Q&A – Why should the mandate of the Fact-Finding Mission (FFM) for Sudan be extended at HRC57?

27 August 2024

– English version of the Q&A document
– Questions/Réponses: document en français

Nearly 80 Sudanese, African, and international NGOs have called for the extension of the man­date of the Independent International Fact-Fin­ding Mission (FFM) for Sudan, which the UN Hu­man Rights Council established at its 54^th regu­lar session (through resolution 54/2), in October 2023.

This Question and Answer document seeks to address key questions that may arise as States con­si­der their position ahead of the Council’s 57^th session (HRC57, 9 September-11 October 2024), du­ring which the FFM will present a writ­ten report. The signatory organisations urge Sta­tes to support a reso­lution that extends the FFM’s mandate for at least one year.

1. What is the situation in Sudan?

Almost a year and a half after the start of the conflict, on 15 April 2023, violations of inter­na­tional humani­tarian law and human rights vio­lations and abuses continue to be com­mit­ted by all par­ties to the conflict in Sudan. Some of these abuses constitute war crimes and cri­mes against hu­manity.

According to the FFM, the conflict is charac­te­r­ised by its urban and widespread nature, “with civi­lians placed at the centre of extreme vio­len­ce.” Blatant disregard for international human rights and humanitarian norms by both the Sudanese Armed Forces (SAF) and the Rapid Sup­port Forces (RSF) and allies has led to both targeted and indiscriminate attacks, including airstrikes, on civilians and on hospi­tals and schools. Medical personnel, humanitarian wor­kers, teachers, lawyers, jour­na­lists and human rights defenders have been targeted.

Warring par­ties have carried out loot­ing, arbi­trary deten­tion, torture, enfor­ced disappear­an­ces, and rape, gang-rape and other forms of sex­ual vio­lence, including sexual sla­very, as a tool of war to “subjugate, terrorise, break and pu­nish wo­men and girls, and as a means of punishing spe­cific communities.” In Darfur and elsewhere, the RSF and affiliated militias have bur­ned houses and villa­ges and committed atrocities against Massalit and other non-Arab commu­ni­ties. Human Rights Watch and other organi­sa­tions have concluded that the targeted at­ro­ci­ties against the Mas­sa­lit people and other non-Arab communities with the apparent objec­tive of at least having them permanently leave the region cons­ti­tutes ethnic cleansing. The UN Under-Se­cretary-General and Special Adviser to the Sec­re­tary-General on the Prevention of Ge­no­­cide warned that the “the situation today bears all the marks of risk of genocide, with strong alle­ga­tions that this crime has already been commit­ted.”

The conflict, which is fuelled by a constant flow of arms, has resulted in a grave humanitarian cri­­sis. Sudan is facing the world’s largest in­ternal displacement crisis, with over ten million people for­ci­bly dis­placed from their homes, inc­lu­ding more than two million who have fled to neigh­bou­ring coun­­tries. ­­­­­

2. How does the gravity of the situation in Sudan currently compare to the situation when the FFM was established by the HRC?

In the time since the FFM was first authorised, in October 2023, the human rights situa­tion in Su­dan has further deteriorated. The geogra­phic scope of the conflict, and accompanying violations of international humanitarian law, expanded from Darfur, Khartoum and Om­dur­man to include Gezira, Sennar, and White Nile. Now, more than 10 million people have been for­ced to flee their homes, more than in any other country currently. At least 25 million people are facing crisis levels of hunger and five million are facing starvation. The warring parties have blo­cked the delivery of aid and prevented unfet­tered humanitarian access to the millions of ci­vi­lians in need. According to UN ex­perts, “both the SAF and the RSF are using food as a weapon and starving civilians.” 

