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Corte Penale e violazione dei diritti umani in Darfur Consiglio di Sicurezza delle N.U.
 
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S/Res 1593 (2005) sul Darfur
Normativa

Security Council resolution
S/RES 1593 (2005)
31 marzo 2005



Pubblicazioni
Centro italiano Studi per la pace
www.studiperlapace.it - no ©
Documento aggiornato al: 2005

 
Sommario

Il Consiglio di Sicurezza con la risoluzione 1593/05 approvata con 11 voti a favore e 4 astensioni (Algeria, Brasile, Cina e Stati Uniti) ha sottoposto al Procuratore della Corte Penale Internazionale la violazione dei diritti umani in Darfur dal luglio 2002, come suggerito dal "Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General" (S/2005/60, dd. 25 gennaio 2005, pubblicato in allegato).

La procedura seguita, in conformità agli art. 12/2 e 13 Statuto CPI, opera nonostnate il Sudan non abbia aderito allo Statuto.

 
Indice dei contenuti
 
1- Testo della Risoluzione S/RES 1593 (2005)

2- Indice del "Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, 25 gennaio 2005"

INTRODUCTION

I. THE ROLE OF THE COMMISSION OF INQUIRY
1. Establishment of the Commission
2. Terms of reference
3. Working methods
4. Principal constraints under which the Commission has operated
5. Brief account of the Commission's visits to the Sudan
6. Cooperation of the Sudanese authorities and the rebels

II. THE HISTORICAL AND SOCIAL BACKGROUND
1. The Sudan
2. Darfur
3. The Current Conflict in Darfur

SECTION I - THE COMMISSION'S FINDINGS OF VIOLATIONS OF INTERNATIONAL HUMAN RIGHTS LAW AND HUMANITARIAN LAW BY THE PARTIES

I. INTRODUCTION

II. THE NATURE OF THE CONFLICT IN DARFUR

III. CATEGORIES OF PERSONS OR GROUPS PARTICIPATING IN THE ARMED CONFLICT
1. Government Armed Forces
2. Government supported and/or controlled militias - The Janjaweed
3. Rebel movement groups

IV. THE INTERNATIONAL LEGAL OBLIGATIONS INCUMBENT UPON THE SUDANESE GOVERNMENT AND THE REBELS
1. Relevant Rules of International Law Binding the Government of the Sudan
2. Rules binding rebels

V. CATEGORIES OF INTERNATIONAL CRIMES

VI. VIOLATIONS OF INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN LAW - THE COMMISION'S FACTUAL AND LEGAL FINDINGS
1. Overview of violations of international human rights and humanitarian law reported by other bodies.
2. Information provided by the Government of the Sudan
3. Information provided by the rebel groups
4. The task of the Commission
5. Two Irrefutable Facts: Massive displacement and large-scale destruction of villages.
6. Violations committed by the parties

VI. ACTION OF SUDANESE BODIES TO STOP AND REMEDY VIOLATIONS
1. Action by the police
2. Action by the Judiciary
3. Sudanese Laws Relevant to the Present Inquiry
4. Action by Other Bodies
VII. ACTION BY THE REBELS TO REMEDY THE VIOLATIONS THEY COMMITTED

SECTION II - HAVE ACTS OF GENOCIDE OCCURRED ?

I. THE NOTION OF GENOCIDE

II. DO THE CRIMES PERPETRATED IN DARFUR CONSTITUTE ACTS OF GENOCIDE?

SECTION III - IDENTIFICATION OF THE POSSIBLE PERPETRATORS OF INTERNATIONAL CRIMES

I. GENERAL

II. MODES OF CRIMINAL LIABILITY FOR INTERNATIONAL CRIMES
1. Perpetration or co-perpetration of international crimes
2. Joint criminal enterprise to commit international crimes
3. Aiding and abetting international crimes
4. Planning international crimes
5. Ordering international crimes
6. Failing to prevent or repress the perpetration of international crimes (superior responsibility)

SECTION IV - POSSIBLE MECHANISMS TO ENSURE ACCOUNTABILITY FOR THE CRIMES COMMITTED IN DARFUR

I.GENERAL: THE INADEQUACIES OF THE SUDANESE JUDICIAL CRIMINAL SYSTEM AND THE CONSEQUENT NEED TO PROPOSE OTHER CRIMINAL MECHANISMS

