Volume XIX - Annexes 738-763

INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING
APPLICATION OF THE INTERNATIONAL CONVENTION FOR THE SUPPRESSION
OF THE FINANCING OF TERRORISM AND OF THE INTERNATIONAL CONVENTION
ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION
(UKRAINE V. RUSSIAN FEDERATION)
VOLUME XIX OF THE ANNEXES
TO THE MEMORIAL
SUBMITTED BY UKRAINE
12 JUNE 2018

TABLE OF CONTENTS
Annex 738 U.N. General Assembly Resolution No. 2106A (XX), U.N. Doc.
A/RES/20/2106, International Convention on the Elimination of All Forms
of Racial Discrimination (21 December 1965)
Annex 739 Kitok v. Sweden, Communication No. 197/1985, CCPR/C/33/D/197/1985
(1988)
Annex 740 Lubicon Lake Band v. Canada, Communication No. 167/1984, U.N. Doc.
Supp. No. 40 (A/45/40) (26 March 1990)
Annex 741 Intentionally Omitted
Annex 742 Intentionally Omitted
Annex 743 UN Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities, Article 2, Adopted by General Assembly
resolution 47/135 of 18 December 1992
Annex 744 U.N. Security Council Resolution 827, U.N. Doc. S/RES/827 (25 May 1993)
Annex 745 Human Rights Committee, General Comment 18, Non-discrimination
(Thirty-Seventh Session, 1989), Compilation of General Comments and
General Recommendations Adopted by Human Rights Treaty Bodies, U.N.
Doc. HRI/GEN/1/Rev.1 at 26 (1994)
Annex 746 Intentionally Omitted
Annex 747 International Criminal Tribunal for Rwanda, U.N. Doc. S/RES/955 (1994).
Annex 748 OHCHR General Comment No. 23: The rights of minorities, Doc No.
08/04/94, CCPR/C/21/Rev.1/Add.5 (1994)
Annex 749 Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9
(17 July 1998)
Annex 750 Mahuika et al. v. New Zealand, Communication No. 547 / 1993, U.N. Doc.
CCPR/C/70/D/547/1993 (27 October 2000)
Annex 751 Althammer v. Austria, Communication No. 998/2001, U.N. Doc
CCPR/C/78/D/998/2001 (22 September 2003)
Annex 752 Cecilia Derksen v. Netherlands, Communication No. 976/2001, U.N. Doc
CCPR/C/D/976/2001 (1 April 2004)
Annex 753 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)
Annex 754 CESCR General Comment No. 16, The Equal Right of Men and Women to the
Enjoyment of All Economic, Social and Cultural Rights, E/C.12/2005/4 (11
August 2005)
Annex 755 CESCR General Comment No. 20, Non-Discrimination in Economic, Social
and Cultural Rights, E/C.12/GC/20 (2 July 2009)
Annex 756 Consideration of Reports Submitted by States Parties under Article 40 of the
Covenant, Concluding Observations Report Regarding Russia's Compliance
with the ICCPR, Russian Federation, 1.CCPR/C/RUS/CO/6 (24 November
2009)
Annex 757 CESCR General Comment No. 21, Right of Everyone to Take Part in Cultural
Life, E/C.12/GC/21 (21 December 2009)
Annex 758 CEDAW General Recommendation No. 28 on the Core Obligations of State
Parties under Article 2. CEDAW/C/GC/28 (16 December 2010)
Annex 759 OHCHR, Situation of Human Rights in the Temporarily Occupied
Autonomous Republic of Crimea and the City of Sevastopol (Ukraine) (22
February 2014 to 12 September 2017)
Annex 760 United Nations Human Rights Council, Report of the Special Rapporteur on
Minority Issues on Her Mission to Ukraine (7–14 April 2014), U.N. Doc.
A/HRC/28/64/Add.1 (26 August 2014)
Annex 761 Intentionally Omitted
Annex 762 OHCHR, Report on the Human Rights Situation in Ukraine (15 April 2014)
Annex 763 OHCHR, Report on the Human Rights Situation in Ukraine (15 May 2014)
Annex 738
U.N. General Assembly Resolution No. 2106A (XX), U.N. Doc. A/RES/20/2106, International
Convention on the Elimination of All Forms of Racial Discrimination (21 December 1965)