3. Why is the FFM an essential part of the international response to the crisis?

• A broad investigative and accountability mandate

The FFM plays a crucial role to support fact-fin­ding, accountability, and truth and justice for the victims. Its mandate inc­ludes investiga­ting and establishing the facts, circumstances and root cau­ses of all violations and abuses in Su­dan; collec­ting, consolidating and analysing evi­dence; recor­ding and preserving infor­mation; documen­ting and verifying relevant information and evidence; and identifying, where pos­sible, those indivi­du­als and entities responsible with a view to ensuring that they are held accountable. The FFM’s man­date also includes making rec­om­mendations, in parti­cu­lar on accountability measures, with a view to ending impunity and addressing its root causes. It is mandated to report to the UN Human Rights Council and Ge­ne­ral Assembly, and to cooperate and share best practice with other international, regional and domestic accountability initiatives.

The FFM is presently the only international me­cha­nism with the mandate, expertise and ex­pe­­ri­ence to independently investigate and re­port on violations committed in the entire ter­ri­tory of Sudan since 15 April 2023, including their root causes. The International Criminal Court (ICC) has an ongoing investigation in Dar­fur, which includes crimes since April 2023, but it does not have juris­diction outside of the re­gion. In August 2024, the African Commission on Human and Peoples’ Rights (ACH­PR) adop­ted a resolution establishing a Joint Fact-Finding Mis­sion (with the African Union (AU) Peace and Se­cu­rity Council). The Mission had not been ope­rationalised at the time of writing, and it is not clear whether – and to what extent – it will have capacity to preserve the evidence col­lec­ted (see sec­tion 5 below).

The FFM’s col­lec­tion and preser­va­tion of evi­den­ce functions, as well as its ability to identify those responsible, mean that it remains uni­que­ly placed to esta­blish the facts and advance ac­counta­bility. It is complementary to regional ef­forts, including the recent ACHPR initiative, and it can work together with the ICC’s investi­ga­tions.

• How can the FFM make a difference?

Impunity is at the heart of the current crisis and of cycles of violence in Sudan. It is a key fac­tor and a driver of violations. Although the ICC issu­ed arrest warrants addressing crimes com­mitted in Darfur as far back as 2003, only one case has been brought to trial so far. The failure to act on ICC arrest warrants and other steps to hold accountable those responsible for similar atro­ci­ties in the past, including 20 years ago in Dar­fur, has encouraged parties to the current conflict to believe that perpetrating crimes ag­ainst civilians is acceptable and would go unpu­nished. The current crisis shows that the ab­sence of accountability for atrocities committed ag­ainst civilians increases the risk of re­currence and undermines prospects for sustainable se­cu­rity and respect for human rights.

As impunity is a key driver of cycles of violence in Sudan, facilitating accountability is a sine qua non to fight and deter violations. In this regard, the work of the FFM also has a preventive ele­ment in­so­far as it preserves the prospects for those who commit violations and abuses to be held to account.

The FFM’s work to collect and preserve evi­den­ce minimises risks that such evi­dence will get lost due to a lack of investigations or intentional destruction, which would under­mine prospects that victims and survivors can obtain justice in the future before national or international courts.

Alongside the ICC, the FFM is the only interna­tional mechanism that prioritises accoun­ta­bi­lity, ma­king a unique contribution to global ef­forts to address and find a long-term solution to the crisis. The FFM’s work could also contribute to the exercise of universal jurisdiction before na­tional courts. 

4. Can the FFM be effective without the cooperation of the Sudanese authorities?

Yes. Over time, independent mechanisms esta­bli­shed by international and regional human rights bodies have devised methodologies, tools, and methods of work to document, inv­es­tiga­te and esta­blish the facts, circumstances and root causes of violations, collec­t and pre­serve evidence, and identify perpetrators even without access to the territory of the country concerned. For instance, they have: (i) gathe­red first-hand information from victims, survivors, witnesses, and other key sour­ces such as civil society actors, journalists, medical personnel, and UN agencies; (ii) conducted in­ter­views with refugees and asylum-see­k­ers in neigh­bou­ring coun­tries; (iii) reviewed official docu­ments and data; (iv) conducted remote monito­ring; (v) ana­lysed the legal and policy framework, as well as practices and patterns of violations; (vi) used open-source investigations; and (vii) used fo­ren­sic analysis.