II. MEASURES TO BE TAKEN BY THE SECURITY COUNCIL
1. Referral to the International Criminal Court
2. Establishment of a Compensation Commission

III. POSSIBLE MEASURES BY OTHER BODIES
1. Possible role of national courts of States other than Sudan
2. Truth and Reconciliation Commission
3. Strengthening the Sudanese Criminal Justice System

SECTION V - CONCLUSIONS AND RECOMMENDATIONS

I. FACTUAL AND LEGAL FINDINGS

II. DO THE CRIMES PERPETRATED IN DARFUR CONSTITUTE ACTS OF GENOCIDE?

III. WHO ARE THE PERPETRATORS?

IV. THE COMMISSION'S RECOMMENDATIONS CONCERNING MEASURES DESIGNED TO ENSURE THAT THOSE RESPONSIBLE ARE HELD ACCOUNTABLE
1. Measures that should be taken by the Security Council
2. Action that should be taken by the Sudanese authorities
3. Measures That Could be Taken by Other Bodies
 
Abstract
 

"The Security Council,

"Taking note of the report of the International Commission of Inquiry on violations of international humanitarian law and human rights law in Darfur (S/2005/60),

"Recalling article 16 of the Rome Statute under which no investigation or prosecution may be commenced or proceeded with by the International Criminal Court for a period of 12 months after a Security Council request to that effect,

"Also recalling articles 75 and 79 of the Rome Statute and encouraging States to contribute to the ICC Trust Fund for Victims,

"Taking note of the existence of agreements referred to in Article 98-2 of the Rome Statute,

"Determining that the situation in Sudan continues to constitute a threat to international peace and security,

"Acting under Chapter VII of the Charter of the United Nations,

"1. Decides to refer the situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court;

"2. Decides that the Government of Sudan and all other parties to the conflict in Darfur shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully;

"3. Invites the Court and the African Union to discuss practical arrangements that will facilitate the work of the Prosecutor and of the Court, including the possibility of conducting proceedings in the region, which would contribute to regional efforts in the fight against impunity;

"4. Also encourages the Court, as appropriate and in accordance with the Rome Statute, to support international cooperation with domestic efforts to promote the rule of law, protect human rights and combat impunity in Darfur;

"5. Also emphasizes the need to promote healing and reconciliation and encourages in this respect the creation of institutions, involving all sectors of Sudanese society, such as truth and/or reconciliation commissions, in order to complement judicial processes and thereby reinforce the efforts to restore long-lasting peace, with African Union and international support as necessary;

"6. Decides that nationals, current or former officials or personnel from a contributing State outside Sudan which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to operations in Sudan established or authorized by the Council or the African Union, unless such exclusive jurisdiction has been expressly waived by that contributing State;

"7. Recognizes that none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily;

"8. Invites the Prosecutor to address the Council within three months of the date of adoption of this resolution and every six months thereafter on actions taken pursuant to this resolution;

"9. Decides to remain seized of the matter."

***


Action on Text


The draft resolution was adopted by a vote of 11 in favour with 4 abstentions (Algeria, Brazil, China, United States).

Following the vote, ANNE WOODS PATTERSON (United States) said her country strongly supported bringing to justice those responsible for the crimes and atrocities that had occurred in Darfur and ending the climate of impunity there. Violators of international humanitarian law and human rights law must be held accountable. Justice must be served in Darfur. By adopting today's resolution, the international community had established an accountability mechanism for the perpetrators of crimes and atrocities in Darfur. The resolution would refer the situation in Darfur to the International Criminal Court (ICC) for investigation and prosecution.



While the United States believed that a better mechanism would have been a hybrid tribunal in Africa, it was important that the international community spoke with one voice in order to help promote effective accountability. The United States continued to fundamentally object to the view that the Court should be able to exercise jurisdiction over the nationals, including government officials, of States not party to the Rome Statute. Because it did not agree to a Council referral of the situation in Darfur to the Court, her country had abstained on the vote. She decided not to oppose the resolution because of the need for the international community to work together in order to end the climate of impunity in the Sudan, and because the resolution provided protection from investigation or prosecution for United States nationals and members of the armed forces of non-State parties.



