The Dominant Role of Commanders in the Sudanese Military Justice System and Accountability for International Crimes

The war in Darfur dates back to 2003 when the non-Arab population of Darfur launched attacks against the government of Sudan.¹ The government retaliated and several atrocities have since been and continue to be committed by both rebel groups and the Sudanese Armed Forces (SAF).² Human Rights Watch reports that in 2014, the SAF raped over 200 women and girls in an organised attack.³ Multiple cases of torture against civilians in Darfur have also been reported. More recently, in 2015, over 3,000 villages in Darfur were destroyed by the SAF. Reports of civilian killings have also featured prominently in attacks by the SAF. Civilian property including livestock, residential structures and farm produce has not been spared in these attacks. Examples are indeed inexhaustible, but considered together, it is estimated that up to 400,000 civilians have died, over 3 million people have been displaced, thousands are starving due to the withholding of humanitarian support, and many thousands, especially women and girls, have been raped.⁴ What is especially pertinent is that in several attacks, ‘army commanders directly commanded and coordinated attacks in full knowledge that they were attacking civilians.’⁵ Reports indicate that in some cases, commanders of Sudanese government troops gave clear instructions to their subordinates to carry out atrocities against civilians.⁶ It is important to note that attacks by national defence forces are not just peculiar to the SAF in Sudan. In recent years, similar attacks have equally resonated in conflicts in Uganda, Kenya, Mali, Côte d'Ivoire, Somalia, the Democratic Republic of Congo, Libya, Burundi, the Central African Republic, Eritrea and Liberia. The atrocities committed in Darfur and similarly situated states constitute international crimes that warrant prosecution at the national and international level.⁷

In 2007, Sudan enacted the Armed Forces Act. For the first time, the Armed Forces Act criminalised international crimes, with these crimes falling under the jurisdiction of Sudan's military courts.⁸ The Armed Forces Act does not explicitly make mention of the terms ‘war crimes’, ‘crimes against humanity’ or ‘genocide’ as labels to international crimes. Nonetheless, the crimes proscribed under this Act are in many respects similar to those criminalised under the Rome Statute of the International Court (ICC Statute) as war crimes, crimes against humanity and genocide.⁹ Some differences are, however, evident. For instance, the Armed Forces Act does not draw a distinction between war crimes committed in an international armed conflict and those committed in a non-international armed conflict.¹⁰ Despite the fragmentation in criminalisation, Sudan's Armed Forces Act represents the first step in the direction of holding those responsible for international crimes to account at the national level. As one commentator has noted: with Sudan's domestication of international crimes, ‘western busybodies peering into Sudan's windows [can rest assured] that [Sudan has] its legal house in order.’¹¹ One Sudanese official was also of the opinion that with international crimes explicitly proscribed by the Armed Forces Act, ‘[n]ow courts start looking at crimes committed in the West [Darfur].’¹²

On balance, there is a prima facie indication that Sudan is equipped, at least as far as the legislative framework is concerned, to hold members of the SAF to account for the crimes allegedly committed in Darfur. The question left unresolved, however, is whether the military justice framework of Sudan makes the said prima facie position practicable. The purpose of this article is to assess whether, given the dominant role of commanders in Sudan's military justice system, accountability is feasible with regard to commanders and top army officials. Additionally, in recent times, there is a trend among states to reform their military justice systems with a view to curtailing the role of commanders.¹³ It has been argued, inter alia, that such reforms will allow military courts to be independent and ultimately, to ensure that trials are fair. Arguably, these reforms could also ensure that commanders are held to account at the national level. The article assesses whether these reforms, though desirable, could lead to unintended consequences, such as making it harder for other forums like the ICC to hold commanders to account. Before engaging with the foregoing issues, the article describes the structure of military justice in Sudan and the exact place of international crimes in Sudan's military justice system.

The SAF is a constitutionally established force.¹⁴ It is mandated, among other aims, to ‘assist in addressing national disasters’ and it is arguably based on this mandate that the said forces intervened in the Darfur conflict.¹⁵ The military justice system regulating the SAF also finds its force in Sudan's Constitution, which provides, inter alia, that ‘military courts and military legal services shall be regulated by law.’¹⁶ This provision forms the basis for the enactment of the Armed Forces Act, and in particular the entrenchment of a detailed framework of military justice within the Armed Forces Act. Chapter XI of the Armed Forces Act establishes Sudan's Military Judicature. The Military Judicature has jurisdiction over all judicial, legal and justice work pertaining to the SAF.¹⁷ Thus all the atrocities committed by members of the SAF, including international crimes, fall within the ambit of the Military Judicature's jurisdiction.

The Military Judicature is composed of six types of court, namely the Minor Field Court, the Major Field Court, the Summary Court Martial, the Central Court Martial, the General Court Martial and the Military Court of Appeal.¹⁸ The Minor Field Court has jurisdiction over offences which occur in the field or by those connected to field operations.¹⁹ This Court may pass any penalty except death or imprisonment not exceeding three years.²⁰ The Major Field Court, just as the Minor Field Court, considers offences committed in the field or related to field operation.²¹ However, given that it is a major court, it has powers to pass higher sentences than the Minor Field Court, if the said sentence does not exceed seven years of imprisonment or does not encompass death.²² Put precisely, the offences under the jurisdiction of the Major Field Court are graver than those falling within the ambit of the Minor Field Court.

The Summary Court Martial exercises jurisdiction similar to that of a Minor Field Court except that its jurisdiction does not encompass offences committed during field operations. Thus, just like the Minor Field Court, the Summary Trial Court has jurisdiction over any offence under the Armed Forces Act to the extent that the sentence it passes does not exceed three years of imprisonment.²³ The Central Court Martial exercises jurisdiction similar to that of a Major Field Court. However, its jurisdiction also does not include offences committed during field operations. Thus, just like the Major Field Court, the Central Court Martial has powers to pass sentences not exceeding seven years of imprisonment.²⁴ The General Court Martial is the only court martial with unlimited original jurisdiction over all offences under the Armed Forces Act.²⁵ This Court also has power to pass any sentence prescribed by the Armed Forces Act.²⁶ The Military Court of Appeal is the highest court in Sudan's Military Judicature and it serves as an appellate court, considering appeals from the...