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Progress report of the study on genocide in the context of the "Darfur Crisis"

APPENDIX to the WCC Central Committee statement on the Darfur crisis in the context of Sudan

01 September 2009

APPENDIX to Statement on the Darfur crisis in the context of Sudan

1. At its meeting in Geneva, Switzerland (30 August - 6 September 2006), the WCC central committee “requested the staff to study if the use of the term genocide with regard to the crisis in Darfur is appropriate in light of the internationally agreed conventions on this issue, and to offer counsel to the churches.”

2. Before proceeding with a close examination of the Darfur crisis and the response of the international community to it, it is pertinent to analyze and examine the legal definition of the term genocide and the particular challenges it poses in today’s context.

Analysis of the term genocide

3. The word genocide was used for the first time by lawyer, Raphael Lemkin, who combined the Greek word genos (race or tribe) with the Latin word cide (cidere – to massacre, kill). Following the horrors of the holocaust he campaigned for having genocide recognized as a crime under international law. His efforts gave way to the adoption of the “Convention on the Prevention and Punishment of the Crime of Genocide”, adopted by the United Nations (UN) General Assembly on 9 December 1948, which came into effect in January 1951. Article II of the convention offers a legal definition of the crime of genocide. According to this definition genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such: a) killing members of the group; b) causing serious bodily or mental harm to members of the group; c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d) imposing measures intended to prevent births within the group; e) forcibly transferring children of the group to another group. The convention also imposes a general duty on States that are signatories to “prevent and punish” genocide. The same definition was taken up later on by the statute of the two ad-hoc tribunals - the International Criminal Tribunal for Rwanda (Article 2) and the International Criminal Tribunal for ex-Yugoslavia (Article 4) and finally by the Rome statute of the International Criminal Court (ICC) (Article 5).

4. Over the years the definition of genocide has been widely debated. Many have argued that it is too narrow and thus many of the mass killings perpetrated since the adoption of the convention would not fall under it. Some of the arguments invoked in support of this point are that the convention excludes targeted political and social groups. Furthermore, the definition is limited to direct acts against people and excludes acts against the environment which sustains them. Another issue is that proving intention beyond reasonable doubt is extremely difficult. An additional question along these lines is the difficulty of defining or measuring “in part” and establishing how many deaths equate to genocide. One more dimension that should be taken into consideration is the reluctance of the UN member states to single out other member states or to intervene.

5. What differentiates genocide from other crimes against humanity is the intent to destroy in whole or in part a national, ethnic, racial or religious group. Acts which are directed against those groups with a discriminatory intent but not with intent to destroy them constitute crimes against humanity and not genocide. As it becomes evident, there is a clear distinction between those two categories which renders qualifying a certain crime as genocide a very difficult task.

6. In order to determine whether a particular crime constitutes genocide, it needs to be ascertained whether a factual case has been made out of the legal pre-requisites. It requires the gathering of concrete evidence that can prove beyond a reasonable doubt the commission of such a crime. The gathering of such evidence can prove to be a very difficult task, especially during on-going crises, like in the case of Darfur.

Developments on international level with regard to the Darfur crisis

7. In January 2005 an International Commission of inquiry on Darfur, authorized by UN Security Council resolution 1564 of 2004, issued a report to the secretary general stating that, “the government of the Sudan has not pursued a policy of genocide”. Nevertheless, the commission cautioned that, “this should not be taken in any way as detracting from the gravity of the crimes perpetrated in that region. International offences such as the crimes against humanity and war crimes that have been committed in Darfur may be no less serious and heinous than genocide”. Following the adoption of that resolution, the UN Security Council adopted resolution 1593 (31 March 2005) referring the ongoing conflict in Darfur to the ICC. Subsequently, in April 2007, the ICC issued its first arrest warrants in a three-year investigation of war crimes in Darfur, Sudan, against Janjaweed militia leader, Ali Kushayb, and Sudanese humanitarian affairs minister Ahmad Muhammed Harun, who is believed to have been one of the masterminds behind the well-reported mass killings and displacements in the region. Since the prosecutor did not find sufficient evidence to prosecute for genocide, they are being accused of 51 crimes against humanity and war crimes. Meanwhile, the mandate of the special rapporteur on the situation of human rights in Sudan was extended for one year by the Human Rights Council during its 6th session in December 2007.

