[Source: Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, Geneva 25 January 2005; footnotes partially reproduced; full report available on
http://www.un.org/News/dh/sudan/com_inq_darfur.pdf [1]]

N.B. As per the disclaimer [2], neither the ICRC nor the authors can be identified with the opinions expressed in the Cases and Documents. Some cases even come to solutions that clearly violate IHL. They are nevertheless worthy of discussion, if only to raise a challenge to display more humanity in armed conflicts. Similarly, in some of the texts used in the case studies, the facts may not always be proven; nevertheless, they have been selected because they highlight interesting IHL issues and are thus published for didactic purposes.

Pursuant to Security Council Resolution 1564 of 18 September 2004
Geneva, 25 January 2005

INTRODUCTION

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II.     THE HISTORICAL AND SOCIAL BACKGROUND

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3.     The Current Conflict in Darfur

61. The roots of the present conflict in Darfur are complex. In addition to the tribal feuds resulting from desertification, the availability of modern weapons, [...] deep layers relating to identity, governance, and the emergence of armed rebel movements which enjoy popular support amongst certain tribes, are playing a major role in shaping the current crisis.
62. It appears evident that the two rebel groups in Darfur, the Sudan Liberation Movement/Army (SLM/A) and the Justice and Equality Movement (JEM) began organizing themselves in the course of 2001 and 2002 in opposition to the Khartoum Government, which was perceived to be the main cause of the problems in Darfur. While only loosely connected, the two rebel groups cited similar reasons for the rebellion, including socio-economic and political marginalization of Darfur and its people. In addition, the members of the rebel movements were mainly drawn from local village defence groups from particular tribes, which had been formed as a response to increases in attacks by other tribes. Both rebel groups had a clearly stated political agenda involving the entirety of the Sudan, demanding more equal participation in government by all groups and regions of the Sudan. Initially the SLM/A, at that stage named the Darfur Liberation Front, came into existence with an agenda focused on the situation of the people of Darfur, and only later expanded its agenda to cover all of the Sudan. The Justice and Equality Movement based its agenda on a type of manifesto – the “Black Book”, published in 2001 – which essentially seeks to prove the disparities in the distribution of power and wealth, by noting that Darfur and its populations, as well as some populations of other regions, have been consistently marginalized and not included in influential positions in the central Government in Khartoum. It is noteworthy that the two movements did not argue their case from a tribal point of view, but rather spoke on behalf of all Darfurians, and mainly directed their attacks at Government installations. It also appears that with regard to policy formulation, the New Sudan policy of the SPLM/A [Sudan People’s Liberation Movement/Army] in the South had an impact on the SLM/A, while the JEM seemed more influenced by trends of political Islam. Furthermore, it is possible that the fact that the peace negotiations between the Government and the SPLM/A were advancing rapidly, did in some way represent an example to be followed by other groups, since armed struggle would apparently lead to fruitful negotiations with the Government. It should also be recalled that despite this broad policy base, the vast majority of the members of the two rebel movements came from essentially three tribes: The Fur, the Massalit and the Zaghawa.
63. It is generally accepted that the rebel movements began their first military activities in late 2002 and in the beginning of 2003 through attacks mainly directed at local police offices, where the rebels would loot Government property and weaponry. [...]
66. Most reports indicate that the Government was taken by surprise by the intensity of the attacks, as it was ill-prepared to confront such a rapid military onslaught. Furthermore, the looting by rebels of Government weaponry strengthened their position. An additional problem was the fact that the Government apparently was not in possession of sufficient military resources, as many of its forces were still located in the South, and those present in Darfur were mainly located in the major urban centres. Following initial attacks by the rebels against rural police posts, the Government decided to withdraw most police forces to urban centres. This meant that the Government did not have de facto control over the rural areas, which was where the rebels were based. The Government was faced with an additional challenge since the rank and file of the Sudanese armed forces was largely composed of Darfurians, who were probably reluctant to fight “their own” people.
67. From available evidence and a variety of sources including the Government itself, it is apparent that faced with a military threat from two rebel movements and combined with a serious deficit in terms of military capabilities on the ground in Darfur, the Government called upon local tribes to assist in the fighting against the rebels. In this way, it exploited the existing tensions between different tribes.
68. In response to the Government’s call, mostly Arab nomadic tribes without a traditional homeland and wishing to settle, given the encroaching desertification, responded to the call. They perhaps found in this an opportunity to be allotted land. One senior government official involved in the recruitment informed the Commission that tribal leaders were paid in terms of grants and gifts on the basis of their recruitment efforts and how many persons they provided. In addition, the Government paid some of the Popular Defence Forces (PDF) staff their salaries through the tribal leaders, with State budgets used for these purposes. The Government did not accept recruits from all tribes. One Masaalit leader told the Commission that his tribe was willing to provide approximately one thousand persons to the PDF but, according to this source, the Government did not accept, perhaps on the assumption that the recruits could use this as an opportunity to acquire weapons and then turn against the Government. Some reports also indicate that foreigners, from Chad, Libya and other states, responded to this call and that the Government was more than willing to recruit them.
69. These new “recruits” were to become what the civilian population and others would refer to as the “Janjaweed”, a traditional Darfurian term denoting an armed bandit or outlaw on a horse or camel. [...]
70. [...] On 8 April 2004, the Government and the SLM/A and JEM signed a humanitarian ceasefire agreement, and in N’Djamena on 28 May they signed an agreement on ceasefire modalities. Subsequent peace talks took place [...] under the mediation of the African Union. On 9 November in Abuja, the Government, the SLM/A and the JEM signed two Protocols, one on the improvement of the humanitarian situation and the second on the enhancement of the security situation in Darfur. In the context of further negotiations, the parties have not been able to overcome their differences and identify a comprehensive solution to the conflict.