President: Mr. Amintore FANFANI (Italy).
•
NEW YORK
1406th
PLENARY MEETING
Tuesday, 21 December 1965,
at 10.30 a.m.
A/PV.1406
7. Mr. LAMPTEY (Ghana): I should like to introduce
the amendment contained in document A/L.479.
We have submitted this amendment because, to many
delegations gathered here, the absence of a reservations
clause ,from the draft Convention is a major
flaw that could conceivably nullify the effect of the
Convention ab initio. That the reservations clause
was deleted in the Third Committee, by a vote of 25 to
19 with 34 abstentions [see A/6181, para. 194],
was itself a tragiC circumstance and could have
happened only because we were all tired and the
effect of this action was not obvious to many. We
believe that, on second thought, most delegations
now realize the necessity of a reservations clause:
the number of co-sponsors of the amendment bespeaks
that fact.
8. The three-paragraph clause that we promise is
simple enough and is a restatement in positive terms
of a formulation which enjoys wide support with
respect to reservations to multilateral conventions.
Before dealing specifically with this text and with
reservations generally, however, I should like to
comment briefly on the articles of the Convention
which purportedly would be subject to significant
reservations.
9. First, there is article 4, the first paragraph of
which has given (}oncern to some delegations. It
should be recalled that that paragraph was the outcome
of a' difficult compromise after hours, and
even days, of discussion, drafting and redrafting.
In that process, most of us yielded from fixed positions,
and no argument has since' been brought forth
to show that this article would be in derogation of
the fundamental right of freedom of speech.
10. We listened very carefully to the recent intervention
of Mr. Goldberg, in which he touched upon
this subject, and we can suggest only that a :reservation
would not be the proper mode of dealing with
this matter. It was the consensus in the Committee
that this article should not be in derogation of "the
principles embodied in the Universal. Declaration
of Human Bights and the rights expressly set forth
in article 5 of this Convention". Thus, a unilateral
declaratory statement as to this consensual interpretation
is what is necessary, and not a reservation,
for a reservation, ,illso facto, amounts to a
of the Third Committee's report [A/618l"] and on
which the Assembly is requested to take action.
6. Lastly, I would draw the attention of the Assembly
to the report of the Fifth Committee [A/6182], which
deals with the financial implications that arise in
connexion with part 11 of the draft Convention, on
measures of implementation.
1
1
Page
TWENTIETH SESSION
Official Records
United Nations
GENERAI.4
ASSEMBLY
CONTENTS
Agenda item 58:
Draft International Convention on the Elimination
of All Forms of Racial Disorimination
Report of the T~ird Committee. • • • • • • • •
AGEI\I DA ITE M 58
Draft Internatior.al Convention on the Elimination of
All Forms of Racial Discrimination
REPORT OF THE THIRD COMMITTEE (A/6181)
Mr. Maodonald (Canada), Rapporteur of the Third
Committee, presented the report of that Committee
and then spoke as follows.
1. Mr. MACDONALD (Canada), Rapporteur of the
Third Committee: As the Asserr~bly is aware, in
resolution 1906 (XVIII), entitled "Preparation of a
draft international convention on the elimination of
all forms of racial discrimination", the General
Assembly requested the Economic and Social Council
-to invite the Commission on Human Rights to give
absolute priority to the preparation of a draft international
convention on the elimination of all forms
of racial discrimination.
2. On. the basis of a preliminary draft prepa'.l:'ed
by the Sub-Commission on Prevention of Discrimination
and Protection of Minorities, the Commission
on Human Rights prepared in 1964 seven substantive
articles which the Economic and Social Council
transmitted to the General Assembly in resolution
1015 B (XXXVII) of 30 July 1964.
3. At the present session of the General Assembly
the Third Committee considered in great detail,
at forty-three meetings, and adopted unanimously
a draft convention comprising a preamble and twentyfour
articles. These twenty-four articles are divided
into three parts. Part I consists of the substantive
articles; part 11, of articles on implementation; part
III contains the final clauses.
4. I wish to draw to the Assembly's attention the
fact that the Third Committee decided not to include
a territorial application clause, a federal clause or
a reservations clause in the draft convention. On
the reservations clause the Assembly has before it
an amendment submitted by thirty-three Powers
[A/L.479]. There is also an amendment to article 4
by five Latin American Powers [A/L.480].
5. I would also draw the Assembly's attention to
the two draft resolutions which appear in paragraph 212
2 GeI:.eral Assembly - Twentieth Session - Plenary Meetings
"Any construction of the Charter according to
which Members of the United Nations are, in law.
entitled to disregard-and to violate-human rights
and fundamental freedoms is destructive of both
the legal and moral authority of the Charter as
a whole ••• [and] runs counter to a cardinal principle
of construction accordtng ~Q. ,which treaties
must be interpreted in good faith." V
16. If the principle pacta sunt servanda is accepted,
then all the Members of this Organization are under
legal obligation to accept the right of petition expressly
granted to the peoples of the colonial territories
under the provisions of the Charter and
extended by the establishment of constituent United
Nations Committees of permanent and ad hoc nature.
17. If we cannot, arguendo, deny the legality of the
bodies to which these petitions lie. we cannot question
the legal validity of a procedural link between
the Committee established under this Convention, a
convention adopted under the aegis of the United
Nations with the aim of achieving a pre-emptory
purpose of the Charter-the elimination of all forms
of racial discrimination, which is an essential requisite
k the realization of the dignity and worth of manand
the established bodies of the United Nations to
which its counsel would be highly useful. That is
all that Article 15 attempts to do.
18. Article 71 of the Charter' authorizes the Economic
and Social Council to consult and co-operate
with other international, national and non-governmental
organizations handling matters which fall
within its purview. and such co-operation has significantly
helped that Council to achieve its goals.
19. The Constitution of the International Refugee
Organization .provides that it may establish
"Such effective relationships as may be desirable
with other international organizati.ons"
. and that it is
"to consult and co-operate with public and private
organizations whenever it is deemed advisable. in
so far as such organizations share the purpose of
the Organization and observe the principles of the
United Nations".
20. The Constitution of the International Civil Aviation
Organization., the ILO and many others have
similar provisions, and, as Sir H. Lauterpacht says,
while these
"provisions adrt little to the formal status and
procedural capacity of the individual .•• in the inter-
.11 Ibid•• p. 149.
1.1 Pieter N. Drost, Human Rights as Legal Rights (Leiden. A.W. Siythoff.
1951). p. 29.
Y H. Lauterpacht, International Law and Human Rights (London,
Stevens and Sons, 1950), p. 149, foot-note.
12. Articles 14 and 15 have also created some concern
among certain delegations. As for article 14.
its very optional nature makes it necessary to comment
thereon. In our view, a juridical position that
denies that a State, in exercise of its own sovereign
will, can grant to individuals within its borders a
right of petition to an international forum is tenuous,
to say the least. Article 15, however. is another
matter.
modification and in this case. a modification of a "to see to it that the essential liberties of all are
difficult compromise. respected without distinction of race. language and
creed". there would have been no doubt abod the
11. What can be reiterated also is the correlative legal effect of the human rights prov'isions. We for
consensus of the Committee that these fundamental our part agree with Sir H. Lauterpacht that the
freedoms should not be employed to violate the cumulative legal result 'of the various human rights
purposes and objectives of this Convention. lt is pronouncements of the Charter cannot be ignored
for this reason that we cannot accept a new formula- and that the legal character of these o~ligations
tion of article 4. of the Charter would remain even if the Charter were
to contain no provisions of any kind for their implementation.
As that distinguished English jurist has
said: '
13. My delegation took an active part in objecting
to the original article 13 bis and to the reformulation
of the present article 15. We objected to article 13 bis
because we believed that it was legally dubious to
extend mandatorily a right denied the citizens of a
metropolitan State to the colonial subjects of the
State through an instrument of this type. It is, however,
different when a procedural link between bodies
of the United Nations and a body established through
a multilateral convention and charged with the common
task of achieving the purposes of the Charter is
contended to be in violation of law. Such a contention
is based on political expediency and is legally spurious.
14. In the first place, the Members of the United
Nations have undertaken certain obligations in respect
of human rights. We are aware that there i: a
divergence of viewpoints among the authorities concerning
the legal effect of Articles 55 and 56-the
so-called human rights Articles of the Charter.
While Hudson, Kelsen and Drost, among others, claim
that these Articles are not constitutive of enforceable
legal norms, they agree that
"The Members"-of the United Nations-"have undertaken
to act in conformity with the Purposes of
the Organization. They have legally committedthemselves
to a legislative program, national and international,
in respect of human rights." Y
15. Even the Legal Adviser of the United States
Department of State in his famous memorandum to
the Attorney-General in connexion with the McGhee
and Shelley cases did admit that the Articles
"appear to place Member States under the obligation
to co-operate with the United Nations in the
carrying out of its function, which is stated here
and elsewhere in the Charter as being the promotion
of universal respect for and observance of
human rights and fundamental freedoms". J:j
But for the failure of the conference at San Francisco
twenty years ago to adopt t~e proposal of the representative
of Panama for a positive declaration that
one of the purposes of the· United Nations would be
1406th meeting - 21 December 1965
-.;....------------------~
3
:JJ Lord McNair, The; Law of Treaties (Oxford, Clarendon Press.
1961). pp. 169, 170.
~ H. Lauterpa\:ht. o{>, cit•• p. 390.
28. It is not only the pUblicists who speak in this
vein. In the drafting both of the Supplementary Convention
on the Abolition of Slave:ry, the Slave Trade
and Institutions and Practices Similar to Slavery of
1956, and of the UNESCO Convention againstDiscrimination
in Education of 1960, the·discussioilE? ;nowgoi~g
on he1'e took place. In these instances tile reservations
clause finally adopted was similar to that
proposed by Chile and Uruguay to the draft cQvenants
which state in essence: "Reservations to this Convention
shall not be permitted."
29. It would perhaps lJe useful for our understanding·
of the problem if we listened to some of the arguments
26. According to Lord McNair,
"The law leaves the negotiating parties completely
free to create their own rules governing the question
of reservations to the particular treaty in
the negotiation with which they are concerned.
They are at liberty to insert in the treaty a clause
dealing with reservations, and it is in this way
that they can comply in advance with the principle
of unanimous consent, which is the basis of treaty
obligations. Fidelity to this principle forms no
obstacle to the desire to create greater fleXibility
in the matter of reservations in o:r.der to encourage
and fu~ilitate the universality of obligations, on
the one hand, without destroying on the other hand
the essential degree, though not necessarily the
complete degree, of uniformity' of obligation."
And he adds:
"What is vitally necessary is to draw the attention
of groups of States engaged in negotiating a treaty
to the imperative necessity of facing up to the
question of reservations and inserting in each
treaty the clause appropriate to it in that particular
case, whether the clause forbids reservations or
permits them. In the case of treaties negotiated
under the auspices of the United Nations it is the
practice of the Se(jretariat to do this, and it was
expressly done wv:en the Genocide Convention was
being negotiated, but without result; for that Convention
contained no article dealing with reservations.
" 11
I want to repeat: "for that Convention contained no
article dealing with reservations".
27. Sir Hersch Lauterpacht, commenting on the
projected International Bill of th~ Rights of Man, the
idea from which this Convention emanated, stated:
"The dignity and effectiveness alike of the Bill
demand' that there should be no room in it for
reservations of any kind or description. The Bill
of Rights is H Bill of the fundamental' rights of
man.' The idea of any reservations to them is,
prima facie, objectionable ••• if reservations were
to be appended in large numbers they would lend
substance to the charge that governments hope to
contrive to become parties to a basic international
enactment without undue sacrifice. n :Y
national sphere, ... they illustrate both the inadequacy
of the hitherto predominant doctrine and
the manner in which international practice may
soften and eventually discard a rigid rule no
longer in keeping with modern needs". 11
21. The various specialized agencies in speoial
relationship with the United Nations are all beings
of separate and'distinct international treaties: their
memberships are different in instances from that
of the United Nations. Thus there are several precedents
for the procedural link envisaged between
the Committee and other United Nations bodies.
The raison d'~tre for this co-operation is that these
bodies are all dedicated to the achievement of Charter
obj ectives.
22. The Committee established under this Conven-
. tion may, within a relatively short period, achieve
expertise' in problems of racial discrimination. In
such case would its advisory role to a United Nations
body like the Committee of Twenty-Four not far
outweigh in results the slim possibility of political
propaganda for which its comments and recommendations
cou~d be used? Those who would oppose this
procedural link could base their .opposition only on
political considerations and not on 'legal or cop.-
stitutional factors. .'
23. Let me now turn to the question of reservations
generally. It is true that the subject of reservations'
is a complex one, but let us not exaggerate this
compleXity.
24. The practice followed by the League of Nations
with respect to multilateral conventions was that,
to be valid, a reservation must be accepted by all
- contracting parties. Substantially the same practice
was followed by the Secretary-General of the United
Nations until the decision of the International Court
of Justice §j on the Genocide Convention. The rule
adhered to by the Secretary-General then was formulated
by the International Law Commission in
195~ as' follows:
"A State may make a reservation when signing,
ratifying or acceding to a convention, prior to its
entry into force, only with the consent of all States
which have ratified or acceded thereto up to the
date of entry into force; and may do so a.fter the
date ~f entry into' force only with the consent of
all States which have theretofore ratified or
acce.ded. n §j
25. The difficulty that has arisen in recent years
with respect to reservations has come about mainly
because of the sharp multipUcity and varied nature
of multilateral conventions since the Second World
War and the attainment of nationhood by many colonial
peoples that were not party to the development of
the traditional concepts of international law; but there
is sufficient evidence both of the old and of the new
concepts to guide us. Restricting ourselves, then,
to the type of humanitarian convention before' us,
let us hear what some of the experts have to say•
_'!I Ibid•• p. 29.
§j Reservations to the Convention on Genocide. Advisory Opinion:
I.C.J. Reports 1951, pp. 29 and 30•
.2.J Official Records of the General Assembly, Sixth Session. Supplement
No. 9 (A/18SS). para. 19.
1
,
I "
4 General Assembly ~' Twentieth Session - Plenary Meetings
that finally won the day during consideration of the
Slavery Convention.2J
30. The, Argentine representative, Mr. Beltramino.
had suggested the deletion of the reservations clause.
To this Miss Lunsingh-Meijer of the Netherlands
demurred, arguing that the absence of a reservations
article would raise serious difficulties and
complimlt~d ,legal questi1ons. Mr. Jafri of Pakistan,
in a penetrating analysis, stated that if reservations
were to be allowed there would be little justifi-,
cation for all the efforts which had been made to
secure a generally acceptable text, and added that
whatever might be said about the sovereign rights
of States, reservations detracted from the efficacy
and advantages of any multilateral convention, what.
ever its object. Reservations were necessary only
in cases where highly controversial articles had
beenforced through by the pressure of "brute majority"
voting.
31. In the view of the French representative,
Mr. Giraud, the main point to bear in mind wafi that
conventions most commonly rested on comproIhises
and, in those circumstances, reservations enabling
States to accept what they liked and reject what
they did not like would upset the balance of the convention
and certain States would feel that they had
been unfairly thwarted. The Turkish representative,
Mr. Tuncel, objecting to the Argentinian proposal,
said he had the impression that some delegations
had the draft covenants on human rights particularly
in mind and that they would not like an~r precedent
to be .created which would affect possible reservations
to the covenants. This of course shuuld not
be a fear.
32. But perhaps the most articulate representation~
against deletion was that of the United Kingdom representative,
Mr. Scott-Fox. He said that the opponents
of the reservations article had based their objections
on the principle that the inclusion of a non-reservations
clause was incompatible with the sovereign
rights of States. He disagreed. If, on becoming a
party to the Convention, a State agreed that· no reservations
to it should be allowed. it would not be doing
anything incompatible with its sovereign rights. Each
case would of course have to be considered·· on its
merits, but there were a certain number of conventions,
including the present one, reservations to which
would open the door to modifications that would
destroy the fundamental value of the convention. It
was in the interests of all states intending to become
parties to the Convention that they should agree
beforehand to allow no reservations. The International
Court's advisory opinion in connexion with the Genocide
Convention had not. in the opinion of many
international lawyers, resolved the difficulties with
respect to reservations. It was for that reason that,
by its resolution 598 (VI), the General Assembly
had recommended that organs of the United Nations,
specialized agencies and States should, in the course
of preparing multilateral conventions, consider the
insertion therein of provisions relating to the admissibility
or non-admissibility of reservations and to
.J.I United Nations Conference of Plenipotentiaries on a Supplementary
Convention on the Abolition of Slavery, the Slave Trade. and Insti;:utions
and Practices similar to Slavery. Geneva, 13 August-4 September 1956.
the effect to be attributed to them. It was in acco'rd;':'
ance with that resolution and to avoid the many
difficulties that reservations would create that the
article on reservations had been included in the draft.
33. We have quoted the summary of Mr. Scott-Fox's
statement extensively because it'is cogent and apt
and applies with full force to the present case'; for,
in our view, slavery is the mother of racial discrhnination
and'we cannot understand a change of attitude
with' respect to the anti-discrimination Convention
before us. Furthermore, none of the articles of
