UN Commission's Report on Violations of International Humanitarian Law in Darfur

Frederic L. Kirgis
February 03, 2005
I. Criminal Law Issues
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 .
[2] Genocide Convention, art. 2, 78 United Nations Treaty Series 277.
[3] See the Commission's Report at paragraph 584.
[4] ICC Statute art. 7(1), 37 International Legal Materials 999 (1998).
[5] ICC Statute art. 8.
[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.
[8] ICC Statute art. 17(1)(a).
[9] The Commission itself raised these objections. See its Report at paragraphs 573-574.
[10] ICC Statute art. 13.
[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.
[12] Report at paragraph 590-591.
[13] See generally Richard B. Lillich (ed.), The United Nations Compensation Commission (1995).
[14] Repart at paragraph 598.
[15] Report at paragraphs 600, 603.
[16] See James Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (2002).
[17] See id. at pages 94, 98.
[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.
Addendum (Updated April 5, 2005)
On March 31, 2005, the United Nations Security Council adopted Resolution 1593, in which it decided to refer the situation in Darfur since July 1, 2002, to the Prosecutor of the International Criminal Court (ICC). The Security Council acted under Chapter VII of the U.N. Charter, which gives the Council the authority to deal with threats to the peace, breaches of the peace or acts of aggression. Article 13(b) of the ICC Statute authorizes, but does not require, the ICC to exercise its jurisdiction if the Security Council, acting under Chapter VII, refers to it a situation in which one or more of the crimes covered by its Statute appears to have been committed. Crimes covered by the Statute include genocide, crimes against humanity and war crimes.
This is the first time the Security Council has referred a situation to the ICC. Initially, the United States resisted doing so, but it ultimately abstained from voting on the resolution when paragraph 6 was inserted. Under longstanding practice in the Council, an abstention by a permanent member of the Security Council does not amount to a veto.
In paragraph 6, the Security Council "Decides that [persons] from a contributing State outside Sudan which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to operations in Sudan established or authorized by the Council or the African Union, unless such exclusive jurisdiction has been expressly waived by that contributing State." Article 16 of the ICC Statute bars investigation or prosecution under the Statute for 12 months after the Security Council, in a resolution adopted under Chapter VII of the U.N. Charter, "has requested the Court to that effect; that request may be renewed by the Council under the same conditions." In the preamble to Resolution 1593, the Security Council "recalled" article 16 of the ICC Statute, apparently relying on it in paragraph 6.
Resolution 1593 did not literally "request" the Court to refrain from exercising its jurisdiction; instead, the Security Council "decided" that the persons it designated would be subject to the exclusive jurisdiction of their contributing states. Apparently, the Security Council, at the behest of the United States, was taking no chances. In the current situation, the Council seems not only to have intended to make an Article 16 "request" in emphatic terms, but also -- by making a "decision" in paragraph 6 -- to pre-empt any U.N. member states that might try to refer the Darfur situation to the ICC under Articles 12-14 of the ICC Statute (a possible referral that, if it were properly done, could lead to ICC jurisdiction over U.S. nationals or other persons covered by paragraph 6). Security Council decisions under Chapter VII are binding on all U.N. member states. Under Article 103 of the U.N. Charter, if there is a conflict between the obligations of U.N. member states under the Charter and their obligations under any other international agreement (which would include the ICC Statute), their obligations under the Charter prevail.