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SECTION I: THE COMMISSION’S FINDINGS OF VIOLATIONS
OF INTERNATIONAL HUMAN RIGHTS LAW AND
HUMANITARIAN LAW BY THE PARTIES

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II.     THE NATURE OF THE CONFLICT IN DARFUR

74. The first [...] issue relates to the nature of the armed conflict raging in Darfur. This determination is particularly important with regard to the applicability of the relevant rules of international humanitarian law. The distinction is between international armed conflicts, non-international or internal armed conflict, and domestic situations of tensions or disturbances. The Geneva Conventions set out an elaborate framework of rules that are applicable to international armed conflict or ‘all cases of declared war or of any armed conflict which may arise between two or more of the High Contracting Parties’. Common Article 3 of the Geneva Conventions and Additional Protocol II set out the prerequisite of a non-international armed conflict. It follows from the above definition of an international conflict that a non-international conflict is a conflict without the involvement of two States. Modern international humanitarian law does not legally set out the notion of armed conflict. Additional Protocol II only gives a negative definition which, in addition, seems to narrow the scope of Article 3 common to the Geneva Conventions. The jurisprudence of the international criminal tribunals has explicitly elaborated on the notion: ‘an armed conflict exists whenever there is resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’. Internal disturbances and tensions, ‘such as riots, isolated and sporadic acts of violence and other acts of a similar nature’ are generally excluded from the notion of armed conflict.
75. The conflict in Darfur opposes the Government of the Sudan to at least two organized armed groups of rebels, namely the Sudan Liberation Movement/Army (SLM/A) and the Justice and Equality Movement (JEM). [...] The rebels exercise de facto control over some areas of Darfur. The conflict therefore does not merely amount to a situation of internal disturbances and tensions, riots, or isolated and sporadic acts of violence. Rather, the requirements of (i) existence of organized armed groups fighting against the central authorities, (ii) control by rebels over part of the territory and (iii) protracted fighting, in order for this situation to be considered an internal armed conflict under common Article 3 of the Geneva Conventions are met.
76. All the parties to the conflict (the Government of the Sudan, the SLA [SLM/A armed branch] and the JEM) have recognised that this is an internal armed conflict. Among other things, in 2004 the two rebel groups and the Government of the Sudan entered into a number of international agreements, inter se, in which they invoke or rely upon the Geneva Conventions.

III.    CATEGORIES OF PERSONS OR GROUPS PARTICIPATING IN THE ARMED CONFLICT

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1.     Government Armed Forces

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(iv)   Popular Defence Forces

81. For operational purposes, the Sudanese armed forces can be supplemented by the mobilization of civilians or reservists into the Popular Defence Forces (PDF). [...]
82. According to information gathered by the Commission, local government officials are asked by army Headquarters to mobilize and recruit PDF forces through tribal leaders and sheikhs. [...] As one tribal leader explained to the Commission, ‘in July 2003 the State called on tribal leaders for help. We called on our people to join the PDF. They responded by joining, and started taking orders from the Government as part of the state military apparatus.’
83. The PDF provides arms, uniforms and training to those mobilized, who are then integrated into the regular army for operations. At that point, the recruits come under regular army command and normally wear the same uniform as the unit they are fighting with. [...]

2.     Government supported and/or controlled militias – the ‘Janjaweed’

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(ii.)   Uses of the term in the context of current events in Darfur

105. [...] [I]n practice, the term “Janjaweed” is being used interchangeably with other terms used to describe militia forces working with the Government. Where victims describe their attackers as Janjaweed, these persons might be from a tribal Arab militia, from the PDF or from other entity, as described below.

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(vi.)  The question of legal responsibility for acts committed by the Janjaweed

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123. When militias attack jointly with the armed forces, it can be held that they act under the effective control of the Government, consistently with the notion of control set out in 1999 in Tadic (Appeal), at para. 98-145 [See ICTY, The Prosecutor v. Tadic [Part C.] [3]]. Thus they are acting as de facto State officials of the Government of Sudan. It follows that, if it may be proved that all the requisite elements of effective control were fulfilled in each individual case, responsibility for their crimes is incurred not only by the individual perpetrators but also by the relevant officials of the army for ordering or planning, those crimes, or for failing to prevent or repress them, under the notion of superior responsibility.
124. When militias are incorporated in the PDF and wear uniforms, they acquire, from the viewpoint of international law the status of organs of the Sudan. Their actions and their crimes could be legally attributed to the Government. [...]
125. On the basis of its investigations, the Commission is confident that the large majority of attacks on villages conducted by the militia have been undertaken with the acquiescence of State officials. The Commission considers that in some limited instances militias have sometimes taken action outside of the direct control of the Government of Sudan and without receiving orders from State officials to conduct such acts. In these circumstances, only individual perpetrators of crimes bear responsibility for such crimes. However, whenever it can be proved that it was the Government that instigated those militias to attack certain tribes, or that the Government provided them with weapons and financial and logistical support, it may be held that (i) the Government incurs international responsibility (vis-à-vis all other member States of the international community) for any violation of international human rights law committed by the militias, and in addition (ii) the relevant officials in the Government may be held criminally accountable, depending on the specific circumstances of each case, for instigating or for aiding and abetting the violations of humanitarian law committed by militias.

