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25Jan05

Report of the International Commission of Inquiry on Darfur
to the United Nations Secretary-General.

Index

Executive Summary

Introduction

Section I

Section II

Section III

Section IV

Section V

Annex 1. Curricula vitae of Commission’s members
Annex 2. List of official meetings with the Government of the Sudna an the SLM/A and the JEM
Annex 3: Places visited in the Sudan
Annex 4. List of public reports on Darfur consulted by the Commission
Annex 5. Overview of the activities by the investigative teams of the Commission

Pursuant to Security Council Resolution 1564 of 18 September 2004

International Commission of Inquiry on Darfur
Report to the Secretary-General
Geneva, 25 January 2005

Executive Summary

Acting under Chapter VII of the United Nations Charter, on 18 September 2004 the Security Council adopted resolution 1564 requesting, inter alia, that the Secretary-General ‘rapidly establish an international commission of inquiry in order immediately to investigate reports of violations of international humanitarian law and human rights law in Darfur by all parties, to determine also whether or not acts of genocide have occurred, and to identify the perpetrators of such violations with a view to ensuring that those responsible are held accountable’.

In October 2004, the Secretary General appointed Antonio Cassese (Chairperson), Mohamed Fayek, Hina Jilani, Dumisa Ntsebeza and Therese Striggner-Scott as members of the Commission and requested that they report back on their findings within three months. The Commission was supported in its work by a Secretariat headed by an Executive Director, Ms. Mona Rishmawi, as well as a legal research team and an investigative team composed of investigators, forensic experts, military analysts, and investigators specializing in gender violence, all appointed by the Office of the United Nations High Commissioner for Human Rights. The Commission assembled in Geneva and began its work on 25 October 2004.

In order to discharge its mandate, the Commission endeavoured to fulfil four key tasks: (1) to investigate reports of violations of international humanitarian law and human rights law in Darfur by all parties; (2) to determine whether or not acts of genocide have occurred; (3) to identify the perpetrators of violations of international humanitarian law and human rights law in Darfur; and (4) to suggest means of ensuring that those responsible for such violations are held accountable. While the Commission considered all events relevant to the current conflict in Darfur, it focused in particular on incidents that occurred between February 2003 and mid-January 2005.

The Commission engaged in a regular dialogue with the Government of the Sudan throughout its mandate, in particular through meetings in Geneva and in the Sudan, as well as through the work of its investigative team. The Commission visited the Sudan from 7-21 November 2004 and 9-16 January 2005, including travel to the three Darfur States. The investigative team remained in Darfur from November 2004 through January 2005. During its presence in the Sudan, the Commission held extensive meetings with representatives of the Government, the Governors of the Darfur States and other senior officials in the capital and at provincial and local levels, members of the armed forces and police, leaders of rebel forces, tribal leaders, internally displaced persons, victims and witnesses of violations, NGOs and United Nations representatives.

The Commission submitted a full report on its findings to the Secretary-General on 25 January 2005. The report describes the terms of reference, methodology, approach and activities of the Commission and its investigative team. It also provides an overview of the historical and social background to the conflict in Darfur. The report then addresses in detail the four key tasks referred to above, namely the 2 Commission’s findings in relation to: i) violations of international human rights and humanitarian law by all parties; ii) whether or not acts of genocide have taken place; iii) the identification of perpetrators; and iv) accountability mechanisms. These four Sections are briefly summarized below.

I. Violations of international human rights law and international humanitarian law.

In accordance with its mandate to ‘investigate reports of violations of human rights law and international humanitarian law’, the Commission carefully examined reports from different sources including Governments, inter-governmental organizations, United Nations bodies and mechanisms, as well as nongovernmental organizations.

The Commission took as the starting point for its work two irrefutable facts regarding the situation in Darfur. Firstly, according to United Nations estimates there are 1,65 million internally displaced persons in Darfur, and more than 200,000 refugees from Darfur in neighbouring Chad. Secondly, there has been large-scale destruction of villages throughout the three states of Darfur. The Commission conducted independent investigations to establish additional facts and gathered extensive information on multiple incidents of violations affecting villages, towns and other locations across North, South and West Darfur. The conclusions of the Commission are based on the evaluation of the facts gathered or verified through its investigations.

Based on a thorough analysis of the information gathered in the course of its investigations, the Commission established that the Government of the Sudan and the Janjaweed are responsible for serious violations of international human rights and humanitarian law amounting to crimes under international law. In particular, the Commission found that Government forces and militias conducted indiscriminate attacks, including killing of civilians, torture, enforced disappearances, destruction of villages, rape and other forms of sexual violence, pillaging and forced displacement, throughout Darfur. These acts were conducted on a widespread and systematic basis, and therefore may amount to crimes against humanity. The extensive destruction and displacement have resulted in a loss of livelihood and means of survival for countless women, men and children. In addition to the large scale attacks, many people have been arrested and detained, and many have been held incommunicado for prolonged periods and tortured. The vast majority of the victims of all of these violations have been from the Fur, Zaghawa, Massalit, Jebel, Aranga and other so-called ‘African’ tribes.

In their discussions with the Commission, Government of the Sudan officials stated that any attacks carried out by Government armed forces in Darfur were for counter-insurgency purposes and were conducted on the basis of military imperatives. However, it is clear from the Commission’s findings that most attacks were deliberately and indiscriminately directed against civilians. Moreover even if rebels, or persons supporting rebels, were present in some of the villages – which the Commission considers likely in only a very small number of instances - the attackers did not take precautions to enable civilians to leave the villages or otherwise be shielded from attack. Even where rebels may have been present in villages, the impact of the attacks on civilians shows that the use of military force was manifestly disproportionate to any threat posed by the rebels.

The Commission is particularly alarmed that attacks on villages, killing of civilians, rape, pillaging and forced displacement have continued during the course of the Commission’s mandate. The Commission considers that action must be taken urgently to end these violations.

While the Commission did not find a systematic or a widespread pattern to these violations, it found credible evidence that rebel forces, namely members of the SLA and JEM, also are responsible for serious violations of international human rights and humanitarian law which may amount to war crimes. In particular, these violations include cases of murder of civilians and pillage.

II. Have acts of genocide occurred?

The Commission concluded that the Government of the Sudan has not pursued a policy of genocide. Arguably, two elements of genocide might be deduced from the gross violations of human rights perpetrated by Government forces and the militias under their control. These two elements are, first, the actus reus consisting of killing, or causing serious bodily or mental harm, or deliberately inflicting conditions of life likely to bring about physical destruction; and, second, on the basis of a subjective standard, the existence of a protected group being targeted by the authors of criminal conduct. However, the crucial element of genocidal intent appears to be missing, at least as far as the central Government authorities are concerned. Generally speaking the policy of attacking, killing and forcibly displacing members of some tribes does not evince a specific intent to annihilate, in whole or in part, a group distinguished on racial, ethnic, national or religious grounds. Rather, it would seem that those who planned and organized attacks on villages pursued the intent to drive the victims from their homes, primarily for purposes of counter-insurgency warfare.

The Commission does recognise that in some instances individuals, including Government officials, may commit acts with genocidal intent. Whether this was the case in Darfur, however, is a determination that only a competent court can make on a case by case basis.

The conclusion that no genocidal policy has been pursued and implemented in Darfur by the Government authorities, directly or through the militias under their control, should not be taken in any way as detracting from the gravity of the crimes perpetrated in that region. International offences such as the crimes against humanity and war crimes that have been committed in Darfur may be no less serious and heinous than genocide.

III. Identification of perpetrators.

The Commission has collected reliable and consistent elements which indicate the responsibility of some individuals for serious violations of international human rights law and international humanitarian law, including crimes against humanity or war crimes, in Darfur. In order to identify perpetrators, the Commission decided that there must be ‘a reliable body of material consistent with other verified circumstances, which tends to show that a person may reasonably be suspected of being involved in the commission of a crime.’ The Commission therefore makes an assessment of likely suspects, rather than a final judgment as to criminal guilt.

Those identified as possibly responsible for the above-mentioned violations consist of individual perpetrators, including officials of the Government of Sudan, members of militia forces, members of rebel groups, and certain foreign army officers acting in their personal capacity. Some Government officials, as well as members of militia forces, have also been named as possibly responsible for joint criminal enterprise to commit international crimes. Others are identified for their possible involvement in planning and/or ordering the commission of international crimes, or of aiding and abetting the perpetration of such crimes. The Commission also has identified a number of senior Government officials and military commanders who may be responsible, under the notion of superior (or command) responsibility, for knowingly failing to prevent or repress the perpetration of crimes. Members of rebel groups are named as suspected of participating in a joint criminal enterprise to commit international crimes, and as possibly responsible for knowingly failing to prevent or repress the perpetration of crimes committed by rebels.

The Commission has decided to withhold the names of these persons from the public domain. This decision is based on three main grounds: 1) the importance of the principles of due process and respect for the rights of the suspects; 2) the fact that the Commission has not been vested with investigative or prosecutorial powers; and 3) the vital need to ensure the protection of witnesses from possible harassment or intimidation. The Commission instead will list the names in a sealed file that will be placed in the custody of the UN Secretary-General. The Commission recommends that this file be handed over to a competent Prosecutor (the Prosecutor of the International Criminal Court, according to the Commission’s recommendations), who will use that material as he or she deems fit for his or her investigations. A distinct and very voluminous sealed file, containing all the evidentiary material collected by the Commission, will be handed over to the High Commissioner for Human Rights. This file should be delivered to a competent Prosecutor.

IV. Accountability mechanisms.

The Commission strongly recommends that the Security Council immediately refer the situation of Darfur to the International Criminal Court, pursuant to article 13(b) of the ICC Statute. As repeatedly stated by the Security Council, the situation constitutes a threat to international peace and security. Moreover, as the Commission has confirmed, serious violations of international human rights law and humanitarian law by all parties are continuing. The prosecution by the ICC of persons allegedly responsible for the most serious crimes in Darfur would contribute to the restoration of peace in the region.

