Daniel Gough, Principal Lecturer NLS, https://www.ntu.ac.uk/staff-profiles/law/daniel-gough
In April 2023 a long simmering feud between two rival military leaders in Sudan boiled over leading to the outbreak of full-scale war in the Sudan. As the Rapid Support Forces (RSF) took control over key areas of the capital city Khartoum from the Sudanese Army (SAF) media attention immediately focussed on the possibility of large-scale, deadly urban conflict. Western citizens drew headlines as dual-nationals and embassy staff struggled to leave, reviving memories of the disastrous withdrawal from Afghanistan. And as is standard in conflict in the digital world, live videos quickly appeared from troops riding pick-ups through deserted city streets while civilians filmed bombs being dropped indiscriminately on heavily populated areas. However, away from Khartoum in one of the increasingly rare areas of the world without reliable access to the internet or mobile phones it’s becomingly clear that unhealed wounds have re-opened in an even more dangerous conflict.
Background of the RSF
The Rapid Support Forces are a paramilitary force of more than 100,000 troops drawn primarily from the Arab population of Darfur. Headed by “General Hemedti” they formed in 2013 reporting to the National Intelligence Services under direct supervision of then President Omar Al-Bashir, rather than within the military structure. This closeness to the President gave the RSF a privileged position within Sudan including undertaking lucrative EU Funded border control, being “loaned” to Saudi Arabia and the UAE to fight in Yemen, and controlling large amounts of Sudan’s gold reserves in exchange for providing security services (often supported by Russian mercenaries).
However, prior to 2013 however, many of these same fighters, including General Hemedti, had belonged to the Janjaweed. This irregular militia is widely accused of committing genocide and crimes against humanity in a decades long campaign against ethnically African groups in the Darfur Region. Exact figures are impossible but estimates place the death toll at between 200,000 and 400,000. It was in response to their actions that UN Security Council (UNSC) passed Resolution 1593 launching the first International Criminal Court investigation into a non-state party and culminating in the first ICC arrest warrant against a sitting head of state.
Following the overthrow of Omar Al-Bashir in 2019, a Transitional Military Council (TMC) headed by the leader of the SAF took control of Sudan with General Hemedti appointed Deputy Head of the Council. However, simmering disagreements over the direction of the TMC, including return to civilian rule and the incorporation of the RSF into the SAF led to tensions that culminated on 15 April when large scale fighting broke out.
While media attention has focussed on strategic areas within Khartoum including fighting over the airport and main military barracks, the RSF have been steadily strengthening their control throughout the rest of Sudan, including their homeland in Darfur. As they have done so, evidence of crimes are slowly filtering out either through the three million people who have fled their homes, or increasingly having been filmed by RSF fighters themselves. This raises the spectre that 18 years after they first raised the issue in 2005, the ICC once again may seek to prosecute a genocide in Darfur.
Potential Prosecutions for Genocide
The first thing to note in relation to the prospect of ICC prosecutions, in regard to genocide in Darfur, is the unorthodox basis of the Court’s jurisdiction. Overwhelmingly cases referred to the ICC are by state parties, with the situation in Darfur one of just two that have been referred by the UNSC. The original referral under 2005 SC Resolution 1593 gave the ICC jurisdiction to investigate “crimes... committed on the territory of Darfur, Sudan, from July 1, 2002, onwards” with the ICC determining that their jurisdiction remains effective. In response, critics have noted that it is now 18 years old since the Resolution and no investigations or warrants had been issued since the last of six arrest warrants was issued in 2010. Furthermore, it is almost certain that if the situation were to be raised at the UNSC now, Russia through its close ties to the RSF would veto this, however any attempt to modify the initial Resolution would now be vetoed by the USA. This has prompted discussion as to the appropriateness of the investigation at all which is purportedly based on UNSC unanimity.
Moving beyond the question of jurisdiction, for a situation to amount to genocide within the scope of the International Criminal Court it must meet the definition with Article 6 of the Rome Statute:
"genocide" means acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, including through:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
….
