Statement by Ms. Louise Arbour High Commissioner for Human Rights to the Security Council on The International Commission of Inquiry on Darfur New York; 16 February 2005

Mr. President,
Secretary-General,
Members of the Council, Distinguished Representatives,

The urgent need to stop the violence in Darfur is widely acknowledged. One way to reduce the carnage – not the only way, but a credible and legitimate way – is to remove from their positions those who orchestrate or execute it. The Security Council has taken the lead in this regard, through its call for the establishment of a Commission of Inquiry in resolution 1564 (2004).

The findings of that Commission, which you have before you and which I shall highlight today, provide a blueprint for action. The Commission’s recommendations are not merely of retrospective importance. Their implementation will not only do justice for the victims of the massive crimes committed in Darfur, but may actually contribute to reducing the exposure of thousands of prospective victims.

This is the context in which today’s call for action needs to be understood.

On adoption of resolution 1564, the Secretary-General appointed five outstanding international legal and human rights experts as Commissioners. They brought with them a wealth of knowledge from different legal systems and expertise in international human rights, humanitarian and criminal law.

The Commission’s mandate was:

1. To investigate reports of violations of international humanitarian law and human rights law in Darfur by all parties;
2. To determine whether or not acts of genocide had occurred; and,
3. To identify the perpetrators of such violations with a view to ensuring that those responsible were held accountable.

The Secretary-General requested my Office to assist the Commission in its work. My Office created a secretariat composed, in all, of more than 30 persons, including legal and human rights officers supporting the day-to-day work of the Commissioners, and field-based teams composed of criminal investigators, including some with backgrounds in sexual violence, military analysts, and forensic experts.

The Commissioners undertook two missions to the Sudan, including Darfur, as well as visiting relevant parties in Chad, Eritrea and Ethiopia. When the Commissioners returned to Geneva following their first mission to the Sudan in November 2004, their investigative teams stayed in the country and remained on the ground, primarily in Darfur, for a total of eight weeks, until 19 January 2005. In addition to the material collected by the Commission itself, it also received information and evidence from a very broad range of sources, including Governments, NGOs and various international organizations.

The Commission reported to the Secretary-General within three months: on 25 January 2005. Its findings are clear and thoroughly documented.

First, the Commission found that large-scale war crimes and crimes against humanity had been committed by Sudanese Government officials and the Janjaweed militia. In particular, the Commission found that Government forces and militias had, throughout Darfur, engaged in indiscriminate attacks against civilians, murder, torture, enforced disappearances, destruction of villages, rape, pillage and forced displacement. These acts took place on a very large scale and in a systematic manner, and may therefore amount to crimes against humanity.

Consider the events in Kailek, a village in South Darfur mainly populated by people of the Fur tribe. Kailek and surrounding villages were attacked twice by Government forces and Janjaweed. Following the second attack in March 2004, the villagers fled to the mountains where they were hunted down by mounted Janjaweed. The military shelled the area and machine-gunned those in flight; some were captured and shot and killed.

For a period of about 50 days, up to 30,000 people were confined in a small open area in Kailek. They were subject to the most abhorrent treatment. Some men were singled out and summarily shot. There are reports of people being thrown onto fires and burnt alive. Women and children were separated out, confined in a walled area, and periodically taken away by their captors to be raped, some subjected to gang rapes.

As evidenced in the Commission’s report, the case of Kailek is not unique in today’s Darfur.

With regard to the rebels, the Commission found credible evidence that members of the SLA and JEM were also responsible for serious violations which may amount to war crimes. In particular, these violations include cases of murder of civilians and pillaging. However, the Commission did not find a systematic or a widespread pattern to these violations.

Second, the Commission concluded that the Government of Sudan had not pursued a policy of genocide. In other words, it did not find a demonstrated, specific intention, expressed as a government policy, to exterminate, in whole or in part, a national, ethnic, racial or religious group, protected under the definition of genocide.


However, the Commission recognized that only a competent court could determine, on a case by case basis, whether individuals, including Government officials, ordered or participated in atrocities motivated by the genocidal intent to exterminate a protected group, in which case they could be found guilty of the crime of genocide.

It is, in my view, important to stress that nothing in the Commission’s report precludes the possibility of individuals being convicted of acts of genocide in relation to the events in Darfur. Personal criminal responsibility is not determined by government policy.