the draft Convention of the elimination of all forms
of racial discrimination has been adopted by "brute
majority" voting, to use Mr. Jafri's wordEl. Each
has been the result of a deliberate and fine compromise
and has-been adopted almost overwhelmingly.
34. With respect to the UNESCO Convention on Discrimination
in Education, it is pertinent to quote
the report of the Special Committee of Governmental
Experts, which met in Paris from 13 to 29 June 1960,
on this question:
"The authors of the draft Convention, while mindful
of the necessity of preparing a text capable
of ratification by the largest pof:isible number of
states, felt that that consideration should not have
the effect of detracting from the creative value of
the text prepared or of weakening the principles
and rules enunciated. The draft Convention accordingly
precludes the possibility of States making
reservations to it."
35. Most of the co-sponsors of the amenumentbefore
us share the viewpoints so ably statedby the publicists,
governmental experts and governmental delegates, and
we wouldhave liked to introduce the Chilean-Uruguayan
proposal that precludes reservations completely.
However, in a spirit of compromise and to avoid
a long debate in p~enary, we are proposing this
three-paragraph reservations article. One thing that
all who are conversant with this subject are agreed
upon is that the question of reservations must be
squarely faced by the conference that adopts a
multilateral convention. This is what the SecretaryGeneral
as depositary would want us to do; this is
what we insist must be done.
36. First, recognizing the fact that all the Members
of the United Nations have been afforded the opportunity
to participate in the negotiation and adoption of the
Convention, and that as a human rights instrument
its reach must be universal, we have proposed in
paragraph 1 that 'the Secretary-General, as the
depositary of the Convention, should circulate any
reservation among the signatory States indicated
in article 17 of the Convention for their crnsidera- .
tion. This is no innovation, for it has beE:n applied
by several conventions among which is. the Convention
on the Political Rights of Women. And as
reasoned liy the International Law Commission in
its Yearbook of 1951, at the time a reservation is
tendered, "a signatory State may be actively engaged
in the study of the convention, or it may be in the
pro,cess of completing the procedures necessary for
its ratification, or for some reason, such as the
assembling of its parliament, it may have been compE
. 1406th meeting - 21 December 1965 5
pelled to -delay its ratification."}!]I We share the
opinion of the International Law Commission that
the objection of such a State should have no legal
effect but serve as indication of the State's attitude
with ,respect to the reservation. Upon the ratification
or 'accession of the State, however, its objection
will become legally effective unless the objection
is withdrawn. Thus States will have the opportunity
to assess the eventual fate and effect of proposed
reservations.
37, In paragraph 2 we have adopted the formulation
of the International Court of Justice as to compatibility
in its decision on the Genocide Convention
in the first part of the first sentence, a fortiori
applied to the second part of the sentence. In the
second sentence we have provided that the objection
of two thirds of the states Parties is tantamount to
non-acceptance of the reservation. This is a departure
from the traditional concept of unanimity a.nd is
one that was widely shared during the consideration
of the question by the International Law Commh\,sion
in 1962. It is similar to but even weaker than the
proposal of the United Kingdom to the draft Convention
which 'Would deem a reservation to be accepted
"if not less than two-thirds of the' Hates to whom
copies have been circulated in ae cordance with
this article accept or do not objec'; to it within a
period of three months following the <late of oirculation"
• It is no innovation but it is ~'. clause which
this Assembly as master of' its hot se can adopt
to save the Convention from destruction and a great
number of law suits over interpretation.
38. A suggestion that the International Court of
Justice replace the States in this matter is untenable,
{or it is the States that have negotiated and will
adopt this Convention. Ir', is theirinte~t which is
vital to any judicial construction as to interpretation
and it is they who must have the primary
responsibility of guaranteeing the integrity of the
Convention. Their actions, even if political, will be
based on their unde":'stanrling of the consensus achieved
in adopting the Convention and as to the purpose
and object they mutually had in mind when inserting
the various articles. Of course, in the case of a
dispute, the Convention, by article 21, will have given
ultimate jurisdiction to the International Court of
Justice.
39. The third paragraph is self-explanatory and
needs no comment. Repetit'ious as it may sound,
let me quote the advice of the International Law
Commission on this question:
"It is always within the power of negotiating
States to provide in the text of the convention
itself for the limits within which, if at all, reservations
are to be admissible and for the effect
that is to be given to objections taken to them,
and it is usually when a convention contains no
such provisions that difficulties arise. It is much
to be desired, therefore, that the problem of reser...
vations to multilateral conventions should be squarely
faced by the draftsmen of a convention text at the
lQI Yearbook of the International Law Commission 1951. Vol. Il
(United Nationll publication. Sales No.: 57.V.6). document A/18S8.
para. 29.
time it is being drawn up; in the view of the Commission,
this is likely to produce the greatest
satisfaction in the long run." W,
40. Finally, let me emphasize that this Convention
is the result of a remarkable compromise .between
gentlemen. We cannot therefore conceive of a State
wishing to frustrate its object and purpose, an object
and purpose that is already bound by ~he Charter,
and most likely by its own Constitution, to realize.
But if a State wishes to do this, then other likeminded
States interested in the Convention are in
duty bound to ensu.re the integrity of the Convention
and to prevent it from becoming a variety of conventions.
41. Many of Ul:) were not here-in fact iwe were not
independent-when the General Assemblyunanimously
adopted the resolution Mr. Scott.,Fox refer~ed to,
but we are now loyal Membe.rs of the United Nations,
and the Assembly's wishes are our commands. It
is in this spirit that we propose our amendment. It
is in this spirit that we c~xpect it will receive unanimous
approval.
42. Mr. BELTRAMINO (Argentina) (tral1s1ateii from
Spanish): First of all, I shoUld like to thank my friend
the representative of Ghana for referring to the
statement I made at the Conference on Slavery in 1956~
which shows that our position in regard to the reservations
clause is not of :recent date. From the very
first mention of the idea of introducing at this late
hour in the General Assembly, when we are almost
at the end of our labours, a new draft article con-cerning
the reservations clause, we were opposed
to it for the following basic reasons:- -in-the first
place, because the question of the submission of
reservations is a very serious one, since it-touches
very closely on the question of the sovereignty of
States, and because in ,the past, even in the United
Nations, it has been handled in a great variety of
ways according to the particular Convention involved,
so that we cannot speak of uniform practice. Secondly,
because the fact that the text was submitted so late
made it impossible for delegations to have the
proper consultations with their Governments.
43. We understand perfectly well the desire to
ensure that reservations do not in any way undermine
the Convention itself, which was drawn up
with such labour and patience by the Third Committee.
This seemed to us only common sense,
and therefore we feel that oratorical displays indulged
in for the purpose of attacking or defending the
attitude of this or that country in the past are superfluous,
simply because they are unnecessary. This
is not the subject under discussion here. The question
is whether a provision adopted in haste can
serve the purposes of the Convention, the ;vigorous
Ilnd unequivocal implementation of its claus>~s, and
encourage its adoption by all States Members of the
United Nations•
44. This twofold purpose was borne in mind constantly
by my delegation and the other Latin American
delegations while the Convention was being drawn
up. Sorii~ will argue that the new al'ticle on reserill
Official Records of the General Assembly, Sixth Session. Supplement
No. 9 (A/l8SB). para~ 27.
49. This, then, is the limit of freedom of speech
-as we understand it. The mere expression of ideas
is not in itself punishable if it is not accompanied
by incitement to discrimination or racial hatred.
This is the aim of those who genuinely want the
Convention. There are, admittedly. certain qualifications
in the introductory part of article IV, but we
are most concerned that this COl1Vention-as we have
desired and urged from the outsetm-shall be as perfect
as possible, avoiding provisions of any kind likely
to lead to abuse or misinterpretation which it might
'be difficult to remedy. This is why we state quite
uneqUivocally in our amendment that all incitement
to racial discrimination, no matter what form it
may take, shall be punishable by law. We have particularly
added, in order to preserve the original iciea'
of the text, the question of discrimination based
on racial superiority or hatred, on whi,ch we are
entirely in agreement. We consider that in this way
article IV (!) i.s satisfactorily rounded off and the
purposes of the Convention are duly fulfilled.
50. Finally, I should like to reply to the point
raised by the representative of Ghana in order to
set the record straight. Contrary to what he said,
there has never, I repeat never, been any compromise
with the members of the Latin American
group nor with certain other delegations regarding
the drafting of this article. A compromise requires
action on the part of all the parties to the negotiations.
51. Mrs. CABRERA (MeXico) (translated from
Spanish): The Mexican delegation regards the draft
international Convention on the Elimination of. All
Forms of Racial Discrimination as a document of
singular importance in the effort to put into practice
the lofty principles set forth in the Declaration of
Human Rights. For this reason, it bears in its
train important innovations which must be examined
in absolute freedom by the va~ious. Parliaments
or Houses of Representatives which make it possible
for the Governments of l\4ember States to ratify
the Convention.
47. I would now like briefly to introduce the amendment
appearing in document A/L.480. It refers to
article IV @) of the Convention and is very simple.
Its purpose ].S to remove an inconsistency in the
text as it stands. We decided to submit this text in
in the light of other amendments to the Convention
already submitted. We should like to make it emphatically
clear at the outset that we resolutely support
the provisions of article IV in so far as they provide
for penalties to be imposed by law on organizations
practising racial discrimination, propaganda activities,
acts of violence and the incitement or promotion
of discrimination. Here again, our position
is not new. As is well known, in 1963, when the Declaration
on the Elimination of All Forms of Racial
Discrimination was considered, it was the Argentine
delegation that proposed-and the proposal was subsequently
adopted by the General Assembly [resolution
1904 (XVIll)]-that consideration should be given to
the question of both the promotion of and incitement
to racial discrimination. In fact, we went evenfurther
46. Our attitude is one of principle, although we
agree that even if there is no reservation clause,
reservations must not inhibit the aims and purposes
of the Convention, the noble humanitarian and practicai
ends it is designed to subserve. If they did, we.
should regard it as a calamity. We do not feel it
is acceptable, merely because it has notbeenpossible
to produce a better formula or out of a desire to
restrict the reservations that a particular State
may make, simply and solely to decide that reservations
shall be subject to the approval of two thirds
of the States Parties to the Convention. Even without
any such proviso, there is nothing to prevent the
Committee provided for in the Convention from
entering into negotiations with the State or States
concerned with a view to inducing them to reconsider
their. attitude-a point which is not covered
by the thirty-three-Power amendment [A/L.479], and
even with a view to making suggestions to the General
Assembly regarding the reports which the State
involved has to submit. This way might be less
spectacular than reqUiring sanction by a two':thirds
majority, but it might also 'be more effective in
practice. My delegation will therefore be unable to
vote for the draft article in its present form.
r· .. 6 General Assembly - Twentieth Session ~ Plenary Meetings
vations in document A/L.479 is too weak; others here than article IV W. It is also a well-known
will find it acceptable. But there is no doubt about fact that the Argentine penal oode lays down a
it-this is not just one further article in the Conven- number of penalties for such disorimination with
tion; the principles involved are of importance, as a view to preventing any discrimination that may
I feel sure my co-sponsors would agree. arise in the future. OUr position is thus olear and
45. We do feel that it is desirable to have a reser- unequivocal in the matter.
vation clause in this Convention; but rather than incor- 48. Secondly, at the very outset, when the Committee
porate in the text a clause which has not been fully considered an amendment to article IV (ID condemnweighed,
a clause on which Governments have not ing the mere oral or written expression of the notion
been properly consulted, it would be better from of superiority of nne race over another, my delegaevery
point of view not to have any clause on reser- tion and others as wen were flatly Oppos()d to this,
vations whatever. This is a special kind of Conven- Our attitude is ichus one of principle and is contion
with a peculiar system of implementation, and sistent. What we are anxious to condemn and proit
deals, moreover, with a problem whose solution scribe as categorically as possible is not the fact
will be under constant supervision by a special that, for example, a scientist may pUblis}1l\ document
committee and by the General Assembly. Hence we pointing O\~t differences between individuals of difdo
not feel that reservations appropriate to earlier ferent races, as has occurred in the past and as
conventions can be adapted to suit it,' at least not sitU halJP~ns .today, nor pUblic discu~sions on such
without thorough study. . subjects be.tween two or more persons. What we
coridemn is .llny incitement to racial discrimination
as a result of such pUblications or discussions.
In this event the State must take vigorous action
at all times to nip in the bud incitement to racial
discrimination by such means. .
1406th meeting - 21 December 1965 7 -------------------
60. I now put to the v0te draft res~lution A, as
amended. A roll-call vote has been requested.
The vote was teken by roll-call.
The Philippines~ having been a'rawn by lot by tIle
President~ was called upon to vote first.
In favour: Philippines, Poland, Portugal, Romania,
Rwanda, Saudi Arabia, Senegal, Sierra Leone, Somalia,
Spain, SUdan, Sweden, Syria, Thailand, Togo, Trinidad
and Tobago, Tunisia, Turkey, Uganda, Ukrainian
Soviet Socialist Republic, Union of Soviet Socialist
RepUblics, United Arab Republic, United Kingdom of
Great Britain and Northern Ireland, United Republic
of Tanzania, United States of America, Upper Volta,
Uruguay, Venezuela, Yemen, Yugoslavia, Zambia,
Afghanistan, Algeria, Argentina, Australia, Austria,
Belgium, Bolivia, Brazil, Bulgaria, Burma, Burundi,
Byelorussian Soviet Socialist .Republic, Cameroon,
Canada, Ceylon, Chad, Chile, China, Colombia, Congo
(Brazzaville), Congo (Democratic RepubliG of), Costa
Rica, Cuba, Cyprus, Czechoslovakia, Dahomey,
Denmark, Dominican Republic, El Salvador, Ethiopia,
Finland, France, Gabon, Ghana, Greece, Guatemala,
Guinea, Haiti, Honduras, Hungary, Iceland, India,
Iran, Iraq, Ireland, Israel, Italy, Ivory Coast, Jamaica,
Japan, Jordan, Kenya, Kuwait, Laos, Lebanon, Liberia,
Libya, Luxembourg, Madagascar, Malaysia. Maldive '
Islands, Mali, Mauritania, Mongolia, Morocco, Nepal,
Netherlands, New Zealand, Niger, Nigeria, Norway,
Pakistan, Panama, Paraguay, Peru.
Against: Nor:e.
58. The PRESIDENT (translated from French): I
invite the Assembly to vote on the fiv'e Power amend··
ment [A/L.480] to part I of the annex to draft resolution
A. It refers to article 4 @) of the draft Convention.
The anJendment wa.9 rejected by 54 votes to 25~
with 23 abstentions.
59. The PRESIDENT (translated from French): I
would remind representatives that the Fifth Committee
has submitted a report [A/6182] on the financial
implications of adoption of the draft Com·\ention.
The report refers in particular to part II of the, annex
to the draft resoluti.on, i.e., part II of the draft
Convention.
Abstainii1g: Netherlands, New Zealand, Norway,
Portugal, Sweden, Thailand, Turkey, United Kingdom
of Great Britain and Northern Ireland, Austria, Brazil,
Burma, Canada, Ceylon, Chile, China, Congo (Democratic
RepubHc of), Denmark, Finland, Greece, Haiti,
Iceland, Ireland, Israel, Italy, Luxembourg, Malaysia,
Maldive Islands.
The sentence was adopted by 62 votes to 18~ with
27 abstentions.
'56. The PRESIDENT (translated from French): Inow
put paragraph 2 to the vote.
Paragraph 2 was ad'opted bY' 76 votes to 13~ with
15 abstentions.
57. I now put the amenjment as a wh.ole to the vote.
The amendment as a whole was adopfed by 82 votes
to 4~ with 21 abstentions.
53.. We believe that the Mexican legislature should
be left absolutely free to consider the various implications
of the Convention. Majority acceptance of an
article such as that envisaged in document A/L.479
severely restricts this freedom and prejudges the
action which the Mexican legislature may take.
54. For this reason, and despite the fact that in
its. domestic and international policies alike, the
Mexican Government has championed in the past
and will continue to champion the concept of racial
non-discrimination, my delegation feels obliged to
vote against this amendment; and if it is adopted,
we shall have to abstain from I voting on the draft
Convention as a whole. '
The vote was taken by roll-call.
Ma1i~ haVing been drawn by lot by the President~
was called upon to vote first.
.In favour: Mali,' Mauritania, Mongolia, Morocco,
Nepal, Nigeria, Pakistan, Philippines, Poland.
Romania, Rwanda, Saudi Arabia, Senegal, Sierra
Leone, Somalia, SUdan, Syria, Togo, Trinidad and
Tobago, Tunisia, Uganda, Ukrainian Soviet Socialist
Republic, Union of Soviet Socialist Republics, Unite'"
Arab Republic,. United Republic of Tanzania, Uppl,...·
Volta, Ur:uguay, Yemen, Yugoslavia, Zambia, Afghanistan,
Algeria, Bulgaria, Burundi, Byelorussian
Soviet Socialist Republic, Cameroon, Chad, Congo
(Brazzaville), Cuba, Cyprus, Czechoslovakia, Dahomey,
Ethiopia, Gabon, Ghana, Guinea, Hungary,
India, Iran, Iraq, Ivory Coast, Jamaica, Japan, Jordan,
Kenya, Kuwait, Laos, Lebanon, Liberia, Libya,
Madagascar, Malawi.
Against: Mexico, Panama, Paraguay, Peru, Spain,
United States of America, Venezuela, Argentina,
Australia, Belgium, Bolivia, Colombia; Costa Rica,
Dominican RepUblic, El Salvador, France, Guatemala,
Honduras.
52. The delegation of Mexico collaborated in an
honest and unwavering manner with the majority
of the members of the Third Committee to adopt
a text .~ lhich would receive unanimous support. Unanimity
was achieved as a result of concessions on
all sides based on mutual understanding and goodwill.
To introduce amendments which, in one way
or another, have already been rejected by the Third
Committee would upset the balance achieved and
force delegations to reconsider their position in
the mattel.
55. The PRESID:3NT (translated from French): We
shall now proceed to vote, beginning with the thirty-
, three-Power amendment [A/L..479] to part lIT of the '
annex to draft resolution A [A/6181, para. 212].
The amendment calls for the insertion of a new
article 21) in the draft Convention. A separate vote
has been requested on the second sentence of paragraph
2 of the article" which reads as follows:
"A reservation shall be considered incompatible
