The Arab League criticism on the Darfur ICC charges against Bashir is rejectable
Astrid Essed | 25.08.2008 21:38 | Analysis | Repression
Regarding her criticism on the possible ICC charges against the Sudanese president Mr Bashir,in respect with Darfurian war crimes, the Arab League is showing a morally rejectable point of view and is measuring the double standard
The criticism of the Arab League concerning the ICC charges against president Bashir is not only unfounded, but also morally rejectable
Human rights of civilians in any conflict, are universal, whether it concerns Palestinians, Darfurians or any other civilians in the world
The Arab League should keep that in mind
Foreword:
Dear Editor and Readers,
I have learned with concern about the critics of the Arab League, concerning the recent request [dd 14-7] of the ICC prosecutor, Mr L.M. Ocampo, to the ICC, for an arrest warrant against the Sudanese president, Mr O Bashir.
See for the League-criticism:
http://www.thenational.ae/article/20080720/FOREIGN/488464583/1043
http://www.reuters.com/article/newsMaps/idUSL1633478620080716
The charged crimes are genocide, crimes against humanity and war-crimes in the regio Darfur [1]
Not only the judicial argumentation of the Arab League regarding the ICC procesutor steps is invalid, more seriously is, at least to my opinion, the morally rejectable point of view of the League, thus bagatellising the war-crimes in Darfur
I agree with the Arab League point of view regarding the Israeli violations of the human rights of the Palestinian civilians, but defending the human rights of the Palestinians, and neglecting the human rights of the Darfurians, is measuring with a double standard
Human rights should be appliable to all human beings, wherever in the world, regardless of the conflict
In underlying I will refer as well to the argumentation of the Arab League, as to the backgrounds of the Darfurian conflict
Also I will pay attention the present situation of the Darfurian humanitarian crisis
Kind regards
Astrid Essed
Amsterdam
The Netherlands
A
THE ARAB LEAGUE POINT OF VIEW REGARDING THE ICC CHARGES AGAINST PRESIDENT BASHIR
In a resolution following the crisis meeting, dd 19-7 [concerning the ICC charges], the Arab foreign ministers have emphasized on the fact, that the Sudan national justice should have the mandate to proceed real or alleged war-crimes in Darfur.
The resolution also criticised Mr Moreno-Ocampo's "unbalanced stance" for asking ICC judges to issue a warrant against a sitting head of State, for the first time in the history of the ICC.
Before commenting the argumentation of the League, I first give a summary of the jurisdiction-mandate of the ICC:
MANDATE OF THE ICC:
The ICC Mandate is based on the Statute of Rome [dd 1998], which forms the consolidation of the judicial authority of the ICC [2]
1 Concerning the crimes to be prosecuted:
The jurisdiction of the ICC, concerns only the most serious crimes, namely
genocide, crimes against humanity and.war-crimes
Those referred crimes, as well their definition, are described in the articles 5 untill 8, of the Statute of Rome [3]
Also the ICC has the jurisdiction about ''crimes of aggression'', but there is no international consent about the definition of this crime yet [4]
2 Concerning the persons to be prosecuted:
Concerning the above named serious crimes, every national of a country, which has ratified the Statute of Rome, can be persecuted, not only for direct responsibility [by committing the crime personally], but also for giving the military or political orders
Explicitly stated in article 27, Statute of Rome, there is no immunity whatsoever regarding the political or military status, which implies, that also leading politicians like ministers or Heads of State can be charged
I quote article 27, nr 1, Statute of Rome
''This Statute shall apply equally to all persons without any distinction based on official capacity.
In particularly, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official, shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence'' [5]
3 Principle of non-retroactivity
In her jurisdiction, the ICC follows the principle of non-retroactivity, which implies, that committed serious crimes before 1-7-2002 (the official date of the entering of force of the Statute of Rome) can´t be prosecuted by the ICC
However, since the to be prosecuted war-crimes in Darfur have been committed after this period, this charging is fully legitimate
In fact, the Darfur crimes from which Mr Bashir is accused of, took place in Darfur, from 2003 [6]
4 Principle of complementarity
According to the Rome-Statute,, the ICC has a jurisdiction, that is ''complementary'' to the national judicial systems
This "principle of complementarity," as it is known, gives states the primary responsibility and duty to prosecute the above named crimes [war-crimes, genocide or crimes against humanity
Only when the national judicial system is not willing, or unable to proceeds, the ICC steps in. [7]
B
COMMENTS ON THE ARGUMENTATION OF THE ARAB LEAGUE:
1 Heads of State
The argumentation of the League was partly based on Mr Bashir being a sitting Head of State
However, resuming the ICC Mandate, a national can be prosecuted, regardless of his or her political status
Article 27 of the Statute of Rome is referring explicitly to the lack of immunity of Heads of States.
It doesn''t matter either, whether it is ''the first time in the history of the ICC'', that a sitting Head of State shall possibly will be prosecuted, fact is, that it is permitted according to the ICC Mandate
2 Prosecution of war-crimes by the Sudanese judicial system
The other argumentation of the League, that war-crimes in Darfur should be prosecuted by the Sudanese judicial system, makes no sense also
Although it is true, that the ICC will not act, if a case is investigated or prosecuted by a national judicial system, it is obvious, that the national judicial system must be either willing or able to investigate or prosecute
However, since the Sudanese judicial system is failing to prosecute war crimes and other crimes in Darfur, the ICC has the jurisdiction to prosecute
REGARDING THE FAILING OF THE SUDANESE JUDICIAL SYSTEM:
In 2005, the International Commission of Inquiry established by U.N. Security Council Resolution 1564 published the findings of its three-month investigation of crimes in Darfur.
The report "strongly recommended" that the Security Council refer the situation in Darfur to the ICC, noting that "the Sudanese justice system is unable and unwilling to address the situation in Darfur." [8]
In respect with the above named conclusions of the International Commission, the Security Council referred the Darfur situation to the ICC for further investigation
After the ICC confirmation dd 6-6-2005, that the Darfur-case would be investigated, the very following day [dd 7-6], the Sudanese government announced the establishment of the Special National Criminal Court for Darfur, a new tribunal to begin proceedings immediately in collaboration with state prosecutors in Darfur.
However, it became clear, that the Sudanese investigations after war-crimes in Darfur turned out to be a charade
For example, military and attacks on Khor Abeche [dd 2005], Marla and other villages, were not be taken to court because, according to the State procecutor and other officials, the identity of the perpetrators remained unknown.
This wasn't based on true fact findings at all, since there were public accusations against certain militia leaders [who supported the Sudanese army] and the Sudanese military [9]
REGARDING THE SUDANESE GOVERNMENTAL TOLERANCE FOR WAR-CRIMES:
Since then, the Sudanese government has made it even more difficult to prosecute soldiers implicated in war crimes or crimes against humanity.
On August 4, 2005, President Bashir signed an amendment to the People's Armed Forces Act, which conferred immunity from prosecution on any"officer, ranker or soldier" who committed crimes in the course of his duties, unless the prosecution was permitted by the "General Commander or whoever authorized by him." [10]
It may be clear, that since the Sudanese justice-system is as well unwilling, as unable to prosecute the committed war-crimes in Darfur, the referred crimes have been committed since 2003, and heads of State, sitting or not, have no immunity whatsoever before the ICC, the objections of the Arab League against possible ICC prosecution are invalid [11]
An example also is the unwillingness of the Sudanese government, to deliver to the ICC, two Sudanese leaders with an ICC arrest warrant, namely The State Minister of Humanitarian Affairs Mr A. Haroun and the Janjaweed leader, Mr A. Kosheib, without any further Sudanese judicial investigation or prosecution [12]
THE ARAB LEAGUE TOLERANCE FOR WAR-CRIMES
However, to me, the most shocking aspect of the Arab League critics is not the judicial discussion, but its apparent bagatellising of the Darfur war-crimes and crimes against humanity,
C
HUMAN RIGHTS VIOLATIONS OF BOTH PARTIES TO THE CONFLICT
SUMMARY:
AIRBOMBINGS, MASS-SLAUGHTERS, SEXUAL ABUSES, ETNICAL CLEANSINGS AND RECRUITMENT OF CHILDSOLDIERS:
To state it shortly, in the region Darfur, since 2003, the Sudanese governmental troops, with the military assistance of the Arab so called ''Janjaweed militia'', tries to suppress an insurgency by the African rebel groups, the SLA/M and the JEM
However, in nearly all cases, this battle isn't directed against the rebel groups themselves, but against the civilians of the three tribes, which are of the same ethnic descent as the rebelgroups, namely the Fur, Zaghawa and Masalit
According to International Humanitarian Law, any military action, which is consciously directed against the civilian population, is a war-crime
Since 2003 untill the first half of 2008, more than 200.000 Darfurian civilians have been killed by as well government troops and the governmental supported Janjaweed militia, and their villages burnt down
Thousands of women and children have been raped and 2.5 million civilians of the region’s estimated population of 6 million, have been expelled from their homelands.
