Darfur

Background and News Feed of the Day

A member of an SLA rebel faction in Tina, north Darfur.

Acknowledging the complex roots of the conflict in Sudan's western region of Darfur, the current phase took significant shape in late 2002, when two rebel groups, the Sudan Liberation Movement/Army (SLM/A) and the Justice and Equality Movement (EJM) began organizing themselves in opposition to the Khartoum government. Only loosely affiliated, though citing such common grievances as the marginalization of the Darfur population, the groups ramped up their military activities in early 2003, mainly attacking local police offices and looting Government property and weaponry. Since 2003 allegiances within and among the groups have shifted, and there are now more than a dozen splinter factions. A general delineation may be drawn between those groups which support the May 2006 Darfur Peace Agreement and those which do not.

Fighting has long continued despite the peace agreement, highlighted by a May 2008 attack by JEM rebels on Omdurman; this attack was the closest rebel groups have come to the capital city of Khartoum throughout the conflict. More than 222 people, including 34 civilians, are believed to have been killed. The UN Security Council immediately issued a press release condemning the attack and warning against retaliation against civilians. However, reports cited incidents of mass arrests and brutality during a government crackdown on Darfuri citizens. President al-Bashir formally severed diplomatic ties with Chad following the attack, accusing Sudan's neighbors of backing the rebel assault. The Sudanese government also asked the international community to list JEM as a terrorist group.

The Sudanese government and affiliated militia groups, the "Janjaweed," have conducted regular campaigns in Darfur, purportedly targeting the rebels, but the military operations have been described as deliberately and indiscriminately directed against civilians. They include the killing of civilians, torture, enforced disappearances, destruction of villages, rape and other forms of sexual violence, pillaging and forced displacement. The 2005 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General found that such conduct was committed on "a widespread and systematic basis, and therefore may amount to crimes against humanity." The UN estimates that, as a result of the ongoing conflict, 200,000 have died and 2.5 million have been displaced.

Although a number of complex questions and concerns arise from the application of international humanitarian law to the conduct of hostilities, the principles of distinction, proportionality and necessity, all of which are a part of customary international law, always apply to the use of armed force, regardless of the legality of the resort to force:

Distinction: Parties to an armed conflict must distinguish between the civilian population and combatants and between civilian objects and military objectives. Any intended target must be a military target.

Proportionality: Attacks are prohibited if they cause incidental loss of civilian life, injury to civilians or damage to civilian objects that is excessive in relation to the anticipated concrete and direct military advantage of the attack.

Necessity: The use of military force is only justified to the extent it is necessary to achieve a military goal. This force used must not exceed the level required to stop the threatening activity.

Other basic IHL principles include the duty to take precautions to spare the civilian population before and during an attack, to avoid the infliction of unnecessary suffering or destruction, and to not engage in indiscriminate attacks.

The Darfur Peace Agreement (DPA) signed between the Sudanese government and two rebel groups in May 2006 failed to bring peace, and the 7,000-strong African Union (AU) force has been unable to protect civilians from the widespread commission of atrocities.   UN Security Council resolution 1769, passed unanimously under Chapter VII of the UN Charter on 31 July 2007, authorized the establishment of UNAMID, a force of almost 20,000 troops, 6,000 police and a number of civilian workers, for an initial period of 12 months. The Council decided that UNAMID should start implementing its mandated tasks no later than 31 December 2007. Its core mandate of the mission is the protection of civilians, in addition to contributing to security for humanitarian assistance, monitoring and verifying implementation of agreements, assisting an inclusive political process, contributing to the promotion of human rights and rule of law, and monitoring and reporting on the situation along the borders with Chad and the CAR.   UN Security Council resolutions 1556 (2004) and 1591 (2005) introduced and strengthened an arms embargo on armed groups and the Janjaweed, with the latter resolution also introducing a travel ban and assets freeze against four named individuals from rebel groups, a pro-government militia and formerly of the Sudanese air force.

The conflict in Darfur has spread across its borders with Chad and the Central African Republic (CAR), provoking fears of a regional war. In 2004, more than 100,000 refugees from Darfur arrived in eastern Chad, among them members of armed groups. Sudanese-backed Janjaweed militia clashed with Chadian troops. In 2005, Sudanese troops and helicopters were reported to have made cross-border attacks in eastern Chad, and some refugees from Darfur became victims of violence in displaced persons camps in Chad. Chad's President Déby alleged that the government in Sudan was supporting cross-border violence in Chad. Armed clashes escalated in Chad during 2006, leading to the imposition of a state of emergency in the capital, north, east and south. Meanwhile, violence escalated in the CAR during 2006, causing thousands to be displaced in the north by clashes between the Union of Democratic Forces for Unity (UFDR), the coalition of rebels opposed to CAR President Bozizé, and government forces, supported by a contingent of French troops. President Bozizé has alleged that the UFDR is based in and receives support from Sudan. In September 2007, UN Security Council Resolution 1778 (2007) authorized the deployment of a protection force in Chad and the CAR, to comprise 3,700 European Union (EU) troops and 300 UN police, to be known as MINURCAT.

An October 2007 ceasefire between the Chadian government and rebel groups including the Union of Forces for Democracy and Development (UDD) broke down in December 2007, with renewed fighting. Tensions then escalated in early February 2008 when Chadian rebels launched a coup attempt, advancing on the capital from their eastern bases near the Sudan border. Although the rebels failed to overthrow Déby, there are still major concerns about the possibility of further insurgent attacks and escalation into an inter-state conflict. Chad has accused the Sudanese government of "repetitive aggression" in supporting opposition rebels in an attempt to prevent European peacekeepers from deploying as scheduled, a charge that Sudan has denied. Additionally, the Chadian rebels have questioned the neutrality of the EU force, with French troops being in the majority, and have stated that they will defend themselves against peacekeeping forces if threatened. France has previously been involved in military action to protect the standing Chadian government. Meanwhile, Sudanese rebel movements have openly acted in support of the Chadian government and have similarly accused the Sudanese government of aiding Chadian rebels.

Among the Chadian rebels who have been captured are numerous children. The Chadian government has stated that these child soldiers cannot be released until they have been re-educated. According to UNICEF and other human rights groups, Chad's government has forcibly recruited children into its ranks, and UNICEF stated in December 2007 that one its programs to demobilize child soldiers from the Chadian army had been cancelled by the government. Chad is a party to the 2000 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, part of the body of international humanitarian law, which requires States Parties to take all feasible measure to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities and are not compulsorily recruited into their armed forces. Further, armed groups that are distinct from the armed forces of a State are prohibited, under any circumstances, from recruiting or using in hostilities persons under the age of 18 years.