or inhibitive if at least two thirds of the States
parties to the Convention object to it."
I now put this sentence to the vote. A vote by rollk,
call has been reque~)ted.
70. Freedom of thought has been Violently curtailed
by tyrants throughout the course of history, by the
Inquisition and by those who in the name of royal
powers opposed the independence of the Americas.
These are facts which show clearly that to penalize
ideas, whatever their nature, is to pave the way
for tyranny, for the abuse of power: and even in
the most favourable circumstances it will merely'
lead to a sorry situation where interpretation is
left to judges and law officers. As far as we are
concerned, as far as our democracy is concerned,
ideas are fought with ideas and reasons; theories
are refuted with arguments and not by resort to
the scaffold, prison, exile, confiscation or fines•
71. For these reasons we ask for a separate 'Vote
on the phrase "based on ideas or theories" in the
second line of the first paragraph of article 4, and
"of ideas based on superiority or hatred" in the
first line of article 4 @). If these phrases are not
rejected, my delegation would like to enter reservations
on them here and now.
72. Moreuver, we believe that penal law can never
presume to impose penalties for subjective offences.
This barbarous practice is merely the expression
of fanaticism such as is found among uncivilized
people and is hence proscribed by universal law.
Here, therefore, is one voice that will not remain
silent while the representatives of the most advanced
nations in the world vote without seriously pondering
on the dangers involved in authorizing penalties
under criminal law for ideclogical offences. The
interpretation of articl3 4 to which I referred not
only stipulates punishment for individuals but for
organizations as well. It is knowl'\ that juridical
persons, let alone juridical persons associated for
political purposes, are not subject to penal sanctions
or the passive object of criminal law. Article 4,
in the terms in which it is drafted, is legally unsound,
in addition to having the constitutional defects I
have pointed out.
73. The Colombian Parliament will not authorize
ratification of a covenant at variance with the political
~onstitution of the country and with the tenets of
pUblic law. Colombia practises freedom of ideas
and will not depart from the principles underlying
its civilization.
74. My delegation is eager for this convention to
be adopted. There are no J:'.acial problems in Colombia.
There is crossing of blood; men are valued for their
community begin. However, if the law or international
treaties attempt to restrict these freedoms
in the inte\'est of the community' or of mankind,
this can ouly extend to the point at which the principle
of freedom remai:ps intact-in other words,
personal freedom can be regulated but not encroached
upon.
69. The Colombian constitution is based on the principles
of Rousseau, adjusted in the light of the advances
made in the social field; and individualism h:1S had
to and still has to make concessions in the interests
of the community. without stamping out the individual,
without encroaching upon his freedom, respecting
his right to think and to express his deliberate decisions
in actions or words.
8 Geiieral Assembly - Twentieth Session - Plenary Meetings
*The Mexican delegation subsequently informed the Secretariat that
it would like Mexico to be included in the list of delegations voting in
favour of draft resolution A.
Abstaining: Mexico.*
Draft resolution A, as amended, was adopted by
106 votes to~one, with 1abstehtion.
61. The PRESIDENT (translated rom French): I
now put to the vote draft resolution B [A/6181,
para. 212].
Draft resolution B was adopted by 98 votes to none,
with 7 abstentions.
62. The PRESIDENT (translated from French): With
regard to the resolution just adopted, I am informed
that it will take some time to prepare copies of the
Convention for signature. As soon as the copies
are ready, the date for signature will be announced
in the United Nations Journal. This will enable Governments
wishing to sign the Convention to grant. the
appropriate full powers to their plenipotentiaries•.
63. I shall now call on each of the representatives
in turn who wish to explain their votes.
64. Mr. OSPINA (Colombia) (translatedfrom Spanish):
I asked permission to speak before the vote,and
it seems to me that this raises a point of order,
because one reason why I wanted to speak was to
ask for a separate vote on -certain sentences or
phrases in article 4. With this in mind-and I hope
that the Assembly will take due note of it-I shall
sa.y what I would have said prior to the voting.
65. The Third Committee approved the draft International
Convention on the Elimination of All Forms
of Racial Discrimination in a text which ::~pears
in document A/6181 of 18 December 1965. If this
draft is adopted by a majority vote, it will go from
the Assembly to the States which are parties tc the
Convention for rat':fication in accordance with the
terms set forth in the Convention.
66. My delegation has worked with tremendous zeal
in order :0 give this humanitarian draft such force
that it could become an international covenant with
which States Members of the United Nations would
comply. To achieve this, it would have to be in
keeping with the spirit and the letter of the universal
principles of law as· well as with the constitutional
principles of Member States: and this has proved
extremely difficult in spite oi the fact that the sponsors
in the Committee itself made concessions towards
extending the bounds of international positive
law and eliminating errors in the text.
67. Nevel'theless, certain articles of the Convention
still embody extremist clauses which are unacceptable
bec~use they are at variance with the political
constitutions of particular countries, and this will
mean that reservations will be made when the draft
is voted upon and at the time of ratification once it
is converted into ,.. covenant~
68. As far as the political constitution of C9lombia
is concerned, the enshrinement of the liberties in it is
based on the recognition of the rights of the human
person, and these rights are safeguarded up to the
point where the rights of others or the rights of the
1406th meeting - 21 December 1965
----------------
,:~ 9
\,1
84. Lih~l1ed by racist writers and theorists who
claimed that in Haiti's first steps as a SOVf3reign
nation they detected a congenital inferiority inherent
in the black race; isolated by the Powers which ~ade
no move to recognize it; and excluded, only recelitly
still, from international gatherings, HaitI nevertt.-chuman
passions are revealed as more deadly than
the most modern weapons.
80•. Now, heaven be praised, we have produced a
document of which the least that can be said is that
it is -:reasonably reassuring. We applaud it, and
we j07.n in the chorus of authoritative voices of the
nations assembled in this Hall to intone in all
solemnity the hymn of reconciliation among the
races which fantastic theories tend to divide, vaunting
the supremacy 'of some peoples over others
regarded as inferior and hence despised and held
in servitude, if not indeed destined for utter annihilation.
That was the judgement of Gobineau and
his disciples with their theory of the inequality of
human races; of the German philosopher Nietzsche,
the champion of force, in his famous book Thus Spake
Zarathustra; and a whole series of sorcerers'
apprentices who came after them.' They _ig~ored
the fact that in the, beginning, when men -dwelt ~n _
caves, no matter where they were such ideas had
not yet occurred to them, and they formed groups -and
mingled togetheli all on the same footing in
their fierce struggle' against the wild beasts a~d
the elements they had not yet subdued.
81. We have no desire to dwell on the controversial
writings of specialists in anthropology or genetics.
We in the Republic of Haiti, ever since the days when
our African ancestors freed themselves from the
diabolical colonial yoke, have always practised tolerance
towards all races, in accordance with our laws
and customs, in spite of the tortures of every kind
inflicted on our forefathers and the ostracfsm suffered
by our country because of our ethnic origins.
We have practised tolerance in the belief that all
races are on a par and that the barriers set up
between them have been erected through the ages
merely as a sequel to struggle and conquest, where
the victorious side subjugated the other and regarded
the race of the vanquished as inferior to its own.
That was the way with the civilizations that have
died out, and it is the same with the new civiHzations.
82. There is no need to cite the ancient empires,
whose doleful fate the history books l'ocount, except
to recall that the instinct to dominate has ever been
one of the characteristi~ of the human species,
and that men" today. in sPtte of the new gospels
preached by the wise Ii.len of every part of the
world~ still confront each other in antagonistic ideologies
whose baleful shadows cast gloom over the
places where they fall. History is like the sea,
ever beginning anew, and men have not changed over
the ages. Confronted with its prey, the beast shows
its claws.
83. Thus, to safeguard the higher interests of an
epoch, the colonial Powers regarded Haiti as fair
game throughout the last century, following the
proclamation of its independence, because for them
it set a dangerous example.
76. At first sight it would seem that a political
problem is being injected into the Convention, whereas
my delegation is conscious of the fact that the aim
of the Convention is eminently humanitarian. Thus
problems are created in the United Nations itself,
issues being transferred from one committee to
another without any apparent authorization to do so.
Administering Powers might feel that there was
some derogation from their sovereignty and that
they are exposed to the danger of violation for
want of clarity in the rules applied.
77. My delegation believes that since the colonial
status of certain Territories constitutes a temporary
legal situation, this provision too should be temporary
and not permanent. My delegation will abstain from
the voting on this article, with the exception of paragraph
1, for which we intend to vote.
78. I shall not refer to the amendmentto article 20
[A/L.479], since I am entirely in agreement with the
views expr.sssed by the representatives of Argentina
and Mexico. A few days ago the United states representative,
speaking in the Third Committee [13173rd
meeting], said that thi.:; Convention was more than
a mere restatement of laudable principles. That is
true: the Convention is a resounding victory, which
must not be demeaned by political issues.
79. Mr. VERRET (Haiti) (translated from French):
The delegation of Haiti, in spite of the reservations
it expressed in the Third Committee concerning
certain paragraphs of the various articles of the
draft International Convention on the Elimination
of An Forms of Racial Discrimination, voted for
the draft Convention as a whole, even though it still
has some misgivings concerning the full effectiveness
of the measures of implementation. It also approved
the report of the Third _Committee on this subject
as an absolute imperative of the present time, when
virtues as citizens; coloured persons occupy and
have always occupied the highest public offices side
by side with whites; races live in harmony and merge
without more ado, because it is a commonplace
occurrence~ There, in the crucible of Latin America,
th~ blood and the races of the future meet and
mingle; and since there is no discrimination of
any kind in Colombia, my delegation felt that it
could freely and frankly analyse article 4. And we find
that in its present wording it is a retrogra9-e measure
instead of being a step forward on mankind's road
towards the future.
75. In conclusion, may I-again in explanation of my
vote-point out certain faults we have found with
article 15 of the Convention. This provision establishes
a special sklation in respect of the territories
referred to in General Assembly resolution
1514 (XV) of 14 December 1960. This exceptional
treatment provided for in article 15 in regard to
the right of petition, converting it into something
resembling a new right which might be described
as a right of direct petition since it does not involve
intervention by the state concerned, the Committee
being informed through the cdmpetent bodies of
the United Nations, arouses misgivings on the part
of my delegation preqisely because of its exceptional.
nature.
isolated struggle peculiar to them; nor can he and
his people remain immune from the privations suffered
by millions of black men in the southern part
of Africa.
94. "••• That the great and terrible war which has
now ended was a war made possible by the denial
of the democratic· principles of the dignity, equality
and mutual respect of men, and by the propagation,
in their place, through ignorance and prejudice,
of the doctrine of the inequality of men and !'aces."
These are the words of the preamble to the Constitution
of UNESCO. It was Santayana who remarked
that he who does not know the past is doomed to
repeat it. In taking this first step in. providing the
nations of the world with a multilatera.l treaty for
the elimination of all forms of racial discrimination,
a treaty capable of enforcement" w~ have
demonstrated our capacity not to forget. )Get us then
hope that the nations of the world will demonstrate
their commitment to this purpdse by faithfully adopting
and executing the principles enshrined in this
Convention. Then the day may yet come when it
can truly be said, as it was said by Confucius twentyfive
centuries ago, that.: ~Wlthir: the Four S~as all
are Brothers."
92. It is in the name of this leader, and the nation
of which he is the architect, that my delegation
has been proud to vote foi' the adoption of this International
Convention on the Elimination of All Florms
of Racial Discrimimition.
93. In' explaining our vote, let us state that we are
not completely satisfied with the Convention just
adopted, for we would have hoped that, seven centuries
. after the Magna Carta declared "••. to no one will
we refuse or delay right or justice" j more than a
century and a half after the American Declaration
of Independence asserted that Itall men are created
equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are
I.lie, Liberty and the pursuit of Ha,ppinessl'i; 172 years
after the French Declaration of the Rights of Man
and Citizen proclaimed that "forgetfUlness and contempt
of the natural rights of men are the sole
causes of the miseries of the world"; almost half
a century after Lenin proclaimed the brotherhood
of man; twenty years after the great Charter of the
United Nations reaffirmed ~;faithin fundamental human
rights, in the dignity and worth of the human person,
in the equal rights of men and women .•• It , and
seventeen years after we, through the Universal
Declaration of Human Rights, declared that Itall
are entitled to equal protection against any discrimination
in violation of this Declaration and against
any incitement to such discrimination", the representatives
Qf Governments here gathered would have
adopted a strong Convention able to insure the
speedy disappearance of racial discrimination, that
dogma and practice which is a travesty of the very
essence of justice. But, alas, realism dictated that
we take an infant step. Let me therefore register
the hope of my Government and people that the
Convention just adopted will, in a few years, be
subject to revision, and a more effective instrument
adopted.
10 General Assembly - Twentieth Session - Plenary Meetings
less fulfilled its destiny. This island, the home of a
free people, proud of its origins, pursuing its onward
and upward march, slowly but surely, despite the
obstacles of every kind deliberately placed in its
path, towards progress and modern civilization, in
peace and dignity at all times, under the enlightened
leadership of a just and learned Chief of state,
H.E. Dr. Frangois Duvalier, Life President of the
Republic. And because though our forefathers were,
oppressed we still believe in a better future, we
share the distaste felt by the majority of the peoples
of the world fo!' all forms of racial discrimination,
no matter by what means they are called: antisemitism,
colonialism, nazism, apartheid and all
su.ch, past and present. They are all ~f them as
degrading as the minds that conceived them.
85. It is most gratifying that after centuries during
which the war-lords have caused the destruction of
so much life and property, the nations represented
here have approved this international Convention
on the Elimination oi All Forms of Racial Discrimination,
for t~e purpose of promoting greater understanding
among peoples and building a new world
where, in an a.tmosphere of more brotherly, more
just and more human feelings, the smoke from the
pipe of peace will bring with it progress and happiness
to nl;l.tions sincerely reunited.
86. The peoples of the world will be grateful to
us Member states if we are able to respect this
Convention. Let us at least wish it long life, so
that the peace so dear to the hearts of men may
reign on earth.
87. In conclusion, the delegation of Haiti pays homage
to the members of the Third Committee and the
General Assembly for this meritorious effort, which
represents a new landmark on the path to social
progress.
88. Mr. LAMPTEY (Ghana): A generation ago, a
young African student landed on the shores of t'l\ese
United states in pursuit of higher learning. He slept
on the subways of New York City and rubbed shoulders
with the workers in the shipyards of Pennsylvania.
Alone in a strange country, he came face to face
with racial discrimination.
89. A decade later he left for the United Kingdom,
and there again, in the lower-class restaurants of
Camden Town and Tottenham Court Road in LonJ.on,
he was to exoerience the subtlety of racial discrimination.
90. He did not become a bitter man in consequence
of those experiences: he became a better man. For
he became convinced that if an honest and enduring
relationship between men of different races and
ethnic origins must come, it must be preceded by
the elimination of. all forms of racial discrimination.
91. Osagyefo Kwame Nkrumah, the man of whom I
speak, has with determination and consistency employed
the influence and power that destiny has
bestowed upon him to ensure the total eradication
of this cancerous tumour from the face of the earth.
It is for this reason that he can never, and his
people will never, consider the struggle of the
Ame~£'icans of African descent for equality as an
1406th meeting - 21 December 1965 11
95. My delegation has been proud and honoured to'
participate in the drafting and adoption of this Convention,
and we thank those who joined us in this
collective task. If in the process we have seemed
impatient, we beg forgiveness, for we meant no
offence to ailybody-but we were dedicated to the conclusion
of this task.
96. We leave this rostrum convinced that, because
of what you have done today; when the story of the
twentieth session of the General Assembly comes
to be told, it can well be said, as it was once said
by a great war leader: This was its finest hQur.
97. Miss WILLIS (United States of America): It is
a source of deep satisfaction to the United States
delegation that the Committee, under the skilful
and 'patient leadership of its able Chairman, successfully
persisted in the arduous task of drafting the
Ll'lternational Convention on the Elimination of All
Forms of Racial Discrimination. The adoption of
this Convention will certainly be one of the main
achievements of this session. All delegations which
worked hard to achieve this result are to be con- .
gratulated. ,
98. T1;l.e United states voted for the Convention as
a whole because we agree with its constructive
humanitarian objectives. It is more than a statement
of lofty ideals. It provides machinery for implementation
which goes well beyond any previous human
rights instrument negotiated in the United Nations.
It is inevitably a comple:c documeilt and will require
careful study not only by my Government but also,
I am sure, by many other Governments.
99. It is not appropriate here to recapitulate even
-the substance of statements made by t:ta United
states representative in the Third Committee on
various articles. For the record, howevel', here
in this Assembly, I wish to state that the United
states understands article 4 of the Convention as
imposing no obligation on any party to take measures
which are not fully consistent with its constitutional
guarantees of freedom , including freedom of speech