220.000 have fled to the neighbouring country Chad, which also plays a part in the conflict
Also in Chad, the refugees were attacked and raped by the Janjaweed-militia and the Sudanese governmental troops, which were supported by Chadian rebels [against the Chadian government]
Despite the presence of the AMIS [Peacekeeper power of the African Union] and her successor the UNAMID [UN Assistance Mission in Darfur], for the protection of civilians in Darfur and the EUFOR and MINURCAT, for the protection of civilians in Chad, human rights violations and war-crimes continue
AMIS Peacekeepers and humanitarian aid workers have also been military attacked.
As well as the Sudanese military, as the rebelgroups have hindered food and medicine concoys for the civilian population.
Besides the Sudanese authorities, also the rebel groups are responsible for serious war-crimes, like abduction of and other attacks on civilians and, humanitarian aid workers, interference with humanitarian convoys and other distribution of humanitarian assistance and the recruitment and use of child soldiers [13]
For all clearity
Darfur is lying in the West of Sudan
See also
http://www.hrw.org/campaigns/darfur/map.htm
D
THE DARFUR HUMANITARIAN CONFLICT
FOREWORD:
1 No religious conflict:
At first it must be clear, that the Darfur crisis isn''t a religious one, since all conflictsparties, as well as the Darfur civilians, are muslims.
However, according to documentations of Human Rights Watch [www.hrw.org], during government army attacks on different parts of Darfur in 2003 and 2004, al least 62 mosques were destroyed [14]
2 About the ethnical side of the conflict:
In the newsmedia often is referred to the socalled ''African-Arab'' conflict
At least this is an oversimplification.
Although the attacked Darfur civilians are stemming from three tribes, who are of African descent, as well as the attacking government troops, as the goverment-linked Janjaweed militia, are clearly a mixture of African and Arab descent
Besides, there are also many larger Arab communities in Darfur who have have not participated in the conflict and are living at peace with their neighbours, [15]
However, the Arab and African tribes can be roughly distinguished in three major aspects, their partly mixed descent, tending to be more ´´Arab´´ or ´´African´´ (with all nuances by intermarriage), their language and their occupation
The majority of the African tribes don't speak Arabic at home, in contrary with the real or claimed Arab tribes
And althought there is an overlap, the African tribes are mostly farmers, while the Arab tribes are shepherds
This distinction in occupation forms the original roots of the conflict [16]
Although however it is a simplification to call it an etnical conflict, by consciously supporting the greatly Arab etnical militia and her policy of ''Arabisation'', the government is intensifying the etnical side of the conflict [17]
HISTORICAL BACKGROUNDS:
FROM FARMER-NOMADS CONFLICT INTO A HUMANITARIAN CRISIS
The origins of the Darfur-conflict are rooted in the usual conflct between [Arab] nomads and [African] farmers, due to their economically different lifestyle, resulting for example in trampling the fields of the farmers, by the cattle of the herds
Although in the past, often the disputes were resolved through negotiation between traditional leaders on both sides, in the second half of the 80''s the conflict intensified by the continuing drought [dryness], as well the political interference of the Sudanese government
Due to the dryness and desertification, an influx of Arab nomads emerged and systematically, attacks on the land and fields of African farmers of especially the tribes of the Fur, Masalit and Zaghawa, took place
To make the story more complicated, also the non-Arab Zaghawa nomads [not all Zaghawa were farmers] at times joined the Arab nomads, attacking the lands of the Fur [18]
1 The interference of the Sudanese government and the further intensifying in the nineties:
However, the basis of the present humanitarian crisis in Darfur is being laid by the interference of the present Sudanese government, neglecting the rights of the Darfur African farmer-population and advantaging the Arab nomad-tribes
Coping with a yearlong comflict with the SPLA/M rebels of the South of Sudan [19], succeeding Arab-Sudanese governments, which have always waged a policy of Arabisation, recruited militia's out of Arab nomads tribes, to restore order in the South, by which atrocious human rights violations against the civilian population took place, which were also aggravated by oilintedrests [20]
From this political point of view, it was hardly suprising, that the Sudanese government, in order to to restore order in Darfur, also recruited from Arab tribes, to form militia
On this way, the Janjaweed militia was formed, which was descending from the very Arab nomad-tribes, which were attacking the African farmers.
Moreover, a wide-reaching 1994 administrative reorganization by the government of President Bashir in Darfur gave members of Arab ethnic groups new positions of power, which the African [farmer] tribes Masalit, like their Fur and Zaghawa neighbors, saw as an attempt to undermine their traditional leadership role and the power of their communities in their homeland.[21]
The humanitarian consequences were, again, a new influx of Arab tribes at the end of the nineties, which escalated the conflict between the Arab nomads and the African farmers
More than 186 African villages and at least one Arab village were burned, hundreds of civilians, most Africans [but also Arabs] were killed and more than 5000 African civilians were expelled from their living areas [22]
The reaction of the Sudanese government was to bring in military forces in an attempt to restore order and also appointing a military man responsible for security overall, with the power to overrule even the West Darfur state governor.
A reconciliation conference held in 1999 agreed on compensation for Masalit and Arab losses.
This agreement provided that nomadic tribes would not commence movement southward until February 28 of each year, that everyone would be allowed access to water sources, and that state authorities would provide security and obtain resources for longer term development of water projects.[23]
However, this was only on paper, since the conflict only escalated, not in the least place by the governmental support for -Arab militia attacks on Masalit villages and the arrests and torture of many Masalit intellectuals
During the attacks, also a number of Arab chiefs and civilians were killed
[24]
2 Resistance: The rise of the rebel groups:
It is no suprising, that as a reaction on all the attacks on the African villages, as well the governmental preference for the Arab nomad-tribes, out of the Masalit, Fur and Zaghawa [the attacked African communities], two rebel groups were formed, the Sudan Liberation Army [SLA/M] and the Justice and Equality Movement [JEM]
The military confrontation with the Sudanese government and the governmental supported Arab Janjaweed militia, would start early 2003
E
THE PRESENT HUMANITARIAN CRISIS
FROM 2003 TILL 2008
THE CIVILIAN POPULATON PAYS THE HUMANITARIAN PRICE
From february 2003, the conflict intensified in Darfur, when SLA and the JEM waged a rebellion against the Sudanese government, attacking governmental troops and the governmental formed militia
As a reaction, governmental troops and militia's [especially the Janjaweed] started an attack, which was in most cases not directed against the rebellion groups, but against the civilian population, which belonged to the same ethnic group as the rebels [namely the Fur, Zaghawa and Masalit]
1 Human rights rules
According to International Humanitarian Law, by any military attack, a strict distinction between combatants [military and fighters] and non-combatants [civilians] must be made
Any deliberate attack on civilians or civilian goals is a war-crime [25]
When there is an overlap situation [the presence of fighters in a village or city], military, attackers must take all preparations to protect the civilian population
The socalled indiscriminative attack [attacking fighters in a civilian area, without any protections for the civilians] is not permitted
It is obvious, that human rights rules against the protection of the civilian population must be followed by all conflictsparties, whether a regular army, a militia or a rebellion group
In this conflict however, all conflictsparties are guilty of large human rights violations and warcrimes
2 Sudanese military and governmental supported militia attacks:
Aerial bombings, raping, masslsaughering and etnical cleansings
The civilian population was targetted through a combination of indiscriminate and deliberate aerial bombardment
In many cases in the villages and cities was no rebel presence at all
Fields were burned [the socalled scorched earth” tactic] which bereaved people from their means of existence, and the civilian population were denied access to denial to humanitarian assistance [26]
Especially the Janjaweed-militia, but also governmental troops are responsible for systematically burning of villages, destruction of poperty, murder and torture of villagers and raping of thousands of women and girls, not only from the Fur, Zaghawa, Masalit, but also from the Berti, Tunjur, and other non-Arab tribes. [27]
Especially the raping is systematically denied by the Sudanese government [28]
Another grave crime is the ethnic cleansing of the civilian non-Arab population [29]
From 2003 untill 2008, more than 2,5 million civilians are expelled from their homelands, and internaly displaced to other parts of Sudan.
