Members of national defence forces are increasingly being implicated in the commission of international crimes. In Sudan, for example, reports indicate that members of the Sudanese Armed Force (SAF) are responsible for a wide range of international crimes in respect of the Darfur war. In 2007, Sudan amended the Armed Forces Act by, inter alia, criminalising international crimes. The explicit criminalisation of international crimes is commendable as it provides a legal basis for holding members of the SAF to account for the international crimes allegedly committed. The question left unresolved, however, is whether, given the dominant role of commanders in the Sudanese military justice system, it is feasible to hold commanders of the SAF to account. By critically analysing selected aspects of Sudan's Armed Forces Act, this article argues that the dominant role of commanders in Sudan's military justice system makes holding commanders to account unviable at the national level. The article, however, questions whether making reforms to the dominant role of commanders would create lasting solutions to this accountability gap. Could, perhaps, the dominant role of commanders create an entry point for other forums such as the International Criminal Court (ICC) to hold commanders to account, on the basis of the principle of command responsibility?
African Journal of International and Comparative Law – Edinburgh University Press
Published: Aug 1, 2018