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VI.    VIOLATIONS OF INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN LAW – THE COMMISSION’S FACTUAL AND LEGAL FINDINGS.

1.     Overview of violations of international human rights and humanitarian law reported by other bodies

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182. [...] [T]he Commission carefully studied reports from different sources including Governments, inter-governmental organizations, various United Nations mechanisms or bodies, as well as non-governmental organizations. [...] The Commission [...] received a great number of documents and other material from a wide variety of sources, including the Government of the Sudan. [...] The following is a brief account of these reports, which serves to clarify the context of the fact finding and the investigations conducted by the Commission. In the sections following this overview, individual incidents are presented according to the type of violation or international crime identified.

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184. Most reports note a pattern of indiscriminate attacks on civilians in villages and communities in all three Darfur states beginning in early 2003. [...]
185. A common conclusion is that, in its response to the insurgency, the Government has committed acts against the civilian population, directly or through surrogate armed groups, which amount to gross violations of human rights and humanitarian law. While there has been comparatively less information on violations committed by the rebel groups, some sources have reported incidents of such violations. There is also information that indicates activities of armed elements who have taken advantage of the total collapse of law and order to settle scores in the context of traditional tribal feuds, or to simply loot and raid livestock.
186. There are consistent accounts of a recurrent pattern of attacks on villages and settlements, sometimes involving aerial attacks by helicopter gunships or fixed-wing aircraft (Antonov and MIG), including bombing and strafing with automatic weapons. However, a majority of the attacks reported are ground assaults by the military, the Janjaweed, or a combination of the two. Hundreds of incidents have been reported involving the killing of civilians, massacres, summary executions, rape and other forms of sexual violence, torture, abduction, looting of property and livestock, as well as deliberate destruction and torching of villages. These incidents have resulted in the massive displacement of large parts of the civilian population within Darfur as well as to neighbouring Chad. The reports indicate that the intensity of the attacks and the atrocities committed in any one village spread such a level of fear that populations from surrounding villages that escaped such attacks also fled to areas of relative security.
187. Except in a few cases, these incidents are reported to have occurred without any military justification in relation to any specific activity of the rebel forces. [...]
191. While a majority of the reports are consistent in the description of events and the violations committed, the crimes attributed to the Government forces and Janjaweed have varied according to the differences in the interpretation of the events and the context in which they have occurred. Analyses of facts by most of the observers, nevertheless, suggest that the most serious violations of human rights and humanitarian law have been committed by militias, popularly termed “Janjaweed”, at the behest of and with the complicity of the Government, which recruited these elements as a part of its counter-insurgency campaign.
192. Various reports and the media claim to have convincing evidence that areas have been specifically targeted because of the proximity to or the locus of rebel activity, but more importantly because of the ethnic composition of the population that inhabits these areas. [...]

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5.     Two Irrefutable Facts: Massive displacement and large-scale destruction of villages

225. Results of the fact finding and investigations are presented in the next sections of the report and are analysed in the light of the applicable legal framework as set out in the preceding Section. However, before proceeding, two uncontested facts must be highlighted.
226. [...] Firstly, there were more than one million internally displaced persons (IDPs) inside Darfur (1,65 million according to the United Nations) and more than 200,000 refugees from Darfur in neighbouring Chad to the East of the Sudan. Secondly, there were several hundred destroyed and burned villages and hamlets throughout the three states of Darfur. [...]

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6.     Violations committed by the parties

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(i.)    Indiscriminate attacks on civilians

(a.)    Factual findings

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240. From all accounts the Commission finds that the vast majority of attacks on civilians in villages have been carried out by Government of the Sudan armed forces and Janjaweed, either acting independently or jointly. Although attacks by rebel forces have also taken place, the Commission has found no evidence that these are widespread or that they have been systematically targeted against the civilian population. Incidents of rebel attacks are mostly against military targets, police or security forces. Nevertheless, there are a few incidents in which rebel attacks have been carried out against civilians and civilian structures, as well as humanitarian convoys.

(1).  Attacks by Government armed forces and the Janjaweed

241. [...] [T]he Commission found that attacks on villages in Darfur conducted by Government of the Sudan armed forces and the Janjaweed took place throughout the conflict with peaks in intensity during certain periods. Most often the attacks began in the early morning, just before sunrise between 04:30 AM and 08:00 AM when villagers were either asleep or at prayer. In many cases the attacks lasted for several hours. [...]
242. In many cases a ground attack began with soldiers appearing in Land Cruisers and other vehicles, followed by a large group of Janjaweed on horses and camels, all with weapons such as AK47s, G3s and rocket-propelled grenades. Many of the attacks involved the killing of civilians, including women and children, the burning of houses, schools and other civilian structures, as well as the destruction of wells, hospitals and shops. Looting and theft of civilian property, in particular livestock, invariably followed the attacks and in many instances every single item of moveable property was either stolen or destroyed by the attackers. Often the civilians were forcibly displaced as a result of the attack.

