University of Minnesota




Addressing Genocide: International Law and Procedures to Prevent and Punish Massive Human Rights Violations


 

 

A. INTRODUCTION

B. QUESTIONS

C. BACKGROUND ON DARFUR

D. IS THE GOVERNMENT OF SUDAN COMMITTING GENOCIDE?

E. WHAT CAN THE INTERNATIONAL COMMUNITY DO TO ADDRESS THE VIOLATIONS OCCURRING IN DARFUR?

F. PROSECUTION IN THE INTERNATIONAL CRIMINAL COURT

 

 

A. INTRODUCTION

 

This chapter examines the options available to the international community when faced with a situation amounting to genocide or systematic crimes against humanity. The chapter first presents the facts as known regarding the violations taking place in the Darfur region of Sudan and presents the legal question of whether those violations amount to genocide under international law. The chapter then examines the procedures under the UN Charter for responding to widespread and grave human rights violations including peacekeeping, regional arrangements and referral for prosecution in the International Criminal Court. The chapter also touches on the role of the non-governmental community in stopping the violations and assisting the victims.

 

B. QUESTIONS

 

1. What roles does the UN play in maintaining or restoring international peace and security?

a. What are the legal bases for UN authority?

b. How has the UN Security Council responded to the situation in Darfur? How has the Secretary-General carried out the Security Council’s mandate?

2. How is genocide defined under international law? Has the Government of Sudan committed genocide?

a. Who is authorized to decide whether genocide is occurring?

b. What are the objective and subjective elements for individual criminal responsibility for genocide? Have those elements been met in the case of Darfur?

3. What are the legal and political consequences to a finding of genocide by the international community? What responsibility do other states have to intervene if a genocide is occurring?

4. What is the US government’s position regarding whether the Government of Sudan has committed genocide? How has that decision affected the steps taken by the international community to stem the violations?

5. What is the role of the African Union in addressing the violations in Darfur?

a. What is the nature of the Protection Force that has been established in Darfur by the African Union? What actions can the troops take in the face of ongoing violations?

b. How are the African Union’s actions being coordinated with the UN’s actions to prevent further violence?

6. Have crimes against humanity been committed in the Darfur conflict? Can violators be prosecuted in the International Criminal Court? What crimes in the ICC Statute are alleged to have been violated?

a. How did the case come to the ICC?

b. What steps has the ICC prosecutor taken to bring the alleged perpetrators to justice?

c. What is the response of the Government of Sudan to the investigation?

d. How do you think prosecution will affect the ongoing conflict on the ground?


7. What is the role of human rights and humanitarian organizations in stopping the violations in Darfur? Under what limitations do they operate?

 

C. Background on Darfur

 

Human Rights Watch. August 11, 2004. A Human Rights Watch Briefing Paper, “Empty Promises? Continuing Abuses in Darfur, Sudan.” Accessed via http://www.hrw.org/backgrounder/africa/sudan/2004/index.htm [Footnotes omitted]

 

Background

Since February 2003, Sudanese government forces and allied, government-backed militias known internationally as the “Janjaweed” have committed war crimes, crimes against humanity and acts of “ethnic cleansing” in Darfur in the context of a military counter-insurgency campaign against rebel groups known as the Sudan Liberation Army (SLA) and Justice and Equality Movement (JEM).

In addition to attacking rebel targets, the Sudanese government’s campaign has routinely targeted civilians of the Fur, Masalit, Zaghawa and other tribes who share the ethnicity of members of the SLA and JEM. Despite public denials of links with the militias, hundreds of eyewitness testimonies highlight the Sudanese government’s policy of arming and supporting ethnic militias.  Government documents obtained … demonstrate the role and responsibility of government officials in ordering the recruitment, arming and deployment of the Janjaweed militias.

An April 8, 2004 ceasefire agreement signed by the government of Sudan and the two rebel groups has done little to ease the plight of the more than one million civilians displaced by the conflict in Darfur.

Following months of shameful neglect, international media and political attention to the crisis has belatedly increased over the past four months as awareness of the extent of the human rights violations and their dire humanitarian consequences has grown. The United Nations estimates that 30,000 – 50,000 people have died, approximately 200,000 people have fled to neighboring Chad, and that the bulk of the displaced community—numbering approximately 1.2 million people—remains in Darfur.

The majority of displaced people remain in small and large towns under government control, where they are sometimes concentrated and confined in appalling conditions, preyed upon by the Janjaweed militias, who operate in near-total impunity. An unknown number of people remain in rural areas under rebel control, some of them displaced from their original villages and hiding in the hills and other areas where they continue to be attacked by government forces and Janjaweed militia members.

Under growing international pressure, including the threat of U.N. Security Council and European Union (E.U.) sanctions, the Sudanese government and the United Nations Secretary-General, Kofi Annan, signed a Joint Communiqué on July 3, 2004 in which the government committed to improve the situation in four areas: humanitarian access, human rights, security, and political resolution of the conflict.

On July 30, the U.N. Security Council passed resolution 1556 calling for the Sudanese government to “fulfill immediately all the commitments it made in the 3 July 2004 Communiqué” including: facilitation of humanitarian relief; bringing to justice “Janjaweed leaders and their associates who have incited and carried out human rights and international humanitarian law violations and other atrocities;” disarmament of the Janjaweed militias and “establishing credible security conditions for the protection of the civilian population and humanitarian actors;” and resumption of political talks.  The resolution also calls for “measures to prevent the sale or supply to all non-governmental entities and individuals, including the Janjaweed, of arms and related materiel,” and requires the Secretary General to report back to the Council in 30 days on the government’s progress in disarming the Janjaweed militias.

As of August 9, 2004, the African Union’s ceasefire monitoring mission had deployed more than 100 military observers, with plans to deploy up to three battalions of 800 troops each in the coming weeks, a proposal that the Sudanese government rejected. The current limited A.U. presence on the ground has failed to deter or address the ongoing attacks on civilians over the past few months.  Instead the situation has become increasingly insecure as the conflict continues in a new phase, with local stakeholders consolidating power and control over economic gains, and a proliferation of armed actors…

With mounting reports of ceasefire violations on all sides, political negotiations between the government and the two main rebel groups have stalled. Rebel groups, perhaps emboldened by the heightened international pressure on the Sudanese government, increasingly claim to embrace a national, rather than a regional agenda and have set pre-conditions for entering political negotiations. Insecurity on the ground has also increased, not only due to the continuing conflict but also because of a proliferation of armed groups with agendas varying from looting and banditry to various political interests, particularly along the border with Chad.

Overlapping agendas in Darfur: national and local stakeholders

In an effort to quell increasing insecurity in the region, by 2002 the Sudanese government extended a state of emergency to North and South Darfur, sent additional troops into the region and increased the severity of laws aimed at penalizing the illegal possession of weapons and acts of robbery and banditry.  Despite these steps, clashes between the Fur, one of the predominant ethnic groups in the region, and Arab nomadic groups increased. Some in the Fur, Zaghawa and Masalit communities…have long alleged a Sudanese government policy of alliance and support to Arab nomadic groups based on a national agenda of Arabization and local interests of creating an “Arab belt” that would claim the lands of “non-Arab” ethnic groups in the region. This perception was partly fostered by more than a decade of central government policies aimed at asserting control over the region through the restructuring of local administrative systems in Darfur…

The emergence of the main Darfur rebel movement, the SLA, in February 2003, and its surprising military successes, sharpened fears in the central government…The timing of the SLA’s emergence in the midst of the Naivasha talks, its surprising military success in the first months, and fears that it did or could forge a coalition with other real or potential insurgencies seeking power-sharing in Sudan, resulted in the Sudanese government’s decision to crush the rebellion militarily.  It did this by looking beyond the national army, which had always been manned by ill-trained and ill-motivated conscripts and many troops from Darfur…

The Sudanese government chose to recruit, arm and use ethnic militias, formed and in some cases led by local Darfur tribal leaders, drawn principally from a few Arab nomadic tribes present in both Sudan and Chad, as its main ground force in the conflict…For their part, some of the Arab tribal leadership and groups involved in this military campaign were involved in clashes with non-Arab groups over land and resources, and some have felt marginalized in the political and administrative system restructuring in the region, particularly because many of the Arab nomadic tribes have no traditional claim to land. The opportunity to take part in the government’s military campaign would have therefore appealed to the economic as well as the political interests of many individuals.

Ethnic fluidity and polarization in Darfur

Despite increasing media portrayals of the conflict in Darfur as one of “Arabs” against “Africans,” these terms have historically had little relevance in the Darfur context. Virtually all the people of Darfur are Muslim and ethnic identity has traditionally been fluid, with much intermarriage between ethnic groups and key distinctions between ethnicities based more on language (those for whom Arabic was the main language and those whose mother tongues are other languages such as Fur, Zaghawa etc.) or profession (nomadic herders or sedentary agriculturalists or town-dwelling merchants). Even within these categories, there has been significant overlap and movement over the decades.

Many Arab nomadic groups in Darfur have not been involved in communal clashes in the past, and are not involved in the current ethnic-based campaign of violence by the government.  There are also nuances on the rebel side—while there are three main groups that have formed the backbone of the rebel insurgency—Fur, Zaghawa and Masalit—there are also a number of smaller ethnic groups that have been victims and participants in the conflict on one side or another;…either drawn into the conflict because of livestock raids or because the activities of the government-backed militias have broadened beyond military purposes into asset-stripping…

The government’s use of certain ethnic militias as a counter-insurgency partner has highlighted a new ethnic and racial element to the dynamic of conflict in the region and also polarized ethnic and racial identity in some communities in a way that is new for many Darfurians…

Ethnic polarization raises the potential that what has been, up to now, mainly a counter-insurgency campaign with a clear ethnic dimension that has resulted in acts of ethnic cleansing, could broaden into communally-based ethnic violence in some areas if steps are not taken to end the violence, create conditions for reconciliation, and rein in the government-backed militias known as the Janjaweed. This potential is particularly worrying in areas of “transition” where Arab nomadic or semi-nomadic communities and Fur or Masalit communities live in close proximity…

Who are the “Janjaweed”?

Although known and used in international English-language media to refer to the Sudanese government-backed ethnic militias operating in Darfur, the term “Janjaweed” is subject to different interpretations. Sudanese government officials have exploited this ambiguity to distance themselves from the government-backed militias they have recruited and armed. 

Historically, the term “Janjaweed” referred to criminals, bandits or outlaws in Darfur. Over the past year or more, the term has been repeatedly used by victims of attacks to describe the camel-and horse-backed marauders who have attacked their villages, regularly in the company of Sudanese government troops and aerial support. Yet it is increasingly clear that the term “Janjaweed,” while used by victims to describe any armed attacker, is in fact a misnomer, and that there are at least two types of forces encompassed by the description: 1) the government-backed militias used as proxy forces in the government’s military campaign; and 2) opportunistic armed elements taking advantage of the total collapse of law and order to settle scores, loot and raid cattle and livestock.

Most important of these two in terms of responsibility for massive abuses in Darfur, are the government-backed militias or proxy forces: the groups recruited, trained, armed and supplied by the government from various Arab nomadic groups and variously known by the Sudanese government as “fursan”--meaning cavalry or knights, mujahedeen, horsemen, or Popular Defense Forces (PDF). The term “Janjaweed” is used in this report to describe these government-backed militias.

While much remains unclear about their training, structure and chain of command, the Janjaweed militias draw on alliances with certain local tribal leaders from Arab ethnic groups who have long been involved in clashes with the farming communities. Several of these Arab nomadic tribal leaders have historical relationships with local government officials, and have played a key role in recruiting and organizing militia members and liaising with government officials. In some cases they have played a direct role in the command responsibility during attacks…

A second element in these government militias are members of Chadian Arab ethnic groups, …some of whom have migrated to Darfur over the past decade for various political and economic reasons, and others who have been recently drawn into the government-backed militias from Chad and other parts of the region by the prospect of loot and land, and sometimes Arabist ideology.

The members of these government-backed militias are therefore often local stakeholders with enormous interests to maintain the gains they have made—especially regarding land and livestock, both of which represent key economic and political assets in Darfur. Land ownership traditionally provides political and administrative authority over those who live on it and use it. 

…Other armed elements benefiting from the conflict in an opportunistic way are also currently committing abuses by raiding livestock and attacking and looting villages, but are not necessarily directly supported and directed by the Sudanese government.  Despite the contribution of these criminal elements to the general insecurity in the region, the principal perpetrators of violence and abuses against civilians remain the Janjaweed militias supported by government forces.

 

 

United Nations. July 30, 2004. Security Council Resolution 1556 .