In response to growing tensions and continued attacks by the Sudanese government on Darfur villages, Chad has repeatedly called for the removal of all Sudanese refugees from its territory. In February 2008, unidentified gunmen on the Chadian border prevented the attempts of the UN Refugee Agency to move Darfurian families away from the volatile border region and into formal camps in eastern Chad. It is still unclear whether the move was connected to Chad's threats to expel Sudanese refugees. Two principal conventions govern international refugee matters, the 1951 Convention on the Status of Refugees, and its 1967 Protocol, to which Chad and Sudan have acceded. The principle of non-refoulement, in Article 33 of the Convention, stipulates that "no Contracting State shall expel or return a refugee in any manner whatsoever to...territories where his (or her) life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. However, this benefit may not be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the country in which he is." Further, Article 2 of the Protocol states that State Parties undertake to co-operate with the United Nations High Commissioner for Refugees (UNHCR) in the exercise of its functions. The UNHCR released a set of Guidelines on Sudan in February 2006, which included the recommendation that States provide international protection to Sudanese asylum-seekers by granting them recognition as refugees or by not forcibly returning them until such time as there is significant improvement in the security situation. Even more applicable is the Convention Governing the Specific Aspects of Refugee Problems in Africa, which outlines various responsibilities for member states of the AU, including the obligation not to reject at the frontier, return or expel any refugee that would compel him to return or remain in a territory where his life, physical integrity or liberty would be threatened. However, a Member State may appeal directly to other Member States for aid in lightening the burden of the Member State granting asylum. Member States shall also co-operate with the Office of the United Nations High Commissioner for Refugees.

Chad's response may also be a violation of the prohibition against retaliation under international law. Art. 60 of the Vienna Convention on the Law of Treaties explicitly recognizes the importance of adhering to humanitarian principles, even following material breaches of treaties by other nations, by prohibiting any form of reprisal in derogation of treaties of a humanitarian character. Reprisals are a specific kind of retaliation aimed at compelling the enemy to cease violations of international law, and they may be found legal if certain criteria are met. However, reprisals are limited by the principles of proportionality to the harm being done and necessity, and they cannot be aimed against the civilian population or other protected persons, along with civilian objects. The modern trend has been to outlaw reprisal under all circumstances.

Despite the diplomatic difficulties between Khartoum and the governments of Chad and the CAR, the conflicts in Darfur, Chad and the CAR are widely regarded as non-international armed conflicts, to which Article 3 Common to the Four Geneva Conventions of 1949 and Additional Protocol II to the Geneva Conventions applies. Sudan, Chad and the CAR have all ratified the Four Geneva Conventions, and Additional Protocol II. Further, where armed groups have a certain threshold of organization, stability and effective control of territory, as in Darfur, they are bound by customary international law for non-international armed conflicts [1].

To date, interested international organizations and NGOs have consistently referred to the Darfur conflict as a non-international armed conflict. However, there are many elements present that may support its classification as "internationalized" in character, including the use of UN peacekeeping forces, the involvement of third States and the heavy flow of refugees across national borders. There is no express body of law for "internationalized" armed conflicts, meaning that for the purposes of applying international humanitarian law, every conflict must be characterized as either wholly international or wholly non-international. In the past, certain internal conflicts have actually been reclassified as international armed conflicts, a leading example being the International Criminal Tribunal for the former Yugoslavia (ICTY)'s declaration of the Bosnian conflict as international. This was largely based on Croatia's direct intervention in the situation, described by the ICTY as "overall control," which went beyond possible financing and equipping, to the level of planning and supervising military actions. In contrast, in the case of the Rwandan genocide, the UN Commission of Experts and the International Criminal Tribunal for Rwanda (ICTR) chose to classify the conflict as non-international despite the involvement of neighboring states, emphasizing that the conflict took place within the territorial borders of Rwanda and did not involve the active participation of any other state.

Thus, growing disputes between the Chad and Sudan along with evidence of extensive governmental support for opposition rebel groups may play an important role in how the international community defines the nature of conflict in the Darfur region. If the conflict were to be declared international, the full body of international humanitarian law, including all of the Geneva Conventions and Hague Regulations, would cover both the actions of the governments and the rebel forces involved.

Meanwhile, the customary international humanitarian law applicable to the conflict in Sudan as it now stands still covers a vast range of activity, and mandates adherence to several fundamental principles of the laws of war.   Perhaps most relevant to the situation in Darfur, Chad and CAR is the prohibition of deliberate attacks on civilians, including international humanitarian workers. Both government forces and non-state armed groups must take precautions in order to minimize civilian harm. Further, both sides to a conflict must uphold the distinction between combatants and civilians, meaning that attacks targeting civilians or aimed at spreading terror among the civilian population are prohibited. Indiscriminate attacks on civilians are prohibited, even if a few armed elements are present, meaning that attacks must be directed at a specific military objective through a means of combat which can be directed and limited in effect. Feasible precautions must be taken to avoid and minimize the effects on civilians in any attack.

The circumstances in Sudan have also raised the possibility that in fighting an enemy that is difficult to identify, the militarily superior government forces have responded with methods and means of warfare that violate the customary principle of proportionality. Even where rebels may be present in villages, military forces are required to use only an amount of force proportionate to the threat posed by rebels. An attack should not be launched at all if the military advantage it poses would cause disproportionate damage to civilians or civilian objects, which means that incidental loss of civilian life, injury to civilians, or damage to civilian objects cannot be excessive in relation to the concrete and direct military advantage anticipated.

International humanitarian law prohibits the displacement of the civilian population, unless it is strictly for the purpose of civilian security or for reasons of military imperative. It is not clear that either reason is applicable to the Sudanese government's actions in forcing the relocation of established civilian camps. Displacement must not be carried out in a manner that violates the rights to life, dignity, liberty and security of those affected, and they must not be forcibly resettled in any place where their life, safety, liberty and/or health would be at risk.

Though the relevant articles of international humanitarian law require state consent for humanitarian access, [2] it is widely accepted that such consent may not be arbitrarily withheld. [3] There have been numerous charges against the Sudanese government and military of obstruction and hindrance of humanitarian assistance. The dire humanitarian situation has resulted in the United Nations, in Resolution 1556 (2004), and under Chapter VII, calling on the Sudanese government to "facilitat[e] international relief for the humanitarian disaster by means of a moratorium on all restrictions that might hinder the provision of humanitarian assistance and access to the affected populations."

Extensive destruction and displacement have resulted in a loss of livelihood and means of survival for citizens, a devastation greatly compounded by a lack of access to humanitarian relief. While humanitarian relief actions in non-international armed conflicts (see Common Article 3 and Article 18 of Additional Protocol II) require the consent of the state concerned, states are required not to arbitrarily deny consent and to allow impartial humanitarian relief for civilians in dire need. Further, the customary international humanitarian law for non-international armed conflict includes prohibitions on starvation as a method of combat, attacks on objects indispensable to the survival of the civilian population, and on the forced movement of civilians, all of which seem to have been violated through the destruction of villages along with food stores and tools for food preparation. In Sudanese government-controlled areas, displaced civilians have remained largely at the mercy of the Janjaweed, confined to camps and settlements with inadequate food, shelter and humanitarian assistance, with the risk of attack, rape and looting. Most of these internally displaced persons are afraid to return to their homes due to the renewed attacks and the failure of the government to intervene with the acts of violence imposed on the civilian community.

