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Sudan: Darfur Report
AfricaFocus Bulletin
Feb 3, 2005 (050203)
(Reposted from sources cited below)
Editor's Note
"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." - International Commission
of Inquiry on Darfur
Since the release of the report on the UN Commission on Darfur last
week, news coverage and debate has focused on the Commission's
failure to conclude that genocide has been committed, and whether
the U.S. will accept the Commission's proposal to refer charges of
crimes against humanity to the International Criminal Court.
Less noted, despite its potential significance in increasing
pressure on the Sudanese government, is the Commission's welldocumented
conclusion that crimes against international
humanitarian law have been systematic, planned, and clearly the
joint responsibility of the Sudanese government as well as of the
Arab-identified militia it supports. The report also stressed that
these actions continued during the period of the Commission's
investigation.
After receiving the report, UN Secretary-General Kofi Annan warned
that sanctions against the Sudanese government should remain an
option, and the U.S. renewed a proposal for sanctions such as an
assets freeze and travel ban on selected Sudanese officials. Still,
Security Council approval of these steps remains unlikely, and
President Bush failed to highlight the issue by avoiding mention of
Sudan or any other African issue in his State of the Union message
yesterday.
Meanwhile, a bipartisan delegation from the U.S. Congress returned
from Sudan, holding a press conference on January 27 with Don
Cheadle, the star of the recent movie Hotel Rwanda, who accompanied
the delegation. Republican Africa Subcommittee chair Rep. Ed Royce
stressed that the killing continues, and reiterated a call for
sanctions. Another delegation member, Rep. Barbara Lee, cited the
growing movement to divest from companies that do business with the
Sudan government, noting that New Jersey recently decided to divest
state pension fund investments, and calling on the giant California
Public Employees Retirement System to take similar action.
[See http://www.royce.house.gov and http://www.house.gov/lee]
This AfricaFocus Bulletin contains the executive summary of the
177-page report on Darfur submitted to the Secretary-General.
The full report is available at
http://www.ohchr.org/english/darfur.htm
A detailed critique of the report's failure to conclude "genocidal
intent," written by Eric Reeves, is available at
http://www.sudantribune.com/article.php3?id_article=7815
For previous AfricaFocus Bulletins on Sudan, see
http://www.africafocus.org/country/sudan.php
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Report of the International Commission of Inquiry on Darfur
to the United Nations Secretary-General
Pursuant to Security Council Resolution 1564 of 18 September 2004
Geneva, 25 January 2005
Executive Summary
Acting under Chapter VII of the United Nations Charter, on 18
September 2004 the Security Council adopted resolution 1564
requesting, inter alia, that the Secretary-General 'rapidly
establish an international commission of inquiry in order
immediately to investigate reports of violations of international
humanitarian law and human rights law in Darfur by all parties, to
determine also whether or not acts of genocide have occurred, and
to identify the perpetrators of such violations with a view to
ensuring that those responsible are held accountable'.
In October 2004, the Secretary General appointed Antonio Cassese
(Chairperson), Mohamed Fayek, Hina Jilani, Dumisa Ntsebeza and
Therese Striggner-Scott as members of the Commission and requested
that they report back on their findings within three months. The
Commission was supported in its work by a Secretariat headed by an
Executive Director, Ms. Mona Rishmawi, as well as a legal research
team and an investigative team composed of investigators, forensic
experts, military analysts, and investigators specializing in
gender violence, all appointed by the Office of the United Nations
High Commissioner for Human Rights. The Commission assembled in
Geneva and began its work on 25 October 2004.
In order to discharge its mandate, the Commission endeavoured to
fulfil four key tasks: (1) to investigate reports of violations of
international humanitarian law and human rights law in Darfur by
all parties; (2) to determine whether or not acts of genocide have
occurred; (3) to identify the perpetrators of violations of
international humanitarian law and human rights law in Darfur; and
(4) to suggest means of ensuring that those responsible for such
violations are held accountable. While the Commission considered
all events relevant to the current conflict in Darfur, it focused
in particular on incidents that occurred between February 2003 and
mid-January 2005.
The Commission engaged in a regular dialogue with the Government of
the Sudan throughout its mandate, in particular through meetings in
Geneva and in the Sudan, as well as through the work of its
investigative team. The Commission visited the Sudan from 7-21
November 2004 and 9-16 January 2005, including travel to the three
Darfur States. The investigative team remained in Darfur from
November 2004 through January 2005. During its presence in the
Sudan, the Commission held extensive meetings with representatives
of the Government, the Governors of the Darfur States and other
senior officials in the capital and at provincial and local levels,
members of the armed forces and police, leaders of rebel forces,
tribal leaders, internally displaced persons, victims and witnesses
of violations, NGOs and United Nations representatives.