In recent years, commissions of inquiry and other independent mechanisms established by the Hu­man Rights Council have been able to produce detailed reports highlighting human rights violations and crimes under international law in, among others, Burundi, Myanmar, North Korea, Syria, and Yemen, and to attribute res­pon­sibility to perpetrators.

The Sudanese authorities’ refusal to cooperate with the FFM and to grant it access will not pre­vent the members and secretariat of the FFM from carrying out their work.

This being said, Sudan’s Council Membership comes with obligations, including to “uphold the high­est stan­dards in the promotion and pro­tection of human rights” and to “fully cooperate” with the Council and its mechanisms. Non-cooperation should not be rewarded or accep­ted. Pressure for access, co­ope­ration, and imp­le­mentation of the FFM’s recommendations should continue. 

5. What other mechanisms exist, and why aren’t these enough to address the crisis?

• Existing UN and regional bodies and mechanisms

The various regional and international initiatives to address the crisis in Sudan and alleviate the suf­fer­ing of the Sudanese people are important and comple­mentary. Several UN and regional bodies and mechanisms have been involved, each with different mandates and respon­sibi­lities [list not ex­haustive]:

• The OHCHR country office in Sudan (cur­rently operating from Nairobi) has a broad man­date that includes monitoring, tech­nical assistance and capacity-building. Its operations are based on an Agreement si­g­ned in 2019 between the UN High Com­mis­sioner for Human Rights and Sudan’s Tran­si­tional Government. It does not, however, conduct investigations with a view to sup­porting current or future accountability pro­cesses.
• The High Commissioner’s Designated Ex­pert on human rights in the Sudan is tas­ked, with the assistance of and in close co­ope­ration with the OHCHR country office, with monitoring the situ­ation in Sudan and engaging with all relevant parties on the developing situation of human rights since the military takeover of 25 October 2021. His work will conclude upon the restoration of Sudan’s civilian-led Government. He does not undertake investigations or col­lec­tion and pre­ser­vation of evidence.
• The UN Secretary-General’s Personal En­voy for Sudan has focused on peace and secu­rity issues. He does not have a man­date to investigate violations or identify per­pe­trators, and at present his office does not include human rights, protection of civi­lians or conflict-related sexual violence ex­pertise.
• The UN Security Council Sudan Panel of Experts, among other things, assists the Com­mittee established pursuant to reso­lu­tion 1591 (2005) in monitoring the imple­men­tation of the measu­res imposed by the Security Council and assesses progress to­wards reducing violations of the arms em­bar­go and violations of international huma­nitarian law and violations and abuses of human rights. It does not have collection and pre­servation of evidence functions and does not prepare case files for prose­cu­tions.
• The AU High Level Panel on Sudan works with all relevant Sudanese stakeholders to foster an all-inclusive dialogue aimed at brin­ging an end to the conflict and putting in place a process towards lasting peace in the country. It does not have a mandate to investigate violations or identify perpe­tra­tors.
• The AU Peace and Security Council (PSC) has adopted communiqués regarding the situ­ation in Su­dan, including Communiqué 1218 of 21 June 2024. It focuses on peace and security, inc­lu­ding protection of civi­lians. It has nonetheless supported inves­ti­gations into violations inc­lu­ding by the ACHPR. It has also mandated its Sub-Com­mittee on Sanctions to lead on “iden­ti­fy [ing] all external actors supporting the war­ring factions militarily, financially and politi­cally” and to “make proposals on how to contain each of them”.
• The ACHPR adopted resolution 588 (LXXIX) 2024 in June 2024, in which it ex­pressed “its willingness to join the efforts of the international community, and in par­ticular those of the Uni­ted Nations and its Human Rights Council” and envisaged “the dispatch of a fact-finding mis­sion to the Republic of Sudan to investigate human rights violations and breaches of huma­nitarian law from April 15, 2023 to date.” On 2 August, it adopted resolution Res.590 (LXXX) 2024, in which it decided to under­take a Joint Fact-Finding Mission with the AU PSC. Established for an initial period of three months, the Mission will operate in a hybrid format. It will conduct “an on-site investi­gation in a designa­ted area of Sudan or neighboring States for [a] duration of two weeks, where possible.” It will also work remotely for an additional two weeks. As a new me­chanism, its capacity is yet un­tes­ted, but the envisaged duration of the inves­ti­gation poten­tially limits its depth and scope, and it is yet unclear whether – and to what extent – it will preser­ve the collected evidence to criminal courts’ standards.
• Mediation efforts aimed at a ceasefire and peace talks are ongoing. While the priority of poli­tical actors is an immediate ceasefire coupled with important endeavours to pro­tect civilians and ensure unfettered huma­ni­tarian access, mediation, good offices, and similar initiatives have historically not had a focus on accountability, including holding those responsible for grave viola­tions crimi­nal­ly accountable. Yet impunity is a key factor and driver of cycles of vio­lence, and any long-term solution in Sudan must centre accountability for grave vio­la­tions. The work of the FFM should therefore be seen not as separate from, but as com­ple­mentary to, these efforts.