Under international humanitarian law, as well as the Genocide Convention, grave violations by states and non-state armed groups are clearly prohibited. The wording of Common Article 3 states that it is binding upon each party to the conflict, which includes non-state armed groups as well as the state. Additional Protocol II sets a higher threshold for applicability to a group, as it requires that a group must be "under responsible command, exercise such control over [a High Contracting Party's] territory as to enable [it] to carry out sustained and concerted military operations and to implement this Protocol." However, in regards to individual responsibility, customary international humanitarian law places criminal responsibility on all persons who commit, who order the commission of, or who are otherwise responsible as superiors for the commission of war crimes.

Additional Background Information

The conflict in Sudan's western Darfur region flared in 2003 when two rebel groups rose up against the government, accusing it of neglect.

Khartoum moved swiftly to crush the revolt by the Justice and Equality Movement (JEM) and the Sudan Liberation Army (SLA). The government is widely accused of arming militias drawn from Arab tribes who have used scorched-earth tactics against the rebels' communities. The militias, known as Janjaweed, are blamed for killings, widespread rape and abductions. Refugees describe them as ferocious gun-wielding men riding camels or horses who burn villages and steal whatever they can carry.

Khartoum has repeatedly denied any links to the Janjaweed, dismissing them as outlaws.

In 2008, the International Criminal Court (ICC) prosecutor charged Sudan's president with masterminding a campaign of genocide. He has dismissed the charges.

Exact figures for the number of people killed in the conflict are hard to determine.The United Nations says that as many as 300,000 may have died since 2003 - a figure disputed by Khartoum, which puts the figure at closer to 10,000. The violence has also driven up to 2.9 million people from their homes, according to the United Nations. Many are now living in squalid camps in Darfur and neighbouring Chad. International Crisis Group says the removal of so many people from their homes appears to be part of a government policy of ethnic cleansing in a bid to cripple support for the rebel movements.

The displaced are mostly African farmers from the Fur, Zaghawa and Massaleit tribes. The Janjaweed come from Arabic-speaking pastoralist communities, which herd camels in northern Darfur and cattle in southern Darfur. Both the farmers and the pastoralists are Muslim, dark-skinned and have intermarried for centuries. The Zaghawa are also camel herders and have strong ties to Chad.

STRUGGLE FOR RESOURCES

Darfur's population of 7 million is scattered over a harsh desert area the size of France. The region, historically separate and long neglected by Khartoum, lacks basic infrastructure and social services. Experts say the motives for the rebellion were exclusion from political power, lack of roads, schools and water infrastructure.

The Darfur rebels' grievances are similar to those of some 30 armed groups in the south of the country and elsewhere. Land used to belong to tribes - Darfur means 'the place of the Fur people'. There are at least 36 main tribes in the region. Some of the Arab people felt left out of a system that gave more "dars" (districts) to non-Arab communities.

Traditionally, conflicts were settled with little or no violence by respected local councils. These were abolished by the Khartoum government after it came to power in a coup in 1989, leaving no mechanisms for resolving disputes peacefully.

The disbandment of the councils coincided with droughts and the encroachment of the expanding Sahara Desert, which has forced Arab herders from the north into competition over land with farmers based in villages. To make matters worse, ethnic differences between the two groups - who used to co-exist by and large peacefully - have been exaggerated by local leaders in the battle over resources.

When Khartoum retaliated against Darfur's rebels it lit a powder keg. The existence of oil in Darfur, revealed in 2005 when Sudan's ABCO corporation - which is partly owned by Swiss company Cliveden - began drilling, has led some analysts to wonder to what extent oil could be guiding Khartoum's actions in the region. Some experts have suggested the oil reserves could act as an incentive to end the fighting. Drilling is risky during conflict, and if the oil can be extracted, there will be more wealth to go around.

In October 2007, the JEM rebel group said it had attacked Sudan's Defra oil field in the Kordofan region, neighbouring Darfur, killing 20 government soldiers and taking two foreign hostages - although Khartoum denied the raid. The rebels vowed to launch more assaults on oil installations across Sudan until Khartoum gave in to a string of demands.

Some more recent attacks on oil workers are believed to be the work of local tribesmen. Many commentators say the conflict in Darfur has been exploited in the struggle for power within Sudan's Islamist movement. Hassan al-Turabi, an Islamist who was influential in the government but split in late 1999, has voiced his support for the rebels, increasing Khartoum's anger against him and the rebels.

FLAWED PEACE AGREEMENT

The Sudanese government and rebels agreed to direct peace talks in Abuja, Nigeria, in November 2005. But progress was painfully slow. Khartoum and SLA factional leader Minni Arcua Minnawi finally signed a deal in May 2006, but it was rejected by JEM and the leader of a rival SLA faction, Abdel Wahed Mohammed al-Nur.

Nur argued that the deal did not address some key demands of the Darfur people, including greater compensation for war victims, more political posts for the SLA, and greater SLA involvement in the protection of returning displaced people and disarmament of pro-government militias. Refugees rioted against the agreement in several camps and students protested in Khartoum. Since the peace deal, the fighting has shifted from a more-or-less two-way conflict between central government and rebels to a more complex war also involving heavy fighting between various rebel factions.

Originally, the SLA united supporters from the Fur, Zaghawa and Massaleit tribes, but after the 2006 peace deal, it split increasingly along tribal lines. Minnawi is a Zaghawa, an ethnic group accounting for about 8 percent of Darfur's population. Nur is a Fur, which is the largest ethnic group in Darfur, comprising 30 percent of the population. JEM is mostly Zaghawa.

After the peace deal, the Sudanese military appeared to support Minnawi's side. His faction has been accused of using Janjaweed-like tactics, including raping and killing women from the Fur tribe. Nur's supporters have also been accused of gang-raping women for having Zaghawa husbands.

JEM has also splintered into many factions. The United Nations and African Union said in May 2007 that their new focus was to unite the disparate rebel groups in readiness for fresh peace talks with Khartoum. The rebel groups now number more than ten and, as new alliances form, it becomes ever harder for them to present a united front that can serve as a basis for negotiation. Reports suggest Arab tribes in Darfur may also be losing patience with Khartoum. Some Arab communities are said to feel they have been used by the government to fight its battles, scapegoated for atrocities and then excluded from the political process.

One of the biggest Janjaweed groups defected from the government in October 2007, throwing its lot in with rebels it had previously been fighting. It later allied itself again with the government after securing concessions. Peace negotiations between the government and Darfur rebels were left in ruins in May 2008 when JEM launched a shock attack on Khartoum.