 

Resolution 1556 (2004)

Adopted by the Security Council at its 5015 th meeting, July 30, 2004

The Security Council,

Recalling its Statement by its President of 25 May 2004 (S/PRST/2004/16), its resolution 1547 (2004) of 11 June 2004 and its resolution 1502 (2003) of 26 August 2003 on the access of humanitarian workers to populations in need,

Welcoming the leadership role and the engagement of the African Union to address the situation in Darfur and expressing its readiness to support fully these efforts, Further welcoming the communiqué of the African Union Peace and Security Council issued 27 July 2004 (S/2004/603),

Reiterating its grave concern at the ongoing humanitarian crisis and widespread human rights violations, including continued attacks on civilians that are placing the lives of hundreds of thousands at risk,

Condemning all acts of violence and violations of human rights and international humanitarian law by all parties to the crisis, in particular by the Janjaweed, including indiscriminate attacks on civilians, rapes, forced displacements, and acts of violence especially those with an ethnic dimension, and expressing its utmost concern at the consequences of the conflict in Darfur on the civilian population, including women, children, internally displaced persons, and refugees,

Recalling in this regard that the Government of Sudan bears the primary responsibility to respect human rights while maintaining law and order and protecting its population within its territory and that all parties are obliged to respect international humanitarian law,

Urging all the parties to take the necessary steps to prevent and put an end to violations of human rights and international humanitarian law and underlining that there will be no impunity for violators,

Expressing its determination to do everything possible to halt a humanitarian catastrophe, including by taking further action if required,

Welcoming the ongoing international diplomatic efforts to address the situation in Darfur,

Stressing that any return of refugees and displaced persons to their homes must take place voluntarily with adequate assistance and with sufficient security,

Noting with grave concern that up to 200,000 refugees have fled to the neighbouring State of Chad, which constitutes a serious burden upon that country, and expressing grave concern at reported cross-border incursions by Janjaweed militias of the Darfur region of Sudan into Chad and also taking note of the agreement between the Government of Sudan and Chad to establish a joint mechanism to secure the borders,

Determining that the situation in Sudan constitutes a threat to international peace and security and to stability in the region,

Acting under Chapter VII of the Charter of the United Nations,

1. Calls on the Government of Sudan to fulfil immediately all of the commitments it made in the 3 July 2004 Communiqué, including particularly by facilitating international relief for the humanitarian disaster by means of a moratorium on all restrictions that might hinder the provision of humanitarian assistance and access to the affected populations, by advancing independent investigation in cooperation with the United Nations of violations of human rights and international humanitarian law, by the establishment of credible security conditions for the protection of the civilian population and humanitarian actors, and by the resumption of political talks with dissident groups from the Darfur region, specifically the Justice and Equality Movement (JEM) and the Sudan Liberation Movement and Sudan Liberation Army (SLM/A) on Darfur;

2. Endorses the deployment of international monitors, including the protection force envisioned by the African Union, to the Darfur region of Sudan under the leadership of the African Union and urges the international community to continue to support these efforts, welcomes the progress made in deploying monitors, including the offers to provide forces by members of the African Union, and stresses the need for the Government of Sudan and all involved parties to facilitate the work of the monitors in accordance with the N’Djamena ceasefire agreement and with the Addis Ababa agreement of 28 May 2004 on the modalities of establishing an observer mission to monitor the ceasefire;

3. Urges member states to reinforce the international monitoring team, led by the African Union, including the protection force, by providing personnel and other assistance including financing, supplies, transport, vehicles, command support, communications and headquarters support as needed for the monitoring operation, and welcomes the contributions already made by the European Union and the United States to support the African Union led operation;

4. Welcomes the work done by the High Commissioner for Human Rights to send human rights observers to Sudan and calls upon the Government of Sudan to cooperate with the High Commissioner in the deployment of those observers;

5. Urges the parties to the N’Djamena Ceasefire Agreement of 8 April 2004 to conclude a political agreement without delay, notes with regret the failure of senior rebel leaders to participate in the 15 July talks in Addis Ababa, Ethiopia as unhelpful to the process and calls for renewed talks under the sponsorship of the African Union, and its chief mediator Hamid Algabid, to reach a political solution to the tensions in Darfur and strongly urges rebel groups to respect the ceasefire, end the violence immediately, engage in peace talks without preconditions, and act in a positive and constructive manner to resolve the conflict;

6. Demands that the Government of Sudan fulfil its commitments to disarm the Janjaweed militias and apprehend and bring to justice Janjaweed leaders and their associates who have incited and carried out human rights and international humanitarian law violations and other atrocities, and further requests the Secretary- General to report in 30 days, and monthly thereafter, to the Council on the progress or lack thereof by the Government of Sudan on this matter and expresses its intention to consider further actions, including measures as provided for in Article 41 of the Charter of the United Nations on the Government of Sudan, in the event of non-compliance;

7. Decides that all states shall take the necessary measures to prevent the sale or supply, to all non-governmental entities and individuals, including the Janjaweed, operating in the states of North Darfur, South Darfur and West Darfur, by their nationals or from their territories or using their flag vessels or aircraft, of arms and related materiel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned, whether or not originating in their territories;

8. Decides that all states shall take the necessary measures to prevent any provision to the non-governmental entities and individuals identified in paragraph 7 operating in the states of North Darfur, South Darfur and West Darfur by their nationals or from their territories of technical training or assistance related to the provision, manufacture, maintenance or use of the items listed in paragraph 7 above;

9. Decides that the measures imposed by paragraphs 7 and 8 above shall not apply to: – supplies and related technical training and assistance to monitoring, verification or peace support operations, including such operations led by regional organizations, that are authorized by the United Nations or are operating with the consent of the relevant parties; – supplies of non-lethal military equipment intended solely for humanitarian, human rights monitoring or protective use, and related technical training and assistance; and – supplies of protective clothing, including flak jackets and military helmets, for the personal use of United Nations personnel, human rights monitors, representatives of the media and humanitarian and development workers and associated personnel.

14. Encourages the Secretary-General’s Special Representative for Sudan and the independent expert of the Commission on Human Rights to work closely with the Government of Sudan in supporting independent investigation of violations of human rights and international humanitarian law in the Darfur region;

….

16. Expresses its full support for the African Union-led ceasefire commission and monitoring mission in Darfur, and requests the Secretary-General to assist the African Union with planning and assessments for its mission in Darfur, and in accordance with the Joint Communiqué to prepare to support implementation of a future agreement in Darfur in close cooperation with the African Union and requests the Secretary-General to report to the Security Council on progress;

17. Decides to remain seized of the matter.

 

International Crisis Group. “Crisis in Darfur.” Accessed via http://www.crisisgroup.org/home/index.cfm?id=3060&l=1

At the end of March 2005, the UN Security Council passed three resolutions [UN Resolutions 1590, 1591, and 1593] on various aspects of the Sudan crisis, establishing the UN Mission in Sudan (UNMIS), extending the arms embargo in Darfur to include the government, and referring the situation in Darfur to the International Criminal Court.  Despite these resolutions, the situation in Sudan remains grave and even stronger measures are needed to restore security and prevent further mass deaths. More…[effective] measures are also needed to preserve and implement the peace deal that was signed on 9 January 2005 to end the long war between the government and the Sudan People’s Liberation Army/Movement (SPLM). Proa[c]tive measures are still needed to forestall the outbreak of a serious new civil conflict in the eastern part of the country.

 

Mikael Nabati. August 2004. ASIL [American Society of International Law] Insights, “The U.N. Responds to the Crisis in Darfur: Security Council Resolution 1556.” Accessed via http://www.asil.org/insights/insigh142.htm [Footnotes omitted]

 

I. Background on the Darfur Conflict

 

On July 22, 2004, the U.S. Senate and House of Representatives passed a resolution declaring the attacks on the African villagers to be "genocide." U.N. officials have also compared the Darfur situation to the Rwandan genocide of 1994, but the U.N., the Bush administration and the African Union have so far refused to define the Darfur killings as "genocide." On August 9, a European Union fact-finding mission found that there was "widespread, silent and slow killing going on, and village burning of a fairly large scale," but rejected use of the term "genocide”…If the situation in Darfur is indeed genocide, Article 1 of the Genocide Convention says that the state parties undertake to prevent and to punish it as a crime under international law. It does not matter that Sudan is not a party to the Genocide Convention, since genocide is an international crime under customary international law, and since states that are parties to the Convention have undertaken to prevent and punish it wherever it may occur. If there is a dispute between states parties as to whether genocide as defined in the Convention has been committed, any party to the dispute may refer the matter to the International Court of Justice.

 

III. Security Council Resolution 1556.

 

…Under the terms of Paragraph 6 of Resolution 1556, the Security Council will receive reports every month on whether Sudan is fulfilling "its commitments to disarm the Janjaweed militias and apprehend and bring to justice Janjaweed leaders." While the Council expressed its intention to consider "further actions…in the event of non­compliance," it is unclear what level of compliance will be required for Sudan to avert U.N. sanctions. Whether Resolution 1556 imposes on the Sudanese government an "obligation of result," or an "obligation of means" is debatable. The U.N. envoy in Sudan recently stated that the Security Council would need some "proof of substantial progress towards security in Darfur," which seems to require from Sudan less than a full resolution of the conflict, but more than mere diligence or reasonable efforts in addressing the crisis.

 

Paragraphs 7 and 8 of the Resolution place an immediate embargo on supplying arms to "all non-governmental entities and individuals, including the Janjaweed" operating in Darfur. It is important to note that under the terms of the Resolution, the weapons embargo does not pertain to Sudanese government forces. Yet, the Sudanese military has been accused of supporting and supplying equipment to the Janjaweed.

 

 

IV. Recent developments.

 

Sudan's response to Resolution 1556 was mixed. Sudan's government initially rejected the resolution, but later stepped back from its rejection. On August 4, the Sudanese government finalized an agreement with the U.N. Secretary General Special Representative Jan Pronk, which contains detailed steps and policy measures to be taken within the next 30 days to begin to disarm the Janjaweed. On the same day, a spokesman for the African Union said the organization would boost from 300 to 2,000 the number of troops it would deploy to protect its cease-fire monitors…On August 7, Khartoum announced that Sudan will accept African troops to protect observers, but that any peacekeeping role will be limited to Sudanese forces. Finally, Sudan agreed on August 9 to participate in peace talks with rebel groups. The talks are scheduled to be held in Nigeria on August 23.

 

Kofi Annan. December 3, 2004. “Report of the Secretary-General pursuant to paragraphs 6 and 13 to 16 of Security Council resolution 1556.” Accessed via http://daccessdds.un.org/doc/UNDOC/GEN/N04/633/97/PDF/N0463397.pdf?OpenElement [Paragraph numbers omitted]

 

II.

…[O]n 15 July, the Joint Implementation Mechanism agreed to field a joint verification mission to Darfur to assess three key areas, namely, (a) the continued Janjaweed presence; (b) the state of security, particularly in and around camps for internally displaced persons; and (c) the return and relocation of internally displaced persons …The mission concluded that no forced returns had been observed at the locations visited; security in camps for internally displaced persons had improved, and the Government had continued to take steps in this regard, most notably by deploying additional police…[T]he Mechanism also noted that the Government had a policy of voluntary return and had committed itself to strictly adhere to this policy, and that humanitarian access had improved.

However, on the most critical issue - the continuing insecurity and violence against civilians - there was clearly a need to accelerate the implementation of the Government's commitments and to make tangible progress. In particular, there were no indications at the beginning of August that the Government had taken any measures to "immediately start to disarm the Janjaweed and other armed outlaw groups", as required under the joint communiqué…

The Darfur Plan of Action and related measures

…[T]he Darfur Plan of Action was agreed on 5 August to provide early indications to the international community that the Government had made positive progress in compliance with Security Council resolution 1556 (2004) by 30 August…It committed the Government to take several specific measures by the end of August, including the following three key steps:

(a) The Government would identify parts of Darfur that could be made secure and safe within 30 days;

(b) All offensive military operations by Government forces in those areas would cease immediately, including any offensive actions against rebel groups…[T]hey would then be redeployed in such a way that they were not in direct contact with camps of internally displaced persons or with civilians;

(c) The Government would identify and declare those militias over whom it had influence and instruct them to cease their activities forthwith and lay down their weapons.

 

 

Disarmament of the Janjaweed and other outlaw groups

 

…Despite its commitments in the joint communiqué to disarm the Janjaweed and other outlaw groups, the Government has stated repeatedly that it has no control or influence over the militias accused of attacking civilians and committing other atrocities in Darfur. During the discussions in the Joint Implementation Mechanism, the Government subsequently accepted the position of the United Nations and its partners that some militias were in fact under its influence, and that those militias should be identified and instructed to lay down their weapons. In the additional measures presented to the Mechanism, on 19 August, the Government also accepted that the militias under its influence were not limited to those previously incorporated into the Popular Defence Forces, but also included militias that were outside and later linked with or mobilized to join those forces. This means that the commitment to disarm refers both to the Popular Defence Forces and to militias that have operated in association with them.

