collega - Károli Gáspár Református Egyetem

The International Criminal Court and the situation in Darfur, the Sudan
The estimated number of conflictaffected
populations in Darfur combined
with the refugees in Chad
(1,65 million IDPs, 627,000 otherwise
conflict affected persons, and 203,051
refugees) reaches the staggering figure
of almost 2,5 million persons
affected in one way or another – the
vast majority by being displaced
from their homes.
Destruction of villages
While the massive displacement of
population in Darfur became the
face of the humanitarian crisis in the
region, the widespread destruction
of villages constitutes another
irrefutable fact. According to some
estimates over 700 villages in all the
three states of Darfur have been
completely or partially destroyed. 7
The Commission further received
information that the police had
made an assessment of the destruction
and recorded the number of
destroyed villages at over 2000.
Action of sudanese bodies to stop
and remedy violations
The Government of the Sudan was
put on notice concerning the alleged
serious crimes that are taking place
in Darfur. It was requested not only
by the international community, but
more importantly by its own people,
to put an end to the violations and to
bring the perpetrators to justice.
While several Government officials
acknowledged that serious violations
of human rights and humanitarian
law took place in Darfur, they
maintained however that they have
been acting responsibly and in good
faith to stop the violence and address
the crisis. Some argued that while it
was sometimes argued that the
Government was unable to deal
with all the problems, nobody could
claim that it was unwilling.
The criminal liability
for international crimes
1. Perpetration or co-perpetration of
international crimes
Under international criminal law, all
those who, individually or jointly,
take a conduct considered prohibited
and criminalized, bear individual
criminal liability for their conduct, if
the requisite mens rea is present.
Furthermore, a person may “commit”
a crime by omission, where he
or she has a duty to act. 8
(i.) The Government of the Sudan
The Commission has identified six
(6) officials of the Government of the
Sudan who participated directly in
the commission of an international
crime in Darfur. Five of these individuals,
members of the armed
forces operating in Darfur or civilian
officials of the local Government in
one of the three Darfur States, have
led or otherwise participated in
attacks against civilians, leading to
forcible displacement of the affected
villagers from their homes. These
individuals may be responsible,
under the doctrine of joint criminal
enterprise, for the crimes committed
by others during attacks.
(ii.) Janjaweed
The Commission has collected reliable
material tending to show that fourteen
(14) members of the Janjaweed
have participated directly in the commission
of an international crime in
Darfur. These individuals have been
identified by eyewitnesses when participating
in an attack on a village,
which often involved burning, looting,
killing and sometimes rape.
(iii.) Rebels
Three (3) members of the rebel groups
have been seen by eyewitnesses as
having participated in an attack on a
village, where looting, abduction,
destruction and killing occurred.
(iv.) Foreign army officers
(participating in their
personal capacity)
Three (3) foreign army officers have
been seen by eyewitnesses as having
participated in an attack on a village,
where looting, destruction and
killing occurred.
Conclusions and recommendations
The people of Darfur have suffered
enormously during the last few
years. Their ordeal must remain at
the centre of international attention.
They have been living a nightmare of
violence and abuse that has stripped
them of the very little they had.
Thousands were killed, women were
raped, villages were burned, homes
destroyed, and belongings looted.
About 1,8 million were forcibly displaced
and became refugees or internally-displaced
persons. They need
protection.
Establishing peace and ending the
violence in Darfur are essential for
improving the human rights situation.
But real peace cannot be established
without justice. The Sudanese
justice system has unfortunately
demonstrated that it is unable or
unwilling to investigate and prosecute
the alleged perpetrators of the
war crimes and crimes against
humanity committed in Darfur.
The commission’s recommendations
concerning measures designed
to ensure that those responsible
are held accountable
1. Measures that should be taken by
the Security Council
With regard to the judicial accountability
mechanism, the Commission
strongly recommends that the
Security Council should refer the situation
in Darfur to the International
Criminal Court, pursuant to Article
13(b) of the Statute of the Court.
Many of the alleged crimes documented
in Darfur have been widespread
and systematic. They meet all
the thresholds of the Rome Statute
for the International Criminal Court.
The Sudanese justice system has
demonstrated its inability and
unwillingness to investigate and
prosecute the perpetrators of these
crimes.
7 Most sources assess that 600 villages and hamlets have been completely destroyed, while an additional 100 to 200 villages have been partially
destroyed.
8 See Rutaganda, ICTR Trial Chamber, § 41; Kunarac, Kovac & Vukoviæ, ICTY Trial Chamber, § 390, citing Tadiæ, ICTY Appeals Chamber, § 188.
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