The United States was and would be an important contributor to the peacekeeping and related humanitarian efforts in the Sudan, she said. The language providing protection for the United States and other contributing States was precedent-setting, as it clearly acknowledged the concerns of States not party to the Rome Statute and recognized that persons from those States should not be vulnerable to investigation or prosecution by the Court, absent consent by those States or a referral by the Council. In the future, she believed that, absent consent of the State involved, any investigations or prosecutions of nationals of non-party States should come only pursuant to a decision by the Council.



Although her delegation had abstained on the Council referral to the Court, it had not dropped, and indeed continued to maintain, its long-standing and firm objections and concerns regarding the Court, she continued. The Rome Statute was flawed and did not have sufficient protection from the possibility of politicized prosecutions. Non-parties had no obligations in connection with that treaty, unless otherwise decided by the Council, upon which members of the Organization had conferred primary responsibility for the maintenance of international peace and security.



She was pleased that the resolution recognized that none of the expenses incurred in connection with the referral would be borne by the United Nations, and that instead such costs would be borne by the parties to the Rome Statute and those that contributed voluntarily. That principle was extremely important. Any effort to retrench on that principle by the United Nations or other organizations to which the United States contributed could result in its withholding funding or taking other action in response.



The Council included, at her country's request, a provision that exempted persons of non-party States in the Sudan from the ICC prosecution. Persons from countries not party who were supporting the United Nations' or African Union's efforts should not be placed in jeopardy. The resolution provided clear protection for United States persons. No United States person supporting operations in the Sudan would be subject to investigation or prosecution because of this resolution. That did not mean that there would be immunity for American citizens that acted in violation of the law. The United States would continue to discipline its own people when appropriate.



ABDALLAH BAALI (Algeria) said his country believed strongly in the crucial importance of combating impunity if peace and stability were to take root -- a need that was even more vital in the case of Darfur, where relations between various communities had been destroyed over the years. It was, therefore, important that the fight against impunity had the equal goal of re-establishing harmony among the peoples of Darfur while serving the cause of peace.



He said that any international démarche towards those ends must be reinforced in a way that guaranteed a fair and transparent trial process; brought justice for the victims by restoring their rights and providing reparations for their moral and material suffering; contributed towards national reconciliation, a political settlement of the crisis and the consolidation of peace and stability throughout the Sudan; and promoted the support of all Sudanese in that process, including, in particular, securing the cooperation of the Government.



Because of those factors, the African Union was best placed to carry out so delicate an undertaking because it could provide peace, while also satisfying the need for justice, he said. President Olusegun Obasanjo had made a proposal, on behalf of the African Union, based on the need to secure peace without sacrificing the need for justice. Regrettably, for the sake of reconciliation, the Council had neither considered that proposal nor assessed its potential to enable its members to combat impunity. One could not claim to support the African Union while brushing aside its proposals without deigning even to consider them. At the eruption of the Darfur conflict, it had been none other than the African Union that had deployed its soldiers and begun negotiating the various complex issues involved. What was true of the Sudan was true all over Africa, and Algeria regretted that for the sake of compromise at any cost those who defended the principle of universal justice had, in fact, confirmed that even in the Council there could be a double standard.



WANG GUANGYA (China), explaining his delegation's abstention, said that China had followed the situation in Darfur closely and supported a political solution. Like the rest of the international community, China deplored deeply the violations of international humanitarian law and human rights law and believed that the perpetrators must be brought to justice. The question before the Council was what was the most appropriate way to do so. While ensuring justice, it was important to sustain the hard-won gains of the North-South peace process.



He said his country would have preferred that the perpetrators stand trial in Sudanese courts, which had recently taken action against people involved in human rights violations in Darfur. China did not favour the referral to the International Criminal Court without the consent of the Sudanese Government. In addition, China, which was not a party to the Rome Statute, had major reservations regarding some of its provisions and had found it difficult to endorse the Council authorization of that referral.



ELLEN MARGRETHE LØJ (Denmark) said that it had been two months since the Council had received the report of the Commission of Inquiry, which had strongly recommended referring the situation in Darfur to the ICC. The Court had the mandate, capacity and funding necessary to ensure swift and effective prosecution. She was encouraged that the Council had voted to adopt a resolution to bring an internationally recognized follow-up to the crimes in Darfur. She recognized the difficulty of some delegations to accept the text and appreciated the flexibility shown.