and association. This interpretaLlOn is entirely consistent
with the opening paragraph of article 4: of
the Convention itself, which provides that, in carrying
out certain obligations of the Convention, States
Parties shall have "due regard to the principles
embodied in the Universal Declaration of Human
Rights and the rights expressly set forth in article 5
of this Convention". Article 5, in turn, lists, among
the rights to be guaranteed without distinction as to
race, colour, or national or etbnic origin, the right
to freedom of opinion and expression.
100. Let, me now turn very briefly to the question
of the reservations article. My delegation believes
that it would have been better for this Convention
not to contain an article on reservations. The absence
of such an article need not have impaired the effectiveness
of the Convention. The omission of an article
on reservations would, however, have made possible
the acceptance of the Convention by a greater number
of states, the~eby contributing to the eradication
of racial discrimil}.ation Q'!~r a wider area.
101. \Y~ ....t:bink it -would have been preferable in this
Convention, if there had to be an article on reservations,
for it to proVide-for a judicial decision on
the question of whether a _reservation made by a
State was or was not compatible with the object and
purpose of the Convention•.
102. What I have said explains why we abstained
from voting on the article contained in document
A/L.479. Notwithstanding our difficulties with some
aspects of the text, we welcome the adoption of this
Convention by the General Assembly. We hope that
it will help in bringing to an end the evils of raciaJ
discrimination, for racial discrimination has noplace
in the world we, the peoples of the United Nations,
are seeking to build.
103. Mr. COMBAL (France) (translatedfrom French):
The French delegation would have liked to be able
to rejoice unreservedly in the adoption by the General
Assembly of a draft international Convention on the
Elimination of All Forms of Racial Discrimination.
For that reason we regret that we felt obliged this
morning to oppose the adoption of the amendment
IA/L.479] to insert anew article 20 in tlle text of
the draft Convention~
104. While paragraph 3 of this document merely
reiterates generally recognized international principles,
paragraphs 1 and 2 introduce new ideas which
my delegation cannot endorse.
105. In the first place, paragraph 1, because of
ambiguous or perhaps merely inept drafting, would
be likely to extend beyond the sphere of the states
parties to the Convention the procedure for examining
reservations and make it possible for States that'
are not and never win be parties to the Con'vention
to be seized of reservations submitted by others
which had decided to accede to the Convention.
106. The French delegation likewise felt obliged
to vote against paragraph 2. The admissibility of
ratifications or accessions subject to reservations
should be decided u~on normally by each Contracting
State on the basis of legal considerations; but the
procedure envisaged-the submission of such decisions
for approval by a two-thirds majority of the
Contracting States-does not respect that rule;
it introduces into the draft Convention not only a
principle foreign to the spirit of a cohtractual instrument,
but also an element of a .political nature
calculated to distort the purpose and scope of the
instrument.
107. The French delegation was nevertheless able
to vote in favour of the draft international Convention
as a whole. To be sure, several of its provisions,
in addition to the new article 20 just ad.ded
by the General Assembly, evoked criticism and reservations.
Moreover, there are still too many places
where the text transmitted by the Third Committee
has shortcomings attributable to the ad hoc nature
of the wording used and the undue haste with which
the Committee frequently had to take decisions.
However, the lofty moral and humanitarian aims of
this instrument, combined with the need to provide
the international community with a text, even though
an imperfect one, which ./should at any rate help
it to remove this blot on human society-racial
discrimination-seemed to my delegation reasons
enough for waiving our difficulties and jo~Uing with
12 General Assembly - Twentieth Session - Plenary Meetings
~-------_._-----
119. It should also be pointed out that there are
various other conventions, adopted earlier by the
United Nations, which are still awaiting the signature
of the countries whose delegations have spoken in
the Third Committee, at this session of the General
Assembly, also, of restricting in one way or another
the Convention which we have just adopted. Suffice
it to mention such instruments as the Convention
against Discrimination in Education rY and even
such an important convention as the Convention on
the Prevention and Punishment of the Crime of
Genocide. J1j
115. We all know-and there is no need to dwell
on the subject at this time-that there is abundant
and irrefutable evidence that racist ideas and policies
~till prevail in a number of couI1tries in the fields
of administration, the economy, education, publio
health, social security, family relations and the like.
116. Hence the adoption of the Convention on the
Elimination of All Forms of Racial Discrimination
is a logical development of the historic United Nations
Declaration on the Granting of Independence to Colonial
Countries and Peoples, and of the Declaration on
the Elimination of All Forms of Racial Discrimination,
adopted earlier by the General Assembly (1904
(XVIII)].
117. Today, at its twentieth session, and on the
twentieth anniversary of the founding 'Of the United
Nations, the General Assembly has added a memorable
page to the annals of the Organization.
118. The delegation of th~ Soviet Union, representing
the peoples of the Soviet State, who feel the
deepest sympathy and understanding for peoples
who have to endure apartheid, segregation and other
manifestations of racism, has made every effort
to help to formulate a meaningful convention on
the elimination of all forms of racial discrimina.tion.
The drafting of the Convention revealed tha.t, despite
the fact that racism has been branded as a most
grievous crime a.gainst mankind, and despite the
adoption of a special declaration resolutely condemning
racism and all forms of racial discrimination,
there is still a tendency on the part of certain
States to hinder the implementation of these United
Nations decisions, to emasculate them, to interpret
these documents in such a way as to reduce to
nothing 01' belittle their practical significance. Inter-
. preta:iol:ls of this kind have been put forward in the
Third Committee also and reflected in the statements
of some speakers at the present session of the
General Assembly. It is also a regrettable fact
that they are advanced precisely by delegations
of countries which, like the Unitec. States for example,
have so far obstinately refused to ratify agreements
and conventions previously prepared by the
United Nations and designed to promote the fulfilment
of one of the tasks laid down in the United Nations
Charter-the task of promoting universal respect
for human rights and fundamental freedoms without
distinction as to race, sex, langua~e or religion.
113. Racism and racial discrimination are such
shameful and odious products of imperialism and
colonhlism that ~ll peoples and all decent human
beings are resolutely demanding that they be endedo
114. Even now the policy of racism and racial discrimination
is still ca-using millions of people mental
and physical suffering and constituting a source of
hostility and conflict not only in relations between JdL Conventiol'l against Discrimination in Education, adopted by ~lle
General Conference of UNESCO at its eleventh session (Paris, 14 De-'
individuals and peoples but also between States, cember 1960).
thereby creating an immediate threat to international ~/ Convention of 9 December 1948 on the Pr~vention and Punishment .
peace and security. of the Crime of Genocide (General Assembly resolution 260 (Ill), annex).
._;-,~:~.:_:_~-'-~1~J!!"~~~~!~.:.'l~~-,l!!~!!!jfJ~JL~~~--.1ill!t~!l111;[~$!WJJ!I;\!l!lmJ\i'j"-.!iJlM~
those who have supported the Convention on the
Elimination of All Forms of Racial Discrimination.
- 108. Mr. BOSCO (Italy) (translated from French):
The Italian delegation has given its enthusiastic
approval to the draft International Convention on
the Elimination of All Forms of Racial Discriminatlon,
which was discussed at great length by th,~
Third Committee and carefully drawn up by eminent
jurists.
109. We are convinced that todayt''S date will constitute
a landmark in the history of the United Nations.
The document submitted to us for approval is not
merely the outcome of heavy l~.bours and close cooperation
within the Organiza.tion; it is first and
foremost a solemn affirmatiojn of the will of the
peoples of those nations to do away once and for all
with. abominable doctrines and practices which for
too many centuries, and until the present da,y, have
been the cause of suffering and manifold distress.
No one can fail to remember the millions of victims
that racial hatred and anti-semitism have made
in our generation. No one can fail to be consciencestricken
and revolted by the policy of racial segregation
which, alas, is still rife today. It is hardly
necessary to recall here how many times the voice
of the United Nations has been raised, affirming
that all forms of racial discrimination are an offence
to the dignity of the human person and that therefore
they cannot be justified de jure, let alone tolerated
de facto in any shape or form.
110. The Unh~ersal Declaration of Human Rights
has pointed the way for us. The draft Convention
just adopted is the means, the tool forged" by the
United Nations for attaining the ends of the Declaration.
It is now for our countries, our Parliaments
and Governments, to become parties to the CO.uvention
and adopt the measures they deem most appropriate
for implementing it.
111. In conclusion, I am happy to declare h,ere on
behalf of my delegation that the affirmative vote we
have cast is the solem~ expression of our full moral
support for the principles and obligations of this
Convention, which the law and policies of the Italian
Republic has always supported.
112. Mr. MOROZOV (Union of Soviet Socialist Republics)
(translated from Russian): The Soviet delegation
voted in favour of the adoption of the Convention
on the Elimination of all Forms of Discrimination.
We believe that the Convention just adopted will be
warmly welcomed by world public opinion and that
its adoption will be regarded by all progressive
people as an event of great international importance.
.• ', .' " "",,,
1406th meeting - 21 December 1965 13
120. As regards the Soviet people, we are convinced
that the General Assembly's decision to adopt the
Convention will be fully appreciated by all the peoples
of our multinational state.
121. In 1917 the Soviet people were the first in the
history of mankind to put -an end to discrimination
and all other manifestations of the imperialist system
of exploitation. More than 110 nationalities, drawn
together by bonds of indissoluble friendship, go to
make up the 230-millio~-strongpeople of the Soviet
Union. To our people all questions connected with
the elimination of racism and other forms of discrimination
are a thing of the past-they are history.
Soviet law strictly prohibits all forms of racial
discrimination. We need only recall that the Constitution
of the Soviet Union, as well as the Constitutions
of all fifteen Union Republics and of all
thirty Soviet Autonomous Republics, clearly estalJ!
ish the equality of all citizens, regardless of their
race or national origin, in all fields-economic,
political and social-as an immutable law. Any direct
,or indirect limitation of rights whatsoever or, conversely,
the establishment of any dil'ect or indirect
privileges for citizens on account of their r~we or
national origin, is punishable by law, as is any
advocacy of racial or national exclusiveness or
hatred and contempt.
122. We should like, in cOl1clusion, to emphasize
that it is the duty of the United Nations to ensure
that the provisions of the Converltion are implemented
in the very near future and are strictly observed
everywhere.
123. Lady GAITSKELL (United Kingdom): We did,
of course, vote in favour of the Convention as a
whole because we strongly support the general objectives
and purposes of that Convention. We also voted
for article 20 as a whole because, as the representative
of Ghana pointed out, we have already on previous
occasions made clear our opposition in principle
to the placing of reservations on articles of
implementation. We were glad to see that some of
our colleagues shared this view.
124. We still, however, maintain our objections to
article 15. These objections were explained in detail
in Committee and there is no need for me to repeat
them. Nothing has been said to refute them. The
Ghanaian representative's arguments seem to turn
on the assertion .that the right to petition has already
been' granted by the Charter. This is, of course, not
the case except to inhabitants of Trust Territories.
125. I shall confine myself to reiterating the general
criticism of, article 15 already expressed in the
Third Committee by an able and distinguished colleague:
it represents bad politics and worse law.
126. Mrs. MANTZOULINOS (Greece): My delegation
voted for the deletion of th~ reservations clause
when the vote was taken in the Third Committee
[1368th meeting] because, in view of the amendments
proposed to the draft, we thought that deletion was a
better ,solution, taking into consideration the fact
that a number of United Nations and specialized
agencies conventions had not included a reserva'·
tions clause. The reservations formula would permit
any reservation by 'any Stat~ party to the Converition
or to any article ')f the Convention and,
according to United Nations procedure,communicatio~
through the Secretary-General of such reservations
to all States parties to the Convention, for
their acceptance or disagreement.
127. In the absence of a reservations clause in a
given convention, under United Nations practices
and in conformity with the principles of internathnal
law no reservation could be entered into by a State
if it were incompatible with the object and purposes
of the convention.
128. The amendment submitted to the Assembly today
[A/L.479], interpreting these principles of international
law, seemed acceptable to my delegation
and we voted in favour of it.
129. However, the last phrase of paragraph 2, providing
that it is up to the States parties to decide,
by a two-thirds majority, what is incompatible or
inhibitive with regard to the object of reservations,
seemed to us not a familiar clause in the proceedings
of international conventions. We would have preferred
to have this matter decided upon by a juridical
body, rather, such as the Legal Section of the United
Nations Secretariat, which would accordingly give its
competent opinion on reservations entered into by
States at a time of ratification or accession. This
stage was provided for by the Convention.
130. Under the circumstances, however, we abstained
on the last phrase of paragraph 2, but voted in favour
of paragraph 2 as adopted, with the retention of its
last phrase.
131. In explaining its vote in favour of resolutions A
and B respectively preceding and follOWing the text
of the Convention [A/6181, para. 212] the delegation
of Greece whole-heartedly welcomes the adoption of
the Convention by the General Assembly. Despite
some imperfections in the text, my delegation considers
it an outstanding United Nations instrument,
an achievement in international life. We are confident
that it will effectively meet its purposes and
objectives: namely, to combat racial discriminaticH
in all its forms, and thus serve the great cause of
human rights and human dignity.
132. Mr. BAROODY (Saudi Arabia): Racialdiscrimination
should have been an anachronism a long time
ago. Unfortunately, there are still certain countries
and societies which practice racial discrimination,
despite the fact that their national Constitutions foriiid
it. It is our fervent; hope that the Convention
we have just approved will reaffirm the right of all
peoples, regardless of the colour of their skin.
133. I am happy to note that reservations have no
place in such a Convention. We trust that it will
not be too long before all the vestiges of racial
discrimination will have disappeared from the face
of this earth. The Convention has reaffirmed the
fact that the United Nations, in its totality, believes
that we all belong to the same human family.
134. Finally, it is indeed auspicioustha·· the Convention
has been adopted during the session which
has been presided over by a scholarly, gentle and
noble son of Italy-Italy, which has played !l historic
role in humanism, in art and in culture.
14 General Assembly - Twentieth Session - Plenary Meetings .
135. The PRESIDENT (translated .from French): I
call on the Secretary-General.
136. The SECRETARY-GENERAL: It is with great
pleasure that I welcome the adoption by the General
AssemblyJ at this tWEmtieth session, of the International
Convention on the Elimination of All Forms
of ~Gial Discriminatioln.
137. I am convinced that the Convention will constitute
a most valuable instrument by which the United
Nations may carry fOll'ward its efforts to eradicate
the vestiges of racial discrimination wherever they
may persist.throughout the world.
138. In the Charter, the peoples of the United Nations
proclaimed their determination to reaffirm faith in
fundamental human rights and in the dignity and worth
of the human person.. The Convention which the
General Assembly has just adopted represents a
significant step towards the achievement of that goal.
Not only does ,it call fOJr an end to racial discrimin~tion
in all its forms; it goes on to the next, and very
necessary, step of establishing the international
machinery which is essential to achieve that aim.
139. Since the Universal Declaration ofHuman Rights
was adopted and proclaimed on 10 December 1948,
the world has anxiously awaited the completion of
other parts of what was. then envisaged l:tS an Inter-national
Bill of Human Rights, consisting of the
Declaration, one or more international conventions,
and measures of implementation. That is why the
adoption of this Convention, with its measures of
implementation set out in part U, represents a
,most significant step towards the realization of one
of the Organization's long-term gO~Lls.
140. I a..'n most happy that this step has been taken
at this time, at the culmination of the observance
of the International Co-operation Year, and I am
gratified. that the Convention has been adopted by
so decisive a vote.
141. I note that the Secretary-General has been
assigned an important role in providing the Secretariat
and otherwise assisting the Committee on the Elimination
of Racial Discrimination which will be established
when the Convention comes into effect, and
the Conciliation Commission which will be appointed
as reqUired. For my part, I am pleased to say that
I accept these obligations.
142. The preparation of the Convention was a cooperative
effort in which many organs of the United
Nations participated, including the Sub-Commission
on Prevention of Discrimination and Protection of
Minorities, the Commission on Human Righis, and
the Economic and Social Council, and this General
Assembly. In particular, it was the great initiative
and drive displayed by the Third Committee which
gave the Convention its full form a..'1d substance.
I should like to commend them for this achievement,
which is in keeping with the high hopes and expecte.tions
of the peoples of the world.
143. It is now the duty of all of us to see to it that
the Convention comes into effect as soon as possible
and that its terms are carried out precisely and in
a spirit of mutual respect and understanding between
peoples and nations, in accordance with the great
humanitarian objectives of the Charter and the principles
laid do'.'.7.. in the Universal Declaration of
Human R~ghts.
144. The PRESIDENT (translated from French): I
thank the Secretary-General for his statement. Ten
days or so ago, in this same Assembly Hall, we
celebrated the anniversary of the Universal Declaration
of Human Rights. It is a great pleasure for me,
as your President, to say that there is no better
way of celebr..:-ting the anniversary of the Universal
Declaration than by the vote ,we have cast this morning
at the twentieth session.
The mef:ling rose at 1.40 p.m.
Litho in U,N.
Annex 739
Kitok v. Sweden, Communication No. 197/1985, CCPR/C/33/D/197/1985 (1988)

