the report of the international commission of inquiry on darfur: the question of genocide

The Report of the International Commission of Inquiry on Darfur: The Question of Genocide

No~lle Qugnivet*

The crisis in Darfur (Sudan), which sparked in February 2003, only caught the United Nations' attention in Spring 2004. Questions emerged as to whether the conflict between the rebels and the government was simply insurgency warfare or, in fact, concealed a genocide carried out by the Arab, Muslim-led government against the Animist and Christian-African population. The issue became so divisive that the Security Council requested the creation of an investigation team, the International Commission of Inquiry on Darfur, which amongst other tasks had to examine whether genocide had taken place. This article analyzes the facts as well as the legal reasoning that guided the International Commission of Inquiry in drawing the conclusion that a governmental policy to commit genocide had not been formed.

The crisis in Sudan has recently caught the world's attention and, more particularly, that of the United Nations Security Council.~ In several resolutions passed by the United Nations' body in charge of keeping international peace and security, violations of international humanitarian law and human rights law were pointed out. 2 In this vein, the Security Council requested the Secretary-General to establish a group of experts to investigate violations committed in Darfur between February 2003 and mid-January 2005. 3

Yet, the focus of the international community and of certain States such as the United States was on genocide. 4 "Much of the public debate in the United States and elsewhere, however, has focused not on how to stop the crisis, but on whether or not it should be called 'genocide' under the terms of the Genocide Convention. ''5 The debate on whether genocide was taking place in Darfur took off in March 2004 following the publication of a series of articles in the New York Times. On 22 July 2004, the U.S. Congress passed a resolution declaring that the attacks carried out against black African villages amounted to "genocide." This led to an upsurge of comments from all sides. The United Nations, the African Union, 6 and the Euro- pean Community have so far refused to use this word in their statements and reports. Indeed the "G-word" is hardly ever used by States or the United Nations. Only in October 2004 did the Bush administration recognize that the situation in Darfur amounted to genocide. 7 Further, whereas the current Special Rapporteur on Sudan does not speak of genocide, his predecessor Gerhart Baum is not reluctant to characterize the situation as genocide) On the side of the NGOs, some preferred to

38

Qu~nivet 39

refer to human rights violations, war crimes, crimes against humanity, and ethnic cleansing 9 while others used the term "genocide. ''~~ This divergence of opinions led to a healthy debate, since the United States sponsored a Security Council resolution which launched a commission entrusted with the mandate to examine, amongst others, whether acts of genocide occurred in Sudan.

One of the reasons for this particular focus may be that genocide is a crime under international law and that the State community is accordingly obliged to prevent and punish the commission of such acts. The 1948 Convention against Genocide also provides in Article VIII that States parties may "call upon the competent or- gans of the United Nations to take such ac t ion . . , as they consider appropriate for the prevention and suppression of acts of genocide. ''11 Further, the International Court of Justice underlined in 1996 that States are under the duty to prevent genocide. ~2 "If nations are obliged to prevent genocide they must act when the signs are present, not after it has happened. ''13 Thereby a connection was made between the possible intervention of the United Nations and the genocide in Darfur, a link criti- cized for disabling an effective response to the massive violence against civilians in that region of Sudan. 14 However, it must be stressed that the onus of the resolutions passed by the Security Council was not on the prevention of such violations but on the punishment of their authors. It is therefore essential to bear in mind that the Security Council took a "punishing" stance rather than a "preventing" one.

This article presents a factual description of the crisis in Darfur before it examines the report of the International Commission of Inquiry's comment on whether genocide took place in this part of Sudan. Last but not least, the article analyzes the proposals made by the International Commission of Inquiry regarding the possible prosecution of those responsible for such acts.

The Background to the Conflict in Darfur

A brief summary is indispensable to grasp an understanding of the current conflict in Darfur. Sudan, the largest nation in Africa, gained independence from Brit- ish colonial rule in 1956 after intensive fighting. Yet, the protracted civil war between Muslim government forces in the North and rebels in the South continued unabated until the signing of the Addis Ababa Agreement in 1972. A full-scale civil war resumed in 1983 when the Northern-dominated government introduced Islamic laws (sharia) and proceeded to divide the South into three regions.

In 1989, as the incumbent government wished to enter into negotiations with the Sudan and People's Liberation Movement/Army, the National Islamic Front insti- gated a military coup and took power. Eventually an agreement was reached between the Sudanese government and the Sudan and People's Liberation Movement/ Army, and the Machakos Protocol was signed in Kenya on 20 July 2002. Later the Framework Agreement on Security Arrangements was signed in Kenya on 25 Sep- tember 2003. Eventually, in May 2004, after intense negotiations, the Naivasha Agreement, which officially ended the conflict, was signed.

40 Human Rights Review, July-September 2006

In reality, the civil war which began in 1983 was no longer a South versus North war, but a Sudan-wide war which engulfed the East, the West and the South. In fact "Sudan is a clear case where, from its very inception, the State was incapable of asserting control over all its sovereign territory because it lacked the resources and political ingenuity to look beyond the immediate interests of the dominant North- ern Sudanese elite vis-h-vis the rest of the country. ''~5

The current conflict that is raging in Darfur started in February 2003 in the West- ern part of the region when two rebel groups, the Sudan Liberation Army and the Justice Equality Movement, took up arms against the government. ~6 At that time, the North and the South had managed to agree on certain points and, the civil war seemed about to come to an end. Yet, "[p]reoccupied with the war in the South, the regime in Khartoum has allowed a decades-old communal conflict in the far West to ripen into a regional insurgency by the Darfur-based Sudan Liberation Army. ''17 Indeed, as the Sudanese government offered autonomy and oil profits to southern Sudanese, the leaders of other neglected regions, who had been excluded from the peace talks, grew angry and jealous and demanded political reform and economic assistance too? 8 They accused the government of favoring Arabs and discriminat- ing against black Africans (the Fur, Zaghawa, and Massaleit)? 9 After the Sudan Liberation Army and the Justice Equality Movement attacked a number of government installations (an airport amongst them), 2~ the government launched air attacks against civilian populations which, in its opinion, were thought to be hiding the rebels. Another range of attacks followed, this time led by militias, the Janjaweed, 21 recruited amongst the Arab population. At this time there were already hints that these groups were linked and even supported by the government. In September 2003, several Western European States convinced the government and the Sudan Liberation Army to agree to a cease-fire. Yet, it was broken on numerous occasions and the militias intensified their attacks in December 2003.

Several international and non-governmental organizations have pointed the finger at the Janjaweed militias. They estimate that since the beginning of the conflict, over 300,000 people are believed to have lost their lives 22 and about 1.5 million have found refuge in camps in Sudan and Eastern Chad. 23

The Report of the International Commission of Inquiry

In light of these events, the Security Council decided to establish an Interna- tional Commission of Inquiry 24 whose aim was to investigate alleged violations of international humanitarian and human rights law, to determine whether acts of genocide have occurred, to identify the perpetrators, and to suggest means of ensuring that those responsible for such violations are held accountable.

By agreeing to let an international commission examine whether acts of genocide occurred, the Security Council proved that it was ready to use the word "genocide" and was not hiding any longer behind the phrase "ethnic cleansing, ''25 coined during the armed conflict on the territory of the former Yugoslavia. 26 This is due to

Qu~nivet 41

the fact that genocide is considered in contemporary legal discourse as "the ultimate crime, the pinnacle of evil, ''27 inasmuch as the ICTR in Kambanda 2s and Serushago 29 defined it as the "crime of crimes." For many scholars genocide is a particular type of crime against humanity. 3~ In Krstic, the ICTY Appeals Chamber adopted a similar stance, though using less strong words. 3~ More recently, the Ap- peals Chamber of the ICTR reversed this view, arguing that "there is no hierarchy of crimes under the Statute, and that all of the crimes specified therein are 'serious violations of international humanitarian law', capable of attracting the same sentence. ''32 This position was taken by the International Commission of Inquiry on Darfur which, on several occasions reminded the legal community that genocide should not be considered as the gravest crime under international law. 33

The recent massacres in Bosnia-Herzegovina and Rwanda are probably the best illustrations of the past reluctance to use the notion of genocide. 34 Despite widespread and systematic violations of basic human rights against certain ethnic groups the international community of States continuously referred to ethnic cleansing and not to genocide. However, later, several individuals were indicted and convicted for genocide before the International Criminal Tribunal for the Former Yugosla- via 35 and the International Criminal Tribunal for Rwanda. 36 Slobodan Milosevic was also being prosecuted by the ICTY for, amongst others, genocide.

Despite these notable legal advances, the International Commission is still reluctant to use the word genocide, a fact demonstrated by simple arithmetic. Of the 176 pages contained in the report, barely nine of them concentrate on the crime of genocide. 37 The arguments propounded there are, nonetheless, of high legal quality even though some of the comments may be considered too liminatory.

In the second section of the report, the International Commission first provides a general definition of the notion of genocide before investigating whether the crimes perpetrated in Darfur constitute acts of genocide.

To start with, one must remark that Article II of the Convention against Geno- cide provides the sole valid definition of the crime of genocide. It is hence no sur- prise that the International Commission uses it as a yardstick. Yet, the International Commission fails to note that Sudan is not a party to the Convention but it is still applicable to that country because its content has acquired customary nature. 38 The International Commission then goes on to examine the elements of the crime of genocide. As explained by the International Commission, objective and subjective elements need to be demonstrated to pinpoint genocide.

The Objective Elements

As rightly mentioned in the report of the International Commission, the objective element for individual criminal responsibility for genocide is twofold. First, the conduct must be prohibited by Article II of the Convention against Genocide; second, the victim must have been targeted because he/she belonged to a particular "national, ethnical, racial or religious group."


One of the Acts Enumerated in the Definition

Article II of the Convention against Genocide, which is replicated in Article 4 of the ICTY Statute, Article 2 of the ICTR Statute, and Article 6 of the ICC Statute, bans the following physical acts:

(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; and (e) forcibly transferring children of the group to another group. 39

Undoubtedly the acts committed by the Janjaweed militias fall within this part of the definition. "The reports from Darfur by aid workers and reporters have been remarkably consistent. ''4~ Reports produced by various international organizations and States such as the European Union fact-finding commission, 41 a research team sent by the United States, NGOs such as Amnesty International 42 and Human Rights Watch 43 appear to buttress the position that acts committed in Darfur fall within the scope of the definition of genocide. Indeed, several of these organizations accuse the Janjaweed of killing men, raping women and girls, 44 enslaving children, destroying villages and crops, polluting water supplies 4~ and ultimately, having almost carried out a scorched-earth policy.