Denmark had only been able to support the text after some alterations were made, she said. Regarding the formulation on existing agreements referred to in article 98-2 of the Rome Statute, she noted that that reference was purely factual and referred to the existence of such agreements. Thus, the reference was in no way impinging on the Rome Statute. The result was a valid compromise leading to the first referral of a situation to the ICC. She looked forward to the Court taking the first steps to ending the culture of impunity in Darfur.



LAURO BAJA (Philippines) noted that today's was the third resolution borne out of the Council's consideration of Darfur. He had voted for the resolution in response to the urgency and gravity of the crimes, which the Council and the international community were obliged to address. Any failure of action two months after the presentation of the report would have reduced the Council to irrelevance in ending impunity and protecting human rights and international humanitarian law.



He shared the concerns of some regarding the manner in which the resolution was arrived at. Once again, veto threats prevented the expression of a clear and robust signal from the Council. That was why calls for Council reform were growing louder with each passing day. He also believed that the ICC was a fatality in the resolution. Did the Council have the prerogative to mandate the jurisdiction of the Court?



KENZO OSHIMA (Japan) said he had voted in favour of the resolution because impunity for serious violations of human rights and crimes against humanity must not be allowed. Japan supported in principle the referral to the International Criminal Court within the appropriate time-frame, although it was not a party to the Rome Statute and would have much preferred more agreement among Council members.



EMYR JONES PARRY (United Kingdom) said that by tonight's vote the Council had acted to ensure accountability for the crimes committed in Darfur. The United Kingdom hoped to send a salutary warning to other parties who may be tempted to commit similar human rights violations. The United Kingdom welcomed the adoption of the two other resolutions on the Sudan this week and called for a redoubling of efforts on behalf of peace and justice for the people of Darfur, and the Sudan as a whole, who had suffered enough. The three resolutions were a substantial contribution towards that end.



CÉSAR MAYORAL (Argentina) said he had voted in support of the resolution on the basis of the report to the Council by the High Commissioner for Human Rights, who stated clearly what had been crimes against humanity in Darfur. The legal context for dealing with such violations was the ICC. He understood that the ICC would be the proper place to combat impunity. The resolution gave strong support to the Court and demonstrated significant progress within the United Nations to ensure the functioning of an international system for human rights, for which the Court was an essential tool.



He noted that it was the first time the Council had referred to the Court a situation involving crimes over which the Court had jurisdiction. It was a crucial precedent. The letter and spirit of the Rome Statute must be respected, taking into account the legitimate concerns of States. Accordingly, he regretted that the Council had to adopt a text that provided an exemption to the Court, and hoped that that would not become normal practice. The exemption referred to in operative paragraph 6 only applied to those States not party to the Rome Statute.



JEAN-MARC DE LA SABLIERE (France) said the events in Darfur were deeply troubling, and the greatest concern was the plight of the people there. The Secretary-General's reports had provided a detailed picture of those atrocities. The Council had a duty to take action. Its policy must include three elements. The first was the need to assist the African Union to strengthen its mandate for protection and monitoring. The Council had done that by adopting resolution 1590 last week. Then, there was the need to exert pressure on the warring parties to fulfil their obligations and achieve a political settlement. The Council did that by adopting resolution 1591 a few days ago. Finally, it was necessary to put an end to impunity. That was what the Council had done today.



The Commission's report recommended the referral of the situation in Darfur to the ICC, he said. The Secretary-General and the High Commissioner for Human Rights had asked the Council to urgently provide a positive outcome following that recommendation. Referring the issue to the ICC was the only solution. It was necessary to do right by the victims, and doing so would prevent those violations from continuing. That was why France had been the initiator of the resolution and voted in its favour. He was gratified by the adoption of this historic resolution, by which the Council, for the first time, referred a situation to the ICC.



Thus, the Council had sent a strong message to all those in Darfur who had committed or were tempted to commit atrocious crimes, and to the victims. The international community would not allow those crimes to remain unpunished. It also marked a turning point and sent a message farther than Darfur. His delegation had been ready to acknowledge immunity from the ICC for nationals from States not party to the Rome Statute. He reaffirmed his confidence in the ICC and hoped that those clauses concerning immunity from the Court would be dropped very soon.



