The facts that happened and are still happening in the region of Darfur represent the biggest humanitarian crisis in the XXI century. As a legal advisor of the Spanish government I will interpret the conflict and suggest the legal rights and duties of the parties involved in it and based on legal principles. Later on, I will deal with the obligations of the Spanish government in three different steps of the genocide. After that, I will offer an alternative legal obligation to the Spanish government if the events that happened in Darfur are not recognized as genocide.
First of all, I will briefly highlight the points that lead to the present situation in the area of Darfur. Disputes between nomadic and sedentary groups emerged because of the increase of competition for natural resources; the nomadic Arabic groups from the north came frequently to the Darfur region to obtain food for their survival. Changes in the amount of natural resources in the area made unviable this situation anymore. In February 2003 the Sudan Liberation Army (SLA) attacked the government security forces to complain about the marginalization of Darfur and the lack of protection from these nomadic Arabic groups. The Sudanese government reacted by supporting Arabic nomadic groups that attacked African farming ones. Janjaweed is the name of the Arabic group that perpetrated the facts and that seems to be assimilated into a government paramilitary force called the Popular Defense Force (PDF). It has been seen to operate coordinately with the Sudanese government in their attacks against the civilian farming population. In doing this they have deliberately violated innumerable human rights. Also ethnic implications are remarkable because there is a clear connection between the crimes committed to a concrete African Sudanese ethnic group.
According to the Convention on the Prevention and Punishment of the crime of Genocide (CPPCG), Sudan, as a contracting party since October 13rd 2003, should intervene in the actions carried out by the Janjaweed to stop the killings, rapes, mutilations, destruction of villages in whole, etc. Moreover, it should allow the UN peacekeepers to enter into action to diminish the massacre. On 5 May 2006 a peace agreement was signed between the Sudanese government and one of the militia groups in Darfur. This agreement has not been put into action because the attacks are still taking place with impunity. According to article 26 of the Vienna Convention on the Law of Treaties of 1969 which establishes pacta sunt servanda the Sudanese government is not fulfilling the obligations and as such it is breaching the pact. It is his duty to maintain the peace in the area being his behavior justifiable only by the existence of jus cogens, which is not the case. As the article 2 of the International Covenant on Civil and Political Rights (ICCPR) of 1966 states, Sudan should respect and ensure “to all individuals within its territory and subject to its jurisdiction the rights…, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. That rights are the ones reflected in this legally-binding UN HR convenant such as: article 1 (2) and article 47, in which Sudan should provide its population with all possible means of subsistence; not being deprived of their natural wealth and resources – as it happened with the sedentary farming groups in Darfur, which are being dispossessed of their cattle, wells…etc, inflicting damaging consequences in their physical destruction. Article 6 (1) dealing with the right to life and not to be arbitrarily deprived of it. Article 7 no torture or cruel treatment shall be applied to anyone. Article 8 should be complied in which no one shall be held in slavery – as sedentary African women have been taken as sexual slaves. Article 24, every child shall have the right to such measures of protection as are required by his status as a minor – which has not been complied because more than 1 million of children are under risk of undernourishment in Darfur. In the article 11 (2) of the International Covenant of Economic, social and Cultural Rights of 1966, states the duty of states to recognize the “right of everyone to be free from hunger”- in Darfur, more than 180.000 persons of the civil population has died of illness or hunger. According to the African Human Rights System, whose main instrument is the African Charter on Human and People´s Rights of 1981, which provides for collective rights and for state and individual duties, Sudan has been violating articles 4, 5, 12, 16, 17, 18, 21, and 23. Sudanese government should ensure the safety of the inter-displaced population (IDP) is guaranteed by preventing the Janjawid from operating inside and on the peripheries of the IDP camps; acknowledge the severity of the humanitarian situation in Darfur and take all necessary measures to allow full and free access to Darfur to ensure that the IDP population is provided with humanitarian relief (following the article 18 of the Protocol II).
Third parties should be ruled according to article 1of the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, in which it is specified that they should prevent and punish the crime of genocide recognized in international law. This “genocide convention is undeniably considered part of customary international law…Thus, punishment of the crime of genocide did exist in Rwanda in 1994, at the time of the acts alleged in the indictment; and the perpetrator was liable to be brought before the competent courts of Rwanda to answer for this crime…” (Steiner & Alston). As already happened in Rwanda, it should be created after the conflict, an ad hoc International Criminal Tribunal, International Tribunal for Sudan (ICTS), or bring criminals to the ICC in the Hague, (which, in fact would be something less costly and due to the urgency of the situation much more immediate) to have the power to prosecute persons committing genocide. This tribunal should be acting under chapter VII of the UN Charter. The International Criminal Court can only exercise its jurisdiction when the Sudanese court is unwilling or unable to investigate or prosecute such crimes. Primary responsibility to exercise jurisdiction over alleged criminals is therefore left to Sudan.