This is greatly the work of the Janjaweed militia''s
More than 200.000 civilians fled to the neigbouring country Chad and stay there in refugee-camps
Even there they were are are attacked by Sudanese governmental troops, and especially by the Janjaweed militia
Ethnic cleansings, massslaughers and mass-rapings are crimes against humanity
3 Demasking Sudanese governmental denial of militia support
At several occasions, the Sudanese government has denied her support of the Janjaweed militia, which are one of the head responsibles for the atrocious war-crimes, as mass-slaughters, rapings and etnical cleansings
However, documents from as well Human Rights Watch as other sources show convincingly the committment between the government and the Janjaweed militia.[30]
4 War-crimes and human rights violations by the rebel groups [SLA and JEM]:
Not only the Sudanese government and the Janjaweed militia, also the rebelgroups are responsible for war-crimes against the civilian population like abduction and direct military attacks on civilians and interference with humanitarian convoys and other distribution of humanitarian assistance;
They are also seriously violating the rights of children by the recruitment of children under the age of eighteen in the fighting forces. [31]
THE CHADIAN CONNECTION
THE CHAD BORDER:
NO SAFE REFUGEE HAVEN FOR THE DARFURIAN CIVILIANS
The border of neigbouring country Chad, where the Darfurian people fled to, always has been a troubled place, since Chadian rebels against their government, were hiding there, harrassing the civilian population
It is obvious, that this was no safe refugeeplace for the Darfurian civilian population at all, which was intensified by the regular attacks by the Sudanese military and Janjaweed militia, crossing over the border
Besides massslaughter, sexual abuses against the Darfurian civilian population took place [32]
Tensions between the Sudanese and Chadian governments:
Moreover, there were traditionally tensions between the
Sudanese and Chadian governments, supporting the rebellion-groups against the opposite government
Humanitarian events in Chad 2005-2007
Early 2005, the number of millitary attacks on civilians as well in Darfur as in Chad were decreased, partly due to a temporary cease of fire between the Sudanese government and the rebel groups
Another reason was lying in the fact, that a great majority of villages were already destroyed and the inhabitants expelled [33]
However, the situation deteriorated late 2005, since Chadian rebels backed by the Sudanese government established bases in Darfur and began carrying out attacks across the border
This resulted in as well military attacks against the Chadian government, as well joined Janjaweed and Chadian rebel attacks on as well the Chadian civilian population as the Darfurian refugees [34]
The most recent attacks were in March 2007, when at least 200 were killed in a village near the border with Sudan. Hundreds more were killed in attacks on more than 70 villages in November 2006 [35]
International reaction:
In September 2007 the United Nations Security Council approved a hybrid European Union (EU)/UN civilian protection mission for eastern Chad comprised of EUFOR, a 3,700-strong European Union military force, and MINURCAT, a UN humanitarian operation tasked with training police and improving the judicial system.
FROM 2005-2008:
THE REBEL GROUPS
HUMAN RIGHTS VIOLATIONS AND CHANGING ALLIANCES:
I have already mentioned the war-crimes and human rights violations of the rebelgroups, like abduction of and other attacks on civilians and humanitarian, aid workers, the interference and blockade of humanitarian convoys and other distribution of humanitarian assistance, and the recruitment and use of child soldiers
However, also in their resistance against the Sudanese government, there was no unity, since there were changing alliances and splittings up of the parties
In november 2005, the SLA split into two factions and once again following the signing of the Darfur Peace Agreement (DPA) in May 2006.
Especially there were clashes between the SLA Minawi fighers [who had undersigned the treaty of 2005 with the Sudanese governments] and the other rebel-groups, which has caused a refugee stream of thousands of civilians [36]
In the present situation [april 2008] , there are some two dozen splinter factions of the SLA and JEM.
2004 till 2008:
AMIS AND UNAMID AND THE LACK OF COOPERATION OF THE SUDANESE GOVERNMENT:
Despite the Sudanese allegations, there has been always a lack of cooperation with peace-keeping forces, regarding the protection of the civilians in Darfur
Since 2004, the AMIS [the African peacekeeping military power] has not only been constantly obstructed by the Sudanese authorities, also as well as the Sudanese military, as the rebel-groups, have attacked the AMIS troops several times
Despite that, the number of troops was to small to guarantee protection of the civilians
Dd 1-1-2008, the AMIS was transmitted in the UNAMID, a joined African Union and UN peacekeeping mission, after the passing of UN Security Council Resolution 1769, with which Sudan reluctantly consented in july 2007.
The Unamid Mandate has a maximum capacity of 26.000 soldiers
At dd 31-12-2007, already 9000 soldiers [from the former AMIS] were present
However, since either the Sudanese government or the various rebel-groups are really cooperating with UNAMID, the humanitarian situation of the Darfurian people stay precarious
Also in the past few months, several times, UNAMID and humanitarian aid workers have been shot
Dd july 2008, seven UN peacekeepers have been killed and twenty two were injured, being ambushed by a local militia group
Another obstacle for UNAMID is the unableness to operate on a largescale territory.
Therefore, effective protection of the civilian population can´t be guaranteed
At 1-8-2008, the peacemission UNAMID is prolonged for a year [37]
FROM 2008:
HUMAN RIGHTS VIOLATIONS
After a further detoriation for the civilian population in 2006 and 2007, the human rights situation even has deteriorated in 2008
I have already named the lack of cooperation of the Sudanese government and the rebelgroups with the UNAMID and the attacks on the UNAMID soldiers and even humanitarian aid workers
Between January and April 2008 four humanitarian workers were killed in Darfur, and 102 humanitarian vehicles were hijacked, while 29 drivers contracted by World Food Program to deliver food aid were missing
During the same period at least 14 humanitarian premises were attacked by armed persons and four humanitarian compounds were destroyed and looted. At least 100,000 people are currently cut off from humanitarian aid, and many more are accessible only by helicopter.
CONTINUED SUDANEASE WAR-CRIMES AND HUMAN RIGHTS VIOLATIONS
The Sudanese government continued its aerial bombings on civilian areas and the Janjaweed militia have intensified their attacks against the civilian population
FEBRUARY 2008
A horrible example is february 2008, when government forces and allied militia carried out a series of coordinated attacks on three villages in West Darfur.
Governmental troops were bombing, backed up by Janjaweed militia on horseback.
The Janjaweed followed up the bombing with burning, looting, rape and killing.
At least 100 civilians died as a result of these attacks, and at least 10 women were raped or sexually assaulted.
In the following weeks, clashes occurred between government forces and JEM and the SLA in the nearby Jebel Mun area. Government forces targeted civilians, some being sought out in their hiding places and shot.
2008 HUMAN RIGHTS VIOLATIONS AND WAR-CRIMES BY REBEL AND EX REBEL-GROUPS:
In 2006, the then SLA rebel leader Mr Minawi signed the Darfur Peace Agreement with the Sudanese government, thus seperating from the SLA
However, there have been clashes between still active SLA- Minawi fighters andother rebel groups, which have caused the expulsion of many civilians, especially of people from Korma and Tawila, to various camps in the area. [38]
AFTER MAY THE 10 TH:
SUDANESE GOVERNMENTAL MASSARRESTS AND HUMAN RIGHTS VIOLATIONS
After an attack on may the 10th on Ondurman [a part of the city Khartoum] by the rebelgroup JEM, the Sudanese authorities arbitrarily arrested hundreds of men, women and children.
Not only those arrests were arbitrary [which is forbidden according International Law], because there were no specific charges, also the strong impression were given, that they were arrested solely, because they belonged to the etnic group of the JEM, descending from Darfur, which makes the arrest discriminatory
Also the arrest of the children is, regarding the arbitrary character and the fact, that the arrest of children should be the last resort, in contrary with the Convention of the Rights of the Child
Also the detention conditions were bad, torture had been applied and people have been ''dissappeared'' or held ''incommunicado'' [detention in total isolation, without any access to the outside world, even not to a lawyer] [39]
LATE JULY, SUDANEASE UNFAIR TRIALS, LEADING TO DEATH SENTENCES:
Also in respect with the JEM attack on Ondurman, Sudanese special Anti-Terrorism Courts have sentenced to death 30 real or alleged rebels, after an unfair trial, by which the rights of the defendants have been violated [40]
F
ICC INVESTIGATIONS REGARDING PRESIDENT BASHIR:
SUDANESE GOVERNMENTAL LOBBYING FOR IMPUNITY
ROLE OF THE AFRICAN UNION:
In reaction on the announcement of the ICC warrant request, the Sudanese government has launched a diplomatic campaign to persuade the United Nations Security Council to suspend the investigation.