 

…The disarming of members of the Popular Defence Forces has started. The second joint verification mission observed a demobilization ceremony of about 300 soldiers in Western Darfur…

 

D. Is the Government of Sudan committing Genocide?

 

The following section examines the atrocities committed by the Government of Sudan and whether, under international law, they result in one of the most heinous of crimes—genocide. The first excerpt provides the international definition (according to the United Nations) of genocide while the second provides an interpretation of the events in Darfur from a legal standpoint. U.S. Secretary of State, Colin Powell called the events in Darfur genocide in testimony before the Senate Foreign Relations Committee. Lastly, the United States Institute of Peace authored a report giving their recommendations for improving the United Nations, including what steps should be taken to prevent genocide.

 

United Nations General Assembly. December 9, 1948. Convention on the Prevention and Punishment of the Crime of Genocide.

 

Article I

The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.

 

Article II

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

 

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

 

Article III

The following acts shall be punishable:

 

(a) Genocide;

(b) Conspiracy to commit genocide;

(c) Direct and public incitement to commit genocide;

(d) Attempt to commit genocide;

(e) Complicity in genocide.

 

Article IV

Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.

 

Article V

The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III.

 

Article VI

Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.

 

Article VIII

Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III.

 

Article IX

Disputes between the Contracting Parties relating to the interpretation, application or fulfillment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.

 

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General. January 25, 2005. Geneva, Switzerland. Accessed via http://www.ohchr.org/english/darfur.htm [Paragraph numbers omitted]

 

I. Violations of international human rights law and international humanitarian law

 

…In particular, the Commission found that Government forces and militias conducted indiscriminate attacks, including killing of civilians, torture, enforced disappearances, destruction of villages, rape and other forms of sexual violence, pillaging and forced displacement, throughout Darfur. These acts were conducted on a widespread and systematic basis, and therefore may amount to crimes against humanity. The extensive destruction and displacement have resulted in a loss of livelihood and means of survival for countless women, men and children. In addition to the large scale attacks, many people have been arrested and detained, and many have been held incommunicado for prolonged periods and tortured. The vast majority of the victims of all of these violations have been from the Fur, Zaghawa, Massalit, Jebel, Aranga and other so-called 'African' tribes.

 

In their discussions with the Commission, Government of the Sudan officials stated that any attacks carried out by Government armed forces in Darfur were for counter-insurgency purposes and were conducted on the basis of military imperatives. However, it is clear from the Commission's findings that most attacks were deliberately and indiscriminately directed against civilians. Moreover even if rebels, or persons supporting rebels, were present in some of the villages - which the Commission considers likely in only a very small number of instances - the attackers did not take precautions to enable civilians to leave the villages or otherwise be shielded from attack. Even where rebels may have been present in villages, the impact of the attacks on civilians shows that the use of military force was manifestly disproportionate to any threat posed by the rebels.

 

II. Have acts of genocide occurred?

 

The Commission concluded that the Government of the Sudan has not pursued a policy of genocide. Arguably, two elements of genocide might be deduced from the gross violations of human rights perpetrated by Government forces and the militias under their control. These two elements are, first, the actus reus consisting of killing, or causing serious bodily or mental harm, or deliberately inflicting conditions of life likely to bring about physical destruction; and, second, on the basis of a subjective standard, the existence of a protected group being targeted by the authors of criminal conduct. However, the crucial element of genocidal intent appears to be missing, at least as far as the central Government authorities are concerned. Generally speaking the policy of attacking, killing and forcibly displacing members of some tribes does not evince a specific intent to annihilate, in whole or in part, a group distinguished on racial, ethnic, national or religious grounds. Rather, it would seem that those who planned and organized attacks on villages pursued the intent to drive the victims from their homes, primarily for purposes of counter-insurgency warfare….

SECTION I

THE COMMISSION’S FINDINGS OF VIOLATIONS OF INTERNATIONAL HUMAN RIGHTS LAW AND HUMANITARIAN LAW BY THE PARTIES

When militias attack jointly with the armed forces, it can be held that they act under the effective control of the Government…Thus they are acting as de facto State officials of the Government of Sudan. It follows that, if it may be proved that all the requisite elements of effective control were fulfilled in each individual case, responsibility for their crimes is incurred not only by the individual perpetrators but also by the relevant officials of the army for ordering or planning, those crimes, or for failing to prevent or repress them, under the notion of superior responsibility.

 

When militias are incorporated in the PDF and wear uniforms, they acquire, from the viewpoint of international law the status of organs of the Sudan. Their actions and their crimes could be legally attributed to the Government…

 

On the basis of its investigations, the Commission is confident that the large majority of attacks on villages conducted by the militia have been undertaken with the acquiescence of State officials. The Commission considers that in some limited instances militias have sometimes taken action outside of the direct control of the Government of Sudan and without receiving orders from State officials to conduct such acts. In these circumstances, only individual perpetrators of crimes bear responsibility for such crimes. However, whenever it can be proved that it was the Government that instigated those militias to attack certain tribes, or that the Government provided them with weapons and financial and logistical support, it may be held that (i) the Government incurs international responsibility (vis-à-vis all other member States of the international community) for any violation of international human rights law committed by the militias, and in addition (ii) the relevant officials in the Government may be held criminally accountable, depending on the specific circumstances of each case, for instigating or for aiding and abetting the violations of humanitarian law committed by militias.

 

…A common conclusion is that, in its response to the insurgency, the Government has committed acts against the civilian population, directly or through surrogate armed groups, which amount to gross violations of human-rights and humanitarian law. While there has been comparatively less information on violations committed by the rebel groups, some sources have reported incidents of such violations. There is also information that indicates activities of armed elements who have taken advantage. or the total collapse of law and order to settle scores in the context of traditional tribal feuds, or to simply loot and raid livestock.

 

There are consistent accounts of a recurrent pattern of attacks on villages and settlements, sometimes involving aerial attacks by helicopter gunships or fixed-wing aircraft (Antonov and MIG), including bombing and strafing with automatic weapons. However, a majority of the attacks reported are ground assaults by the military, the Janjaweed, or a combination of the two. Hundreds of incidents have been reported involving the killing of civilians, massacres, summary executions, rape and other forms of sexual violence, torture, abduction, looting of property and livestock, as well as deliberate destruction and torching of villages. These incidents have resulted in the massive displacement of large parts of the civilian population within Darfur as well as to neighbouring Chad. The reports indicate that the intensity of the attacks and the atrocities committed in anyone village spread such a level of fear that populations from surrounding villages that escaped such attacks also fled to areas of relative security.

 

Except in a few cases, these incidents are reported to have occurred without any military justification in relation to any specific activity of the rebel forces. This has strengthened the general perception amongst observers that the civilian population has been knowingly and deliberately targeted to achieve common or specific objectives and interests of the Government and the Janjaweed.

 

…Although there is little information on violations committed by the rebel forces, there are some reports that they have engaged in indiscriminate attacks resulting in civilian deaths and injuries and destruction of private property. There are further reports of the killing of wounded and imprisoned soldiers, attacking or launching attacks from protected buildings such as hospitals, abduction of civilians and humanitarian workers, enforced disappearances of Government officials, looting of livestock, commercial vehicles and goods. There are also allegations of the use of child soldiers by the rebels. However, it should be noted that the number of reported violations allegedly committed by the Government forces and the Janjaweed by far exceeds the number of cases reported on rebels.

 

While a majority of the reports are consistent in the description of events and the violations committed, the crimes attributed to the Government forces and Janjaweed have varied according to the differences in the interpretation of the events and the context in which they have occurred. Analyses of facts by most of the observers, nevertheless, suggest that the most serious violations of human rights and humanitarian law have been committed by militias, popularly termed "Janjaweed", at the behest of and with the complicity of the Government, which recruited these elements as a part of its counterinsurgency campaign.

 

Various reports and the media claim to have convincing evidence that areas have been specifically targeted because of the proximity to or the locus of rebel activity, but more importantly because of the ethnic composition of the population that inhabits these areas. Almost all entities that have reported on the situation in Darfur have noted that the populations subjected to violations are Darfurians who identify themselves as Africans, distinguishable from the Arab tribes in the region, which are also reported to constitute the majority of the Janjaweed.

 

It is reported that amongst the African tribes, members of the Zaghawa, Fur and Masaalit tribes, which have a marked concentration of population in some areas, have been particularly targeted. This is generally attributed to the fact that the two main rebel groups in Darfur are ethnically African and are largely drawn from these three tribes. It is for this reason that some observers have concluded that a major objective of destruction and depopulation of targeted areas is to eliminate or pre-empt any possibility of support for the rebels.

 

Some reports take into account the historical context of ethnic and tribal politics in Darfur, and differences in the way of life and means of livelihood that have resulted in competing claims over control and utilization of natural resources and land. On this basis, some reports conclude that elements of persecution and 'ethnic cleansing' are present in the pattern of destruction and displacement.

 

This reading of the information by some sources has given an added dimension to the conflict. Reports of deliberate destruction of the very means of survival of these populations have been seen as a design towards their permanent expulsion from their places of habitation. Many of the sources have suggested that the acts of killings, destruction and forced displacement, taken as a whole, amount to extermination. Some reports have implied, and a few have determined, that the elements of the crime of genocide are present in the patterns and nature of violations committed by the Government and its militias.

 

Case study 3: Adwa

 

The Commission investigated reports of a recent attack by Government armed forces and Janjaweed on the village of Adwa in South Darfur:

 

According to witnesses, on 23 November 2004 at 06:00 AM Government of the Sudan armed forces in complicity with Janjaweed launched an attack on Adwa. Rebel forces reportedly held a base on top of the mountains near Adwa, and a battle between Government soldiers and rebel forces ensued. Two helicopter gun-ships and an Antonov plane were used during the attack, possibly for reconnaissance purposes. Ground forces used various weapons including AK47, G3, G4 assault rifles, RPG7, machine guns, and Doshka 12,7mm machine gun mounted on vehicles. According to witness reports, civilians including women, children and elderly persons were targeted during the attack. Many were forced to flee to a nearby mountain where they remained for several days. There are reports that Government and Janjaweed armed forces instructed women not to flee and told them that they were not targets. However, some women were captured and several were detained by the attackers for two days. Men were summarily shot, as was anyone who attempted to escape. Young girls were taken by the attackers to another location and many were raped in the presence of other women. The attackers looted the village. While in the mountains, several of the victims reportedly were shot by Government soldiers and Janjaweed. Many people were killed and more than 100 persons were injured. Following the attack, representatives of an international organization searched the village and found several injured women and children, whom they escorted to hospital. They also found the bodies of between 20 and 30 civilians who had been killed during the - attack, including women and children. All of the victims were reportedly from Adwa and belonged to the Fur tribe. It is also alleged that many are still to be found in the mountains.

 

…Concluding observations. It is apparent from the Commission's factual findings that in many instances Government forces and militias under their control attacked civilians and destroyed and burned down villages in Darfur contrary to the relevant principles and rules of international humanitarian law. Even assuming that in all the villages they attacked there were rebels present or at least some rebels were hiding there, or that there were persons supporting rebels - an assertion that finds little support from the material and information collected by the Commission - the attackers did not take the necessary precautions to enable civilians to leave the villages or to otherwise be shielded from attack. The impact of the attacks shows that the military force used was manifestly disproportionate to any threat posed by the rebels. In fact, attacks were most often intentionally directed against civilians and civilian objects. Moreover, the manner in which many attacks were conducted (at dawn, preceded by the sudden hovering of helicopter gun ships and often bombing) demonstrates that such attacks were also intended to spread terror among civilians so as to compel them to flee the villages. In a majority of cases, victims of the attacks belonged to African tribes, in particular the Fur, Masaalit and Zaghawa tribes. From the viewpoint of international criminal law these violations of international humanitarian law no doubt constitute large-scale war crimes.

 

…The Commission found that while all parties involved in the conflict have committed crimes against the civilian population, the Government of the Sudan and the Janjaweed bear responsibility for an overwhelming majority of the murders of civilians committed during the conflict in Darfur. Furthermore, most of the civilians killed at the hands of the Government or the militias are, in a strikingly consistent manner, from the same tribes, namely Fur, Massalit, Zaghawa and, less frequently, other African tribes, in particular the Jebel and the Aranga in West Darfur.

