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African Court of Justice impotent in ending human rights abuses

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In this image grab taken from handout video footage released by the Sudanese paramilitary Rapid Support Forces (RSF) on April 23, 2023, fighters wave assault rifles as they cross a street in the East Nile district of greater Khartoum. – Picture: Rapid Support Forces (RSF) / AFP

By Sizo Nkala

It has been 16 months since Sudan was plunged into a civil war, pitting the Sudanese Armed Forces (SAF) against the rebel force, the Rapid Support Forces (RSF). Multiple diplomatic endeavours by various parties such as the US, Saudi Arabia, the Intergovernmental Authority on Development and the AU to bring the conflict to an end and restore peace have hit a brick wall.

An estimated 16,000 people have been killed, 10 million have been forced out of their homes and 25 million (half of Sudan’s 50 million people) are reported to be in urgent need of critical humanitarian assistance. If the conflict continues, millions of Sudanese will be facing starvation and death due to famine.

Both sides have been accused of committing war crimes including torture, rape, arbitrary killings and starvation. In the Darfur region, which was the scene of a genocide between 2003 and 2020, the war is assuming a genocidal dimension.

This after the RSF forces, who have been accused of perpetrating the first genocide, are alleged to be targeting civilians along ethnic lines. Non-Arab ethnic groups have been victims of targeted ethnic killings.

Ending the conflict is complicated by the role of external actors who are allegedly supporting one over the other, with an eye on getting access to Sudan’s natural resources should their favoured side prevail.

The involvement of external actors has turned the civil war into a proxy war that could be indefinitely sustained by the deep pockets of the principals. The SAF is reportedly backed by Egypt, Saudi Arabia and Russia while the RSF has the support of the United Arab Emirates and the Russian private military company, the Wagner Group. Russia and the UAE both have intentions of establishing a foothold on Sudan’s Red Sea coast whose strategic value would be significant.

Egypt is concerned that the instability in Sudan may soon spill over to its borders hence the policymakers in Cairo are of the view that their country’s security interests would be best served if the SAF – a more professional army – prevails over the RSF – a militia outfit whose respect for international law may be limited.

However, the wanton and egregious assault on the human rights of innocent and unarmed Sudanese civilians should trigger a conversation about the need for more effective regional and continental institutions with enough power to disincentivise behaviour of the kind we are witnessing in Sudan.

We have seen numerous cases of gross human rights abuse across Africa in countries such as Liberia, Sierra Leone, Rwanda, the Democratic Republic of the Congo, Zimbabwe and in Sudan itself, to mention a few, go unpunished because of a lack of effective accountability mechanisms.

More than half-a-million people were killed in Ethiopia’s civil war between 2020 and 2022. Rape, sexual violence, mass starvation and torture were strategies of choice employed by both sides in the war.

Yet the camel has a better chance of passing through the eye of the needle than the perpetrators of the crimes against humanity facing justice. Despite the adoption of the African Charter on Human and People’s Rights by the Organisation of African Unity in 1981, human rights norms have not taken root within many African states.

The Sudanese belligerents are committing atrocities, with impunity, knowing that they will not have to answer for their crimes against humanity. While the African Court of Justice and Human Rights (ACJ) was established by the AU in 2004 to protect human rights by prosecuting those implicated in human rights violations, it had structural weaknesses that have rendered it unable to discharge its mandate.

Article 29 of the protocol establishing the ACJ states: “The court shall not be open to states which are not members of the AU. The court shall also not have jurisdiction to deal with a member state that has not ratified the protocol.”

Since its adoption in 2004, the Protocol on the Statute of the African Court of Justice and Human Rights has been ratified by only eight of the 54 member states. Sudan is one of the countries that has neither signed nor ratified the protocol which makes its leaders exempt from prosecution at the ACJ.

This is an easy cover for human rights violators. There is a need to amend the protocol to give the ACJ jurisdiction to deal with cases in all the member states of the AU otherwise the impact of the court will never be felt. What use is having a continental court that has jurisdiction in only 15 percent of the countries on the continent? What recourse do powerless African citizens have to get justice in the context of non-existent national institutions, a severely constrained continental court and an International Criminal Court that has lost legitimacy?

Most of the states that have refused to ratify the protocol have been the culprits in human rights abuse cases. Innocent civilians in Sudan who are victims of war crimes being committed by their ruling elites have little chance of getting justice because the same elites did not ratify the ACJ Protocol while incapacitating national institutions. As long as there is a vacuum in the continental justice system we may as well get accustomed to atrocities of the kind taking place in Sudan.

Dr Sizo Nkala is a Research fellow at the University of Johannesburg’s Centre for Africa-China studies.