The government has also suggested that it will respond to an ICC warrant by retaliating against civilians and peacekeepers in Darfur.
Of course it is obvious, that the Security Council should not yield to such a blackmail of the Sudanese government, that has the international obligation to respect the human rights of civilians and humanitarian workers
Yet the African Union, convinced by the Sudanese government, has asked the Security Council to defer ICC proceedings for twelve months, referring to article 16, Statute of Rome [41]
Yet apart from this morally rejectable step, a postponement of the ICC proceedings by the Security Council, could lead not only to impunity of the Sudanese government, also it would open the way for impunity for other governments and Statesmen, who violate human rights
EPILOGUE:
Overviewing the yearlong human rights violations, war-crimes and crimes against humanity against the Darfurian civilian population, it is clear, that the critic of the Arab League regarding ICC investigations to a possible warrant against the Sudanese president Bashir, is as well out of place as morally rejectable
Further it is to be hoped, that the Security Council will refuse the African request for postponing the ICC investigations regarding president Bashir
Also the ICC prosecutor should keep in mind, that investigations must be started against the rebel-groups concerning war-crimes and human rights violations against the Darfurian civilian population,
So that justice in Darfur can be done
Astrid Essed
Amsterdam
The Netherlands
Statute of Rome:
http://www.icc-cpi.int/library/about/officialjournal/Rome_Statute_120704-EN.pdf
Press release Human Rights Watch
http://www.hrw.org/english/docs/2008/07/14/sudan19335.htm
http://hrw.org/english/docs/2008/07/18/sudan19400.htm
http://www.hrw.org/doc?t=africa&c=darfur
[1]
http://www.icc-cpi.int/press/pressreleases/406.html
[2]
The Statute of Rome
http://www.icc-cpi.int/library/about/officialjournal/Rome_Statute_English.pdf
[3]
http://www.icc-cpi.int/library/about/officialjournal/Rome_Statute_English.pdf
[4]
See article 5, 2, of the Rome Statute
http://www.icc-cpi.int/library/about/officialjournal/Rome_Statute_English.pdf
[5]
http://www.icc-cpi.int/library/about/officialjournal/Rome_Statute_English.pdf
http://hrw.org/campaigns/icc/qna.htm
[6]
http://hrw.org/english/docs/2008/07/14/sudan19335.htm
[7]
http://www.icc-cpi.int/about/ataglance/faq.html#faq4
[8]
http://www.un.org/News/dh/sudan/com_inq_darfur.pdf
and
http://hrw.org/reports/2005/darfur1205/8.htm#_Toc121546243
and the complete Human Rights Watch report:
http://hrw.org/reports/2005/darfur1205/
[9]
http://hrw.org/reports/2005/darfur1205/8.htm#_Toc121546243
http://www.sudantribune.com/spip.php?article8971
[10]
The decree reads:
Temporary Decree, People's Armed Forces Act 1986, Amendment 2005
Seeking Permission to Institute Criminal Procedures Against Any Officer, Ranker or Soldier
There shall not be taken any procedures against any officer, ranker or soldier who committed an act that may constitute a crime done during or for the reason of the execution of his duties or any lawful order made to him in this capacity and he shall not be tried except by the permission of the General Commander or whoever authorized by him.
Made under my signature August 4th 2005, Omer Hassan Ahmed Al Bashir
This source is derived from:
http://hrw.org/reports/2005/darfur1205/8.htm#_ftn190
See
http://hrw.org/reports/2005/darfur1205/8.htm#_Toc121546243
[11]
http://www.hrw.org/backgrounder/ij/sudan0606/
[12]
http://hrw.org/english/docs/2007/02/23/darfur15402.htm
[13]
http://www.hrw.org/reports/ 2005/darfur1205/2.htm#_ Toc121546209
http://www.hrw.org/english/ docs/2004/05/05/darfur8536.htm
http://hrw.org/englishwr2k8/ docs/2008/01/31/sudan17759.htm
[14]
http://www.hrw.org/reports/2004/sudan0504/appendixc.pdf
http://www.hrw.org/english/ docs/2004/05/05/darfur8536.htm
[15]
http://www.hrw.org/english/ docs/2004/05/05/darfur8536.htm
[16]
http://www.hrw.org/reports/ 2004/sudan0404/3.htm#_ Toc68525371
[17]
Promoting the Arab culture at the cost of the local African tribal culture and customs
It was, however, no religious conflcts, since all Darfurians, African or Arab, are muslims
[18]
http://www.hrw.org/reports/ 2004/sudan0404/3.htm#_ Toc68525371
[19]
In contrary with Darfur, the conflict in Southern Sudan had a rstrong religious character and was also intensified by the oill company policy of expelling the native population from their homelands, with assistence of the Sudanese governmental troops and militia
http://www.hrw.org/reports/ 2004/sudan0404/3.htm#_ Toc68525371
under 4: See
http://www.hrw.org/reports/ 2004/sudan0404/3.htm#_ftn4
[20]
Regarding oli-interests in the South:
http://www.amnesty.org/en/ library/asset/AFR54/001/2000/ en/dom-AFR540012000en.html
http://www.hrw.org/reports/ 2003/sudan1103/
[21]
http://hrw.org/reports/2004/ sudan0504/4.htm#_Toc71531689
[22]
http://hrw.org/reports/2004/ sudan0504/4.htm#_Toc71531689
[23]
http://hrw.org/reports/2004/sudan0504/4.htm#_Toc71531689
and
http://hrw.org/reports/2004/sudan0504/4.htm#_ftn9, under 9
[24]
http://hrw.org/reports/2004/sudan0504/4.htm#_Toc71531689
[25]
http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/668BF8
[26]
http://www.hrw.org/reports/2004/sudan0404/4.htm#_Toc68525375
http://www.hrw.org/reports/2004/sudan0404/4.htm#_ftn17
Journalists and members of humanitarian helporganisations were threatened and intimidated and the access of medicins and auxiliary goods for the civilian populations had been blocked by the Sudanese authorities
[27]
http://hrw.org/reports/2008/darfur0408/
[28]
http://hrw.org/reports/2008/darfur0408/6.htm#_Toc194408679
[29]
Etnical cleansing is the expulsion of a population out of their homeland or living area
According to International Law, this is a crime against humanity
[30]
http://www.hrw.org/english/docs/2004/07/19/darfur9096.htm
Under one in underlying link is described:
''See among others, Human Rights Watch reports: Darfur in Flames: Atrocities in Western Sudan, Vol.16, No.5 (A), April 2004; Darfur Destroyed: Ethnic Cleansing by Government and Militia Forces in Western Sudan, Vol.16, No. 6(A), May 2004; Report of the High Commissioner on the Situation of Human Rights in the Darfur region of the Sudan, E/CN.4/2005/3, U.N. Office of the High Commissioner of Human Rights, May 3, 2004; Darfur: Too Many People Killed for No Reason, Amnesty International, February 3, 2004. ''
See underlying link:
http://www.hrw.org/english/docs/2004/07/19/darfur9096.htm#1
under 1 is describes
[31]
http://www.hrw.org/reports/2005/darfur1205/2.htm#_Toc121546209
http://www.hrw.org/reports/2004/sudan0404/2.htm#_Toc68525358
http://www.hrw.org/reports/2004/sudan0504/9.htm#_Toc71531717
[32]
http://www.hrw.org/reports/2004/sudan0404/2.htm#_Toc68525358
http://www.hrw.org/reports/2004/sudan0504/9.htm#_Toc71531717
[33]
http://www.hrw.org/reports/2004/sudan0404/3.htm#_Toc68525373
http://hrw.org/backgrounder/africa/darfur0505/
http://www.hrw.org/english/docs/2004/05/05/darfur8536.htm
[34]
http://www.hrw.org/english/docs/2004/05/05/darfur8536.htm
[35]
http://www.hrw.org/english/docs/2004/05/05/darfur8536.htm
http://www.hrw.org/backgrounder/africa/chad0206/
[36]
http://hrw.org/englishwr2k8/docs/2008/01/31/sudan17759.htm
[37]
http://hrw.org/englishwr2k8/docs/2008/01/31/sudan17759.htm
[38]
http://hrw.org/reports/2007/sudan0907/
http://unamid.unmissions.org/Default.aspx?tabid=55&ctl=Details&mid=376&ItemID=196
http://en.wikipedia.org/wiki/United_Nations_African_Union_Mission_in_Darfur
[39]
http://www.hrw.org/english/docs/2004/05/05/darfur8536.htm
[40]
http://www1.umn.edu/humanrts/instree/k2crc.htm
http://hrw.org/reports/2008/darfur0608/
[41]
http://hrw.org/english/docs/2008/06/25/sudan19200.htm
http://hrw.org/english/docs/2008/08/06/sudan19549.htm
http://hrw.org/english/docs/2008/08/15/sudan19626.htm
Human rights of civilians in any conflict, are universal, whether it concerns Palestinians, Darfurians or any other civilians in the world
The Arab League should keep that in mind
Foreword:
Dear Editor and Readers,
I have learned with concern about the critics of the Arab League, concerning the recent request [dd 14-7] of the ICC prosecutor, Mr L.M. Ocampo, to the ICC, for an arrest warrant against the Sudanese president, Mr O Bashir.