Since then Qatar, representing the Arab League, has begun working with the African Union and United Nations in mediating peace talks. The United Nations says this is the best hope yet for the region. In October 2008, President Omar Hassan al-Bashir launched a national initiative for peace with a forum to discuss the conflict, which was attended by AU representatives, as well as Egypt, Libya and Qatar, Sudanese political parties and civic groups. Rebel groups refused to attend. Rebel leaders say they will not negotiate with Khartoum unless the government stops its violence against civilians.

WRANGLING OVER PEACEKEEPERS

In early 2008, a hybrid U.N.-African Union (AU) force took over peacekeeping in Darfur from a purely AU force. The 7,000-strong AU force had been massively overstretched and unable to quell the violence or protect civilians.

The U.N. Security Council has authorised up to 26,000 troops and police for the new hybrid force but less than half that number are on the ground, with more promised by the end of 2008.

Khartoum has been accused of impeding deployment and the international community has been blamed for not providing necessary equipment and funds. A major challenge facing the new force is the lack of a peace agreement. U.N./AU-led efforts to revitalise the failed 2006 peace deal have foundered on the refusal of several major insurgent groups to take part in negotiations. The deployment of UNAMID (United Nations-African Union Mission in Darfur) follows lengthy wrangling.

China took credit for eventually persuading Sudan to accept the additional peacekeepers. As a major buyer of Sudanese oil and supplier of arms, China is highly influential in Sudan and has come under international pressure to do more to stop the violence.

Khartoum says as much of the force as possible should be African.

INSECURITY SPILLS ACROSS BORDERS

The Darfur conflict has also spilled over Sudan's western borders into Chad and Central African Republic, involving several armed groups that have forced people to flee their homes in all three countries. Sudan and Chad accuse each other of helping rebel movements in one another's countries. Chad also says Khartoum supports Janjaweed militias that attack African farming tribes inside its borders.

Chad's President Idriss Deby is from the Zaghawa tribe whose members live on both sides of the border and are among rebels fighting against Khartoum. Around a quarter of a million Darfuris have fled to U.N.-run camps in Chad, while a smaller number of Chadian refugees have sought shelter in Darfur. CAR's government also accuses Sudan of arming a coalition of rebels (the Union of Democratic Forces for Unity) who oppose President Francois Bozize and, in 2006, captured several towns in the northeast. Khartoum has denied any involvement.

The U.N. Security Council has authorized the deployment of a European force, known as EUFOR, to protect refugees, civilians and humanitarian operations in Chad and Central African Republic. The 12-month mission began in March 2008.

Deby and al-Bashir signed a non-aggression pact the same month.

DARFUR'S HUMANITARIAN CRISIS

Some 16,370 aid workers in Darfur provide relief to more than 4.7 million people, according to U.N. figures. But they face increasing attacks and harassment by militia, rebels, bandits and even police, as well as bureaucratic obstacles.

Scores have been killed and many more injured. Aid agency compounds have been attacked, assets looted, staff threatened and clinics set on fire. Some groups have had to suspend operations in certain areas and hundreds of aid workers have left Darfur because of safety fears and restrictions on access. U.N. agencies say rebel groups, militias and Chadian rebels have stolen humanitarian trucks for use in combat. Drivers have often been kidnapped. Hijackings in parts of western and northern Darfur have forced the United Nations to use helicopters.

The fragmentation of rebel groups has made it harder for aid groups to know who is in command, and to obtain guarantees of safe passage. Relief workers also complain that Khartoum keeps them under surveillance and hampers their work with a host of administrative obstacles.

Aid workers have been arrested and Khartoum hindered visits by the former U.N. aid chief Jan Egeland. In October 2006, the United Nation's Sudan mission head Jan Pronk was expelled after he wrote in his blog that the army had suffered two major defeats at the hands of the rebels. The Norwegian Refugee Council says Sudanese government obstruction forced it to close its Darfur operation in 2006.

Conditions have also worsened for Darfur's internally displaced. Some have been forced to flee two or three times. More than 300,000 were uprooted in 2008 alone, according to the United Nations. Increased fighting between rebel factions and government air attacks on rebels have exacerbated the risks to civilians. Villages continue to be burned, looted and bombed, and crops and livestock destroyed. Camps for the displaced have also been raided by armed groups.

Aid agencies warn that women face rising levels of sexual abuse - especially those who venture out of camps to collect firewood. Malnutrition rates hover near emergency levels and hygiene in camps is poor. The United Nations has warned that insecurity is affecting healthcare as aid agencies are forced to scale back their work. U.N. and non-governmental agencies say the humanitarian response risks breaking down entirely unless more is done to improve security for aid workers and civilians.

HUMAN RIGHTS ABUSES

Human rights groups have accused Khartoum - under the aegis of President Bashir - of torture and severe repression of political opposition and religious freedoms.

Washington has called the Darfur crisis "genocide", a term Khartoum rejects and European governments have been reluctant to use. A U.N.-appointed commission concluded in 2005 that no genocide had taken place, but said there had been heinous war crimes no less serious than genocide. It also said individuals may have acted with genocidal intent. In 2008, the ICC's chief prosecutor took the momentous step of charging Bashir with masterminding genocide in Darfur, killing 35,000 people and persecuting hundreds of thousands more.

Prosecutor Luis Moreno-Ocampo says that on top of the thousands killed by Sudan's armed forces and the militia they support, 2.5 million others are subjected to a campaign of "rape, hunger and fear" in refugee camps where he says genocide continues "under our eyes". Bashir says the ICC has no jurisdiction in Sudan. The court has not yet issued an arrest warrant.

Bashir is the first head of state charged by an international court since Liberia's Charles Taylor and the former Yugoslavia's Slobodan Milosevic. The U.N. Security Council has referred dozens of other names of Sudanese war crimes suspects to the ICC. ICC prosecutors are keen to try a junior humanitarian affairs minister, Ahmed Haroun, and militia commander Ali Muhammed Ali Abd-al-Rahman, also known as Ali Kushayb.

Haroun was state minister of the interior at the height of the conflict. Moreno-Ocampo says evidence shows Haroun funded the Janjaweed from an unlimited budget and he was seen delivering arms to the militia.

Kushayb was allegedly seen giving orders to the Janjaweed, inspecting naked women before they were raped by men in military uniforms and participating in summary executions. Frustrated at Khartoum's intransigence over Darfur, Washington has tightened sanctions against Sudan. The measures are mostly aimed at companies owned or controlled by the government, including firms in oil and petroleum export-related businesses. The U.N. Security Council has imposed sanctions on four Sudanese accused of abuses in Darfur.

Ethnic violence in the Darfur region of Sudan has taken the lives of more than 200,000 Sudanese. More than 2 million people have been driven from their homes. Some have fled to neighboring countries, such as these Darfur refugees at a feeding center in Chad

Sudanese military officer Muhammad Gaafar al-Nimeiry of Sudan overthrew the civilian government in 1969. Four years later, Nimeiry and his entourage made a partially successful visit to London, seeking closer military ties with Britain. Nimeiry himself was ousted by his senior military officers in 1985.