It voiced its conviction that "some of the objective elements materialized in Darfur," were based on substantial and reliable material that the International Com- mission of Inquiry gathered during its mission in Darfur. 46 It particularly noted "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.) ''47 The International Commission does not delve much into the details since it examined then in the report earlier and condemned the various violations of international humanitarian and human rights law which occurred in Darfur between February 2003 and mid-January 2005. It would have nevertheless been a good exercise to divide the discussion into the sub- categories mentioned in Article II of the Convention against Genocide, i.e., kill- ings, serious bodily or mental harm, conditions of life calculated to bring about the physical destruction, and measures to prevent births. In his article on genocide, Jafari demonstrates well that the acts committed in Darfur broadly fall into the four aforementioned categories? 8 A similar neat description is made by the Public Inter- national Law and Policy Group. 49

Qu6nivet 43

Against a Particular Group

Next, it must be demonstrated that the acts were committed against a particular national, ethnical, racial, or religious group. Indeed, as the ICTY Trial Chamber observed it is the "membership of the individual in a particular group rather than the identity of the individual that is the decisive criterion in determining the immediate victims of the crime of genocide. ''5~

Consequently the first step is to examine whether the victims and the perpetrators belong to specific groups enumerated in the Convention against Genocide. In the general section discussing the notion of genocide, the International Commis- sion observes that although, on the one hand, some of the terms such as "race" are "regarded as outmoded or even fallacious" and, on the other hand, some categories of groups overlap, 51 one should, on the basis of the principle of effectiveness, give the definitions a broader meaning. The International Commission offers a definition of these terms in paragraph 494; yet it completely fails to buttress its position. No references are made to the travaux prdparatoires of the Convention against Genocide or to the jurisprudence of the ICTY or the ICTR. In 1998, the Trial Chamber of the ICTR, confronted with the charge of genocide, relied on the travaux priparatoires and on the ICJ judgement in the Nottebohm case 52 to impart a definition of a national, ethnic, racial and religious group. 53 This lack of discussion by the International Commission is rather regrettable especially in the light of the fact that the International Commission comes to the conclusion two paragraphs later that it needs to examine whether the tribal groups which seem to have been targeted during the conflict in Darfur fall within one of these categories) 4

Indeed, the next three paragraphs focus on whether tribal groups are protected by the Convention against Genocide. As there is not much legal support for declaring that tribes per se constitute a protected group, the International Commission needs to prove that tribal groups fit into one of the aforementioned groups. The drafters of the report note in a footnote the judgment of the Australian Federal Court in 1999 in which the judges appeared to take for granted the fact that aborigi- nes and tribal groups constituted as such "a racially and ethnically distinct group, on account of their ethnicity, religion, cultural, language, and colour. ''55 The Inter- national Commission refuses to follow this approach and, hence, examines other avenues to decide on the validity of the claim that tribal groups may be protected under one of the categories spelled out in the Convention against Genocide.

The International Commission consequently has recourse to the jurisprudence produced by the ICTY and the ICTR with regards to the definition of the targeted group. It starts with the statement that "the genocide perpetrated in 1994 in Rwanda vividly showed the limitations of current international rules on genocide. ''56 One could then sadly observe that two groups, which at first sight shared the same lin- guistic, cultural, and religious characteristics as well as had the same physical traits, were involved in widespread and horrendous massacres. 5v The question whether these acts qualified as genocide in pursuance of the Convention against Genocide


was for the first time dealt with by the ICTR in the Akayesu case. 58 While recogniz- ing that "[t]he distinction between Hutu and Tutsi in Rwanda [fell] between the cracks, ''59 the court established the legal distinction between objective and subjective elements. Rightly, the International Commission begins examining the objective elements before it delves into the subjective ones. As JCrgensen notes, "the group must be definable according to objective criteria before commencing the necessary journey into the perpetrator's mind. Otherwise there is a risk of getting lost amongst the subjective elements. ''6~

The trials held in Arusha by the ICTR demonstrated that the common feature of all these groups was that they were stable and permanent and that membership in such groups would not normally be challenged by members belonging to them automatically, by birth, or in a continuous and often irremediable manner. 6~ In particular, the Akayesu jurisprudence points out that the targeted group must be "constituted in a permanent fashion and membership of which is determined by birth" and that the group must be identifiable as such. 62 The ICTY Trial Chamber adds that "the preparatory work of the Convention demonstrates that a wish was expressed to limit the field of application of the Convention to protecting 'stable' groups, objectively defined and to which individuals belong regardless of their own desires. ''63

In Sudan, it is contended that Arab militias and the government forces, which are Arabs, are attacking persons of non-Arabic origins in the villages. 64 The main issue, hence, centres upon the definition of Arab and black African and whether these two groups are stable and permanent. Although the government stresses that there are no such differences and foreigners are unable to make the distinction, the local population is able to do so. Yet, this distinction is not all too clear as decades of inter-ethnic marriages have mixed the ethnic features; 65 As Deng notes "those who calls themselves Arabs today are, in essence, a mixture of indigenous Africans and the Arab Muslims who came later as traders. ''66

Some of the identification factors are the language and the type of life these t r ibes lead. 67 The International Commission observes that "the sedentary and nomadic character of the groups constitutes one of the main distinctions between them. ''68 The second distinctive feature is that Arab tribes only speak Arabic while African tribes usually speak their own dialect besides mastering Arabic. 69 Despite these distinctive characteristics, it appears that the International Commission is not convinced that mere objective criteria can assess whether the Black Africans form a particular group targeted because of one of the grounds mentioned in the Conven- tion against Genocide. 7~

Hence, the International Commission not only offers a legal assessment of the subjective approach that seems to be the most contemporary trend in the jurisprudence of the international criminal tribunals but also follows its reasoning. 71 The International Commission thus notes that the notion of protected group "has evolved from an objective to a subjective standard" so that it takes into consideration social constructs and imagined identities. 72 This position had already been held by the

Qu~nivet 45

ICTY Trial Chamber when it asserted that "[a] group's cultural, religious, ethnical or national characteristics must be identified within the socio-historic context which it inhabits. ''73 In fact, a few paragraphs later the International Commission rightly observes that these imagined identities have crystallized in genuine perception as well as real and factual opposition. In this context "the conf l i c t . . , from subjective becomes objective. ''74

Again, the International Commission extensively uses the jurisprudence of the ICTR in the Akayesu case. The Trial Chamber had therein declared that the groups at hands were distinct because the Belgians, their colonizers had instituted a system leading to differentiating between the two groups and this differentiation had per- sisted over time so that the members began using this imposed perception of identity. The criteria for determining whether a person belongs to a certain group are twofold: "(i) set of persons are perceived and in fact treated as belonging to one of the protected groups, and in addition (ii) they consider themselves as belonging to one of such groups. ''vs Although the International Commission spells out this two- pronged test, it unfortunately does not follow it in order to subscribe to the conclusion that peoples in Darfur "have come to perceive themselves as either 'African' or 'Arab' ,,76 The great majority of those involved in the conflict identify themselves with one or the other group and are also treated accordingly. 7v In fact, the acts seem to be part of a more national tendency that can be observed in Sudan. "The political gap in Darfur between those who identified themselves as 'Arabs' and those who identified themselves as 'Africans' widened from the mid-1960s onwards. ''78 "Is- lam, the dominant religion of the North became a religious-based ideology and Arabism and Afro-Arabism offered the symbols of a nationalism that put less em- phasis on the African roots of large segments of the Sudanese population. ''79 In particular, since 1989 the government of Sudan has embarked on a campaign aimed at Islamization by using at least six axes:

(a) religious indoctrination, and the imposition of Islam and Islamic teachings, (b) political, social, and economic favoritism for Muslims and their instigation to spear-

head the religious campaign, (c) jihad or military campaign against non-Muslim as well as Muslims who defy the

Call, (d) isolation of Christians and intimidation of clergymen and church congregations,

and (e) resettlement in "peace villages" to facilitate (a) and (b). (f) sustained harassment, detention and torture of those who oppose the campaign, s~

Yet, this does not offer a comprehensive explanation of the situation. For example, in the Darfur conflict itself, not all those who perceive themselves as Arabs, e.g., the Beni Hussein, have joined the Janjaweed militias. Some, such as the Dorok, have even fallen prey to the Janjaweed militias and others are both executors as well as victims. 81 In this regard, one may point to the Jelisic jurisprudence that offers a positive as well as a negative definition 82 of a group. The ICTY Trial Cham- ber observed that "a group may be s t igmatised. . , by way of positive or negative


criteria. A 'positive approach' would consist of the perpetrators of the crime distin- guishing a group by the characteristics which they deem to be particular to a national, ethnical, racial or religious group. A 'negative approach' would consist of identifying individuals as not being part of the group to which the perpetrators of the crime consider that they themselves belong and which to them displays specific national, ethnical, racial or religious characteristics. Thereby, all individuals thus rejected would, by exclusion, make up a distinct group. ''83 In casu, it may be held that it is a mixture of the "positive" and "negative" approach. Indeed, while the perpetrators, the Janjaweed, may look at their victims as "Africans," they may also consider them as "non-Arabs. ''84 In reality it is difficult to distinguish between the "positive" and "negative" approach because identities are social constructs.

An additional criticism that may be raised towards the ICTY and ICTR approach is that it considers the group from the viewpoint of the wrongdoers. The Trial Cham- ber upheld in the Jelisic case that "it is more appropriate to evaluate the status of a national, ethnical or racial group from the point of view of those persons who wish to single that group out from the rest of the community. ''85 Similarly the Trial Chamber of the ICTR declared that an ethnic group could be identified by the perpetrators of the crimes. 86 Later in the Krstic case, the ICTY again used the criterion of the stig- matization of the group. 87 Interestingly, the International Commission analyzes also the reaction of the victims inasmuch as it states that "the victims perceive the at- tackers as persons belonging to another and hostile group. ''88 Undoubtedly the Interna- tional Commission's approach is more encompassing and, hence, closer to the reality. 89

An element of discussion that is not directly mentioned by the International Com- mission is the discriminatory nature of the acts committed against a specific group. Although there are no references to discrimination in the Convention against Geno- cide, one may derive such an indication from the "as such" and the "on grounds of" wording. Both Jelisic 9~ and Kayishema and Ruzindana 91 set forth a motivational element relating to the characteristics of the members of that group. In the Jelisic case the ICTY Trial Chamber laid down that one needs first to assess the discriminatory nature of the acts, the belonging to a protected group and then the discriminatory intent. 92 The International Commission does not decompose this part of its reasoning into three stages. Yet, the discussions that take place in paragraphs 508- 512 constantly refer to the three aforementioned issues. For example, paragraph 511 mentions the way each group looks at the other and the way they call each other by way of derogatory expressions. A similar debate takes place in paragraphs 73-77 of the Jelisic case but in a more structured way. Hence, one may rightly ask the reasons for the choice made by the International Commission to mention all issues in a single discussion.

Another point that is not discussed by the International Commission is that such rivalries and behavior may not be solely linked to ethnical or racial factors but may be connected to economic or social elements "which are of fundamental impor- tance for the parties involved. ''93 Factually Sudan is divided ethnically, religiously, and culturally, factors of dissension that adds to economic and political regional

Qu6nivet 47

disparity. Undoubtedly, "[t]he current conflict has its origins in decades of economic and political marginalization, and tension over increasingly scare farmland and water resources. ''94 Black Africans tend to be farmers whereas Arab tribes living in Darfur are nomadic and pastoralistsY "The cleavage is real, and recent conflicts over resources have only exacerbated it. ''96 In the survival fight against the extension of the desert, much centres upon access to water and other basic g o o d s . 97

The fact that the government backs and arms the Janjaweed militia adds a political dimension to the conflict which escalated from small clashes into a major humanitarian catastrophe. 98 Yet, the existence of such factors in the conflict does not sig- nify that other factors such as race or ethnicity have no bearing on the situation. 99 Often economic and social factors are one of the plethora of root problems that lead to genocide, l~176 All in all "[genocide] is the result of complex factors fueled by his- tory, psychology, and sociology, culminating in a quest for power. ''lm

In conclusion one may safely say in concurrence with the International Commis- sion that the acts are directed towards a particular group protected by the Convention.