See for the League-criticism:
http://www.thenational.ae/article/20080720/FOREIGN/488464583/1043 http://www.reuters.com/article/newsMaps/idUSL1633478620080716 The charged crimes are genocide, crimes against humanity and war-crimes in the regio Darfur [1]
Not only the judicial argumentation of the Arab League regarding the ICC procesutor steps is invalid, more seriously is, at least to my opinion, the morally rejectable point of view of the League, thus bagatellising the war-crimes in Darfur
I agree with the Arab League point of view regarding the Israeli violations of the human rights of the Palestinian civilians, but defending the human rights of the Palestinians, and neglecting the human rights of the Darfurians, is measuring with a double standard
Human rights should be appliable to all human beings, wherever in the world, regardless of the conflict
In underlying I will refer as well to the argumentation of the Arab League, as to the backgrounds of the Darfurian conflict
Also I will pay attention the present situation of the Darfurian humanitarian crisis
Kind regards
Astrid Essed
Amsterdam
The Netherlands
A
THE ARAB LEAGUE POINT OF VIEW REGARDING THE ICC CHARGES AGAINST PRESIDENT BASHIR
In a resolution following the crisis meeting, dd 19-7 [concerning the ICC charges], the Arab foreign ministers have emphasized on the fact, that the Sudan national justice should have the mandate to proceed real or alleged war-crimes in Darfur.
The resolution also criticised Mr Moreno-Ocampo's "unbalanced stance" for asking ICC judges to issue a warrant against a sitting head of State, for the first time in the history of the ICC.
Before commenting the argumentation of the League, I first give a summary of the jurisdiction-mandate of the ICC:
MANDATE OF THE ICC:
The ICC Mandate is based on the Statute of Rome [dd 1998], which forms the consolidation of the judicial authority of the ICC [2]
1 Concerning the crimes to be prosecuted:
The jurisdiction of the ICC, concerns only the most serious crimes, namely
genocide, crimes against humanity and.war-crimes
Those referred crimes, as well their definition, are described in the articles 5 untill 8, of the Statute of Rome [3]
Also the ICC has the jurisdiction about ''crimes of aggression'', but there is no international consent about the definition of this crime yet [4]
2 Concerning the persons to be prosecuted:
Concerning the above named serious crimes, every national of a country, which has ratified the Statute of Rome, can be persecuted, not only for direct responsibility [by committing the crime personally], but also for giving the military or political orders
Explicitly stated in article 27, Statute of Rome, there is no immunity whatsoever regarding the political or military status, which implies, that also leading politicians like ministers or Heads of State can be charged
I quote article 27, nr 1, Statute of Rome
''This Statute shall apply equally to all persons without any distinction based on official capacity.
In particularly, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official, shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence'' [5]
3 Principle of non-retroactivity
In her jurisdiction, the ICC follows the principle of non-retroactivity, which implies, that committed serious crimes before 1-7-2002 (the official date of the entering of force of the Statute of Rome) can´t be prosecuted by the ICC
However, since the to be prosecuted war-crimes in Darfur have been committed after this period, this charging is fully legitimate
In fact, the Darfur crimes from which Mr Bashir is accused of, took place in Darfur, from 2003 [6]
4 Principle of complementarity
According to the Rome-Statute,, the ICC has a jurisdiction, that is ''complementary'' to the national judicial systems
This "principle of complementarity," as it is known, gives states the primary responsibility and duty to prosecute the above named crimes [war-crimes, genocide or crimes against humanity
Only when the national judicial system is not willing, or unable to proceeds, the ICC steps in. [7]
B
COMMENTS ON THE ARGUMENTATION OF THE ARAB LEAGUE:
1 Heads of State
The argumentation of the League was partly based on Mr Bashir being a sitting Head of State
However, resuming the ICC Mandate, a national can be prosecuted, regardless of his or her political status
Article 27 of the Statute of Rome is referring explicitly to the lack of immunity of Heads of States.
It doesn''t matter either, whether it is ''the first time in the history of the ICC'', that a sitting Head of State shall possibly will be prosecuted, fact is, that it is permitted according to the ICC Mandate
2 Prosecution of war-crimes by the Sudanese judicial system
The other argumentation of the League, that war-crimes in Darfur should be prosecuted by the Sudanese judicial system, makes no sense also
Although it is true, that the ICC will not act, if a case is investigated or prosecuted by a national judicial system, it is obvious, that the national judicial system must be either willing or able to investigate or prosecute
However, since the Sudanese judicial system is failing to prosecute war crimes and other crimes in Darfur, the ICC has the jurisdiction to prosecute
REGARDING THE FAILING OF THE SUDANESE JUDICIAL SYSTEM:
In 2005, the International Commission of Inquiry established by U.N. Security Council Resolution 1564 published the findings of its three-month investigation of crimes in Darfur.
The report "strongly recommended" that the Security Council refer the situation in Darfur to the ICC, noting that "the Sudanese justice system is unable and unwilling to address the situation in Darfur." [8]
In respect with the above named conclusions of the International Commission, the Security Council referred the Darfur situation to the ICC for further investigation
After the ICC confirmation dd 6-6-2005, that the Darfur-case would be investigated, the very following day [dd 7-6], the Sudanese government announced the establishment of the Special National Criminal Court for Darfur, a new tribunal to begin proceedings immediately in collaboration with state prosecutors in Darfur.
However, it became clear, that the Sudanese investigations after war-crimes in Darfur turned out to be a charade
For example, military and attacks on Khor Abeche [dd 2005], Marla and other villages, were not be taken to court because, according to the State procecutor and other officials, the identity of the perpetrators remained unknown.
This wasn't based on true fact findings at all, since there were public accusations against certain militia leaders [who supported the Sudanese army] and the Sudanese military [9]
REGARDING THE SUDANESE GOVERNMENTAL TOLERANCE FOR WAR-CRIMES:
Since then, the Sudanese government has made it even more difficult to prosecute soldiers implicated in war crimes or crimes against humanity.
On August 4, 2005, President Bashir signed an amendment to the People's Armed Forces Act, which conferred immunity from prosecution on any"officer, ranker or soldier" who committed crimes in the course of his duties, unless the prosecution was permitted by the "General Commander or whoever authorized by him." [10]
It may be clear, that since the Sudanese justice-system is as well unwilling, as unable to prosecute the committed war-crimes in Darfur, the referred crimes have been committed since 2003, and heads of State, sitting or not, have no immunity whatsoever before the ICC, the objections of the Arab League against possible ICC prosecution are invalid [11]
An example also is the unwillingness of the Sudanese government, to deliver to the ICC, two Sudanese leaders with an ICC arrest warrant, namely The State Minister of Humanitarian Affairs Mr A. Haroun and the Janjaweed leader, Mr A. Kosheib, without any further Sudanese judicial investigation or prosecution [12]
THE ARAB LEAGUE TOLERANCE FOR WAR-CRIMES
However, to me, the most shocking aspect of the Arab League critics is not the judicial discussion, but its apparent bagatellising of the Darfur war-crimes and crimes against humanity,
C
HUMAN RIGHTS VIOLATIONS OF BOTH PARTIES TO THE CONFLICT
SUMMARY:
AIRBOMBINGS, MASS-SLAUGHTERS, SEXUAL ABUSES, ETNICAL CLEANSINGS AND RECRUITMENT OF CHILDSOLDIERS:
To state it shortly, in the region Darfur, since 2003, the Sudanese governmental troops, with the military assistance of the Arab so called ''Janjaweed militia'', tries to suppress an insurgency by the African rebel groups, the SLA/M and the JEM
However, in nearly all cases, this battle isn't directed against the rebel groups themselves, but against the civilians of the three tribes, which are of the same ethnic descent as the rebelgroups, namely the Fur, Zaghawa and Masalit
According to International Humanitarian Law, any military action, which is consciously directed against the civilian population, is a war-crime
Since 2003 untill the first half of 2008, more than 200.000 Darfurian civilians have been killed by as well government troops and the governmental supported Janjaweed militia, and their villages burnt down
Thousands of women and children have been raped and 2.5 million civilians of the region’s estimated population of 6 million, have been expelled from their homelands.