The Commission submitted a full report on its findings to the
Secretary-General on 25 January 2005. The report describes the
terms of reference, methodology, approach and activities of the
Commission and its investigative team. It also provides an overview
of the historical and social background to the conflict in Darfur.
The report then addresses in detail the four key tasks referred to
above, namely the Commission's findings in relation to: i)
violations of international human rights and humanitarian law by
all parties; ii) whether or not acts of genocide have taken place;
iii) the identification of perpetrators; and iv) accountability
mechanisms. These four sections are briefly summarized below.
I. Violations of international human rights law and international
humanitarian law
In accordance with its mandate to 'investigate reports of
violations of human rights law and international humanitarian law',
the Commission carefully examined reports from different sources
including Governments, inter-governmental organizations, United
Nations bodies and mechanisms, as well as non-governmental
organizations.
The Commission took as the starting point for its work two
irrefutable facts regarding the situation in Darfur. Firstly,
according to United Nations estimates there are 1,65 million
internally displaced persons in Darfur, and more than 200,000
refugees from Darfur in neighbouring Chad. Secondly, there has been
large-scale destruction of villages throughout the three states of
Darfur. The Commission conducted independent investigations to
establish additional facts and gathered extensive information on
multiple incidents of violations affecting villages, towns and
other locations across North, South and West Darfur. The
conclusions of the Commission are based on the evaluation of the
facts gathered or verified through its investigations.
Based on a thorough analysis of the information gathered in the
course of its investigations, the Commission established that the
Government of the Sudan and the Janjaweed are responsible for
serious violations of international human rights and humanitarian
law amounting to crimes under international 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.
The Commission is particularly alarmed that attacks on villages,
killing of civilians, rape, pillaging and forced displacement have
continued during the course of the Commission's mandate. The
Commission considers that action must be taken urgently to end
these violations.
While the Commission did not find a systematic or a widespread
pattern to these violations, it found credible evidence that rebel
forces, namely members of the SLA and JEM, also are responsible for
serious violations of international human rights and humanitarian
law which may amount to war crimes. In particular, these violations
include cases of murder of civilians and pillage.
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.
The Commission does recognise that in some instances individuals,
including Government officials, may commit acts with genocidal
intent. Whether this was the case in Darfur, however, is a
determination that only a competent court can make on a case by
case basis.
The conclusion that no genocidal policy has been pursued and
implemented in Darfur by the Government authorities, directly or
through the militias under their control, should not be taken in
any way as detracting from the gravity of the crimes perpetrated in
that region. International offences such as the crimes against
humanity and war crimes that have been committed in Darfur may be
no less serious and heinous than genocide.
III. Identification of perpetrators
The Commission has collected reliable and consistent elements which
indicate the responsibility of some individuals for serious
violations of international human rights law and international
humanitarian law, including crimes against humanity or war crimes,
in Darfur. In order to identify perpetrators, the Commission
decided that there must be 'a reliable body of material consistent
with other verified circumstances, which tends to show that a
person may reasonably be suspected of being involved in the
commission of a crime.' The Commission therefore makes an
assessment of likely suspects, rather than a final judgment as to
criminal guilt.
Those identified as possibly responsible for the above-mentioned
violations consist of individual perpetrators, including officials
of the Government of Sudan, members of militia forces, members of
rebel groups, and certain foreign army officers acting in their
personal capacity. Some Government officials, as well as members of
militia forces, have also been named as possibly responsible for
joint criminal enterprise to commit international crimes. Others
are identified for their possible involvement in planning and/or
ordering the commission of international crimes, or of aiding and
abetting the perpetration of such crimes. The Commission also has
identified a number of senior Government officials and military
commanders who may be responsible, under the notion of superior (or
command) responsibility, for knowingly failing to prevent or
repress the perpetration of crimes. Members of rebel groups are
named as suspected of participating in a joint criminal enterprise
to commit international crimes, and as possibly responsible for
knowingly failing to prevent or repress the perpetration of crimes
committed by rebels.
The Commission has decided to withhold the names of these persons
from the public domain. This decision is based on three main
grounds: 1) the importance of the principles of due process and
respect for the rights of the suspects; 2) the fact that the
Commission has not been vested with investigative or prosecutorial
powers; and 3) the vital need to ensure the protection of witnesses
from possible harassment or intimidation. The Commission instead
will list the names in a sealed file that will be placed in the
custody of the UN Secretary-General. The Commission recommends that
this file be handed over to a competent Prosecutor (the Prosecutor
of the International Criminal Court, according to the Commission's
recommendations), who will use that material as he or she deems fit
for his or her investigations. A distinct and very voluminous
sealed file, containing all the evidentiary material collected by
the Commission, will be handed over to the High Commissioner for
Human Rights. This file should be delivered to a competent
Prosecutor.