 

…In light of the above factual findings, the Commission considers that there is a consistent and reliable body of material which tends to show that numerous murders of civilians not taking part in the hostilities were committed both by the Government of the Sudan and the Janjaweed. It is undeniable that mass killing occurred in Darfur and that the killings were perpetrated by the Government forces and the Janjaweed in a climate of total impunity and even encouragement to commit serious crimes against a selected part of the civilian population. The large number of killings, the apparent pattern of killing described above, including the targeting of persons belonging to African tribes and the participation of officials or authorities are amongst the factors that lead the Commission to the conclusion that killings were conducted in both a widespread and systematic manner. The mass killing of civilians in Darfur is therefore likely to amount to a crime against humanity.

 

…The fact that the killings committed by the Government and the Janjaweed appear to have been systematically targeted against the Fur, Massalit, Zaghawa and other African tribes on political grounds is indicative of the discriminatory character of the killing and may thus amount to persecution as a crime against humanity.

 

…It is apparent from the information collected and verified by the Commission that rape or other forms of sexual violence committed by the Janjaweed and Government soldiers in Darfur was widespread and systematic and may thus well amount to a crime against humanity. The awareness of the perpetrators that their violent acts were part of a systematic attack on civilians may well be inferred from, among other things, the fact that they were cognizant that they would in fact enjoy impunity. The Commission finds that the crimes of sexual violence committed in Darfur may amount to the crime of rape as a crime against humanity, and it further finds that some in some instances the crimes committed in Darfur may amount to the crime of sexual slavery as a crime against humanity. Furthermore, the Commission finds that the fact that rape and other forms of sexual violence were conducted mainly against three "African" tribes is indicative of the discriminatory intent of the perpetrators. The Commission therefore finds that the elements of persecution as a crime against humanity may also be present.

 

…In addition to torture practised in the form of beating and severely and inhumanely ill-treating. detainees, …the Commission considers, that conditions in the Military Intelligence Detention Centre witnessed in Khartoum…amounts to torture. To compel persons in military custody to live 24 hours a day in extremely small cells similar to cages, in pitch dark, and no outdoor exercise at all, in itself amounts to torture and thus constitutes a serious violation of international human rights and humanitarian law

 

In connection with the conflict in Darfur, torture has been carried out on such a large scale and in such widespread and systematic manner not only during attacks on the civilian population, where it was inextricably linked with these attacks, but also in detention centres under the authority of the National Security and Intelligence Service and the Military Intelligence. The Commission finds that the occurrences of torture may therefore amount to a crime against humanity and, given the discriminatory nature of the attacks, may also involve the crime of persecution as a crime against humanity.

 

…The pillage of villages and the appropriation of livestock, crops, household goods and other personal belongings of the inhabitants by the Government forces or the militias under their control no doubt amounts to a war crime.

 

Based on the information available to the Commission, it would appear that the looting carried out mainly by the Janjaweed in the context of attacks against villages, has been conducted on a large scale and has been condoned by the Government of the Sudan through the propagation of a culture of impunity and the direct support of the Janjaweed.

 

In addition, as is the case with the destruction of villages, the Commission finds that pillaging, being conducted on a systematic as well as widespread basis mainly against African tribes, was discriminatory and calculated to bring about the destruction of livelihoods and the means of survival of the affected populations. Hence, it could very well constitute a form of persecution as a crime against humanity.

 

…The abduction of women by Janjaweed may amount to enforced disappearance as a crime against humanity. The incidents investigated establish that these abductions were systematic, were carried out with the acquiescence of the State, as the abductions followed combined attacks by Janjaweed and Government forces and took place in their presence and with their knowledge. The women were kept in captivity for a sufficiently long period of time, and their whereabouts were not known to their families throughout the period of their confinement. The Commission also finds that the restraints placed on the IDP population in camps, particularly women, by terrorizing them through acts of rape or killings or threats of violence to life or person by the Janjaweed, amount to severe deprivation of physical liberty in violation of rules of international law.

 

The Commission also finds that the arrest and detention of persons by the State security apparatus and the Military intelligence, including during attacks and intelligence operations against villages, apart from constituting serious violations of intemational human rights law, may also amount to the crime of enforced disappearance as a crime against humanity. These acts were both systematic and widespread.

 

Abduction of persons during attacks by the Janjaweed and their detention in camps operated by the Janjaweed, with the support and complicity of the Government armed forces amount to gross violations of human rights, and to enforced disappearances. However, the Commission did not find any evidence that these were widespread or systematic so as to constitute a crime against humanity. Nevertheless, detainees were subjected to gross acts of violence to life and person. They were tortured or subjected to cruel and humiliating and degrading treatment. The acts were committed as a part of and were directly linked to the armed conflict… [T]he Commission, finds that the acts constitute war crimes.

 

SECTION II

HAVE ACTS OF GENOCIDE OCCURRED?

 

…As stated above, the Genocide Convention of 1948 and the corresponding customary international rules require a number of specific objective and subjective elements for individual criminal responsibility for genocide to arise. The objective element is twofold. The first, relating to the prohibited conduct, is as follows: (i) the offence must take the form of (a) killing, or (b) causing serious bodily or mental harm, or (c) inflicting on a group conditions of life calculated to bring about its physical destruction; or (d) imposing measures intended to prevent birth within the group, or (e) forcibly transferring children of the group to another group. The second objective element relates to the targeted group, which must be a "national, ethnical, racial or religious group". Genocide can be charged when the prohibited conduct referred to above is taken against one of these groups or members of such group.

 

Also the subjective element or mens rea is twofold: (a) the criminal intent required for the underlying offence (killing, causing serious bodily or mental harm, etc.) and, (b) "the intent to destroy, in whole or in part" the group as such. This second intent is an aggravated criminal intention or dolus specialis: it implies that the perpetrator consciously desired the prohibited acts he committed to result in the destruction, in whole or in part, of the group as such, and knew that his acts would destroy in whole or in part, the group as such.

 

As clarified by international case law, the intent to destroy a group "in part" requires the intention to destroy "a considerable number of individuals" or "a substantial part", but not necessarily a "very important part" of the group. Instances mentioned in either case law or the legal literature include, for example, the intent to kill all Muslims of Bosnia-Herzegovina, or all Muslims living in a region of that country, or, for example, to destroy all the Jews living in Italy or the Armenians living in France.

 

 

…It is apparent that the international rules on genocide are intended to protect from obliteration groups targeted not on account of their constituting a territorial unit linked by some community bonds (such as kinship, language and lineage), but only those groups --whatever their magnitude-- which show the particular hallmark of sharing a religion, or racial or ethnic features, and are targeted precisely on account of their distinctiveness. In sum, tribes may fall under the notion of genocide set out in international law only if, as stated above, they also exhibit the characteristics of one of the four categories of group protected by international law.

 

…General. There is no doubt that some of the objective elements of genocide materialized in Darfur. As discussed above, the Commission has collected substantial and reliable material which tends to show the occurrence of systematic killing of civilians belonging to particular tribes, of large-scale causing of serious bodily or mental harm to members of the population belonging to certain tribes, and of massive and deliberate infliction on those tribes of conditions of life bringing about their physical destruction in whole or in part (for example by systematically destroying their villages and crops, by expelling them from their homes, and by looting their cattle). However, two other constitutive elements of genocide require a more in depth analysis, namely whether (a) the target groups amount to one of the group protected by international law, and if so (b) whether the crimes were committed with a genocidal intent. These elements are considered separately below.

 

Do members of the tribes victims of attacks and killing make up objectively a protected group? The various tribes that have been the object of attacks and killings (chiefly the Fur, Massalit and Zaghawa tribes) do not appear to make up ethnic groups distinct from the ethnic group to which persons or militias that attack them belong. They speak the same language (Arabic) and embrace the same religion (Muslim). In addition, also due to the high measure of intermarriage, they can hardly be distinguished in their outward physical appearance from the members of tribes that allegedly attacked them. Furthermore, inter-marriage and coexistence in both social and economic terms, have over the years tended to blur the distinction between the groups. Apparently, the sedentary and nomadic character of the groups constitutes one of the main distinctions between them. It is also notable that members of the African tribes speak their own dialect in addition to Arabic, while members of Arab tribes only speak Arabic.

 

…Was there a genocidal intent? Some elements emerging from the facts including the scale of atrocities and the systematic nature of the attacks, killing, displacement and rape, as well as racially motivated statements by perpetrators that have targeted members of the African tribes only, could be indicative of the genocidal intent. However, there are other more indicative elements that show the lack of genocidal intent. The fact that in a number of villages attacked and burned by both militias and Government forces the attackers refrained from exterminating the whole population that had not fled, but instead selectively killed groups of young men, is an important element. A telling example is the attack of 22 January 2004 on Wadi Saleh, a group of 25 villages inhabited by about 11 000 Fur.

 

According to credible accounts of eye witnesses questioned by the Commission, after occupying the villages the Government Commissioner and the leader of the Arab militias that had participated in the attack and burning, gathered all those who had survived or had not managed to escape into a large area. Using a microphone they selected 15 persons (whose name they read from a written list), as well as 7 omdas, and executed them on the spot. They then sent all elderly men, all boys, many men and all women to a nearby village, where they held them for some time, whereas they executed 205 young villagers, who they asserted were rebels (Torabora). According to male witnesses interviewed by the Commission and who were among the survivors, about 800 persons were not killed (most young men of those spared by the attackers were detained for some time in the Mukjar prison).

 

This case clearly shows that the intent of the attackers was not to destroy an ethnic group as such, or part of the group. Instead, the intention was to murder all those men they considered as rebels, as well' as forcibly expel the whole population so as to vacate the villages and prevent rebels from hiding among, or getting support from, the local population.

 

Another element that tends to show the Sudanese Government's lack of genocidal intent can be seen in the fact that persons forcibly dislodged from their villages are collected in IDP camps. In other words, the populations surviving attacks on villages are not killed outright, so as to eradicate the group; they are rather forced to abandon their homes and live together in areas selected by the Government. While this attitude of the Sudanese Government may be held to be in breach of international legal standards on human rights and international criminal law rules, it is not indicative of any intent to annihilate the group. This is all the more true because the living conditions in those camps, although open to strong criticism on many grounds, do not seem to be calculated to bring about the extinction of the ethnic group to which the IDPs belong. Suffice it to note that the Government of Sudan generally allows humanitarian organizations to help the population in camps by providing food, clean water, medicines and logistical assistance (construction of hospitals, cooking facilities, latrines, etc.)

 

Another element that tends to show the lack of genocidal intent is the fact that in contrast with other instances described above, in a number of instances villages with a mixed composition (African and Arab tribes) have not been attacked. This for instance holds true for the village of Abaata (north-east of Zelingei, in Western Darfur), consisting of Zaghawa and members of Arab tribes.

 

Furthermore, it has been reported by a reliable source that one inhabitant of the Jabir Village (situated about 150 km from Abu Shouk Camp) was among the victims of an attack carried out by Janjaweed on 16 March 2004 on the village. He stated that he did not resist when the attackers took 200 camels from him, although they beat him up with the butt of their guns. Instead, prior to his beating, his young brother, who possessed only one camel, had resisted when the attackers had tried to take his camel, and had been shot dead. Clearly, in this instance the special intent to kill a member of a group to destroy the group as such was lacking, the murder being only motivated by the desire to appropriate cattle belonging to the inhabitants of the village. Irrespective of the motive, had the attackers' intent been to annihilate the group, they would not have spared one of the brothers.

 

Conclusion. On the basis of the above observations, the Commission concludes that the Government of Sudan has not pursued a policy of genocide. Arguably, two elements of genocide might be deduced from the gross violations of human rights perpetrated by Government forces and the militias under their control. These two elements are: first, the actus reus consisting of killing, or causing serious bodily or mental harm, or deliberately inflicting conditions of life likely to bring about physical destruction; and, second, on the basis of a subjective standard, the existence of a protected group being targeted by the authors of criminal conduct. Recent developments have led to the perception and self perception of members of African tribes and members of Arab tribes as making up two distinct ethnic groups. However, one crucial element appears to be missing, at least as far as the central Government authorities are concerned: genocidal intent. Generally speaking the policy of attacking, killing and forcibly displacing members of some tribes does not evince a specific intent to annihilate, in whole or in part, a group distinguished on racial, ethnic, national or religious grounds. Rather, it would seem that those who planned and organized attacks on villages pursued the intent to drive the victims from their homes, primarily for purposes of counter-insurgency warfare.

 

…The above conclusion that no genocidal policy has been pursued and implemented in Darfur by the Government authorities, directly or though the militias under their control, should not be taken as in any way detracting from, or belittling, the gravity of the crimes perpetrated in that region. As stated above genocide is not necessarily the most serious international crime. Depending upon the circumstances, such international offences as crimes against humanity or large scale war crimes may be no less serious and heinous than genocide. This is exactly what happened in Darfur, where massive atrocities were perpetrated on a very large scale, and have so far gone unpunished….