220.000 have fled to the neighbouring country Chad, which also plays a part in the conflict
Also in Chad, the refugees were attacked and raped by the Janjaweed-militia and the Sudanese governmental troops, which were supported by Chadian rebels [against the Chadian government]
Despite the presence of the AMIS [Peacekeeper power of the African Union] and her successor the UNAMID [UN Assistance Mission in Darfur], for the protection of civilians in Darfur and the EUFOR and MINURCAT, for the protection of civilians in Chad, human rights violations and war-crimes continue
AMIS Peacekeepers and humanitarian aid workers have also been military attacked.
As well as the Sudanese military, as the rebelgroups have hindered food and medicine concoys for the civilian population.
Besides the Sudanese authorities, also the rebel groups are responsible for serious war-crimes, like abduction of and other attacks on civilians and, humanitarian aid workers, interference with humanitarian convoys and other distribution of humanitarian assistance and the recruitment and use of child soldiers [13]
For all clearity
Darfur is lying in the West of Sudan
See also
http://www.hrw.org/campaigns/darfur/map.htm D
THE DARFUR HUMANITARIAN CONFLICT
FOREWORD:
1 No religious conflict:
At first it must be clear, that the Darfur crisis isn''t a religious one, since all conflictsparties, as well as the Darfur civilians, are muslims.
However, according to documentations of Human Rights Watch [www.hrw.org], during government army attacks on different parts of Darfur in 2003 and 2004, al least 62 mosques were destroyed [14]
2 About the ethnical side of the conflict:
In the newsmedia often is referred to the socalled ''African-Arab'' conflict
At least this is an oversimplification.
Although the attacked Darfur civilians are stemming from three tribes, who are of African descent, as well as the attacking government troops, as the goverment-linked Janjaweed militia, are clearly a mixture of African and Arab descent
Besides, there are also many larger Arab communities in Darfur who have have not participated in the conflict and are living at peace with their neighbours, [15]
However, the Arab and African tribes can be roughly distinguished in three major aspects, their partly mixed descent, tending to be more ´´Arab´´ or ´´African´´ (with all nuances by intermarriage), their language and their occupation
The majority of the African tribes don't speak Arabic at home, in contrary with the real or claimed Arab tribes
And althought there is an overlap, the African tribes are mostly farmers, while the Arab tribes are shepherds
This distinction in occupation forms the original roots of the conflict [16]
Although however it is a simplification to call it an etnical conflict, by consciously supporting the greatly Arab etnical militia and her policy of ''Arabisation'', the government is intensifying the etnical side of the conflict [17]
HISTORICAL BACKGROUNDS:
FROM FARMER-NOMADS CONFLICT INTO A HUMANITARIAN CRISIS
The origins of the Darfur-conflict are rooted in the usual conflct between [Arab] nomads and [African] farmers, due to their economically different lifestyle, resulting for example in trampling the fields of the farmers, by the cattle of the herds
Although in the past, often the disputes were resolved through negotiation between traditional leaders on both sides, in the second half of the 80''s the conflict intensified by the continuing drought [dryness], as well the political interference of the Sudanese government
Due to the dryness and desertification, an influx of Arab nomads emerged and systematically, attacks on the land and fields of African farmers of especially the tribes of the Fur, Masalit and Zaghawa, took place
To make the story more complicated, also the non-Arab Zaghawa nomads [not all Zaghawa were farmers] at times joined the Arab nomads, attacking the lands of the Fur [18]
1 The interference of the Sudanese government and the further intensifying in the nineties:
However, the basis of the present humanitarian crisis in Darfur is being laid by the interference of the present Sudanese government, neglecting the rights of the Darfur African farmer-population and advantaging the Arab nomad-tribes
Coping with a yearlong comflict with the SPLA/M rebels of the South of Sudan [19], succeeding Arab-Sudanese governments, which have always waged a policy of Arabisation, recruited militia's out of Arab nomads tribes, to restore order in the South, by which atrocious human rights violations against the civilian population took place, which were also aggravated by oilintedrests [20]
From this political point of view, it was hardly suprising, that the Sudanese government, in order to to restore order in Darfur, also recruited from Arab tribes, to form militia
On this way, the Janjaweed militia was formed, which was descending from the very Arab nomad-tribes, which were attacking the African farmers.
Moreover, a wide-reaching 1994 administrative reorganization by the government of President Bashir in Darfur gave members of Arab ethnic groups new positions of power, which the African [farmer] tribes Masalit, like their Fur and Zaghawa neighbors, saw as an attempt to undermine their traditional leadership role and the power of their communities in their homeland.[21]
The humanitarian consequences were, again, a new influx of Arab tribes at the end of the nineties, which escalated the conflict between the Arab nomads and the African farmers
More than 186 African villages and at least one Arab village were burned, hundreds of civilians, most Africans [but also Arabs] were killed and more than 5000 African civilians were expelled from their living areas [22]
The reaction of the Sudanese government was to bring in military forces in an attempt to restore order and also appointing a military man responsible for security overall, with the power to overrule even the West Darfur state governor.
A reconciliation conference held in 1999 agreed on compensation for Masalit and Arab losses.
This agreement provided that nomadic tribes would not commence movement southward until February 28 of each year, that everyone would be allowed access to water sources, and that state authorities would provide security and obtain resources for longer term development of water projects.[23]
However, this was only on paper, since the conflict only escalated, not in the least place by the governmental support for -Arab militia attacks on Masalit villages and the arrests and torture of many Masalit intellectuals
During the attacks, also a number of Arab chiefs and civilians were killed
[24]
2 Resistance: The rise of the rebel groups:
It is no suprising, that as a reaction on all the attacks on the African villages, as well the governmental preference for the Arab nomad-tribes, out of the Masalit, Fur and Zaghawa [the attacked African communities], two rebel groups were formed, the Sudan Liberation Army [SLA/M] and the Justice and Equality Movement [JEM]
The military confrontation with the Sudanese government and the governmental supported Arab Janjaweed militia, would start early 2003
E
THE PRESENT HUMANITARIAN CRISIS
FROM 2003 TILL 2008
THE CIVILIAN POPULATON PAYS THE HUMANITARIAN PRICE
From february 2003, the conflict intensified in Darfur, when SLA and the JEM waged a rebellion against the Sudanese government, attacking governmental troops and the governmental formed militia
As a reaction, governmental troops and militia's [especially the Janjaweed] started an attack, which was in most cases not directed against the rebellion groups, but against the civilian population, which belonged to the same ethnic group as the rebels [namely the Fur, Zaghawa and Masalit]
1 Human rights rules
According to International Humanitarian Law, by any military attack, a strict distinction between combatants [military and fighters] and non-combatants [civilians] must be made
Any deliberate attack on civilians or civilian goals is a war-crime [25]
When there is an overlap situation [the presence of fighters in a village or city], military, attackers must take all preparations to protect the civilian population
The socalled indiscriminative attack [attacking fighters in a civilian area, without any protections for the civilians] is not permitted
It is obvious, that human rights rules against the protection of the civilian population must be followed by all conflictsparties, whether a regular army, a militia or a rebellion group
In this conflict however, all conflictsparties are guilty of large human rights violations and warcrimes
2 Sudanese military and governmental supported militia attacks:
Aerial bombings, raping, masslsaughering and etnical cleansings
The civilian population was targetted through a combination of indiscriminate and deliberate aerial bombardment
In many cases in the villages and cities was no rebel presence at all
Fields were burned [the socalled scorched earth” tactic] which bereaved people from their means of existence, and the civilian population were denied access to denial to humanitarian assistance [26]
Especially the Janjaweed-militia, but also governmental troops are responsible for systematically burning of villages, destruction of poperty, murder and torture of villagers and raping of thousands of women and girls, not only from the Fur, Zaghawa, Masalit, but also from the Berti, Tunjur, and other non-Arab tribes. [27]
Especially the raping is systematically denied by the Sudanese government [28]
Another grave crime is the ethnic cleansing of the civilian non-Arab population [29]
From 2003 untill 2008, more than 2,5 million civilians are expelled from their homelands, and internaly displaced to other parts of Sudan.
