SÍMBOLO NOMBRE LECTURA EJEMPLO

5.1. Early Warning Signs

The Sudan is a diverse country with a myriad of tribes. These tribes speak more than 130 languages and dialects, even though Arabic is the lingua franca of the country.388

In Northern Sudan there is a predominantly Islamic and Arab culture, whereas in Southern Sudan the culture is predominantly Christian and African or “non-Arab”.389 The Sudan became independent in 1956. Independence was preceded by centuries of strife between the North and South, mainly because the North wanted to spread its religion and language to the South, which resisted the efforts.390 Military regimes controlled the country from 1956 to the present day, each regime ousting the other by means of coups d’état.391 _{The first period of democratic rule ended in November}

1958, when General Ibrahim Abbud carried out a coup. Abbud was in power until 1965, and he approved of the expansion of Arabic and Islam to the South of the Sudan. The second democratic rule emerged when a coalition government was elected in May 1965 under the leadership of Mohammed Ahmed Mahjub. Four years later in May 1969 Colonel Gaafar Mohammed Al-Nimeiri toppled Mahjub and managed to stay in power for sixteen years. Nimeiri was intensely under the influence of the

388 _{Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-} General Pursuant to Security Council Resolution 1564 of 18 September 2004, 25 January 2005, at 17,

retrievable at http://www.un.org/news/dh/sudan/com_inq_darfur.pdf (last visited on 4 October 2011) (“ICID Report”). The ICID Report will mainly be used in the historical background of the warning signals, unless otherwise stated.

389 _{FM Deng “Sudan – Civil War and Genocide” in WL Hewitt Defining the Horrific: Readings on} Genocide and Holocaust in the Twentieth Century (2004) at 224.

390 _{Ibid. Christianity lost all standing in 1504 when an alliance arose between Arabs in the Sudan and}

the Muslim kingdom of Funji. The Sudan was ruled by Muslim leaders throughout. In 1821 the Sudan was invaded by the Ottoman-Egyptian administration. One of the main reasons why Arabs from the North would go to the South was to obtain slaves. Southern Sudan declared itself independent of Northern Sudan on 9 July 2011, and became a member state of the United Nations on 14 July 2011 and a member state of the African Union on 28 July 2011. See in this regard: Official Website of the Government of South Sudan, retrievable at: http://www.goss.org/ (last visited on 4 October 2011); Member States of the United Nations, retrievable at: http://www.un.org/en/members/index.shtml#s

(last visited on 4 October 2011); “South Sudan admitted to African Union as 54th member”, 29 July 2011, retrievable at: http://articles.cnn.com/2011-07-29/world/south.sudan.au_1_south-sudan-african- union-newest-nation?_s=PM:WORLD (last visited on 4 October 2011). See further: J Gettleman “South Sudan Sinks into Ethnic Slaughter: Rivalries shelved to gain Statehood last year erupt in Massacre and Revenge” in International Herald Tribunal, Friday 13 January 2012.

391 _{There has been a total of ten years of democracy in the Sudan since independence in 1956: from}

1956 to 1958, then again from 1965 to 1969 after a general election was held, and then finally from 1985 to 1989. See the ICID Report op cit (n 388) at 18.

Muslim Brotherhood and the National Islamic Front (“NIF”),392 _{and instituted Sharia}

law over the whole of the Sudan in September 1983. The South opposed Sharia law, which resulted in the eruption of the second war.393 _{Nimeiri was overthrown in April}

1985, and an election was held one year later. The democratic rule of Sadiq Al- Mahdi came to an end in June 1989 when General Omar Hassan Ahmad Al-Bashir exercised a coup with the help of the Muslim Brotherhood. Al-Bashir is still the President of the Sudan. The ideology of Al-Bashir’s National Congress Party is one of political Islam and is strongly influenced by the NIF.394

Darfur is a region in the western part of the Sudan, consisting of a population of approximately six million people from eighty distinct tribes.395 _{The tribal groups can}

be divided into “agriculturalists”,396 “sedentary cattle herders”,397 and “nomadic and semi-nomadic” people.398 _{The differences between the tribal groups are not obvious,}

but become more pronounced the moment hostilities break out. The tribes in Darfur all speak Arabic and adhere to the Islamic faith. The contrast between the Arab and African tribes in Darfur has become even more predominant in the current conflict, and is “the reason for standing on different sides of the political divide”.399

392 _{Deng op cit (n 389) at 226. The NIF evolved from the Muslim Brotherhood.}

393 _{Ibid. The South of Sudan fought under the Sudan People’s Liberation Movement and its military}

wing the Sudan People’s Liberation Army (“SPLM/A”). The SPLM/A was at first made up of Christian Southerners, but later non-Arab ethic groups from the North joined as well. Deng states at 226 that these “liberal minded Northerners” shared the vision of the SPLM/A “of a secular, democratic Sudan”.