 

 

Secretary of State Colin L. Powell. September 9, 2004. Washington, DC. Testimony Before the Senate Foreign Relations Committee, The Crisis in Darfur. Accessed via http://www.ohchr.org/english/darfur.htm

 

…Mr. Chairman, the United States exerted strong leadership to focus international attention on this unfolding tragedy. We first took the issue of Sudan to the United Nations Security Council last fall. President Bush was the first head of state to condemn publicly the Government of Sudan and to urge the international community to intensify efforts to end the violence. In April of this year, the United States brokered a ceasefire between the Government of Sudan and the rebels, and then took the lead to get the African Union to monitor that ceasefire.

As some of you are aware, I traveled to the Sudan in midsummer and made a point of visiting Darfur. It was about the same time that Congressman Wolf and Senator Brownback were there, as well as Secretary General Kofi Annan. In fact, the Secretary General and I were able to meet in Khartoum to exchange our notes and to make sure that we gave a consistent message to the Sudanese Government of what was expected of them….

…And, Mr. Chairman, there is, finally, the continuing question of whether what is happening in Darfur should be called genocide.

Since the United States became aware of atrocities occurring in Sudan, we have been reviewing the Genocide Convention and the obligations it places on the Government of Sudan and on the international community and on the state parties to the genocide convention.

In July, we launched a limited investigation by sending a team to visit the refugee camps in Chad to talk to refugees and displaced personnel. The team worked closely with the American Bar Association and the Coalition for International Justice, and were able to interview 1136 of the 2.2 million people the UN estimates have been affected by this horrible situation, this horrible violence.

Those interviews indicated: first, a consistent and widespread pattern of atrocities: Killings, rapes, burning of villages committed by Jingaweit and government forces against non-Arab villagers; three-fourths of those interviewed reported that the Sudanese military forces were involved in the attacks; third, villagers often experienced multiple attacks over a prolonged period before they were destroyed by burning, shelling or bombing, making it impossible for the villagers to return to their villages. This was a coordinated effort, not just random violence.

When we reviewed the evidence compiled by our team, and then put it beside other information available to the State Department and widely known throughout the international community, widely reported upon by the media and by others, we concluded, I concluded, that genocide has been committed in Darfur and that the Government of Sudan and the Jingaweit bear responsibility -- and that genocide may still be occurring. Mr. Chairman, we are making copies of the evidence that our team compiled available to you and to the public today. We are putting it up on our website now, as I speak.

We believe in order to confirm the true nature, scope and totality of the crimes our evidence reveals, a full-blown and unfettered investigation needs to occur. Sudan is a contracting party to the Genocide Convention and is obliged under the Convention to prevent and to punish acts of genocide. To us, at this time, it appears that Sudan has failed to do so.

Article VIII of the Genocide Convention provides that Contracting Parties may, I will quote now, "may call upon the competent organs of the United Nations to take action, such action under the Charter of the United Nations as they," the competent organs of the United Nations, "as they consider appropriate, actions as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in Article III" of the Genocide Convention.

Because of that obligation under Article VIII of the Convention, and since the United States is one of the contracting parties; today we are calling on the United Nations to initiate a full investigation. To this end, the United States will propose that the next UN Security Council Resolution on Sudan request a United Nations investigation into all violations of international humanitarian law and human rights law that have occurred in Darfur, with a view to ensuring accountability.

Mr. Chairman, as I have said, the evidence leads us to the conclusion, the United States to the conclusion; that genocide has occurred and may still be occurring in Darfur. We believe the evidence corroborates the specific intent of the perpetrators to destroy "a group in whole or in part," the words of the Convention. This intent may be inferred from their deliberate conduct. We believe other elements of the convention have been met as well.

The United States Institute of Peace was established by an act of Congress in 1984 as a bipartisan organization to promote peace and reduce international conflict. It provides education and training to fulfill this mission. The committee that compiled this report consisted of experts from the American Enterprise Institute, the Brookings Institution, the Center for Strategic and International Studies, the Council on Foreign Relations, the Heritage Foundation, and the Hoover Institution.

United States Institute of Peace. 2005. United States of America. American interests and UN reform: report of the Task Force on the United Nations. Accessed via http://www.usip.org/un/report/usip_un_report.pdf

…On stopping genocide, all too often "the United Nations failed" should actually read "members of the United Nations blocked or undermined action by the United Nations."

That said, the United Nations shares the blame for inaction. Until and unless it changes dramatically, the United Nations will remain an uncertain instrument, both for the governments that comprise it and for those who look to it for salvation.

 

STRATEGIES AND SYSTEMS FOR EFFECTIVELY STOPPING GENOCIDE AND MASS MURDER

One of the major problems in stopping genocide is the challenge of acting effectively while the genocide and mass killing are being perpetrated. The process of identifying the problem, getting agreement that action by the Security Council or individual nations is necessary, and then fashioning effective intervention is long and complicated.

 

The tragedies of Cambodia, Bosnia, Rwanda—and now Darfur—are grim and heartrending warnings that the limited tools for intervention have proven unusable and/or ineffective at deterring or stopping those who would engage in genocide, mass killing, and massive and sustained human rights violations. The following system would augment and clarify the process for protecting the innocent from these abuses.

 

Under the "responsibility to protect your own citizens," the United States should propose a new set of strategies to be explicitly promulgated as a promise to the innocent and a guarantee of punishment to regimes engaged in genocide, mass killing, and massive and sustained human rights violations.

1. If genocide, mass killing, or massive and sustained human rights violations are under way, the government should be warned that it has a responsibility to protect its own citizens.

 

2. Governments engaged in genocide, mass killing, and massive and sustained human rights violations should face sanctions, including seizure of financial assets of national leaders and those of their families and associates. A UN Security Council resolution should declare the regime to be criminal and impose on all member-states the absolute obligation to cut off all financial aid, diplomatic ties, etc. As such nations would have demonstrably "persistently violated the principles contained in the present [United Nations] Charter," they should be expelled in accordance with Article VI of the Charter. No representative of the criminal regime should be granted entry by other nations. In effect, any regime committing genocide, mass killing, and massive and sustained human rights violations would be ostracized by the world.

 

3. If the above measures fail to lead to an expeditious change in behavior, the Security Council should consider authorizing military intervention. Any military assets that can easily be destroyed or impounded should be immediately at risk. The Security Council should ensure that the intervention possesses the authority and capability to achieve its objective of preventing or halting genocide, mass killing, and massive and sustained human rights violations in the face of opposition by the criminal regime or its proxies. In the event that the Security Council is derelict or untimely in its response states-individually or collectively-would retain the ability to act.

 

4. Those perpetrating mass murder will be identified and held accountable. Accountability can come in many forms, including through tribunals authorized by the Security Council, national courts, hybrid tribunals, regional courts, or truth and reconciliation commissions.

 

Success has to be defined as stopping the killing and holding the guilty accountable. Talking while people die is not success. To the contrary, an impotent and ineffective response simply encourages others inclined to commit genocide, mass killing, and massive and sustained human rights violations. The measurement has to be in the reality on the ground for the innocent, not dialogue among diplomats and bureaucrats in New York and elsewhere.

 

PREVENTING GENOCIDE

 

Specific measures the Task Force recommends the United States take to prevent future occurrences of genocide, mass killing, and massive and sustained human rights violations include the following:

 

Support inclusion of language in all Chapter VII Security Council resolutions calling on member-states, regional organizations, and any other parties to voluntarily assess the relevant capabilities they can contribute to enforcement of the resolutions. Security Council resolutions have the potential to be more effective if they generate a menu of potential capabili­ties for enforcement. For example, as a crisis emerges, member-states should ask themselves whether and what they can contribute, either on their own or in conjunction with other states or relevant organizations such as NATO and the EU. This will not only generate a positive list of capabilities but will also reveal areas in which capabilities are missing, potentially allowing swifter action to generate them. Security Council resolutions should trigger expanded "prudent planning" in all such organizations. A key element in the prudent planning will be improved mechanisms for rapidly raising forces for quick deployment in crisis situations.

 

 

Support linkage of early information on potential genocide, mass killing, and massive and sustained human rights violation situations to early preventive action. All reporting should include options for early action. These need not be exhaustive, but they should begin with the presumption that effective action is necessary and will be taken.

 

E. WHAT CAN THE INTERNATIONAL COMMUNITY DO TO ADDRESS THE VIOLATIONS OCCURRING IN DARFUR

 

1. Standards for Humanitarian Intervention

 

This section examines the different possibilities for stopping the violence in Darfur and assisting the victims. The first excerpt provides the legal basis for humanitarian intervention under the United Nations Charter. The Charter sets forth the steps for international action regarding threats to international peace and security, including military intervention.

 

United Nations Conference on International Organization. June 26, 1945. San Francisco, CA. Charter of the United Nations. Accessed via http://www.un.org/aboutun/charter/

CHAPTER I

PURPOSES AND PRINCIPLES

 

Article 2

4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations…

 

7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.

CHAPTER VI

PACIFIC SETTLEMENT OF DISPUTES

 

Article 33

The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.

Article 34

The Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.

CHAPTER VII: ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION

 

Article 39

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

 

Article 41

The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

 

Article 42

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

 

Article 51

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

 

CHAPTER VIII: REGIONAL ARRANGEMENTS

 

Article 52

Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations.

The Members of the United Nations entering into such arrangements of constituting such agencies shall make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council.

The Security Council shall encourage the development of pacific settlement of local disputes through such regional arrangements or by such regional agencies either on the initiative of the states concerned or by reference from the Security Council.

 

Article 53

The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council, with the exception of measures against any enemy state, as defined in paragraph 2 of this Article, provided for pursuant to Article 107 or in regional arrangements directed against renewal of aggressive policy on the part of any such state, until such time as the Organization may, on request of the Governments concerned, be charged with the responsibility for preventing further aggression by such a state.

The term enemy state as used in paragraph 1 of this Article applies to any state which during the Second World War has been an enemy of any signatory of the present Charter.

2. The Role of the United Nations

 

U.N. Secretary-General Kofi Annan. September 20, 1999. Address to the Opening Meeting of the United Nations General Assembly, U.N. Press Release, SG/SM/7136. Accessed via http://www.un.org/News/Press/docs/1999/19990920.sgsm7136.html

 

As Secretary-General, I have made it my highest duty to restore the United Nations to its rightful role in the pursuit of peace and security, and to bring it closer to the peoples it serves…

…As we seek new ways to combat the ancient enemies of war and poverty, we will succeed only if we all adapt our Organization to a world with new actors, new responsibilities, and new possibilities for peace and progress…

…The State is now widely understood to be the servant of its people, and not vice versa. At the same time, individual sovereignty…has been enhanced by a renewed consciousness of the right of every individual to control his or her own destiny.

These parallel developments…do not lend themselves to easy interpretations or simple conclusions.

They do, however, demand of us a willingness to think anew—about how the United Nations responds to the political, human rights and humanitarian crises affecting so much of the world; about the means employed by the international community in situations of need; and about our willingness to act in some areas of conflict, while limiting ourselves to humanitarian palliatives in many other crises whose daily toll of death and suffering ought to shame us into action. …

…[T]here are a great number of peoples who need more than just words of sympathy from the international community. They need a real and sustained commitment to help end their cycles of violence, and launch them on a safe passage to prosperity.

While the genocide in Rwanda will define for our generation the consequences of inaction in the face of mass murder, the more recent conflict in Kosovo has prompted important questions about the consequences of action in the absence of complete unity on the part of the international community.

It has cast in stark relief the dilemma of what has been called humanitarian intervention: on one side, the question of the legitimacy of an action taken by a regional organization without a United Nations mandate; on the other, the universally recognized imperative of effectively halting gross and systematic violations of human rights with grave humanitarian consequences.

The inability of the international community in the case of Kosovo to reconcile these two equally compelling interests—universal legitimacy and effectiveness in defence of human rights—can only be viewed as a tragedy.

It has revealed the core challenge to the Security Council and to the United Nations as a whole in the next century: to forge unity behind the principle that massive and systematic violations of human rights…should not be allowed to stand. …

…To those for whom the greatest threat to the future of international order is the use of force in the absence of a Security Council mandate, one might ask…If, in those dark days and hours leading up to the genocide, a coalition of States had been prepared to act in defence of the Tutsi population, but did not receive prompt Council authorization, should such a coalition have stood aside and allowed the horror to unfold?

