Background on the domestication of International Crimes in Sudan

Sudan is not a State Party to the Rome Statute of the International Criminal Court (ICC). It initially demonstrated support towards the Court by signing the Rome Statute on 8 September 2000. Relations between the Court and Sudan began to sour following the outbreak of the armed conflict in Darfur in 2003. On 31 March 2005, the United Nations Security Council (UNSC) adopted Resolution 1593 (2005) referring the Darfur situation to the ICC. The Resolution took note of the report of the International Commission of Inquiry on Darfur, which had investigated alleged crimes committed in Darfur and identified international humanitarian and human rights law violations, as well as suspected perpetrators of these crimes. This resolution marked the first time that the UNSC had referred a situation to the ICC. Following the referral, the ICC Prosecutor conducted a preliminary examination, and decided to open an investigation into the situation in Darfur on 6 June 2005. A period of limited cooperation between the Court and Sudan followed, in which Sudanese authorities permitted five diplomatic missions from the ICC to visit Khartoum.

The cooperation came to a halt in April 2007, after the ICC issued its first warrants of arrest against Ahmad Muhammad Harun, former Minister of State for the Interior, and Ali Muhammed Abd-al-Rahman (Ali Kushayb), head of the Janjaweed militia. These were followed by a request for an arrest warrant to be issued against the President of Sudan, Omar al-Bashir, in August 2008. In response, the Sudanese government rescinded its signature of the Rome Statute and passed legislation making it illegal to cooperate with the ICC in Sudan. This series of events also influenced the introduction of an international crimes framework into Sudanese law, which is discussed in more detail below. For a detailed discussion on international criminal justice and the ICC, please see the information sheets entitled, “Understanding the role of the International Criminal Court (and its limitations) in Sudan”, “An introduction to International Crimes” and “The Global ‘System’ of International Criminal Justice”.

International crimes framework in Sudan

For several years, the Sudanese authorities had not shown a genuine commitment to investigating and prosecuting the crimes that had been committed during the conflict in Darfur. International pressure had however been mounting, and the issuance of arrest warrants by the ICC forced the hand of the authorities to show that efforts were underway to try these crimes domestically. Notwithstanding the law’s origins, the fact that Sudan has incorporated international crimes into its laws is still a positive step.

Regrettably, the domestic international crimes framework does not always comply with international law definitions and standards. Not only is there a tendency to mix the elements of the three core international crimes in the language used to define the offences, thereby creating confusion, but in some instances, such as the crime of genocide, new material elements which are not found in the 1948 Genocide Convention, are introduced into the offence. While this offence has not yet been tested in the domestic courts, it nevertheless raises the question about how this crime would be prosecuted in practice. In short, there is a need to reform the domestic international crimes framework to bring it in line with international standards. 

International criminal offences in the Armed Forces Act 2007 and Criminal Act of 1991 (as amended 2009)

By amending the Armed Forces Act in 2007 and the 1991 Criminal Act two years later, the Sudanese government incorporated the international crimes of genocide, crimes against humanity and war crimes into national law. The international crimes framework was incorporated into Part 3, Chapter 2 of the Sudanese Armed Forces Act, which deals with offences and contraventions of the Act committed by armed forces personnel during operations, and offences committed against civilians during military operations. This was followed by amendments to the Criminal Act in 2009, which incorporated the core international crimes of genocide, crimes against humanity and war crimes into the code. This latter amendment was made in a more comprehensive manner than the amendments made to the Armed Forces Act two years earlier. 

