Entrenching Impunity
Government Responsibility for International Crimes in Darfur

IX. Culpability of Individuals under International Law

International crimes committed in Sudan include war crimes and crimes against humanity.  Since July 2003, Sudanese government forces and government-backed Janjaweed militias have committed numerous war crimes and crimes against humanity against civilians, civilian property, and civilian populations of the same ethnicity as rebel forces.  Rebel forces may also be responsible for war crimes.

International humanitarian law (the laws of war) imposes upon states and armed groups, legal obligations during armed conflicts to reduce unnecessary suffering and to protect civilians and other non-combatants.202 The conflict in Darfur is considered under international humanitarian law to be a non-international (or internal) armed conflict. The law applicable is article 3 common to the four Geneva Conventions of 1949 and customary international humanitarian law.203  Although Sudan has not ratified the Protocol Additional to the Geneva Conventions relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), most of its provisions, including those concerned with protecting the civilian population, are considered reflective of customary international law.204 Violations of the laws of war for which there is individual criminal liability are considered war crimes.

Crimes against humanity are unlawful acts committed as part of a widespread or systematic attack against a civilian population. The acts that constitute crimes against humanity include murder, extermination, enslavement, deportation, arbitrary detention, torture, rape, persecution on political, racial and religious grounds, and other inhumane acts.

The widespread and systematic abuses by government and Janjaweed forces against ethnic groups believed to be linked to the rebels amount to an attack on a civil population within the definition of crimes against humanity. The pattern of similar crimes against civilian populations in different areas of Darfur, as well as documentary and eyewitness evidence linking senior government officials with abusive military operations, point to a policy at the highest levels of the Sudanese government. Whether that policy amounted to genocide remains unclear. The International Commission of Inquiry into the crimes in Darfur concluded that there was no government policy of genocide, but that crimes may have been committed by individuals with genocidal intent and that this question should be resolved in a court of law.205

Determining whether there was genocidal intent requires access to government documents and to those in the leadership who planned and coordinated the campaign in Darfur.  But the demonstration of intent needed for a finding of genocide is not needed to show crimes against humanity or war crimes.  The question of genocide aside, the Sudanese government -- and the responsible civilian officials, members of the armed forces and militia members -- must be held accountable for crimes against humanity and war crimes in Darfur that resulted in thousands of civilian victims.

Many Sudanese government officials, military commanders and militia leaders were in positions of authority over the soldiers and militia members who committed the atrocities.  Some issued orders to attack civilians, destroy villages, and loot civilian property for which they are liable as a matter of individual criminal responsibility. Others may be found responsible under the doctrine of command responsibility:  Military or civilian leaders are liable for serious abuses committed by persons under their command or authority if they knew or should have known of the abuses, and did not take measures to prevent them or punish the perpetrators.  Attacks on civilian populations were organized at high levels of government, were continued for more than two years with the full knowledge that the targets were civilians, and resulted in no serious steps to punish those responsible for the crimes committed.

Presenting allegations of international crimes is only a first step; extensive criminal investigations are required.  But gathering evidence for prosecutions of international crimes is extremely difficult in the current climate in Sudan.  Witnesses must be able to come forward without fear of retribution, crime scenes must remain untampered with, and forensic and documentary evidence must be shown to be genuine.  Given the absence of its own serious investigations, the Sudanese government must allow and ensure the safety of international investigators, prevent threats and violence against witnesses, and open up its governmental records for outside scrutiny.

A. Violations of International Humanitarian Law

All forces during an armed conflict must prevent unnecessary suffering, ensure humane treatment of persons in their control, and uphold the distinction between combatants and civilians. It is always forbidden to target civilians, and government armed forces and non-state armed groups must take all feasible precautions to minimize civilian harm.  Violations of the laws of war that incur individual criminal responsibility are war crimes.