The actus reus of genocide can therefore be fulfilled through a range of actions: from killing and rape, through to intentional starvation.
The mens rea requirement, has been determined to have two unique requirements. The first part is the general intent, which requires that the actus reus of the crimes are committed a) with the objective intention to commit the act, and b) with the intention of targeting a specific national, ethnical, racial or religious group. Alongside this however, is the specific (dolus specialis) intent. In Akeyesu, the ICTR established the leading definition that dolus specialis required proof of the specific genocidal intent as the ‘key element’ of the crime. The ICTY confirmed this approach requiring that the ‘specific intent requires that the perpetrator… seeks to achieve’ the destruction of a group.
In determining whether the ICC are likely to conclude that there has been a genocide, the actus reus is easy to fulfil. It is clear that throughout Western Darfur the RSF have carried out activities that have killed members of a group. In July, RSF forces are reported as having gone house to house thoughout the city of El Genenia, searching for people belonging to the African Masalit tribe. The UN has corroborated evidence of mass killings of at least 1,000, however, local leaders have stated at least 10,000 have been killed and buried in mass graves. In November, following the fall of the neighbouring Ardmata, at least 1,300 Masalit civilians have been identified as having been killed and buried in mass graves.
It is also clear that these actions were done with a general intent to kill people of a specific group. Any future prosecution would therefore rest on whether these actions were not only intentionally designed to kill the individual victims of that group, but to do so in order to destroy, in whole or in part, that group.
The difficulty within this is highlighted by two previous decisions in relation to the conflict in Darfur in 2003. The first of these, the Report of the International Inquiry into Darfur, concluded in 2005 that: “the crucial element of genocidal intent appears to be missing… 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. Rather, it would seem that… the intent [was] to drive the victims from their homes, primarily for purposes of counter-insurgency warfare.”
In comparison however, the ICC found that “[a]pplying the standard of proof as identified by the Appeals Chamber… there are reasonable grounds to believe that Omar Al Bashir acted with specific intent to destroy in part the Fur, Masalit and Zaghawa ethnic groups.”
Whether actions fall within the former or latter is in the absence of a confession, is according to the ICTR in Akeyesu likely to be “difficult, even impossible to determine.” Akeyesu did however, find that specific intent could more likely be inferred by “the general context of the perpetration of other culpable acts systematically directed against that same group”; “the fact of deliberately and systematically targeting victims on account of their membership of a particular group, while excluding the members of other groups”; and “the scale of atrocities committed.”
The RSF contend that the Masalit community form a major component of insurgent groups who provide support to the SAF and their attacks are legitimate military activities within International Humanitarian Law. This is supported to an extent by evidence of self-defence groups in both El Genania and Ardmata.
However, given the historical context in which these attacks have occurred it would be difficult to conclude that the general context is not consistent with the specific genocidal intent. Previous massacres between 2002-2005 were clearly motivated by ethnicity and these divisions have remained present since. Similarly, first-hand accounts analysed by CNN and Reuters appear to show a deliberate and systematic targeting of victims from the Masalit community. This included indiscriminate bombing of areas of El Geneina where the Masalit lived, RSF roadblocks placed on the main roads leading to these areas, and forces specifically hunting for prominent figures in the Masalit community. Finally, while exact numbers are currently impossible to verify, the scale of the atrocities appears to indicate systematic and widespread atrocities. Human Rights Watch and Reuters place the number above 10,000 killed though this is likely to be significantly below the actual number. Regardless, however, given there is no strict number, with 8,000 civilians killed at Srebrenica widely recognised as a genocide, this would not seem to prevent the ICC from pursuing prosecutions.
In conclusion, it seems likely that for the second time since the turn of the millennium the ICC will once again be looking at bringing charges of genocide in relation to Darfur. It remains to be seen whether this will be any more successful than the previous attempts, where five of six defendants remain at large.
Further Reading
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