These do not preclude exploring regional and international avenues for justice, as well as the exercise of universal jurisdiction, where­ver possible.

• The FFM’s distinctive focus on accountability

Investigative and other independent mecha­n­isms are often established by decisions of UN or regio­nal bodies to respond to crises or com­plex human rights situations. They play a crucial fact-finding role, publicly reporting on vio­lations of interna­tional law by all parties. They docu­ment violations for evidentiary pur­po­ses, col­lect and pre­serve evidence, analyse the crimes documented, and, when possible, iden­tify per­pe­tra­tors and help advance accoun­ta­bility. They conduct their work with a view to making the informa­tion collected usable in sup­port of fu­ture accountability efforts (inc­luding through domestic, regional and inter­na­tional processes or me­ch­a­nisms), facilitating the pre­pa­ration of case files for criminal procee­dings in ac­cor­dance with international stan­dards and aim­ing for a standard of proof and evidentiary requi­re­ments (including regarding “linkage” evidence that con­nects specific cri­mes to perpetrators and the chain of custody for the evidence col­lec­ted) as close as possible to those used by international judicial bodies. They can also play an important role towards transi­tional justice efforts that focus on truth-seeking and preser­ving a historical record.

Because it collects first-hand information on violations and testimonies from victims and sur­vivors, their famil­ies, witnesses and others with direct knowledge of the situation in Sudan, such as refu­gees and human rights defenders, and because it relies on a multiplicity of sources, using metho­do­logies in line with the practice of other investigative mechanisms, the FFM for Sudan is uniquely pla­ced to document not only specific instances of violations but also patterns of violations and responsibilities. This inclu­des identifying violations at the com­mand responsi­bility level, establi­sh­ing whether some types of violations have a widespread and/or systematic character, and showing how new violations are linked to previous cycles of violence and impunity.

Working with victims and survivors (recognising the harm they have suffered and their right to truth, justice and reparations), civil society, and networks, the FFM is well placed to promote truth, jus­ti­ce, reparations, and guarantees of non-recurrence. It also contributes to coherent global policy responses that integrate human rights issues into political, humanitarian, and other efforts. 

6. Could technical assistance for the National Commission of Investigation be an alternative to the work of the FFM? 

No. The National Commission of Investigation is not a credible alternative to the independent man­­date of the FFM to document crimes by all parties to the conflict and to advance accoun­ta­bility for grave violations. It does not have a mandate to establish the facts, including their root causes, of all violations and abuses in Sudan, to collec­t and preserve evidence, and to publicly re­port to the public, the UN, and the UN member states.