NEWSFEED

GENOCIDE IN DARFUR: A LEGAL ANALYSIS

Statement of Purpose

The purpose of this memorandum is to ascertain whether the acts of violence and aggression in Darfur, Sudan meet the legal standard for genocide as set forth in the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). The memorandum concludes there is sufficient evidence to meet the legal requirements for a determination that genocide is occurring in Darfur, Sudan.

The Elements of the Crime of Genocide

Article II of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide defines genocide as the following:
Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.¹

This language highlights three important elements. First, the victims must constitute a national, ethnical, racial, or religious group. Second, the Convention dictates that certain enumerated acts of harm or willful neglect must have been inflicted upon members of such a group. Third, those acts of harm must have been undertaken with the intent to destroy or partially destroy the group. Each of these three elements must be present to constitute genocide.

Are the victims of violence in Darfur members of a group, as defined by the Genocide Convention, which has been specifically targeted?

The first element of the crime of genocide is the group status of the victims. Article II of the Genocide Convention requires the victims to belong to a "national, ethnical, racial or religious group." Neither the Convention nor any other international document defines these terms,² but international tribunals have stated that the concepts "partially overlap"³ and should be "assessed in the light of a particular political, social and cultural context."⁴

In evaluating charges of genocide, the International Criminal Tribunals for Rwanda (ICTR) and the Former Yugoslavia (ICTY) have offered definitions for the various Article II groups. In the Akayesu case, the ICTR found racial groups to be "based on the hereditary physical traits often identified with a geographical region, irrespective of linguistic, cultural, national or religious factors."⁵ The ICTR has also described an ethnic group to be "one whose members share a common language and culture."⁶ In the Jelisic case, the ICTY argued that objective criteria alone were insufficient and believed it appropriate to evaluate group status "from the view of those persons who wish to single that group out from the rest of the community."⁷

The Fur, Zaghawa, and Masaalit tribes of the Darfur region qualify as both a racial and an ethnic group under the Genocide Convention. All of the victims are black African as opposed to Arab Sudanese. In its September 2004 report "Documenting Atrocities in Darfur," the State Department described the tribes as "non-Arab." Each of the tribes in the Darfur region speaks a Nilo-Saharan language, distinct from that spoken by the Arab Sudanese.⁸ Further, each of the tribes settled in the Darfur region before the creation of the Sudanese state. As the Fur, Zaghawa, and Masaalit tribes share a common language, culture and ethnic identity, they qualify as a "group" for the purposes of the Genocide Convention.

A subjective analysis of group status reinforces this finding. Members of each tribe identify themselves as black and maintain a separate identity from the Arab Sudanese. Periodic tensions between the black African tribes and the Arabs settled in the area can be traced back to the 1930s.⁹ During the current violence, a United Nations fact-finding mission discovered that many ethnically African villages had been targeted for destruction, while nearby Arabic villages remained unscathed.¹⁰ These facts demonstrate that both the victims and the perpetrators subjectively viewed the black African tribes as a distinct group, further affirming their group status under the Genocide Convention.

Have any of the acts enumerated in the Genocide Convention been perpetrated against the group?

The "enumerated acts" constitute the second requirement of genocide. Article II lists five acts that can satisfy the physical act element of the crime of genocide. Only one element needs to be present to determine genocide. The government of Sudan and the Janjaweed militia have committed four enumerated acts of genocide against the non-Arab peoples of Darfur: killing members of a group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, and imposing measures intended to prevent births within the group.

(a) Killing members of the group: The legal definition of "killing" is relatively straightforward under the Genocide Convention. The term is interchangeable with "caused death."¹¹ The ICTR identified two elements: a deceased, and an unlawful act or omission which causes the death.¹²

Numerous reports establish the presence of both of these elements in Darfur. The United States government, the United Nations, international organizations, and the media have all documented the killing of civilians in Darfur. According to a September 2004 State Department report, 61% of refugees interviewed reported seeing a family member killed, 67% reported seeing a non-family member killed, and 44% had witnessed a shooting.¹³ In total, the World Health Organization estimates that the Janjaweed and Sudanese government forces have killed 50,000 people in Darfur.¹⁴ The element of "killing" as defined by the Genocide Convention is clearly met in the case of Darfur.

(b) Causing serious bodily or mental harm to members of the group: "Serious bodily or mental harm" requires proof of actual harm, but the injury need not be permanent in nature.¹⁵ In the Kayishema and Ruzindana case, the ICTR defined this requirement as "harm that seriously injures the health, causes disfigurement or causes any serious injury to the external, internal organs or senses."¹⁶ The ICTY also suggested that torture and degrading treatment may qualify as genocidal acts under Article II(b).¹⁷

Regarding mental harm, the Preparatory Committee of the International Criminal Court stated in a footnote to a draft provision on genocide that mental harm "is understood to mean more than the minor or temporary impairment of mental faculties."¹⁸ In Kayishema and Ruzindana, the ICTR considered mental harm established only where "at the time of the act, the accused had the intention to inflict serious mental harm." In Akayesu, the ICTR further stated that "rape . . . certainly constitutes infliction of serious bodily and mental harm."¹⁹

The victims of violence in Darfur have suffered serious physical harm.
Documented abuses against members of Darfur's non-Arab communities include rape, beatings, ethnic humiliation, and destruction of property and basic necessities.²⁰ The 2004 State Department report stated that 21% of the Darfurian refugees interviewed had either experienced or witnessed a beating.²¹ An August 2004 report from Human Rights Watch further indicated that internally displaced persons (IDPs) in government-controlled towns faced constant threats of assault and detention.²²

Many Darfurian women have suffered serious mental harm under the Genocide Convention. The 2004 State Department report found that 16% of the surveyed refugees had witnessed or experienced rape, and a July 2004 Amnesty International report stated that its observation team compiled a list of 250 rape victims from the refugee population of three Chadian camps. Further, the intent of the rapists in Darfur can be inferred from the nature of the crimes. The Amnesty International Report contains witness accounts of victims raped in public, as well as racially-motivated epithets during attacks, such as "You blacks, you have spoilt the country! . . . We will kill your husbands and sons and sleep with you! You will be our wives!" Given such express intent, these crimes constitute serious mental harm under the Genocide Convention.