The principle of distinction between civilians and combatants is recognized as a fundamental principle of international humanitarian law in all armed conflicts. This principle provides that parties to a conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants and other military objectives, and not against civilians or civilian objects.206 Attacks that are primarily designed to spread terror among the civilian population are prohibited.207 Civilians are protected from attack unless, and for only such time as they take a direct part in hostilities. In case of doubt whether a person is a civilian, that person is considered a civilian.208

A legitimate military objective is an object or a target, selected by its nature, location, purpose, or use, that contributes effectively to the enemy’s military capability, and whose destruction or neutralization offers a definite military advantage in the circumstances.209 Legitimate military objectives include the enemy’s forces, weapons, convoys, installations, and supplies. In addition, objects generally used for civilian purposes, such as houses, commercial buildings, or a civilian airfield, can become military objectives if their location or use meets the criteria for a military objective.210

The principle of distinction is also enshrined in common article 3 of the four Geneva Conventions, which imposes legal obligations on all parties to a conflict to ensure humane treatment of persons not, or no longer, taking an active role in hostilities. Common article 3 states:

Persons taking no active part in the hostilities, including members of armed forces who had laid down their arms and those placed hors de combat [out of combat] by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria.

Common article 3 expressly binds “each Party to the conflict,” that is, government forces and non-state armed groups, even though the latter do not have the legal capacity to sign the Geneva Conventions.

With regard to civilians and captured combatants, both government and rebel forces are prohibited from using violence to life and person, in particular murder, mutilation, cruel treatment, and torture. The taking of hostages is forbidden, as is humiliating and degrading treatment. No party to the conflict may pass sentences or carry out executions without previous judgment by a regularly constituted court that has afforded the defendant all judicial guarantees.211

Customary international humanitarian law provides additional protections for civilians in internal armed conflicts. While not an all-inclusive list, the following are prohibited by all sides: rape and other forms of sexual violence;212 enforced disappearance;213 arbitrary deprivation of liberty;214 and, collective punishments.215

In addition, parties must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need.216 The freedom of movement of humanitarian relief workers must be ensured.217

B. Crimes against Humanity

Crimes against humanity were first codified in the charter of the Nuremberg Tribunal of 1945. The purpose was to prohibit crimes “which either by their magnitude and savagery or by their large number or by the fact that a similar pattern was applied … endangered the international community or shocked the conscience of mankind.”218 Since then, the concept has been incorporated into a number of international treaties and the statutes of international criminal tribunals, including the Rome Statute of the ICC.219

The ICC Statute defines crimes against humanity as unlawful acts “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”220 Murder, extermination, enslavement, deportation, arbitrary detention, torture, rape, persecution on political, racial and religious grounds, and other inhumane acts all fall within the range of acts that can qualify as crimes against humanity.221  Unlike war crimes, crimes against humanity may be committed in times of peace or in periods of unrest that do not rise to the level of an armed conflict.  Because crimes against humanity are considered crimes of universal jurisdiction, all states are responsible for bringing to justice those who commit crimes against humanity.

Crimes against humanity include those abuses that take place as part of an attack against a civilian population.  So long as the targeted population is of a predominantly civilian nature, the presence of some combatants does not alter its classification as a “civilian population” as a matter of law.222   Rather, it is necessary only that the civilian population be the primary object of the attack.223  Thus abuses committed by Sudanese government forces and Janjaweed militias against civilians during the course of military operations against rebel forces will fall under the definition of crimes against humanity.

The attack against a civilian population underlying the commission of crimes against humanity must be widespread or systematic.  It need not be both.224  “Widespread” refers to the scale of the acts or number of victims.225  A “systematic” attack indicates “a pattern or methodical plan.”226   International courts have considered to what extent a systemic attack requires a policy or plan, but such policy or plan need not be adopted formally as a policy of the state.227

Culpability for crimes against humanity requires that the perpetrator have the relevant knowledge of the underlying attack.228  That is, perpetrators must be aware that their actions formed part of the widespread or systematic attack against the civilian population.229  While perpetrators need not be identified with a policy or plan underlying crimes against humanity, they must at least have knowingly taken the risk of participating in the policy or plan.230

C. Individual Criminal Responsibility

All individuals, including government officials, military commanders, soldiers, militia members, and civilians, are subject to prosecution for war crimes, crimes against humanity, and applicable domestic crimes under international law.

