Friday, February 04, 2005

Report of the International Commission of Inquiry on Darfur: 

A critical analysis (Part I)

Eric Reeves
February 2, 2005

The report of the International Commission of Inquiry on Darfur, delivered to
UN Secretary-General Kofi Annan on January 25, 2005 (the date of record for the
document), is of immense importance. This report offers us by far the most
complete and compelling picture of massive criminality in the Darfur conflict, and
establishes beyond any reasonable doubt the vastly disproportional culpability
of Khartoum's regular military forces and its Janjaweed militia allies.

Though unsparing in its criticism of the Darfur insurgency groups, particularly
the Sudan Liberation Army/Movement and the Justice and Equality Movement, the
report should put to an end to the expedient and deeply distorting language of
"moral equivalence" by which various international actors have equated the
behavior of Khartoum and the Janjaweed on the one hand and the insurgencies on the
other ("Although attacks by rebel forces have also taken place, the Commission
has found no evidence that these are widespread or that they have been
systematically targeted against the civilian population. Incidents of rebel attacks are
mostly against military targets, police or security forces" [Paragraph 240 of
the Report].)

At the same time, the report is badly compromised in its tendentious and poorly
reasoned conclusion about the absence of evidence of "genocidal intent" on the
part of Khartoum in Darfur. Indeed, so egregiously poor are the legal and
factual arguments about the issue of "genocidal intent" that we must conclude this
Commission did not feel politically free to make a determination of genocide.
The nature of the most likely political constraints are assessed later in this
analysis; but it is important to register here the largest implication of this
signal failure. For inevitably, given the relatively low quality of journalism
devoted to this report and the larger issues it raises, there has been a glib
and misleading fastening upon the Commission's finding that there is no
"genocidal intent" on Khartoum's part.

Such simplistic journalism also obscures both the extraordinary volume of
authoritative research in this 176-page document, fully establishing Khartoum's
responsibility for "crimes against humanity" on an extremely wide scale, as well as
the cogency of the Commission's arguments for a UN Security Council referral to
the International Criminal Court (ICC). To the extent that journalistic
accounts have treated the issue of such an ICC referral as an occasion for
highlighting tensions between the Bush administration and the vast majority of the
international community, this has also detracted from appropriate attention to the
issues of substance in the report. This is of course not the fault of the
Commission, but must be deeply lamented on an occasion calling for much more
substantive reporting on these compelling findings of monstrous criminality.

This present analysis is divided into three main sections (and into two parts,
to be transmitted separately): a critique of the paragraphs that treat the
question of "genocidal intent" (Section II, Para. 489-522 of the Report); an
overview account of the evidence assembled of massive crimes against humanity
(Section I, Para. 73-488); and an analysis of the recommendation that the UN Security
Council immediately refer these crimes to the International Criminal Court
(Section III, Para. 523-649; this will entail discussion of the decision by the
Commission publicly to withhold the names of criminal suspects in the Khartoum
government and the Janjaweed).


In Section II ("Have Acts of Genocide Occurred?"---Para. 489-522), the
Commission authors are responding to explicit terms of reference defining their
mandate, as established by UN Security Council Resolution 1564 (September 18, 2004):
"To determine whether or not acts of genocide have occurred" (Para. 2). In
making this determination, the Commission authors conclude, appropriately, that the
non-Arab/African tribal groups of Darfur (primarily the Fur, the Massaleit, and
the Zaghawa, but others as well) "who were victims of attacks and killings
subjectively make up a protected group" (i.e., a "protected group" per the language
of the 1948 Convention on the Prevention and Punishment of the Crime of
Genocide, Article 2).

Moreover, the reports concludes that:

"Some elements emerging from the facts, including the scale of atrocities and
the systematic nature of the attacks, killing, displacement and rape, as well as
racially motivated statements by perpetrators that have targeted members of the
African tribes only, could be indicative of the genocidal intent." (Para. 513)

This is one of "two elements of genocide [that] might be deduced from the gross
violations of human rights perpetrated by Government [of Sudan] forces and the
militias under their control" (Para. 518) the other being "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" (from
the Introduction) to this "protected group" of non-Arab/African tribal groups.

