For decades, the arid, impoverished western province of Darfur has been plagued by clashes over land and grazing rights between nomadic Arab tribes and farmers from the black Fur, Massaleet, and Zagawa tribes.
In 2003, two black rebel groups in Darfur, the Sudan Liberation Movement/Army and the Justice and Equality Movement, began attacking government installations. The rebels oppose the central government in Khartoum for favoring the country's Arab population at the expense of black Sudanese and advocate a national government that would create a "united democratic Sudan." While the conflict is often described as pitting the Muslim-controlled north of the country against the Christian, animist south, at least 75% of the country's population is Muslim. The current government, headed by Gen. Omer Hassan al-Bashir, who took power in 1989 in a coup d'état, is Islamist.
To quell the rebellion, the Khartoum government began in 2003 to recruit, mobilize, and arm Arabs in Darfur into tribally based militias, most commonly known as Janjaweed. In addition to government-sanctioned anti-rebel activities, these militias attack the civilian population, murdering, raping, torturing, and abducting civilians, and looting property.
Since the conflict began in 2003, tens of thousands of people have died. Some 2 million people in Darfur have fled and are now in teeming refugee camps without adequate food, water, fuel, and medical care, or have fled to neighbouring Chad. The Janjaweed continue to murder and rape refugees who venture outside the camps seeking food or fuel.
Conclusions and Recommendations
The people of Darfur have suffered enormously during the last few years. Their ordeal must remain at the centre of international attention. They have been living a nightmare of violence and abuse that has stripped them of the very little they had. Thousands were killed, women were raped, villages were burned, homes destroyed, and belongings looted. About 1.8 million were forcibly displaced and became refugees or internally displaced persons. They need protection.
Establishing peace and ending the violence in Darfur are essential for improving the human-rights situation. But real peace cannot be established without justice. The Sudanese justice system has unfortunately demonstrated that it is unable or unwilling to investigate and prosecute the alleged perpetrators of the war crimes and crimes against humanity committed in Darfur. It is absolutely essential that those perpetrators be brought to justice before a competent and credible international criminal court. It is also important that the victims of the crimes committed in Darfur be compensated.
The Sudan is a sovereign state and its territorial integrity must be respected. While the Commission acknowledges that the Sudan has the right to take measures to maintain or re-establish its authority and defend its territorial integrity, sovereignty entails responsibility. The Sudan is required not only to respect international law, but also to ensure its respect. It is regrettable that the Government of the Sudan has failed to protect the rights of its own people. The measures it has taken to counter the insurgency in Darfur have been in blatant violation of international law. The international community must therefore act immediately and take measures to ensure accountability. Those members of rebel groups that have committed serious violations of human rights and humanitarian law must also be held accountable.
Measures taken by all parties to the internal conflict in the Sudan must be in conformity with international law.
The Commission concludes that the Government of the Sudan and the Janjaweed are responsible for a number of violations of international human rights and humanitarian law. Some of these violations are very likely to amount to war crimes, and given the systematic and widespread pattern of many of the violations, they would also amount to crimes against humanity. The Commission further finds that the rebel movements are responsible for violations which would amount to war crimes.
The Commission finds that large-scale destruction of villages in Darfur has been deliberately caused, by and large, by the Janjaweed during attacks, independently or in combination with Government forces. Even though in most of the incidents the Government may not have participated in the destruction, their complicity in the attacks during which the destruction was conducted and their presence at the scene of destruction are sufficient to make them jointly responsible for the destruction. There was no military necessity for the destruction and devastation caused. The targets of destruction during the attacks under discussion were exclusively civilian objects. The destruction of so many civilian villages is clearly a violation of international human rights law and international humanitarian law and amounts to a very serious war crime.
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 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.
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 rape as a crime against humanity, or sexual slavery as a crime against humanity.
The Commission considers that torture has formed an integral and consistent part of the attacks against civilians by Janjaweed and Government forces. Torture and inhuman and degrading treatment can be considered to have been committed in both a widespread and systematic manner, amounting to a crime against humanity. In addition, the Commission considers, that conditions in the Military Intelligence Detention Centre witnessed in Khartoum clearly amount to torture and thus constitute a serious violation of international human rights and humanitarian law.
It is estimated that more than 1.8 million persons have been forcibly displaced from their homes, and are now hosted in IDP sites throughout Darfur, as well as in refugee camps in Chad. The Commission finds that the forced displacement of the civilian population was both systematic and widespread, and such action would amount to a crime against humanity.
The Commission finds that the Janjaweed have abducted women, conduct which may amount to enforced disappearance as a crime against humanity. The incidents investigated establish that these abductions were systematic and 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 international human rights law, may also amount to the crime of enforced disappearance as a crime against humanity, as these acts were both systematic and widespread.
In a vast majority of cases, victims of the attacks belonged to African tribes, in particular the Fur, Masaalit, and Zaghawa tribes, who were systematically targeted on political grounds in the context of the counter-insurgency policy of the Government. The pillaging and destruction of villages, being conducted on a systematic as well as widespread basis in a discriminatory fashion appears to have been directed to bring about the destruction of livelihoods and the means of survival of these populations. The Commission also considers that the killing, displacement, torture, rape, and other sexual violence against civilians was of such a discriminatory character and may constitute persecution as a crime against humanity. While the Commission did not find a systematic or a widespread pattern to violations committed by rebels, it nevertheless found credible evidence that members of the SLA and JEM 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.