Individual criminal responsibility for war crimes committed during internal armed conflicts has been explicitly provided in a number of international treaties since the early 1990s. These include the statutes for the international criminal tribunals for the former Yugoslavia and Rwanda, as well as the Rome Statute of the ICC.231

Individuals who commit war crimes may be held criminally liable. They may also be held criminally responsible for assisting in, facilitating, aiding, or abetting the commission of a war crime. They can also be prosecuted for planning or instigating the commission of a war crime. In addition, civilian officials, military commanders, and soldiers who order or commit crimes against humanity can be held individually liable.232

Crimes against humanity give rise to universal jurisdiction, do not have a statute of limitations, and do not admit the defense of following superior orders.

In Darfur, individuals such as militia leaders, soldiers, and pilots involved in bombing campaigns, military commanders, and government officials who directly participated in, planned, ordered, or were otherwise complicit in the commission of war crimes and crimes against humanity can be found criminally liable for these activities in international courts, regardless of the presence of Sudanese amnesty or immunity laws. Some of these individuals including those named in this report—both civilian and military—may also be liable for war crimes or crimes against humanity under the theory of command responsibility.

D. Command Responsibility

Under the doctrine of command responsibility, commanders, or other superiors may be culpable for failing to prevent or punish crimes committed by their subordinates. In Darfur, individual commanders and civilian officials could be liable for failing to take any action to end abuses by their troops or staff. Command responsibility is an established principle of customary international law233 and has been incorporated into the statutes of international criminal courts, including the Rome Statute of the ICC.234 Although the concept originated in military law, it now also embraces the responsibility of civilian authorities for the abuses committed by persons under their effective authority. The principle of command responsibility is applicable in internal armed conflicts as well as international armed conflicts.235

Under the doctrine of command responsibility there are three elements for establishing liability of a commander or other superior for criminal acts by their subordinates:

  • 1. There must be a superior-subordinate relationship.
  • 2. The superior must have known or had reason to know that the subordinate was about to commit a crime or had committed a crime.
  • 3. The superior failed to take necessary and reasonable measures to prevent the crime or to punish the perpetrator.

Superior-subordinate relationship

A superior-subordinate relationship is clearest when there are formal rules, for example when legislation or a military chain of command specifies the existence of a relationship. However, even in the absence of formal rules or a formal structure, a superior can have actual and effective control.236 Thus, civilian and political superiors, as well as those in military command, may be held liable under this doctrine.237 Moreover, there is no requirement that the superior-subordinate relationship be direct or immediate.238

In establishing whether a superior-subordinate relationship exists, international case law has found the following questions useful: Does the superior have “effective control” over the subordinate?239 What are the powers of influence of the alleged superior? What capacity does the superior have to issue orders? Does analysis of the distribution of tasks within any relationship demonstrate a superior-subordinate relationship?

The superior’s knowledge

Commanders and other superiors may be held liable under the command responsibility doctrine where they knew or had reason to know that crimes were being committed by their subordinates.

A superior’s actual knowledge of crimes committed or about to be committed by subordinates may be established from direct or circumstantial evidence.240  But command responsibility also includes circumstances where the superior had constructive knowledge, variously described as “had reason to know” or “had information enabling [the superior] to conclude.”241  Even general information in the possession of the superior that would put him or her on notice of possible unlawful actions of subordinates would be sufficient.242  That is, a superior would meet this standard if in possession of sufficient information to be on notice of the likelihood of illegal acts by subordinates that would justify further inquiry.243

According to A.P.V. Rogers, a leading authority on the laws of war:

