Details International Commission of Inquiry on Darfur

1 details

1.1 violations of international human rights law , international humanitarian law
1.2 have acts of genocide occurred?
1.3 identification of perpetrators
1.4 accountability mechanisms

details

acting under chapter vii of united nations charter, on 18 september 2004 security council adopted resolution 1564 requesting, inter alia, secretary-general ‘rapidly establish international commission of inquiry in order investigate reports of violations of international humanitarian law , human rights law in darfur parties, determine whether or not acts of genocide have occurred, , identify perpetrators of such violations view ensuring responsible held accountable’.

in october 2004, secretary general appointed antonio cassese (chairperson), mohamed fayek, hina jilani, dumisa ntsebeza , therese striggner-scott members of commission , requested report on findings within 3 months. commission supported in work secretariat headed executive director, ms. mona rishmawi, legal research team , investigative team composed of investigators, forensic experts, military analysts, , investigators specializing in gender violence, appointed office of united nations high commissioner human rights. commission assembled in geneva , began work on 25 october 2004.

in order discharge mandate, commission endeavoured fulfil 4 key tasks: (1) investigate reports of violations of international humanitarian law , human rights law in darfur parties; (2) determine whether or not acts of genocide have occurred; (3) identify perpetrators of violations of international humanitarian law , human rights law in darfur; , (4) suggest means of ensuring responsible such violations held accountable. while commission considered events relevant current conflict in darfur, focused in particular on incidents occurred between february 2003 , mid-january 2005.

the commission engaged in regular dialogue government of sudan throughout mandate, in particular through meetings in geneva , in sudan, through work of investigative team. commission visited sudan 7–21 november 2004 , 9–16 january 2005, including travel 3 darfur states. investigative team remained in darfur november 2004 through january 2005. during presence in sudan, commission held extensive meetings representatives of government, governors of darfur states , other senior officials in capital , @ provincial , local levels, members of armed forces , police, leaders of rebel forces, tribal leaders, internally displaced persons, victims , witnesses of violations, ngos , united nations representatives.

the commission submitted full report on findings secretary-general on 25 january 2005. report describes terms of reference, methodology, approach , activities of commission , investigative team. provides overview of historical , social background conflict in darfur. report addresses in detail 4 key tasks referred above, namely commission’s findings in relation to: i) violations of international human rights , humanitarian law parties; ii) whether or not acts of genocide have taken place; iii) identification of perpetrators; , iv) accountability mechanisms. these 4 sections briefly summarized below.

violations of international human rights law , international humanitarian law

in accordance mandate ‘investigate reports of violations of human rights law , international humanitarian law’, commission examined reports different sources including governments, inter-governmental organizations, united nations bodies , mechanisms, non-governmental organizations.

the commission took starting point work 2 irrefutable facts regarding situation in darfur. firstly, according united nations estimates there 1,65 million internally displaced persons in darfur, , more 200,000 refugees darfur in neighbouring chad. secondly, there has been large-scale destruction of villages throughout 3 states of darfur. commission conducted independent investigations establish additional facts , gathered extensive information on multiple incidents of violations affecting villages, towns , other locations across north, south , west darfur. conclusions of commission based on evaluation of facts gathered or verified through investigations.

based on thorough analysis of information gathered in course of investigations, commission established government of sudan , janjaweed responsible serious violations of international human rights , humanitarian law amounting crimes under international law. in particular, commission found government forces , militias conducted indiscriminate attacks, including killing of civilians, torture, enforced disappearances, destruction of villages, rape , other forms of sexual violence, pillaging , forced displacement, throughout darfur. these acts conducted on widespread , systematic basis, , therefore may amount crimes against humanity. extensive destruction , displacement have resulted in loss of livelihood , means of survival countless women, men , children. in addition large scale attacks, many people have been arrested , detained, , many have been held incommunicado prolonged periods , tortured. vast majority of victims of of these violations have been fur, zaghawa, massalit, jebel, aranga , other so-called ‘african’ tribes.

in discussions commission, government of sudan officials stated attacks carried out government armed forces in darfur counter-insurgency purposes , conducted on basis of military imperatives. however, clear commission’s findings attacks deliberately , indiscriminately directed against civilians. moreover, if rebels, or persons supporting rebels, present in of villages – commission considers in small number of instances - attackers did not take precautions enable civilians leave villages or otherwise shielded attack. rebels may have been present in villages, impact of attacks on civilians shows use of military force manifestly disproportionate threat posed rebels.

the commission particularly alarmed attacks on villages, killing of civilians, rape, pillaging , forced displacement have continued during course of commission’s mandate. commission considers action must taken urgently end these violations.

while commission did not find systematic or widespread pattern these violations, found credible evidence rebel forces, namely members of slm , jem, responsible serious violations of international human rights , humanitarian law may amount war crimes. in particular, these violations include cases of murder of civilians , pillage.

have acts of genocide occurred?

the commission concluded government of sudan has not pursued policy of genocide. arguably, 2 elements of genocide might deduced gross violations of human rights perpetrated government forces , militias under control. these 2 elements are, first, actus reus consisting of killing, or causing serious bodily or mental harm, or deliberately inflicting conditions of life bring physical destruction; and, second, on basis of subjective standard, existence of protected group being targeted authors of criminal conduct. however, crucial element of genocidal intent appears missing, @ least far central government authorities concerned. speaking policy of attacking, killing , forcibly displacing members of tribes not evince specific intent annihilate, in whole or in part, group distinguished on racial, ethnic, national or religious grounds. rather, seem planned , organized attacks on villages pursued intent drive victims homes, purposes of counter-insurgency warfare.