To those for whom the Kosovo action heralded a new era when States and groups of States can take military action outside the established mechanisms for enforcing international law, one might ask: Is there not a danger of such interventions undermining the imperfect, yet resilient, security system created after the Second World War, and of setting dangerous precedents for future interventions without a clear criterion to decide who might invoke these precedents, and in what circumstances?

…[I]t is not the deficiencies of the [United Nations’] Charter which have brought us to this juncture, but our difficulties in applying its principles to a new era; an era when strictly traditional notions of sovereignty can no longer do justice to the aspirations of peoples everywhere to attain their fundamental freedoms.

…[T]he Charter's own words declare that "armed force shall not be used, save in the common interest". But what is that common interest? Who shall define it? Who will defend it? Under whose authority? And with what means of intervention? These are the monumental questions facing us as we enter the new century. While I will not propose specific answers or criteria, I shall identify four aspects of intervention which I believe hold important lessons for resolving future conflicts.

First, it is important to define intervention as broadly as possible, to include actions along a wide continuum from the most pacific to the most coercive. A tragic irony of many of the crises that continue to go unnoticed and unchallenged today is that they could be dealt with by far less perilous acts of intervention than the one we witnessed recently in Yugoslavia…

…It is also necessary to recognize that any armed intervention is itself a result of the failure of prevention. As we consider the future of intervention, we must redouble our efforts to enhance our preventive capabilities—including early warning, preventive diplomacy, preventive deployment and preventive disarmament.

…Second, it is clear that sovereignty alone is not the only obstacle to effective action in human rights or humanitarian crises. No less significant are the ways in which the Member States of the United Nations define their national interest in any given crisis.

Of course, the traditional pursuit of national interest is a permanent feature of international relations and of the life and work of the Security Council. But as the world has changed in profound ways since the end of the cold war, I believe our conceptions of national interest have failed to follow suit.

A new, more broadly defined, more widely conceived definition of national interest in the new century would, I am convinced, induce States to find far greater unity in the pursuit of such basic Charter values as democracy, pluralism, human rights, and the rule of law.

A global era requires global engagement. Indeed, in a growing number of challenges facing humanity, the collective interest is the national interest. Third, in the event that forceful intervention becomes necessary, we must ensure that the Security Council, the body charged with authorizing force under international law—is able to rise to the challenge.

The choice, as I said during the Kosovo conflict, must not be between Council unity and inaction in the face of genocide—as in the case of Rwanda, on the one hand; and Council division, and regional action, as in the case of Kosovo, on the other.

In both cases, the Member States of the United Nations should have been able to find common ground in upholding the principles of the Charter, and acting in defence of our common humanity.

As important as the Council's enforcement power is its deterrent power. Unless it is able to assert itself collectively where the cause is just and where the means are available, its credibility in the eyes of the world may well suffer.

If States bent on criminal behaviour know that frontiers are not the absolute defence; if they know that the Security Council will take action to halt crimes against humanity, then they will not embark on such a course of action in expectation of sovereign impunity.

…In this situation [East Timor], too, consistency is essential. Just as our commitment to humanitarian action must be universal if it is to be legitimate, so our commitment to peace cannot end with the cessation of hostilities. The aftermath of war requires no less skill, no less sacrifice, no fewer resources in order to forge a lasting peace and avoid a return to violence.

…If the collective conscience of humanity—a conscience which abhors cruelty, renounces injustice and seeks peace for all peoples -- cannot find in the United Nations its greatest tribune, there is a grave danger that it will look elsewhere for peace and for justice.

If it does not hear in our voices, and see in our actions, reflections of its own aspirations, its needs, and its fears, it may soon lose faith in our ability to make a difference.

Just as we have learned that the world cannot stand aside when gross and systematic violations of human rights are taking place, so we have also learned that intervention must be based on legitimate and universal principles if it is to enjoy the sustained support of the world's peoples.

This developing international norm in favour of intervention to protect civilians from wholesale slaughter will no doubt continue to pose profound challenges to the international community.

Any such evolution in our understanding of State sovereignty and individual sovereignty will, in some quarters, be met with distrust, scepticism, even hostility. But it is an evolution that we should welcome.

Why? Because, despite its limitations and imperfections, it is testimony to a humanity that cares more, not less, for the suffering in its midst, and a humanity that will do more, and not less, to end it.

 

U.N. Secretary-General Kofi Annan. September 6, 2000. We the Peoples: The Role of the United Nations in the 21 st Century, U.N. Doc. A/54/2000 (2000). Accessed via http://www.un.org/millennium/sg/report/ [Paragraph numbers omitted]

 

Addressing the dilemma of intervention

In my address to the General Assembly last September, I called on Member States to unite in the pursuit of more effective policies to stop organized mass murder and egregious violations of human rights. Although I emphasized that intervention embraced a wide continuum of responses, from diplomacy to armed action, it was the latter option that generated most controversy in the debate that followed.

 

Some critics were concerned that the concept of “humanitarian intervention” could become a cover for gratuitous interference in the internal affairs of sovereign states. Others felt that it might encourage secessionist movements deliberately to provoke governments into committing gross violations of human rights in order to trigger external interventions that would aid their cause. Still others noted that there is little consistency in the practice of intervention, owing to its inherent difficulties and costs as well as perceived national interests—except that weak states are far more likely to be subjected to it than strong ones.

 

I recognize both the force and the importance of these arguments. I also accept that the principles of sovereignty and non-interference offer vital protection to small and weak states. But to the critics I would pose this question: if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica—to gross and systematic violations of human rights that offend every precept of our common humanity? …

 

Humanitarian intervention is a sensitive issue, fraught with political difficulty and not susceptible to easy answers. But surely no legal principle—not even sovereignty—can ever shield crimes against humanity. Where such crimes occur and peaceful attempts to halt them have been exhausted, the Security Council has a moral duty to act on behalf of the international community. The fact that we cannot protect people everywhere is no reason for doing nothing when we can. Armed intervention must always remain the option of last resort, but in the face of mass murder it is an option that cannot be relinquished.

 

Strengthening peace operations

 

…We can claim significant successes among our peace operations in the last decade or so, beginning with Namibia in the late 1980s, and including Mozambique, El Salvador, the Central African Republic, Eastern Slavonia, the former Yugoslav Republic of Macedonia and, at least partially, Cambodia. We also encountered tragic failures, none more so than Rwanda and the fall of Srebrenica and the other safe areas in Bosnia. The many reasons for those failures, including those attributable to the United Nations Secretariat, are discussed frankly and in considerable detail in two reports I issued late last year.

 

The structural weaknesses of United Nations peace operations, however, only Member States can fix. Our system for launching operations has sometimes been compared to a volunteer fire department, but that description is too generous. Every time there is a fire, we must first find fire engines and the funds to run them before we can start dousing any flames. The present system relies almost entirely on last minute, ad hoc arrangements that guarantee delay, with respect to the provision of civilian personnel even more so than military.

 

Although we have understandings for military standby arrangements with Member States, the availability of the designated forces is unpredictable and very few are in a state of high readiness. Resource constraints preclude us even from being able to deploy a mission headquarters rapidly.

 

On the civilian side, we have been starkly reminded in Kosovo and East Timor how difficult it is to recruit qualified personnel for missions. Where do we find police officers quickly, or judges, or people to run correctional institutions—to focus only on law enforcement needs? A more systematic approach is necessary here as well…

 

U.N. Secretary-General Boutros Boutros Ghali. January 3, 1995. Supplement to an Agenda for Peace: Position Paper of the Secretary-General on the Occasion of the Fiftieth Anniversary of the United Nations 2-18, U.N. Doc. A/50/60 (1995). Accessed via http://www.un.org/Docs/SG/agsupp.html [Paragraph numbers omitted]

 

…The new breed of intra-state conflicts have certain characteristics that present United Nations peace-keepers with challenges not encountered since the Congo operation of the early 1960s. They are usually fought not only by regular armies but also by militias and armed civilians with little discipline and with ill-defined chains of command. They are often guerrilla wars without clear front lines. Civilians are the main victims and often the main targets. Humanitarian emergencies are commonplace and the combatant authorities, in so far as they can be called authorities, lack the capacity to cope with them…

 

Another feature of such conflicts is the collapse of state institutions, especially the police and judiciary, with resulting paralysis of governance, a breakdown of law and order, and general banditry and chaos…It means that international intervention must extend beyond military and humanitarian tasks and must include the promotion of national reconciliation and the re-establishment of effective government…

 

Peace-keeping in such contexts is far more complex and more expensive than when its tasks were mainly to monitor cease-fires and control buffer zones with the consent of the States involved in the conflict…

 

A second qualitative change is the use of United Nations forces to protect humanitarian operations. Humanitarian agencies endeavour to provide succour to civilian victims of war wherever they may be. Too often the warring parties make it difficult or impossible for them to do so…There is also a growing tendency for the combatants to divert relief supplies for their own purposes. Because the wars are intra-state conflicts, the humanitarian agencies often have to undertake their tasks in the chaotic and lawless conditions described above…

 

A third change has been in the nature of United Nations operations in the field. During the cold war United Nations peace-keeping operations were largely military in character and were usually deployed after a cease-fire but before a settlement of the conflict in question had been negotiated. Indeed one of their main purposes was to create conditions in which negotiations for a settlement could take place. In the late 1980s a new kind of peace-keeping operation evolved. It was established after negotiations had succeeded, with the mandate of helping the parties implement the comprehensive settlement they had negotiated…

 

The negotiated settlements involved not only military arrangements but also a wide range of civilian matters. As a result, the United Nations found itself asked to undertake an unprecedented variety of functions…

 

Fourthly, these multifunctional peace-keeping operations have highlighted the role the United Nations can play after a negotiated settlement has been implemented. It is now recognized that implementation of the settlement in the time prescribed may not be enough to guarantee that the conflict will not revive. Coordinated programmes are required, over a number of years and in various fields, to ensure that the original causes of war are eradicated. This involves the building up of national institutions, the promotion of human rights, the creation of civilian police forces and other actions in the political field…[O]nly sustained efforts to resolve underlying socio-economic, cultural and humanitarian problems can place an achieved peace on a durable foundation.

 

3. The Role of the African Union

 

Regional organizations are more apt to understand specific geographical and cultural conflicts than the broad and overarching UN. The following excerpts describe the African Union’s (AU) role in the Sudan conflict.

 

Report of the Secretary-General pursuant to paragraphs 6 and 13 to 16 of Security Council resolution 1556 [Paragraph numbers omitted]

 

…V. Assistance to the African Union mission in Darfur

 

In resolution 1556 (2004), the Council requested me to assist the African Union with planning and assessments for its mission in Darfur. Accordingly, I dispatched a team of experts to AU headquarters in Addis Ababa and to the Sudan, from 4 to 17 August. The team was led by the Military Adviser of the Department of Peacekeeping Operations, Major General Patrick Cammaert, and worked in close collaboration with the AU Commission to produce a comprehensive plan for an expanded AU mission in Darfur (AUMIS). The plan reflects the operational concept and includes all logistical, support and budgetary requirements related to an expanded AU mission. In addition to Darfur-based activities, it reflects requirements necessary to support AU in managing and directing a complicated field operation.

The plan is based on consultations with the parties, members of the affected population, United Nations agencies and non-governmental organizations. It also takes into account, and seeks to build upon, the experience of the AU mission in Darfur so far. In keeping with the agreement with the parties of 28 May on the implementation modalities of the Humanitarian Ceasefire Agreement, it provides for observers as well as an element to protect them.

It is generally agreed that the initial AUMIS deployment has been useful, but that the mission's effectiveness has been constrained by its small size and by logistical challenges. AUMIS has not been able, therefore, to allay the serious security concerns of internally displaced persons and returnees. There are many indications that an international observer presence with a protection element, if sufficiently widespread, would mitigate this situation and have a positive effect in promoting both the perception and the reality of security. This in turn would facilitate the delivery of humanitarian assistance and, beyond that, the return of displaced persons in time for the next planting season.

 

In view of the continued activities of armed militias in many areas, the protection element is essential to protect AUMIS personnel, equipment and installations. While protection of the civilian population is the responsibility of the Government, the AUMIS protection element would protect civilians whom it encounters under imminent threat and in the immediate vicinity, within its capability.

 

In addition, in the light of the findings of the team from the Department of Peacekeeping Operations, there is an acute need for a substantial civilian police component to assist with monitoring and capacity-building of the national police …

 

…Stopping attacks against civilians and ensuring their protection is the responsibility of the Government of the Sudan. The Government has not met this obligation fully, despite the commitments it has made and its obligations under resolution 1556 (2004). Attacks against civilians are continuing and the vast majority of armed militias have not been disarmed. Similarly, no concrete steps have been taken to bring to justice or even identify any of the militia leaders or the perpetrators of the attacks, allowing the violations of human rights and the basic laws of war to continue in a climate of impunity. After 18 months of conflict and 30 days after the adoption of resolution 1556 (2004), the Government of the Sudan has not been able to resolve the crisis in Darfur, and has not met some of the core commitments it has made.