But then, in a manner dismayingly incompetent and tendentious, the report
continues by attempting to demonstrate that, "there are other more indicative
elements that show the lack of genocidal intent" (Para. 513):

"One crucial element appears to be missing, at least as far as the central
Government authorities are concerned: genocidal intent. 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." (Para. 518)

Here the Commission authors have, in most conspicuous fashion, destroyed the
essential distinction with which they themselves appropriately begin their
discussion of genocide:

"From the viewpoint of criminal law, what matters is not the motive, but rather
whether or not there exists the requisite special intent to destroy a group."
(Para. 493)

It matters not whether we decide that the Commission authors are correct in
arguing that Khartoum's primary motive in orchestrating ethnically-targeted
civilian destruction is "counter-insurgency warfare," or (as many would argue) is
rather an effort to reshape the demographic and political realities of Darfur,
favoring specific Arab tribal populations as a means of consolidating central
political power. The issue is not, as the authors themselves explicitly state,
Khartoum's "motive" but rather whether there is an "intent to destroy a group,"
whatever the motive.

Such intellectual failing is so fundamental as to vitiate any conclusion
deriving from this line of reasoning. But even when we follow the tortured reasoning
of the Commission authors further, we find only more examples of fallacious
logic, a highly skewed selection of evidence, as well as an inexplicable and
disturbing failure to cite evidence that contradicts assertions made.

As a first example of an "indicative element showing the lack of genocidal
intent," the Commission authors declare:

"The fact that in a number of villages attacked and burned by both militias and
Government forces the attackers refrained from exterminating the whole
population that had not fled, but instead selectively killed groups of young men, is an
important element." (Para. 513)

But of course there have been many a great many "villages attacked and burned
by both militias and Government forces" in which the whole population was in
fact killed or forced into flight that held clear risk of death. Why is this not,
by the same evidentiary logic, indication of "genocidal intent"?

Moreover, we must recall that the language of the Genocide Convention twice
refers to destruction of a protected group "in whole or in part." The selective
sparing of life, in some circumstances, hardly diminishes the obvious fact that
the ethnically-targeted destruction of the non-Arab/African tribal populations
of Darfur has been achieved in very substantial part---certainly meeting all
the "substantiality" criteria for what constitutes a "part" in the Genocide
Convention. Instancing particular examples in which all people held captive were not
killed cannot demonstrate ipso facto a lack of genocidal intent for any number
of reasons, e.g., prudential considerations in light of the presence of
international aid observers (including calculations about the difficulties of body

Consequential errors of fact on the part of the Commission authors are revealed
in a subsequent paragraph, also purporting to show a lack of "genocidal

"Another element that tends to show the Sudanese Government's lack of genocidal
intent can be seen in the fact that persons forcibly dislodged from their
villages are collected in IDP camps. In other words, the populations surviving
attacks on villages are not killed outright, so as to eradicate the group; they are
rather forced to abandon their homes and live together in areas selected by the
Government." (Para. 515)

This is an incomplete, finally deeply inaccurate characterization of the
realities of internal displacement in Darfur (and into Chad). First, a great many
village populations have been killed outright in their entirety (or
overwhelmingly), or die in flight from violence. Indeed, mortality is exceedingly high
following violent displacement (which constitutes the vast majority of human
displacement in Darfur). Of note here is a singularly important study of traumatic
and early post-traumatic mortality resulting from violent displacement,
published in The Lancet by authors from Doctors Without Borders/Medecins Sans
Frontieres and others (The Lancet, October 1, 2004, "Violence and mortality in West
Darfur, Sudan (2003-04): epidemiological evidence from four surveys").
Inexplicably, this report is not cited by the Commission authors in their substantial
bibliography of NGO reports.