The Subjective Element

In its general part on the crime of genocide, the International Commission neatly divides the subjective element into two elements: the criminal intent required for the underlying offense, i.e., the m e n s rea (or general intent) 1~ and the "intent to destroy, in whole or in part" the group as such (often called the specific 1~ intent). TM

Indeed, genocide is distinct from other crimes because it requires dolus specialis , a

special intent which lies in the "intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such. ''1~ However, one notices that the Inter- national Commission does not abide by its own standards when applying the theory to the crisis in Darfur. Paragraphs 5 1 3-5 1 7 only refer to the dolus specialis , thereby not touching the issue of the m e n s rea. This distinction is all the more peculiar as the ICTY and the ICTR have often examined the mental element as two different items. On the other hand, the jurisprudence has sometimes mixed both elements. For example, the ICTY Trial Chamber declared that "[i]t is in fact the mens rea which gives genocide its speciality and distinguishes it from an ordinary crime and other crimes against international humanitarian law. ''1~ It thus combines the m e n s

rea and the dolus specialis . Although undoubtedly "[b]oth may in practice come closely together or even partly overlap ''l~ the distinction should be retained. 1~

The second part of the subjective element that needs to be demonstrated, namely that the author of the crime "inten[ded] to destroy, in whole or in part" a certain group, is probably the most difficult when investigating whether a certain act amounts to genocide. "It is the group itself that is the ultimate target or intended victim and the individuals are victimized because of their membership in that group and as an incremental step in the overall objective of destroying the group. ''1~ This means that genocide encompasses only acts committed with the goal of destroying all or part of a group.


In the Akayesu case "the Chamber considers that intent is a mental factor which is difficult, even impossible to determine," but found that "in the absence of a con- fession from the accused, ''H~ intent may be surmised from the context. This position is also held by the International Commission which declares that "intent can be inferred from many acts and manifestations or factual circumstances.'"" While the ICTR enumerated a list of factors that may demonstrate intent, "2 the ICTY preferred to refer to a couple of examples. Both approaches are compatible inasmuch as both only provide examples of acts that may demonstrate the intent of the perpetrator. The ICTY Appeals Chamber explained that "[a] s to proof of specific intent, it may, in the absence of direct explicit evidence, be inferred from a number of facts and circumstances, such as the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership of a particular group, or the repetition of destructive and discriminatory acts. ''H3 Similar, albeit different, examples have been propounded in other cases such as Kayishema and Ruzindana 114 as well as Karadzic and Mladic. 1~5 The Elements of Crimes of the ICC Statute concisely declares that "[e]xistence of intent and knowledge can be inferred from relevant facts and circumstances,'" 16 thereby refusing to exemplify its assertion. Curiously the International Commission when discussing the proof of genocidal intent refers in its general part to the definition propounded by the ICTY Appeals Chamber. "7

Intent may be gauged by the scale of the atrocities, u8 Indeed "in practice, since direct evidence of genocidal intent is relatively rare, such intent is usually inferred from circumstances involving large-scale physical destruction of a group. ''n9 Al- ready in May 2004 the United Nations High Commissioner for Human Rights published a report on the situation in Darfur "identif[ying] disturbing patterns of massive human rights violations in Darfur perpetrated by the Government of Sudan and its proxy militia. ''2~ This issue is linked to the debate in the latest jurisprudence of the international criminal tribunals as to the exact meaning of the expression "in part." According to the ICTY and the ICTR jurisprudence, "in part" means that the perpetrator intended to destroy a "considerable ''121 or "reasonably substantial ''122 number of the affected group. The "quantitative criterion," as referred to by the ICTY in the Sikirica case , 123 is to some extent misplaced. Indeed, "the number of victims is significant only as evidence of intent and not as a criterion or prerequisite to the formation of intent itself. ''24 This formulation conveys the impression that the crime only exists when a certain part of the population has been killed. Yet, as noted by the International Law Commission, "[n]one the less the crime of genocide by its very nature requires the intention to destroy at least a substantial part of a particular group. ''25 The Tribunal then clarifies in the Krstic case that "in part" simply "means seeking to destroy a distinct part of the group as opposed to an accumulation of isolated individuals within it. ''126 Further, unlike for crimes against humanity, it is not necessary to demonstrate that the crimes occurred on a grand scale. A single act may be considered as genocide, provided intent is present.

Qu6nivet 49

Elements of intent are patterns of behavior, i.e., the systematicity or planning of the acts] 27 The ICTR Trial Chamber explained that "intent can be, on a case-by- case basis, inferred from the material ev idence . . , including the evidence which demonstrates a consistent pattern of conduct by the Accused. ''128 Yet, as the Appeals Chamber reminds us the systematicity of the acts is not sufficient, "the existence of a plan was not a legal ingredient of the crime of genocide ''129 although it might assist to prove the intent of the perpetrators. On the other hand, under the ICC Statute, the issue of an objective contextual element is required. The Elements of Crime of the International Criminal Court specifically mention that "the conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction. ''13~ This distinction is important, for the crimes committed by the Janjaweed or Sudanese government officials will be tried before the ICC and not before the ICTY and the ICTR. It is surprising and rather disconcerting that the International Commission preferred to adopt the ICTY and ICTR standard instead of taking the ICC Statute as a reference although it recommends the Security Council to trigger the jurisdiction of the ICC for the crimes perpetrated in Darfur.

"There i s . . . evidence of systematic planning based on the uniform nature of most attacks and statements overheard by victims. ''13~ It is submitted that trucks with government soldiers arrive in the villages followed by the militias on horses and camels. The inhabitants try in vain to flee. They are attacked and chased down while the villages are looted and burned down. 132 Then a plane from the government would finish off the work. This pattern of behavior seems to be reproduced in many villages. ~33 This existence of a strategy, already honed by the Sudanese military during the conflict with the insurgents in the South, proves that the government is closely associated with the crimes perpetrated by the Janjaweed militias. TM

Athird element often cited as enabling a court to prove the intent of the perpetrator is the statements of the perpetrators. 135 This issue is discussed by the Interna- tional Commission but in the framework of the definition of the group and not to show the intent of the wrongdoers.136 Numerous reports suggest a genocidal intent inasmuch as racially--or ethnically-motivated statements accompany the violence and the displacement in Darfur. The State Department report mentions that about one-third of those refugees interviewed heard racial epithets. ~37 Examples are "slaves," "blacks," "nubas," and "zurga."

Therefore, the questions raised by Justice Africa are of soaring pertinence: "Is this a crime planned at the highest level of the Sudanese state and executed according to a carefully designed central plan? Or is it counterinsurgency that has got out of control, running wild beyond the designs of its sponsors? ''~38

Some specialists contend that the Sudanese government has embarked on an arabization programme that was hatched in the late 1980s when some political leaders, such as Qaddafi, promoted "Arabism" as a political ideology in sub-Saharan Africa.139 In a country like Sudan where religion always appeared as a demarcation line, it was easy to add an ethnic dimension to the conflict. Hence "[t]he current


assaults on Darfurians who are considered 'black' are thought by some to be phase two of Sudan's Arabization plan. ''~4~ Those who do not wish to be arabized are "cleansed." If one accepts this theory then it may be argued that the mental element of the crime of genocide is fulfilled.

A second theory portends that after the Sudanese government had agreed to more autonomy for the South it could not afford another secessionist movement that would have reduced Sudan to a simple accumulation of autonomous territories. In particular, other disaffected regions of Sudan would have probably followed suit. Darfur, a Muslim territory could not be lost, hence, the appeal to the tribal leaders to assist the governmental forces. Some argue that the government could not have predicted that the Janjaweed would run amok TM and control over them would be lost. ~42 If one takes this approach, then, the mental element present in the crime of genocide is not met.

Undoubtedly the International Commission follows this theory. It points out that although the perpetrators had the possibility to eradicate entire villages, they chose not to. The rest of the population could flee. This fact is however contradicted by the report of the Acting High Commissioner for Human Rights which states that "[i]n some instances the Janjaweed returned to villages several days later and carried out additional attacks on those remaining. ''~43 Further, critics contend that "[i]f these arguments were applied to Rwanda, it could be argued that the motive for the violence was theft because some Rwandans were able to bribe their way out of execution. Similarly, it could be argued that the Holocaust was not genocide because not all of the people sent to concentration camps were executed. ''144 Although these comments may be far-fetched, they still contain elements of truth in legal terms. In the eyes of the International Commission this mercifulness is an important element showing that the wrongdoers did not intend to destroy the group. 145 Further, the International Commission reports that the perpetrators only selectively killed certain young men. This comment is flawed inasmuch as first, "while men seemed to be the primary target, women and children were also killed in large numbers ''j46 and, second, it has been demonstrated that in most conflicts, and specifically in Rwanda, while women were victims of sexual offenses young men were more likely to be killed. As Jones observes "[t]hat the gender-selective mass killing and 'disappearance' of males, especially 'battle-age' males, remains a pervasive feature of contemporary conflict is not open to dispute. ''147 Indisputably the Inter- national Commission fails to recognize this dimension in the conflict in Sudan.

Most of the argumentation of the International Commission is based on the fact that it appears that the goal of the Janjaweed is to force villagers to abandon their homes and live together in areas selected by the government so that the rebels are unable to continue carrying on attacks against the government forces. ~48 Later in the report the International Commission specifies that even though there is undoubtedly a plan behind the attacks on villages, these persons only "pursue the intent to drive the victims from their homes, primarily for purposes of counter-insurgency warfare. ''149 Without explicit reference the International Commission is taking into

Qu~nivet 51

account the Stakic case in which the ICTY declared that "[t]he intention to displace a population is not equivalent to the intention to destroy it. ''15~ It furthermore echoes the claims of the Sudanese government which contends that the attacks target rebels TM

and are, hence, justifiable. 152 Jafari and Williams explain that if that was the sole purpose of the government, they could have marched the insurgents to the border. "Instead they chose to achieve their goals by killing civilians, driving refugees into a desolate desert, and making Darfur virtually uninhabitable by destroying food and water stores. ''153 The Acting High Commissioner for Human Rights also notes that "[i]n some instances, there were reports of actions by the Government of the Sudan and the militia to prevent the populations from crossing international bor- ders. ''154 This conveys the impression that the Sudanese government denied its population the possibility to flee.

The International Commission further balks at the reservations made by the United States in its interpretative declaration to the Convention against Genocide in which it explained that "acts in the course of armed conflicts committed without the specific intent required by article II are not sufficient to constitute genocide as defined by this Convention." 155 It is true that "in cases of civil war, the issue of intent can be easily clouded ''156 and that "it may be quite difficult to determine precisely when a vicious and bloody conflict between two warring groups slips into genocide. ''~57 Nevertheless, the assumptions which underlie the assertions of the International Commission are resilient even when demonstrably false. As a matter of fact, the ICTR adjudicated that the presence of a conflict between various armed groups is not a justification for genocide.

To a certain extent the International Commission implies that the Darfur crisis is another "ethnic cleansing" campaign, a vocabulary also used by Samantha Power who was awarded the 2003 Pulitzer Prize for her work on genocide and by Robin Cook, former British Minister of Foreign Affairs. ~58 Indeed, the comments of the International Commission fit perfectly into the following definition of ethnic cleansing that "involves the elimination of rival ethnic groups of political opposition. ''t59 This denomination is reproduced in the words of the State Department spokesman, Richard Boucher, who noted that "we believe that the Government of Sudan is responsible f o r . . , the ethnic cleansing occurring there."16~ The International Com- mission thereby echoes the initial terminology used by the American government that recommended the creation of the Commission. The critics argue that "[t]his logic is not only faulty, but diminishes the gravity of the crimes committed and places another roadblock to meaningful action. ''16~ One nevertheless remembers the wise words of the ICTY: "the policy of ethnic cleansing took the form of discriminatory acts of extreme seriousness which tend to show its genocidal character. ''~62 Hence, the use of the phrase "ethnic cleansing" does not exclude any prosecution for acts of genocide.