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part: Article II(c) applies to the infliction of conditions of life designed to destroy the group. Regardless of whether death actually occurs, this act is completed by imposing conditions that do not immediately kill, "but ultimately seek [the victims'] physical destruction."²³ The U.N. Preparatory Commission for the International Criminal Court stated that this category may include "deliberate deprivation of resources indispensable for survival, such as food or medical services, or systematic expulsion from homes."²⁴ The ICTR has stated that rape fits under this category as a "method of destruction which do[es] not immediately lead to the death of members of the group."²⁵

The Sudanese government and the Janjaweed militias have deliberately inflicted conditions of life calculated to destroy the black African tribes of Darfur by systematically expelling civilians from their homes. The State Department report found that "as of August 2004, based on available information, more than 405 villages in Darfur had been completely destroyed, with an additional 123 substantially damaged, since February 2003."²⁶ The UN Office for Coordination of Humanitarian Affairs estimates that there are 1.2 million civilians internally displaced in Sudan or in refugee camps in Chad because of forced expulsion from their homes and fear of attacks from militia or government forces.²⁷

The Sudanese government's blockage of humanitarian aid compounds the effects of the displacement and further confirms a violation of Article II(c). A September 2004 report by the World Health Organization found the mortality rate among internally displaced persons (IDPs) from Darfur to exceed emergency levels and stated that between 6,000 and 10,000 people were dying every month from violence and disease in Darfur.²⁸ Despite its pledges to facilitate humanitarian access, the Sudanese government has also restricted such access to displaced refugees, according to an August 2004 United Nations report. Additionally, in response to a violent incident in the Kalma IDP camp, the government denied access for all humanitarian aid workers, effectively denying food and medical care to 50,000 civilians.²⁹

Finally, Sudanese troops and the Janjaweed have habitually stolen or killed cattle and other livestock, burned crops, and poisoned wells, which greatly inhibits the ability of non-Arab Darfurians to live on the land.³⁰ Patterns of such actions, in addition to the systematic displacement of civilians and the blockage of humanitarian aid, demonstrate the deliberate infliction of conditions calculated to destroy the non-Arab population of Darfur.

(d) Imposing measures intended to prevent births within the group: This enumerated act has two elements: the imposition of certain measures, and the intent of such measures to prevent births within the group.³¹ The measures need not destroy the group nor succeed in preventing births as the necessary act is the imposition of the measures itself. Both the ICTY and the ICTR have commented that the systematic rape of women constitutes a measure intended to prevent births within a group.³² This argument holds particular weight in patrilineal cultures, in which the ethnicity of the father determines the ethnicity of the child.³³

In Darfur, reports indicate that the Janjaweed militia is utilizing rape as a measure to prevent the births of non-Arab children. A July 2004 Amnesty International report identified 250 rape victims and discovered evidence of an additional 250 cases of rape in three refugee camps in Chad.³⁴ The September 2004 State Department report found that 16% of the Darfurian refugees it surveyed had witnessed a rape, been told about a rape directly by a victim, or been raped themselves.³⁵ The Washington Post reported in June 2004 that, according to interviews of two dozen women in IDP camps in West Darfur, Arab militiamen were raping women so that they would bear Arab children. During the attacks, the militiamen called the women "black slaves" and told them that they would make Arab babies to take over the land.³⁶ Further, the culture of the Fur, Zaghawa, and Masaalit tribes is patrilineal, meaning that any children produced by the rapes will be viewed as Arab Sudanese.³⁷ Such acts clearly meet the standard for demonstrating that the perpetrators sought to use rape as a means for preventing births within the victim group.

The actions of the Sudanese government and the Janjaweed have resulted in civilian deaths, serious physical and mental harm, conditions which can bring about the destruction of an enumerated group, and the prevention of births within the group. These actions are more than adequate to fulfill the second requirement of genocide under international law.

Have any of the acts enumerated in the Genocide Convention been undertaken with the intent to destroy or partially destroy the group?

Intent represents the final element of the crime of genocide. Article II of the Genocide Convention requires not only the intent to engage one of the enumerated physical acts, but also the specific "intent to destroy" a group "in whole or in part."

Intent to destroy: To commit genocide, a perpetrator must engage in an enumerated physical act with the intent of destroying the protected group, not merely the person or persons attacked or otherwise affected. Public statements calling for genocide or tangible documentation of genocidal plans can establish this specific intent, but the intent may also be inferred from the acts of the perpetrator.³⁸ The ICTY and the ICTR have considered a number of factors when evaluating charges of genocide in past cases. These factors include the scale of the atrocity, evidence of systematic planning, and statements of the perpetrators.³⁹

Ample evidence exists from which one could infer genocidal intent in Darfur. Not only has the human cost of the crisis in Darfur been drastic, but the U.N. Resident Humanitarian Coordinator stated in March 2004, "A predominant feature of this [war] is that the brunt of it is being borne by civilians. This includes women and children."⁴⁰ The UN statement supports information from NGO studies that have learned that men, women, children, and infants have all been killed by the Janjaweed.⁴¹ Further, a State Department report released in September 2004 found evidence of the targeted killing of male babies in Darfur -- a practice singled out by the ICTR as indicative of genocidal intent.⁴² The intent to destroy the non-Arab population of Darfu is evident from the scope of the violence which extends to civilian men, women, and children.

Evidence of systematic planning also supports an inference of genocidal intent. A May 2004 report by the U.N. High Commissioner for Human Rights stated that there was a "remarkable consistency in the witness testimony received...from among individuals throughout Darfur who had been displaced both many months ago and more recently."⁴³ U.N. officials had interviewed different groups of refugees who offered similar stories: air raids with bombers or helicopter gun ships, followed by ground attacks by the Janjaweed.⁴⁴ Further, a U.N. fact-finding mission found that Sudanese government and Janjaweed militia forces had destroyed numerous ethnically African villages but spared villages known to be occupied by Arabs.⁴⁵ Given the reported similarity of the attacks and the targeting of non-Arab villages, the pattern of attack is sufficient to infer genocidal intent.

Finally, numerous reports of racially-motivated statements accompanying the violence and displacement in Darfur strongly suggest genocidal intent. The September 2004 State Department report indicates that refugees often heard Sudanese soldiers and Janjaweed militia forces using racial epithets during attacks. Examples of ethnically motivated statements include, "Kill the slaves" and "Blacks must leave."⁴⁶ Roughly one-third of the refugees interviewed reported hearing racial epithets.⁴⁷ These statements demonstrate a manifest intent to destroy the non-Arab population in Darfur.

In whole or in part: The perpetrator need not intend to completely annihilate a group in all parts of the world. All that is necessary is an intent to destroy the group "in part." The ICTR has interpreted this provision as requiring "the intent to destroy a considerable number of individuals,"⁴⁸ and the ICTY understands it to mean a "substantial" part.⁴⁹ However, the tribunals have not further defined "considerable" or "substantial," and international law scholars believe the Genocide Convention drafters included the "in part" language largely to prevent perpetrators from claiming they intended only the partial destruction of a group, such as the total destruction of a group's population within a given state.⁵⁰

The number and proportion of civilians affected by the violence in Darfur clearly satisfy this standard. Current estimates place the number of dead at 50,000.⁵¹ The 2004 State Department report indicates that over 500 villages in Darfur have been destroyed or heavily damaged,⁵² resulting in the flight of 200,000 refugees to Chad and creating an additional 1.2 million internally displaced persons.⁵³ The total population of Darfur, including both Arab and non-Arab peoples, is only 6 million.⁵⁴ Given the large number of people affected by the violence, the attacks in Darfur clearly manifest an intent to destroy the non-Arab population at least "in part."