Secondly, a very large percentage of the displaced population has not been
"forced to abandon their homes and live together in areas selected by the
Government [of Sudan]": they have been forced to flee into inaccessible rural areas
presently beyond the reach of any humanitarian relief efforts. They are dying in
great numbers, with mortality rates that can best be estimated on the basis of
the famine conditions predicted by the US Agency for International Development
("Projected Mortality Rates in Darfur, 2004-2005"
(http://www.usaid.gov/locations/sub-saharan_africa/sudan/cmr_darfur.pdf), and
more recently by the International Committee of the Red Cross ("Food-Needs
Assessment: Darfur," ICRC [Khartoum], October 2004).

Moreover, those who have fled to Chad---well over 200,000---are clearly not
"living together in areas selected by the Government [of Sudan]": they are living
in a foreign land, in harsh and forbidding conditions, where competition with
indigenous Chadians for water and pasturable land has on several occasions
turned violent. The vast influx of new refugees now predicted for 2005 by the UN
High Commission for Refugees will dramatically exacerbate present tensions.

The factual misrepresentations here are simply shameful.

Equally shameful is the Commission's factual misrepresentation of the
conditions in the camps and the history of humanitarian access over the past 15 months:

"The living conditions in those camps, although open to strong criticism on
many grounds, do not seem to be calculated to bring about the extinction of the
ethnic group to which the IDPs belong. Suffice it to note that the Government of
Sudan generally allows humanitarian organizations to help the population in
camps by providing food, clean water, medicines and logistical assistance." (Para.

In fact, a number of camps have indeed been extermination sites at some point
in their history. Most notorious is the Kailek camp, which is discussed earlier
(Para. 273-276) by the Commission authors, though not in a fashion that makes
fully apparent the nature of deliberate human destruction (see March 2004
analyses by this author of large-scale human destruction occurring in Kailek Camp in
March 2004 at www.sudanreeves.org, confirmed by a UN inter-agency investigation
of April 2004: see
But Kailek is far from unique, as the Commission report itself makes clear.

Moreover, to claim that "Government of Sudan generally allows humanitarian
organizations to help the population in camps by providing food, clean water,
medicines and logistical assistance" is a shocking distortion of the truth, if we
look back as far as November/December 2003 (certainly a period of time within the
purview of the Commission's investigation). At the time, Tom Vraalsen, UN
special envoy for humanitarian affairs in Sudan, declared in a memo to the UN
humanitarian coordinator for Sudan (Mukesh Kapila), that Khartoum was
"systematically" denying access to areas in which non-Arab/African tribal populations were

"Delivery of humanitarian assistance to populations in need is hampered mostly
by systematically denied access. While [Khartoum's] authorities claim unimpeded
access, they greatly restrict access to the areas under their control, while
imposing blanket denial to all rebel-held areas." (Tom Vraalsen, Note to the
Emergency Relief Coordinator; "Sudan: Humanitarian Crisis in Darfur," December 8,

The phrase "systematically denied access" was highlighted in Vraalsen's memo.
It was not for over half a year, and perhaps 100,000 deaths later, that the
international community was finally able to overcome what had been months of
Khartoum's deliberate impeding of humanitarian deployment and access.

Currently, the Khartoum regime continues to impede deployment and access by
means of violence that has created intolerable security conditions for
humanitarian organizations. This is the very violence so fully chronicled by the
Commission authors elsewhere in their report, and which they demonstrate is both
relentless in its focus on civilians and overwhelmingly the responsibility of the
regime's regular and Janjaweed militia forces.

The tendentious conclusion about Khartoum's "allowing humanitarian
organizations to help the population in camps" is also belied by a policy of forced
removals of internally displaced persons from camps, a policy clearly in evidence by
mid-summer 2004 (see July 13, 2004 analysis by this writer at
and which has continued to the present:

"The UN food agency has relocated a total of 88 aid workers from three camps in
[West Darfur]: Golu, Zaleinge and Nertetie. WFP is concerned that government
forces may start relocating people in the camps back to their villages, where
there is less protection from government-backed militias known as Janjaweed." (AP,
November 2, 2004)