All in all, this shows that one needs to assess carefully the situation before declaring that the acts taking place in Darfur may qualify as genocide according to Article II of the Convention against Genocide. As Akhavan underlines "delimiting


this crime often depends on subjective considerations and it would be unrealistic to suggest that determination of what constitutes genocide can be entirely divorced from the nonlegal 'language g a m e s ' . . , which are variously sociological, political, and historical. ''163

Despite the fact that the International Commission does not make a general comment on whether acts of genocide have occurred in Darfur, it still alleges that specific high-ranking government, military, and Janjaweed militia leaders may have acted with genocidal intent. 164 However, only a criminal court could examine the matter. The few paragraphs dedicated to the individual cases convey the impression that the International Commission did not wish to enter into the hot debate as to whether Sudan was, as a State, involved in the genocide. On several occasions, the International Commission stresses that there is no State policy of genocide in Darfur. On the other hand, it seems to be less reluctant to point the finger at individuals who may stand trial. 165 To some extent, it is less dangerous for the International Com- mission to declare that while some individuals may be held responsible for the crime of genocide, the State per se cannot be held accountable on the international level. The conclusion of the International Commission is all the more disappointing as the group of experts had been commissioned to ascertain whether inter alia acts of genocide had occurred in Darfur. In particular the birth of the commission was forced by the United States, the only State that did not shun using the word "genocide" when referring to the crisis in Sudan.

In addition, as the International Commission notes where intent is not ascer- tained, the act remains punishable, but not as genocide. The International Commis- sion clearly mentions that a court needs to examine on a case-by-case basis whether some individuals entertained a genocidal intent. 166 The International Commission thus follows the reasoning of the Trial Chamber in the Jelisic case where it upheld that "genocide . . . differs from the crime of persecution in which the perpetrator chooses his victims because they belong to a specific community but does not necessarily seek to destroy the community a s s u c h . ''167 Further the International Com- mission expresses its opinion that a court must investigate "whether some individual members of the militias backed by the Government, or even single Government officials, pursued a policy of extermination as a crime against humanity, or whether murder of civilians was so widespread and systematic as to acquire the legal features proper to extermination as a crime against humanity. ''~68

What Can Legally Be Done?

There are two legal venues in which genocide allegations may be advanced: claims by a State against another State accused of having committed genocide against the nationals of either State. In casu, the State needs to file a complaint in the International Court of Justice in The Hague. An alternative to this mechanism is provided by criminal prosecutions before the International Criminal Tribunal for

Qu~nivet 53

the former Yugoslavia (ICTY) or the International Criminal Tribunal for Rwanda (ICTR), before national courts or before the International Criminal Court (ICC).

State Complaint

Genocide is prohibited by Article I of the Convention against Genocide. This means that, like with any other treaty, States that have ratified the Convention need to abide by its provisions under the bona tides adage. The International Court of Justice further explained that the Convention against Genocide does not preclude State responsibility for acts of genocide. 169 Moreover, according to this provision each State is obliged to forestall the commission of such crime and to prosecute persons having committed acts of genocide. While some scholars maintain that this obligation is not linked to the territoriality of the act others contend that "the extent to which all states must punish those committing genocide, regardless of where it took place (i.e., mandatory universal jurisdiction) is much more speculative. ''~7~ One must however add that the Convention against Genocide has become part of international customary law, which signifies that it is applicable to all States even though a State may not have ratified it. Moreover, in the normative hierarchy of international law, genocide has come to occupy the inner sanctum ofjus cogens. TM

According to Article IX of the Convention against Genocide, if there is a dispute between States parties as to whether acts of genocide have been perpetrated, any party may refer the case to the International Court of Justice. Bosnia-Herzegovina, initiated a case against another State, the Federal Republic of Yugoslavia.172 More- over in pursuance of the Barcelona Traction c a s e , 173 genocide is an erga omnes violation of international law, which means that any State has legal standing to bring a case before the International Court of Justice. TM The State does not need to demonstrate that, according to the theory of State responsibility, it is directly injured. It is however unlikely that States would lodge a complaint before the Interna- tional Court of Justice since they are unlikely to sacrifice their self-interest for the protection of common interests.

Another flaw in the system installed by the Convention against Genocide is that several States, including the United States, have made reservations to the jurisdiction of the ICJ, thereby precluding other States from holding them accountable for the commission of genocidal acts.

One of the core problems in decisions of the International Court of Justice is that they occur post facto, i.e., when the massacres have already been committed. The decision cannot resurrect the ones who have been killed or heal the wounds of those injured both physically and mentally. Even the system of provisional measures does not provide for an efficient mechanism to put an end to the atrocities.

A more general negative point in the recourse to the International Court of Jus- tice is that its decision, albeit binding on the States involved in the case, cannot be efficiently enforce should one of the States refuse to comply. According to article


94(2) of the United Nations, the Security Council is the enforcement mechanism of the International Court of Justice. Yet, it rarely wishes to embark on such a path. Another more realistic means to stop the atrocities in Darfur is to pressure the government of Sudan in such a fashion that it will take appropriate measures to ensure that the militias are not acting against recognized norms of international law anymore.

Prosecution before National Courts

Amongst enforcement mechanisms, Article VI of the Convention contemplates national courts. It is true that ideally one should be tried in his/her own national courts or in the State where he/she committed the crime. Talking more generally about the prosecution of international crimes, the International Commission props up this idea inasmuch as it states that "[t]he normal and ideal response to atrocities is to bring the alleged perpetrators to justice in the courts of the State where the crimes were perpetrated, or of the State of nationality of the alleged perpetrators. ''~75

Unfortunately this means of judicial enforcement has proved to be toothless. As already noted in 1950 "the whole Convention is based on the assumption of virtu- ous governments and criminal individuals, a reversion of the truth in proportion to the degree of totalitarianism and nationalism practiced in any country. ''176 Indeed, "[s]ince genocide is invariably committed by states or with their acquiescence, prosecutions before national courts have been ineffective except where a regime is over- thrown or defeated in war. ''Iv7 The case of the Darfur crisis exemplifies well this statement. In four short paragraphs, the International Commission delineates the inadequacies of the Sudanese judicial criminal system. It especially stresses that despite repeated resolutions calling for the investigation of the crimes committed and for the prosecution of alleged criminals the Sudanese government has not un- dertaken any steps in this regard. 178 Both the Sudanese authorities as well as the rebels have remained inactive, a failure that the International Commission qualifies as "conspicuous and unacceptable. ''179 While the government has carried out "win- dow-dressing operations ''18~ the rebels have failed to take any action whatsoever. The victims can hardly expect to obtain relief from their own government. ~8~ The International Commission hence draws the conclusion that the current system has led to effective impunity for the alleged perpetrators and, therefore, other mechanisms need to be applied. The reaction of the Sudanese authorities upon release of the report demonstrates that the judicial system will indeed be unable to prosecute suspected perpetrators. Both the Secretary-General of the National Congress Party as well as Sudan's Justice Minister have rejected the findings on the basis that the International Commission could not support its claims. ~82 The Sudanese Vice Presi- dent also stressed that "Sudan has its own just courts which will apply the law on whoever is responsible for any violations of humanitarian law. ''~83

Besides the prosecution of perpetrators before Sudanese national courts, it may be necessary to organize a truth and reconciliation commission. As Deng already noted in 2002, "in the long run, in the Sudanese context, it will be more important

Qu~nivet 55

to heal the present crisis of national identity. ''t84 De Waal joins this view inasmuch as he notes that "condemnation is not a solution. The Janjaweed's murderous cam- paigns must not obscure the fact that Darfur's indigenous Bedouins are themselves historic victims. ''85 Yet, this solution is not mentioned in the report of the Interna- tional Commission, probably because it first wishes to establish an accountability mechanism. Moreover, truth and reconciliation commission can only be created by those inside the country. 186 The establishment of such a body is in itself a sign that the population wants to come to terms with the conflict. As of now there is no such sign in Darfur or in Sudan more generally. It is therefore even more remarkable that the Security Council emphasises in Resolution 1593 "the need to promote healing and reconciliation" and spurs Sudan to create institutions "such as truth and/or reconciliation commissions" besides the judicial process. 187 It is rather unlikely that Sudan will instigate such institutions given its reaction to previous resolutions. Yet, as the Security Council and the Secretary-General observe this may lead to a last- ing peace in Sudan. 188

Prosecution before International(ized) Criminal Courts

One of the enforcement mechanisms mentioned in Article VI of the Convention is the establishment of an international criminal court. Although a permanent Inter- national Criminal Court was founded in 1998, it must be stressed that it exercises jurisdiction over the crime of genocide based on its own Statute 189 and not the Con- vention against Genocide.

Before delving into the recommendations propounded by the International Com- mission, one may briefly examine other fora for the possible prosecution of alleged perpetrators of acts of genocide in Darfur. For instance, in February 2005 the United States proposed that the United Nations Security Council establish and mandate an ad hoc Sudan Tribunal with the co-operation of the African Union. 190 According to the American proposal the tribunal would prosecute those individuals held responsible for serious violations of international humanitarian law committed in Darfur from 1 January 2003 to the present. However this alternative was specifically rejected by the International Commission which found that setting up an ad hoc international criminal tribunal would be inadvisable, for it would be very expensive and slow in prosecution and punishment of the indicted persons. 191 Similar comments were made by Human Rights Watch which points out that "[e]stablishing a new court requires creating a new statute and rules, recruiting staff, and electing judges. ''92 Another point that the International Commission failed to notice was that a tempo- rary court would necessarily be time-limited. Those wrongdoers, who would hide for long enough, may escape justice, t93 A glaring example is the final race by the ICTY for Karadzic and Mladic. As the ICTY prosecutor said, "[t]he objectives of the Tribunal, as established by the Security Council, will not be fulfilled before these accused are tried in The Hague. ''94 One could easily fathom the case where the Sudanese officials would never travel abroad and, hence, would never be ar-


rested and presented to the ad hoc tribunal. Nevertheless, the strongest argument for utilizing the ICC is that it is a permanent and fully-fledged existing international criminal institution available for the purpose of prosecuting those suspected of having committed international crimes.

However the United States suggested making use of the already existing ICTR that sits in Arusha (Tanzania). Again, the International Commission warned against such a solution since it would only overstretch the work of this tribunal that is already struggling with the completion strategy elaborated and approved by the Security Council. 195 An official of the ICTY pointed that the Tribunal "is already challenged by efforts to increase courtroom capacity and schedule new trials while handling the eight trials already in progress. ''196 The Intemational Commission points out that such a solution would also be expensive, not to mention the confusion in the tribunal. 197

In the last few years mixed or internationalized courts have mushroomed in various countries where an armed conflict, be it international or non-international, raged. This solution, lauded by many as one that allows proximity with the local population, is also rejected by the International Commission on five grounds. 198 First, it must be noted that although the International Commission explains early in the report that there are two distinct models of mixed courts, it seems that it uses the Special Court for Sierra Leone as a yardstick. The International Commission refers to the financial problems of the Special Court and the time needed to establish such an institution. The International Commission further adds that the situation of those national judges could be "unbearable and dangerous" since the indictees would be leaders of the Sudanese State and communities. 199 Indeed other mixed courts were instituted after the conflict, when the society appeared ready to take its distance from the past and move forward. A stronger reason for not recommending a mixed tribunal is the gross incompatibility of Sudan's national laws with international norms9 ~ Last, the International Commission observes that whereas, in the past, recourse was had to mixed tribunals for the reason that the ICC had no jurisdiction rationae temporis for a particular situation, this does not hold true anymore.

The International Commission recommends at the end of its report to prosecute those alleged to have perpetrated international crimes in Darfur before the ICC. The Intemational Commission clearly expresses in paragraph 571 its wish to see the suspects stand trial before the International Criminal Court. TM Several NGOs support the findings of the International Commission as far as the referral to the ICC is concerned. 2~

The International Commission believes the ICC to have six merits with regard to the situation in Darfur. 2~ The ICC was conceived as a measure to come to terms with crimes likely to threaten peace and security. With this view, the Security Council can trigger the ICC's jurisdiction under Article 13(b).