Actual knowledge may be difficult to prove, but can be inferred from the surrounding circumstances, especially if war crimes by those under command are so widespread as to be notorious, for example, when soldiers under command carry out sustained and frequent unlawful attacks…. Liability may also attach to a commander even if he did not actually know about the acts of subordinates but ought to have known about them and his failure in this respect constituted a dereliction of duty on his part, for example, if he is put on notice but fails to do anything about it.244

Superior duty to take necessary and reasonable measures to prevent the crime or to punish the perpetrator

Superiors have both a duty to prevent and a duty to punish the crimes of subordinates. These constitute distinct and independent legal obligations.

The duty to prevent renders superiors responsible where they failed to consider elements that point to the likelihood that such crimes would be committed. Superiors successfully discharge their duty to prevent subordinate crimes when they employ “all necessary and reasonable measures.”245

There is a “duty to punish,” but superiors cannot make up for failure to prevent crimes by punishing subordinates afterwards:

A superior’s “duty to punish” arises after the commission of an offense. It is predicated upon offenses by others which have already occurred, not future offenses. Punishment is, therefore, intended to deter the commission of future offenses.246

E. State Responsibility for Crimes Committed by Militia Members

Once the decision was made not to use the heavily Darfurian national armed forces as the main ground troops in the military campaign, the Sudanese government required additional ground forces: the militias. The links between the Sudanese government and the militias, known collectively as the Janjaweed, have been comprehensively documented and reported by numerous organizations, including Human Rights Watch, since early 2004.247 Despite continuing denials by the Sudanese leadership of its responsibility for the acts of the militias, the Sudanese government is ultimately responsible for the war crimes and crimes against humanity committed by militias, as well as those committed by the Sudanese armed forces since 2003.

Under international law, the Sudanese government is responsible for international crimes committed by militia groups if it can be shown that the state retained “overall control” over the militias.  This standard applies regardless of whether militia members are incorporated in or formally linked to the Popular Defense Forces, Border Intelligence Guards or other “official” paramilitary forces, or whether they remain more loosely linked tribal militias armed and coordinated by the government but operating under the direct authority of tribal agids (war leaders).

In the Tadic decision, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) responded to the question of the degree of state control required to show “overall control” as follows:

In order to attribute the acts of a military or paramilitary group to a State, it must be proved that the State wields overall control over the group, not only by equipping and financing the group, but also by coordinating or helping in the general planning of its military activity. Only then can the State be held internationally accountable for any misconduct of the group. However, it is not necessary that, in addition, the State should also issue, either to the head or to members of the group, instructions for the commission of specific acts contrary to international law. (para. 131)

The court also noted:

The control required by international law may be deemed to exist when a State (or, in the context of an armed conflict, the Party to the conflict) has a role in organizing, coordinating or planning the military actions [emphasis in the original text] of the military group, in addition to financing, training and equipping or providing operational support to that group. Acts performed by the group or members thereof may be regarded as acts of de facto State organs regardless of any specific instruction by the controlling State concerning the commission of each of those acts. (para. 137)248