"Security forces moved in before dawn and removed some people from camps near
Nyala [capital of South Darfur], the World Food Programme [said]. 'Early this
morning, police surrounded two camps and later on relocated a number of
internally displaced people' [said] the WFP's spokeswoman in Nyala." (Reuters, November
2, 2004)

Khartoum's attitudes toward camp populations are also revealed in several
well-reported large-scale assaults on camp populations. Following violent blockades
of several camps in early November 2004, Khartoum agreed to:

"Take all steps required to prevent attacks, threats, intimidations and any
other form of violence against civilians." ("Protocol on the Improvement of the
Humanitarian Situation in Darfur," Abuja, November 9, 2004)

The day following its commitment to this agreement, Khartoum's actions at the
El Jeer camp for displaced persons were reported by the BBC:

"Sudanese government forces stormed a refugee camp in Darfur, attacking men,
women and children, within hours of Khartoum signing a security agreement with
rebels that was supposed to bring peace to the region. BBC television footage
showed Sudanese security forces entering the El Geer refugee camp near Nyala,
bulldozing it, firing tear gas at women and children, beating some of the male
inhabitants and moving others to a nearby camp. The violence came hours before Jan
Pronk, the UN's Sudan envoy, arrived to visit the camp, the BBC said. At one
point during his visit a plastic bullet was fired at a cameraman standing next to
a UN vehicle." (BBC, November 10, 2004)

Returning to the broader question of "genocidal intent" as addressed by the
Commission of Inquiry, we may find other examples of shoddy, if all too revealing,
logic. For example, the Commission authors instance events involving two
brothers from Jabir Village (North Darfur):

"One inhabitant of the Jabir Village was among the victims of an attack carried
out by Janjaweed on 16 March 2004 on the village. He stated that he did not
resist when the attackers took 200 camels from him, although they beat him up with
the butt of their guns. Instead, prior to his beating, his young brother, who
possessed only one camel, had resisted when the attackers had tried to take his
camel, and had been shot dead. Clearly, in this instance the special intent to
kill a member of a group to destroy the group as such was lacking, the murder
being only motivated by the desire to appropriate cattle belonging to the
inhabitants of the village. Irrespective of the motive, had the attackers' intent
been to annihilate the group, they would not have spared one of the brothers."
(Para. 517)

But what can one such example demonstrate? How can we make any general
inferences about Janjaweed behavior in this instance? How even to be sure that this
was the Janjaweed and not an element of the pervasive banditry that the
Commission authors elsewhere cite? Does momentary and singular "mercy" have anything
to do with the vast patterns of human destruction that define the crime of
genocide? There were of course example of momentary or individual mercies in the
Nazi deaths camps; this does not make them any less sites of genocidal

This example---its singularity, its logical irrelevance for broader
conclusions, the ambiguity of even its factual implications---betray a desperation on the
part of the Commission authors. Sadly, there could be little better evidence
that they have begun with a sense of severe political constraint in making a
genocide determination, and allowed this politically governed conclusion to
dictate their reasoning.

Perhaps aware of how tendentious and poorly reasoned their arguments are, the
Commission authors add a significant qualification to their determination that
"genocidal intent" has not been demonstrated:

"One should not rule out the possibility that in some instances ***single
individuals***, [emphasis in original] including Government officials, may entertain
a genocidal intent, or in other words, attack the victims with the specific
intent of annihilating, in part, a group perceived as a hostile ethnic group. If
any single individual, including Governmental officials, has such intent, it
would be for a competent court to make such a determination on a case-by-case
basis. Should the competent court determine that in some instances certain
individuals pursued the genocidal intent, the question would arise of establishing any
possible criminal responsibility of senior officials either for complicity in
genocide or for failure to investigate, or repress and punish such possible acts
of genocide."

In other words, the Commission authors admit, there may indeed have been
"genocidal intent" on the part of individuals in the Khartoum regime, and there may
indeed have been "complicity in genocide" on the part of other officials. But
this has significance only if we accept that the Commission authors have
demonstrated that there is presently insufficient evidence of "genocidal intent" on a
broad scale within the Khartoum regime and the Janjaweed. In this, the
Commission authors have failed not only badly but revealingly.