 

… I believe that a substantially increased international presence in Darfur is required as quickly as possible. The comprehensive plan for an expanded AU mission in Darfur that the United Nations has assisted the African Union in formulating provides a blueprint for such a presence, which could help to improve the situation in critical respects: it could decrease the level of violence and enhance the protection of the civilian population, particularly those who have been displaced…

 

African Union, Peace And Security Council. October 20, 2004. Addis Ababa, Ethiopia. PSC/PR/Comm. (XVII) Communiqué: Communiqué Of The Seventeenth Meeting Of The Peace And Security Council. Accessed via http://www.africa-union.org/News_Events/Communiqu%E9s/Communiqu%E9%20_Eng%2020%20oct%202004.pdf [Paragraph numbers omitted]

 

…Decides that the enhanced AMIS shall be deployed for a period of one year renewable if need be, to perform the following mandate:

 

 

…Decides that, within the framework of its mandate as spelt out in paragraph 4 above, AMIS shall…perform the following tasks:

 

 

Decides that AMIS shall consist of 3,320 personnel, including 2,341 military personnel, among them 450 observers, up to 815 civilian police personnel, as well as the appropriate civilian personnel. The enhanced Mission shall be headed by a Special Representative of the Chairperson of the Commission (SRCC), who shall ensure the overall direction and coordination of the activities of the Mission and shall maintain close contact with the Sudanese Parties, as well as the UN and all others concerned actors to ensure harmonization and coordination of efforts…

 

African Union, The Military Staff Committee Of The Peace And Security Council. April 25, 2005. Addis Ababa, Ethiopia. Conclusions Of The Third Meeting Of The Military Staff Committee Held On 25 April 2005, At Addis Ababa, Ethiopia. Accessed via http://www.africa-union.org/News_Events/Communiqués/CEM%20Conclusions%20%203e%20reunion%20eng%2025avr05.doc [Paragraph numbers omitted]

 

…Taking cognisance of the salient issues in the report, the submissions by the Force Commander, the Civilian Police Commissioner, as well as the observations made by the GOS, the Committee after due deliberations arrived at the following conclusions:

 

That the Security situation in Darfur has relatively improved but still remains at an unacceptable level arising from lack of compliance of the parties to the Humanitarian Ceasefire Agreement of 8 April 2004.

 

The African Union Mission in Sudan in its present strength is over stretched to address the security concerns. In consequence therefore, there was the need to enhance the mission by increasing its strength and providing it with adequate logistical support.

 

The strength of 5887 for the Military Component proposed by the Assessment Team lacked basic elements of a balanced military force such as an integral Combat Service Support Unit required to deal with the situation in Oarfur. Consequently, the Committee considered the force structure presented by the Force Commander more realistic to address the situation.

 

The Committee therefore recommends for the consideration of the PSC, the enhancement of the Military Component of AMIS to a total strength of 6171 to be composed of:

 

 

>Force HQ (FHQ)

 

- Force HQ Reserve 120

- Light Engr Company 100

- EOO Section 10

- MP Platoon 60

- FHQ HQ Company 196

- HQ Staff (Incl. 10 Int. Staff) 66

- Joint Ops Centre 05

Total 557

 

 

- One Inf. Battalion (Sectors 1,2,3 and 8) 680 x 4 = 2720

- One Inf. Battalion (Sectors 4,5,6 and 7) 538x 4 = 2152

- One Inf. Platoon (Abeche) 40

Total = 4912

 

- AU Observers 542

- Chadian Mediators 32

- AU Partners 32

- Party Representatives 96

Total 702

 

Grand Total (557+4912+702) = 6171

 

The Civilian Police Component be enhanced to a total strength of 1560.

 

 

Human Rights Watch. June 30, 2005. “AU Summit: Protect Civilians Across Darfur.” Accessed via http://hrw.org/english/docs/2005/07/01/darfur11261.htm

 

…Today, the African Union will begin its second phase of deploying troops to Darfur. Plans are well underway to increase AU forces in Darfur from some 2,700 to 7,700 by the end of September.

 

Nigeria, Rwanda, Senegal, South Africa and Kenya are contributing the additional forces, including an estimated 4,000 troops and 1,000 civilian police. The European Union, NATO and the United Nations-along with countries including the United States, France, Canada and Britain-are providing the technical, financial and logistical support to deploy these AU forces…

 

…AU troops should robustly protect civilians and proactively patrol and secure the main roads for humanitarian, commercial and civilian traffic. These forces should also do what is necessary to establish a safe and secure environment that will allow for the safe and voluntary return of refugees and internally displaced persons.

 

Once the 7,700 AU forces are deployed, the African Union, NATO, the United Nations and other donors should move as quickly as possible to the next phase of deployment, which will boost the level of AU forces to 12,300 under current plans.

 

 

3. The Response of Non-Governmental Organizations

 

A critical player in international aid is the work of NGOs. This section includes two examples of different approaches by NGOs in Darfur. Some NGOs, such as Doctors Without Borders (Medecins Sans Frontieres, MSF), play a largely humanitarian assistance role. The first excerpt is an interview regarding MSF’s work with victims of sexual violence. The second gives a broader, more comprehensive view of MSF’s impact in Sudan. Other NGOs, have human rights protection as their central mission. An organization like Amnesty International (AI) conducts fact-finding in the region to influence policy makers to protect human rights. In the first excerpt, AI gives a very superficial, but encompassing, description of its efforts in Darfur. The second and third provide in-depth coverage of AI’s actions in specific refugee camps.

 

Doctors Without Borders/Medecins Sans Frontieres. September 27, 2004. Q&A: Responding to Sexual Violence in Darfur. Accessed via http://www.doctorswithoutborders.org/news/2004/09-27-2004_1.cfm

 

Joop Hegeman, a nurse and therapist, is helping to set up a response within MSF's South Darfur programs for women seeking assistance and a system to identify girls and women who need help, but are not necessarily coming forward. MSF teams in other parts of Darfur are organising a similar type of response.

 

What are you doing to assist women and girls who have been the victim of rape or other forms of sexual violence?

 

"We started to train our community health workers (CHW s) in Kass and Kalma. During their weekly visits in the camp and the community, they engage in active case-finding, social support and psycho-education, which is explaining the psychological process women are likely to go through.

 

"The CHW s initially started visiting the mothers of malnourished children who were discharged from our daycare feeding program, but they soon came across women who had been raped, sometimes even twice…They also met women who had been gang raped by up to 40 men or taken to the camps of their attackers where they were mistreated. Our CHW s find out what type of complaints the women and girls have, whether they received medical treatment, what they need the most.

"We refer the women and girls to our primary health care clinic. We give them referral cards, on the basis of which our doctor immediately recognizes why they are coming. We try to be as discrete as possible and, if necessary, get them in through the back door. The doctor examines them, gives them medicines against sexually transmitted infections (STI) and the morning-after pill, if relevant.

 

"Listening to their story and giving them information during the consultation is as important. For them, but also for their husband who is equally at risk of contracting a STI."

 

…"In Kass, where we came across some very young rape survivors of 11, 13 and 15 years old, we organised for them to meet each week in the presence of a community health worker. For adult women it is generally easier to talk about a traumatic experience.

 

…"The CHWs help them put their complaints into context, they reassure them that their fears are normal, that it is okay for them to look for what is healthy and safe for them.

These are healthy coping mechanisms, and they generally fade after three months. It is the women who suffer from post-traumatic stress disorder who can't pick up the pieces of their lives. It is clear that more specialised help is needed for them, but this is unfortunately still lacking now….

 

Do many women seek help?

 

"The day after I informed our CHW s in Kass of our future plans, in quite general terms actually, 20 women and girls presented themselves. So we looked for a private location, and I did a brief consultation with each.

 

…"Another factor is that the community leaders among the displaced regard treatment and support as a necessity. The men feel very responsible for what has happened to the women. There is a real social coherence - in Kalma they even named their" sector" in the camp after their village. These are all supportive factors. In Kass and Kalma about 40 women and girls are participating in each program.

 

Do women present themselves easily?

 

"Not necessarily. The CHW s actively look for girls who are depressed and don't want to come forward. They pay extra attention to these cases, and visit them more regularly. They try to involve them in practical activities, for instance the making of baskets.

 

"You don't have to imagine extraordinary treatment techniques. We rather try to restore basic traditional village patterns so that women find a sense to their life again and take up the care for their children again. So many people have suffered traumatic experiences….

 

Medecins Sans Frontieres. December 16, 2004. Darfur: Living in a nightmare. Accessed via http://www.msf.org/msfinternational/invoke.cfm?component=article&objectid=0464A72E-9B8C-44A4-85624DC1F4F1C9D7&method=full_html

 

More than 200 international MSF volunteers and 2,000 NATIONAL STAFF members are working in an area where approximately 700,000 people have sought refuge, helping those weakened by disease and malnutrition.

 

In July alone, the organization shipped and flew in more than 1,400 tons of supplies, valued at more than three million euros, to Sudan. The supplies included large quantities of medical and logistical material as well as full containers of food.

 

Across Darfur, MSF is providing medical care in hospitals and clinics for those wounded in the violence, victims of sexual violence and displaced living in camps who suffer from malaria, respiratory infections and diarrhea - the latter the main cause of death, particularly for young children and the elderly. Another important part of the organization's activities centers on feeding malnourished children.

 

MSF has organized "blanket feedings" to distribute survival food rations to children under the age of five. MSF estimates that by the end of 2004 it will have distributed more than 800,000 survival rations. Teams also provide clean water and latrines to reduce the risk of cholera, dysentery and other diseases. In late July, MSF was treating some 10,000 malnourished children in its feeding centers and performing almost 12,000 medical consultations a week.

 

…MSF will also hold a massive measles vaccination campaign there, targeting 80,000 children between the ages of six months and 15.

 

In addition to providing immediate relief, MSF has been speaking out on the precarious situation of the displaced and the need for immediate action. Despite the efforts made by MSF and others, many people remain exposed to hunger, disease and violence.

 

The people of Darfur need much more assistance than MSF can provide. The organization continues to call on international aid agencies to increase significantly their delivery of aid, especially in areas that remain cut off from help at present, in order to meet the immense needs and avoid further deaths.

 

Amnesty International USA. September 21, 2004. London, United Kingdom. Distress, Denial and Disappointment in Darfur: Findings of Amnesty International Mission to Sudan. Available at http://www.amnestyusa.org/countries/sudan/document.do?id=B0C94FD4BB814C3785256F16005523CD

 

In a marked departure from past practice, the delegation was given free and full access to Darfur. Delegates visited Al Jeneina, Nyala and Al Fasher and met with senior government ministers and officials in Khartoum and Darfur, as well as international organizations and civil society representatives.

 

…They heard first hand accounts of atrocities from displaced persons in camps and villages in western Darfur and in Nyala in southern Darfur…

 

"While we found engagement and admission of violations of human rights and international humanitarian law by some members of the government there was total denial by others. Such denial is insulting to the victims," said Irene Khan, Secretary General of Amnesty International (AI).

 

…The delegates visited displaced people from nomadic tribes who are now in Musai camp near Nyala, where they heard "mirror image" accounts of killings and rapes said to have been committed by the insurgents. AI condemns strongly all violations of international humanitarian law committed by armed political groups.

 

AI acknowledged the government's efforts to increase the number of police in Darfur by redeployment from other parts of Sudan. However, often they are not properly equipped. Furthermore, the delegation heard from displaced persons that police did not investigate their complaints and that apparently some of Janjawid had been absorbed into the police and government militia.

 

…An international presence in every district is what is needed now to build the confidence of the people and improve security."

 

…"Indicators and benchmarks to judge progress on protection of human rights must be qualitative and not quantitative -- it is not a question of numbers of monitors and observers but of their impact on the protection of civilians; it is not a question of simply having more policemen, but of them having the ability and willingness to protect people," said Ms Khan.

 

"Restoring security is essential to enable people to return home voluntarily and in safety and dignity. The significance of establishing these conditions cannot be too heavily underscored. Otherwise there is a risk that ethnic cleansing might lead to ethnic re-engineering," cautioned Ms Khan, pointing out that prolonged displacement could upset the demographic balance in the region.

 

…"The region does not have the infrastructure to allow a humanitarian operation of this scale to be run for a long period of time. If displacement continues, access is lost, international assistance and attention drops, there is still a possibility that the crisis could turn into a catastrophe."