This is greatly the work of the Janjaweed militia''s
More than 200.000 civilians fled to the neigbouring country Chad and stay there in refugee-camps
Even there they were are are attacked by Sudanese governmental troops, and especially by the Janjaweed militia
Ethnic cleansings, massslaughers and mass-rapings are crimes against humanity
3 Demasking Sudanese governmental denial of militia support
At several occasions, the Sudanese government has denied her support of the Janjaweed militia, which are one of the head responsibles for the atrocious war-crimes, as mass-slaughters, rapings and etnical cleansings
However, documents from as well Human Rights Watch as other sources show convincingly the committment between the government and the Janjaweed militia.[30]
4 War-crimes and human rights violations by the rebel groups [SLA and JEM]:
Not only the Sudanese government and the Janjaweed militia, also the rebelgroups are responsible for war-crimes against the civilian population like abduction and direct military attacks on civilians and interference with humanitarian convoys and other distribution of humanitarian assistance;
They are also seriously violating the rights of children by the recruitment of children under the age of eighteen in the fighting forces. [31]
THE CHADIAN CONNECTION
THE CHAD BORDER:
NO SAFE REFUGEE HAVEN FOR THE DARFURIAN CIVILIANS
The border of neigbouring country Chad, where the Darfurian people fled to, always has been a troubled place, since Chadian rebels against their government, were hiding there, harrassing the civilian population
It is obvious, that this was no safe refugeeplace for the Darfurian civilian population at all, which was intensified by the regular attacks by the Sudanese military and Janjaweed militia, crossing over the border
Besides massslaughter, sexual abuses against the Darfurian civilian population took place [32]
Tensions between the Sudanese and Chadian governments:
Moreover, there were traditionally tensions between the
Sudanese and Chadian governments, supporting the rebellion-groups against the opposite government
Humanitarian events in Chad 2005-2007
Early 2005, the number of millitary attacks on civilians as well in Darfur as in Chad were decreased, partly due to a temporary cease of fire between the Sudanese government and the rebel groups
Another reason was lying in the fact, that a great majority of villages were already destroyed and the inhabitants expelled [33]
However, the situation deteriorated late 2005, since Chadian rebels backed by the Sudanese government established bases in Darfur and began carrying out attacks across the border
This resulted in as well military attacks against the Chadian government, as well joined Janjaweed and Chadian rebel attacks on as well the Chadian civilian population as the Darfurian refugees [34]
The most recent attacks were in March 2007, when at least 200 were killed in a village near the border with Sudan. Hundreds more were killed in attacks on more than 70 villages in November 2006 [35]
International reaction:
In September 2007 the United Nations Security Council approved a hybrid European Union (EU)/UN civilian protection mission for eastern Chad comprised of EUFOR, a 3,700-strong European Union military force, and MINURCAT, a UN humanitarian operation tasked with training police and improving the judicial system.
FROM 2005-2008:
THE REBEL GROUPS
HUMAN RIGHTS VIOLATIONS AND CHANGING ALLIANCES:
I have already mentioned the war-crimes and human rights violations of the rebelgroups, like abduction of and other attacks on civilians and humanitarian, aid workers, the interference and blockade of humanitarian convoys and other distribution of humanitarian assistance, and the recruitment and use of child soldiers
However, also in their resistance against the Sudanese government, there was no unity, since there were changing alliances and splittings up of the parties
In november 2005, the SLA split into two factions and once again following the signing of the Darfur Peace Agreement (DPA) in May 2006.
Especially there were clashes between the SLA Minawi fighers [who had undersigned the treaty of 2005 with the Sudanese governments] and the other rebel-groups, which has caused a refugee stream of thousands of civilians [36]
In the present situation [april 2008] , there are some two dozen splinter factions of the SLA and JEM.
2004 till 2008:
AMIS AND UNAMID AND THE LACK OF COOPERATION OF THE SUDANESE GOVERNMENT:
Despite the Sudanese allegations, there has been always a lack of cooperation with peace-keeping forces, regarding the protection of the civilians in Darfur
Since 2004, the AMIS [the African peacekeeping military power] has not only been constantly obstructed by the Sudanese authorities, also as well as the Sudanese military, as the rebel-groups, have attacked the AMIS troops several times
Despite that, the number of troops was to small to guarantee protection of the civilians
Dd 1-1-2008, the AMIS was transmitted in the UNAMID, a joined African Union and UN peacekeeping mission, after the passing of UN Security Council Resolution 1769, with which Sudan reluctantly consented in july 2007.
The Unamid Mandate has a maximum capacity of 26.000 soldiers
At dd 31-12-2007, already 9000 soldiers [from the former AMIS] were present
However, since either the Sudanese government or the various rebel-groups are really cooperating with UNAMID, the humanitarian situation of the Darfurian people stay precarious
Also in the past few months, several times, UNAMID and humanitarian aid workers have been shot
Dd july 2008, seven UN peacekeepers have been killed and twenty two were injured, being ambushed by a local militia group
Another obstacle for UNAMID is the unableness to operate on a largescale territory.
Therefore, effective protection of the civilian population can´t be guaranteed
At 1-8-2008, the peacemission UNAMID is prolonged for a year [37]
FROM 2008:
HUMAN RIGHTS VIOLATIONS
After a further detoriation for the civilian population in 2006 and 2007, the human rights situation even has deteriorated in 2008
I have already named the lack of cooperation of the Sudanese government and the rebelgroups with the UNAMID and the attacks on the UNAMID soldiers and even humanitarian aid workers
Between January and April 2008 four humanitarian workers were killed in Darfur, and 102 humanitarian vehicles were hijacked, while 29 drivers contracted by World Food Program to deliver food aid were missing
During the same period at least 14 humanitarian premises were attacked by armed persons and four humanitarian compounds were destroyed and looted. At least 100,000 people are currently cut off from humanitarian aid, and many more are accessible only by helicopter.
CONTINUED SUDANEASE WAR-CRIMES AND HUMAN RIGHTS VIOLATIONS
The Sudanese government continued its aerial bombings on civilian areas and the Janjaweed militia have intensified their attacks against the civilian population
FEBRUARY 2008
A horrible example is february 2008, when government forces and allied militia carried out a series of coordinated attacks on three villages in West Darfur.
Governmental troops were bombing, backed up by Janjaweed militia on horseback.
The Janjaweed followed up the bombing with burning, looting, rape and killing.
At least 100 civilians died as a result of these attacks, and at least 10 women were raped or sexually assaulted.
In the following weeks, clashes occurred between government forces and JEM and the SLA in the nearby Jebel Mun area. Government forces targeted civilians, some being sought out in their hiding places and shot.
2008 HUMAN RIGHTS VIOLATIONS AND WAR-CRIMES BY REBEL AND EX REBEL-GROUPS:
In 2006, the then SLA rebel leader Mr Minawi signed the Darfur Peace Agreement with the Sudanese government, thus seperating from the SLA
However, there have been clashes between still active SLA- Minawi fighters andother rebel groups, which have caused the expulsion of many civilians, especially of people from Korma and Tawila, to various camps in the area. [38]
AFTER MAY THE 10 TH:
SUDANESE GOVERNMENTAL MASSARRESTS AND HUMAN RIGHTS VIOLATIONS
After an attack on may the 10th on Ondurman [a part of the city Khartoum] by the rebelgroup JEM, the Sudanese authorities arbitrarily arrested hundreds of men, women and children.
Not only those arrests were arbitrary [which is forbidden according International Law], because there were no specific charges, also the strong impression were given, that they were arrested solely, because they belonged to the etnic group of the JEM, descending from Darfur, which makes the arrest discriminatory
Also the arrest of the children is, regarding the arbitrary character and the fact, that the arrest of children should be the last resort, in contrary with the Convention of the Rights of the Child
Also the detention conditions were bad, torture had been applied and people have been ''dissappeared'' or held ''incommunicado'' [detention in total isolation, without any access to the outside world, even not to a lawyer] [39]
LATE JULY, SUDANEASE UNFAIR TRIALS, LEADING TO DEATH SENTENCES:
Also in respect with the JEM attack on Ondurman, Sudanese special Anti-Terrorism Courts have sentenced to death 30 real or alleged rebels, after an unfair trial, by which the rights of the defendants have been violated [40]
F
ICC INVESTIGATIONS REGARDING PRESIDENT BASHIR:
SUDANESE GOVERNMENTAL LOBBYING FOR IMPUNITY
ROLE OF THE AFRICAN UNION:
In reaction on the announcement of the ICC warrant request, the Sudanese government has launched a diplomatic campaign to persuade the United Nations Security Council to suspend the investigation.
The government has also suggested that it will respond to an ICC warrant by retaliating against civilians and peacekeepers in Darfur.