A second reason articulated by the International Commission is that the ICC offers a neutral view of the situation, far away from Sudan and its tumultuous political situation. Although this comment is laudable one should not forget that jus-

Qu6nivet 57

tice being done in The Hague, far away from the population, is often not recognized by the general population. In this view, Resolution 1593 "encourages the Cour t . . . to support international cooperation with domestic efforts to promote the rule of law, protect human rights and combat impunity in Darfur. ''2~ Hence the ICC should be inscribed in the efforts of the Security Council to create a new Sudan that abides by all international norms.

Third, the International Commission trusts that only the ICC would be able to compel members of the Sudanese government and rebels to submit to investigation. In practice, it is impossible to haul them into court without overthrowing the government. 2~ One can hardly fathom the means that the ICC would employ to coerce alleged perpetrators to come forward. 2~ In this regard, only the Chapter VII powers of the Security Council can assist the ICC. Resolution 1593 "decides that the Gov- ernment 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." The language is so light that it even does not request the parties to the conflict to cooperate with the ICC. In particular, due to U.S. insistence, the language used still gives the impression that Sudan, as a non-party to the ICC Stat- ute, is not obliged to abide by the orders of the ICC and its Prosecutor. Further, practical arrangements such as investigations and the protection of witnesses are to be discussed with the African Union. The ICC Prosecutor therefore "urged states and organizations with information on Darfur to provide it to [his] office. ''2~

Fourth, the ICC would be able to provide a fair trial since it already possesses a set of clearly defined rules of procedure and evidence.

Fifth, the ICC would be able to start working as soon as the Security Council has passed a resolution to that effect. There would be no need to wait for the setting up of an international criminal institution. "The 'crime base' for future prosecutions needs to be established while the evidence and witnesses' recollection are still fresh. ''2~

Lastly, this solution would be the most cost-effective. As a starting point, the International Commission turned over a list of names of

those it believes to have participated in violations of international norms. The sealed file was handed in to the Secretary General with the recommendation that it should be examined by a competent prosecutor such as the prosecutor of the International Criminal Court.

The hurdle is that, like any treaty-mechanism, the Statute of the International Criminal Court is based on State consent and, thus, States with genocidal predilec- tions are unlikely to ratify this instrument. Sudan illustrates the theory as it has even not signed the Rome Statute. Indeed, the issue of the involvement of the ICC in prosecuting alleged perpetrators was greatly debated. This was due to the fact that Sudan not being a party to the Rome Statute, 2~ the only trigger mechanism was a Chapter VII resolution of the Security Council. Yet, "[i]t i s . . . almost inconceiv- able that the Security Council would decline to refer a case involving genocide to the ICC, but with the Security Council one can of course never tell."2 ~0 On 31 March 2005 the Security Council adopted by vote of 11 in favor to none against with four


abstentions Resolution 1593 (2005) that referred the situation in Darfur to the Pros- ecutor of the International Criminal Court. TM Despite the initial rejection of this solution by the United States, it eventually agreed after it won key concessions on its long-standing opposition to the ICC. The Prosecutor of the ICC, after taking note of the referral, declared that under the Statute he would first need to assess factors including crimes and admissibility. 212 This means that it is not certain that the ICC will indeed examine the matter. One should bear in mind that the ICC has only complementary jurisdiction that may not be raised should Sudan be willing and able to deal with the crimes. A couple of days later the ICC Prosecutor clearly spelled out that "I have [a] duty: to assess national proceedings. The Sudanese authorities report they have begun investigations. This could be very important. I will carefully and independently assess these proceedings. ''213

Conclusion

The immensity and urgency of the situation in Darfur was grasped very early on by a series of international organizations, States and individual authors. The "G- word" even seems to give the crisis a new dimension. Yet despite the clear wording of Article I of the Convention against Genocide which imposes upon States both to avert genocide and to punish its perpetrators, little has been done to alleviate the suffering of the population of Sudan's conflict-wracked Darfur region. There is no doubt that "the Darfur case shows how little the main lesson from Rwanda has filtered into the everyday consciousness of the responsible political leaders or officials in the major p o w e r s . ''214 In fact, "[w]ith the situation in Sudan's Darfur region steadily deteriorating, the international community is once again in danger of break- ing its promise. T M However, in the light of the latest Security Council resolution one may dismiss the statement that "[i]f leaders were genuinely committed to the need to prevent and to punish the perpetrators, they would build the political will themselves. ''216 Indeed Patterson, the U.S. representative in the UN declared that despite its initial reluctance to refer the situation to the ICC "it is important that the international community spoke with one voice in order to help promote effective accountability. ''2~7

The only achievement is the referral of the situation to the International Criminal Court. Yet, one may consider this disposition as a salve for the conscience of the international community. Instead of stymieing, i.e., adopting strong measures against Sudan, the Security Council prefers to punish those alleged of having committed international crimes, amongst them acts of genocide. 218 This provides little conso- lation to the population in Darfur as the International Criminal Court although likely to start investigating in the next few months is unlikely to render any judgement before two years, should it get hold of any of the wrongdoers. In the meantime, the massacres and those acts that one may regard as genocide continue. " A [ n ] . . . investigation makes moral sense only in the context of international action to halt the killing there. Otherwise, it is just a self-satisfied fig leaf. 'm9

Qu6nivet 59

Notes

* No~lle Qurnivet (LL.M., Ph.D.) is a Senior Lecturer at the University of the West of England (United Kingdom). This article takes much of a presentation made on 28 September 2004 at the People's Friendship University of Russia, Moscow (Russia). I would like to thank the group of the "weekly research seminar" as well as Simon Meisenberg for triggering some more thoughts about the issue as well as Bernard Dougherty for proof-reading the English text.

1. For a discussion on the United Nations' reaction to the crisis in Darfur, see (1) T. Youngs, Sudan: Conflict in Darfur, International Affairs and Defence Section, House of Commons Library, Research Paper 00/51, 23 June 2000; (2) H. Slim, "Dithering over Darfur? A Preliminary Re- view of the International Response," (2004) 80.5 lnternationalAffairs 811-828; (3) N. Qurnivet, "The Security Council, the Responsibility to Protect and the Crisis in Darfur," International Law/Me~cOynapoOnoe llparo (to be published).

2. United Nations Security Council, Resolution 1547 (2000), UN Doc. S/RES/1547 (2004), 11 June 2004; United Nations Security Council, Resolution 1556 (2004), UN Doc. S/RES/1556 (2000), 30 July 2004; United Nations Security Council, Resolution 1564 (2004), UN Doc. S/ RES/1564 (2004), 18 September 2004; United Nations Security Council, Resolution 1574 (2004), UN Doc. S/RES/1574 (2004), 19 November 2000, United Nations Security Council, Resolution 1590 (2005), UN Doc. S/RES/1590 (2005), 24 March 2005; United Nations Security Council, Resolution 1591 (2005), UN Doc. S/RES/1591 (2005), 29 March 2005.

3. Security Council, Resolution 1564 (2004), UN Doc. S/RES/1564 (2004), 18 September 2000. 4. The term was coined by Lemkin. R. Lemldn, Axis Rule in Occupied Europe, Washington, Carnegie

Endowment for International Peace, 1944. 5. S. Straus, "Darfur and the Genocide Debate," (2005) 84.1. Foreign Affairs 123. 6. M. Lacey, "The Carnage in Sudan: Some See Genocide," International Herald Tribune, 24-25

July 2004, p. 2. 7. Colin Powell reported to Congress on 9 September 2004 that an investigation carried out by the

State Department found that genocide was taking place in Daffur. Some weeks later President Bush spoke of genocide before the United Nations. S. Power, "It's Not Enough to Call it Geno- cide," Time Magazine (US Edition), 4 October 2004.

8. "Blair: Notfalls milit~irisch in Sudan eingreifen," FrankfurterAllgemeine Zeitung, 23 July 2004. 9. (1) Human Rights Watch, Empty Promises? Continuing Abuses in Darfur, Sudan, 1 l August

2004; (2) Amnesty International, Darfur: Rape as a Weapon of War: Sexual Violence and its Consequences, AFR 54/07612000, 19 July 2000; (3) Amnesty International, Sudan: Who Will Answer for the Crimes?, AFR 54/00612005, 18 January 2005; (4) International Crisis Group, Darfur Rising: Sudan's New Crisis, Africa Report N~ 25 March 2004.

10. (1) US Committee for Refugees and Immigrants, USCR Urges President Bush to Condemn Khartoum's Genocide and Act Now to Save Hundreds of Thousands of Lives in Darfur, Press Release, 28 June 2004; (2) Aegis Trust, Darfur: Blueprint for Genocide, November 2000; (3) Physicians for Human Rights, PHR Calls for Intervention to Save Lives: Field Team Compiles Indicators of Genocide, <http://www.phrusa.org/research/sudarff>, 25 April 2005.

11. Convention on the Prevention and Punishment of the Crime of Genocide, GA Resolution 260 (111), 9 December 1948.

12 International Court of Justice, Case Concerning the Application of the Convention on the Pre- vention and the Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, 11 July 1996.

13. J. Smith, "Living with the Legacy of Rape and Genocide," The Scotsman, 20 July 2004. 14. S. Straus, supra note 5, at 124. 15. M.A.M. Salih, "Current Patterns of State Building in East Africa," in H. Fischer & N. Qurnivet

(eds), Post-Conflict Reconstruction: Nation--and~or State-Building, Berlinerwissenscaftsverlag, 2005, p. 108.

16. E. Wax, "In Darfur, Rwandan Soldiers Relive Their Past. Protectors Hope Presence Will Halt another Genocide," The Washington Post, 28 September 2004, p. A20.

17. J. Markakis, "The Horn of Africa," (2003) 97 Review of African Political Economy 361. 18. S. Power, "Dying in Darfur. Can the Ethnic Cleansing in Sudan be Stopped?" New Yorker, 30

August 2004.


19. "Those who considered themselves ethnically African were angered by the government's practice of awarding most of the top posts in the region to local Arabs, even though they were thought to be the minority there." S. Power, "Dying in Darfur. Can the Ethnic Cleansing in Sudan be Stopped?," supra note 18. See also A. de Waal, "Counter-Insurgency on the Cheap," London Review of Books, 5 August 2004.

20. S. Power, "Dying in Darfur. Can the Ethnic Cleansing in Sudan be Stopped?" supra note 18. 21. "('Jaan' means 'evil' in Arabic, and 'jawad' means 'horse'; 'janjaweed' means, roughly, 'evil

horseman.') The janjaweed included local camel herders, and also nomads who migrated to Darfur from Chad and West Africa in the nineteen-seventies and eighties . . . . Although many Africans in Darfur apply the term to any Arab civilian who carries a gun, government officials and Darfur's Arab-militia leaders apply it only to the bandits, African and Arab, who have been hijacking and looting in Sudan's remote areas for decades. Western diplomats use 'janjaweed' more broadly, to describe the Arab militiamen who have carried out much of the pillaging, killing, and raping in Darfur." S. Power, "Dying in Darfur. Can the Ethnic Cleansing in Sudan be Stopped?" supra note 18.

22. This number is cited in a report mentioned in "UN Security Council Approves ICC War Crime Trials on Darfur," Agence France Presse, 31 March 2005.

23. Others put the figures at 1,2 million refugees (G. Chamberlain, "400 Darfur Refugees Dying every Day," The Scotsman, 1 October 2004) or at 1,4 million (E. Wax, supra note 16, p. A20).