Internal conflict does not justify genocide

Genocide can occur in the midst of an internal conflict, and acts of genocide are not justified by such conflicts. In Rwanda, the ICTR ruled that the genocide undertaken by the Hutu against the Tutsi was "fundamentally different" from the conflict between the Hutu-dominated Rwandan government (RAF) and the Tutsi-led Revolutionary Patriotic Front (RPF). The court found that "the fact that the genocide took place while the RAF was in conflict with the RPF can in no way be considered as an extenuating circumstance for it."⁵⁵

Similarly, claims by the Sudanese government that the killing of civilians in Darfur is the result of internal conflict stemming from the rebellion of the Sudan Liberation Army (SLA) and the Justice and Equality Movement (JEM) do not rebut allegations of genocide. The Sudanese government has been specifically implicated in the attacks on the non-Arab residents of Darfur by supporting the Janjaweed and actively participating in attacks on civilians. Refugee testimony consistently indicates that air raids with bombers or helicopter gun ships would precede Janjaweed attacks on villages,⁵⁶ and many reports indicate the presence of Sudanese troops during ground attacks as well.⁵⁷ The armed conflict in Darfur does not mitigate the responsibility of the Sudanese government for the genocide occurring there - especially in light of the evidence that government forces are directly participating in the genocidal campaign.

Conclusion

A review of the nature of the attacks, rapes, killings and property destruction that have been widely reported indicates that there is sufficient evidence to satisfy the legal requirements for determining that genocide is occurring in Darfur, Sudan.

ABOUT THE PUBLIC INTERNATIONAL LAW & POLICY GROUP

The Public International Law & Policy Group (PILPG) is a 501(c)(3) organization, which operates as a global pro bono law firm providing free legal assistance to developing states and sub-state entities involved in conflicts. PILPG also provides policy formulation advice and training on matters related to conflict resolution.

PILPG has advised over a dozen countries on the legal aspects of peace negotiations and constitution drafting, and over fifteen countries in Europe, Asia and Africa concerning fundamental questions of public international law and foreign relations. PILPG has also advised four international criminal tribunals.

The four primary practice areas of PILPG are:
Peace building
International Justice
Post-Conflict Political Development
Public International Law
As a pro bono law firm, PILPG relies almost exclusively on volunteer legal assistance from more than sixty legal advisors and former diplomats, as well as major international law firms. On average PILPG is able to provide over $1.5 million worth of pro bono services annually.

PILPG provides legal assistance to a large number of clients without a physical infrastructure or any full time paid staff, and is thereby able to commit over 95 percent of its resources directly to project activities. Frequently, PILPG sends members in-country to facilitate the provision of legal assistance, and its members often serve on the delegations of its clients during peace negotiations.

PILPG maintains volunteer points of contact in Washington DC, New York, Boston, Cleveland, Seattle, London, Paris, Rome, The Hague, Stockholm, Belfast, Krakow, Budapest, Zurich, and Nairobi.

From 1996-1998, PILPG operated under the auspices of the Carnegie Endowment for International Peace. In July 1999, PILPG was granted official Non-Governmental Organizations status by the United Nations.

ABOUT THE AUTHORS:

Paul R. Williams, holds the Rebecca Grazier Professorship in Law and International Relations at the American University where he teaches in the School of International Service and the Washington College of Law. Professor Williams also directs the Public International Law & Policy Group which provides pro bono legal assistance to developing states and states in transition. Previously Professor Williams served in the Department of State's Office of the Legal Advisor for European and Canadian Affairs, as a Senior Associate with the Carnegie Endowment for International Peace, and as a Fulbright Research Scholar at the University of Cambridge. During the course of his legal practice, Professor Williams has assisted nearly a dozen states and sub-state entities in major international peace negotiations, and has advised fifteen governments across Europe, Africa and Asia on matters of public international law. Professor Williams is the author of Peace with Justice? War Crimes and Accountability in the Former Yugoslavia, and Indictment at The Hague, as well as numerous articles on genocide and war crimes. Professor Williams earned his Ph.D. from the University of Cambridge, and received his legal training at Stanford Law School.

Michael Scharf is Professor of Law and Director of the Frederick K. Cox International Law Center at Case Western Reserve University School of Law. During the first Bush and Clinton Administrations, Scharf served in the Office of the Legal Adviser of the U.S. Department of State, where he held the positions of Counsel to the Counter-Terrorism Bureau, Attorney-Adviser for Law Enforcement and Intelligence, Attorney-Adviser for United Nations Affairs, and delegate to the United Nations General Assembly and to the United Nations Human Rights Commission. Scharf's publications include Balkan Justice, which was nominated for the Pulitzer Prize in 1998, The International Criminal Tribunal for Rwanda, which was awarded the American Society of International Law's Certificate of Merit for the Outstanding book in International Law in 1999, and Peace with Justice, which won the International Association of Penal Law Book of the Year Award for 2003. Scharf has testified as an expert before the U.S. Senate Foreign Relations Committee; his Op Eds have been published by the Washington Post, Los Angeles Times, Boston Globe, and International Herald Tribune; and he has appeared as a commentator on "Nightline with Ted Koppel" (ABC), "The O'Reilly Factor" (Fox), "NewsHour with Jim Lehrer" (PBS), and "The Charlie Rose Show."

Jamal Jafari is a Senior Research Associate at the Public International Law and Policy Group. Before joining PILPG he worked at the International Crisis Group examining conflict situations in Africa. In addition he served as an Information and Documentation Officer with the Amani Trust, a human rights organization based in Harare, Zimbabwe. In August, 2004, he traveled to Chad to conduct interviews with refugees of the Darfur crisis in Sudan as part of a State Department fact finding team. Mr. Jafari received his legal training at the Washington College of Law, American University.

Kate Ahern is a Research Associate at the Public International Law and Policy Group. She has worked for an international development firm on small and medium enterprise incubation in developing countries and has worked on issues of Middle East trade. Ms. Ahern studied advanced International Peace and Conflict Resolution with a focus on public international law at American University in Washington, DC.

Elizabeth Walker is a Research Associate at the Public International Law and Policy Group. Previously, she worked on public health projects in Brazil, Kenya, Bolivia, and the U.S., with a particular focus on the rights of women and children living with HIV/AIDS. Ms. Walker completed her A.B. Magna Cum Laude in Sociology and Latin American Studies from Harvard University. She received her legal training at the Washington College of Law, American University.

Ryan Wolf is a Research Associate at the Public International Law and Policy Group. He earned an M.Phil in International Peace Studies from Trinity College Dublin. He has previously written on U.S. foreign policy in the Middle East and edited for the Human Rights Brief. Mr. Wolf received his legal training at the Washington College of Law, American University.