The alleged crimes that have been documented in Darfur meet the thresholds of the Rome Statute as defined in articles 7 (1), 8 (1) and 8 (f). There is an internal armed conflict in Darfur between the governmental authorities and organized armed groups. A body of reliable information indicates that war crimes may have been committed on a large-scale, at times even as part of a plan or a policy. There is also a wealth of credible material which suggests that criminal acts were committed as part of widespread or systematic attacks directed against the civilian population, with knowledge of the attacks. In the opinion of the Commission therefore, these may amount to crimes against humanity.

The Sudanese justice system is unable and unwilling to address the situation in Darfur. This system has been significantly weakened during the last decade. Restrictive laws that grant broad powers to the executive have undermined the effectiveness of the judiciary, and many of the laws in force in Sudan today contravene basic human rights standards. Sudanese criminal laws do not adequately proscribe war crimes and crimes against humanity, such as those carried out in Darfur, and the Criminal Procedure Code contains provisions that prevent the effective prosecution of these acts. In addition, many victims informed the Commission that they had little confidence in the impartiality of the Sudanese justice system and its ability to bring to justice the perpetrators of the serious crimes committed in Darfur. In any event, many have feared reprisals in the event that they resort to the national justice system.

The measures taken so far by the Government to address the crisis have been both grossly inadequate and ineffective, which has contributed to the climate of almost total impunity for human rights violations in Darfur. Very few victims have lodged official complaints regarding crimes committed against them or their families, due to a lack of confidence in the justice system. Of the few cases where complaints have been made, most have not been properly pursued. Furthermore, procedural hurdles limit the victims’ access to justice. Despite the magnitude of the crisis and its immense impact on civilians in Darfur, the Government informed the Commission of very few cases of individuals who have been prosecuted, or even disciplined, in the context of the current crisis.

The Commission considers that the Security Council must act not only against the perpetrators but also on behalf of the victims. It therefore recommends the establishment of a Compensation Commission designed to grant reparation to the victims of the crimes, whether or not the perpetrators of such crimes have been identified.

It further recommends a number of serious measures to be taken by the Government of the Sudan, in particular (i) ending the impunity for the war crimes and crimes against humanity committed in Darfur; (ii) strengthening the independence and impartiality of the judiciary, and empowering courts to address human rights violations; (iii) granting full and unimpeded access by the International Committee of the Red Cross and United Nations human rights monitors to all those detained in relation to the situation in Darfur; (iv) ensuring the protection of all the victims and witnesses of human rights violations; (v) enhancing the capacity of the Sudanese judiciary through the training of judges, prosecutors and lawyers; (vi) respecting the rights of IDPs and fully implementing the Guiding Principles on Internal Displacement, particularly with regard to facilitating the voluntary return of IDPs in safety and dignity; (vii) fully cooperating with the relevant human rights bodies and mechanisms of the United Nations and the African Union; and (viii) creating, through a broad consultative process, a truth and reconciliation commission once peace is established in Darfur.

The Commission also recommends a number of measures to be taken by other bodies to help break the cycle of impunity. These include the exercise of universal jurisdiction by other States, re-establishment by the Commission on Human Rights of the mandate of the Special Rapporteur on human rights in Sudan, and public and periodic reports on the human rights situation in Darfur by the High Commissioner for Human Rights.

Introduction

I. The role of the Commission of Inquiry

1. Establishment of the Commission

1. The International Commission of Inquiry on Darfur (henceforth the Commission) was established pursuant to United Nations Security Council resolution 1564 (2004), adopted on 18 September 2004. The resolution, passed under Chapter VII of the United Nations Charter, requested the Secretary-General rapidly to set up the Commission. In October 2004 the Secretary-General appointed a five member body (Mr. Antonio Cassese, from Italy; Mr. Mohammed Fayek, from Egypt; Ms Hina Jilani, from Pakistan; Mr. Dumisa Ntsebeza, from South Africa, and Ms Theresa Striggner-Scott, from Ghana), and designated Mr. Cassese as its Chairman. The Secretary-General decided that the Commission’s staff should be provided by the Office of the High Commissioner for Human Rights. Ms Mona Rishmawi was appointed Executive Director of the Commission and head of its staff. The Commission assembled in Geneva and began its work on 25 October 2004. The Secretary-General requested the Commission to report to him within three months, i.e. by 25 January 2005.

2. Terms of reference

2. In § 12, resolution 1564 (2004) sets out the following tasks for the Commission: “to investigate reports of violations of international humanitarian law and human rights law in Darfur by all parties”; “to determine also whether or not acts of genocide have occurred”; and “to identify the perpetrators of such violations”; “with a view to ensuring that those responsible are held accountable”. Under the resolution, these tasks must be discharged “immediately”.

3. The first of the above tasks implies that the Commission, rather than investigating alleged violations, must investigate “reports” of such violations committed by “all parties”. This means that it is mandated to establish facts relating to possible violations of international human rights and humanitarian law committed in Darfur.. In this respect the Commission must act as a fact-finding body, beginning with an assessment of information contained in the various reports made by other bodies including Governments, United Nations bodies, organs of other intergovernmental organizations, as well as NGOs.

4. It also falls to the Commission to characterize, from the viewpoint of international criminal law, the violations of international human rights law and humanitarian law it may establish. This legal characterization is implicitly required by the further tasks of the Commission set out by the Security Council, namely (i) to establish whether those violations amount to genocide, and (ii) to identify the perpetrators. Clearly, the Commission may not be in a position to fulfil these tasks if it has not previously established (a) whether the violations amount to international crimes, and, if so, (b) under what categories of crimes they fall (war crimes, crimes against humanity, genocide, or other crimes). This classification is required not only for the purpose of determining whether those crimes amount to genocide, but also for the process of identifying the perpetrators. In order to name particular persons as suspected perpetrators, it is necessary to define the international crimes for which they might be held responsible.

5. The second task with which the Security Council entrusted the Commission is that of legally characterizing the reported violations with a view to ascertaining whether they amount to genocide.

6. The third task is that of “identifying the perpetrators of violations” “with a view to ensuring that those responsible are held accountable”. This requires the Commission not only to identify the perpetrators, but also to suggest possible mechanisms for holding those perpetrators accountable. The Commission therefore must collect a reliable body of material that indicate which individuals may be responsible for violations committed in Darfur and who should therefore be brought to trial with a view to determining their liability. The Commission has not been endowed with the powers proper to a prosecutor (in particular, it may not subpoena witnesses, or order searches or seizures, nor may it request a judge to issue arrest warrants against suspects). It may rely only upon the obligation of the Government of the Sudan and the rebels to cooperate. Its powers are therefore limited by the manner in which the Government and the rebels fulfil this obligation.

7. In order to discharge its mandate in conformity with the international law that it is bound to apply, the Commission has to interpret the word “perpetrators” as covering the executioners or material authors of international crimes, as well as those who may have participated in the commission of such crimes under the notion of joint criminal enterprise, or ordered their perpetration, or aided or abetted the crimes, or in any other manner taken part in their perpetration. The Commission has included in this inquiry those who may be held responsible for international crimes, under the notion of superior responsibility, because they failed to prevent or repress the commission of such crimes although they a) had (or should have had) knowledge of their commission, and b) wielded control over the persons who perpetrated them. This interpretation is justified by basic principles of international criminal law, which provide that individual criminal responsibility arises when a person materially commits a crime, as well as when he or she engages in other forms or modalities of criminal conduct.

8. Furthermore, the language of the Security Council resolution makes it clear that the request to “identify perpetrators” is “with a view to ensuring that those responsible are held accountable”. In § 7 the resolution reiterates its request to the Government of the Sudan “to end the climate of impunity in Darfur” and to bring to justice “all those responsible, including members of popular defence forces and Janjaweed militias” for violations of human rights law and international humanitarian law (emphasis added). Furthermore, the tasks of the Commission include that of “ensuring that those responsible are held accountable”. Thus, the Security Council has made it clear that it intends for the Commission to identify all those responsible for alleged international crimes in Darfur. This is corroborated by an analysis of the objective of the Security Council: if this body aimed at putting an end to atrocities, why should the Commission confine itself to the material perpetrators, given that those who bear the greatest responsibility normally are the persons who are in command, and who either plan or order crimes, or knowingly condone or acquiesce in their perpetration?

9. This interpretation is also in keeping with the wording of the same paragraph in other official languages (for instance, the French text speaks of “auteurs de ces violations” and the Spanish text of “los autores de tales transgresiones”). It is true that in many cases a superior may not be held to have taken part in the crimes of his or her subordinates, in which case he or she would not be regarded as a perpetrator or author of those crimes. In those instances where criminal actions by subordinates are isolated episodes, the superior may be responsible only for failing to “submit the matter to the competent authorities for investigation and prosecution” [1]. In such instances, unquestionably the superior may not be considered as the author of the crime perpetrated by his or her subordinates. However, when crimes are committed regularly and on a large scale, as part of a pattern of criminal conduct, the responsibility of the superior is more serious. By failing to stop the crimes and to punish the perpetrators, he or she in a way takes part in their commission.

10. The fourth task assigned to the Commission therefore is linked to the third and is aimed at ensuring that “those responsible are held accountable”. To this effect, the Commission intends to propose measures for ensuring that those responsible for international crimes in Darfur are brought to justice.

11. As is clear from the relevant Security Council resolution, the Commission is mandated to consider only the situation in the Darfur region of the Sudan. With regard to the time-frame, the Commission’s mandate is inferred by the resolution. While the Commission considered all events relevant to the current conflict in Darfur, it focused in particular on incidents that occurred between February 2003, when the magnitude, intensity and consistency of incidents noticeably increased, until mid-January 2005 just before the Commission was required to submit its report.