 

The Amnesty International delegation visited Darfur from September 14-21, 2004, to gather information, assess the human rights aspects of the crisis and press the Government of Sudan to take action.

Amnesty International USA. Amnesty International delegation visits camp outside al-Jeneina. Accessed via http://www.amnestyusa.org/countries/sudan/document.do?id=62CF3451303B595C80256F1200425A6C

 

The Amnesty International delegation in al-Jeneina visited an Internally Displaced Persons (IDP) camp at Sissi…

 

…In Sissi camp, the delegation spoke with a large gathering of male leaders as well as women.

 

…The delegation heard men and women describe the atrocities that had led the people to flee their villages. The IDPs told us that their villages had been bombed from the air and that the attackers included uniformed men from the army and the Popular Defence Forces. The population seemed still traumatized by that experience and without confidence in the government's ability or willingness to protect them, although the authorities had clearly increased the number of police and police patrols in and around Sissy.

William Schulz. Interview with William Schulz, Director AI USA. Accessed via http://www.amnestyusa.org/countries/sudan/nyala.html

 

Today in Nyala was a classic Amnesty day.

 

We visited government officials and addressed a wide variety of human rights violations taking place here.

 

We visited a prison and met with two potential prisoners of conscience, two lawyers who were arrested and have been in prison now for approximately 6 weeks, allegedly for no greater crime than in one case having a client who was among the victims of attacks and who was attempting to bring court action to seek redress from those attacks. And another individual who was alleged to have connections with the Sudan Liberation Army, but there is little evidence that that lawyer did. So, we met with them, heard their cases, we were given remarkable access to the prisons here by the authorities. In fact, the authorities themselves have been quite open to talking with us and to meeting with us and to allowing us access to a wide variety of people.

 

We also visited a second Internally Displaced Persons, IDP camp. We had gone to one large camp yesterday, with at least 80,000 people, most of them victims, they say, of militia attacks. We went to a much smaller camp today where the people said that they were victims of attacks by the rebel forces. There are about 4,000 people in that camp. We spent a great deal of time in those camps, both yesterday and today, gathering stories from the people about how they came to be there, what kind of services, food, support they're receiving and what they need and what they want for the future.

 

So, it was a classic Amnesty day dealing with everything from potential prisoners of conscience to the massive crimes that are taking place here and resulting in the displacement and creation of tens of thousands of IDPs and refugees.

 

F. PROSECUTION IN THE INTERNATIONAL CRIMINAL COURT

 

Currently, the case of war crimes committed in Darfur is in the hands of the International Criminal Court (ICC). The first official suggestion to move the situation to the ICC was recommended by the UN International Commission of Inquiry on Darfur. This first excerpt draws from the Commission’s findings that the most logical, and effective, measures would be those taken by the ICC. The second is a press release explaining the specifics of the referral and providing a legal background for the Security Council’s action. The third and fourth excerpts are the statements made by the ICC prosecutor regarding the present and future proceedings of the case.

 

  ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT
U.N. Doc. 2187 U.N.T.S. 90, entered into force July 1, 2002.

 

PART 2. JURISDICTION, ADMISSIBILITY AND APPLICABLE LAW

 

Article 5

Crimes within the jurisdiction of the Court

1.         The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:

(a)     The crime of genocide;

(b)     Crimes against humanity;

(c)     War crimes;

(d)     The crime of aggression.

 

  Article 7

Crimes against humanity

1.         For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a)     Murder;

(b)     Extermination;

(c)     Enslavement;

(d)     Deportation or forcible transfer of population;

(e)     Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(f)     Torture;

(g)     Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

(h)     Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

(i)     Enforced disappearance of persons;

(j)     The crime of apartheid;

(k)     Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

2.         For the purpose of paragraph 1:

(a)     "Attack directed against any civilian population" means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;

(b)     "Extermination" includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population;

(c)     "Enslavement" means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children;

(d)     "Deportation or forcible transfer of population" means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law;

(e)     "Torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;

(f)     "Forced pregnancy" means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy;

(g)     "Persecution" means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;

(h)     "The crime of apartheid" means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime;

(i)     "Enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.

Article 13

Exercise of jurisdiction

 
            The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:

(a)     A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;

(b)     A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or

(c)     The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.

 

 

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, January 25, 2005. Geneva, Switzerland. Accessed via http://www.ohchr.org/english/darfur.htm

 

The normal and ideal response to atrocities is to bring the alleged perpetrators to justice in the courts of the State where the crimes are perpetrated, or of the state of nationality of the alleged perpetrators. There may indeed be instances where a domestic system operates in an effective manner and is able to deal appropriately with atrocities committed within its jurisdiction. However, the very nature of most international crimes implies, as a general rule, that they are committed by State officials or with their complicity; often their prosecution is therefore better left to other mechanisms. Considering the nature of the crimes committed in Darfur and the shortcomings of the Sudanese criminal justice system, which have led to effective impunity for the alleged perpetrators, the Commission is of the opinion that the Sudanese courts are unable and unwilling to prosecute and try the alleged offenders.

 

The Commission is of the view that two measures should be taken by the Security Council to ensure that justice is done for the crimes committed in Darfur, keeping in mind that any justice mechanism must adhere to certain recognized principles: it must be impartial, independent, and fair. With regard to the judicial accountability mechanism, the Commission recommends the referral of the situation of Darfur to the International Criminal Court (ICC) by the United Nations Security Council…

 

The other measure is designed to provide for compensation to the victims of so many gross violations of human rights, most of them amounting to international crimes. It is therefore proposed that a Compensation Commission be established by the Security Council.

 

…The Commission holds the view that resorting to the ICC would have [several] merits. First, the International Criminal Court was established with an eye to crimes likely to threaten peace and security…The investigation and prosecution of crimes perpetrated in Darfur would have an impact on peace and security. More particularly, it would be conducive, or contribute to, peace and stability in Darfur, by removing serious obstacles to national reconciliation and the restoration of peaceful relations. Second, as the investigation and prosecution in the Sudan of persons enjoying authority and prestige in the country and wielding control over the State apparatus, is difficult or even impossible, resort to the ICC, the only truly international institution of criminal justice, which would ensure that justice be done. The fact that trials proceedings would be conducted in The Hague, the seat of the ICC, far away from the community over which those persons still wield authority and where their followers live, might ensure a neutral atmosphere and prevent the trials from stirring up political, ideological or other passions. Third, only the authority of the ICC, backed up by that of the United Nations Security Council, might compel both leading personalities in the Sudanese Government and the heads of rebels to submit to investigation and possibly criminal proceedings. Fourth, the Court, with an entirely international composition and a set of well-defined rules of procedure and evidence, is the best suited organ for ensuring a veritably fair trial of those indicted by the Court Prosecutor…

 

United Nations. March 31, 2005. UN Press Release, “Security Council Refers Situation In Darfur, Sudan, To Prosecutor Of International Criminal Court.” Accessed via http://www.un.org/News/Press/docs/2005/sc8351.doc.htm

 

…Adopting resolution 1593…the Council decided also that the Government of the Sudan and all other parties to the conflict in Darfur would cooperate fully with the Court and Prosecutor, providing them with any necessary assistance.

The Council decided further that nationals, current or former officials or personnel from a contributing State outside the Sudan which was not a party to the Rome Statute would be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to operations in the Sudan authorized by the Councilor the African Union, unless such exclusive jurisdiction had been expressly waived by that contributing State.


Inviting the Court and the African Union to discuss practical arrangements that would facilitate the Court's work, including the possibility of conducting proceedings in the region, the Council encouraged the Court, in accordance with the Rome Statute, to support international cooperation with domestic efforts to promote the rule of law, protect human rights and combat impunity in Darfur. It also emphasized the need to promote healing and reconciliation, as well as the creation of institutions, involving all sectors of Sudanese society, such as truth and/or reconciliation commissions, in order to complement judicial processes and thereby reinforce the efforts to restore long-lasting peace.

Security Council resolution 1593 (2005) reads, as follows:

"1. Decides to refer the situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court;

 

"2. Decides that the Government of Sudan and all other parties to the conflict in Darfur shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully;

 

"3. Invites the Court and the African Union to discuss practical arrangements that will facilitate the work of the Prosecutor and of the Court, including the possibility of conducting proceedings in the region, which would contribute to regional efforts in the fight against impunity;

 

"4. Also encourages the Court, as appropriate and in accordance with the Rome Statute, to support international cooperation with domestic efforts to promote the rule of law, protect human rights and combat impunity in Darfur;

 

"5. Also emphasizes the need to promote healing and reconciliation and encourages in this respect the creation of institutions, involving all sectors of Sudanese society… in order to complement judicial processes and thereby reinforce the efforts to restore long-lasting peace, with African Union and international support as necessary;

 

"6. Decides that nationals, current or former officials or personnel from a contributing State outside Sudan which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to operations in Sudan established or authorized by the Council or the African Union, unless such exclusive jurisdiction has been expressly waived by that contributing State;

 

…"8. Invites the Prosecutor to address the Council within three months of the date of adoption of this resolution and every six months thereafter on actions taken pursuant to this resolution;

 

Luis Moreno-Ocampo. June 29, 2005. The Hague, Netherlands. International Criminal Court Report Of The Prosecutor Of The International Criminal Court, Mr. Luis Moreno-Ocampo, To The Security Council Pursuant To UNSCR 1593. Accessed via http://www.icc-cpi.int/library/cases/ICC_Darfur_UNSC_Report_29-06-05_EN.pdf [Footnotes omitted]

 

1.1. Crimes within the Jurisdiction of the Court

 

There is a significant amount of credible information disclosing the commission of grave crimes within the jurisdiction of the Court having taken place in Darfur. These crimes include the killing of thousands of civilians and the widespread destruction and looting of villages, leading to the displacement of approximately 1.9 million civilians. The conditions of life resulting from this violence have led to the deaths of tens of thousands from disease and starvation, particularly affecting vulnerable groups such as children, the sick and the elderly. Information also suggests a pervasive pattern of rape and sexual violence taking place throughout Darfur, including allegations of gang rape, as well as attacks on children and young girls.

 

In addition, the OTP has received information showing the persistent targeting and intimidation of humanitarian personnel. The gravity of such attacks is heightened by their over-all impact on the delivery of vital humanitarian aid to over two million individuals living in an already extremely vulnerable situation.

 

The jurisdiction of the Court covers the situation in Darfur since 1 July 2002. This jurisdiction remains open and the further commission of grave crimes will be the subject of on-going monitoring, investigation and potential prosecution by the ICC.

 

1.2. Admissibility

 

In accordance with the Rome Statute, the ICC is complementary to national criminal jurisdictions. This means that the ICC is a last resort Court which will only intervene where: I) there is not or has not been any national investigation or prosecution of the cases; or 2) where there is or has been an investigation or prosecution, but they are vitiated by an unwillingness or inability to genuinely carry out the investigation or prosecution.

 

2. Cooperation with other States

 

…The support and cooperation of States Parties and non-States Parties to the ICC will be important to ensure the effective implementation of UNSCR 1593 (2005). As the investigation progresses the OTP may make requests to relevant states for cooperation and assistance in the process of evidence gathering. Moreover, efforts to promote the rule of law and meaningful reconciliation, complementing the work of the Court, will require the full engagement of the Government of Sudan, African States and other States from the region.

 

3. The African Union

 

…A strong relationship between the Court and the African Union is critical not merely due to the leading role played by the AU in seeking peace and security in Darfur, but also in order to ensure that the contribution made by the ICC is made more meaningful through close partnership with African countries.

 

…The focus of the OTP is not just retrospective to those crimes committed from 1 July 2002, we are also vigilant to the on-going commission of serious crimes in Darfur and the devastating impact they have on the civilian population. The Office will closely monitor these on-going crimes and investigate and prosecute persons responsible for their commission. The commencement of investigations marks an opportunity for all parties to take all possible steps to prevent the continuation of such offences.

 

The referral of the situation in Darfur to the Office of the Prosecutor has brought an international, independent and impartial justice component to the efforts to end the violence in Darfur. This component forms part of a collective international and regional effort to improve the security situation, ensure the provision of humanitarian assistance and the creation of conditions for the return of refugees and internally displaced persons. A priority for the Office will be to work with the African Union, states and civil society in the region to encourage and support these efforts. To facilitate this approach the Court will seek to establish appropriate presences and effective communications in the region.

 

…Additional international and national efforts will be required to bring to justice other offenders and to promote the rule of law and reconciliation through traditional and other mechanisms. This has particular significance in the context of Darfur where, as in other areas of Africa, tribal and traditional systems exist for the promotion of dispute resolution. The ICC will cooperate with and support such efforts, the combination of which will mark a comprehensive response to the need for peace, justice and reconciliation.

 

 

 



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