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G+;.``J4.'25.1``D.'4(3``Y5*)1


Annex 740
Lubicon Lake Band v. Canada, Communication No. 167/1984, U.N. Doc. Supp. No. 40
(A/45/40) (26 March 1990)

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<45E61G49R;:P77645@<@PAG53<4G4976:<H43b695E638@<75G4:6<=@7<M3934H5E61G49O35EO3A9A3=6
8G4GH68645GP5E<73525E7<PHE<P535;EP4534HG4957G@@34H567735<72/ZE6AG49;655A68645@7<@<;69
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5E61G49OG;@7<83;69340Bd>D3;:<4;3;5645O35E5E6@<;353<4<=5E61G49O35E76HG795<5E3;3;;P6
///J7/]PA5<4GA;<76:<88649695EG5?AV675G:<8@64;G565E61G49=<79G8GH6:GP;69V25E6
P476;573:569<3AG49HG;96M6A<@8645=<7OE3:E35EG;3;;P69A6G;6;OA5E345E61G49R;567735<72/K4
G99353<45<76A36M34HJ7/]PA5<4<=E3;76;@<4;3V3A352345E68G5567D5E6]6967GA^<M6748645D5<9G56D
EG;76=P;695<8GN6E3;93;:P;;3<4@G@67@PVA3:/Y
0>/0K435;76@A25<5E6F<8835566R;345673896:3;3<4D9G569STUP460B.CD5E6I5G56@G752=<7OG79695E656\5<=
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5E6F<88355665EG5<4.UG4PG720B.C5E6FG4G93G4^<M6748645EG98G96G46\H7G53G@G28645<=f0/c83AA3<4
5<5E61G495<:<M67A6HGAG49<5E6776AG569:<;5;/
0>/SK4G=P75E67;PV83;;3<4<=S>UG4PG720B.gD5E6I5G56@G752G7HP6;5EG5=<AA<O34H5E676[6:53<4<=5E61G49R;
G@@A3:G53<4=<7G4345673834[P4:53<4X
YZE61G49;E<PA95E64EGM65GN64;56@;O35EGAA9P6;@6695<;66N35;@678G464534[P4:53<4V6=<76
;66N34H345674G53<4GA76:<P7;6/ZE61G49GAA6H6;3435;;PV83;;3<4///5EG55E696AG2345E6A353HG53<4
O3AA:GP;6353776@G7GVA6EG78/K5;G:53<4=<7G@678G464534[P4:53<4O<PA9D3=;P::6;;=PAD
@678G4645A2@76M6455EG5EG78/Y
00/0K4;PV83;;3<4;9G569STG49Sc]6V7PG720B.gD5E6GP5E<793;:P;;69D34567GA3GD8G5567;<=;PV;5G4:6D;P:E
G;5E6]PA5<493;:P;;3<4@G@67DG49G7HP695EG5YFG4G9GEG;GVG49<469N6276:<88649G53<4;:<45G3469345E6
]PA5<493;:P;;3<4@G@67YDG495EG5YFG4G9G3;G5568@534H7657<G:53M6A25<;PV[6:55E61G495<GAGOOE3:E5E3;
F<8835566EG;E6A95<V634M3<AG53<4<=G753:A6Sg<=5E6K45674G53<4GAF<M64G45<4F3M3AG49h<A353:GAe3HE5;
G49OE3:EFG4G9GG86496934G::<79G4:6O35E5E6=34934H;<=5E3;F<8835566Y/
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96365B2<6E463465346H56G68=G2:=832:<?:F8532>=60V:5:34658532>=6?:F346Y:G6<8<3/
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        􀀀􀀀 !"#$ %    && '(""
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        􀀀􀀀 !"#$ %    && '(""
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C=.;9>01>831>.80/2059.8=235?<.4>1>324?0.3>2428953.8.;>30121@0DEF5C@=165=342>;0162116553.8.;>3289
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3.@=1062B56293452=53.8.;>3289<5=0.8241>501.165<2=1>50.<<.0>8J1657289>8165231>.80DE
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Annex 741
Intentionally Omitted

Annex 742
Intentionally Omitted

Annex 743
UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and
Linguistic Minorities, Article 2, Adopted by General Assembly resolution 47/135 of 18 December
1992

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Annex 744
U.N. Security Council Resolution 827, U.N. Doc. S/RES/827 (25 May 1993)

Annex 745
Human Rights Committee, General Comment 18, Non-discrimination (Thirty-Seventh Session,
1989), Compilation of General Comments and General Recommendations Adopted by Human
Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 26 (1994)

􀀀     
 

            

  
  
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Annex 746
Intentionally Omitted

Annex 747
International Criminal Tribunal for Rwanda, U.N. Doc. S/RES/955 (1994).