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249. In this context, the Commission also noted the comments made by Government officials in meetings with the Commission. The Minister of Defence clearly indicated that he considered the presence of even one rebel sufficient for making the whole village a legitimate military target. The Minister stated that once the Government received information that there were rebels within a certain village, ‘it is no longer a civilian locality, it becomes a military target.’ In his view, ‘a village is a small area, not easy to divide into sections, so the whole village becomes a military target.’ [...]

Case Study 1: Anka village, North Darfur

251. [...] At about 9 am on or about the 17 or 18 February 2004 the village of Barey, situated about 5 kilometres from the village of Anka, was attacked by a combined force of Government soldiers and Janjaweed. [...]
     
     At about 5 PM on the same day, witnesses from Anka observed between 300 and 400 Janjaweed on foot, and another 100 Janjaweed on camels and horseback, advancing towards Anka from the direction of Barey. The attackers were described as wearing the same khaki uniforms as the Government soldiers, and were armed with Kalashnikovs G3s and rocket-propelled grenades (RPGs).
     
     Witnesses observed about 18 vehicles approaching from behind the Janjaweed forces, including four heavy trucks and eighteen Toyota pickup vehicles. Some of the vehicles were green and others were coloured navy blue. The pickups had Dushka (12.7mm tripod mounted machine guns) fitted onto the back, and one had a Hound rocket launcher system which was used to fire rockets into, and across, the village. The trucks carried Government armed forces and were later used to transport looted property from the village.
     
     According to witnesses, villagers fled the village in a northerly direction, towards a wooded area about 5 kilometers from the village.
     
     Before the Janjaweed entered the village, the Government armed forces bombed the area around the village with Antonov aircraft. One aircraft circled the village while the other one bombed. [...] The bombing lasted for about two hours, during which time 20 to 35 bombs were dropped around the outskirts of the village. A hospital building was hit during the bombardment.
     
     After the bombing the Janjaweed and Government soldiers moved in and looted the village including bedding, clothes and livestock. Remaining buildings were then destroyed by burning. Janjaweed also fired RPGs into the village from the top of the hill overlooking Anka. The bombing of the areas around the village appear to have been conducted in order to facilitate the looting and destruction of the village by Janjaweed and Government armed forces on the ground.
     
     According to witnesses, approximately 30 SLM/A members were present in the village at the time of the attack, apparently to defend the village following the announcement of the imminent attack.
     
     15 civilians were killed in Anka as a result of shrapnel injuries during and after the attack. 8 others were wounded. While some have recovered, others reportedly are disabled as a result of their injuries. The village is now totally deserted.

259. To ensure that attacks on places or areas where both civilians and combatants may be found, do not unlawfully jeopardize civilians, international law imposes two fundamental obligations, applicable both in international and internal armed conflicts. First the obligation to take precautions for the purpose of sparing civilians and civilian objects as much as possible. Such precautions, laid down in customary international law, are as follows: a belligerent must (i) do everything feasible to verify that the objectives to be attacked are not civilian in character; (ii) take all feasible precautions in the choice of means and methods of combat with a view to avoiding or at least minimizing incidental injury to civilians or civilian objects; (iii) refrain from launching attacks which may be expected to cause incidental loss of civilian life or injury to civilians or civilian objects, which would be excessive in relation to the concrete and direct military advantage anticipated; (iv) give effective advance warning of attacks which may affect the civilian population, except “in cases of assault” (as provided for in Article 26 of the Hague Regulations of 1907) or (as provided for in Article 57(2)(c)) “unless circumstances do not permit” (namely when a surprise attack is deemed indispensable by a belligerent). Such warnings may take the form of dropping leaflets from aircraft or announcing on the radio that an attack will be carried out. According to the Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC, Y. Sandoz and others eds, 1987, at para. 2224) a warning can also be given by sending aircraft that fly at very low altitude over the area to be attacked, so as to give civilians the time to evacuate the area.
260. The second fundamental obligation incumbent [...] on any party to an international or internal armed conflict [...] is to respect the principle of proportionality when conducting attacks on military objectives that may entail civilian losses. Under this principle a belligerent, when attacking a military objective, shall not cause incidental injury to civilians disproportionate to the concrete and direct military advantage anticipated. In the area of combat operations the principle of proportionality remains a largely subjective standard, based on a balancing between the expectation and anticipation of military gain and the actual loss of civilian life or destruction of civilian objects. It nevertheless plays an important role, first of all because it must be applied in good faith, and secondly because its application may involve the prohibition of at least the most glaringly disproportionate injuries to civilians. [...]
263. As noted above, one justification given for the attacks by Government of the Sudan armed forces and Janjaweed on villages is that rebels were present at the time and had used the villages as a base from which to launch attacks – or, at the very least, that villagers were providing support to the rebels in their insurgency activities. Government officials therefore suggested that the villagers had lost their legal status as protected persons.
264. [...] [I]t is clear that the mere presence of a member or members of rebel forces in a village would not deprive the rest of the village population of its civilian character.
265. [...] [C]ontrary to assertions made to the Commission by various Government officials, it is apparent from consistent accounts of reliable eyewitnesses that no precautions have ever been taken by the military authorities to spare civilians when launching armed attacks on villages. [...]
266. The issue of proportionality did obviously not arise when no armed groups were present in the village, as the attack exclusively targeted civilians. However, whenever there might have been any armed elements present, the attack on a village would not be proportionate, as in most cases the whole village was destroyed or burned down and civilians, if not killed or wounded, would all be compelled to flee the village to avoid further harm. The civilian losses resulting from the military action would therefore be patently excessive in relation to the expected military advantage of killing rebels or putting them hors de combat.
267. Concluding observations. It is apparent from the Commission’s factual findings that in many instances Government forces and militias under their control attacked civilians and destroyed and burned down villages in Darfur contrary to the relevant principles and rules of international humanitarian law. Even assuming that in all the villages they attacked there were rebels present or at least some rebels were hiding there, or that there were persons supporting rebels – an assertion that finds little support from the material and information collected by the Commission – the attackers did not take the necessary precautions to enable civilians to leave the villages or to otherwise be shielded from attack. The impact of the attacks shows that the military force used was manifestly disproportionate to any threat posed by the rebels. In fact, attacks were most often intentionally directed against civilians and civilian objects. Moreover, the manner in which many attacks were conducted (at dawn, preceded by the sudden hovering of helicopter gun ships and often bombing) demonstrates that such attacks were also intended to spread terror among civilians so as to compel them to flee the villages. In a majority of cases, victims of the attacks belonged to African tribes, in particular the Fur, Masaalit and Zaghawa tribes. From the viewpoint of international criminal law these violations of international humanitarian law no doubt constitute large-scale war crimes.
268. From the Commission’s findings it is clear that the rebels are responsible for attacks on civilians, which constitute war crimes. In general, the Commission has found no evidence that attacks by rebels on civilians have been widespread, or that rebel attacks have systematically targeted the civilian population.