ADAMANTIOS TH. VASSILAKIS (Greece) stressed that impunity must not be allowed to go unpunished and that was why his country had turned to the International Criminal Court. It would have preferred a text that did not make exceptions, but it was better than one that allowed violations to go unpunished. The text strengthened the Council's authority, as well as that of the International Criminal Court, which would have the possibility of showing its competence. The three recently adopted resolutions on Darfur would assist in restoring peace in the Sudan.



AUGUSTINE MAHIGA (United Republic of Tanzania) said that every new delay in the adoption of the resolution represented a failure to serve the interests of justice, and his delegation regretted that the text took on matters that did not concern the Council. It did not permit any avoidance of the International Criminal Court's authority, and the United Republic of Tanzania hoped that the international community would not abandon the people of the Sudan, particularly those of Darfur.



MIHNEA IOAN MOTOC (Romania) said that text spoke for itself in showing the way the Council could come together to address serious issues. The adoption of resolution 1593 was a stand against impunity and an expression of confidence in the ICC to handle complex cases, like the one the Council was referring to it today. At the end of the day, the Council had sent a message that there was no way that anyone anywhere could get away without retribution for grave crimes. By deciding to refer Darfur to the ICC, the Council had enhanced its conflict prevention and resolution capabilities. Upholding the ICC by adopting the resolution would be to no avail unless States remained supportive of the Court as it exercised its prerogatives.



ANDREY DENISOV (Russian Federation) said that Council members had reaffirmed that the struggle against impunity was one of the elements of long-term stability in Darfur. All those responsible for grave crimes must be punished, as pointed out in the report of the Commission of Inquiry. The resolution adopted today would promote an effective solution to the fight against impunity.



JOEL ADECHI (Benin) said the vote was a major event in the context of the international community's attempts to ensure there was no impunity for violations of international humanitarian law in the past decade. Benin had voted in favour of the resolution because it was party to the Rome Statute and also because the worsening of the situation in Darfur meant that the Council must take action to end the suffering of the civilians, ending impunity by providing impartial justice. Benin had also voted in favour out of respect for human dignity and the right to life. The African Union recognized that the international community had a responsibility to protect civilians when they were not protected by their own governments. The resolution must help them to achieve their legitimate dream of an end to their suffering and enable them to look ahead to the future with serenity.



Council President RONALDO MOTA SARDENBERG (Brazil), speaking in his national capacity, said his country was in favour of the resolution, but had been unable to join those who had voted in favour. However, Brazil was ready to cooperate fully with the International Criminal Court whenever necessary. The Court provided all the necessary checks and balances to prevent politically motivated prosecutions, and any fears to the contrary were both unwarranted and unhelpful.



However, there were limits to the responsibilities of the Council vis-à-vis international instruments, and Brazil had consistently maintained that position since the negotiations on the Rome Statute. But the Court remained the only suitable institution to deal with the violations in the Sudan. Brazil had been unable to support operative paragraph 6, which recognized exclusive jurisdiction. It would not strengthen the role of the International Criminal Court.



ELFATIH MOHAMED AHMED ERWA (Sudan) said that, once more, the Council had persisted in adopting unwise decisions against his country, which only served to further complicate the situation on the ground. The positions over the ICC were well known. The Darfur question had been exploited in light of those positions. It was a paradox that the language in which the resolution was negotiated was the same language that had buffeted the Council before on another African question. The resolution adopted was full of exemptions. He reminded the Council that the Sudan was also not party to the ICC, making implementation of the resolution fraught with procedural impediments. As long as the Council believed that the scales of justice were based on exceptions and exploitation of crises in developing countries and bargaining among major Powers, it did not settle the question of accountability in Darfur, but exposed the fact that the ICC was intended for developing and weak countries and was a tool to exercise cultural superiority.



The Council, by adopting the resolution, had once again ridden roughshod over the African position, he said. The initiative by Nigeria, as chair of the African Union, had not even been the subject of consideration. Also, the Council had adopted the resolution at a time when the Sudanese judiciary had gone a long way in holding trials, and was capable of ensuring accountability. Some here wanted to activate the ICC and exploit the situation in Darfur. Accountability was a long process that could not be achieved overnight. The Council was continuing to use a policy of double standards, and sending the message that exemptions were only for major Powers. The resolution would only serve to weaken prospects for settlement and further complicate the already complex situation.
 
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