3. Working methods

12. As stated above, the Commission started its work in Geneva on 25 October 2004. It immediately discussed and agreed upon its terms of reference and methods of work. On 28 October 2004 it sent a Note Verbale to Member States and intergovernmental organizations, and on 2 November 2004 it sent a letter to non-governmental organizations, providing information about its mandate and seeking relevant information. It also posted information on its mandate, composition and contact details on the web-site of the Office of the High Commissioner for Human Rights (www.ohchr.org).

13. The Commission agreed at the outset that it would discharge its mission in strict confidentiality. In particular, it would limit its contacts with the media to providing factual information about its visits to the Sudan. The Commission also agreed that its working methods should be devised to suit each of its different tasks.

14. Thus, with regard to its first and second tasks, the Commission decided to examine existing reports on violations of international human rights and humanitarian law in Darfur, and to verify the veracity of these reports through its own findings, as well as to establish further facts. Although clearly it is not a judicial body, in classifying the facts according to international criminal law, the Commission adopted an approach proper to a judicial body. It therefore collected all material necessary for such a legal analysis.

15. The third task, that of “identifying perpetrators”, posed the greatest challenge. The Commission discussed the question of the standard of proof that it would apply in its investigations. In view of the limitations inherent in its powers, the Commission decided that it could not comply with the standards normally adopted by criminal courts (proof of facts beyond a reasonable doubt) [2], or with that used by international prosecutors and judges for the purpose of confirming indictments (that there must be a prima facie case) [3]. It concluded that the most appropriate standard was that requiring a reliable body of material consistent with other verified circumstances, which tends to show that a person may reasonably be suspected of being involved in the commission of a crime. [4]The Commission would obviously not make final judgments as to criminal guilt; rather, it would make an assessment of possible suspects [5] that would pave the way for future investigations, and possible indictments, by a prosecutor.

16. The Commission also agreed that, for the purpose of “identifying the perpetrators”, it would interview witnesses, officials and other persons occupying positions of authority, as well as persons in police custody or detained in prison; examine documents; and visit places (in particular, villages or camps for IDPs, as well as mass grave sites) where reportedly crimes were perpetrated.

17. For the fulfilment of the fourth task the Commission deemed it necessary to make a preliminary assessment of the degree to which the Sudanese criminal justice system has been able and willing to prosecute and bring to trial alleged authors of international crimes perpetrated in Darfur, and then consider the various existing international mechanisms available. It is in the light of these evaluations that it has made recommendations on the most suitable measures.

4. Principal constraints under which the Commission has operated

18. There is no denying that while the various tasks assigned to the Commission are complex and unique, the Commission was called upon to discharge them under difficult conditions. First of all, it operated under serious time constraints. As pointed out above, given that the Security Council had decided that the Commission must act urgently, the Secretary-General requested that the Commission report to him within three months of its establishment. The fulfilment of its complex tasks, in particular those concerning the finding of serious violations and the identification of perpetrators, required the Commission to work intensely and under heavy time pressure.

19. Furthermore, both its fact-finding mission and its task of identifying perpetrators would have benefited from the assistance of a great number of investigators, lawyers, military analysts and forensic experts. Given the scale and magnitude of incidents related to the conflict in Darfur, the establishment of facts and the collection of credible probative elements for the identification of suspected perpetrators are difficult tasks, which are not to be taken lightly. The Commission’s budget did not allow for more than thirteen such experts. Having said this, the Commission nevertheless was able to gather a reliable and consistent body of material with respect to both the violations that occurred and the persons who might be suspected of bearing criminal responsibility for their perpetration. The Commission thus considers that it has been able to take a first step towards accountability.

5. Brief account of the Commission’s visits to the Sudan

20. The Commission first visited the Sudan from 8 to 20 November 2004. It met with a number of high level officials including the First Vice-President, the Minister of Justice, the Minister for Foreign Affairs, the Minister of Interior, the Minister of Defence, the Minister of Federal Affairs, the Deputy Chief Justice, the Speaker of Parliament, the Deputy Head of the National Security and Intelligence Service, and members of the Rape Committees. It met with representatives of non-governmental organizations, political parties, and interested foreign government repesentatives in the Sudan. In addition, it held meetings with the United Nations Advance Mission in the Sudan (UNAMIS) and other United Nations representatives in the country. The Commission also visited Kober prison (See Annex 2 for a full list of meetings).

21. From 11 to 17 November 2004, the Commission visited Darfur. It divided itself into three teams, each focusing on one of the three states of Darfur. Each team met with the State Governor (Wali) and senior officials, visited camps of internally displaced persons, and spoke with witnesses and to the tribal leaders. In addition, the West Darfur team visited refugee camps in Chad and the South Darfur team visited the National Security Detention Center in Nyala.

22. The Commission’s investigation team was led by a Chief Investigator and included four investigators, two female investigators specializing in gender violence, four forensic experts and two military analysts. Investigation team members interviewed witnesses and officials in Khartoum and accompanied the Commissioners on their field mission to the three Darfur States. The investigation team was then divided into three sub-teams which were deployed to North, South and West Darfur. [6]

23. One Commission member and Commission staff, acting on behalf of the Commission visited Eritrea from 25-26 November 2004. They met with representatives of two rebel groups: The Sudan Liberation Movement/Army (SLM/A) and the Justice and Equality Movement (JEM). They also met with former Sudanese officials who are now residing in Eritrea. Two members of the Commission, accompanied by two staff members, travelled to Addis Ababa from 30 November to 3 December 2004. The objectives were: to obtain a thorough assessment from the African Union (AU) on the situation in Darfur, the African Mission in the Sudan (AMIS) and the Inter-Sudanese talks in Abuja; and to discuss with the AU leadership ways and modalities for the Commission to strengthen its working cooperation. The delegation met with high level officials of the AU, including the newly appointed Special Representative for the Sudan. The delegation also had the opportunity to meet extensively with the Chair and some key members of the AU Integrated Task Force on Darfur.

24. A second visit to the Sudan took place between 9 and 16 January 2004. During this visit, the Commission focused on interviewing witnesses particularly in detention centres, and also met with some officials, members of civil society, and UN staff in Khartoum.

25. With the assistance of a team of five legal researchers and one political affairs officer, who were lead by the Executive Director, the Commission analysed the information provided. It reviewed and analysed published, public reports on Darfur, other reports that were brought to the attention of the Commission in response to its requests for information, as well as other types of information. In order to manage the more than 20,000 pages of material it received, the Commission developed a database in which it recorded bibliographic and evidentiary details. The incidents’ analysis carried out by the research team also was recorded in the database as a way to facilitate swift access by the Commissioners and staff to resource material and source information.

6. Cooperation of the Sudanese authorities and the rebels

26. Security Council resolution 1564 (2004) was adopted under Chapter VII of the United Nations Charter. The Security Council (SC) had previously determined (already in resolution 1556 (2004), at preambular § 21) that the situation in the Sudan constitutes a “threat to international peace and security and to stability in the region” under Article 39 of the United Nations Charter.

27. § 12 of the resolution, which requests the Secretary-General to establish an international commission of inquiry, also “calls on all parties to cooperate fully with such a commission”. The Commission considers that, by the very nature of the Commission and its mandate, both the Government of the Sudan and the rebels are under a bona fide obligation to cooperate with it in the discharge of its various functions. In any event, both the Government of the Sudan and the rebel groups have willingly accepted to cooperate with the Commission.

    (i.) Criteria for appraising cooperation

28. The Commission set forth the following criteria for evaluating the degree of cooperation of both the Government and the rebels: (i) freedom of movement throughout the territory of the Sudan; (ii) unhindered access to all places and establishments, and freedom to meet and interview representatives of governmental and local authorities, military authorities, community leaders, non-governmental organizations and other institutions, and any such person whose testimony is considered necessary for the fulfilment of its mandate; (iii) free access to all sources of information, including documentary material and physical evidence; (iv) appropriate security arrangements for the personnel and documents of the Commission; (v) protection of victims and witnesses and all those who appear before the Commission in connection with the inquiry and, in particular, guarantee that no such person would, as a result of such appearance, suffer harassment, threats, acts of intimidation, ill-treatment and reprisals; and (vi) privileges, immunities and facilities necessary for the independent conduct of the inquiry. A letter was sent to the Government outlining these criteria.

    (ii.) Cooperation of the Government

29. As mentioned above, since its inception the Commission has engaged in a constant dialogue with the Government of the Sudan through meetings in Geneva and the Sudan, and through the work of its investigative team.

30. Generally speaking the attitude of the Government authorities towards the Commission has been cooperative. The authorities appointed an efficient liaison official in Khartoum, Dr Abdelmonem Osman Taha organized all the meetings with senior Government officials requested by the Commission. In addition, the Minister of Interior as the President’s representative on Darfur appointed a Committee presided over by Major-General Magzoub and consisted of six senior officials from the Ministries of Defence and Interior, as well as the National Security and Intelligence Service The Commission met the Committee and received relevant documents about the Government’s views on the conflict in Darfur.

31. Moreover, in his report dated 3 December 2004 (S/2004/947), the Secretary-General referred to a meeting of the Joint Implementation Mechanism (JIM) held on 12 November 2004, during which the Minister of Justice provided the following assurances regarding the work of the Commission: a) the Government would accept the report of the Commission, whatever its findings; b) witnesses of incidents would not be subjected to maltreatment; and c) following strict instruction from the President, Omer Hassan Al-Bashir, no Sudanese officials would obstruct the Commission’s investigations.

32. Furthermore, the Government did not impede the conduct of the Commission’s work in the Sudan. In November 2004, a middle-level officer of the National Security Services refused to allow the Commission to have access to a number of persons being held in detention in Nyala (South Darfur). The Commission’s Chairman requested the assistance of the liaison officer in Khartoum, and, subsequently, the Commission was able to interview the detainees without any hindrance. The Commission underwent a similar experience in Khartoum in January 2005, during its second visit to the Sudan. When some middle-level authorities refused to allow the Commission access to the National Security’s Detention Centre in Khartoum, the Chairman requested the immediate intervention of higher authorities and the Commission was eventually allowed access to the Centre.