(ii.)   Killing of civilians

(a.)    Factual findings

1.    Killing by Government forces and/or militias

269. [...] [T]he great majority of the killings were committed by people who witnesses described as Janjaweed, in most cases uniformed and on horses or camels. [...] Witness testimonies reflected in these reports describe attackers with Kalashnikovs and other automatic weapons shooting either indiscriminately or targeting specific people, usually men of military age. [...] Incidents of confinement of the civilian population, accompanied by arbitrary executions have also been reported, as well as civilian deaths as a result of indiscriminate air attacks by Government forces. The reports note that killings have continued during displacement in camps at the hand of the militias surrounding the camps, and that some IDPs have also been the victims of indiscriminate police shooting inside camps, in response to alleged rebel presence.

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271. [...] [M]ost of the civilians killed at the hands of the Government or the militias are, in a strikingly consistent manner, from the same tribes, namely Fur, Massalit, Zaghawa and, less frequently, other African tribes, in particular the Jebel and the Aranga in West Darfur.

a.       Killing in joint attacks by Government forces and Janjaweed

272. As an example of a case of mass killing of civilians documented by the Commission, the attack on Surra, a village with a population of over 1700, east of Zalingi, South Darfur, in January 2004, is revealing. Witnesses interviewed in separate groups gave a very credible, detailed and consistent account of the attack, in which more than 250 persons were killed, including women and a large number of children. An additional 30 people are missing. The Janjaweed and Government forces attacked jointly in the early hours of the morning. The military fired mortars at unarmed civilians. The Janjaweed were wearing camouflage military uniform and were shooting with rifles and machine guns. They entered the homes and killed the men. They gathered the women in the mosque. There were around ten men hidden with the women. They found those men and killed them inside the mosque. They forced women to take off their maxi (large piece of clothing covering the entire body) and if they found that they were holding their young sons under them, they would kill the boys. The survivors fled the village and did not bury their dead.

[...]

274. A second attack occurred in March 2004. Government forces and Janjaweed attacked at around 15h00, supported by aircraft and military vehicles. Again, villagers fled west to the mountains. Janjaweed on horses and camels commenced hunting the villagers down, while the military forces remained at the foot of the mountain. They shelled parts of the mountains with mortars, and machine-gunned people as well. People were shot when, suffering from thirst, they were forced to leave their hiding places to go to water points. There are consistent reports that some people who were captured and some of those who surrendered to the Janjaweed were summarily shot and killed. [...] Men who were in confinement in Kailek were called out and shot in front of everyone or alternatively taken away and shot. Local community leaders in particular suffered this fate. There are reports of people being thrown on to fires to burn to death. There are reports that people were partially skinned or otherwise injured and left to die.

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276. The Commission considers that almost all of the hundreds of attacks that were conducted in Darfur by Janjaweed and Government forces involved the killing of civilians.

b.      Killing in attacks by Janjaweed

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c.       Killing as a result of air bombardment

279. Several incidents of this nature were verified by the Commission. In short, the Commission has collected very substantial material and testimony which tend to confirm, in the context of attacks on villages, the killing of thousands of civilians.

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2.    Killing by Rebel Groups

a.       Killing of civilians

285. The Commission also has found that rebels have killed civilians, although the incidents and number of deaths have been few.