Furthermore, the Commission stressed that its conclusion that no genocidal policy had been pursued should not be taken as in any way detracting from, or belittling, the gravity of the crimes perpetrated.

Third, the Commission identified 51 individuals suspected of international crimes in Darfur. It decided to withhold their names from the public domain so as to respect the suspects’ right to due process and to ensure the protection of witnesses from possible harassment or intimidation. The names of these suspects are contained in a sealed file that has been placed in the custody of the Secretary-General to be handed over to a competent prosecutor. Needless to say, this list is neither exhaustive nor binding. In addition, the Commission handed to me a sealed file containing the evidentiary material it collected, also to be delivered to a competent prosecutor.

The Commission reviewed steps taken by the Sudanese Government and judicial authorities to address these crimes and concluded that they were both unwilling and unable to act. It noted that the justice system had been significantly weakened during the last decade, and that restrictive laws granting broad powers to the executive particularly undermined the effectiveness of the judiciary. Many of the laws in force in Sudan today contravene basic human rights standards and the Criminal Procedure Code contains provisions that prevent the effective prosecution of these crimes. In addition, many victims informed the Commission that they had little confidence in the impartiality of the Sudanese justice system and its ability to bring to justice the perpetrators of the serious crimes committed in Darfur and many feared reprisals if they resorted to it.

Despite the magnitude of the crisis, the Government informed the Commission of very few cases of individuals who had been prosecuted or even disciplined in the context of the situation in Darfur, which led the Commission to observe that measures taken so far had been grossly inadequate and ineffective.

In my view, any new initiative proposed by the Government of Sudan today to address these crimes could not be supported in light of the Commission’s conclusions. In particular, the extent of involvement of Government officials, as documented by the Commission, would appear to foreclose such options.

The Commission carefully considered a broad range of other accountability measures.

For reasons outlined above, the Commission also excluded the possibility of establishing mixed courts.

The Commission also excluded the possibility of either establishing an ad-hoc international tribunal, or expanding the mandate of an existing tribunal. The Commission concluded that ad hoc measures would likely prove unduly time-consuming and expensive.

The Commission strongly recommended that the Security Council refer the situation of Darfur to the International Criminal Court. The Commission held the view that referral to the ICC was the only credible way of bringing alleged perpetrators to justice and advised against other measures. Activated by Security Council referral, the ICC would be empowered to prosecute any persons for acts committed in Darfur which amount to any of the crimes listed under the Rome Statute.

Designed, in part, for the purpose of addressing crimes which threaten international peace and security the ICC could be activated immediately. With an already existing set of well-defined rules of procedure and evidence, the Court is the best suited institution for ensuring speedy investigations leading to arrests and demonstrably fair trials.

In addition, the Commission urged that the Council act not only against the perpetrators but also on behalf of victims. It therefore proposed the establishment of an International Compensation Commission.
Mr. President, Members of the Council,

Murder, torture, enforced disappearances, destruction of villages, rape and forced displacement continue to be committed against the people of Darfur. These crimes have been and, it appears, continue to be perpetrated, on a widespread and systematic basis, by Government officials and Janjaweed leaders or those under their command. Members of rebel groups are also responsible for war crimes.

What is most urgently needed now are concrete measures to bring the current violence to an end and restore security and dignity to the people of Darfur. The Commission, in my view, eloquently and powerfully argues that referral to the ICC is the best means by which to halt ongoing violations and prevent future ones.

As stressed by the Commission, there are other immediate actions to be taken, which the Council may wish to note, including granting full and unimpeded access by the International Committee of the Red Cross and United Nations human rights monitors to all those detained by the Sudanese authorities in relation to the situation in Darfur.

The protection of witnesses and victims of human rights violations is urgently needed. I have written to the Government of Sudan with regard to these issues and have already appointed a Witness Protection Officer to follow up on any reports of threats or harassment of victims and witnesses perceived to have cooperated with the Commission.

Last September, the Council took an important first step towards bringing justice to the people of Darfur by requesting the establishment of an international commission of inquiry. The Commission has discharged its tasks with professionalism and integrity and placed before you a proposed course of action aimed at ending the brutality in Darfur, ensuring that perpetrators of atrocities are punished, and recognizing the dignity of the victims.

The pursuit of justice is often said to clash with the pursuit of peace. Whatever the theoretical merit of that proposition, the findings of this Commission of Inquiry irrefutably demonstrate that there is no hope for sustainable peace in Darfur without immediate access to justice.

Thank-you.