When large scale violations of human rights, not only individual states, but the whole world community through its more important political organ should energetically react. States have the obligation not only to prosecute the perpetrators, but also to act on behalf of the victims. That is why it should be created a Compensation Commission that would restore the rights of the victims of serious violations committed in Darfur. The international responsibility would be of the state on whose behalf the perpetrator was acting. This international responsibility forces the state to pay a compensation to the victim.
It is also relevant to mention the spreading to international grounds of the conflict in Darfur. It began in the Darfur area and then moved to the east Chad, due to the waves of refugees that flee from the Janjaweed. Sudan must prevent cross-border attacks against civilians in Chad by the Janjaweed, and disarm them in accordance with the Darfur Peace Agreement. Chad must deploy military forces to protect civilians, and seek the assistance of an international force if necessary. The situation is changing and we are passing from a non-international armed conflict to an international armed one. That is why it is so urgent that the international community take part in the conflict. Third states should pay attention that the article 3 common to the four Geneva Conventions and by Protocol II are fulfilled. Relevant as well to guarantee the protection of the hundreds of refugees according to 1951 Convention on the Status of Refugees.
Regarding to the obligations of Spain when it was aware that the genocide was being planned, its way to react is through article 8 of the Convention on the Prevention and Punishment of the Crime of Genocide of 1948. By this principle Spain can make aware of the situation to the competent organ of the United Nations to prevent the genocide by applying the articles of the UN Charter. This action should be enough to make react the international community, because now genocide is a peremptory norm due to customary law in previous conflicts.
The obligations of Spain when it knew that the genocide was taking place - after making aware the united Nations and its resolution to intervene militarily-, according to article 43 of the chapter VII of the UN charter, it should make available its “armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security”.
Once the genocide is over, the only possible thing to do by the international community (if the Sudanese judicial system is unable to deal with it) should prosecute the perpetrators of the massacre and bring them to the ICC. In doing this, Spain must take into consideration article 88 of the Protocol I in which “the High Contracting Parties shall cooperate in the matter of extradition”. In general terms Spain should attach to article 89 of Protocol I in which all contracting parties undertake to act in cooperation of the United Nations and in conformity with the UN Charter.
It has been confirmed by article 7 of the Statute of Rome, that the murders, mutilations, cruel treatment, rape, torture and hostage keeping occurred in Darfur are acknowledged as war crimes. In the case it could not be proved that the Darfur conflict was a genocide, there are enough humanitarian breaches committed for not to react. Sudan resulting in the unlawful killing of over 85,000 civilians, the raping of thousands of women, and the forcible displacement of more than two million people. These acts are war crimes and, as part of a widespread, as well as a systematic, attack on the civilian population also crimes against humanity. Due to all these facts, together with the breaching of the Fourth Geneva Convention, all states have the duty to exercise their jurisdiction in persecuting the perpetrator, irrespective of where the crimes were committed. That is, all states will be subject to Universal Jurisdiction.
SOURCES:
http://www1.umn.edu/humanrts/instree/z1afchar.htm
http://web.amnesty.org/library/Index/ENGAFR540892004?open&of=ENG-SDN
http://web.amnesty.org/pages/aboutai-index-eng
http://www.un.org/aboutun/charter/
http://www.hrweb.org/legal/genocide.html
http://www1.umn.edu/humanrts/instree/b3ccpr.htm
http://www.unhchr.ch/html/menu3/b/a_cescr.htm
ICRC. International Humanitarian Law. Answers to yours questions.
http://www.unhchr.ch/html/menu3/b/92.htm
http://www.walter.gehr.net/wvkengl.html
Steiner; Alston. International Human Rights in Context Law, Politics, Morals. Oxford University Press, 2002.
www.unhcr.org/cgibin/texis/vtx/protect/opendoc.pdf?tbl=PROTECTION&id=3b66c2aa10 –
www.un.org/News/dh/sudan/com_inq_darfur.pdf
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