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(b.)    Legal appraisal

291. As stated above murder contravenes the provisions of the International Covenant on Civil and Political Rights and of the African Charter on Human and People’s Rights, which protect the right to life and to not be “arbitrarily deprived of his life”. As for international humanitarian law, murder of civilians who do not take active part in hostilities in an internal armed conflict, is prohibited both by common Article 3 of the 1949 Geneva Conventions and by the corresponding rule of customary international law, as codified in Article 4(2)(a) of Additional Protocol II. [...] It is crucial to stress again at this point that when considering if the murder of civilians amounts to a war crime or crime against humanity, the presence of non-civilians does not deprive a population of its civilian character. Therefore, even if it were proved that rebels were present in a village under attack, or that they generally used the civilian population as a ‘shield’, nothing would justify the murder of civilians who do not take part in the hostilities.
292. A particular feature of the conflict in Darfur should be stressed. Although in certain instances victims of attacks have willingly admitted having been armed, it is important to recall that most tribes in Darfur possess weapons, which are often duly licensed, to defend their land and cattle. Even if it were the case that the civilians attacked possessed weapons, this would not necessarily be an indication that they were rebels, hence lawful targets of attack, or otherwise taking active part in the hostilities. In addition, it should be noted that the Government of the Sudan did not claim to have found weapons in the villages that were attacked. Furthermore, many attacks occurred at times when civilians were asleep, or praying, and were then not in a position to “take direct part in the hostilities”. The mere presence of arms in a village is not sufficient to deprive civilians of their protected status as such.

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SECTION III: IDENTIFICATION OF THE POSSIBLE PERPETRATORS
OF INTERNATIONAL CRIMES

I.      GENERAL

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525. The Commission has [...] decided to withhold the names of these persons from the public domain. [...]
531. The Commission notes at the outset that it has identified ten (10) high-ranking central Government officials, seventeen (17) Government officials operating at the local level in Darfur, fourteen (14) members of the Janjaweed, as well as seven (7) members of the different rebel groups and three (3) officers of a foreign army (who participated in their individual capacity in the conflict), who may be suspected of bearing individual criminal responsibility for the crimes committed in Darfur.
532. The Commission’s mention of the number of individuals it has identified should not however be taken as an indication that the list is exhaustive. [...]

II.     MODES OF CRIMINAL LIABILITY FOR INTERNATIONAL CRIMES

1.     Perpetration or co-perpetration of international crimes

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2.     Joint criminal enterprise to commit international crimes

538. [...] International law also criminalizes conduct of all those who participated, although in varying degrees, in the commission of crimes, without performing the same acts [...].
540. There may be two principal modalities of participation in a joint criminal enterprise to commit international crimes. First, there may be a multitude of persons participating in the commission of a crime, who share from the outset a common criminal design (to kill civilians indiscriminately, to bomb hospitals, etc.). In this case, all of them are equally responsible under criminal law, although their role and function in the commission of the crime may differ (one person planned the attack, another issued the order to the subordinates to take all the preparatory steps necessary for undertaking the attack, others physically carried out the attack, and so on). The crucial factor is that the participants voluntarily took part in the common design and intended the result. Of course, depending on the importance of the role played by each participant, their position may vary at the level of sentencing [...].
541. There may be another major form of joint criminal liability. It may happen that while a multitude of persons share from the outset the same criminal design, one or more perpetrators commit a crime that had not been agreed upon or envisaged at the beginning, neither expressly nor implicitly, and therefore did not constitute part and parcel of the joint criminal enterprise. For example, a military unit [...] sets out to detain, contrary to international law, a number of enemy civilians; however, one of the servicemen, in the heat of military action, kills or tortures one of those civilians. If this is the case, the problem arises of whether the participants in the group other than the one who committed the crime not previously planned or envisaged, also bear criminal responsibility for such crime. As held in the relevant case law, ‘the responsibility for a crime other than the one agreed upon in the common plan arises only if, under the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group, and (ii) the accused willingly took that risk.’ In the example given above [...], a court would have to determine whether it was foreseeable that detention at gunpoint of enemy servicemen might result in death or torture.

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3.     Aiding and abetting international crimes

547. The notion of aiding and abetting in international criminal law. As pointed by international case law, aiding and abetting a crime involves that a person (the accessory) gives practical assistance (including the provision of arms), encouragement or moral support to the author of the main crime (the principal), and such assistance has a substantial effect on the perpetration of the crime. The subjective element or mens rea resides in the accessory having knowledge that his actions assist the perpetrator in the commission of the crime.

[...]

4.     Planning international crimes

551. Planning consists of devising, agreeing upon with others, preparing and arranging for the commission of a crime. As held by international case law, planning implies that “one or several persons contemplate designing the commission of a crime at both the preparatory and executory phases.”

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5.     Ordering international crimes

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6.     Failing to prevent or repress the perpetration of international crimes (superior responsibility)

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561. With regard to the position of rebels, it would be groundless to argue (as some rebel leaders did when questioned by the Commission) that the two groups of insurgents (SLA and JEM) were not tightly organized militarily, with the consequence that often military engagements conducted in the field had not been planned, directed or approved by the military leadership. Even assuming that this was true, commanders must nevertheless be held accountable for actions of their subordinates. The notion is widely accepted in international humanitarian law that each army, militia or military unit engaging in fighting either in an international or internal armed conflict must have a commander charged with holding discipline and ensuring compliance with the law. This notion is crucial to the very existence as well as enforcement of the whole body of international humanitarian law, because without a chain of command and a person in control of military units, anarchy and chaos would ensue and no one could ensure respect for law and order.
562. There is another and more specific reason why the political and military leadership of SLA and JEM may not refuse to accept being held accountable for any crime committed by their troops in the field, if such leadership refrained from preventing or repressing these crimes. This reason resides in the signing by that leadership of the various agreements with the Government of the Sudan. By entering into those agreements on behalf of their respective “movements” the leaders of each “movement” assumed full responsibility for conduct or misconduct of their combatants. [...]