The strongest, and by far the most substantial part of the Report of the
International Commission of Inquiry on Darfur, lies in Section I ("The Commission's
Findings of Violations of International Human Rights Law and Humanitarian Law by
the Parties [to the Darfur Conflict]," Para. 73-488). This section establishes
clear definitions and thresholds for "crimes against humanity," as opposed to
the lower threshold required for "war crimes." There is a highly informed
discussion of relevant treaties, the Geneva Conventions, and international law
generally (Para. 154-181).

The report also establishes with welcome authority a clear chain of command
within the Khartoum regime, both its military and security services and various of
its political organs. This permits very clear inferences about the identities
of those within the National Islamic Front regime whose names have been put
under seal, pending referral to an international prosecutor (whether at the
International Criminal Court or an ad hoc tribunal). For example, Sallah Gosh, the
senior official in Khartoum's multi-layered National Security and Intelligence
Service, is almost certainly named (see Para. 85-97), as is Abdel Rahim Hussein,
Minister of the Interior and charged with the "Darfur portfolio" by the regime.

Further, the Commission authors are able to point out with relentless force and
clarity the various ways in which the judicial system under Khartoum's
tyrannical rule is incapable of responding to the massive criminality the Commission
documents. Indeed, the complicity of the courts and judicial officers in either
concealing or collaborating in crimes, as well as in the creation of a climate
of total impunity, is established by the Commission beyond reasonable doubt.

The Commission is also able to sort out in reasonably clear fashion the
relation of Khartoum's regular forces, the Popular Defence Forces (see Para. 81-84),
and the various categories within the ultimately heterogeneous force known as
the Janjaweed (Para. 106-110). Most importantly, the Commission solidifies our
understanding of the "clear links [that] exist between the State and militias
from all three categories [of Janjaweed forces]," as well as between Khartoum and
the PDF (Para. 111 and ff.).

Especially notable in this context, the Commission addresses a key question
about responsibility for Janjaweed actions:

"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." (Para. 123)

And crucially, from this it follows that:

"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 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." (Para. 125)

So persuasive is this logic, that it forces a return to the question of
responsibility for genocide and the issue of "genocidal intent" on the part of the
Khartoum regime. For it is not enough to speak simply of such "intent" on the
part of Khartoum officials: we must ask about the much more conspicuous evidence
of "genocidal intent" on the part of the Janjaweed. And we must ask in turn
why---if such genocidal intent on the part of the Janjaweed can be
demonstrated---Khartoum and its military officials do not incur responsibility for complicity
in genocide. Here the countless examples of ethnically/racially charged
language, and language clearly referring to ethnic/racial destruction or
extermination, become of critical importance. Amnesty International, Human Rights Watch,
the International Crisis Group, as well as many journalists have recorded
hundreds of examples of such language, though it is given only facile treatment by
the Commission authors:

"A refugee farmer from the village of Kishkish reported * the words used by the
militia: 'You are Black and you are opponents. You are our slaves, the Darfur
region is in our hands and you are our herders.'" (Amnesty International Report,
"Too Many People Killed for No Reason," page 28, February 3, 2005)

"A civilian from Jafal confirmed [he was] told by the Janjawid: 'You are
opponents to the regime, we must crush you. As you are Black, you are like slaves.
Then all the Darfur region will be in our hands. The government is on our side.
The government plane is on our side to give us ammunition and food.'" (Amnesty
International Report, "Too Many People Killed for No Reason," page 28, February
3, 2005)

Tamur Bura Idriss, 31, said he lost his uncle and grandfather. He heard the
gunmen say, 'You blacks, we're going to exterminate you.' He fled deeper into Chad
that night." (New York Times [dateline: Tine, Darfur] January 17, 2004)

There was a terrible, though perhaps inevitable prescience in comments made by
an African tribal leader to a UN news service in the context of such violence
and language:

"'I believe this is an elimination of the black race,' one tribal leader told
IRIN" (UN Integrated Regional Information Networks, al-Geneina [Darfur],
December 11, 2003)

The Commission of Inquiry has not addressed nearly directly enough this
language and the violence that has mirrored these genocidal threats. It has as a
consequence left unanswered key questions about Khartoum's complicity in genocide
and other issues of accountability for genocide.