8. On 14 July 2008, ICC prosecutor, Luis Moreno-Ocampo, submitted to the judges of the pre-trial chamber of the ICC an application for the issuance of an arrest warrant against Sudan’s president, Omar Hassan Ahmad Al Bashir, for genocide, crimes against humanity and war crimes. Three years after the Security Council requested him to investigate in Darfur, and based on the evidence collected, the prosecutor concluded there are reasonable grounds to believe that Sudan’s President Al Bashir bears criminal responsibility in relation to ten counts of genocide, crimes against humanity and war crimes.

9. According to the prosecution evidence, President Al Bashir masterminded and implemented a plan to destroy in substantial part the Fur, Masalit and Zaghawa groups, on account of their ethnicity. The prosecutor stated that:

“Members of the three groups, historically influential in Darfur, were challenging the marginalization of the province; they engaged in a rebellion. Al Bashir failed to defeat the armed movements, so he went after the people. His motives were largely political. His alibi was a counterinsurgency. His intent was genocide.”

10. According to the evidence gathered, the prosecutor said that for over five years armed forces and the militia/Janjaweed, on President Al Bashir’s orders, attacked and destroyed villages. They then chased the survivors out to the desert. Millions of civilians have been uprooted from lands they occupied for centuries, all their means of survival destroyed, their land spoiled and inhabited by new settlers. Those who reached the camps for the displaced people were subjected to conditions calculated to bring about their destruction (killings, rapes, hunger).

11. It should be noted that Sudan has not signed up to the ICC but the court has authority to act in this case because the UN Security Council gave it a mandate to do so, with resolution 1593 in March 2005. The Pre-Trial Chamber will now review and assess the evidence presented to them over the next couple of months. If the judges determine that there are reasonable grounds to believe that President Omar Al Bashir committed the alleged crimes, they will decide on the best manner to ensure his appearance in court. If the judges issue the warrant, Sudan will be obliged to arrest its own president, in effect the president handing himself over, which most likely will never happen.

12. Under Article 89, President Al Bashir might also be liable to arrest if he visits one of the 106 states that are parties to the Treaty. Article 89 of the court's statute says that the court “may transit a request for the arrest and surrender of a person...to any state on the territory of which that person may be found...”

13. This is the first time that the ICC prosecutor has made charges against a head of State, breaking new ground in the reduction of national sovereignty rights that have characterized international law in recent years. The real impact of this development is yet to be seen. Meanwhile, on 31 July, the council renewed the UN African Union Mission (UNAMID) mandate for 12 months in resolution 1828. This was preceded by intense negotiations on a proposal, following a request to the ICC from its prosecutor for an arrest warrant against President Al Bashir, to include language suspending ICC proceedings under Article 16 of the Rome Statute. According to this article:

“No investigation or prosecution may be commenced or proceeded with under this statute for a period of 12 months after the security council, in a resolution adopted under chapter VII of the charter of the United Nations, has requested the court to that effect; that request may be renewed by the council under the same conditions.”

14. The majority resisted this proposal, but compromise was found in emphasizing the need to bring the perpetrators of serious crimes to justice (and the government‘s obligations in this respect) and also mentioning some council members’ concerns related to the request for an arrest warrant against President Al Bashir. The resolution took note of those members’ intention to consider these matters further.

15. Darfur will continue to be a focus for the UN Security Council. In particular, council members are expected to discuss issues relating to the deployment of the UNAMID and current proceedings before the ICC. It is unclear whether any formal proposals for a suspension of proceedings against Sudan’s President Omar Al Bashir before the ICC will emerge in September. A report from the sanctions panel of experts is due by 15 September 2009.

16. It must be noted that divisions within the council on ICC issues are expected to continue. China, Russia, South Africa, Libya, Burkina Faso and Indonesia support the suspension of ICC proceedings. Other council members believe it is more important to safeguard legal mechanisms and to ensure accountability.