SECTION IV: POSSIBLE MECHANISMS TO ENSURE ACCOUNTABILITY
FOR THE CRIMES COMMITTED IN DARFUR

I.      GENERAL: THE INADEQUACIES OF THE SUDANESE JUDICIAL CRIMINAL SYSTEM AND THE CONSEQUENT NEED TO PROPOSE OTHER CRIMINAL MECHANISMS

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II.     MEASURES TO BE TAKEN BY THE SECURITY COUNCIL

1.     Referral to the International Criminal Court

(i.)    Justification for suggesting the involvement of the ICC

[...]   [see hereafter, para. 648]

2.     Establishment of a Compensation Commission

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(i.)    Justification for suggesting the establishment of a Compensation Commission

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593. Serious violations of international humanitarian law and human rights law can entail not only the individual criminal liability of the perpetrator but also the international responsibility of the State (or state-like entity) on whose behalf the perpetrator was acting. This international responsibility involves that the State (or the state-like entity) must pay compensation to the victim.
594. At the time this international obligation was first laid down, and perhaps even in 1949, when the Geneva Conventions were drafted and approved, the obligation was clearly conceived of as an obligation of each contracting State towards any other contracting State concerned. In other words, it was seen as an obligation between States, with the consequence that (i) each relevant State was entitled to request reparation or compensation from the other State concerned, and (ii) its nationals could concretely be granted compensation for any damage suffered only by lodging claims with national courts or other organs of the State. National case law in some countries has held that the obligation at issue was not intended directly to grant rights to individual victims of war crimes or grave breaches. [...]
595. The emergence of human rights doctrines in the international community [...] had a significant impact on this area as well. In particular, the right to an effective remedy for any serious violation of human rights has been enshrined in many international treaties. Furthermore, the United Nations Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the General Assembly in 1985, provides that States should develop and make readily available appropriate rights and remedies for victims.
596. The right to an effective remedy also involves the right to reparation (including compensation), if the relevant judicial body satisfies itself that a violation of human rights has been committed; indeed, almost all the provisions cited above mention the right to reparation as the logical corollary of the right to an effective remedy.
597. As the then President of the ICTY, Judge C. Jorda, rightly emphasized in his letter of 12 October 2000 to the United Nations Secretary-General, the universal recognition and acceptance of the right to an effective remedy cannot but have a bearing on the interpretation of the international provisions on State responsibility for war crimes and other international crimes. These provisions may now be construed to the effect that the obligations they enshrine are assumed by States not only towards other contracting States but also vis-à-vis the victims, i.e. the individuals who suffered from those crimes. In other words, there has now emerged in international law a right of victims of serious human rights abuses (in particular, war crimes, crimes against humanity and genocide) to reparation (including compensation) for damage resulting from those abuses.
598. In light of the above [...] the proposition is warranted that at present, whenever a gross breach of human rights is committed which also amounts to an international crime, customary international law not only provides for the criminal liability of the individuals who have committed that breach, but also imposes an obligation on States of which the perpetrators are nationals, or for which they acted as de jure or de facto organs, to make reparation (including compensation) for the damage made.
599. Depending on the specific circumstances of each case, reparation may take the form of restitutio in integrum (restitution of the assets pillaged or stolen), monetary compensation, rehabilitation including medical and psychological care as well as legal and social services, satisfaction including a public apology with acknowledgment of the facts and acceptance of responsibility, or guarantees of non-repetition. As rightly stressed by the U.N. Secretary-General in 2004, it would also be important to combine various mechanisms or forms of reparation.
600. [...] A similar obligation is incumbent upon rebels for all crimes they may have committed, whether or not the perpetrators are identified and punished.

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III.    POSSIBLE MEASURES BY OTHER BODIES

604. While referral to the ICC is the main immediate measure to be taken to ensure accountability, the Commission wishes to highlight some other available measures, which are not suggested as possible substitutes for the referral of the situation of Darfur to the ICC.

1.     Possible role of national courts of States other than Sudan

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(i.)    Referral by the Security Council and the principle of complementarity

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608. [...] [A] referral by the Security Council is normally based on the assumption that the territorial State is not administering justice because it is unwilling or unable to do so. Therefore, the principle of complementarity will not usually be invoked in casu with regard to that State.
609. The Commission’s recommendation for a Security Council referral to the ICC is based on the correct assumption that Sudanese courts are unwilling and unable to prosecute the numerous international crimes perpetrated in Darfur since 2003. The Commission acknowledges that the final decision in this regard lies however with the ICC Prosecutor.