33. However, one issue must be raised regarding the minutes of the meetings of the Security Committees at the locality and State levels. In a meeting with the First Vice-President Ali Osman Mohammed Taha held in Khartoum on 10 November 2004, the Commission asked to review the records of the various Government agencies in Darfur concerning decisions relating to the use of armed forces against rebels and measures concerning the civilian population. The Commission promised to keep its scrutiny of such records strictly confidential. During the same meeting, First Vice-President Taha assured the Commission that it would be able to have access to and examine the minutes of the meetings of the Security Committees in the three States of Darfur and their various localities. However, when requested to produce those minutes, each of the Governors of the three States asserted that no such minutes existed and instead produced a selected list of final decisions on general issues. According to reliable sources, minutes and reports of such meetings are in fact produced by the Security Committees, and some of them relate to the operations conducted in Darfur to oppose the rebels or to deal with displaced persons. In spite of its requests, the Commission did not see copies of these documents.

34. An episode bearing on cooperation relates to another request by the Commission. In a meeting held on 9 November 2004 with Bakri Hassan Salih, Minister of Defence and other senior Ministry of Defence officials, the Commission requested access to records of the deployment of military aircraft and helicopter gunships in Darfur since February 2003. Again, the Commission undertook to treat such records confidentially. The Minister of Defence agreed to comply with the request and promised that the Commission would obtain the records in Darfur from the relevant authorities. When the Commission did not obtain copies of these records in Darfur, it reiterated its request in a meeting with the Committee on Darfur on 20 November 2004. The Chairman of the Committee promised to provide those records and subsequently provided the Commission with an incomplete file, promising that it would be supplemented with further information. After further requests by the Commission, a number of records related to the use of aircraft in Darfur between February 2003 and January 2005 were produced. However, a complete set of the records requests was never provided to the Commission.

35. The Commission also wishes to stress that there have been episodes indicative of pressure put by some regional or local authorities on prospective witnesses, or on witnesses already interviewed by the Commission. For instance, in the first week of November 2004, in El Fashir (North Darfur) a government official, reportedly the chief of the local office of the National Security and Intelligence Service, gave money to some IDPs and urged them not to talk to the Commission. It was also reported to the Commission that the Sudanese authorities had deployed infiltrators posing as internally displaced persons (IDPs) into some camps such as Abushouk. In the same camp various eyewitnesses reported an episode that could be taken to amount to witness harassment. On 19 December 2004, around 12.30 in the afternoon, approximately twenty vehicles and three trucks drove through the camp. They stopped in the centre of the camp and started shouting: “We killed the Torabora (a common word used for indicating the rebels). We killed your fathers, your brothers. You have to sleep forever.” Women and children in the vicinity ran away, returning only after the soldiers had left the area. People in the camp were very worried about the safety of the entire camp.

36. In other instances, local authorities refused to allow the Commission’s investigative team entry into a camp to interview witnesses. However these cases were settled in due course, after negotiations with the authorities.

    (iii.) Cooperation of the Rebels

37. The Commission was in contact only with the two main rebel movements, the JEM and the SLM/A, and generally considers that both groups cooperated with the Commission. The Commission met with representatives and members of the two groups on a number of occasions in the Sudan, as well as outside the country. It met with the leadership of SLM/A and JEM in Asmara (Eritrea), including the Secretary-General and military commanders of the SLM/A, Minnie Arkawi Minawi, the chief negotiator of the SLM/A at the AU-sponsored talks, Dr. Sherif Harir, and the Chairman of the JEM, Dr. Khalil Ibrahim, as well as other senior officials of both groups. Discussions were open and frank, and both organisations provided responses to queries presented by the Commission. In Darfur, the Commission met, on several occasions, with various representatives of the two rebel groups.

38. The Commission received a number of documents from both groups, which included information of a more general nature about Darfur and the Sudan, as well as detailed documentation on specific incidents including names of victims allegedly killed in attacks. However, the Commission was led to believe that the documentary information provided by the rebels would be more extensive and detailed than what in fact was obtained.

39. The Commission was never refused access to areas under the control of the rebels and was able to move freely in these areas. The rebel groups did not interfere with the Commission’s investigations of reported incidents involving the rebels.

II. The Historical and Social Background.

1. The Sudan

40. In order to understand the current crisis in Darfur, it is important briefly to place the situation in Darfur within a broader context. The Sudan is the largest country in Africa with a territory covering about 2.5 million square kilometres bordering Egypt in the North, the Red Sea, Eritrea and Ethiopia in the East, Uganda, Kenya and the Democratic Republic of the Congo in the South, and the Central African Republic, Chad and Libya in the West. The Sudan has an estimated population of 39 million inhabitants. About 32% of the population are urban, 68% rural, and about 7% nomads. Islam is the predominant religion, particularly in the North, while Christianity and animist traditional religions are more prevalent in the South. The Sudan is a republic with a federal system of government. There are multiple levels of administration, with 26 States (Wilayaat) subdivided into approximately 120 localities (Mahaliyaat).

41. The elements that constitute national identity in the Sudan are complex. The population of the Sudan is made up of a multitude of tribes and its inhabitants speak more than 130 languages and dialects. An Islamic-African-Arab culture has emerged over the years and has become predominant in the North of the country. The Arabic language is now spoken throughout most of the country and constitutes a “lingua franca” for most Sudanese.

42. The Sudan is considered a Least Developed Country (LDC), and ranks 139 in the 2004 UNDP’s Human Development Index. [7] There is no adequate national road grid that connects the country, and large parts of the Sudan rely on an agricultural and pastoral subsistence economy. However, commercial agriculture, industrial development as well as limited exploitation of natural resources, in particular following the discovery of oil in the central/southern part of the country, have developed in recent years. From the time of British colonization to date the focus of attention has been on both the central region where the Blue and White Niles meet, since development and construction are centred in Khartoum, and on the fertile region of El Jezzira where long-fiber cotton has been cultivated as the country’s main crop. With the exception of these regions, the rest of the Sudan’s wide territories have remained largely marginalized and neglected, including Darfur and other regions like Kordofan, the Nuba mountains, the East of the Sudan and the South. Even the Northern region between the border with Egypt and Khartoum has remained a desolate, desert area.

43. The Sudan gained independence from British-Egyptian rule on 1 January 1956. Since independence, the country has fluctuated between military regimes and democratic rule. During its 49 years of national rule, the Sudan has experienced 10 years of democracy in the periods 1956 to 1958, 1965 to 1969, and 1985 to 1989. During the remaining time, the Sudan has been ruled by military regimes, which came to power through coups d’état. 44. After two years of democratic governance following independence in 1956, General Ibrahim Abbud came to power through a coup in November 1958. Abbud supported the spread of the Arabic language and Islam, a movement which was met with resistance in the South. Unrest in the South increased in 1962, and in 1963 an armed rebellion emerged. Repression by the Government throughout the country increased, and in 1964 student protests in Khartoum led to general public disorder, which soon spread. Abbud resigned as head of state and a transitional Government was appointed to serve under the provisional Constitution of 1956.

45. The transitional Government held elections in April and May 1965. A coalition Government headed by a leading politician of the Umma party, Mohmmed Ahmed Mahjub, was formed in June 1965. However, the Mahjub Government failed to agree on and implement effective reform policies, and in May 1969 a group of officers led by Colonel Gaafar Mohamed Al-Nimeiri took power. They adopted a one-party socialist ideology, which later changed to political Islam. In February 1972 Nimeiri signed the so-called Addis Ababa agreement with rebels from the South, which provided for a kind of autonomy for the South. This agreement made peace possible for the next 11 years. However, during the last years of his rule, General Nimeiri took several measures to strengthen his grip on power. Following the discovery of oil in the South, Nimeiri implemented measures to ensure the incorporation into the North of the oil-rich areas in the South, and cancelled the grant of autonomy for the South. Furthermore, in September 1983 under the influence of Hassan Al Turabi, the then leader of the National Islamic Front and the Muslim Brotherhood, Nimeiri introduced Sharia rule. All of these steps led to strong reactions in the South, and eventually to the start of the second war with the South in 1983. Other key measures related to the laws governing land ownership and the local/tribal administration systems, as mentioned below.

46. Finally, in April 1985, after 16 years in power, the military Government of Nimeiri was overthrown in a military coup organized by army officers and a Transitional Military Council was put in place under the leadership of General Abed Rahman Siwar Al-Dahab. Elections were organized in 1986, which led to the victory of the Umma party’s leader, Sadiq Al-Mahdi, who became Prime Minister. Al- Mahdi’s Government lasted less than four years. During this period it started to take some important measures, but was faced with serious challenges, including the continuing war in the South as well as drought and desertification.

47. The current President of the Sudan, General Omar Hassan El-Bashir, assumed power in June 1989, following a military coup d’état organized in cooperation with the Muslim Brotherhood. Many Sudanese either were imprisoned or went into exile following the coup. Property was confiscated and political parties were banned. El-Beshir, like Nimeiri, was heavily influenced by the main ideologue of the National Islamic Front, Hassan Al-Turabi. Beginning in 1989, the legal and judicial systems were significantly altered to fit the party’s version of political Islam.

48. The ruling party’s ideological base was modified in 1998 with the drafting and entry into force of a new Constitution on 1 July 1998 and the holding of elections in December the same year. The 1998 Constitution still reflects a strict ideology, provides for a federal system of government and guarantees some important basic rights. The December 1998 elections, which were boycotted by all major opposition parties, resulted in the election of President El-Beshir for a further five-year term, with his National Congress party assuming 340 of the 360 parliamentary seats. Turabi became the Speaker of Parliament. Party members continued to hold key positions and strong influence over the Government, army, security forces, judiciary, academic institutions and the media.

