VI. Violations of International Humanitarian LawApplicable Standards of International Humanitarian LawInternational humanitarian law (the laws of war) imposes legal obligations on parties to an armed conflict to reduce unnecessary suffering and protect civilians and other non-combatants. It applies to all armed conflicts, whether belligerents are regular armies or non-state armed groups. All parties to the conflict in Darfur—Sudanese government forces, Janjaweed militia, and rebel factions—are bound by it. Under international law, the Darfur conflict is considered a non-international (internal) armed conflict, in which the applicable law derives primarily from article 3 common to the four Geneva Conventions of 1949, the Second Additional Protocol of 1977 to the Geneva Conventions (Protocol II) and customary international law. In 2006 Sudan ratified Protocol II, which specifically applies to internal armed conflicts between government forces and non-state armed groups.63 The protocol includes many basic civilian protection principles, such as the prohibition on attacks against civilians. It states that acts or threats of violence designed to spread terror among the civilian population are prohibited.64 It prohibits starvation as a method of conflict and protects from destruction or removal objects “indispensable to the survival of the civilian population” such as food, crops, livestock, and water supplies.65 The forced displacement of the civilian population is prohibited unless it is for the security of the civilians involved or is required for imperative military reasons; in such situations all possible measures need to be taken to address the basic needs of the civilian population.66 Parties to the conflict must facilitate rapid and unimpeded passage of independent humanitarian relief for civilians in need.67 Although the First Additional Protocol of 1977 to the Geneva Conventions (Protocol I) only applies during international armed conflict,68 most of its provisions on the conduct of hostilities have been recognized by states to be reflective of customary international law.69 The “principle of distinction” is the foundation of the law regulating conduct of hostilities. It requires all parties to a conflict to distinguish at all times between combatants and civilians. Military operations shall only be directed against military objectives.70 Deliberate attacks on civilians and civilian objects are prohibited. “Military objectives” are members of the armed forces, other persons taking a direct part in hostilities for the duration of their participation, and “objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”71 “Civilian objects” include all objects—such as houses, farms, schools, shelters, hospitals, and places of worship—that are not being used for military purposes. Humanitarian law also prohibits indiscriminate attacks,that is, attacks “of a nature to strike military objectives and civilians or civilian objects without distinction.”72 Indiscriminate attacks include those that “are not directed at a specific military objective” or that use weapons that “cannot be directed at a specific military objective.”73 Also prohibited are disproportionate attacks, which are attacks that are “expected to cause incidental loss of civilian life, injury to civilians [or] damage to civilian objectives … which would be excessive in relation to the concrete and direct military advantage anticipated” from that attack.74 The parties to a conflict must take precautionary measures to minimize incidental loss of civilian life, injury to civilians, and damage to civilian objects. These precautions include:
With regard to civilians and captured combatants, parties to the conflict are prohibited from using violence to life and person, in particular murder, mutilation, or cruel and degrading treatment. No party may pass sentences or carry out executions without previous judgment by a regularly constituted court that has afforded the defendant all judicial guarantees.76 International humanitarian law also prohibits rape and other forms of sexual violence, enforced disappearances, arbitrary deprivation of liberty, and collective punishments.77 Government Violations in the West Darfur AttacksThe attacks by government armed forces and government-backed Janjaweed militia in West Darfur in February 2008 involved numerous serious violations of international humanitarian law. When committed with criminal intent—that is, purposefully or recklessly—such violations amount to war crimes. Except for the attack on Jebel Mun, there was no apparent rebel military presence in any of the towns that came under direct government attack. The government’s aerial bombings and ground attacks reflected, at a minimum, a failure to identify a military objective before conducting attacks. However, the repeated attacks in which there were no rebels or other evident military objective, as well as situations in which it was apparent that those attacked were civilians, indicates that the Sudanese armed forces carried out deliberate attacks on civilians and the civilian population. Even had there been a rebel military presence in the towns, many attacks were clearly indiscriminate. Bombs were rolled out of the back of cargo aircraft to fall haphazardly on the town.78 Attack helicopters fired rockets seemingly randomly into populated neighborhoods, setting numerous homes on fire. Government troops and Janjaweed fired rocket launchers, rocket-propelled grenades and firearms into densely populated areas. In the attack on Jebel Mun, where rebel forces were deployed, the Sudanese air and ground forces used force indiscriminately and at times they deliberately targeted civilians. There were reports that government forces mistreated persons taken into custody in and around