the commission recognize in instances individuals, including government officials, may commit acts genocidal intent. whether case in darfur, however, determination competent court can make on case case basis.

the conclusion no genocidal policy has been pursued , implemented in darfur government authorities, directly or through militias under control, should not taken in way detracting gravity of crimes perpetrated in region. international offences such crimes against humanity , war crimes have been committed in darfur may no less serious , heinous genocide.

identification of perpetrators

the commission has collected reliable , consistent elements indicate responsibility of individuals serious violations of international human rights law , international humanitarian law, including crimes against humanity or war crimes, in darfur. in order identify perpetrators, commission decided there must ‘a reliable body of material consistent other verified circumstances, tends show person may reasonably suspected of being involved in commission of crime.’ commission therefore makes assessment of suspects, rather final judgment criminal guilt.

those identified possibly responsible above-mentioned violations consist of individual perpetrators, including officials of government of sudan, members of militia forces, members of rebel groups, , foreign army officers acting in personal capacity. government officials, members of militia forces, have been named possibly responsible joint criminal enterprise commit international crimes. others identified possible involvement in planning and/or ordering commission of international crimes, or of aiding , abetting perpetration of such crimes. commission has identified number of senior government officials , military commanders may responsible, under notion of superior (or command) responsibility, knowingly failing prevent or repress perpetration of crimes. members of rebel groups named suspected of participating in joint criminal enterprise commit international crimes, , possibly responsible knowingly failing prevent or repress perpetration of crimes committed rebels.

the commission has decided withhold names of these persons public domain. decision based on 3 main grounds: 1) importance of principles of due process , respect rights of suspects; 2) fact commission has not been vested investigative or prosecutorial powers; , 3) vital need ensure protection of witnesses possible harassment or intimidation. commission instead list names in sealed file placed in custody of un secretary-general. commission recommends file handed on competent prosecutor (the prosecutor of international criminal court, according commission’s recommendations), use material or deems fit or investigations. distinct , voluminous sealed file, containing evidentiary material collected commission, handed on high commissioner human rights. file should delivered competent prosecutor.

accountability mechanisms

the commission recommends security council refer situation of darfur international criminal court, pursuant article 13(b) of icc statute. repeatedly stated security council, situation constitutes threat international peace , security. moreover, commission has confirmed, serious violations of international human rights law , humanitarian law parties continuing. prosecution icc of persons allegedly responsible serious crimes in darfur contribute restoration of peace in region.

the alleged crimes have been documented in darfur meet thresholds of rome statute defined in articles 7 (1), 8 (1) , 8 (f). there internal armed conflict in darfur between governmental authorities , organized armed groups. body of reliable information indicates war crimes may have been committed on large-scale, @ times part of plan or policy. there wealth of credible material suggests criminal acts committed part of widespread or systematic attacks directed against civilian population, knowledge of attacks. in opinion of commission therefore, these may amount crimes against humanity.

the sudanese justice system unable , unwilling address situation in darfur. system has been weakened during last decade. restrictive laws grant broad powers executive have undermined effectiveness of judiciary, , many of laws in force in sudan today contravene basic human rights standards. sudanese criminal laws not adequately proscribe war crimes , crimes against humanity, such carried out in darfur, , criminal procedure code contains provisions prevent effective prosecution of these acts. in addition, many victims informed commission had little confidence in impartiality of sudanese justice system , ability bring justice perpetrators of serious crimes committed in darfur. in event, many have feared reprisals in event resort national justice system.

the measures taken far government address crisis have been both grossly inadequate , ineffective, has contributed climate of total impunity human rights violations in darfur. few victims have lodged official complaints regarding crimes committed against them or families, due lack of confidence in justice system. of few cases complaints have been made, have not been pursued. furthermore, procedural hurdles limit victims’ access justice. despite magnitude of crisis , immense impact on civilians in darfur, government informed commission of few cases of individuals have been prosecuted, or disciplined, in context of current crisis.

the commission considers security council must act not against perpetrators on behalf of victims. therefore recommends establishment of compensation commission designed grant reparation victims of crimes, whether or not perpetrators of such crimes have been identified.

it further recommends number of serious measures taken government of sudan, in particular (i) ending impunity war crimes , crimes against humanity committed in darfur; (ii) strengthening independence , impartiality of judiciary, , empowering courts address human rights violations; (iii) granting full , unimpeded access international committee of red cross , united nations human rights monitors detained in relation situation in darfur; (iv) ensuring protection of victims , witnesses of human rights violations; (v) enhancing capacity of sudanese judiciary through training of judges, prosecutors , lawyers; (vi) respecting rights of idps , implementing guiding principles on internal displacement, particularly regard facilitating voluntary return of idps in safety , dignity; (vii) cooperating relevant human rights bodies , mechanisms of united nations , african union; , (viii) creating, through broad consultative process, truth , reconciliation commission once peace established in darfur.

the commission recommends number of measures taken other bodies break cycle of impunity. these include exercise of universal jurisdiction other states, re-establishment commission on human rights of mandate of special rapporteur on human rights in sudan, , public , periodic reports on human rights situation in darfur high commissioner human rights.