UNITED NATIONS S
Security Council
Distr.
GENERAL
S/RES/955 (1994)*
8 November 1994
RESOLUTION 955 (1994)
Adopted by the Security Council at its 3453rd meeting,
on 8 November 1994
The Security Council,
Reaffirming all its previous resolutions on the situation in Rwanda,
Having considered the reports of the Secretary-General pursuant to
paragraph 3 of resolution 935 (1994) of 1 July 1994 (S/1994/879 and S/1994/906),
and having taken note of the reports of the Special Rapporteur for Rwanda of the
United Nations Commission on Human Rights (S/1994/1157, annex I and annex II),
Expressing appreciation for the work of the Commission of Experts
established pursuant to resolution 935 (1994), in particular its preliminary
report on violations of international humanitarian law in Rwanda transmitted by
the Secretary-General’s letter of 1 October 1994 (S/1994/1125),
Expressing once again its grave concern at the reports indicating that
genocide and other systematic, widespread and flagrant violations of
international humanitarian law have been committed in Rwanda,
Determining that this situation continues to constitute a threat to
international peace and security,
Determined to put an end to such crimes and to take effective measures to
bring to justice the persons who are responsible for them,
Convinced that in the particular circumstances of Rwanda, the prosecution
of persons responsible for serious violations of international humanitarian law
would enable this aim to be achieved and would contribute to the process of
national reconciliation and to the restoration and maintenance of peace,
________________________
* Reissued for technical reasons.
95-14097 (E)
/...
S/RES/955 (1994)
Page 2
Believing that the establishment of an international tribunal for the
prosecution of persons responsible for genocide and the other above-mentioned
violations of international humanitarian law will contribute to ensuring that
such violations are halted and effectively redressed,
Stressing also the need for international cooperation to strengthen the
courts and judicial system of Rwanda, having regard in particular to the
necessity for those courts to deal with large numbers of suspects,
Considering that the Commission of Experts established pursuant to
resolution 935 (1994) should continue on an urgent basis the collection of
information relating to evidence of grave violations of international
humanitarian law committed in the territory of Rwanda and should submit its
final report to the Secretary-General by 30 November 1994,
Acting under Chapter VII of the Charter of the United Nations,
1. Decides hereby, having received the request of the Government of
Rwanda (S/1994/1115), to establish an international tribunal for the sole
purpose of prosecuting persons responsible for genocide and other serious
violations of international humanitarian law committed in the territory of
Rwanda and Rwandan citizens responsible for genocide and other such violations
committed in the territory of neighbouring States, between 1 January 1994 and
31 December 1994 and to this end to adopt the Statute of the International
Criminal Tribunal for Rwanda annexed hereto;
2. Decides that all States shall cooperate fully with the International
Tribunal and its organs in accordance with the present resolution and the
Statute of the International Tribunal and that consequently all States shall
take any measures necessary under their domestic law to implement the provisions
of the present resolution and the Statute, including the obligation of States to
comply with requests for assistance or orders issued by a Trial Chamber under
Article 28 of the Statute, and requests States to keep the Secretary-General
informed of such measures;
3. Considers that the Government of Rwanda should be notified prior to
the taking of decisions under articles 26 and 27 of the Statute;
4. Urges States and intergovernmental and non-governmental organizations
to contribute funds, equipment and services to the International Tribunal,
including the offer of expert personnel;
5. Requests the Secretary-General to implement this resolution urgently
and in particular to make practical arrangements for the effective functioning
of the International Tribunal, including recommendations to the Council as to
possible locations for the seat of the International Tribunal at the earliest
time and to report periodically to the Council;
6. Decides that the seat of the International Tribunal shall be
determined by the Council having regard to considerations of justice and
fairness as well as administrative efficiency, including access to witnesses,
and economy, and subject to the conclusion of appropriate arrangements between
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the United Nations and the State of the seat, acceptable to the Council, having
regard to the fact that the International Tribunal may meet away from its seat
when it considers it necessary for the efficient exercise of its functions; and
decides that an office will be established and proceedings will be conducted in
Rwanda, where feasible and appropriate, subject to the conclusion of similar
appropriate arrangements;
7. Decides to consider increasing the number of judges and Trial Chambers
of the International Tribunal if it becomes necessary;
8. Decides to remain actively seized of the matter.
Annex
Statute of the International Tribunal for Rwanda
Having been established by the Security Council acting under Chapter VII of
the Charter of the United Nations, the International Criminal Tribunal for the
Prosecution of Persons Responsible for Genocide and Other Serious Violations of
International Humanitarian Law Committed in the Territory of Rwanda and Rwandan
citizens responsible for genocide and other such violations committed in the
territory of neighbouring States, between 1 January 1994 and 31 December 1994
(hereinafter referred to as "the International Tribunal for Rwanda") shall
function in accordance with the provisions of the present Statute.
Article 1
Competence of the International Tribunal for Rwanda
The International Tribunal for Rwanda shall have the power to prosecute
persons responsible for serious violations of international humanitarian law
committed in the territory of Rwanda and Rwandan citizens responsible for such
violations committed in the territory of neighbouring States, between
1 January 1994 and 31 December 1994, in accordance with the provisions of the
present Statute.
Article 2
Genocide
1. The International Tribunal for Rwanda shall have the power to
prosecute persons committing genocide as defined in paragraph 2 of this article
or of committing any of the other acts enumerated in paragraph 3 of this
article.
2. Genocide means any of the following acts committed with intent to
destroy, in whole or in part, a national, ethnical, racial or religious group,
as such:
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(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;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
3. The following acts shall be punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.
Article 3
Crimes against humanity
The International Tribunal for Rwanda shall have the power to prosecute
persons responsible for the following crimes when committed as part of a
widespread or systematic attack against any civilian population on national,
political, ethnic, racial or religious grounds:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation;
(e) Imprisonment;
(f) Torture;
(g) Rape;
(h) Persecutions on political, racial and religious grounds;
(i) Other inhumane acts.
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Article 4
Violations of Article 3 common to the Geneva
Conventions and of Additional Protocol II
The International Tribunal for Rwanda shall have the power to prosecute
persons committing or ordering to be committed serious violations of
Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection
of War Victims, and of Additional Protocol II thereto of 8 June 1977. These
violations shall include, but shall not be limited to:
(a) Violence to life, health and physical or mental well-being of persons,
in particular murder as well as cruel treatment such as torture, mutilation or
any form of corporal punishment;
(b) Collective punishments;
(c) Taking of hostages;
(d) Acts of terrorism;
(e) Outrages upon personal dignity, in particular humiliating and
degrading treatment, rape, enforced prostitution and any form of indecent
assault;
(f) Pillage;
(g) The passing of sentences and the carrying out of executions without
previous judgement pronounced by a regularly constituted court, affording all
the judicial guarantees which are recognized as indispensable by civilized
peoples;
(h) Threats to commit any of the foregoing acts.
Article 5
Personal jurisdiction
The International Tribunal for Rwanda shall have jurisdiction over natural
persons pursuant to the provisions of the present Statute.
Article 6
Individual criminal responsibility
1. A person who planned, instigated, ordered, committed or otherwise
aided and abetted in the planning, preparation or execution of a crime referred
to in articles 2 to 4 of the present Statute, shall be individually responsible
for the crime.
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2. The official position of any accused person, whether as Head of State
or Government or as a responsible Government official, shall not relieve such
person of criminal responsibility nor mitigate punishment.
3. The fact that any of the acts referred to in articles 2 to 4 of the
present Statute was committed by a subordinate does not relieve his or her
superior of criminal responsibility if he or she knew or had reason to know that
the subordinate was about to commit such acts or had done so and the superior
failed to take the necessary and reasonable measures to prevent such acts or to
punish the perpetrators thereof.
4. The fact that an accused person acted pursuant to an order of a
Government or of a superior shall not relieve him or her of criminal
responsibility, but may be considered in mitigation of punishment if the
International Tribunal for Rwanda determines that justice so requires.
Article 7
Territorial and temporal jurisdiction
The territorial jurisdiction of the International Tribunal for Rwanda shall
extend to the territory of Rwanda including its land surface and airspace as
well as to the territory of neighbouring States in respect of serious violations
of international humanitarian law committed by Rwandan citizens. The temporal
jurisdiction of the International Tribunal for Rwanda shall extend to a period
beginning on 1 January 1994 and ending on 31 December 1994.
Article 8
Concurrent jurisdiction
1. The International Tribunal for Rwanda and national courts shall have
concurrent jurisdiction to prosecute persons for serious violations of
international humanitarian law committed in the territory of Rwanda and Rwandan
citizens for such violations committed in the territory of neighbouring States,
between 1 January 1994 and 31 December 1994.
2. The International Tribunal for Rwanda shall have primacy over the
national courts of all States. At any stage of the procedure, the International
Tribunal for Rwanda may formally request national courts to defer to its
competence in accordance with the present Statute and the Rules of Procedure and
Evidence of the International Tribunal for Rwanda.
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Article 9
Non bis in idem
1. No person shall be tried before a national court for acts constituting
serious violations of international humanitarian law under the present Statute,
for which he or she has already been tried by the International Tribunal for
Rwanda.
2. A person who has been tried by a national court for acts constituting
serious violations of international humanitarian law may be subsequently tried
by the International Tribunal for Rwanda only if:
(a) The act for which he or she was tried was characterized as an ordinary
crime; or
(b) The national court proceedings were not impartial or independent, were
designed to shield the accused from international criminal responsibility, or
the case was not diligently prosecuted.
3. In considering the penalty to be imposed on a person convicted of a
crime under the present Statute, the International Tribunal for Rwanda shall
take into account the extent to which any penalty imposed by a national court on
the same person for the same act has already been served.
Article 10
Organization of the International Tribunal for Rwanda
The International Tribunal for Rwanda shall consist of the following
organs:
(a) The Chambers, comprising two Trial Chambers and an Appeals Chamber;
(b) The Prosecutor; and
(c) A Registry.
Article 11
Composition of the Chambers
The Chambers shall be composed of eleven independent judges, no two of whom
may be nationals of the same State, who shall serve as follows:
(a) Three judges shall serve in each of the Trial Chambers;
(b) Five judges shall serve in the Appeals Chamber.
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Article 12
Qualification and election of judges
1. The judges shall be persons of high moral character, impartiality and
integrity who possess the qualifications required in their respective countries
for appointment to the highest judicial offices. In the overall composition of
the Chambers due account shall be taken of the experience of the judges in
criminal law, international law, including international humanitarian law and
human rights law.
2. The members of the Appeals Chamber of the International Tribunal for
the Prosecution of Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991
(hereinafter referred to as "the International Tribunal for the Former
Yugoslavia") shall also serve as the members of the Appeals Chamber of the
International Tribunal for Rwanda.
3. The judges of the Trial Chambers of the International Tribunal for
Rwanda shall be elected by the General Assembly from a list submitted by the
Security Council, in the following manner:
(a) The Secretary-General shall invite nominations for judges of the Trial
Chambers from States Members of the United Nations and non-member States
maintaining permanent observer missions at United Nations Headquarters;
(b) Within thirty days of the date of the invitation of the Secretary-
General, each State may nominate up to two candidates meeting the qualifications
set out in paragraph 1 above, no two of whom shall be of the same nationality
and neither of whom shall be of the same nationality as any judge on the Appeals
Chamber;
(c) The Secretary-General shall forward the nominations received to the
Security Council. From the nominations received the Security Council shall
establish a list of not less than twelve and not more than eighteen candidates,
taking due account of adequate representation on the International Tribunal for
Rwanda of the principal legal systems of the world;
(d) The President of the Security Council shall transmit the list of
candidates to the President of the General Assembly. From that list the General
Assembly shall elect the six judges of the Trial Chambers. The candidates who
receive an absolute majority of the votes of the States Members of the United
Nations and of the non-Member States maintaining permanent observer missions at
United Nations Headquarters, shall be declared elected. Should two candidates
of the same nationality obtain the required majority vote, the one who received
the higher number of votes shall be considered elected.
4. In the event of a vacancy in the Trial Chambers, after consultation
with the Presidents of the Security Council and of the General Assembly, the
Secretary-General shall appoint a person meeting the qualifications of
paragraph 1 above, for the remainder of the term of office concerned.
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5. The judges of the Trial Chambers shall be elected for a term of four
years. The terms and conditions of service shall be those of the judges of the
International Tribunal for the Former Yugoslavia. They shall be eligible for
re-election.
Article 13
Officers and members of the Chambers
1. The judges of the International Tribunal for Rwanda shall elect a
President.
2. After consultation with the judges of the International Tribunal for
Rwanda, the President shall assign the judges to the Trial Chambers. A judge
shall serve only in the Chamber to which he or she was assigned.
3. The judges of each Trial Chamber shall elect a Presiding Judge, who
shall conduct all of the proceedings of that Trial Chamber as a whole.
Article 14
Rules of procedure and evidence
The judges of the International Tribunal for Rwanda shall adopt, for the
purpose of proceedings before the International Tribunal for Rwanda, the rules
of procedure and evidence for the conduct of the pre-trial phase of the
proceedings, trials and appeals, the admission of evidence, the protection of
victims and witnesses and other appropriate matters of the International
Tribunal for the Former Yugoslavia with such changes as they deem necessary.
Article 15
The Prosecutor
1. The Prosecutor shall be responsible for the investigation and
prosecution of persons responsible for serious violations of international
humanitarian law committed in the territory of Rwanda and Rwandan citizens
responsible for such violations committed in the territory of neighbouring
States, between 1 January 1994 and 31 December 1994.
2. The Prosecutor shall act independently as a separate organ of the
International Tribunal for Rwanda. He or she shall not seek or receive
instructions from any Government or from any other source.
3. The Prosecutor of the International Tribunal for the Former Yugoslavia
shall also serve as the Prosecutor of the International Tribunal for Rwanda. He
or she shall have additional staff, including an additional Deputy Prosecutor,
to assist with prosecutions before the International Tribunal for Rwanda. Such
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staff shall be appointed by the Secretary-General on the recommendation of the
Prosecutor.
Article 16
The Registry
1. The Registry shall be responsible for the administration and servicing
of the International Tribunal for Rwanda.
2. The Registry shall consist of a Registrar and such other staff as may
be required.
3. The Registrar shall be appointed by the Secretary-General after
consultation with the President of the International Tribunal for Rwanda. He or
she shall serve for a four-year term and be eligible for reappointment. The
terms and conditions of service of the Registrar shall be those of an Assistant
Secretary-General of the United Nations.
4. The staff of the Registry shall be appointed by the Secretary-General
on the recommendation of the Registrar.
Article 17
Investigation and preparation of indictment
1. The Prosecutor shall initiate investigations ex-officio or on the
basis of information obtained from any source, particularly from Governments,
United Nations organs, intergovernmental and non-governmental organizations.
The Prosecutor shall assess the information received or obtained and decide
whether there is sufficient basis to proceed.
2. The Prosecutor shall have the power to question suspects, victims and
witnesses, to collect evidence and to conduct on-site investigations. In
carrying out these tasks, the Prosecutor may, as appropriate, seek the
assistance of the State authorities concerned.
3. If questioned, the suspect shall be entitled to be assisted by counsel
of his or her own choice, including the right to have legal assistance assigned
to the suspect without payment by him or her in any such case if he or she does
not have sufficient means to pay for it, as well as to necessary translation
into and from a language he or she speaks and understands.
4. Upon a determination that a prima facie case exists, the Prosecutor
shall prepare an indictment containing a concise statement of the facts and the
crime or crimes with which the accused is charged under the Statute. The
indictment shall be transmitted to a judge of the Trial Chamber.
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Article 18
Review of the indictment
1. The judge of the Trial Chamber to whom the indictment has been
transmitted shall review it. If satisfied that a prima facie case has been
established by the Prosecutor, he or she shall confirm the indictment. If not
so satisfied, the indictment shall be dismissed.
2. Upon confirmation of an indictment, the judge may, at the request of
the Prosecutor, issue such orders and warrants for the arrest, detention,
surrender or transfer of persons, and any other orders as may be required for
the conduct of the trial.
Article 19
Commencement and conduct of trial proceedings
1. The Trial Chambers shall ensure that a trial is fair and expeditious
and that proceedings are conducted in accordance with the rules of procedure and
evidence, with full respect for the rights of the accused and due regard for the
protection of victims and witnesses.
2. A person against whom an indictment has been confirmed shall, pursuant
to an order or an arrest warrant of the International Tribunal for Rwanda, be
taken into custody, immediately informed of the charges against him or her and
transferred to the International Tribunal for Rwanda.
3. The Trial Chamber shall read the indictment, satisfy itself that the
rights of the accused are respected, confirm that the accused understands the
indictment, and instruct the accused to enter a plea. The Trial Chamber shall
then set the date for trial.
4. The hearings shall be public unless the Trial Chamber decides to close
the proceedings in accordance with its rules of procedure and evidence.
Article 20
Rights of the accused
1. All persons shall be equal before the International Tribunal for
Rwanda.
2. In the determination of charges against him or her, the accused shall
be entitled to a fair and public hearing, subject to article 21 of the Statute.
3. The accused shall be presumed innocent until proved guilty according
to the provisions of the present Statute.
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4. In the determination of any charge against the accused pursuant to the
present Statute, the accused shall be entitled to the following minimum
guarantees, in full equality:
(a) To be informed promptly and in detail in a language which he or she
understands of the nature and cause of the charge against him or her;
(b) To have adequate time and facilities for the preparation of his or her
defence and to communicate with counsel of his or her own choosing;
(c) To be tried without undue delay;
(d) To be tried in his or her presence, and to defend himself or herself
in person or through legal assistance of his or her own choosing; to be
informed, if he or she does not have legal assistance, of this right; and to
have legal assistance assigned to him or her, in any case where the interests of
justice so require, and without payment by him or her in any such case if he or
she does not have sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him or her and to
obtain the attendance and examination of witnesses on his or her behalf under
the same conditions as witnesses against him or her;
(f) To have the free assistance of an interpreter if he or she cannot
understand or speak the language used in the International Tribunal for Rwanda;
(g) Not to be compelled to testify against himself or herself or to
confess guilt.
Article 21
Protection of victims and witnesses
The International Tribunal for Rwanda shall provide in its rules of
procedure and evidence for the protection of victims and witnesses. Such
protection measures shall include, but shall not be limited to, the conduct of
in camera proceedings and the protection of the victim’s identity.
Article 22
Judgement
1. The Trial Chambers shall pronounce judgements and impose sentences and
penalties on persons convicted of serious violations of international
humanitarian law.
2. The judgement shall be rendered by a majority of the judges of the
Trial Chamber, and shall be delivered by the Trial Chamber in public. It shall
be accompanied by a reasoned opinion in writing, to which separate or dissenting
opinions may be appended.
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Article 23
Penalties
1. The penalty imposed by the Trial Chamber shall be limited to
imprisonment. In determining the terms of imprisonment, the Trial Chambers
shall have recourse to the general practice regarding prison sentences in the
courts of Rwanda.
2. In imposing the sentences, the Trial Chambers should take into account
such factors as the gravity of the offence and the individual circumstances of
the convicted person.
3. In addition to imprisonment, the Trial Chambers may order the return
of any property and proceeds acquired by criminal conduct, including by means of
duress, to their rightful owners.
Article 24
Appellate proceedings
1. The Appeals Chamber shall hear appeals from persons convicted by the
Trial Chambers or from the Prosecutor on the following grounds:
(a) An error on a question of law invalidating the decision; or
(b) An error of fact which has occasioned a miscarriage of justice.
2. The Appeals Chamber may affirm, reverse or revise the decisions taken
by the Trial Chambers.
Article 25
Review proceedings
Where a new fact has been discovered which was not known at the time of the
proceedings before the Trial Chambers or the Appeals Chamber and which could
have been a decisive factor in reaching the decision, the convicted person or
the Prosecutor may submit to the International Tribunal for Rwanda an
application for review of the judgement.
Article 26
Enforcement of sentences
Imprisonment shall be served in Rwanda or any of the States on a list of
States which have indicated to the Security Council their willingness to accept
convicted persons, as designated by the International Tribunal for Rwanda. Such
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imprisonment shall be in accordance with the applicable law of the State
concerned, subject to the supervision of the International Tribunal for Rwanda.
Article 27
Pardon or commutation of sentences
If, pursuant to the applicable law of the State in which the convicted
person is imprisoned, he or she is eligible for pardon or commutation of
sentence, the State concerned shall notify the International Tribunal for Rwanda
accordingly. There shall only be pardon or commutation of sentence if the
President of the International Tribunal for Rwanda, in consultation with the
judges, so decides on the basis of the interests of justice and the general
principles of law.
Article 28
Cooperation and judicial assistance
1. States shall cooperate with the International Tribunal for Rwanda in
the investigation and prosecution of persons accused of committing serious
violations of international humanitarian law.
2. States shall comply without undue delay with any request for
assistance or an order issued by a Trial Chamber, including, but not limited to:
(a) The identification and location of persons;
(b) The taking of testimony and the production of evidence;
(c) The service of documents;
(d) The arrest or detention of persons;
(e) The surrender or the transfer of the accused to the International
Tribunal for Rwanda.
Article 29
The status, privileges and immunities of the
International Tribunal for Rwanda
1. The Convention on the Privileges and Immunities of the United Nations
of 13 February 1946 shall apply to the International Tribunal for Rwanda, the
judges, the Prosecutor and his or her staff, and the Registrar and his or her
staff.
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2. The judges, the Prosecutor and the Registrar shall enjoy the
privileges and immunities, exemptions and facilities accorded to diplomatic
envoys, in accordance with international law.
3. The staff of the Prosecutor and of the Registrar shall enjoy the
privileges and immunities accorded to officials of the United Nations under
articles V and VII of the Convention referred to in paragraph 1 of this article.
4. Other persons, including the accused, required at the seat or meeting
place of the International Tribunal for Rwanda shall be accorded such treatment
as is necessary for the proper functioning of the International Tribunal for
Rwanda.
Article 30
Expenses of the International Tribunal for Rwanda
The expenses of the International Tribunal for Rwanda shall be expenses of
the Organization in accordance with Article 17 of the Charter of the United
Nations.
Article 31
Working languages
The working languages of the International Tribunal shall be English and
French.
Article 32
Annual report
The President of the International Tribunal for Rwanda shall submit an
annual report of the International Tribunal for Rwanda to the Security Council
and to the General Assembly.
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Annex 748
OHCHR General Comment No. 23: The rights of minorities, Doc No. 08/04/94,
CCPR/C/21/Rev.1/Add.5 (1994)

CCPR General Comment No. 23: Article 27 (Rights of Minorities)
Adopted at the Fiftieth Session of the Human Rights Committee, on 8 April 1994
CCPR/C/21/Rev.1/Add.5, General Comment No. 23. (General Comments)
1. Article 27 of the Covenant provides that, in those States in which ethnic,
religious or linguistic minorities exist, persons belonging to these minorities shall not
be denied the right, in community with the other members of their group, to enjoy
their own culture, to profess and practise their own religion, or to use their own
language. The Committee observes that this article establishes and recognizes a right
which is conferred on individuals belonging to minority groups and which is distinct
from, and additional to, all the other rights which, as individuals in common with
everyone else, they are already entitled to enjoy under the Covenant.
2. In some communications submitted to the Committee under the Optional
Protocol, the right protected under article 27 has been confused with the right of
peoples to self-determination proclaimed in article 1 of the Covenant. Further, in
reports submitted by States parties under article 40 of the Covenant, the obligations
placed upon States parties under article 27 have sometimes been confused with their
duty under article 2.1 to ensure the enjoyment of the rights guaranteed under the
Covenant without discrimination and also with equality before the law and equal
protection of the law under article 26.
3.1. The Covenant draws a distinction between the right to self-determination and
the rights protected under article 27. The former is expressed to be a right belonging
to peoples and is dealt with in a separate part (Part I) of the Covenant.
Self-determination is not a right cognizable under the Optional Protocol. Article 27,
on the other hand, relates to rights conferred on individuals as such and is included,
like the articles relating to other personal rights conferred on individuals, in Part III of
the Covenant and is cognizable under the Optional Protocol.1
3.2. The enjoyment of the rights to which article 27 relates does not prejudice the
sovereignty and territorial integrity of a State party. At the same time, one or other
aspect of the rights of individuals protected under that article - for example, to enjoy a
particular culture - may consist in a way of life which is closely associated with
territory and use of its resources.2 This may particularly be true of members of
indigenous communities constituting a minority.
1 See Official Records of the General Assembly, Thirty-ninth Session, Supplement No. 40 (A/39/40),
annex VI, general comment No. 12 (21) (art. 1), also issued in document CCPR/C/21/Rev.1; ibid.,
Forty-fifth Session, Supplement No. 40, (A/45/40, vol. II, annex IX, section A, Communication No.
167/1984 (Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada), views adopted on 26
March 1990.
2 See ibid., Forty-third Session, Supplement No. 40 (A/43/40), annex VII, section G, Communication
No. 197/1985 (Kitok v. Sweden), views adopted on 27 July 1988.
4. The Covenant also distinguishes the rights protected under article 27 from the
guarantees under articles 2.1 and 26. The entitlement, under article 2.1, to enjoy the
rights under the Covenant without discrimination applies to all individuals within the
territory or under the jurisdiction of the State whether or not those persons belong to a
minority. In addition, there is a distinct right provided under article 26 for equality
before the law, equal protection of the law, and non-discrimination in respect of rights
granted and obligations imposed by the States. It governs the exercise of all rights,
whether protected under the Covenant or not, which the State party confers by law on
individuals within its territory or under its jurisdiction, irrespective of whether they
belong to the minorities specified in article 27 or not.3 Some States parties who claim
that they do not discriminate on grounds of ethnicity, language or religion, wrongly
contend, on that basis alone, that they have no minorities.
5.1. The terms used in article 27 indicate that the persons designed to be protected
are those who belong to a group and who share in common a culture, a religion and/or
a language. Those terms also indicate that the individuals designed to be protected
need not be citizens of the State party. In this regard, the obligations deriving from
article 2.1 are also relevant, since a State party is required under that article to ensure
that the rights protected under the Covenant are available to all individuals within its
territory and subject to its jurisdiction, except rights which are expressly made to
apply to citizens, for example, political rights under article 25. A State party may not,
therefore, restrict the rights under article 27 to its citizens alone.
5.2. Article 27 confers rights on persons belonging to minorities which “exist” in a
State party. Given the nature and scope of the rights envisaged under that article, it is
not relevant to determine the degree of permanence that the term “exist” connotes.
Those rights simply are that individuals belonging to those minorities should not be
denied the right, in community with members of their group, to enjoy their own
culture, to practise their religion and speak their language. Just as they need not be
nationals or citizens, they need not be permanent residents. Thus, migrant workers or
even visitors in a State party constituting such minorities are entitled not to be denied
the exercise of those rights. As any other individual in the territory of the State party,
they would, also for this purpose, have the general rights, for example, to freedom of
association, of assembly, and of expression. The existence of an ethnic, religious or
linguistic minority in a given State party does not depend upon a decision by that
State party but requires to be established by objective criteria.
5.3. The right of individuals belonging to a linguistic minority to use their
language among themselves, in private or in public, is distinct from other language
rights protected under the Covenant. In particular, it should be distinguished from the
general right to freedom of expression protected under article 19. The latter right is
available to all persons, irrespective of whether they belong to minorities or not.
3 See ibid., Forty-second Session, Supplement No. 40 (A/42/40), annex VIII, section D,
Communication No. 182/1984 (F.H. Zwaan-de Vries v. the Netherlands), views adopted on 9 April
1987; ibid., section C, Communication No. 180/1984 (L.G. Danning v. the Netherlands), views adopted
on 9 April 1987.
Further, the right protected under article 27 should be distinguished from the
particular right which article 14.3 (f) of the Covenant confers on accused persons to
interpretation where they cannot understand or speak the language used in the courts.
Article 14.3 (f) does not, in any other circumstances, confer on accused persons the
right to use or speak the language of their choice in court proceedings.4
6.1. Although article 27 is expressed in negative terms, that article, nevertheless,
does recognize the existence of a “right” and requires that it shall not be denied.
Consequently, a State party is under an obligation to ensure that the existence and the
exercise of this right are protected against their denial or violation. Positive measures
of protection are, therefore, required not only against the acts of the State party itself,
whether through its legislative, judicial or administrative authorities, but also against
the acts of other persons within the State party.
6.2. Although the rights protected under article 27 are individual rights, they
depend in turn on the ability of the minority group to maintain its culture, language or
religion. Accordingly, positive measures by States may also be necessary to protect
the identity of a minority and the rights of its members to enjoy and develop their
culture and language and to practise their religion, in community with the other
members of the group. In this connection, it has to be observed that such positive
measures must respect the provisions of articles 2.1 and 26 of the Covenant both as
regards the treatment between different minorities and the treatment between the
persons belonging to them and the remaining part of the population. However, as
long as those measures are aimed at correcting conditions which prevent or impair the
enjoyment of the rights guaranteed under article 27, they may constitute a legitimate
differentiation under the Covenant, provided that they are based on reasonable and
objective criteria.
7. With regard to the exercise of the cultural rights protected under article 27, the
Committee observes that culture manifests itself in many forms, including a particular
way of life associated with the use of land resources, especially in the case of
indigenous peoples. That right may include such traditional activities as fishing or
hunting and the right to live in reserves protected by law.5 The enjoyment of those
rights may require positive legal measures of protection and measures to ensure the
effective participation of members of minority communities in decisions which affect
them.
8. The Committee observes that none of the rights protected under article 27 of
the Covenant may be legitimately exercised in a manner or to an extent inconsistent
with the other provisions of the Covenant.
4 See ibid., Forty-fifth Session, Supplement No. 40, (A/45/40), volume II, annex X, section A,
Communication No. 220/1987 (T.K. v. France), decision of 8 November 1989; ibid., section B,
Communication No. 222/1987 (M.K. v. France), decision of 8 November 1989.
5 See notes 1 and 2 above, Communication No. 167/1984 (Bernard Ominayak, Chief of the Lubicon
Lake Band v. Canada), views adopted on 26 March 1990, and Communication No. 197/1985 (Kitok v.
Sweden), views adopted on 27 July 1988.
9. The Committee concludes that article 27 relates to rights whose protection
imposes specific obligations on States parties. The protection of these rights is
directed towards ensuring the survival and continued development of the cultural,
religious and social identity of the minorities concerned, thus enriching the fabric of
society as a whole. Accordingly, the Committee observes that these rights must be
protected as such and should not be confused with other personal rights conferred on
one and all under the Covenant. States parties, therefore, have an obligation to ensure
that the exercise of these rights is fully protected and they should indicate in their
reports the measures they have adopted to this end.
Annex 749
Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 (17 July 1998)