24. International Commission of Inquiry on Darfur, Report to the United Nations Secretary Gen- eral pursuant to Security Council Resolution 1564 of 18 September 2004, Geneva, 25 January 2005 (hereinafter International Commission).

25. "'Ethnic cleansing' is a colloquial term used by the media and other observers, and has no legal meaning, although it refers to acts that may constitute crimes in themselves." T. Youngs, supra note 1, p. 22.

26. This expression entered UN terminology in 1992 when the Commission for Human Rights and the Sub-Commission on Prevention of Discrimination and Protection of Minorities condemned 'ethnic cleansing' policies. See UN Doc. E/1992/22, E.CN.4/1992/84/Add. 1 (1992) and 1992/ S-I/1 Annex (1992) respectively.

27. P. Akhavan, "The Genocide Convention after Fifty Years," [1998] ASIL Proceedings 7. 28. ICTR, Prosecutor v. Kambanda, ICTR-97-23-S, Judgement and Sentence, 4 September 1998,

para. 16 29. ICTR, Prosecutor v. Serushago, ICTR-98-39-S, Judgement and Sentence, 5 February 1999,

para. 15. 30. (1) N.H.B. JCrgensen, "The Definition of Genocide: Joining the Dots in the Light of Recent

Practice," (2001) 1 International Criminal Law Review 287; (2) W. Fenrick, "Should Crimes against Humanity Replace War Crimes?" (1999) 37 Columbia Journal of Transnational Law 775.

31. ICTY, Prosecutor v. Krstic, IT-98-33-A, Appeals Chamber, 19 April 2004, para. 36. 32. ICTR, Prosecutor v. Kayishema and Ruzindana, ICTR-95-1-A, Appeals Chamber, 21 October

1999, para. 367. 33. International Commission of Inquiry on Darfur, supra note 24, paras 505-506. 34. Power shows in her article how the American president refrained from using the word "geno-

cide" when depicting the situation in Cambodia, Bosnia-Herzegovina, and Rwanda. S. Power, "It's Not Enough to Call it Genocide," supra note 7.

35. Radislav Krstic, a Bosnian Serb general, was convicted of genocide for his role in the Srebrenica siege. ICTY, The Prosecutor v. Krstic, Case IT-98-33-T, Trial Chamber, 2 August 2001.

36. E.g. ICTR, The Prosecutor v. Bagosora, ICTR-9841-T, Trial Chamber, 12 July 2002. Each indictment in the ICTR has charged genocide and prosecution has been largely successful.

37. International Commission of Inquiry on Darfur, supra note 24, paras 489-522. 38. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide,

Advisory Opinion, (1951) ICJ Reports 15, 23. 39. General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide,

Resolution 260 (III), 9 December 1948, [hereinafter Convention on Genocide]. 40. S. Strans, supra note 5, at 128.

Qu~nivet 61

41. Press Briefing, Pieter Feith, Personal Representative for Sudan of the Secretary-General of the Council of the European Union, on the European Action in Sudan/Darfur, 9 August 2004.

42. (1) Amnesty International, Darfur: Rape as a Weapon of War: Sexual Violence and its Conse- quences; supra note 9; (2) Amnesty International, Sudan: Who Will Answer for the Crimes?, supra note 9.

43. Human Rights Watch, Empty Promises? Continuing Abuses in Darfur, Sudan, supra note 9. 44. See also S. Raghavan, "To Suffering of War, Add Outcasts," Philadelphia Inquirer, 28 Novem-

ber 2004. 45. A. de Waal, supra note 19. 46. International Commission of Inquiry on Darfur, supra note 24, para. 507. 47. International Commission of Inquiry on Darfur, supra note 24, para. 507. 48. J. Jafari, "'Never Again,' Again: Darfur, the Genocide Convention, and the Duty to Prevent

Genocide," (2004) 12 Human Rights Brief9. 49. Public lnternational Law and Policy Group, Genocide in Darfur: A Legal Analysis, September

2004, <http:•/www.pub•icinternati•na••aw.•rg/publicati•ns•rep•rts•DarfurGen•cide•9•28s.pdf>, 22 March 2005.

50. ICTY, Prosecutor v. Jelisic, Trial Chamber, No. lT-95-10-A, 14 December 1999, para. 67. In Akayesu, the Trial Chamber stated that "the victim of the crime of genocide is the group itself and not the individual." ICTR, Prosecutor v. Akayesu, Trial Chamber, ICTR-96.4-T, 2 Septem- ber 1998, para. 52 I. This position was nearly verbatim reproduced in the Rutaganda case. ICTR, Prosecutor v. Rutaganda, ICTR-96-. 3-T, Trial Chamber, 6 December 1999, para. 59.

51. Schabas contends that "[t]he four terms in the Convention not only overlap; they also help to define each other; operating much as four corner posts that delimit an area within which a myriad of groups covered by the Convention find protection. This was certainly the perception of the drafters." W.A. Schabas, Genocide in International Law, Cambridge, Cambridge Univer- sity Press, p. 111.

52. International Court of Justice, Nottebohm Case, Liechtenstein v. Guatemala, Second Phase, 1955 ICJ 4, 23, 6 April 1955.

53. ICTR, Prosecutor v. Akayesu, supra note 50, para. 512. See also the definition propounded by Heintze, H.-J. Heintze, "Zur Durchsetzung der UN-V01kermordkonvention," (2000) 4 Humanitiires VOlkerrecht-lnformationsschriften 227.

54. International Commission of Inquiry on Darfur, supra note 24, paras 496-497. 55. International Commission of Inquiry on Darfur, supra note 24, footnote 181. 56. International Commission of Inquiry on Darfur, supra note 24, para. 498. 57. "[T]he Tutsi population did not fit neatly into any of the above definitions, as they did not have

a language or culture of their own different from the rest of the Rwandan population." K.C. Moghalu, "International Humanitarian Law from Nuremberg to Rome: The Weighty Prece- dents of the International Criminal Tribunal for Rwanda," (2002) 14 Pace International Law Review 280.

58. ICTR, Prosecutor v. Akayesu, supra note 50. In fact, "the Akayesu judgement established a far- reaching precedent by interpreting for the first time how to apply the definition of the crime of genocide in the Genocide Convention to a practical situation." K.C. Moghalu, supra note 37, at 279.

59. J.D. van der Vyver, "Prosecution and Punishment of the Crime of Genocide," (1999) 23 Fordham International Law Journal 304.

60. N.H.B. Jorgensen, supra note 30, at 289. 61. For a critique of this jurisprudence, see (1) N.H.B. JCrgensen, supra note 30, at 288; (2) R.

Maison, "Le crime de genocide dans les premiers jugements du tribunal prnal international pour le Rwanda," (1999) CIII Revue Gdnrrale de Droit International Public 136-137.

62. ICTR, Prosecutor v. Akayesu, supra note 50, paras 511 and 702. 63. ICTY, Prosecutor v. Jelisic, supra note 50, para. 69. 64. R. Boucher, United States Department of State, Press Conference, Washington, 8 September

2004. See also United Nations, Report of the Acting High Commissioner on the Human Rights Situation in Darfur, UN Doc. E/CN.4/2005/3, 7 May 2004, para. 33.

65. "[B]ecause of decades of intermarriage, almost everyone has dark skin and African features." S.


Power, "Dying in Darfur. Can the Ethnic Cleansing in Sudan be Stopped?" supra note 18. See also T. Youngs, supra note 1, p. 7.

66. EM. Deng, "War Strikes at the 'Very Soul' of Sudan," Crimes of War Magazine, April 2002. 67. M. Lacey, supra note 6, p. 2. 68. International Commission of Inquiry on Darfur, supra note 24, para. 508. 69. International Commission of Inquiry on Darfur, supra note 24, para. 508. 70. International Commission of Inquiry on Darfur, supra note 24, para. 509. 71. In its opinion, this change of approach towards defining a protected group is now part of inter-

national customary law. The International Commission chiefly bases its argumentation on four points: this interpretation does not run against the object and purpose of the Convention against Genocide, it does not substantially depart from the text and the corresponding customary rules, and it has not been challenged by States.

72. The article by Suliman and Klein shows well how the identity of "Africans" and "Arabs" in Darfur has crystallized. M. Suliman and A. Klein, "Inversion der Ethnizit~it von Wahrnehmung zur Konfliktursache. Die Fur--und Nubakonflikte im Westsudan," in OSFK/Institut fiir KonfliktlOsung (eds), Afrikanische Perspektiven. Friedensbericht 1998. Theorie und Praxis ziviler Konfliktbearbeitung in Osteuropa, Dialog, Beitr~ige zur Friedensforschung, Band 34, Chur, Verlag Rtiegger, 1998, at 257-275.

73. ICTY, Prosecutor v. Krstic, supra note 35, para. 492. 74. International Commission of Inquiry on Darfur, supra note 24, para. 500. 75. International Commission of Inquiry on Darfur, supra note 24, para. 498. 76. International Commission of Inquiry on Darfur, supra note 24, para. 510. 77. United Nations, Report of the Acting High Commissioner on the Human Rights Situation in

Darfur, supra note 64, para. 88. 78. "The Darfur Conflict: Crimes against Humanity in Sudan," Crimes of War Magazine, April

2004. 79. M.A.M. Salih, "Current Patterns of State Building in East Africa," supra note 15. 80. M.A.M. Salih, "Ethnocide and Genocide in the Nuba Mountains," (1995) 36.1. Geojournal,

International Journal of Physical, Biological and Geography and Applications in Environmen- tal Planning and Ecology 71-78.

81. M. Lacey, supra note 6, p. 2. See also S. Power, "Dying in Darfur. Can the Ethnic Cleansing in Sudan be Stopped?" supra note 18.

82. The Commission of Experts on the Former Yugoslavia offered both a positive and negative approach. Report of the Commission of Experts on the Former Yugoslavia, S/19941674, 24 May 1994, para. 96.

83. ICTY, Prosecutor v. Jelisic, supra note 50, para. 71. 84. The 2004 State Department report describes the tribes as "non-Arab." State Department, Docu-

menting Atrocities in Darfur, September 2004, <http://www.state.govlg/drllrls136028.htm>, 22 March 2005.

85. ICTY, Prosecutor v. Jelisic, supra note 50, para. 70. 86. ICTR, Prosecutor v. Kayishema and Ruzindana, ICTR-95-1-T, Trial Chamber, 21 May 1999,

para. 98. 87. ICTY, The Prosecutor v. Krstic, supra note 35, para. 492. 88. International Commission of Inquiry on Darfur, supra note 24, para. 511. 89. Freeman also argues that "the conception of genocide as a relation between perpetrators and

victims suggests that it is a one-way process. It is better, however, to see it as a set of interac- tions. The victims are not merely passive objects of ideological constructions and murderous attacks. They have perceptions of their persecutors and react to persection [sic] according to their perceptions." M. Freeman, "The Theory and Prevention of Genocide," (1991) 6.2. Holo- caust and Genocide Studies 191.

90. ICTY, Prosecutor v. Jelisic, supra note 50, para. 79. 91. ICTR, Prosecutor v. Kayishema and Ruzindana, supra note 86, para. 99. 92. The "discriminatory intent" is discussed in the part relating to the subjective elements of the

crime of genocide. However, "[i]t is not clear whether targeting a group is part of the actus reus or mens rea of the crime, or an external condition relating to motive." N.H.B. J~rgensen, supra note 30, at 307. It appears that the Trial Chamber in the Akayesu case linked the question of the

Qu~nivet 63

discriminatory acts to the issue of specific intent. ICTR, Prosecutor v. Akayesu, supra note 50, para. 122.