IV. Accountability mechanisms
The Commission strongly recommends that the Security Council
immediately refer the situation of Darfur to the International
Criminal Court, pursuant to article 13(b) of the ICC Statute. As
repeatedly stated by the Security Council, the situation
constitutes a threat to international peace and security. Moreover,
as the Commission has confirmed, serious violations of
international human rights law and humanitarian law by all parties
are continuing. The prosecution by the ICC of persons allegedly
responsible for the most serious crimes in Darfur would contribute
to the restoration of peace in the region.
The alleged crimes that have been documented in Darfur meet the
thresholds of the Rome Statute as defined in articles 7 (1), 8 (1)
and 8 (f). There is an internal armed conflict in Darfur between
the governmental authorities and organized armed groups. A body of
reliable information indicates that war crimes may have been
committed on a large-scale, at times even as part of a plan or a
policy. There is also a wealth of credible material which suggests
that criminal acts were committed as part of widespread or
systematic attacks directed against the civilian population, with
knowledge of the attacks. In the opinion of the Commission
therefore, these may amount to crimes against humanity.
The Sudanese justice system is unable and unwilling to address the
situation in Darfur. This system has been significantly weakened
during the last decade. Restrictive laws that grant broad powers to
the executive have undermined the effectiveness of the judiciary,
and many of the laws in force in Sudan today contravene basic human
rights standards. Sudanese criminal laws do not adequately
proscribe war crimes and crimes against humanity, such as those
carried out in Darfur, and the Criminal Procedure Code contains
provisions that prevent the effective prosecution of these acts. In
addition, many victims informed the Commission that they had little
confidence in the impartiality of the Sudanese justice system and
its ability to bring to justice the perpetrators of the serious
crimes committed in Darfur. In any event, many have feared
reprisals in the event that they resort to the national justice
system.
The measures taken so far by the Government to address the crisis
have been both grossly inadequate and ineffective, which has
contributed to the climate of almost total impunity for human
rights violations in Darfur. Very few victims have lodged official
complaints regarding crimes committed against them or their
families, due to a lack of confidence in the justice system. Of the
few cases where complaints have been made, most have not been
properly pursued. Furthermore, procedural hurdles limit the
victims' access to justice. Despite the magnitude of the crisis and
its immense impact on civilians in Darfur, the Government informed
the Commission of very few cases of individuals who have been
prosecuted, or even disciplined, in the context of the current
crisis.
The Commission considers that the Security Council must act not
only against the perpetrators but also on behalf of the victims. It
therefore recommends the establishment of a Compensation Commission
designed to grant reparation to the victims of the crimes, whether
or not the perpetrators of such crimes have been identified.
It further recommends a number of serious measures to be taken by
the Government of the Sudan, in particular (i) ending the impunity
for the war crimes and crimes against humanity committed in Darfur;
(ii) strengthening the independence and impartiality of the
judiciary, and empowering courts to address human rights
violations; (iii) granting full and unimpeded access by the
International Committee of the Red Cross and United Nations human
rights monitors to all those detained in relation to the situation
in Darfur; (iv) ensuring the protection of all the victims and
witnesses of human rights violations; (v) enhancing the capacity of
the Sudanese judiciary through the training of judges, prosecutors
and lawyers; (vi) respecting the rights of IDPs and fully
implementing the Guiding Principles on Internal Displacement,
particularly with regard to facilitating the voluntary return of
IDPs in safety and dignity; (vii) fully cooperating with the
relevant human rights bodies and mechanisms of the United Nations
and the African Union; and (viii) creating, through a broad
consultative process, a truth and reconciliation commission once
peace is established in Darfur.
The Commission also recommends a number of measures to be taken by
other bodies to help break the cycle of impunity. These include the
exercise of universal jurisdiction by other States,
re-establishment by the Commission on Human Rights of the mandate
of the Special Rapporteur on human rights in Sudan, and public and
periodic reports on the human rights situation in Darfur by the
High Commissioner for Human Rights.
AfricaFocus Bulletin is an independent electronic publication
providing reposted commentary and analysis on African issues, with
a particular focus on U.S. and international policies. AfricaFocus
Bulletin is edited by William Minter.
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