The United Nations Commission of Inquiry
on reports of violations of international humanitarian
law in the Darfur region of Sudan has found that Sudanese
government forces and militias have conducted indiscriminate
attacks in Darfur, including mass killings, torture,
rapes and forced displacement of civilians. [1] The Commission, however, concluded
that the government of Sudan did not pursue a policy
of genocide. Mass killings or other atrocities,
without more, do not amount to genocide. There must be
specific intent “to destroy, in whole or in part,
a national, ethnical, racial or religious group, as such.” [2] The Commission did not find
genocidal intent on the part of the government. Although
the Commission was not able to make that finding, it
stressed the seriousness of the crimes that have been
committed in Darfur, including crimes against humanity
and war crimes. It recommended that the U.N. Security
Council immediately refer the situation to the International
Criminal Court (ICC, or Court) for investigation and
possible prosecution of the persons suspected of committing
those crimes. [3] The report did not release the
suspects’ names.
Crimes against humanity, as defined
in the Statute of the ICC, include such acts as murder,
deportation or forcible transfer of population, rape,
some forms of group persecution, and enforced disappearance
of persons, if committed “as part of a widespread
or systematic attack directed against any civilian population,
with knowledge of the attack.” [4] War
crimes include not only grave breaches of the Geneva
Conventions on the Law of War (such as the willful killing
of protected persons), but also many other specified
violations of the laws and customs of international or
non-international armed conflict. [5]
Sudan has signed the ICC Statute, but
has not ratified it and thus is not a state party. Nevertheless,
the U.N. Security Council could refer the Darfur situation
to the Court if the Council acts under Chapter VII of
the U.N. Charter, which gives the Council enforcement
powers when it finds that a situation poses a threat
to the peace, breach of the peace or act of aggression. [6] The
Security Council has already made that finding, several
times, with respect to the Darfur situation. [7]
Even if the Security Council refers
the situation to the Court, the case would be considered
inadmissible if it is being investigated or prosecuted
by a state having jurisdiction – unless the state
is unwilling or unable genuinely to carry out the investigation
or prosecution. [8] With
this in mind, the Commission found that the Sudanese
judiciary has been unwilling or unable to pursue the
crimes in question.
Several Security Council members favor
referring the Darfur situation to the ICC, but the United
States government has so far been resolutely opposed
to the Court and presumably would veto any draft resolution
that seeks to refer this (or any) case to it. There
are currently no legal constraints on the use of a veto
by any of the five permanent Security Council members.
The United States has proposed that
the matter be referred to a new international tribunal
jointly operated by the United Nations and the African
Union. The Security Council would establish the
tribunal under its Chapter VII powers. There are
precedents for this, in the form of the Security Council-created
tribunals for prosecutions arising from the conflicts
in the former Yugoslavia and in Rwanda. The proposed
tribunal would be based in Arusha, Tanzania, where it
presumably would share facilities with the current tribunal
for Rwanda. But the U.S. proposal has encountered
opposition on the ground that it would generate unnecessary
delay and expense when a competent tribunal -- the ICC
-- already exists and is ready to function. [9]
When the ICC Statute was being negotiated
and drafted, the United States advocated a significant
role for the Security Council in determining which situations
should be referred to the Court, in large part because
of concerns about giving the Court’s prosecutor
too much discretion in deciding which cases to pursue
and which to leave alone. The Statute, as finally
adopted, lists Security Council referral as only one
of three means by which the Court’s jurisdiction
may be invoked (the others being referral by a state
party to the Statute and initiation by the prosecutor). [10] The United States is now in
the position of opposing the use of the Council to refer
a situation that concededly would be within the Court’s
subject matter jurisdiction and its jurisdiction rationae
temporis. [11]
II. Compensation
Issues
The U.N. Commission of Inquiry on Darfur
did not limit itself to international criminal law issues. It
also recommended that the Security Council establish
a Compensation Commission to provide reparation to the
victims of the crimes, even if the perpetrators have
not been identified. [12] There is a precedent for a
Security Council-established compensation commission. After
the Persian Gulf war of 1991, the Security Council created
the U.N. Compensation Commission to evaluate claims against
Iraq for damage attributable to its invasion and occupation
of Kuwait. The Compensation Commission had an available
source of funds with which to compensate victims – a
percentage of the value of Iraq’s oil exports. [13] A
compensation commission for Darfur claims would not have
any comparable source of funds.