¹Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277, entered into force Jan. 12, 1951.
²Prosecutor v. Bagilisheman, International Criminal Tribunal for Rwanda (ICTR), Case No. ICTR-95-1A-T, para. 65, June 7, 2001.
³Prosecutor v. Krstic, International Criminal Tribunal for the Former Yugoslavia (ICTY), Case No. IT-98-33, para. 555, Aug. 2, 2001.
⁴Prosecutor v. Rutaganda, ICTR, Case No. ICTR-96-3, para. 56, Dec. 6, 1999.
⁵Prosecutor v. Akayesu, ICTR, Case No. ICTR-96-4-T, para. 514, Sept. 2, 1998.
⁶Prosecutor v. Kayishema and Ruzindana, ICTR, Case No. ICTR-95-1-T, para. 98, May 21, 1999.
⁷Prosecutor v. Jelisic, ICTY, Case No. IT-95-10, para. 70, Dec. 14, 999.
⁸The International Court of Justice discussed the terminology of a "group" in its "Reservations to the Convention on the Prevention and Punishment of Genocide," Advisory Opinion, ICJ Reports (1951), p. 23. For the State Department report, see United States Department of State Bureau of Democracy, Human Rights, and Labor and the Bureau of Intelligence and Research, "Documenting Atrocities in Darfur," Sept. 9, 2004, available at http://www.state.gov/g/drl/rls/36028.htm [hereinafter 2004 State Department Report].
⁹Ted Dagne, "Sudan: the Crisis in Darfur," CRS Report for the United States Congress, June 16, 2004, available at http://www.fas.org/man/crs/RS21862.pdf
¹⁰United Nations Inter-Agency Fact Finding and Rapid Assessment Mission: Kaliek Town, South Darfur. UN Resident Coordinator. 04/25/04.
http://wwww.reliefweb.int/w/rwb.nsf/0/8f4f1f5860913bacc1256e89002ea00f?OpenDocument
¹¹"Addendum: Part II - Finalized draft text of the Elements of Crimes," Report of the Preparatory Commission for the International Criminal Court, p. 6, U.N. Doc. PCNICC/2000/1/Add.2, Nov. 2, 2000 [hereinafter U.N. Draft Elements].
¹²Akayesu, supra note 5, para. 588.
¹³2004 State Department Report, supra note 8.
¹⁴"WHO says up to 10,000 refugees are dying each month in Darfur", available at http://www.medbroadcast.com/health_news_details_pf.asp?news_id=4772&news_channel_id=1000.
¹⁵Akayesu, supra note 5, para. 501.
¹⁶Kayishema and Ruzindana, supra note 6, para. 109.
¹⁷Prosecutor v. Karadzic and Mladic, ICTY, Case Nos. IT-95-5-R61 & IT-95-18-R61, July 11, 1996, Transcript of Hearing, p. 986, http://www.un.org/icty/transe5&18/960711IT.htm.
¹⁸"Report of the Preparatory Committee on the Establishment of an International Criminal Court." Part 2. Jurisdiction, Admissibility and Applicable Law, U.N. Doc. A/CONF. 183/2/Add.1, 14 April 1998, p. 11.
¹⁹Akayesu, supra note 5, para. 731.
²⁰2004 State Department Report, supra note 8.
²¹Id.
²²Human Rights Watch, "Empty Promises? Continuing Abuses in Darfur, Sudan," Aug. 11, 2004, pp. 13-14 [hereinafter August 2004 Human Rights Watch Report].
²³Akeyesu, supra note 5, para. 505.
²⁴U.N. Draft Elements, supra note 11, p.6, n.3.
²⁵Kayishema and Ruzindana, supra note 6, para. 116.
²⁶2004 State Department Report, supra note 8.
²⁷U.N. Office for the Coordination of Humanitarian Affairs, "Fact Sheet: Humanitarian Assistance for Darfur, Sudan," June 24, 2004, available at http://www.un.org/News/dh/sudan/humanassist.htm.
²⁸World Health Organization, "Retrospective Mortality Survey Among the Internally Displaced Population, Greater Darfur, Sudan, August 2004," Sept. 15, 2004, available at http://www.who.int/disasters/repo/14656.pdf. Colum Lynch, "Death Rates in Sudan's Darfur Rising, WHO Says," The Washington Post, Sept. 15, 2004, p. A18.
²⁹Report of the Secretary General pursuant to paragraphs 6 and 13 to 16 of Security Council resolution 1556 (2004). United Nations Security Council, Aug. 30, 2004.
³⁰Report of the United Nations High Commissioner for Human Rights and Follow-up to the World Conference on Human Rights: Situation of human rights in the Darfur region of the Sudan, May 7, 2004 [hereinafter May 2004 UNHRC Report].
³¹U.N. Draft Elements, supra note 11, p. 7.
³²Karadzic and Mladic, supra note 17, Transcript of Hearing, July 2, 1996, p. 959; Akayesu, supra note 5, para. 507.
³³Akayesu, supra note 5, para. 507.
³⁴Amnesty International, "Sudan: Darfur: Rape as a Weapon of War: Sexual Violence and Its Consequences," July 19, 2004, p. 4.
³⁵2004 State Department Report, supra note 8.
³⁶Emily Wax, "We Want to Make a Light Baby: Arab Militiamen in Sudan Said to Use Rape as a Weapon of Ethnic Cleansing," The Washington Post, June 30, 2004, http://www.washingtonpost.com/.
³⁷Id.
³⁸Akayesu, supra note 5, para. 523.
³⁹Kayishema and Ruzindana, supra note 6, para. 93.
⁴⁰This statement was also referenced in the United States House of Representatives Concurrent Resolution 467 declaring genocide in Darfur. July 22, 2004.
⁴¹See generally International Crisis Group, "Sudan, Now or Never in Darfur," Africa Report No. 80, May 23, 2004, available at http://sitebuilder.myregisteredsite.com/sitebuilder/; August 2004 Human Rights Watch Report, supra note 22.
⁴²2004 State Department Report, supra note 8.
⁴³May 2004 UNHRC Report, supra note 29.
⁴⁴Id.
⁴⁵United Nations Inter-Agency Fact Finding and Rapid Assessment Mission: Kaliek Town, South Darfur. UN Resident Coordinator, April 25, 2004, available at http://wwww.reliefweb.int/w/rwb.nsf/0/8f4f1f5860913bacc1256e89002ea00f?OpenDocument.
⁴⁶2004 State Department Report, supra note 8.
⁴⁷Id.
⁴⁸Kayishema and Ruzindana, supra note 6, para. 97.
⁴⁹Prosecutor v. Sikirica, et.al., ICTY, Case No. IT-95-8, Judgment on Defence Motions to Acquit, para. 65, Sept. 3, 2001.
⁵⁰William A. Schabas, Genocide in International Law: The Crime of Crimes, Cambridge University Press, 2000, p. 235.
⁵¹Supra note 14.
⁵²2004 State Department Report, supra note 8.
⁵³May 2004 UNHRC Report, supra note 29.
⁵⁴2004 State Department Report, supra note 8.
⁵⁵Akayesu, supra note 5, para. 128.
⁵⁶May 2004 UNHRC Report, supra note 29.
⁵⁷2004 State Department Report, supra note 8.