[202] During armed conflicts, international human rights law remains in effect, though it may be superseded by more specific provisions of international humanitarian law (the principle of lex specialis). Human rights law may also be limited by so-called derogation clauses imposed under a state of emergency.  Some rights can never be derogated from, including the right to life, the right not to be tortured or otherwise mistreated, the right not to be charged ex post facto, and the right to freedom of thought, conscience and religion. International humanitarian law has been increasingly interpreted to be consistent with the requirements of human rights law. Thus the fundamental guarantees provided to all persons in custody under common article 3 to the 1949 Geneva Conventions and customary international humanitarian law also can be found in international human rights law.
[203] An authoritative study of customary international humanitarian law is the two-volume ICRC Customary International Humanitarian Law (2005). Important sources of customary international humanitarian law are the First and Second Additional Protocols of 1977 to the 1949 Geneva Conventions (respectively Protocol I and Protocol II).
[204] See, e.g. Theodore Meron, Human Rights and Humanitarian Norms as Customary Law, 1989, pp. 62-70, 74-78 (discussing the customary law character of certain aspects of Protocol I).
[205] United Nations, “Report of the International Commission of Inquiry on Darfur to the United Nations Secretary General,” at http://www.un.org/News/dh/sudan/com_inq_darfur.pdf
[206] ICRC, Customary International Humanitarian Law, Rules 1 and 7, citing Protocol I, articles 48, 51(2), 52(2); Protocol II, article 13(2).
[207] ICRC, Customary International Humanitarian Law, Rule 2, citing Protocol I, art. 51(2); Protocol II, article 13(2).
[208] Protocol I, Article 50(1). Some states have expressed reservations about the military implications of a strict interpretation of this rule. According to the ICRC, “when there is a situation of doubt, a careful assessment has to be made as to whether there are sufficient indications to warrant an attack. One cannot automatically attack anyone who might appear dubious.” See ICRC, Customary International Humanitarian Law, pp. 23-24.
[209] ICRC, Customary International Humanitarian Law, rule 8, citing Protocol I, art. 52(2).
[210] Michael Bothe et al., New Rules for Victims of Armed Conflicts, (Hague: Martinus Hijhoff, 1982), pp. 306-07.
[211] Common article 3 to the 1949 Geneva Conventions.
[212] ICRC, Customary International Humanitarian Law, rule 93, citing 1949 Geneva Conventions, common article 3; Protocol I, art. 75(2); Protocol II, art. 4(2).
[213] ICRC, Customary International Humanitarian Law,rule 98
[214] ICRC, Customary International Humanitarian Law, rule 99. Arbitrary deprivation of liberty violates the right to humane treatment under common article 3 to the Geneva Conventions.
[215] ICRC, Customary International Humanitarian Law, rule 103, citing Hague Regulations, art. 50; Third Geneva Convention, art. 87; Fourth Geneva Convention, art. 33.
[216] ICRC, Customary International Humanitarian Law, rule 55, citing Fourth Geneva, article 23; Protocol I, art. 70(2).
[217] ICRC, Customary International Humanitarian Law, rule 56, citing Protocol I, article 71(3); Protocol II, article 18(2).
[218] History of the United Nations War Crimes Commission and the Development of the Laws of War (1943), p. 179, quoted in Rodney Dixon, “Crimes against humanity,” in Commentary on the Rome Statute of the International Criminal Court (O. Triffterer, ed.) (1999), p. 123.
[219] Rome Statute of the International Criminal Court, 2187 U.N.T.S. 3, entered into force July 1, 2002.
[220] ICC Statute article 7.
[221] ICC Statute, article 7(1).
[222]  See, e.g., Prosecutor v. Naletilic and Martinovic, International Criminal Tribunal for the former Yugoslavia, Trial Chamber (ICTY), March 31 2003, par. 235, “The population against whom the attack is directed is considered civilian if it is predominantly civilian”; Prosecutor v. Akayesu, International Criminal Tribunal for Rwanda, Trial Chamber, September 2 1998, par. 582: “Where there are certain individuals within the civilian population who do not come within the definition of civilians, this does not deprive the population of its civilian character”; Prosecutor v. Jelisic, ICTY Trial Chamber, December 14 1999, par. 54, “The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.”