17. But recent developments on the ICC issue also seem to indicate that some of those members may be open to the possibility of an Article 16 suspension of ICC proceedings for President Al Bashir. This would be provided there are serious steps from Khartoum in improving cooperation with the ICC, including credible action against other indictees, as well as real cooperation with UNAMIDs deployment, facilitating humanitarian assistance and creating genuine conditions for a peace process. There also seems to be a perception that pressure may be required on the rebels in that regard.

18. On the other hand the Sudanese government unveiled a reconciliation initiative for Darfur including a national dialogue conference, but as yet no dates have been officially announced. The government also appointed a prosecutor to head domestic proceedings on serious crimes in Darfur. But scepticism remains due to the timing, the lack of Sudanese legislation dealing with such crimes, and weaknesses in the Sudanese judiciary. The government reportedly continues to refuse to execute pending ICC arrest warrants for Ahmed Haroun and Ali Kushayb. Thus many seem unconvinced of Khartoum’s recent efforts on domestic mechanisms for justice and accountability, being mindful of past similar initiatives that they see as lacking credibility.

19. On Darfur, the key issue is whether there is anything the council can do to encourage the parties to move towards a genuine ceasefire and a peace process. Another is improving security and, in that context, determining how best to advance UNAMIDs deployment.

20. Justice and accountability issues also seem likely to preoccupy members, in particular whether an appropriate balance can be found that preserves the integrity and independence of the ICC and avoids impunity, encourages Sudan’s cooperation with UNAMID, improves the prospects of a ceasefire and peace process in Darfur and preserves overall stability in Sudan. In this regard, options could include:

a. adopting a wait-and-see approach on the ICC’s consideration of its prosecutor’s request for an arrest warrant against President Al Bashir;

b. reaching an understanding with Sudan that President Al Bashir’s ICC proceedings could be suspended for one year provided that there is a watertight arrangement on Sudan’s cooperation with the ICC over other indictees, improved cooperation with UNAMID, and concrete steps towards a ceasefire. (A necessary measure in this regard might be to consider a spectrum of sanctions against the rebels should they refuse to cease hostilities.); and

c. some other watertight arrangement that would ensure legal accountability for ICC indictees, perhaps along the lines of the Lebanon tribunal, which applies domestic law but uses international judges and a neutral location—but a problem in this option is the absence of domestic legislation in Sudan incorporating the relevant international crimes.

21. If the option of domestic judicial mechanisms in substitution for the ICC were considered important, challenges would arise. In addition to issues relating to judicial capacity and independence, as already mentioned, Sudan’s legal system does not contain specific provisions for crimes against humanity, war crimes and genocide.

22. Still another issue is whether the council should increase its focus on the broader challenges facing Sudan, in particular whether there is anything the council should do on the situation in northern and southern parts of Sudan. This includes how best to ensure progress in implementing the Comprehensive Peace Agreement (CPA) on elections in 2009 and a southern independence referendum in 2011; demarcating the north-south border and the status of Abyei; and sharing from oil-revenue.

23. Meanwhile, during the first week of July 2009 the African Union (AU) summit passed a resolution not to co-operate with a war crimes warrant against Sudanese President Omar Hassan Al Bashir. Botswana was the only country that refused to endorse the resolution. Botswana’s Vice-president, Mompati Merafhe, stated that when the issue of the ICC warrant to arrest Sudan’s president, Omar Al Bashir, was brought to the table during the AU summit, Libyan leader Colonel Muammar Gadaffi did not entertain any debate. Colonel Gadaffi stated that the AU is opposed to the warrant of arrest. Vice-president Merafhe revealed that it was only Botswana and Chad who made their position clear that President Al Bashir should go to the ICC to clear his name. He said that other countries did not make public their position on the matter, apparently because of their proximity to Libya or Sudan.

24. The latest development on the issue is that on 7 July 2009, the prosecutors at the ICC have appealed against the ICC judges' decision not to indict Sudan's president for genocide.