49. In 1999, an internal power struggle within the National Congress resulted in President El-Beshir declaring a state of emergency, dissolving the Parliament, and suspending important provisions of the Constitution, including those related to the structures of the local government in the states. In May 2000, Turabi led a split from the ruling National Congress, in effect establishing a new party called the Popular Congress. Many officials linked to Turabi were dismissed from Government and in May 2001, Turabi himself was placed under house arrest and was later accused of organizing a coup d’etat. He remains in detention today. At least 70 key members of the Popular Congress presently are detained without charge or trial, and a number have fled the Sudan to exile.

50. Since it erupted in 1983, the internal conflict between the North and the South has had a significant impact on the Sudan in many ways. It is the longest conflict in Africa involving serious human rights abuses and humanitarian disasters. During the conflict, more than 2 million persons have died and 4.5 million persons have been forcibly displaced from their homes. However, following many years of war, and also as a result of heavy international pressure, the Government and the main rebel movement in the South, the Sudan People’s Liberation Movement /Army (SPLM/A), initiated peace talks in 2002. The Sudan peace process, under the auspices of the Inter-Governmental Authority on Development (IGAD) and with the support of a Troika (The United States of America, the United Kingdom of Great Britain and Northern Ireland and Norway), made significant progress. In July 2002, the parties signed the Machakos Protocol, in which they reached specific agreement on a broad framework, setting forth principles of governance, a transitional process and structures of government as well as on the right to self-determination for the people of southern Sudan. They agreed to continue talks on the outstanding issues of power-sharing, wealth-sharing, and a cease-fire. The IGAD-brokered peace process advanced substantially with the signing in Naivasha (Kenya) of a series of framework protocols in 2003 and 2004. On 31 December 2004, the parties signed two protocols on the implementation modalities and a permanent ceasefire, marking the end of the talks and negotiations in Naivasha. The process culminated on 9 January 2005 when, during an official ceremony, First Vice-President Taha and SPLM/A Chairman John Garang signed the Comprehensive Peace Agreement (CPA), comprising all previously signed documents including the 31 December 2004 protocols. The CPA marks the end of two decades of civil war, calls for a six-month pre-interim period followed by a six-year interim period, which would end with a referendum on the right to self-determination in southern Sudan. The CPA provides for an immediate process leading to the formulation of a national interim constitution. The Committee, composed of seven members from each side, will have eight weeks to draft the Constitution which it then will submit to be submited to a National Constitutional Review. This Committee will have two weeks to approve the Constitution.

2. Darfur

51. The Darfur region in the western part of the Sudan is a geographically large area comprising approximately 250 000 square kilometres with an estimated population of 6 million persons. Darfur borders with Libya, Chad and the Central African Republic. Since 1994 the region has been divided administratively into three states of North, South and West Darfur. Like all other states in the Sudan, each of the three states in Darfur is governed by a Governor (Wali), appointed by the central Government in Khartoum, and supported by a local administration. Major urban centres include the capitals of the three Darfur states, Nyala in South Darfur, El Geneina in West Darfur, and the capital of North Darfur, El Fashir, which is also the historical capital of the region. In addition, there are a few major towns spread out over the entire region which serve as local administrative and commercial centres. The majority of the population, however, lives in small villages and hamlets, often composed of only a few hundred families. The economy of the three Darfur states is based mainly on subsistence and limited industrial farming, as well as cattle herding.

52. Darfur was a sultanate that emerged in 1650 in the area of the Jebel Marrah plateau and survived with some interruptions until it fell to British hands in 1917 and was incorporated into the Sudan proper. [8] The region is inhabited by tribal groups that can be classified in different ways. However, distinctions between these groups are not clear-cut, and tend to sharpen when conflicts erupt. Nevertheless, individual allegiances are still heavily determined by tribal affiliations. The historic tribal structure, which dates back many centuries, is still in effect in Darfur although it was weakened by the introduction of local government during the time of Nimeiri’s rule. Some of the tribes are predominantly agriculturalist and sedentary, living mainly from crop production during and following the rainy season from July to September. Some of the sedentary tribes also include cattle herders. Among the agriculturalists, one finds the Fur, the Barni, the Tama, the Jebel, the Aranga and the Masaalit. Among the mainly sedentary cattle herders, one of the major groups is the southern Rhezeghat, as well as the Zaghawa. In addition, a number of nomadic and semi-nomadic tribes can also be traditionally found in Darfur herding cattle and camels in Darfur, which include the Taaysha, the Habaneya, the Beni Helba, the Mahameed and others. It should be pointed out that all the tribes of Darfur share the same religion (Islam), and while some of the tribes do possess their own language, Arabic is generally spoken.

53. The issue of land has for long been at the centre of politics in Darfur. Land-ownership in Darfur has been traditionally communal. The traditional division of the land into homelands – so-called “dar” - which are essentially areas to which individual tribes can be said to have a historical claim, is crucial in the local self-perception of the population. The traditional attribution of land to individual tribes in existence today dates back to the beginning of the 20th century when the last sultan of Darfur, Sultan Ali Dinar, decreed this division which was generally accepted by all tribes. While this traditional division of land is not geographically demarcated in an exact manner, some general observations are possible. For instance, in the northern parts of West Darfur and some western parts of North Darfur, the Zaghawa tribe predominates, and the area is also referred to as Dar Zaghawa – the homeland of the Zaghawa. In the area around and south of El Geneina, still in West Darfur, the Masaalit tribe has its homeland. While the name Darfur would mean the homeland of the Fur, the actual area where this tribe has its homeland, is located in the centre of the Darfur region, around the Jebel Marrah area, covering an area where the borders of the three states of Darfur meet, but also stretching further into all three states. The Rhezehghat are mainly found in the southern parts of South Darfur. As noted, some tribes, essentially most of the nomadic tribes, do not possess land and have traditionally transited through land belonging to other tribes. Although this traditional division of land into homelands of different tribes has been in existence for many years, extensive intermarriage and socio-economic interconnectedness between the tribes have rendered a clear demarcation of both tribes and homelands less precise or accurate. Nevertheless, the self-perception of people as members of tribes and the social networks connected to the tribal structures remain a central feature of the demographics of Darfur.

54. Historically land was collectively owned by the members of the tribe and its use was determined by the tribal leadership. Tribal leaders had extensive powers to allocate parcels of land to its members for dwelling, grazing, agriculture, or other forms of use. During the 1970s, however, the land laws were changed and individual ownership became possible. Although the land ownership was now attributed to the State, those who possessed land for at least one year could claim legal title. Those who did not have land had additional incentive to demonstrate loyalty to the Government in order to acquire it.

55. In recent years both ecological and demographic transformations have had an impact on inter-tribal relations. Darfur is part of the Great Sahara region, and while it has some agricultural areas, particularly around the Jebel Marrah plateau, most of the region remains arid desert land. Drought and desertification had their impact in the 70s and 80s, and the fight for scarce resources became more intense. In particular, tensions between agriculturalists and cattle herders were affected. Cattle herders in search of pasture and water often invaded the fields and orchards of the agriculturalists, and this led to bloody clashes as described below. Corridors that were agreed upon amongst the tribes to facilitate the movements of cattle for many years were not respected. As fertile land became scarce, settled people’s tolerance of the seasonal visitors diminished. [9]

56. Drought and desertification had its impact not only on Darfur but the entire region of the Sahara, which led to increased migration of nomadic groups from Chad, Libya, and other states into the more fertile areas of Darfur. It is generally not disputed that while this immigration was initially absorbed by the indigenous groups in Darfur, the increased influx combined with the tougher living conditions during the drought led to clashes and tensions between the newcomers and the locals. [10]

57. It was customary for the Darfur tribes to solve their differences through traditional law, especially the many disputes which occur between nomadic tribes and sedentary tribes like murders and incidents related to cattle stealing, which can develop into inter-tribal conflicts. Traditionally, disputes between members of tribes were settled peacefully by the respective tribal leaders, who would meet to reach a mutually acceptable solution. The State was then seen as a neutral mediator. But President Nimeiri introduced new structures of local administration and formally abolished the tribal system. The administrators of the new structures, who were appointed by the central Goverrnment, had executive and judicial powers. Although the tribes continued to informally resort to the tribal system, this system was significantly weakened. Local leaders were often chosen on the basis of their political loyalty to the regime, rather than their standing in the community. They were sometimes financed and strengthened particularly through the State’s security apparatus. This meant that when the State had to step in to resolve traditional conflicts, it was no longer seen as an impartial arbitrator.

58. Inter-tribal conflict was further aggravated by an increased access to weapons, through channels with Chad and Libya in particular. Libya aspired to have a friendly rule in Chad and the attempts to contain Libya’s ambitions in the region led several foreign governments to pour arms into the region. In addition, several Chadian armed rebellions were launched from Darfur. The conflict in the South of the Sudan also had its impact on the region through easier access to weapons. As a consequence, each major tribe as well as some villages began to organize militias and villages defence groups, essentially a group of armed men ready to defend and promote the interests of the tribe or the village.

59. The tribal clashes in the latter part of the 1980’s were essentially between sedentary and nomadic tribes, and in particular between the Fur and a number of Arab nomadic tribes, which had organized themselves in a sort of alliance named the Arab Gathering, while some members of the Fur tribe had created a group called the African Belt. The conflict was mediated by the Government and local tribal leaders in 1990, but tensions remained during the years to come, and clashes between these tribes continued. This further led to resentment among some Darfurians against the Government of El Beshir, which apparently was neither able nor willing effectively to address the unfolding situation in Darfur.

60. In the context of the present conflict in Darfur, and in the years preceding it, the distinction between so-called African and Arab tribes has come to the forefront, and the tribal identity of individuals has increased in significance. The distinction stems, to a large extent, from the cumulative effects of marginalization, competing economic interests and, more recently, from the political polarization which has engulfed the region. The ‘Arab’ and ‘African’ distinction that was always more of a passive distinction in the past has now become the reason for standing on different sides of the political divide. The perception of one’s self and of others plays a key role in this context.