394 _{Members of the National Congress hold important positions in government, the armed and security}

forces, the judiciary, academia, and in the media. See the ICID Report op cit (n 388) at 19.

395 _{Deng op cit (n 389) at 226; F Ibrahim “Introduction to the Conflict in Darfur/West Sudan” in A van}

Ardenne, M Salih, N Grono and J Méndez Explaining Darfur: Lectures on the Ongoing Genocide (2006) 9 at 12; E Reeves A Long Day’s Dying: Critical Moments in the Darfur Genocide (2007) at 6 – 7. In 1994 the NIF divided Darfur into North Darfur, South Darfur, and West Darfur. Reeves states at 7 that “this division, without precedent in Darfur’s history, worked to weaken the Fur by denying them a political majority in any one Darfur state. In the wake of this decision Khartoum gradually took full administrative control of the province, and the growing strength of the intelligence services ensured that political dissent could be controlled. Political marginalization and the increase of ethnically- targeted violence – as well as Khartoum’s efforts throughout the 1990s to disarm African tribal groups and villages but not Arab militias – made full-scale conflict inevitable”.

396 _{ICID Report op cit (n 388) at 20. The tribes making up the “agriculturalists” are the Fur, Barni,}

Tama, Jebel, Aranga and Massalit.

397 _{Ibid. The “sedentary cattle herder” tribes are the Rhezeghat and the Zaghawa.}

398 _{Ibid. The “nomadic and semi-nomadic” tribes are the Taaysha, Habaneya, Beni Helba, Mahameed}

and several other tribes.

The present hostilities raging in Darfur emerged in 2001 with the establishment of two rebel groups:400 _{the Sudan Liberation Movement/Army (“SLM/A”) and the}

Justice and Equality Movement (“JEM”). The two groups, although independent, specified a common cause for opposing the Sudanese government, namely the “socio- economic and political marginalisation of Darfur and its people”.401 _{Neither the}

SLM/A nor the JEM prefer one tribe above another: their cause is the protection of all Darfurians. In addition, members of the rebel groups are recruited from the Fur, Massalit and Zaghawa groups.

The first military attacks by the SLM/A and the JEM took place between 2002 and 2003. The government responded by recruiting “local tribes to assist in the fighting against the rebels. In this way, it exploited the existing tensions between different tribes”.402 _{These “recruits” became the “Janjaweed”.}403 _{Currently the parties to the}

conflict in Darfur are the Sudanese Government Armed Forces,404 _{the government-}

supported Janjaweed, as well as the two rebel groups, the SLM/A and the JEM. The Sudanese Government Armed Forces consist of the Sudanese Armed Force (“SAF”), 405 _{Military Intelligence, the paramilitary Popular Defence Forces}

(“PDF”),406 _{Borders Intelligence, as well as the National Security and Intelligence}

Service.

The role played by the Janjaweed militias in Darfur is a problematic issue. The term “Janjaweed” was originally used in the 1990s to define armed bandits who terrorised rural communities. It is “an Arabic colloquialism from the region, and generally means ‘a man (a devil) on a horse’”407 _{or “devil on horseback”.}408 _{It is important to}

400 _{Ibid at 39 – 40. The two most prominent rebel groups in Darfur are the SLM/A and the JEM, but}

there are four other rebel groups operating as well, namely the National Movement for Reconstruction/Reform and Development (“NRMD”), Korbaj, Al Shahamah, and the Sudanese National Movement for the Eradication of Marginalisation. See Ibrahim op cit (n 395) at 13 – 15; MAM Salih “Africa’s Governance Deficit, Genocide, and Ethnocide” in A van Ardenne, M Salih, N Grono and J Méndez Explaining Darfur: Lectures on the Ongoing Genocide (2006) 27 at 32 – 35.

401 _{ICID Report op cit (n 388) at 23; 37 – 40.} 402 _{Ibid at 24.}

403 _{Reeves op cit (n 395) at 2.} 404 _{ICID Report op cit (n 388) at 27.}

405 _{Ibid. The SAF is a regular armed force and carries out instructions through an army, navy, air force,}

the Popular Defence Force and Borders Intelligence.

