criminal Act is deficient. It does not criminalise acts of torture in line with the internationally recognised definition and carries inadequate punishments. Sudanese criminal law also does not recognise the crime of enforced disappearances, which states are bound to prosecute and punish under international law.

The National Security Forces Act of 1999, the Police Act 2008 and the Armed Forces Act 2007 provide immunities for state officials for any acts committed in the course of their duties. The immunities shield officials from any civil suits or criminal prosecutions unless the head of their forces approves such legal action. In practice, immunity legislation has resulted in impunity for serious human rights violations. Amnesties that may cover individuals who have committed international crimes, such as Presidential Decree No.114 in the context of the Darfur Peace Agreement, equally contribute to impunity and should be abolished. The provision of amnesties is contrary to the right to litigate in the Bill of Rights but and to the state's obligations under international law.

There is no legislation that provides effective protection of victims and witnesses. The lack of protection of victims and witnesses, for instance, to ensure that they do not suffer reprisals when coming forward to report a crime or to seek a remedy, has contributed to impunity, especially in the course of conflict. Equally there is no adequate legislation providing the freedom to advocate for human rights, to exercise legitimate human rights activities and to be protected against threats, harassment or other attacks. Human rights defenders have been repeatedly subjected to threats, harassment and torture, a practice that violates their rights and undermines their work.

The National Human Rights Commission Act has been adopted in early 2009 but the Human Rights Commission Bill has yet to be established. At present, there are no independent oversight mechanisms.

Our position:

In our Position Paper on the proposed amendment of the Criminal Code in 2008, we proposed the following in respect of international crimes:

  • The offences of genocide, crimes against humanity and war crimes should cover all internationally recognised elements of the respective crimes
  • The following complementary changes should be made in order to ensure justice and accountability for international crimes:
  • Commanders or superiors should bear criminal responsibility for any international crimes committed by their subordinates where a commander or superior fails to prevent crimes he knew or should have known about even though he could or should have stopped those crimes;
  • There should be no immunities for officials for any criminal offences, in particular not in relation to international crimes;
  • International crimes should not be subject to any statutes of limitations;
  • Victims of international crimes and other serious violations should be provided with the right to an effective remedy and reparation;
  • The definition of international crimes in the Armed Forces Act 2007 should be brought in conformity with the proposed changes.

We propose that the Police Act be amended and a new Security Forces Act be adopted that repeal immunity legislation and remove the jurisdiction of special courts to try police and security personnel.