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, and the other factors noted above, 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 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. The Government seemed initially to be taken aback by these attacks, but was apparently in no position to retaliate, nor, it appears, did it initially consider the rebellion a serious military matter. Furthermore, for the Government the rebellion came at a particularly inopportune time, as it was in the process of intense peace negotiations with the SPLM/A, and negotiations were advancing rapidly.

64. There are indications that the Government initially was concerned that Chad was involved in the crisis. President El-Beshir travelled to El Fashir, the capital of North Darfur, in April 2003, to meet with the President of Chad, Idriss Deby, along with many local political and tribal leaders of Darfur, seeking to find a solution to the crisis. President Deby assured President El-Beshir that the Government of Chad was not involved in the conflict.

65. In March and April 2003 the rebels attacked Government installations in Kutum, Tine and El Fashir, including the military Section of the airport in El Fashir where the rebels destroyed several military aircraft on the ground and killed many soldiers. An air-force commander was later captured by the rebels and was detained for about three months. Despite the efforts of the Government, he was only released following tribal mediation.

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, [11] 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. A more elaborate description of these actors will follow below.

70. Efforts aimed at finding a political solution to the conflict began as early as August 2003 when President Deby of Chad convened a meeting between representatives of the Government and rebel groups in Abeche. The talks, which the JEM refused to join because it considered the Chadian mediation to be biased, led to the signing on 3 September 2003 of an agreement which envisaged a 45-day cessation of hostilities. Several rounds of talks took place thereafter under Chadian mediation. 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 in Addis Ababa, Ethiopia, and in Abuja, Nigeria, 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.

71. Besides the political negotiations, the African Union also has been playing a leading role, through the African Mission in Sudan (AMIS), in seeking a solution to the conflict and in monitoring the ceasefire through the establishment of the AU Cease-Fire Commission in Darfur, including the deployment of monitors. In spite of all of these efforts and the signing of several protocols, fighting and violations of the ceasefire between the rebels and the Government and its militias were still being reported in January 2005.

72. Regardless of the fighting between the rebels on the one hand, and the Government and Janjaweed on the other, the most significant element of the conflict has been the attacks on civilians, which has led to the destruction and burning of entire villages, and the displacement of large parts of the civilian population.

Section I

The commision’s findings of violations of International Human Rights Law and Humanitarian Law by the parties

I. Introduction

73. In fulfilling its mandate the Commission had to establish whether reported violations of international human rights law and humanitarian law in Darfur had in fact occurred. In addition, the Commission had to determine whether other, more recent violations had occurred. Before setting out the results of its fact-finding, the Commission must address a few general and preliminary issues.

II. The Nature of the Conflict in Darfur

74. The first such 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 conflict, 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’. [12] 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. [13] 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’. [14] 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. [15]

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). [16] As noted above, the first two groups of insurgents took up arms against the central authorities in or around 2002. However, the scale of rebel attacks increased noticeably in February 2003. 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 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.

77. This Section will briefly review the various groups taking an active part in the armed conflict in Darfur. On the side of the Government, the various elements of the Sudan People’s Armed Forces have played a key role in the armed conflict and therefore are described below. In addition, according to the Commission’s findings, the National Security and Intelligence Service has a central role and is responsible for the design, planning and implementation of policies associated with the conflict. The Service is often referred to as the de facto State power and its influence appears to reach the highest levels of authority. Its mandate and structure are described below. The role of the Government-supported militia, commonly referred to as ‘Janjaweed’, is also set out below. Finally, the structure and role of the main rebel groups referred to above are explained here in further detail.

1. Government Armed Forces

    (i) General features

78. The Sudanese armed force is a conventional armed force with a mandate to protect and to maintain internal security. [17] It carries out its mandate through an army, including Popular Defence Force militia and Borders Intelligence, as well as an air force and navy. According to information received by the Commission, currently the army numbers approximately 200,000 in strength, although its logistical capacity was designed for an army of 60,000. Support, in particular air support, therefore goes primarily to priority areas and is re-deployed only after those areas have calmed down. The central command and control of armed forces operations are therefore imperative.

    (ii) Structure

79. The Commander-in-Chief of the armed forces is the President, although for operational purposes he exercises this power through the Minister of Defence. The Minister appoints a Commander of the Armed Forces and Chief of General Staff who, together with five Deputy Chiefs of Staff (including Operations, Logistics, Administration, Training and Morale), form the ‘Committee of the Joint Chiefs of Staff’ or ‘command group’.

    (iii) Military Intelligence

80. While Military Intelligence (MI) was once a part of the ‘Operations’ branch within the armed forces, it now forms an independent branch with its own administration and command. MI has the power to arrest, detain and interrogate. With regard to communication and reporting, the MI branch passes information through the operational chain, as well as directly to the Presidency, through the Chief of the MI branch.

    (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). The mandate of the PDF derives from the Popular Defence Forces Act of 1989, which defines the PDF as ‘Paramilitary forces’ made up of Sudanese citizens who meet certain criteria. Article 6 of the Act states that the functions of the PDF are to ‘assist the People’s Armed Forces and other regular forces whenever needed’, ‘contribute to the defence of the nation and help to deal with crises and public disasters’ and perform ‘any other task entrusted to them by the Commander-in-Chief himself or pursuant to a recommendation of the Council.’ According to the Act, a body known as ‘The Council of the Popular Defence Forces’ advises the Commander-in-Chief on matters affecting the PDF, including areas in which the PDF should be established, military training and education for PDF members, and other issues relating to the duties and activities of the 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. [18] The Wali is responsible for mobilization in each State because he is expected to be familiar with the local tribal leaders. 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. One senior commander explained the recruitment and training of PDF soldiers as follows:

    ‘Training is done through central barracks and local barracks in each state. A person comes forward to volunteer. We first determine whether training is needed or not. We then do a security check and a medical check. We compose a list and give it to the military. This is done at both levels – Khartoum and state or local level. We give basic training (for example, on the use of weapons, discipline, …) which can take two weeks or so, depending on the individual.’

    ‘A person may come with a horse or camel – we may send them into military operations on their camel or horse. [...] Recruits are given weapons and weapons are retrieved again at the end of training.’

84. According to another senior commander, most of the PDF recruits come ‘well-versed in firearms and are tough and fit’ but ‘need training in discipline’. He noted that uniforms, weapons and ammunition were not always returned by recruits following demobilisation, and that weapons and ammunition would at times be distributed through tribal leaders in order to ensure that they are returned on demobilization.

    (v) Borders Intelligence

85. The armed forces also include an operational unit called the ‘Borders Intelligence’, the primary role of which is to gather information. Members of this unit are recruited from the local population. They are deployed to their areas of origin, according to their experience in the area, knowledge of the tribes, and ability to differentiate between people of different tribal and national origins based on local knowledge. Borders Intelligence guards are under the direct control of the Military Intelligence Officers in the particular Division where they are deployed and otherwise fall under the regular chain of command for the armed forces.

86. While initially Borders Intelligence officers were recruited in relation to the conflict in southern Sudan, the Government began recruiting them during the early stages of the armed conflict in Darfur in late 2002 and early 2003. Some consider this was done as a cover to recruit Janjaweed. [19] According to a senior armed forces commander, Borders Intelligence soldiers are recruited directly into the army in the same way as regular soldiers. An advertisement is made through media channels for volunteers who meet certain criteria, in particular with regard to age, citizenship and fitness. Approximately 3,000 Borders Intelligence soldiers have been recruited in this way and deployed in Darfur.

    (vi) Reporting and command structure

87. Planning for all military operations is done in Khartoum by the Committee of the Joint Chiefs of Staff. Orders in relation to a particular operation are passed from the Committee to the Director of Operations, who gives them to the Area Commander. The Area Commander then gives the orders to the Divisional Commander, who shares them with the Brigade Commander for implementation.

88. With regard to reporting, information flows from Battalion level, to the Brigade Commander, to the Divisional Commander, to the Area Commander, to the Director of Operations, and finally to the Deputy Chief of Staff and Command Group. The Command Group reports to the Chief of Staff who reports, if necessary, to the Minister of Defence and finally to the Presidency. Within the army, reporting and all other communications take place up and down the chain of command as with most conventional armed forces.

    (vii) National Security and Intelligence Service

89. National Security forces are regular forces whose mission is to oversee the internal and external security of the Sudan, monitor relevant events, analyze the significance and dangers of the same, and recommend protection measures. [20] According to information received by the Commission, the National Security and Intelligence Service is one of the most powerful organs in the Sudan. Its derives from the National Security Force Act of 1999, as amended in 2001, which states that there shall be an Internal Security Organ in charge of internal security, and a Sudanese Intelligence Organ in charge of external security. [21]

90. National Security Forces act under the general supervision of the President. [22] The direct responsibility of the Organ is assumed by the Director-General [23] who is appointed by the President. [24] The Director-General is responsible to the President for the execution of his functions and the overall performance of the Organ. [25]

91. According to the Act, a body known as “The National Security Council” is to be established to oversee the implementation of the security plan of the country; to supervise the progress of security work; to co-ordinate between security organs; to follow-up on the implementation of security policies and programmes; to approve regulations related to the organization of work; and to constitute a technical committee from the organs forming the Council in order to assist in the progress of work. [26] The National Security Council is to be constituted of the President, the President’s advisor on security affairs, the Minister of Defence, the Minister of Foreign Relations, the Minister of Internal Affairs, the Minister of Justice, the Director of the Internal Security Organ, and the Director of the Sudanese Intelligence Organ. [27]

92. The Act also provides for the establishment of the “High Technical Security Committee” which has a mandate to study the security plans presented by the states and the competent organs, submit the plans to the Council for approval, follow-up on implementation, and receive reports with respect thereto. The Committee is to co-ordinate the business of security committees in the various states, with regard to the security plans set out by the Council. [28]

93. Major General Sallah Abdallah (also known as Sallah Gosh), the Director-General of the National Security and Intelligence Service, informed the Commission of a decision to create one unified service, comprising both the internal and external intelligence. This service was formed in February 2004 and is known as “the National Security and Intelligence Service.” The Director-General told the Commission that he reports at least every second day to the President and/or First Vice-President. While he co-operates with other organs of the Government, he is accountable directly to the President.