Though there are a great many findings of fact in this lengthy report, none is
more important than a conclusion, reiterated at several junctures, about the
lack of justification for Khartoum's military actions:

"There are consistent accounts of a recurrent pattern of attacks on villages
and settlements, sometimes involving aerial attacks by helicopter gunships or
fixed-wing aircraft, including bombing and strafing with automatic weapons.
However, a majority of the attacks reported are ground assaults by the military, the
Janjaweed, or a combination of the two. Hundreds of incidents have been
reported involving the killing of civilians, massacres, summary executions, rape and
other forms of sexual violence, torture, abduction, looting of property and
livestock, as well as deliberate destruction and torching of villages. These
incidents have resulted in the massive displacement of large parts of the civilian
population within Darfur as well as to neighbouring Chad. The reports indicate
that the intensity of the attacks and the atrocities committed in any one
village spread such a level of fear that populations from surrounding villages that
escaped such attacks also fled to areas of relative security." (Para. 186)

"Except in a few cases, these incidents are reported to have occurred without
any military justification in relation to any specific activity of the rebel
forces. This has strengthened the general perception amongst observers that the
civilian population has been knowingly and deliberately targeted to achieve
common or specific objectives and interests of the Government and the Janjaweed."
(Para. 187)

"Except in a few cases, these incidents are reported to have occurred without
any military justification in relation to any specific activity of the rebel
forces." This is the essential truth about war in Darfur, and stands
independently of a conclusion about genocide.

If there is a complementary truth, one established with comparable authority by
the Commission, it is that the destruction of non-Arab/African villages has
been distinguished by a comprehensiveness that makes clear the goal of rendering
these formerly thriving living sites humanly uninhabitable:

"There is an abundance of sites with evidence of villages burnt, completely or
partially, with only shells of outer walls of the traditional circular houses
left standing. Water pumps and wells have been destroyed, implements for food
processing wrecked, trees and crops were burnt and cut down, both in villages and
in the wadis, which are a major source of water for the rural population."
(Para. 235)

"The impact of the attacks shows that the military force used was manifestly
disproportionate to any threat posed by the rebels. In fact, attacks were most
often intentionally directed against civilians and civilian objects. Moreover,
the manner in which many attacks were conducted (at dawn, preceded by the sudden
hovering of helicopter gun ships and often bombing) demonstrates that such
attacks were also intended to spread terror among civilians so as to compel them to
flee the villages. In a majority of cases, victims of the attacks belonged to
African tribes, in particular the Fur, Massalit and Zaghawa tribes. From the
viewpoint of international criminal law these violations of international
humanitarian law no doubt constitute large-scale war crimes." (Para. 267)


There can be no shrinking from these authoritative declarations and findings,
and this is again true whatever conclusions are reached about "genocidal intent"
on the part of the Khartoum regime. The international community is presently
allowing the National Islamic Front regime and its Janjaweed militia allies to
continue with an extensive and systematic campaign of war crimes, crimes against
humanity, and (despite the weak arguments of the Commission authors) genocide.
There is no credible deterrent in place, or in prospect, to end these terrible
crimes, however designated. Moreover, despite the importance of a referral to
the International Criminal Court, as recommended by the Commission, this cannot
be accepted as a substitute for the international humanitarian intervention
that is so clearly required.

Such an intervention must provide not only security for the civilian
populations so acutely vulnerable to these ongoing criminal actions, it must also provide
the logistics and transport that will enable humanitarian capacity to match
growing and presently vastly under-served humanitarian needs. This is the real
conclusion to be drawn from the Report of the International Commission of Inquiry
on Darfur to the United Nations Secretary-General.

There is no sign that Kofi Annan has drawn such a conclusion in the week that
he has had the report.

Eric Reeves
Smith College
Northampton, MA 01063

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