1. Genocide
   The crime of genocide is dealt with under article 153 (1) of the Armed Forces Act. The crime itself is not explicitly stated in the law but can be deciphered from the description. The chapeau of the relevant Article states that the offence occurs when an actor “…commits, attempts or instigates the commission of an offence, or offences of murder of an individual or individuals of a national, ethnic, racial or religious group,…. with intent to partially, or totally exterminate, or destroy, within the context of a clear methodical conduct, directed against such group.” (emphasis added) This definition is not in conformity with the Genocide Convention of 1948, as it incorporates murder into the chapeau, thus making it a requirement for each of the underlying elements of the offence. The Article therefore sets an even higher threshold than envisaged under international law, thus making it very difficult to prosecute the offence in practice.Secondly, there is a mix of language with elements of the crime of genocide and crimes against humanity being used in the definition, with the words‘within the context of a clear methodical conduct, directed against such group’. . which is also not present in the Genocide Convention.The same can be said for the definition of the crime of genocide provided in Article 187 of the Criminal Act 1991 (as amended 2009). Here, the crime is explicitly stated in the law. As with the Armed Forces Act, however, the crime requires killing as part of the actus reus (guilty act). The section states, “Shall be sentenced to death, life imprisonment or any lesser penalty whoever commits, attempts to commit, or incites to commit homicide against the members of a national, ethnic or religious group as such with the intent to partially or wholly exterminate or destroy the same in the context of an extensive or systematic conduct directed against that group and in the same context performs one of the following acts…” (emphasis added). Once again, we see that the definition appears to mix elements of the internationally recognised definition of crimes against humanity, by including a reference to “extensive or systematic” conduct.
2. Crimes against humanity
   Similar to the crime of genocide, the term crimes against humanity is not explicitly used in Article 153 (2) of the Armed Forces Act. The chapeau of the Article requires that the offence be committed ‘within the frameworks of a methodical direct and widespread attack, directed against civilians’, which differs from the Rome Statute, which imposes the requirement of a “widespread or systematic attack”. In addition, the list of inhumane acts in the Article is not as comprehensive as that provided in the Rome Statute. Acts such as murder, extermination, illegal imprisonment, enforced disappearance, apartheid and other inhumane acts have been excluded from the Article, while adultery and fornication are included, thus marking a significant departure from international law.Unlike the Armed Forces Act, the definition outlined in Article 186 of the Criminal Act (2009) is more comprehensive.Again, departing from the definition in the Rome Statute, the Act requires a large-scale or systematic attack to be committed against any group of the civilian population. It states “… whoever commits alone or in association with others, encourages or supports any large-scale or systematic attack directed against any civilian population with knowledge of the attack, where he/she in the same context commits any of the following acts…” On a positive note, the Article includes a long list of gender crimes including rape, sexual slavery, enforced prostitution, forced pregnancy and enforced sterilisation.
3. War crimes
   War crimes are dealt with under Sections 154 to 163 of the Armed Forces Act. These are described as offences against persons enjoying special protection. Unlike the Rome Statute, there is no distinction made between crimes committed in an international or non-international armed conflict. There is also an omission of war crimes involving sexual violence.Articles 188 to 192 of the Criminal Act repress war crimes. As in the Armed Forces Act, no distinction is drawn between war crimes committed in different types of armed conflict. The definition further states that, ‘whoever knowingly commits in the context of an international or non-international armed conflict the following criminal acts…’, thus making the threshold for committing war crimes very high.The ICC elements of crimes require that the perpetrator be aware of the factual circumstances that establish the existence of an armed conflict, i.e., that the acts took place in the context of and were associated with an armed conflict.The following acts have also been excluded from the definition of war crimes: i) sexual slavery; ii) making improper use of a flag of truce, of the flag or the military insignia or uniform of the enemy or of the United Nations, as well as the distinctive emblems of the Geneva Conventions, resulting in death or serious physical injury; iii) the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all parts of the population of the occupied territory within or outside its territory.

Outbreak of armed conflict

The outbreak of the armed conflict in Sudan on 15 April 2023 between the Sudanese Armed Forces and Rapid Support Forces (RSF) introduces a new element with respect to the prosecution of international crimes domestically. The fact that Sudan has a domestic legal framework to try international crimes affords an opportunity for domestic courts to contribute to accountability for international crimes. As mentioned above, however, there are several loopholes in the law, and there is need for a comprehensive reform to bring it in line with international standards. 

Accountability for international crimes committed in the armed conflict 

On 13 July 2023, during his semi-annual briefing to the UN Security Council, ICC Prosecutor Karim Khan announced that he was investigating fresh allegations of war crimes and crimes against humanity in the Darfur region, including the killing of eighty-seven members of the ethnic Masalit community. During the briefing, Khan stated that under Resolution 1593 of 2005, the ICC has an ongoing mandate with respect to the crimes of genocide, crimes against humanity and war crimes committed in Darfur. He further stated that his Office was prioritising crimes against children, and crimes of sexual and gender-based violence.

In August 2023, General Abdel Fattah al-Burhan announced the formation of a committee to investigate human rights violations and crimes committed by the RSF since 15 April 2023, and the intention to submit a dossier on alleged crimes committed by the RSF to the ICC.  