Jebel Mun. The February attacks in West Darfur also violated international humanitarian law on the protection of the civilian population. Government forces repeatedly pillaged large amounts of food intended for civilians, stole thousands of livestock, looted extensively from shops and homes, and burned numerous homes, including significant percentages of towns. To the extent the government attacks were carried out to punish civilian populations for any perceived support of the rebels, they violated the prohibitions on attacks whose primary purpose was to spread terror among the civilian population, caused unlawful forced displacement, and were a form of collective punishment. Finally, any unjustified government interference with UN or other independent agencies who were seeking to provide humanitarian relief for civilians in need was a violation of humanitarian law. Criminal responsibilityStates and non-state armed groups are responsible for violations of international humanitarian law. Individuals who order or commit serious violations of international humanitarian law with criminal intent can be prosecuted for war crimes before national or international courts. Civilian or military officials who knew or should have known of such violations but took no action to prevent the crimes or punish the perpetrators may be held liable as a matter of command responsibility. International law also allows prosecution of individuals for crimes against humanity, which are unlawful acts that are committed as part of a widespread or systematic attack (whether during a conflict or during peace) against a specific civilian population.79 The Sudanese government is responsible for crimes in violation of international law committed by its soldiers and by armed groups over which it exercises “overall control.” Links between the government armed forces and Janjaweed militia have been well-documented since early 2004.80 In recent years, the government has integrated militias into auxiliary units of the army and police forces such as the Border Guards Unit.81 The government of Sudan, even as it claims Janjaweed do not exist, acknowledges that military authorities have control over them. When a large militia force attacked three towns in North Darfur in early April 2008, killing about 14 civilians and looting and destroying shops in protest over the government’s failure to pay their salaries, the provincial governor referred to the attackers as “Janjaweed” and gave assurances that military and border guard leaders would resolve the problem.82 The West Darfur attacks were carried out by Sudanese military, working in concert with Janjaweed militia. Scores of eyewitnesses told Human Rights Watch that Janjaweed militia dressed in military-style uniforms and bearing light arms arrived before or with government soldiers, and that militia and government soldiers carried out the attacks together. Government military officials who were present in the area during the attacks were seen allowing large-scale looting by Janjaweed. Eyewitness descriptions of attackers’ uniforms suggest that government soldiers also participated directly in the pillage and looting, using military vehicles to transport stolen goods. According to residents of the attacked towns, Janjaweed involved in the attacks were drawn largely from Arab ethnicities from North and West Darfur and included some Gimir and Tama fighters who arrived from the Kulbus area. Eyewitnesses told Human Rights Watch they saw a number of well-known militia commanders, including Diggi Idriss Ajina, Hassan Algoni Bakheet, Ahmed Abu Gurun, and Mustafa Issa Idriss (“Takizo”) at the site of the attack. Some of these commanders are known members of the Border Guard Unit of the Sudanese army. 63 Protocol Addition to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125 U.N.T.S. 609, entered into force December 7, 1978. Article 1 states the protocol applies to “dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” 64 Protocol II, art. 13(2). 65 Ibid., art. 14. 66 Ibid., art. 17. 67 Ibid., art. 18. 68 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), adopted June 8, 1977, 1125 U.N.T.S. 3, entered into force December 7, 1978. 69 See, e.g. Yorem Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge: Cambridge University Press, 2004), pp. 10-11. The “Hague Convention (IV) of 1907 has acquired over the years the lineaments of customary international law” and “[m]uch of the Protocol may be regarded as declaratory of customary international law, or at least as non-controversial.” See generally, International Committee of the Red Cross (ICRC), Customary International Humanitarian Law (Cambridge: Cambridge University Press, 2005). 70 Protocol I, art. 48. 71 Ibid., arts. 51(3), 52 72 Ibid., art. 51(4). 73 Ibid., art. 51(4)(a,b). 74 Ibid., art. 51(5)(b). 75 See ibid., arts. 57, 58; ICRC, Customary International Humanitarian Law, rules 15-24. 76 Common article 3; Protocol II, art. 4. 77 Protocol II, art. 4. 78 Human Rights Watch, Chaos by Design, pp. 36-37. 79 Examples of crimes against humanity include murder, extermination, enslavement, deportation, arbitrary detention, torture, rape, persecution on political, racial and religious grounds, and other inhumane acts. 80 See past Human Rights Watch reports on Darfur and the “Report of the International Commission of Inquiry on Darfur to the United Nations Secretary General,” January 25, 2005, http://www.un.org/News/dh/sudan/com_inq_darfur.pdf (accessed April 24, 2008). 81 See, e.g., International Crisis Group, “Darfur’s New Security Reality,” Africa Report, vol. 134, November 26, 2007, p. 9. 82 “14 Killed during Janjaweed attacks in three towns – Darfur rebels,” Sudan Tribune, April 8, 2008, http://www.sudantribune.com/spip.php?article26680 (accessed April 24, 2008). |