The Commission of Inquiry
on Darfur also addressed the question of the Sudanese government’s
potential legal responsibility to pay any claims that the
proposed compensation commission might find to be valid. Basing
its conclusion primarily on the post-World War II development
of international human rights law, the Commission said
that “at present, whenever a gross breach of human
rights is committed which also amounts to
an international crime, customary international law not
only provides for the criminal liability of the individuals
who have committed that breach, but also imposes an obligation
on States of which the perpetrators are nationals, or for
which they acted as de jure or organs, to make reparation (including compensation)
for the damage made.” [14] The Commission of Inquiry treated rebels separately;
their acts would not be imputed to the state. [15]
The United Nations International Law Commission
(ILC) has recently adopted a comprehensive text on
state responsibility for internationally wrongful acts. [16] Its text is widely regarded
as an authoritative statement of customary international
law on the subject. Article 4 of the ILC’s
text, read with the accompanying ILC commentary, does
contemplate that the conduct of a state organ, even
an unofficial de facto organ, is considered
an act of that state under international law. [17] It does not expressly contemplate
that under international law, human rights violations
by individuals who are nationals of the state (but
not acting as an organ of the state) would be attributable
to the state itself. It does, however, recognize
that in certain circumstances the international responsibility
of a state may be governed by special rules of international
law. [18]
There is some authority in the form of international
case law for the proposition that a state may be responsible
for unredressed human rights violations within its
jurisdiction, even if committed by persons who are
not state agents, if the state is a party to an international
human rights regime that requires its members to ensure
to all persons subject to their jurisdiction the free
exercise of their fundamental rights and freedoms. [19] Sudan is a party to the International
Covenant on Civil and Political Rights, which contains
such a requirement and which expressly recognizes the
right to life, the right to be free from torture and
from cruel, inhuman or degrading treatment, and the
right to security of person. [20] As the Commission of Inquiry
recognized, however, Sudan’s responsibility under
the Covenant presumably would not extend to unlawful
acts by rebels opposing the government.
Under the ILC’s
articles on state responsibility for internationally
wrongful acts, the state responsible for the wrongful
act is under an obligation to make full reparation. The
principal forms of reparation are restitution (restoring
the status quo ante,
if possible) and, if restitution is not forthcoming,
compensation for the damage caused by the wrongful
act. [21]
About the Author:
Frederic L. Kirgis is Law Alumni Professor
at Washington and Lee University School of Law. He
has written books and articles on international law,
and is an honorary editor of the American Journal of
International Law. The author is grateful to José Alvarez
for his extremely helpful comments on a draft of this
Insight. Any error or omissions are the author’s
own.
[1] The Commission’s
Report is available at <http://www.un.org/News/dh/sudan/com_inq_darfur.pdf>.
[2] Genocide
Convention, art. 2, 78 United Nations Treaty Series
277.
[6] ICC
Statute art. 13(b); UN Charter arts. 39, 41.
[7] See,
e.g., Security Council Resolution 1556 (July 30, 2004),
which is discussed in ASIL Insight, The U.N. Responds
to the Crisis in Darfur: Security Council Resolution
1556 (August 2004). That Insight also contains
background information regarding the Darfur conflict. For
more background details, see the Commission’s
Report.
[11] The
Court has jurisdiction only over crimes committed after
July 1, 2002, when the ICC Statute entered into force. See
ICC Statute art. 11(1). The crimes discussed
in the Report were committed after that date.
[18] ILC
Articles on State Responsibility, art. 55, in id.
at page 306.
[19] The
pathbreaking case was the Velásquez Rodríguez
Case, decided by the Inter-American Court of Human
Rights in 1988. See 1988 Report of the Inter-American
Court of Human Rights at page 35.
[20] International
Covenant on Civil and Political Rights arts. 2, 6,
7, 9, in 999 United Nations Treaty Series 171, and
in 6 ILM 368 (1967). See Manfred Nowak, U.N.
Covenant on Civil and Political Rights: CCPR Commentary
37-39 (1993). Sudan is also a party to the African
Charter on Human and Peoples’ Rights, but it
does not require states parties to “ensure” the
rights set forth in it.
[21] ILC
Articles on State Responsibility, arts. 31, 35, 36,
in Crawford, supra note 16, at pages 201, 213, 218.
_________________________________________________________________________
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