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. Recent developments have led members of African and Arab tribes to perceive themselves and others as two distinct ethnic groups. The rift between tribes, and the political polarization around the rebel opposition to the central authorities has extended itself to the issues of identity. The tribes in Darfur supporting rebels have increasingly come to be identified as "African" and those supporting the Government as "Arabs". 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 recognize 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 as in any way detracting from the gravity of the crimes perpetrated in that region. 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.
Who are the perpetrators?
As requested by the Security Council, to "identify perpetrators" the Commission decided that the most appropriate standard was that requiring 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 has not made final judgments as to criminal guilt; rather, it has made an assessment of possible suspects that will pave the way for future investigations, and possible indictments, by a prosecutor, and convictions by a court of law.
Those identified as possibly responsible for the above-mentioned violations consist of individual perpetrators, including officials of the Government of the 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 collected sufficient and consistent material (both testimonial and documentary) to point to numerous (51) suspects. Some of these persons are suspected of being responsible under more than one head of responsibility, and for more than one crime.
The Commission 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 United Nations 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.
The Commission's mention of the number of individuals it has identified should not, however, be taken as an indication that the list is exhaustive. Numerous names of other possible perpetrators, who have been identified on the basis of insufficient evidence to name them as suspects can be found in the sealed body of evidentiary material handed over to the High Commissioner for Human Rights.
Furthermore, the Commission has gathered substantial material on different influential individuals, institutions, groups of persons, or committees, which have played a significant role in the conflict in Darfur, including on planning, ordering, authorizing, and encouraging attacks. These include, but are not limited to, the military, the National Security and Intelligence Service, the Military Intelligence and the Security Committees in the three States of Darfur. These institutions should be carefully investigated so as to determine the possible criminal responsibility of individuals taking part in their activities and deliberations.
1. Measures that should be taken by the Security Council
With regard to the judicial accountability mechanism, the Commission strongly recommends that the Security Council should refer the situation in Darfur to the International Criminal Court, pursuant to Article 13(b) of the Statute of the Court. Many of the alleged crimes documented in Darfur have been widespread and systematic. They meet all the thresholds of the Rome Statute for the International Criminal Court. The Sudanese justice system has demonstrated its inability and unwillingness to investigate and prosecute the perpetrators of these crimes.
The Commission holds the view that resorting to the ICC would have at least six major merits. First, the International Court was established with an eye to crimes likely to threaten peace and security. This is the main reason why the Security Council may trigger the Court's jurisdiction under Article 13 (b). 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 impel 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.
Fifth, the ICC could be activated immediately, without any delay (which would be the case if one were to establish ad hoc tribunals or so called mixed or internationalized courts).
Sixth, the institution of criminal proceedings before the ICC, at the request of the Security Council, would not necessarily involve a significant financial burden for the international community.
The Security Council should, however, act not only against the perpetrators but also on behalf of victims. In this respect, the Commission also proposes the establishment an International Compensation Commission, consisting of fifteen (15) members, ten (10) appointed by the United Nations Secretary-General and five (5) by an independent Sudanese body.
2. Action that should be taken by the Sudanese authorities
Government of the Sudan was put on notice concerning the alleged serious crimes that are taking place in Darfur. It was requested not only by the international community, but more importantly by its own people, to put an end to the violations and to bring the perpetrators to justice. It must take serious measures to address these violations. The Commission of Inquiry therefore recommends the Government of the Sudan to:
(i) end the impunity for the war crimes and crimes against humanity committed in Darfur. A number of measures must be taken in this respect. It is essential that Sudanese laws be brought in conformity with human rights standards through inter alia abolishing the provisions that permit the detention of individuals without judicial review, the provisions granting officials immunity from prosecution as well as the provisions on specialized courts;
(ii) respect the rights of IDPs and fully implement the Guiding Principles on Internal Displacement, particularly with regard to facilitating their voluntary return in safety and dignity;
(iii) strengthen the independence and impartiality of the judiciary and to confer on courts adequate powers to address human rights violations;
(iv) grant the International Committee of the Red Cross and the United Nations human rights monitors full and unimpeded access to all those detained in relation to the situation in Darfur;
(v) ensure the protection of all the victims and witnesses of human rights violations, particularly those who were in contact with the Commission of Inquiry and ensure the protection of all human rights defenders;
(vi) with the help of international community, enhance the capacity of the Sudanese judiciary through the training of judges, prosecutors and lawyers. Emphasis should be laid on human rights law, humanitarian law, as well as international criminal law;
(vii) fully cooperate with the relevant human rights bodies and mechanisms of the United Nations and the African Union, particularly, the special representative of the United Nations Secretary-General on human rights defenders; and
(viii) create through a broad consultative process, including civil society and victim groups, a truth and reconciliation commission once peace is established in Darfur.
3. Measures That Could be Taken by Other Bodies
The Commission also recommends that measures designed to break the cycle of impunity should include the exercise by other states of universal jurisdiction, as outlined elsewhere in this report.
Given the seriousness of the human rights situation in Darfur and its impact on the human rights situation in the Sudan, the Commission recommends that the Commission on Human Rights consider the re-establishment of the mandate of the Special Rapporteur on human rights in the Sudan.
The Commission recommends that the High Commissioner for Human Rights should issue public and periodic reports on the human rights situation in Darfur.