94. With regard to the Darfur crisis, the Director-General stated that the National Security and Intelligence Service would gather information and report to the President about the situation. Depending on the nature of the issue, it would also report to the Ministry of Defence, Ministry of Interior, Ministry of Foreign Affairs or Ministry of Humanitarian Affairs. Based on the information received, the President would then instruct the Cabinet. He further stated that the President formed a coordinating Committee in response to the crisis, which was headed by the Minister for Federal Affairs and included Minister of Defence, Minister of Interior, Director of Intelligence, Minister of Foreign Affairs and Minister of Humanitarian Affairs. However, according to the Director-General the Committee has not met in the last 12 months. Instead, each of the relevant Ministries or Organs have dealt individually or bilaterally with the matter under their competence.

95. As to the hierarchy within the National Security and Intelligence Service, the Director-General informed the Commission that he has a Deputy, with whom he shares his activities and functions, as well as four Directors. The Service has a desk specifically to address the situation in Darfur, which receives all information regarding the area, including external public information. This unit is responsible for producing and analyzing intelligence. Every unit reports up the chain of command and ultimately every action is reported to the Director-General.

96. The Commission noted that the National Security Force Act, as amended in 2001, gives the security forces wide-reaching powers, including the power to detain without charge or access to a judge for up to nine months. In Khartoum, the Commission interviewed detainees that were held incommunicado by the security forces in “ghost houses” under abhorrent conditions. In some cases, torture, beatings and threats were used during interrogations and so as to extract confessions. Some of the detainees had been held for 11 months without charge, access to a lawyer or communication with family.

97. The security forces collect information on all aspects of life in the three States of Darfur. This information is disseminated to the relevant Ministries for appropriate action. The Director-General confirmed that this information or intelligence may relate to matters such as the presence of rebels and whether or not they have arms. The military may use this information to make operational decisions. While the National Security and Intelligence Service does not give orders to the military, it provides it with information which is used as a basis for operational planning.

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

98. A major question relates to the militias in Darfur, often referred to as Janjaweed, fursan (horsemen, knights), or mujahedeen. The term ‘Janjaweed’, in particular, has been widely used by victims of attacks to describe their attackers. The term has consequently also been used by many international organizations and the media in their reports on the situation in Darfur, and was used by the Security Council in resolution 1564. Victims of attacks have indicated that the Janjaweed were acting with and on behalf of Government forces. In contrast, senior Sudanese State authorities, in Khartoum and in the three Darfur States indicated to the Commission that any violations committed by the Janjaweed have no relationship to State actors. Given the allegedly central role played by the Janjaweed in the acts being investigated by the Commission and given the discrepancy in the understanding of the identity of the Janjaweed and their alleged link with the State, it was essential for the Commission to clarify the character and role of those actors to whom the term is being applied.

99. This Section clarifies the concept of ‘Janjaweed’ and the implications for the determination of international criminal responsibility. As explained below, the Commission has gathered very substantial material which it considers substantiates use of the term ‘Janjaweed’, in the limited context of the Commission’s mandate, as a generic term to describe Arab militia acting, under the authority, with the support, complicity or tolerance of the Sudanese State authorities, and who benefit from impunity for their actions. For this reason, the Commission has chosen to use the term ‘Janjaweed’ throughout this report, and also because it reflects the language used by the Security Council in the various resolutions concerning Darfur and, most of all, because it is constantly referred to by victims.

    (i.) Emergence of the term janjaweed

100. In Darfur the term “Janjaweed” has been used in the past to describe bandits who prey on rural populations through, among other things, the stealing of cattle and highway robbery. The word “Janjaweed” is an Arabic colloquialism from the region, and generally means "a man (a devil) on a horse." The term was used in the tribal conflicts of the 1990s to specifically denote militias from mainly Arab tribes which would attack and destroy the villages of sedentary tribes.

101. The fact that the Janjaweed are described as Arab militias does not imply that all Arabs are fighting on the side of the Janjaweed. In fact, the Commission found that many Arabs in Darfur are opposed to the Janjaweed, and some Arabs are fighting with the rebels, such as certain Arab commanders and their men from the Misseriya and Rizeigat tribes. [29]. At the same time, many non-Arabs are supporting the Government and serving in its army. Thus, the term “Janjaweed” referred to by victims in Darfur certainly does not mean “Arabs” in general, but rather Arab militias raiding their villages and committing other violations.

102. The Commission found that when faced with the rebellion in Darfur launched by two rebel movements in early 2003, the Government called on a number of Arab tribes to assist in the fight. Some tribal leaders with relationships with both local and central Government officials played a key role in recruiting and organizing militia members and liaising with Government officials. One senior Government official, at provincial level, described how an initial Government recruitment of fighting men drew also upon Arab outlaws and, as other reports have described, the recruitment of convicted felons. The Commission also received credible evidence that the ranks of the Janjaweed include fighters from neighbouring countries, primarily Chad and Libya.

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

103. Victims of attacks consistently refer to their attackers as Janjaweed, most often attacking with the support of Government forces. When asked to provide further details, victims report that the Janjaweed attackers are from Arab tribes and, in most instances, attacked on horseback or on camels and were armed with automatic weapons of various types.

104. With the exception of these two precisions, it is probably impossible to define the ‘Janjaweed’, as used in Darfur today, as a homogenous entity. In particular, actors to whom it has been applied can usually also be described with other terminology. For example, the Commission found that on numerous occasions the term ‘Janjaweed’ was used, by victims and members of the authorities, to describe particular men who they had named as leaders of attacks on villages in which civilians were killed and rapes were committed. The Commission was later able to confirm that these men were in fact members of the PDF. Separately, the Commission was informed that a senior member of the local authorities had described one man as a local Janjaweed leader. The man was similarly identified by a victim of an attack as being a Janjaweed leader who had conducted attacks in which civilians were killed. Later, the Commission obtained an official Government letter in which Darfur provincial authorities referred to the same man as being a member of the ‘Fursan’. Finally, this man himself showed the Commission evidence that he is a member of the PDF. By way of a further example, the Commission confirmed that PDF forces in one State conduct their attacks on horseback and on camels in a specific deployment configuration and using particular types of weapons. Many victims of attacks in the same area and who identified their attackers as Janjaweed, described for the Commission attackers wearing the same uniforms, using the same deployment during the attack and using the same weapons as those employed by local PDF forces. In a further instance, one victim was asked by the Commission to distinguish between Janjaweed, army and police who had allegedly attacked his village. He responded by saying that for himself and other victims they were all the same.

105. These are a few examples, among multiple testimonies and material evidence, confirming for the Commission that, in 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 some other entity, as described below.

    (iii.) Organization and structure of Janjaweed

106. The Janjaweed are not organized in one single coherent structure, and the Commission identified three main categories of Janjaweed actor, determined according to their type of affiliation with the Government of Sudan. The first category includes militias which are only loosely affiliated with the Government and which have received weapons and other supplies from the State. These militias are thought to operate primarily under a tribal management structure [30]. They are thought to undertake attacks at the request of State authorities, but are suspected by the Commission of sometimes also acting on their own initiative to undertake small scale actions to loot property for personal gain.

107. A second category includes militias which are organized in paramilitary structures and in parallel to regular forces, including groups known as “the Strike Force”, the Mujahedeen or the Fursan (the horsemen). Some of these may be headed by officers in the regular army while also controlled by senior tribal leaders. While militias in this category are thought to operate within a defined command structure they do not have any legal basis.

108. A third category of militia includes members of the PDF [31] and Border Intelligence [32] which have a legislative basis under Sudanese law. The PDF fight alongside the regular armed forces.

109. There are links between all three categories. For example, the Commission has received independent testimony that the PDF has supplied uniforms, weapons, ammunition and payments to Arab tribal militia from the first category. The leaders of these tribes meet regularly with the PDF Civilian Coordinator, who takes their concerns to the Security Committee of the locality.

110. The Commission has gathered substantial material attesting to the participation of militia from all three categories in committing violations of international human rights and humanitarian law. The Commission has determined, further, that attackers from all 3 categories have been identified by victims and other witnesses as Janjaweed.

    (iv) Links between the militias and the State

111. The Commission has established that clear links exist between the State and militias from all three categories. The close relationship between the militias and the PDF, a State institution established by law, demonstrates the strong link between these militias and the State as a whole. In addition, militias from all three categories have received weapons, and regular supplies of ammunition which have been distributed to the militias by the army, by senior civilian authorities at the locality level or, in some instances, by the PDF to the other militias.

112. The PDF take their orders from the army and conduct their attacks on villages under the direct leadership of an army officer with the rank of Captain or Lieutenant. Testimonies of victims consistently depict close coordination in raids between government armed forces and militia men who they have described as Janjaweed and the Commission has very substantial material attesting to the participation of all categories of militia in attacks on villages in coordination with attacks or surveillance by Sudanese military aircraft. Numerous sources have reported that Government of Sudan aircraft have been used to supply the Janjaweed with arms.

113. Members of the PDF receive a monthly salary from the State which is paid through the army. The Commission has reports of the tribal militia members, or their leaders, receiving payments for their attacks and one senior Government official involved in the recruitment of militia informed the Commission that tribal leaders were paid in terms of grants and gifts according to the success of their recruitment efforts. In addition, the Commission has substantial testimony that this category of militia has the tacit agreement of the State authorities to loot any property they find and to gain compensation for their attacks in this way. A consistent feature of attacks is the systematic looting of the possessions of villagers, including cash, personal valuable items and, above all, livestock. Indeed, all of these militias operate with almost complete impunity for attacks on villages and related human rights violations. For example, the Commission has substantial testimony indicating that police officers in one locality received orders not to register or investigate complaints made by victims against Janjaweed.