406 _{Ibid at 28. The PDF consists of civilians who “meet certain criteria” and are recruited from certain}

selected tribes. It is stated in the ICID Report at 28 that the recruited civilians “come under regular army command and normally wear the same uniform as the unit they are fighting with.”

point out that, despite the portrayal of the Janjaweed as “Arab militias”, not all Arabs in Darfur support the Janjaweed:

“many Arabs in Darfur are opposed to the Janjaweed, and some Arabs are fighting with the rebels, such as certain Arab commanders and their men from the Misseriya and Rizeigat tribes. At the same time, many non-Arabs are supporting the Government and serving in its army. Thus, the term ‘Janjaweed’ referred to by victims in Darfur certainly does not mean ‘Arabs’ in general, but rather Arab militias raiding their villages and committing other violations”.409 The International Commission of Inquiry on Darfur (“ICID”) reported in 2005 that the Janjaweed fall into three categories depending on the level of support received from the government: firstly, militias whom the government supplies with weapons.410

These militias have a vague connection to the government, and “are thought to undertake attacks at the request of State authorities, but are suspected by the Commission of sometimes also acting on their own initiative to undertake small scale actions to loot property for personal gain”.411 _{Secondly, there are militias “organised}

in paramilitary structures” operating alongside the regular Sudanese armed forces.412

The third category of Janjaweed has a strong connection to the government, and incorporates PDF and Borders Intelligence members.413

The government of Sudan has repeatedly denied that there is any connection between the Janjaweed and the state, despite strong evidence that such a connection exists.414

Sudanese government officials

“routinely attribute actions of the Janjaweed to ‘armed bandits’, ‘uncontrolled elements’, or even the SLA and JEM. The Government position has nevertheless been inconsistent, with different officials, both at national and Darfur levels, giving different accounts of the status of

408 _{Reeves op cit (n 395) at 2.}

409 _{ICID Report op cit (n 388) at 32.} 410 _{Ibid at 33.}

411 _{Ibid at 33.}

412 _{Ibid. The second category is known as the “Strike Force”, Mujahedeen, or Fursan (men on}

horseback).

413 _{Ibid. The PDF “fight alongside the regular armed forces”.}

414 _{Ibid at 34 – 37. The ICID found at 37 that “the large majority of attacks on villages conducted by}

the militia have been undertaken with the acquiescence of State officials.” The Commission further held that international state responsibility has been incurred by the government of Sudan towards all other states in the international community as a whole for violations of international human rights law committed by the Janjaweed, and that individual criminal responsibility can be invoked against Sudanese government officials.

the Janjaweed and their links with the State … Janjaweed are ‘gangs of armed bandits’ with which the Government has no relations whatsoever”.415

The hostilities in Darfur, which have developed into the commission of gross human rights violations, cannot be ascribed merely to the establishment of the SLM/A and JEM rebel groups in 2001. Nor can they be simplified by ascribing the conflict to intolerance between Muslims and non-Muslims, or “Arabs” and “non-Arabs”, or Africans and Arabs. The conflict lies much deeper than that: “[T]he Arab-versus- black characterisation is somewhat misleading, however, because these groups are neither internally cohesive nor fully distinct from each other. Collectivities in Sudan are multidimensional – as they are anywhere in the world – but especially so here.”416

All in Darfur speak Arabic, adhere to the Muslim faith, and they are all Africans.417 The history of the conflict perhaps lies in the history of the Sudan: “zurga”, “nuba”, and “abid” are words used by the Janjaweed in their attacks against members of the targeted groups. These “are all words with racial and strongly derogatory meanings; abid in particular – a word long used to characterise Southern Sudanese – means ‘slave’ in Arabic … These words have very consistently been used, with conspicuous racial intent”.418 The choice of words to describe the victims as “slaves” calls to mind the time when Arabs from the North of the Sudan travelled to the South in search of slaves.419

The stance of the Sudanese government on the brutalities committed in Darfur is that, first of all, they are “actually a decentralised series of smaller disputes, none of them based on a clear racial or ethnic divide, and that reports of mass atrocities are exaggerated”,420 _{and, secondly, the Sudanese government is acting in defence against}

the attacks of the rebel groups.421 _{However, the ICID came to the conclusion that the}

opposite of these claims by the Government is true:

415 _{Ibid at 35.}

416 _{MLK Hong “A Genocide by Any Other Name: Language, Law and the Response to Darfur” in 49} VJIL (2008) 1 at 4.

417 _{Reeves op cit (n 395) at 13.} 418 _Ibid.