[223] See Naletilic and Martinovic, para. 235.
[224] The attack need only be widespread or systematic, not both. Prosecutor v. Tadic, ICTY Trial Chamber, par. 646: “it is now well established that…the acts…can…occur on either a widespread basis or in a systematic manner.  Either one of these is sufficient to exclude isolated or random acts.”
[225] Akayesu defined widespread as “massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims”, Prosecutor v. Akayesu, Judgment, September 2, 1998, para. 579; see also, Kordic and Cerkez, ICTY, trial chamber, February 26, 2001, para. 179; Kayishema and Ruzindana, ICTR Trial Chamber, May 21, 1999, para. 123.
[226] Tadic, para. 648.  In Kunarac, Kovac and Vokovic, the Appeals Chamber stated that “patterns of crimes—that is the non-accidental repetition of similar criminal conduct on a regular basis—are a common expression of [a] systematic occurrence.” Para. 94.
[227] Akayesu, para. 580.
[228] See Prosecutor v. Kupreskic et al., ICTY Judgment, January 14, 2000, para. 556.
[229]  See Kupreskic et al., ICTY Trial Chamber, January 14, 2000, para. 556: “[T]he requisite mens rea for crimes against humanity appears to be comprised by (1) the intent to commit the underlying offence, combined with (2) knowledge of the broader context in which that offence occurs.”  See also Tadic, ICTY Appeals Chamber, para. 271; Kayishema and Ruzindana, ICTR Trial Chamber, May 21, 1999, paras. 133-34.
[230] See Blaskic, ICTY Trial Chamber, March 3,2000, para. 257.  Blaskic (paras. 258-59) listed factors from which could be inferred knowledge of the context:
[a] the historical and political circumstances in which the acts of violence occurred; [b] the functions of the accused when the crimes were committed; [c] his responsibilities within the political or military hierarchy; [d] the direct and indirect relationship between the political and military hierarchy; [e] the scope and gravity of the acts perpetrated; [f] the nature of the crimes committed and the degree to which they are common knowledge.
[231] Article 25, Rome Statute of the International Criminal Court.
[232] Article 7, Rome Statute of the International Criminal Court.
[233] See, e.g., Prosecutor v. Delalic et al. (Celebici Case), Case No. IT-96-21-A, ICTY AC, February 20, 2001, para. 195.
[234] Rome Statute of the International Criminal Court, article 28 (Responsibility of Commanders and Other Superiors).
[235] Prosecutor v. Hadzihasanovic (“Central Bosnia”), Case No. IT-01-47-AR72, July 16, 2003, para. 29–31.
[236] Prosecutor v. Delalic et al. (Celebici Case), Case No. IT-96-21-A, ICTY AC, February 20, 2001, para. 248-268.
[237] Prosecutor v. Delalic et al. (Celebici Case), Case No. IT-96-21-T, ICTY TC, November 16, 1998, affirmed on appeal IT-96-21-A, ICTY AC, February 20, 2001. See also Article 28 of the Rome Statute of the International Criminal Court:
“(b)  With respect to superior and subordinate relationships not described in paragraph (a) [military chain of command], a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:
(i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;
(ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and
(iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.”
[238] Prosecutor v. Halilovic, Case No. IT-01-48-T, ICTY TC, November 16, 2005, citing Celebici, IT-96-21-A, ICTY AC, February 20, 2001, paras. 193 & 195.
[239] Prosecutor v. Delalic et al. (Celebici Case), Case No. IT-96-21-T, ICTY TC, November 16, 1998, para. 377-378.
[240] Ibid., para. 386.
[241] Ibid., para. 232.
[242] Ibid., para. 238.
[243] Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2, ICTY TC, February 26, 2001, para. 437.
[244] A.P.V. Rogers, “Command Responsibility under the Law of War,” Lauterpacht Centre for International Law, (1999), available at http://lcil.law.cam.ac.uk/lectures/lecture_papers.php.
[245] Prosecutor v. Halilovic, Case No. IT-01-48-T, ICTY TC, November 16, 2005, para. 73.
[246] Blaskic, ICTY Trial Chamber, March 3, 2000, para. 336.
[247] See Human Rights Watch reports, and the Report of the International Commission of Inquiry on Darfur to the United Nations Secretary General, at http://www.un.org/News/dh/sudan/com_inq_darfur.pdf
[248] The Prosecutor v. Tadic  (“Prijedor”), Case No. IT-94-1-A, ICTY AC, July 15, 1999, para. 131.

Go to top