As indicated in the Sudanese authorities’ “Po­si­tion Paper on the Oral Update Session by the Fact-Fin­­ding Mission on Sudan on 18 June 2024,” prepared ahead of the Council’s 56^th ses­sion, the Suda­nese authorities formed a Natio­nal Commission of Investigation to “in­ves­tigate the violations and abuses of the rebel [RSF] militia and other crimes,” with the Attorney-General as its Chair. This Com­mission was esta­blished by Presidential Decree No. 143 of 21 July 2023 and is entirely focused on violations by the RSF and its allies. It does not investigate vio­la­tions committed by the SAF or other state enti­ties or agents, and therefore does not act as an inde­pendent check on executive power, espe­cially when SAF itself is a party to the conflict.

In their Position Paper, the Sudanese authorities also claimed that “the principle of ‘complemen­ta­rity’ should be applied so that the role of the Human Rights Council and its mechanisms is to com­ple­­ment, [foster] and build the capacity of the national mechanism under the provisions of [the Coun­­cil’s agenda] Item 10.”

At the time of writing, the signatory orga­nisa­tions were not aware of any public report by the Natio­nal Commission of Investigation, be­yond the statement delivered by the Attorney-General at the interactive dialogue on Sudan that took place during the Human Rights Coun­cil’s 56^th session, in June 2024. They were not aware, either, of any victim or witness protec­tion me­asures taken by the National Com­mis­sion, or of the existence of specialised units or inves­ti­gators deal­ing with sexual violence or violations committed against refugees, women and children. These are clear differences with the FFM’s mandate as set out in Council reso­lu­tion 54/2. The Na­tional Com­mission of Investi­gation is conducting what are essentially SAF-led investigations into RSF abuses, lacking im­par­­tia­lity, independence, and credibility. It is not a structurally independent body with the man­date and means to be shielded from political interference. It does not address, either, deep-sea­ted weak­nesses in the judicial system, inclu­ding interferences by the executive, inadequate victim and wit­ness protection mechanisms, sys­temic violations of fair trial and due process rights, and gender and ethnic biases. Nor does it address SAF abuses.

No amount of capacity-building would, for the above reasons, make the National Commission of Investigation a credible alternative to the im­par­tial independent man­date of the FFM. 

7. How has the UN liquidity crisis impacted the work of the FFM?

As noted in the FFM’s first update to the Council, in June 2024, “[t]he liquidity crisis faced by the United Nations Secretariat and the hiring freeze […] led to several months of delay in esta­bli­shing an effective Secretariat for our work. […] It is imperative to have adequate resources in order to ef­fectively deliver on our important mandate.” When civil society released its call for the FFM’s ex­ten­sion, in May 2024 (seven months after the adoption of resolution 54/2), the FFM remained signi­ficantly under-staffed and was only expected to be reasonably functional (but still under-staffed) by the end of May 2024. It started its work, however, as outlined in its first update to the Council.

Nevertheless, for reasons that are beyond the FFM’s control (it has not been given the neces­sary time and resources), the written report it will present at HRC57 will not be truly com­pre­hensive. As the conflict and associated viola­tions and abuses continue, further investi­ga­tions are needed, including through field visits, to collect first-hand information and verify alle­ga­tions of violations, some of which may amount to crimes under international law.

Furthermore, the Council should follow up on its resolutions S-32/1, 50/1, and S-36/1 by reques­ting additional reporting by the High Commis­sioner, with the assistance of his Designated Expert, be­yond the Council’s 58^th session (Feb­ruary-April 2025). Current reporting by the High Commis­sioner ends at the Council’s 58^th ses­sion.

For more information, please contact: 

Estella Kabachwezi
Advocacy, Research and Communications Manager, DefendDefenders
[email protected] or +256 782 360 460 (English)

Nicolas Agostini
Representative to the United Nations for DefendDefenders
[email protected] or +41 79 813 49 91 (English and French)