Challenges to the implementation of international criminal law in Sudan

1. Inadequate legal framework to try international crimes – As noted above, the international crimes framework in Sudanese law displays a number of shortcomings. Hence, these laws must be reformed to better harmonise them with international law.
2. Command/Superior responsibility – Sudanese law does not include criminal liability on the grounds of command or superior responsibility. Command responsibility is a doctrine of international criminal law whereby commanders or superiors can be held responsible for serious crimes committed by subordinates under their effective control, about which they knew or should have known, and for which they failed to take measures to prevent or punish.
3. Immunities: Sudanese law grants security forces personnel, including police officers  and members of the armed forces, conditional immunity. This means that these individuals can only be subjected to a full investigation, prosecution and trial, if the head of their respective enforcement agency expressly lifts their immunity. There are several examples of law enforcement and other security agents evading justice in Sudan, due to their immunity not being waived by the relevant authorities, thus impeding the implementation of justice and accountability processes.
4. Ratification of treaties – There is a need for Sudan to harmonise its legal system with international norms and principles. By extension, therefore, country needs to ratify and adopt relevant international treaties and domesticate the relevant provisions.  For instance, Sudanese law does not fully criminalise the crime of torture in line with international standards, despite a number of legal amendments which were introduced in July 2020 and strengthened protections against torture.
5. Reparations – Sudanese law does not recognise an explicit right to reparations or effective remedy for victims of international crimes or other serious human rights or humanitarian law violations.
6. Legality principle – Under this principle an accused person cannot be accused of crimes that did not exist in the law at the time of their commission. The fact that the Sudan’s Armed Forces Act and Criminal Act were amended long after the Darfur conflict began in 2003 means that many of the offences arising from this conflict would not be tried as international crimes under these laws, pursuant to the principle of non-retroactive application of the law. There is, however, an exception to this principle under international law: in cases of very serious crimes that are considered common law, the principle of legality does not apply. Article 15(2) of the International Covenant for Civil and Political Rights states that the principle of non-retroactivity does not apply for crimes under “the general principles of law recognised by the community of nations.”
   In any event, the international crimes framework is applicable to crimes committed after the Armed Forces Act and the Criminal Act were amended in 2007 and 2009 respectively, thereby including crimes committed within the context of the armed conflict that began on 15 April 2023.
7. Statute of Limitations – Under Article 38 (3) of the Sudanese Criminal Procedure Code, the international crimes added to Chapter 18 (Amendments made to the Criminal Act in 2009) are subject to a prescription period of ten years, as these offences are punishable with death or imprisonment of ten years or more. In contrast, under the Rome Statute, crimes coming within the jurisdiction of the Court are not subject to any statute of limitations.
8. Need for capacity building in international criminal law – Capacity building is an essential first step for national prosecutors and judges involved in prosecuting and trying international crimes. Prior to the outbreak of the armed conflict in Sudan, the capacity gap in international criminal law and procedure within the Sudanese judicial system had already been identified. This gap has been further exacerbated by the outbreak of the conflict on 15 April 2023, with several lawyers, prosecutors and judges having either fled the country or been displaced. It will take some time to rebuild the Sudanese legal system and the necessary capacity to pave the way for domestic trials for international crimes, with one of the prerequisites being the cessation of hostilities. One of the ways to continue pursuing justice and accountability is through the ICC, as well as exploring opportunities for creative litigation on behalf of Sudanese victims. Various measures may be adopted towards this end, including filing universal jurisdiction cases, turning to regional mechanisms such as the African Commission on Human and People’s Rights, or using international human rights mechanisms to seek redress.  

Key takeaways

• The domestication of international crimes into Sudanese law is widely seen as a response to UNSC Resolution 1593 (2005) and the subsequent involvement of the ICC in Darfur.
• The two main laws that allow for the prosecution of international crimes under Sudanese law are the Armed Forces Act of 2007 and the Criminal Act of 1991 (as amended in 2009).  
• In many instances, Sudanese law on international crimes does not comply with international law. There is a need to reform the law in order to bring it in line with international law and standards.
• Exploration of opportunities for creative litigation: to advance the goals of accountability and respect for and protection of rights guaranteed both in domestic law and in regional and international treaties, it may be necessary to explore opportunities for creative litigation. Various measures may be adopted towards this end, including turning to regional mechanisms such as the African Commission on Human and People’s Rights, filing universal jurisdiction cases, or using international human rights mechanisms to seek redress.  

Further reading materials

• Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General – September 2004 (EN)
• Accountability and Justice for International Crimes in Sudan – A guide on the role of the International Criminal Court. See Part IV on the ICC and Darfur (pages 21 -30) – Redress May, 2007 (EN)
• Domestic Accountability Efforts in Sudan – Policy Briefing SOAS & Redress, May 2021 (EN)
• Sudan Legal Resources – Redress. (EN) Includes the The Armed Forces Act as amended 2007 (EN) (AR) and the Criminal Act of 1991 as amended in 2009  (EN) (AR), 
• Criminal Law and Human Rights in Sudan: A Baseline Study – March 2008, Redress and KCHRED (EN)
• The Prosecution of International Crimes under Sudan’s Criminal and Military Laws: Developments, Gaps and Limitations, Mohamed Abdelsalam Babiker (161-183) Published in Criminal Law Reform and Transitional Justice in Sudan – Human Rights Perspectives for Sudan Routledge – Published in 2009 
• Q&A: Justice for Serious International Crimes Committed in Sudan – Human Rights Watch, June 2020 (EN) (AR)