93. C. Sommaruga, "The Responsibility to Protect," in L. Lijnzaad, J. van Sambeek & B. Tahzib- Lie (eds), Making the Voice of Humanity Heard. Essays on Humanitarian Assistance and Inter- national Humanitarian Law in Honour of HRH Princess Margriet of the Netherlands, Leiden, Martinus Nijhoff Publishers, 2004, at 358.

94. T. Youngs, supra note 1, p. 8. See also United Nations, Report of the Acting High Commis- sioner on the Human Rights Situation in Darfur, supra note 64, para. 33. Jafari stresses that "the roots of the Darfur conflict lie in historic disagreements over land use." J. Jafari, supra note 48, at 8. See also M Suliman & A. Klein, "Inversion der Ethnizit~t von Wahrnehmung zur Konflikt- ursache. Die Fur--und Nubakonflikte im Westsudan," in OSFK/Institut fur Konfliktl6sung (eds), Afrikanische Perspektiven. Friedensbericht 1998. Theorie und Praxis ziviler Konfliktbearbeitung in Osteuropa, Dialog, Beitr~ge zur Friedensforschung, Band 34, Chur, Verlag Rfiegger, 1998, at 257-275.

95. S. Power, "Dying in Darfur. Can the Ethnic Cleansing in Sudan be Stopped?" supra note 18. 96. S. Straus, supra note 5, at 126. 97. (1) S. Power, "Dying in Darfur. Can the Ethnic Cleansing in Sudan be Stopped?," supra note 18

and (2) A. de Waal, supra note 19. See the opposite view expressed in G. Austin & B. Koppelman, Darfur and Genocide: Mechanisms for Rapid Responses, an End to Impunity, The Foreign Policy Centre, July 2004, p. 20.

98. G. Chamberlain, supra note 23. 99. As Jafari and Williams observe "the presence of other factors fueling violence is not a bar to

declaring genocide." J. Jafari & P.R. Williams, "Word Games: The UN and Genocide in Darfur," Jurist, 17 March 2005.

100. Power explains that "[b]etween 1987 and 1989, serious battles broke out between Fur farmers and Arab camel herders. Some twenty-five hundred Fur were killed, forty thousand cattle were lost, and four hundred villages were burned; five hundred Arabs died, and hundreds of the nomads' tents were burned. Even though a local inter-tribal conference was held in 1989, its recommendations for compensation and punishment went largely unheeded leaving outstand- ing grievances that would explode fourteen years later." S. Power, "Dying in Darfur. Can the Ethnic Cleansing in Sudan be Stopped?," supra note 18.

101. L.L. Green, "Gender Hate Propaganda and Sexual Violence in the Rwandan Genocide: An Ar- gument for Intersectionality in International Law," (2002) 33 Columbia Human Rights Law Review 737.

102. "'[G]eneral intent' is the lowest common denominator of all intentional offences and consist of the wilful commission of an act, with knowledge that it violates the criminal law." N.H.B. J0rgensen, supra note 30, at 292. Further, "[t]he mens rea has to cover all elements of the actual appearances of one of the crimes of genocide. These objecctive elements are, according to article 30 [of the ICC Statute], typified into three categories: conduct, consequences, and circumstances." O. Triffterer, "Genocide, its Particular Intent to Destroy in Whole or in Part the Group as such," (2001 ) 14 Leiden Journal of International Law 400.

103. The use of the adjective 'specific' is rejected by scholars such as Triffierer or J0rgensen. O. Triffterer, supra note 102, at 404. N.H.B. Jcrgensen, supra note 30, at 292. The word "specific" is however found in the declaration the United States added when it gave its consent to the ratification of the Convention on Genocide. See 132:15 Cong. Rec., daily edition, 19 February 1986.

104. International Commission of Inquiry on Darfur, supra note 24, para. 491. See and compare with R. Arnold, "The Mens Rea of Genocide under the Statute of the International Criminal Court," (2003) 14 Criminal Law Forum 127-151.

105. ICTR, Prosecutor v. Rutaganda, supra note 30, paras 59-60. 106. ICTY, Prosecutor v. Jelisic, supra note 50, para. 66. 107. O. Triffterer, supra note [02, at 400. 108. For a discussion on the mens rea under the ICC Statute, see (1) N.H.B. J0rgensen, supra note

30, at 296; (2) R. Arnold, supra note 104, at 127-151; (3) R.S. Clark, "The Mental Element in International Criminal Law: The Rome Statute of the International Criminal Court and the Ele- ments of Offences," (2001) 12 Crbninal Law Forum 324-327.


109. P. Akhavan, supra note 27, at 10. 110. ICTR, Prosecutor v. Akayesu, supra note 50, para. 523-524 111. International Commission of Inquiry on Darfur, supra note 24, para. 502. 112. The ICTR referred to (1) the general context of the perpetration of other culpable acts systemati-

cally directed against that same group, whether. . , committed by the same offender or by others; (2) the scale of atrocities committed; (3) the general nature of the atrocities committed in a region or a country; (4) the fact of deliberately and systematically targeting victims on account of their membership of a particular group, while excluding the members of other groups; (5) the general political doctrine which gave rise to the acts; (6) the repetition of destructive and discriminatory acts; (7) the perpetration of acts which violate, or which the perpetrators themselves consider to violate the very foundation of the group--acts which are not in themselves covered by the l i s t . . , but which are committed as part of the same pattern of conduct. ICTR, Prosecutor v. Akayesu, supra note 50, paras. 523-524.

113. ICTY, Prosecutor v. Jelisic, IT-95-10-A, Appeals Chamber, 5 July 2001, para. 47 114. ICTR, Prosecutor v. Kayishema andRuzindana, supra note 86, para. 93. 115. ICTY, Prosecutor v. Karadzic and Mladic, IT-95-5-R61 and IT-95-18-R61, 11 July 1996,

para. 711. 116. Elements of Crimes, UN Doc. PCNICC/2000/1/Add.2 (2000), 2 November 2000. 117. International Commission of Inquiry on Darfur, supra note 24, para. 502. 118. International Commission of Inquiry on Darfur, supra note 24, para. 513. 119. P. Akhavan, supra note 27, at 10-11. See also "[t]he victim count can be used to demonstrate

intent, especially if the aggressor has not expressly asserted his genocidal intention beyond his actions." J. Webb, "Genocide Treaty-Ethnic Cleansing-Substantive and Procedural Hurdles in the Application of the Genocide Convention to Alleged Crimes in the Former Yugoslavia," (1993) 23 Georgia Journal of lnternational and Comparative Law 392.

120. United Nations, Report of the Acting High Commissioner on the Human Rights Situation in Darfur, supra note 64.

121. ICTR, Prosecutor v. Kayishema andRuzindana, supra note 32, para. 97 and ICTY, Prosecutor v. Jelisic, supra note 50, paras 82.

122. ICTY, Prosecutor v. Sikirica, Judgement On Defence Motions To Acquit, 3 September 2001, para. 65.

123. ICTY, Prosecutor v. Sikirica, supra note 122, para. 65. For a critique of this expression, see D. Alonzo-Maizlish, "In Whole or in Part: Group Rights, the Intent Element of Genocide, and the 'Quantitative Criterion'," (2002) 77 New York University Law Review 1369-1403.

124. D. Alonzo-Maizlish, supra note 123, at 1383-1384. 125. Report of the International Law Commission on the Work of its Forty-Eighth Session, UN Doc.

A/51/10, 6 May-26 July 1996, Comment 8 to Article 17. 126. ICTY, The Prosecutor v. Krstic, supra note 35, para. 590. Similarly Robinson declares that "the

Convention is intended to deal with action against large numbers, not individuals even if the happen to possess the same group characteristics." N. Robinson, The Genocide Convention: A Commentary, New York, Institute of Journal Affairs, 1960, p. 63.

127. International Commission of Inquiry on Darfur, supra note 24, para. 513. 128. ICTR, Prosecutor v. Rutaganda, supra note 30, para. 63. Likewise, the ICTR Trial Chamber

stated that "[it] is of the opinion that the Accused's intent should be determined, above all, from his words and deeds, and should be evident from patterns of purposeful action." ICTR, Prosecu- tor v. Bagilishema, ICTR-95-1A-T, Trial Chamber, 7 June 2001, para. 63.

129. ICTY, Prosecutor v. Jelisic, supra note 113, para. 48. The Appeals Chamber disagreed with the Trial Chamber that had declared that since the prosecution could not "establish[] beyond all reasonable doubt that there existed a plan to destroy the Muslim group . . , within which the murders committed by the accused would allegedly fit," the Trial Chamber could not punish Jelisic for having committed acts of genocide. ICTY, Prosecutor v. Jelisic, supra note 50, para. 98. See also ICTR, Prosecutor v. Kayishema and Ruzindana, supra note 32, para. 94.

130. Elements of Crimes, UN Doc. PCNICC/2000/1/Add.2 (2000), 2 November 2000. 131. J. Jafari, supra note 48, at 9. 132. R. Boucher, United States Department of State, Press Conference, Washington, 8 September

2004. See also G. Chamberlain, supra note 23.

Qu6nivet 65

133. One of the stories told to Power however mentions first the air bombing and then the arrival of the militias and the government troop. "In the wake of the planes came Sudanese soldiers, packed into trucks and Land Cruisers; they were followed by hundreds of menacing janjaweed on camelback and horseback." S. Power, "Dying in Darfur. Can the Ethnic Cleansing in Sudan be Stopped?," supra note 18. Amnesty International explains that planes were used either before or after the ground attack. Amnesty International, Sudan: Arming the Perpetrators of Grave Abuses in Darfur, AFR 54/139/2004, 16 November 2004, p. 9.

134. As Morris and Scharf correctly observe "it is virtually impossible for the crime of genocide to be committed without some direct or indirect involvement on the part of the State given the magnitude of this crime." V. Morris & M. Scharf, The International Criminal Tribunal for Rwanda, Irvington-on-Hudson, Transnational Publishers, 1998, p. 168.

135. ICTR, Prosecutor v. Kayishema and Ruzindana, supra note 86, para. 93; (2) ICTR, Prosecutor v. Akayesu, supra note 50, para. 722. See also ICTY, Prosecutor v. Stakic, IT-97-24-T, Trial Chamber, 31 July 2003.

136. International Commission of Inquiry on Darfur, supra note 24, para. 511. 137. State Department•D•cumenting Atr•cities in Darfur• September 2••4• <http:••www.state.g•v•

g/drl/rls/36028.htm>, 22 March 2005. 138. Justice Africa, Prospects for Peace in Sudan, Briefing March-May 2004, <http://

www.justiceafrica.org/march may04.htm>, 7 April 2005, para. 23. 139. (1) A. de Waal, supra note 19; (2) "'Sudan. A Test Case for Humanitarian Intervention," Africa

News, 1 October 2004. 140. S. Power, "Dying in Darfur. Can the Ethnic Cleansing in Sudan be Stopped?" supra note 18. 141. In a 2003 report, Human Rights Watch noted that the Ministry of Justice and the Ministry of

Information admitted that they had no control over the forces' actions. Human Rights Watch, Sudan: Empty Promises? Ending Human Rights Violations in Government Controlled Areas, supra note 9, p. 6.

142. S. Power, "Dying in Darfur. Can the Ethnic Cleansing in Sudan be Stopped?," supra note 18. 143. United Nations, Report of the Acting High Commissioner on the Human Rights Situation in

Darfur, supra note 64, para. 60. 144. J. Jafari and ER. Williams, supra note 99. 145. International Commission of Inquiry on Darfur, supra note 24, para. 513. 146. M6decins Sans Fronti~res~ Persecuti~n~ ~ntimidati~n and Failure ~f Assistance in Darfur~ ~ct~-

ber 2004, p. 3. See also Amnesty International, Sudan: Arming the Perpetrators of Grave Abuses in Darfur, supra note 133, p. 21. The Acting High Commissioner for Human Rights observes that a gender imbalance is present in the refugee population. United Nations, Report of the Acting High Commissioner on the Human Rights Situation in Darfur, supra note 64, para. 23.