Closing remarks

25. From the analysis that preceded, it becomes quite evident that genocide is a rather complex issue with not just legal but also political parameters. Genocide has legal implications, entailing full-scale intervention by the international community and therefore it cannot be treated lightly without due consideration and in-depth analysis of all different elements surrounding a given case.

26. The pursuit of justice, peace and reconciliation has been at the core of the mission of Christian churches as a response to the teaching of Jesus in the Sermon on the Mount: "Blessed are those who hunger and thirst for righteousness, for they will be filled…Blessed are the peacemakers, for they will be called the children of God.″ (Mathew 5: 6-9) The churches in different parts of the world, and especially in those countries which have suffered gross human rights violations, have been struggling against impunity at the national and international level. The rationale of this struggle has been not so much to seek punishment, but to overcome violence and impunity, to support victims and to pursue peace, justice and reconciliation.

27. In this study of the Darfur crisis, the paradigm of restorative justice has emerged as a way to stress the importance of restoring broken relationships within the communities. Through restorative justice, people begin to understand each other’s vulnerability and acknowledge their humanity. Restorative justice aims to restore victims, restore perpetrators and restore communities. A victim-centred approach emerges as one of the characteristics of restorative justice procedures from the community level to the national level.

28. Churches and ecumenical organizations have always interpreted the cries of the victims as a demand to respect their rights. Victims have the right to know exactly what happened in the case of grave human rights violations. It was within this context that churches raised their prophetic voice with regard to the Armenian genocide. In 1984, the WCC published a document of background information called, “Armenia: the Continuing tragedy”. Following this, the Commission of the Churches on International Affairs raised the issue of the Armenian genocide in the UN Commission on Human Rights with reference to the latter’s “Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide”. The report was presented in 1985 to the UN Sub-Commission on Prevention of Discrimination and Protection of National Minorities, and concluded that the Armenian massacres had constituted genocide.

29. Churches should once again assume their pioneering role and raise their prophetic voice with regard to the Darfur crisis. The latest developments at the international level also indicate the fact that all the evidence shows that the crimes committed in Darfur against non combatant civilians fulfil the legal pre-requisites of the crime of genocide as prescribed in the UN Convention on the Prevention and Punishment of the Crime of Genocide and in the Rome Statute of the ICC.

30. The conflict in Darfur enters its sixth year and constitutes a moral challenge for the international community that must no longer silence and ignore the continuous deteriorating situation of thousands of innocent people who are confronted daily with death and famine and are subjected to conditions calculated to bring about their physical destruction.

31. During the high–level plenary meeting of the UN General Assembly in 2005, world leaders agreed, for the first time, that states have a primary responsibility to protect their own populations and that the international community has a responsibility to act when these governments fail to protect the most vulnerable. The responsibility to protect populations from genocide, ethnic cleansing, war crimes and crimes against humanity is an international commitment by governments to prevent and react to grave crises, wherever they may occur. This responsibility to prevent, react to and rebuild following such crises rests first and foremost with each individual state. However, when states manifestly fail to protect their populations, the international community shares a collective responsibility to respond. This response should be the exercise of first peaceful, and then, if necessary, coercive, including forceful, steps to protect civilians. The responsibility to protect means that no state can invoke its right to sovereignty as an excuse to avoid any kind of scrutiny from the international community while it conducts or permits widespread human rights violations to its population. Nor can states turn a blind eye either because these violations extend beyond their borders, or because proactive actions might not suit their narrowly defined national interests.

32. Unfortunately this has been the case with the Darfur crisis. The international community no longer has the right to remain a bystander and allow the perpetration of large scale atrocities, like the ones occurring in Darfur, to continue unpunished. As it was stated in the “Report on the Armenian Genocide”, adopted by the WCC central committee, Geneva, 15-22 February 2005:

“From the Christian perspective, the path towards justice and reconciliation requires the recognition of the crime committed as a sine qua non condition for the healing of memories and the possibility of forgiveness. Forgiveness does not mean forgetting but to look back with the intention to restore justice, the respect for human rights and relationships between perpetrators and victims.”

33. Churches should take the lead in advocating and offering their support to all efforts, national and international, that aim at pursuing justice and accountability with a view to building a long lasting peace through a truly reconciliatory process.