(ii.)   The notion of “universal jurisdiction”

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613. It seems indisputable that a general rule of international law exists authorising States to assert universal jurisdiction over war crimes, as well as crimes against humanity and genocide. The existence of this rule is proved by the convergence of States’ pronouncements, national pieces of legislation, as well as by case law.
614. However, the customary rules in question, construed in the light of general principles currently prevailing in the international community, arguably make the exercise of universal jurisdiction subject to two major conditions. First, the person suspected or accused of an international crime must be present on the territory of the prosecuting State. Second, before initiating criminal proceedings this State should request the territorial State (namely, the State where the crime has allegedly been perpetrated) or the State of active nationality (that is, the State of which the person suspected or indicted is a national) whether it is willing to institute proceedings against that person and hence prepared to request his or her extradition. Only if the State or States in question refuse to seek the extradition, or are patently unable or unwilling to bring the person to justice, may the State on whose territory the person is present initiate proceedings against him or her.
615. In the case of Darfur the second condition would not need to be applied, for, as pointed out above, Sudanese courts and other judicial authorities have clearly shown that they are unable or unwilling to exercise jurisdiction over the crimes perpetrated in Darfur.

(iii.)  Exercise of universal jurisdiction and the principle of complementarity of the ICC

616. [...] The Commission takes the view that complementarity would also apply to the relations between the ICC and those national courts of countries other than Sudan. In other words, the ICC should defer to national courts other than those of Sudan which genuinely undertake proceedings on the basis of universal jurisdiction. [...] [T]here is [...] no reason to doubt a priori the ability or willingness of any other State asserting either universal jurisdiction or jurisdiction based on any of the basis for extra-territorial jurisdiction mentioned above. The principle of complementarity, one of the mainstays of the ICC system, should therefore operate fully in cases of assertion of universal jurisdiction over a crime which had been referred to the ICC by the Security Council.

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I.    Qualification of the conflict and applicable law

1. How would you qualify the conflict? If Sudan had been a party to it, would Protocol II have applied? Did the non-applicability of Protocol II have any impact on the Commission’s conclusions?
2. Are the rebels bound by exactly the same rules as the government? In the field of international humanitarian law (IHL)? Of international criminal law? Of international human rights law?
3. Which human rights norms apply? In which circumstances may the government derogate from some norms? What are these norms? Are certain norms partially derogable? Did the Sudanese government actually derogate from any of its obligations?
4. 1. How does the Commission identify customary IHL? Does it look into the actual practice of the parties to non-international armed conflicts? Should it have done so?
   2. On what kind of practice are the customary rules listed in para. 166 based? Are you able to identify different categories of such rules according to the supporting practice mentioned by the Commission in the footnotes?
   3. How can the prohibition of attacks on civilian objects be customary if it is not mentioned in Protocol II? Is the Commission’s reference to the provisions of the Geneva Conventions on grave breaches relevant?

II.   Violations of IHL

5. Is the determination of a systematic pattern of violations relevant for IHL? For international criminal law? To identify war crimes? To identify crimes against humanity? To identify genocide?
6. Do the irrefutable facts of massive population displacements and large-scale destruction of villages necessarily indicate a violation of IHL? In the case of Darfur, which facts indicate an obvious violation of IHL?
7. Could the attacks on villages described in paras 240-251 possibly be justified if some or many rebels were present in those villages? Is the government correct in stating that when rebels were within a certain village, the latter became a military objective (para. 249)?
8. Are the obligations to take precautionary measures and to respect the proportionality principle as prescribed in Art. 57 of Protocol I the same in international and in non-international armed conflicts? Why? Because they can be derived from the actual practice of belligerents? Because they are necessary in order to comply with the substantive provisions?
9. Is the Commission correct in holding (paras 291-292) that even civilians used by rebels as shields or possessing weapons may not be killed? In which circumstances would civilians lose their protection?
10. Can the aim to deprive rebels of the support they receive from the civilian population justify the forced displacement of that population?
11. Do the instances of rape and sexual violence mentioned in the report raise any question regarding the interpretation or adequacy of the applicable IHL?
12. Must every detention in non-international armed conflicts be subject to control by a court? In international armed conflicts?
13. Are police forces legitimate targets of attacks: in non-international armed conflicts? In international armed conflicts? What could justify a different status of police forces in the two kinds of armed conflicts?

III.   Repression of violations

14. Which elements of the crime of genocide were fulfilled in Darfur? Which elements were not fulfilled? Why could the genocidal intent not be deduced from the pattern of violations?
15. What are the modes of criminal liability for international crimes? For which crimes may a participant in the commission of international crimes be held liable? Only for those covered by the common purpose, or also for those committed by some other participants but that go beyond the common purpose?
16. May leaders of rebel groups escape command responsibility more easily than leaders of government armed forces?
17. Why should the perpetrators of international crimes committed in Darfur be brought before the International Criminal Court (ICC)? How was this achieved?
18. 1. When may third States exercise universal jurisdiction over international crimes? Even in non-international armed conflicts? Do they have an obligation to exercise such jurisdiction?
    2. When a case is referred to it by the Security Council, does the ICC have precedence over the obligation of third States to exercise universal jurisdiction over international crimes?
19. Who must pay compensation for violations of IHL? Who has the right to receive such compensation? How is it that the obligation to pay such compensation also exists for non-international armed conflicts, even though in treaties it is only foreseen for international armed conflicts?