147. A. Jones, "Gendercide and Genocide," (2000) 2.2. Journal of Genocide Research 189. 148. International Commission of Inquiry on Darfur, supra note 24, paras 513-515. 149. International Commission of Inquiry on Darfur, supra note 24, para. 518. 150. ICTY, Prosecutor v. Stakic, supra note 135, para. 554. 151. Remarkably, the International Commission refers to the armed opposition group as the "rebels,"

thereby refusing to endow them with a legal qualification such as insurgents or armed opposition group.

152. This opinion expressed by Sudan can be found in the report of the Acting High Commissioner for Human Rights. United Nations, Report of the Acting High Commissioner on the Human Rights Situation in Darfur, supra note 64, para. 46.

153. J. Jafari & P.R. Williams, supra note 99. 154. United Nations, Report of the Acting High Commissioner on the Human Rights Situation in

Darfur, supra note 64, para. 93. 155. See 132:15 Cong. Rec., daily edition, 19 February 1986. 156. J. Webb, supra note 119, at 400. See also Freeman: "The border between these two concepts is

likely to remain highly contested because the definition of 'genocide' is unfixed (and probably unfixable) and has great propaganda value." M. Freeman, supra note 89, at 193.

157. G. Austin & B. Koppelman, supra note 97, p. 27. 158. R. Cook, "US Hostility to the International Criminal Court Knows no Bounds," The Guardian,

11 February 2005.


159. J. Webb, supra note 119, at 279. 160. Press statement, RichardBoucher, Spokesman, "G8 Statement on Sudan," Washington, DC, 11

June 2004. 161. J. Jafari & ER. Williams, supra note 99. 162. ICTY, Prosecutor v. Dragan Nikolic, consideration of the bill of indictment in the framework of

Article 61 of the Rules of Procedure and Evidence, Trial Chamber, 20 October 1995, IT-94-2- R-61, para. 34.

163. E Akhavan, supra note 27, at 12. 164. International Commission of Inquiry on Darfur, supra note 24, para. 521. Critics harshly state

that "[i]n a final example of contradictory absurdity, and after establishing that there was no intent to commit genocide, the UN report states that 'in some instances individuals, including government officials, may commit acts with genocidal intent'." J. Jafari & ER. Williams, supra note 99.

165. International Commission of Inquiry on Darfur, supra note 24, para. 520. 166. International Commission of Inquiry on Darfur, supra note 24, para. 521. 167. ICTY, Prosecutor v. Jelisic, supra note 50, para. 79. 168. International Commission of Inquiry on Darfur, supra note 24, para. 521. 169. International Court of Justice, Case Concerning the Application of the Genocide Convention,

Bosnia and Herzegovina v. Yugoslavia, 1996 ICJ 595, 11 July 1996. 170. S.R. Ratner, "The Genocide Convention after Fifty Years," [ 1998] ASIL Proceedings 2. See also

L.L. Bruun, "Beyond the 1948 Convention--Emerging Principles of Genocide in Customary International Law," (1993) 17 Maryland Journal of International Law and Trade 207.

171. See for example International Court of Justice, Reservations to the Convention on the Preven- tion and Punishment of the Crime of Genocide, Advisory Opinion, (1951) ICJ Reports 15, 23 and ICTY, Prosecutor v. Jelisic, supra note 50, para. 60. C[T]he Convention has become one of the most widely accepted international instruments relating to human rights. There can be abso- lutely no doubt that its provisions fall under customary international law as, moreover, noted by the International Court of Justice as early as 1951. The Court went even further and placed the crime on the level ofjus cogens because of its extreme gravity.")

172. International Court of Justice, Trial of Pakistani Prisoners o f War, Pakistan v. India, the case was removed from the list by an Order of 15 December I973; International Court of Justice, Application of the Genocide Convention, Bosnia and Herzegovina v. Serbia and Montenegro, still pending.

173. •nternational Court •f Justice• Barcel•na Tracti•n Light and P•wer C•m•any• Belgium v. Spain• Judgment, 1970 ICJ 3, 5 February 1970.

174. For a discussion on this case, see H.-J. Heintze, "Zur Durchsetzung der UN- VOlkermordkonvention," (2000) 4 Humanitdres Vglkerrecht-lnformationsschriften 230.

175. International Commission of Inquiry on Darfur, supra note 24, para. 568. 176. G. Schwarzenberger, "The Problem of an International Criminal Law," (1950) 3 Current Legal

Problems 292. 177. P. Akhavan, supra note 27, at 8. 178. See also United Nations, Report of the Acting High Commissioner on the Human Rights Situa-

tion in Darfur, supra note 64, para. 36. 179. International Commission of Inquiry on Darfur, supra note 24, para. 567. 180. See for example the cases mentioned in (1) J. Smith, "Living with the Legacy of Rape and

Genocide," The Scotsman, 20 July 2004 and (2) Amnesty International, Sudan: Arming the Perpetrators of Grave Abuses in Darfur, supra note 133, p. 3.

181. (1) Amnesty International, Sudan: Who Will Answer for the Crimes?, supra note 9, pp. 6-7. (2) Amnesty International, Sudan, Darfur: No One to Complain to--No Respite for the Victims, Impunity for the Perpetrators, AFR 54/138/2004, 2 December 2004.

182. M.L. Goldberg, "The International Criminal Court is Ready to Act- - i f the Bush Administration will Get out of its Way," The American Prospect, 9 February 2005.

183. "Sudan Rejects Trying its Nationals outside the Country," Xinhua News Agency, 5 February 2005.

184. EM. Deng, supra note 66. This proposal is also supported by Amnesty International. Amnesty International, Sudan: Who Will Answer for the Crimes?, supra note 9.

Qu~nivet 67

185. A. de Waal, supra note 19. 186. Amnesty International contends that the civil society in the South demands the establishment of

a Truth and Reconciliation Commission. Amnesty International, Sudan: Who Will Answer for the Crimes?, supra note 9.

187. Security Council, Resolution 1593 (2005), UN Doc. Sl1593/2005, 31 March 2005. This proposal may be the result of the critic raised by Nigeria and several other States sitting in the Security Council. One should not forget that on 17 March 2005 Nigeria, on behalf of the African Union, suggested the establishment of an African criminal tribunal on the basis that other mechanisms would not produced "the desired healing and reconciliation for the parties involved" and "may not be ideal in handling the delicate political crisis in the Darfur region of Sudan." "Nige- ria proposes Africa-run tribunal to try Sudan war crimes suspects," Associated Press, 17 March 2005.

188. Secretary-General, Situation in Darfur, Sudan, to International Criminal Court Prosecutor, UN Doc. SG/SM/9797, AFR/1132, 31 March 2005.

189. Rome Statute of the International Criminal Court, UN Doc. A/CONE183/9, 17 July 1998, re- printed in 37 1LM 999 (1998).

190. "Sudan; African Union Tribunal Proposed for War Crimes in Darfur," Africa News, 9 February 2005. This proposal was already made in January, see I. Mather, "No Relief for Sudan's Agony as UN Quibbles over the Case for Genocide," Scotland on Sunday, 30 January 2005.

191. International Commission of Inquiry on Darfur, supra note 24, para. 574. 192. Human Rights Watch, US Fiddles over ICC while Darfur Bums, 31 January 2005. Similarly,

Robin Cook declares that the creation of a new tribunal would take too much time. R. Cook, supra note 139.

193. Human Rights Watch, U.N. Rights Chief Details Crimes in Darfur, 16 February 2005. 194. Address by Carla Del Ponte, Prosecutor of the International Criminal Tribunal for the Former

Yugoslavia, to the United Nations Security Council, 23 November 2004, CDP/P.I.S./917-e. 195. A similar position is held by Robin Cook. R. Cook, supra note 139. 196. Human Rights Watch, U.N. Rights Chief Details Crimes in Darfur, supra note 194. 197. International Commission of Inquiry on Darfur, supra note 24, para. 575. 198. International Commission of Inquiry on Darfur, supra note 24, para. 578. 199. International Commission of Inquiry on Darfur, supra note 24, para. 579. 200. International Commission of Inquiry on Darfur, supra note 24, para. 580. 201. See also para. 582. "Based on all of the above, the Commission strongly holds the view that

resort to the ICC, the only truly international criminal institution, is the single best mechanism to allow justice to be made for the crimes committed in Darfur." International Commission of Inquiry on Darfur, supra note 24, para. 582.

202. Human Rights Watch declares that "[a]n ICC referral is the course of action that can best guar- antee efficient and effective prosecution of those most responsible for these atrocities." Human Rights Watch, US Fiddles over ICC while Darfur Burns, 31 January 2005. Amnesty Interna- tional also explained that "[t]he ICC was established by the international community precisely in order to try such crimes under international law as are being committed on a large scale in Darfur." Amnesty International, The United States of America Must not Block Justice for the Sudanese People, 15 February 2005.

203. International Commission of Inquiry on Darfur, supra note 24, para. 572. 204. Security Council, Resolution 1593 (2005), UN Doc. S/159312005, 31 March 2005. 205. I. Mather, supra note 150. 206. S. Maupas, "Le procureur de la CPI disposera d'une liste de 51 suspects tburnie par les Nations

Unies," Le Monde, 2 avril 2005, p. 4. 207. International Criminal Court, Ptvsecutor Receives List Prepared by Comnzission of Inquiry on

Darfur, Press Release, The Hague, 5 April 2005. 208. T. Lindberg, "ICC Offers Darfur Hope," The Washington Times, 15 March 2005. 209. Van der Vyver argues that "[t]here can no longer be any doubt that persons committing crimes

under international customary law cannot be shielded behind the refusal of their governments to submit to institutions and proceedings established to prosecute those crimes." J.D. van der Vyver, supra note 39, at 345-346.

210. J.D. van der Vyver, supra note 39, at 339.


211. Security Council, Resolution 1593 (2005), UN Doc. S/159312005, 31 March 2005. France presented the initial draft of the resolution on 23 March 2005. C. Trran, "L"ONU saisit la Court prnale intemationale des cimes du Darfour," Le Monde, 2 avril 2005, p. 4.

212. International Criminal Court, Security Council Refers Situation in Darfur to ICC Prosecutor, Press Release, The Hague, 1 April 2005.

213. International Criminal Court, Prosecutor Receives List Prepared by Commission of Inquiry on Darfur, Press Release, The Hague, 5 April 2005. On 28 March 2005 the Sudanese Minister of Justice announced the arrest of 14 persons, amongst them members of the armed forces and other security forces. C. Trran, "La FIDH fustige 'un chantage de la honte' ~t I'ONU sur le Darfour," Le Monde, 30 March 2005, p. 4.

214. G. Austin & B. Koppelman, supra note 97, p. 6. 215. J. Jafari, supra note 48, at 8. 216. G. Austin & B. Koppelman, supra note 97, p. 39. 217. Security Council, Resolution 1593 (2005), UN Doc. S/1593/2005, 3I March 2005. 218. One notes that the ICC Prosecutor tends to believe that punishment is a means of prevention. In

particular, he declared that "[w]e all have a common task: to protect life in Darfur, ending the culture of impunity." International Criminal Court, Prosecutor Receives List Prepared by Com- mission of Inquiry on Darfur, Press Release, The Hague, 5 April 2005.

219. T. Lindberg, supra note 208.

the report of the international commission of inquiry on darfur: the question of genocide

Documents