114. A Report of the Secretary-General, pursuant to paragraphs 6 and 13 to16 of Security Council resolution 1556 (2004) of 30 August 2004 [33], mentions that “the Government also accepted that the militias under its influence were not limited to those previously incorporated into the Popular Defence Forces, but also included militias that were outside and later linked with or mobilized to join those forces. This means that the commitment to disarm refers both to the Popular Defence Forces and to militias that have operated in association with them”.

115. Confidential documents made available to the Commission further support the above conclusions on links between the militias and the Government, and identify some individuals within the governmental structure who would have had a role in the recruitment of the militias.

116. The Commission does not have exact figures of the numbers of active Janjaweed, however, most sources indicate that in each of Darfur's three states there is at least one large Janjaweed group as well as several smaller ones. One report identified at least 16 Janjaweed camps still active throughout Darfur with names of Janjaweed commanders. According to information obtained by the Commission, Misteria, in North Darfur, is one Janjaweed camp which continues to be used today and which incorporates a militia known as the Border Guards. It was set up as a base for Janjaweed from which they receive training, weapons, ammunition and can eventually be recruited into the PDF structure, into the police, or into the army. The Commission received evidence that civilians have been abducted by leaders of this camp and detained within the camp where they were tortured and used for labour. These civilians were taken out of the camp and hidden during 3 pre-arranged monitoring visits by AU forces. In the first half of 2004 the Misteria camp was populated by approximately 7,000 Janjaweed. By the end of 2004 most of these men had been registered as PDF or police and army regular forces. An army officer with the rank of Colonel was stationed in the camp throughout the year and was responsible for training, ammunition stores and paying salaries to the Janjaweed. Two military helicopters visited the camp roughly once a month bringing additional weapons and ammunition. On at least one occasion the camp was visited by an army Brigadier.

    (v.) The position of the Government

117. Especially since the international community has become aware of the impact of the Janjaweed actions, responses of the Government of the Sudan to the use of the term seems to have been aimed at denying the existence of any links between the State and the Janjaweed; and most officials routinely attribute actions of the Janjaweed to "armed bandits", "uncontrolled elements", or even the SLA and JEM. The Government position has nevertheless been inconsistent, with different officials, both at national and Darfur levels, giving different accounts of the status of the Janjaweed and their links with the State.

118. The Minister of Defence during a press conference on 28 January 2004 invited the media to differentiate between the "rebels", the "Janjaweed", the "Popular Defence Forces (PDF)" and "tribal militias", such as the "militias" of the Fur tribe, and the "Nahayein" of the Zaghawa. He said the PDF are volunteers who aid the armed forces but the Janjaweed are "gangs of armed bandits" with which the government has no relations whatsoever. [34] President Bashir intended his pledge on 19 June 2004 to "disarm the Janjaweed" to apply only to the bandits, not the Popular Defence Forces, Popular Police or other tribesmen armed by the state to fight the rebels [35].

119. Contrasting with the above, some official statements confirm the relationship between the government and the militias. In a widely publicized comment addressed to the citizens of Kulbus, a town the rebels had failed to overrun in December 2003, the President said: "Our priority from now on is to eliminate the rebellion, and any outlaw element is our target … We will use the army, the police, the mujahedeen, the horsemen to get rid of the rebellion". [36] The Minister of Justice told the ad hoc delegation of the Committee on Development and Cooperation of the European Parliament during its visit in February 2004 that “the Government made a sort of relationship with the Janjaweed. Now the Janjaweed abuse it. I am sure that the Government is regretting very much any sort of commitments between them and the Government. We now treat them as outlaws. The devastation they are doing cannot be tolerated at all”. [37] On 24 April 2004, the Foreign Minister stated: “The government may have turned a blind eye toward the militias,” he said. “This is true. Because those militias are targeting the rebellion.” [38] The Commission has formally requested the Minister on three occasions to provide it with the above statement or any other statement related to the militias, but has not received it.

120. Despite Government statements regretting the actions of the Janjaweed, the various militias’ attacks on villages have continued throughout 2004, with continued Government support.

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

121. The “Janjaweed” to whom most victims refer in the current conflict are Arab militias that raid the villages of those victims, mounted on horses or camels, and kill, loot, burn and rape. These militias frequently operate with, or are supported by, the Government, as evidenced both by consistent witness testimonies describing Government forces’ support during attacks, the clear patterns in attacks conducted across Darfur over a period of a year, and by the material gathered by the Commission concerning the recruitment, arming and training of militias by the Government. Some militias may, as the Government alleges, sometimes act independently of the Government and take advantage of the general climate of chaos and impunity to attack, loot, burn, destroy, rape, and kill.

122. A major legal question arises with regard to the militias referred to above: who (in addition to the individual perpetrators) is criminally responsible for crimes allegedly committed by Janjaweed?

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 §§ 98-145. 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. Hence, as in the preceding class, any crime committed by them involved not only the criminal liability of the perpetrator, but also the responsibility of their superior authorities of the Sudan if they ordered or planned those crimes or failed to prevent or repress such crimes (superior responsibility).

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 acquiesecence 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.

126. The Commission wishes to emphasize that, if it is established that the Government used the militias as a “tactic of war”, even in instances where the Janjaweed may have acted without evidence of Government support, Government officials may incur criminal responsibility for joint criminal enterprise to engage in indiscriminate attacks against civilians and murder of civilians. Criminal responsibility may arise because although the Government may have intended to kill rebels and destroy villages for counterinsurgency purposes, it was foreseeable, especially considering the history of conflicts between the tribes and the record of criminality of the Janjaweed, that giving them authorization, or encouragement, to attack their long-term enemies, and creating a climate of total impunity, would lead to the perpetration of serious crimes. The Government of Sudan willingly took that risk.

3. Rebel movement groups

    (i.) The Sudan Liberation Movement/Army (SLM/A)

127. The Sudan Liberation Movement/Army (SLM/A) is one of the two main rebel organizations in Darfur. By all accounts, it appears to be the largest in terms of membership and geographical activity. It is composed mainly of Zaghawa, Fur and Masaalit, as well as some members of Arab tribes. The SLM/A initially called itself the Darfur Liberation Front, and at the time was defending a secessionist agenda for Darfur. In a statement released on 14 March 2003, the Darfur Liberation Front changed its name to the Sudan Liberation Movement and the Sudan Liberation Army (SLM/A), and called for a “united democratic Sudan” and for separation between State and religion.

128. The SLM/A claims that all post-independence Governments of the Sudan have pursued policies of marginalization, racial discrimination, exclusion, exploitation and divisiveness, which in Darfur have disrupted the peaceful coexistence between the region’s African and Arab communities. As indicated in its policy statement released in March 2003, “the SLM/A is a national movement that aims along with other like-minded political groups to address and solve the fundamental problems of all of the Sudan. The objective of SLM/A is to create a united democratic Sudan on a new basis of equality, complete restructuring and devolution of power, even development, cultural and political pluralism and moral and material prosperity for all Sudanese” [39]. It called upon tribes of “Arab background” to join its struggle for democracy. At various occasion it has stated that it was seeking an equitable share for Darfur in the country’s distribution of wealth and political power.

129. The SLM/A emphasizes that it has a national agenda and does not argue its case from a tribal perspective, and underlines that its cause is directed against the Khartoum Government, and not the Arab tribes in Darfur: “The Arab tribes and groups are an integral and indivisible component of Darfur social fabric that have been equally marginalized and deprived of their rights to development and genuine political participation. SLM/A firmly opposes and struggles against the Khartoum government’s policies of using some Arab tribes and organization such as the Arab Alliance and Quresh to achieve its hegemonic devices that are detrimental both to Arabs and non-Arabs.” [40]

130. In addition, it should also be noted that the SLM/A is part of the Sudanese opposition umbrella group, the National Democratic Alliance (NDA), which also includes the Sudan People’s Liberation Movement /Army (SPLM/A), the Umma party and other Sudanese opposition parties.

131. The SLM/A, as indicated by its name, is influenced in terms of agenda and structure by its southern counterpart, the SPLM/A. During the Commission’s meetings with the SLM/A leadership in Asmara, Eritrea, it was made clear that the group is divided into a political arm, the “Movement”, and a military arm, the “Army”. At the oustset of the conflict, the structure of the SLM/A remained unclear. In October 2003, the SLM/A reportedly held a conference in North Darfur State during which changes in their structure were discussed and a clear division of work proposed between the military and the political wings. Nowadays, and following the discussion members of the Commission had with SLM/A representatives in Eritrea, it appears that the movement’s non-military chairman is Abdel Wahid Mohamad al Nur and that the main military leader and the group’s Secretary-General is Minnie Arkawi Minawi. The negotiation team in the peace talks with the Government is headed by Dr. Sherif Harir. Little is known about the detailed structure, or about the actual size of the military arm. According to information obtained by the Commission, the SLM/A has acquired most of its weapons through the looting of Government installations, in particular police stations as well as army barracks. Other sources claim that foreign support has also played an important role in the build-up of the SLM/A forces. The Commission, however, was not in a position to confirm this.

132. The Commission obtained little information about the areas controlled by the SLM/A in Darfur. While certain rural areas are said to be under the group’s control, given its operation as a mobile guerilla group, these areas of control are not fixed. In the beginning of the conflict most of the fighting seems to have taken place in North and northern West Darfur, while it gradually moved southward into South Darfur during the last months of 2004.

    (ii) The Justice and Equality Movement (JEM)

133. Like the SLM/A, the Justice and Equality Movement (JEM) is a Darfur-based rebel movement, which emerged in 2001, and formed part of the armed rebellion against the Government launched in early 2003. In the field, it is difficult to make a distinction between JEM and SLM/A, as most often