Appendix: ICID Executive Summary
International Commission of Inquiry on
Darfur
Report to the Secretary-General of the
United Nations
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.
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