Of course it is obvious, that the Security Council should not yield to such a blackmail of the Sudanese government, that has the international obligation to respect the human rights of civilians and humanitarian workers
Yet the African Union, convinced by the Sudanese government, has asked the Security Council to defer ICC proceedings for twelve months, referring to article 16, Statute of Rome [41]
Yet apart from this morally rejectable step, a postponement of the ICC proceedings by the Security Council, could lead not only to impunity of the Sudanese government, also it would open the way for impunity for other governments and Statesmen, who violate human rights
EPILOGUE:
Overviewing the yearlong human rights violations, war-crimes and crimes against humanity against the Darfurian civilian population, it is clear, that the critic of the Arab League regarding ICC investigations to a possible warrant against the Sudanese president Bashir, is as well out of place as morally rejectable
Further it is to be hoped, that the Security Council will refuse the African request for postponing the ICC investigations regarding president Bashir
Also the ICC prosecutor should keep in mind, that investigations must be started against the rebel-groups concerning war-crimes and human rights violations against the Darfurian civilian population,
So that justice in Darfur can be done
Astrid Essed
Amsterdam
The Netherlands
Statute of Rome:
http://www.icc-cpi.int/library/about/officialjournal/Rome_Statute_120704-EN.pdf Press release Human Rights Watch
http://www.hrw.org/english/docs/2008/07/14/sudan19335.htm http://hrw.org/english/docs/2008/07/18/sudan19400.htm http://www.hrw.org/doc?t=africa&c=darfur [1]
http://www.icc-cpi.int/press/pressreleases/406.html [2]
The Statute of Rome
http://www.icc-cpi.int/library/about/officialjournal/Rome_Statute_English.pdf [3]
http://www.icc-cpi.int/library/about/officialjournal/Rome_Statute_English.pdf [4]
See article 5, 2, of the Rome Statute
http://www.icc-cpi.int/library/about/officialjournal/Rome_Statute_English.pdf [5]
http://www.icc-cpi.int/library/about/officialjournal/Rome_Statute_English.pdf http://hrw.org/campaigns/icc/qna.htm [6]
http://hrw.org/english/docs/2008/07/14/sudan19335.htm [7]
http://www.icc-cpi.int/about/ataglance/faq.html#faq4 [8]
http://www.un.org/News/dh/sudan/com_inq_darfur.pdf and
http://hrw.org/reports/2005/darfur1205/8.htm#_Toc121546243 and the complete Human Rights Watch report:
http://hrw.org/reports/2005/darfur1205/ [9]
http://hrw.org/reports/2005/darfur1205/8.htm#_Toc121546243 http://www.sudantribune.com/spip.php?article8971 [10]
The decree reads:
Temporary Decree, People's Armed Forces Act 1986, Amendment 2005
Seeking Permission to Institute Criminal Procedures Against Any Officer, Ranker or Soldier
There shall not be taken any procedures against any officer, ranker or soldier who committed an act that may constitute a crime done during or for the reason of the execution of his duties or any lawful order made to him in this capacity and he shall not be tried except by the permission of the General Commander or whoever authorized by him.
Made under my signature August 4th 2005, Omer Hassan Ahmed Al Bashir
This source is derived from:
http://hrw.org/reports/2005/darfur1205/8.htm#_ftn190 See
http://hrw.org/reports/2005/darfur1205/8.htm#_Toc121546243 [11]
http://www.hrw.org/backgrounder/ij/sudan0606/ [12]
http://hrw.org/english/docs/2007/02/23/darfur15402.htm [13]
http://www.hrw.org/reports/ 2005/darfur1205/2.htm#_ Toc121546209 http://www.hrw.org/english/ docs/2004/05/05/darfur8536.htm http://hrw.org/englishwr2k8/ docs/2008/01/31/sudan17759.htm [14]
http://www.hrw.org/reports/2004/sudan0504/appendixc.pdf http://www.hrw.org/english/ docs/2004/05/05/darfur8536.htm [15]
http://www.hrw.org/english/ docs/2004/05/05/darfur8536.htm [16]
http://www.hrw.org/reports/ 2004/sudan0404/3.htm#_ Toc68525371 [17]
Promoting the Arab culture at the cost of the local African tribal culture and customs
It was, however, no religious conflcts, since all Darfurians, African or Arab, are muslims
[18]
http://www.hrw.org/reports/ 2004/sudan0404/3.htm#_ Toc68525371 [19]
In contrary with Darfur, the conflict in Southern Sudan had a rstrong religious character and was also intensified by the oill company policy of expelling the native population from their homelands, with assistence of the Sudanese governmental troops and militia
http://www.hrw.org/reports/ 2004/sudan0404/3.htm#_ Toc68525371 under 4: See
http://www.hrw.org/reports/ 2004/sudan0404/3.htm#_ftn4 [20]
Regarding oli-interests in the South:
http://www.amnesty.org/en/ library/asset/AFR54/001/2000/ en/dom-AFR540012000en.html http://www.hrw.org/reports/ 2003/sudan1103/ [21]
http://hrw.org/reports/2004/ sudan0504/4.htm#_Toc71531689 [22]
http://hrw.org/reports/2004/ sudan0504/4.htm#_Toc71531689 [23]
http://hrw.org/reports/2004/sudan0504/4.htm#_Toc71531689 and
http://hrw.org/reports/2004/sudan0504/4.htm#_ftn9, under 9 [24]
http://hrw.org/reports/2004/sudan0504/4.htm#_Toc71531689 [25]
http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/668BF8 [26]
http://www.hrw.org/reports/2004/sudan0404/4.htm#_Toc68525375 http://www.hrw.org/reports/2004/sudan0404/4.htm#_ftn17 Journalists and members of humanitarian helporganisations were threatened and intimidated and the access of medicins and auxiliary goods for the civilian populations had been blocked by the Sudanese authorities
[27]
http://hrw.org/reports/2008/darfur0408/ [28]
http://hrw.org/reports/2008/darfur0408/6.htm#_Toc194408679 [29]
Etnical cleansing is the expulsion of a population out of their homeland or living area
According to International Law, this is a crime against humanity
[30]
http://www.hrw.org/english/docs/2004/07/19/darfur9096.htm Under one in underlying link is described:
''See among others, Human Rights Watch reports: Darfur in Flames: Atrocities in Western Sudan, Vol.16, No.5 (A), April 2004; Darfur Destroyed: Ethnic Cleansing by Government and Militia Forces in Western Sudan, Vol.16, No. 6(A), May 2004; Report of the High Commissioner on the Situation of Human Rights in the Darfur region of the Sudan, E/CN.4/2005/3, U.N. Office of the High Commissioner of Human Rights, May 3, 2004; Darfur: Too Many People Killed for No Reason, Amnesty International, February 3, 2004. ''
See underlying link:
http://www.hrw.org/english/docs/2004/07/19/darfur9096.htm#1 under 1 is describes
[31]
http://www.hrw.org/reports/2005/darfur1205/2.htm#_Toc121546209 http://www.hrw.org/reports/2004/sudan0404/2.htm#_Toc68525358 http://www.hrw.org/reports/2004/sudan0504/9.htm#_Toc71531717 [32]
http://www.hrw.org/reports/2004/sudan0404/2.htm#_Toc68525358 http://www.hrw.org/reports/2004/sudan0504/9.htm#_Toc71531717 [33]
http://www.hrw.org/reports/2004/sudan0404/3.htm#_Toc68525373 http://hrw.org/backgrounder/africa/darfur0505/ http://www.hrw.org/english/docs/2004/05/05/darfur8536.htm [34]
http://www.hrw.org/english/docs/2004/05/05/darfur8536.htm [35]
http://www.hrw.org/english/docs/2004/05/05/darfur8536.htm http://www.hrw.org/backgrounder/africa/chad0206/ [36]
http://hrw.org/englishwr2k8/docs/2008/01/31/sudan17759.htm [37]
http://hrw.org/englishwr2k8/docs/2008/01/31/sudan17759.htm [38]
http://hrw.org/reports/2007/sudan0907/ http://unamid.unmissions.org/Default.aspx?tabid=55&ctl=Details&mid=376&ItemID=196 http://en.wikipedia.org/wiki/United_Nations_African_Union_Mission_in_Darfur [39]
http://www.hrw.org/english/docs/2004/05/05/darfur8536.htm [40]
http://www1.umn.edu/humanrts/instree/k2crc.htm http://hrw.org/reports/2008/darfur0608/ [41]
http://hrw.org/english/docs/2008/06/25/sudan19200.htm http://hrw.org/english/docs/2008/08/06/sudan19549.htm http://hrw.org/english/docs/2008/08/15/sudan19626.htm
Astrid Essed
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