419 _{Deng op cit (n 389) at 224.} 420 _{Hong op cit (n 416) at 5.}

421 _{Ibid. Hong states at 5 that if the Sudanese government continues to deny that the atrocities are}

“The Commission considers that there is a consistent and reliable body of material which tends to show that numerous murders of civilians not taking part in the hostilities were committed both by the Government of the Sudan and the Janjaweed. It is undeniable that mass killing occurred in Darfur and that the killings were perpetrated by the Government forces and the Janjaweed in a climate of total impunity and even encouragement to commit serious crimes against a selected part of the civilian population. The large number of killings, the apparent pattern of killing described above, including the targeting of persons belonging to African tribes and the participation of officials or authorities are amongst the factors that lead the Commission to the conclusion that killings were conducted in both a widespread and systematic manner. The mass killing of civilians in Darfur is therefore likely to amount to a crime against humanity”.422

The next question which arises is whether or not acts of genocide were and are being committed in Darfur.423 _{The ICID concluded that the Sudanese Government had not}

pursued a genocidal policy, but committed persecution as a crime against humanity which had been “systematically targeted against the Fur, Massalit, Zaghawa and other African tribes on political grounds.”424 _{The Commission reached its conclusion by}

examining the objective and subjective elements of genocide, namely actus reus and mens rea.425 _{Actus reus consists firstly in genocidal acts, and secondly in the group}

targeted by the acts. Mens rea consists firstly in the criminal intention to commit the genocidal acts, and secondly in specific intent, or dolus specialis, to destroy the targeted group “in whole or in part”.

The Commission found that the element of actus reus was fulfilled in that the genocidal acts of “killing, or causing serious bodily or mental harm, or deliberately inflicting conditions of life likely to bring about physical destruction”426 had been committed in Darfur by the Sudanese Government forces and the Janjaweed. The

clear: “[A]s long as violence is ‘political’ and purely domestic, Sudan’s resistance to foreign involvement prevails under the principle of state sovereignty and the government can continue committing crimes against civilians. Without a clear case of genocide, the deployment of foreign troops without Sudan’s consent is extremely unlikely.” Hong further states at 5 that “it is no secret, however, that the government has recruited, armed, and actively supported the Janjaweed, a loosely organised, mostly Arab militia that continues to terrorise Black African villages and refugee camps.”

422 _{ICID Report op cit (n 388) at 79.}

423 _{A van Ardenne-van der Hoeven “The Road to Darfur Leads Through Khartoum” in A van Ardenne,}

M Salih, N Grono and J Méndez Explaining Darfur: Lectures on the Ongoing Genocide (2006) 19.

424 _{ICID Report op cit (n 388) at 80.} 425 _{Ibid at 124.}

groups targeted by these genocidal acts were members of the Fur, Massalit, Zaghawa and other African tribes.427

However, the essential dolus specialis element of genocide was lacking:

“The intent of the attackers was not to destroy an ethnic group as such or part of the group. Instead, the intention was to murder all those men they considered as rebels, as well as forcibly expel the whole population so as to vacate the villages and prevent rebels from hiding among, or getting support from, the local population … Generally speaking the policy of attacking, killing and forcibly displacing members of some tribes does not evince a specific intent to annihilate, in whole or in part, a group distinguished on racial, ethnic, national or religious grounds. Rather, it would seem that those who planned and organised attacks on villages pursued the intent to drive the victims from their homes, primarily for purposes of counter-insurgency warfare”.428

In reaching this conclusion, the Commission reiterated that there might be “some instances” where “single individuals, including Government officials, may entertain a genocidal intent, or in other words, attack the victims with the specific intent of annihilating, in part, a group perceived as a hostile ethnic group”.429 The Commission emphasised that the conclusion that a genocidal policy had not been “pursued and implemented in Darfur” by the government of the Sudan

“should not be taken as in any way detracting from, or belittling, the gravity of the crimes perpetrated in that region. As stated above genocide is not necessarily the most serious international crime. Depending upon the circumstances, such international offences as crimes against humanity or large scale war crimes may be no less serious and heinous than genocide.

427 _{Ibid at 125 – 127; 129 – 130; 132. Reeves op cit (n 395) at 3 – 4 describes the attacks in Darfur:}

they would start off with bombing by Antonov planes, Russian cargo aircraft. Since groundfire is best avoided, the bombs are dropped from 15 000 feet, and the Janjaweed are sent into the targeted village to kill anything that moves after the Antonov has completed its task. The Janjaweed are accompanied by the SAF. While the Janjaweed and SAF are committing atrocities, helicopter gunships fly above, looking for fleeing civilians and then killing them. The terror does not stop with killing only: “Janja- weed and ground troops would engage in a systematic destruction of the livelihoods of the villagers. Homes, buildings, and mosques were burned; water wells … poisoned with human and animal corpses; irrigations systems were destroyed; food and seed stocks were looted or burned; mature fruit trees were cut down; agricultural implements were destroyed” (at 4). See also Report of the United Nations High