Text of the Rome Statute circulated as
document A/CONF.183/9 of 17 July 1998
and corrected by process-verbaux of 10
November 1998, 12 July 1999, 30 November
1999, 8 May 2000, 17 January 2001 and 16
January 2002. The Statute entered into force
on 1 July 2002.
Rome Statute
of the International
Criminal Court
Rome Statute of the International Criminal Court
Table of Contents*
Preamble 1
Part I Establishment of the Court 2
Article 1 The Court 2
Article 2 Relationship of the Court with the United Nations 2
Article 3 Seat of the Court 2
Article 4 Legal status and powers of the Court 2
Part II Jurisdiction, admissibility and applicable law 3
Article 5 Crimes within the jurisdiction of the Court 3
Article 6 Genocide 3
Article 7 Crimes against humanity 3
Article 8 War Crimes 5
Article 9 Elements of Crimes 10
Article 10 10
Article 11 Jurisdiction ratione temporis 10
Article 12 Preconditions to the exercise of jurisdiction 11
Article 13 Exercise of jurisdiction 11
Article 14 Referral of a situation by a State Party 11
Article 15 Prosecutor 12
Article 16 Deferral of investigation or prosecution 12
Article 17 Issues of admissibility 12
Article 18 Preliminary rulings regarding admissibility 13
Article 19 Challenges to the jurisdiction of the Court or the admissibility of a case 14
Article 20 Ne bis in idem 16
Article 21 Applicable law 16
Part III General principles of criminal law 17
Article 22 Nullum crimen sine lege 17
Article 23 Nulla poena sine lege 17
Article 24 Non-retroactivity ratione personae 17
Article 25 Individual criminal responsibility 17
Article 26 Exclusion of jurisdiction over persons under eighteen 18
Article 27 Irrelevance of official capacity 18
Article 28 Responsibility of commanders and other superiors 19
Article 29 Non-applicability of statute of limitations 19
Article 30 Mental element 19
Article 31 Grounds for excluding criminal responsibility 20
Article 32 Mistake of fact or mistake of law 21
Article 33 Superior orders and prescription of law 21
Rome Statute of the International Criminal Court
* This Table of Contents is not part of the text of the Rome Statute adopted by the United Nations Diplomatic
Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 12 July 1998.
It has been included in this publication for ease of reference.
Rome Statute of the International Criminal Court
Part IV Composition and administration of the Court 22
Article 34 Organs of the Court 22
Article 35 Service of judges 22
Article 36 Qualifications, nomination and election of judges 22
Article 37 Judicial vacancies 25
Article 38 The Presidency 25
Article 39 Chambers 26
Article 40 Independence of judges 27
Article 41 Excusing and disqualification of judges 27
Article 42 The Office of the Prosecutor 27
Article 43 The Registry 28
Article 44 Staff 29
Article 45 Solemn undertaking 29
Article 46 Removal from office 30
Article 47 Disciplinary measures 30
Article 48 Privileges and immunities 30
Article 49 Salaries, allowances and expenses 31
Article 50 Official and working languages 31
Article 51 Rules of Procedure and Evidence 32
Article 52 Regulations of the Court 32
Part V Investigation and prosecution 33
Article 53 Initiation of an investigation 33
Article 54 Duties and powers of the Prosecutor with respect to investigations 34
Article 55 Rights of persons during an investigation 35
Article 56 Role of the Pre-Trial Chamber in relation to a unique investigative
opportunity 35
Article 57 Functions and powers of the Pre-Trial Chamber 37
Article 58 Issuance by the Pre-Trial Chamber of a warrant of arrest or a summons
to appear 38
Article 59 Arrest proceedings in the custodial State 39
Article 60 Initial proceedings before the Court 40
Article 61 Confirmation of the charges before trial 40
Part VI The trial 43
Article 62 Place of trial 43
Article 63 Trial in the presence of the accused 43
Article 64 Functions and powers of the Trial Chamber 43
Article 65 Proceedings on an admission of guilt 45
Article 66 Presumption of innocence 46
Article 67 Rights of the accused 46
Article 68 Protection of the victims and witnesses and their participation in the
proceedings 47
Article 69 Evidence 48
Article 70 Offences against the administration of justice 48
Article 71 Sanctions for misconduct before the Court 49
Article 72 Protection of national security information 50
Article 73 Third-party information or documents 51
Rome Statute of the International Criminal Court
Article 74 Requirements for the decision 52
Article 75 Reparations to victims 52
Article 76 Sentencing 53
Part VII Penalties 54
Article 77 Applicable penalties 54
Article 78 Determination of the sentence 54
Article 79 Trust Fund 54
Article 80 Non-prejudice to national application of penalties and national laws 55
Part VIII Appeal and revision 56
Article 81 Appeal against decision of acquittal or conviction or against sentence 56
Article 82 Appeal against other decisions 57
Article 83 Proceedings on appeal 57
Article 84 Revision of conviction or sentence 58
Article 85 Compensation to an arrested or convicted person 59
Part IX International cooperation and judicial assistance 60
Article 86 General obligation to cooperate 60
Article 87 Requests for cooperation: general provisions 60
Article 88 Availability of procedures under national law 61
Article 89 Surrender of persons to the Court 61
Article 90 Competing requests 62
Article 91 Contents of request for arrest and surrender 63
Article 92 Provisional arrest 64
Article 93 Other forms of cooperation 65
Article 94 Postponement of execution of a request in respect of ongoing
investigation or prosecution 68
Article 95 Postponement of execution of a request in respect of an admissibility
challenge 68
Article 96 Contents of request for other forms of assistance under article 93 68
Article 97 Consultations 69
Article 98 Cooperation with respect to waiver of immunity and consent to
surrender 69
Article 99 Execution of request under articles 93 and 96 69
Article 100 Costs 70
Article 101 Rule of speciality 71
Article 102 Use of terms 71
Part X Enforcement 72
Article 103 Role of States in enforcement of sentences of imprisonment 72
Article 104 Change in designation of State of enforcement 73
Article 105 Enforcement of the sentence 73
Article 106 Supervision of enforcement of sentences and conditions of imprisonment 73
Article 107 Transfer of the person upon completion of sentence 73
Rome Statute of the International Criminal Court
Article 108 Limitation on the prosecution or punishment of other offences 74
Article 109 Enforcement of fines and forfeiture measures 74
Article 110 Review by the Court concerning reduction of sentence 74
Article 111 Escape 75
Part XI Assembly of States Parties 76
Article 112 Assembly of States Parties 76
Part XII Financing 78
Article 113 Financial Regulations 78
Article 114 Payment of expenses 78
Article 115 Funds of the Court and of the Assembly of States Parties 78
Article 116 Voluntary contributions 78
Article 117 Assessment of contributions 78
Article 118 Annual audit 78
Part XIII Final clauses 79
Article 119 Settlement of disputes 79
Article 120 Reservations 79
Article 121 Amendments 79
Article 122 Amendments to provisions of an institutional nature 80
Article 123 Review of the Statute 80
Article 124 Transitional Provision 81
Article 125 Signature, ratification, acceptance, approval or accession 81
Article 126 Entry into force. 81
Article 127 Withdrawal 81
Article 128 Authentic texts 82
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Rome Statute of the International Criminal Court
Preamble
The States Parties to this Statute,
Conscious that all peoples are united by common bonds, their cultures pieced
together in a shared heritage, and concerned that this delicate mosaic may be
shattered at any time,
Mindful that during this century millions of children, women and men have been
victims of unimaginable atrocities that deeply shock the conscience of humanity,
Recognizing that such grave crimes threaten the peace, security and well-being of
the world,
Affirming that the most serious crimes of concern to the international community
as a whole must not go unpunished and that their effective prosecution must be
ensured by taking measures at the national level and
by enhancing international cooperation,
Determined to put an end to impunity for the perpetrators of these crimes and
thus to contribute to the prevention of such crimes,
Recalling that it is the duty of every State to exercise its criminal jurisdiction over
those responsible for international crimes,
Reaffirming the Purposes and Principles of the Charter of the United Nations,
and in particular that all States shall refrain from the threat or use of force against
the territorial integrity or political independence of any State, or in any other
manner inconsistent with the Purposes of the United Nations,
Emphasizing in this connection that nothing in this Statute shall be taken as
authorizing any State Party to intervene in an armed conflict or in the internal
affairs of any State,
Determined to these ends and for the sake of present and future generations, to
establish an independent permanent International Criminal Court in relationship
with the United Nations system, with jurisdiction over the most serious crimes of
concern to the international community as a whole,
Emphasizing that the International Criminal Court established under this Statute
shall be complementary to national criminal jurisdictions,
Resolved to guarantee lasting respect for and the enforcement of international
justice,
Have agreed as follows:
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Rome Statute of the International Criminal Court
Part I Establishment of the Court
Article 1
The Court
An International Criminal Court (‘the Court’) is hereby established. It shall be a permanent
institution and shall have the power to exercise its jurisdiction over persons for the most
serious crimes of international concern, as referred to in this Statute, and shall be
complementary to national criminal jurisdictions. The jurisdiction and functioning of the
Court shall be governed by the provisions of this Statute.
Article 2
Relationship of the Court with the United Nations
The Court shall be brought into relationship with the United Nations through an agreement to
be approved by the Assembly of States Parties to this Statute and thereafter concluded by the
President of the Court on its behalf.
Article 3
Seat of the Court
1. The seat of the Court shall be established at The Hague in the Netherlands (‘the
host State’).
2. The Court shall enter into a headquarters agreement with the host State, to be
approved by the Assembly of States Parties and thereafter concluded by the
President of the Court on its behalf.
3. The Court may sit elsewhere, whenever it considers it desirable, as provided in this
Statute.
Article 4
Legal status and powers of the Court
1. The Court shall have international legal personality. It shall also have such legal
capacity as may be necessary for the exercise of its functions and the fulfilment of
its purposes.
2. The Court may exercise its functions and powers, as provided in this Statute, on
the territory of any State Party and, by special agreement, on the territory of any
other State.
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Rome Statute of the International Criminal Court
Part II Jurisdiction, admissibility and applicable law
Article 5
Crimes within the jurisdiction of the Court
1. The jurisdiction of the Court shall be limited to the most serious crimes of concern
to the international community as a whole. The Court has jurisdiction in
accordance with this Statute with respect to the following crimes:
(a) The crime of genocide;
(b) Crimes against humanity;
(c) War crimes;
(d) The crime of aggression.
2. The Court shall exercise jurisdiction over the crime of aggression once a provision
is adopted in accordance with articles 121 and 123 defining the crime and setting
out the conditions under which the Court shall exercise jurisdiction with respect to
this crime. Such a provision shall be consistent with the relevant provisions of the
Charter of the United Nations.
Article 6
Genocide
For the purpose of this Statute, ‘genocide’ means any of the following acts
committed with intent to destroy, in whole or in part, a national, ethnical, racial or
religious group, as such:
(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;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Article 7
Crimes against humanity
1. For the purpose of this Statute, ‘crime against humanity’ means any of the
following acts when committed as part of a widespread or systematic attack
directed against any civilian population, with knowledge of the attack:
(a) Murder;
(b) Extermination;
4
Rome Statute of the International Criminal Court
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of
fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political,
racial, national, ethnic, cultural, religious, gender as defined in paragraph
3, or other grounds that are universally recognized as impermissible under
international law, in connection with any act referred to in this paragraph
or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great
suffering, or serious injury to body or to mental or physical health.
2. For the purpose of paragraph 1:
(a) ‘Attack directed against any civilian population’ means a course of conduct
involving the multiple commission of acts referred to in paragraph 1
against any civilian population, pursuant to or in furtherance of a State or
organizational policy to commit such attack;
(b) ‘Extermination’ includes the intentional infliction of conditions of life,
inter alia the deprivation of access to food and medicine, calculated to
bring about the destruction of part of a population;
(c) ‘Enslavement’ means the exercise of any or all of the powers attaching to
the right of ownership over a person and includes the exercise of such
power in the course of trafficking in persons, in particular women and
children;
(d) ‘Deportation or forcible transfer of population’ means forced displacement
of the persons concerned by expulsion or other coercive acts from the area
in which they are lawfully present, without grounds permitted under
international law;
(e) ‘Torture’ means the intentional infliction of severe pain or suffering,
whether physical or mental, upon a person in the custody or under the
control of the accused; except that torture shall not include pain or
suffering arising only from, inherent in or incidental to, lawful sanctions;
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Rome Statute of the International Criminal Court
(f) ‘Forced pregnancy’ means the unlawful confinement of a woman forcibly
made pregnant, with the intent of affecting the ethnic composition of any
population or carrying out other grave violations of international law. This
definition shall not in any way be interpreted as affecting national laws
relating to pregnancy;
(g) ‘Persecution’ means the intentional and severe deprivation of fundamental
rights contrary to international law by reason of the identity of the group
or collectivity;
(h) ‘The crime of apartheid’ means inhumane acts of a character similar to
those referred to in paragraph 1, committed in the context of an
institutionalized regime of systematic oppression and domination by one
racial group over any other racial group or groups and committed with the
intention of maintaining that regime;
(i) ‘Enforced disappearance of persons’ means the arrest, detention or
abduction of persons by, or with the authorization, support or
acquiescence of, a State or a political organization, followed by a refusal to
acknowledge that deprivation of freedom or to give information on the
fate or whereabouts of those persons, with the intention of removing them
from the protection of the law for a prolonged period of time.
3. For the purpose of this Statute, it is understood that the term ‘gender’ refers to the
two sexes, male and female, within the context of society. The term ‘gender’ does
not indicate any meaning different from the above.
Article 8
War crimes
1. The Court shall have jurisdiction in respect of war crimes in particular when
committed as part of a plan or policy or as part of a large-scale commission of such
crimes.
2. For the purpose of this Statute, ‘war crimes’ means:
(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely,
any of the following acts against persons or property protected under the
provisions of the relevant Geneva Convention:
(i) Wilful killing;
(ii) Torture or inhuman treatment, including biological experiments;
(iii) Wilfully causing great suffering, or serious injury to body or health;
(iv) Extensive destruction and appropriation of property, not justified by
military necessity and carried out unlawfully and wantonly;
(v) Compelling a prisoner of war or other protected person to serve in
the forces of a hostile Power;
6
Rome Statute of the International Criminal Court
(vi) Wilfully depriving a prisoner of war or other protected person of the
rights of fair and regular trial;
(vii) Unlawful deportation or transfer or unlawful confinement;
(viii) Taking of hostages.
(b) Other serious violations of the laws and customs applicable in
international armed conflict, within the established framework of
international law, namely, any of the following acts:
(i) Intentionally directing attacks against the civilian population as
such or against individual civilians not taking direct part in
hostilities;
(ii) Intentionally directing attacks against civilian objects, that is,
objects which are not military objectives;
(iii) Intentionally directing attacks against personnel, installations,
material, units or vehicles involved in a humanitarian assistance
or peacekeeping mission in accordance with the Charter of the
United Nations, as long as they are entitled to the protection
given to civilians or civilian objects under the international law
of armed conflict;
(iv) Intentionally launching an attack in the knowledge that such
attack will cause incidental loss of life or injury to civilians or
damage to civilian objects or widespread, long-term and severe
damage to the natural environment which would be clearly
excessive in relation to the concrete and direct overall military
advantage anticipated;
(v) Attacking or bombarding, by whatever means, towns, villages,
dwellings or buildings which are undefended and which are not
military objectives;
(vi) Killing or wounding a combatant who, having laid down his arms or
having no longer means of defence, has surrendered at discretion;
(vii) Making improper use of a flag of truce, of the flag or of the
military insignia and uniform of the enemy or of the United
Nations, as well as of the distinctive emblems of the Geneva
Conventions, resulting in death or serious personal injury;
(viii) The transfer, directly or indirectly, by the Occupying Power of parts
of its own civilian population into the territory it occupies, or the
deportation or transfer of all or parts of the population of the
occupied territory within or outside this territory;
(ix) Intentionally directing attacks against buildings dedicated to
religion, education, art, science or charitable purposes, historic
monuments, hospitals and places where the sick and wounded
are collected, provided they are not military objectives;
7
Rome Statute of the International Criminal Court
(x) Subjecting persons who are in the power of an adverse party to
physical mutilation or to medical or scientific experiments of any
kind which are neither justified by the medical, dental or
hospital treatment of the person concerned nor carried out in his or
her interest, and which cause death to or seriously endanger the
health of such person or persons;
(xi) Killing or wounding treacherously individuals belonging to the
hostile nation or army;
(xii) Declaring that no quarter will be given;
(xiii) Destroying or seizing the enemy's property unless such destruction
or seizure be imperatively demanded by the necessities of war;
(xiv) Declaring abolished, suspended or inadmissible in a court of law the
rights and actions of the nationals of the hostile party;
(xv) Compelling the nationals of the hostile party to take part in the
operations of war directed against their own country, even if they
were in the belligerent's service before the commencement of the
war;
(xvi) Pillaging a town or place, even when taken by assault;
(xvii) Employing poison or poisoned weapons;
(xviii) Employing asphyxiating, poisonous or other gases, and all
analogous liquids, materials or devices;
(xix) Employing bullets which expand or flatten easily in the human body,
such as bullets with a hard envelope which does not entirely cover
the core or is pierced with incisions;
(xx) Employing weapons, projectiles and material and methods of
warfare which are of a nature to cause superfluous injury or
unnecessary suffering or which are inherently indiscriminate in
violation of the international law of armed conflict, provided
that such weapons, projectiles and material and methods of
warfare are the subject of a comprehensive prohibition and are
included in an annex to this Statute, by an amendment in
accordance with the relevant provisions set forth in articles 121
and 123;
(xxi) Committing outrages upon personal dignity, in particular
humiliating and degrading treatment;
(xxii) Committing rape, sexual slavery, enforced prostitution, forced
pregnancy, as defined in article 7, paragraph 2 (f), enforced
sterilization, or any other form of sexual violence also constituting a
grave breach of the Geneva Conventions;
8
Rome Statute of the International Criminal Court
(xxiii) Utilizing the presence of a civilian or other protected person to
render certain points, areas or military forces immune from military
operations;
(xxiv) Intentionally directing attacks against buildings, material, medical
units and transport, and personnel using the distinctive emblems of
the Geneva Conventions in conformity with international law;
(xxv) Intentionally using starvation of civilians as a method of warfare
by depriving them of objects indispensable to their survival,
including wilfully impeding relief supplies as provided for under the
Geneva Conventions;
(xxvi) Conscripting or enlisting children under the age of fifteen years into
the national armed forces or using them to participate actively in
hostilities.
(c) In the case of an armed conflict not of an international character, serious
violations of article 3 common to the four Geneva Conventions of 12
August 1949, namely, any of the following acts committed against persons
taking no active part in the hostilities, including members of armed forces
who have laid down their arms and those placed hors de combat by
sickness, wounds, detention or any other cause:
(i) Violence to life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture;
(ii) Committing outrages upon personal dignity, in particular
humiliating and degrading treatment;
(iii) Taking of hostages;
(iv) The passing of sentences and the carrying out of executions
without previous judgement pronounced by a regularly constituted
court, affording all judicial guarantees which are generally
recognized as indispensable.
(d) Paragraph 2 (c) applies to armed conflicts not of an international character
and thus does not apply to situations of internal disturbances and
tensions, such as riots, isolated and sporadic acts of violence or other acts
of a similar nature.
(e) Other serious violations of the laws and customs applicable in armed
conflicts not of an international character, within the established
framework of international law, namely, any of the following acts:
(i) Intentionally directing attacks against the civilian population as
such or against individual civilians not taking direct part in
hostilities;
9
Rome Statute of the International Criminal Court
(ii) Intentionally directing attacks against buildings, material, medical
units and transport, and personnel using the distinctive emblems of
the Geneva Conventions in conformity with international law;
(iii) Intentionally directing attacks against personnel, installations,
material, units or vehicles involved in a humanitarian assistance or
peacekeeping mission in accordance with the Charter of the United
Nations, as long as they are entitled to the protection given to
civilians or civilian objects under the international law of armed
conflict;
(iv) Intentionally directing attacks against buildings dedicated to
religion, education, art, science or charitable purposes, historic
monuments, hospitals and places where the sick and wounded
are collected, provided they are not military objectives;
(v) Pillaging a town or place, even when taken by assault;
(vi) Committing rape, sexual slavery, enforced prostitution, forced
pregnancy, as defined in article 7, paragraph 2 (f), enforced
sterilization, and any other form of sexual violence also constituting
a serious violation of article 3 common to the four Geneva
Conventions;
(vii) Conscripting or enlisting children under the age of fifteen years into
armed forces or groups or using them to participate actively in
hostilities;
(viii) Ordering the displacement of the civilian population for reasons
related to the conflict, unless the security of the civilians involved or
imperative military reasons so demand;
(ix) Killing or wounding treacherously a combatant adversary;
(x) Declaring that no quarter will be given;
(xi) Subjecting persons who are in the power of another party to the
conflict to physical mutilation or to medical or scientific experiments
of any kind which are neither justified by the medical, dental or
hospital treatment of the person concerned nor carried out in his or
her interest, and which cause death to or seriously endanger the
health of such person or persons;
(xii) Destroying or seizing the property of an adversary unless such
destruction or seizure be imperatively demanded by the necessities
of the conflict;
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Rome Statute of the International Criminal Court
(f) Paragraph 2 (e) applies to armed conflicts not of an international
character and thus does not apply to situations of internal disturbances
and tensions, such as riots, isolated and sporadic acts of violence or other
acts of a similar nature. It applies to armed conflicts that take place in the
territory of a State when there is protracted armed conflict between
governmental authorities and organized armed groups or between such
groups.
3. Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government
to maintain or re-establish law and order in the State or to defend the unity and
territorial integrity of the State, by all legitimate means.
Article 9
Elements of Crimes
1. Elements of Crimes shall assist the Court in the interpretation and application of
articles 6, 7 and 8. They shall be adopted by a two-thirds majority of the members
of the Assembly of States Parties.
2. Amendments to the Elements of Crimes may be proposed by:
(a) Any State Party;
(b) The judges acting by an absolute majority;
(c) The Prosecutor.
Such amendments shall be adopted by a two-thirds majority of the members of
the Assembly of States Parties.
3. The Elements of Crimes and amendments thereto shall be consistent with this
Statute.
Article 10
Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or
developing rules of international law for purposes other than this Statute.
Article 11
Jurisdiction ratione temporis
1. The Court has jurisdiction only with respect to crimes committed after the entry
into force of this Statute.
2. If a State becomes a Party to this Statute after its entry into force, the Court may
exercise its jurisdiction only with respect to crimes committed after the entry into
force of this Statute for that State, unless that State has made a declaration under
article 12, paragraph 3.
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Rome Statute of the International Criminal Court
Article 12
Preconditions to the exercise of jurisdiction
1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of
the Court with respect to the crimes referred to in article 5.
2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction
if one or more of the following States are Parties to this Statute or have accepted
the jurisdiction of the Court in accordance with paragraph 3:
(a) The State on the territory of which the conduct in question occurred or, if
the crime was committed on board a vessel or aircraft, the State of
registration of that vessel or aircraft;
(b) The State of which the person accused of the crime is a national.
3. If the acceptance of a State which is not a Party to this Statute is required under
paragraph 2, that State may, by declaration lodged with the Registrar, accept the
exercise of jurisdiction by the Court with respect to the crime in question. The
accepting State shall cooperate with the Court without any delay or exception in
accordance with Part 9.
Article 13
Exercise of jurisdiction
The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in
accordance with the provisions of this Statute if:
(a) A situation in which one or more of such crimes appears to have been
committed is referred to the Prosecutor by a State Party in accordance with
article 14;
(b) A situation in which one or more of such crimes appears to have been
committed is referred to the Prosecutor by the Security Council acting
under Chapter VII of the Charter of the United Nations; or
(c) The Prosecutor has initiated an investigation in respect of such a crime in
accordance with article 15.
Article 14
Referral of a situation by a State Party
1. A State Party may refer to the Prosecutor a situation in which one or more crimes
within the jurisdiction of the Court appear to have been committed requesting the
Prosecutor to investigate the situation for the purpose of determining whether one
or more specific persons should be charged with the commission of such crimes.
2. As far as possible, a referral shall specify the relevant circumstances and be
accompanied by such supporting documentation as is available to the State
referring the situation.
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Rome Statute of the International Criminal Court
Article 15
Prosecutor
1. The Prosecutor may initiate investigations proprio motu on the basis of
information on crimes within the jurisdiction of the Court.
2. The Prosecutor shall analyse the seriousness of the information received. For this
purpose, he or she may seek additional information from States, organs of the
United Nations, intergovernmental or non-governmental organizations, or other
reliable sources that he or she deems appropriate, and may receive written or oral
testimony at the seat of the Court.
3. If the Prosecutor concludes that there is a reasonable basis to proceed with an
investigation, he or she shall submit to the Pre-Trial Chamber a request for
authorization of an investigation, together with any supporting material collected.
Victims may make representations to the Pre-Trial Chamber, in accordance with
the Rules of Procedure and Evidence.
4. If the Pre-Trial Chamber, upon examination of the request and the supporting
material, considers that there is a reasonable basis to proceed with an
investigation, and that the case appears to fall within the jurisdiction of the Court,
it shall authorize the commencement of the investigation, without prejudice to
subsequent determinations by the Court with regard to the jurisdiction and
admissibility of a case.
5. The refusal of the Pre-Trial Chamber to authorize the investigation shall not
preclude the presentation of a subsequent request by the Prosecutor based on new
facts or evidence regarding the same situation.
6. If, after the preliminary examination referred to in paragraphs 1 and 2, the
Prosecutor concludes that the information provided does not constitute a
reasonable basis for an investigation, he or she shall inform those who provided
the information. This shall not preclude the Prosecutor from considering further
information submitted to him or her regarding the same situation in the light of
new facts or evidence.
Article 16
Deferral of investigation or prosecution
No investigation or prosecution may be commenced or proceeded with under this Statute for a
period of 12 months after the Security Council, in a resolution adopted under Chapter VII of
the Charter of the United Nations, has requested the Court to that effect; that request may be
renewed by the Council under the same conditions.
Article 17
Issues of admissibility
1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall
determine that a case is inadmissible where:
(a) The case is being investigated or prosecuted by a State which has
jurisdiction over it, unless the State is unwilling or unable genuinely to
carry out the investigation or prosecution;
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(b) The case has been investigated by a State which has jurisdiction over it
and the State has decided not to prosecute the person concerned, unless
the decision resulted from the unwillingness or inability of the State
genuinely to prosecute;
(c) The person concerned has already been tried for conduct which is the
subject of the complaint, and a trial by the Court is not permitted under
article 20, paragraph 3;
(d) The case is not of sufficient gravity to justify further action by the Court.
2. In order to determine unwillingness in a particular case, the Court shall consider,
having regard to the principles of due process recognized by international law,
whether one or more of the following exist, as applicable:
(a) The proceedings were or are being undertaken or the national decision
was made for the purpose of shielding the person concerned from criminal
responsibility for crimes within the jurisdiction of the Court referred to in
article 5;
(b) There has been an unjustified delay in the proceedings which in the
circumstances is inconsistent with an intent to bring the person concerned
to justice;
(c) The proceedings were not or are not being conducted independently or
impartially, and they were or are being conducted in a manner which, in
the circumstances, is inconsistent with an intent to bring the person
concerned to justice.
3. In order to determine inability in a particular case, the Court shall consider
whether, due to a total or substantial collapse or unavailability of its national
judicial system, the State is unable to obtain the accused or the necessary evidence
and testimony or otherwise unable to carry out its proceedings.
Article 18
Preliminary rulings regarding admissibility
1. When a situation has been referred to the Court pursuant to article 13 (a) and the
Prosecutor has determined that there would be a reasonable basis to commence an
investigation, or the Prosecutor initiates an investigation pursuant to articles 13 (c)
and 15, the Prosecutor shall notify all States Parties and those States which, taking
into account the information available, would normally exercise jurisdiction over
the crimes concerned. The Prosecutor may notify such States on a confidential
basis and, where the Prosecutor believes it necessary to protect persons, prevent
destruction of evidence or prevent the absconding of persons, may limit the scope
of the information provided to States.
2. Within one month of receipt of that notification, a State may inform the Court that
it is investigating or has investigated its nationals or others within its jurisdiction
with respect to criminal acts which may constitute crimes referred to in article 5
and which relate to the information provided in the notification to States. At the
request of that State, the Prosecutor shall defer to the State's investigation of
those persons unless the Pre-Trial Chamber, on the application of the Prosecutor,
decides to authorize the investigation.
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3. The Prosecutor's deferral to a State's investigation shall be open to review by the
Prosecutor six months after the date of deferral or at any time when there has been
a significant change of circumstances based on the State's unwillingness or
inability genuinely to carry out the investigation.
4. The State concerned or the Prosecutor may appeal to the Appeals Chamber
against a ruling of the Pre-Trial Chamber, in accordance with article 82. The appeal
may be heard on an expedited basis.
5. When the Prosecutor has deferred an investigation in accordance with paragraph
2, the Prosecutor may request that the State concerned periodically inform the
Prosecutor of the progress of its investigations and any subsequent prosecutions.
States Parties shall respond to such requests without undue delay.
6. Pending a ruling by the Pre-Trial Chamber, or at any time when the Prosecutor has
deferred an investigation under this article, the Prosecutor may, on an exceptional
basis, seek authority from the Pre-Trial Chamber to pursue necessary investigative
steps for the purpose of preserving evidence where there is a unique opportunity
to obtain important evidence or there is a significant risk that such evidence may
not be subsequently available.
7. A State which has challenged a ruling of the Pre-Trial Chamber under this article
may challenge the admissibility of a case under article 19 on the grounds of
additional significant facts or significant change of circumstances.
Article 19
Challenges to the jurisdiction of the Court or the admissibility of a case
1. The Court shall satisfy itself that it has jurisdiction in any case brought before it.
The Court may, on its own motion, determine the admissibility of a case in
accordance with article 17.
2. Challenges to the admissibility of a case on the grounds referred to in article 17 or
challenges to the jurisdiction of the Court may be made by:
(a) An accused or a person for whom a warrant of arrest or a summons to
appear has been issued under article 58;
(b) A State which has jurisdiction over a case, on the ground that it is
investigating or prosecuting the case or has investigated or prosecuted; or
(c) A State from which acceptance of jurisdiction is required under article 12.
3. The Prosecutor may seek a ruling from the Court regarding a question of
jurisdiction or admissibility. In proceedings with respect to jurisdiction or
admissibility, those who have referred the situation under article 13, as well as
victims, may also submit observations to the Court.
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4. The admissibility of a case or the jurisdiction of the Court may be challenged only
once by any person or State referred to in paragraph 2. The challenge shall take
place prior to or at the commencement of the trial. In exceptional circumstances,
the Court may grant leave for a challenge to be brought more than once or at a
time later than the commencement of the trial. Challenges to the admissibility of a
case, at the commencement of a trial, or subsequently with the leave of the Court,
may be based only on article 17, paragraph 1 (c).
5. A State referred to in paragraph 2 (b) and (c) shall make a challenge at the earliest
opportunity.
6. Prior to the confirmation of the charges, challenges to the admissibility of a case or
challenges to the jurisdiction of the Court shall be referred to the Pre-Trial
Chamber. After confirmation of the charges, they shall be referred to the
Trial Chamber. Decisions with respect to jurisdiction or admissibility may be
appealed to the Appeals Chamber in accordance with article 82.
7. If a challenge is made by a State referred to in paragraph 2 (b) or (c), the
Prosecutor shall suspend the investigation until such time as the Court makes a
determination in accordance with article 17.
8. Pending a ruling by the Court, the Prosecutor may seek authority from the Court:
(a) To pursue necessary investigative steps of the kind referred to in article 18,
paragraph 6;
(b) To take a statement or testimony from a witness or complete the collection
and examination of evidence which had begun prior to the making of the
challenge; and
(c) In cooperation with the relevant States, to prevent the absconding of
persons in respect of whom the Prosecutor has already requested a
warrant of arrest under article 58.
9. The making of a challenge shall not affect the validity of any act performed by the
Prosecutor or any order or warrant issued by the Court prior to the making of the
challenge.
10. If the Court has decided that a case is inadmissible under article 17, the Prosecutor
may submit a request for a review of the decision when he or she is fully satisfied
that new facts have arisen which negate the basis on which the case had
previously been found inadmissible under article 17.
11. If the Prosecutor, having regard to the matters referred to in article 17, defers an
investigation, the Prosecutor may request that the relevant State make available to
the Prosecutor information on the proceedings. That information shall, at the
request of the State concerned, be confidential. If the Prosecutor thereafter decides
to proceed with an investigation, he or she shall notify the State to which deferral
of the proceedings has taken place.
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Article 20
Ne bis in idem
1. Except as provided in this Statute, no person shall be tried before the Court with
respect to conduct which formed the basis of crimes for which the person has been
convicted or acquitted by the Court.
2. No person shall be tried by another court for a crime referred to in article 5 for
which that person has already been convicted or acquitted by the Court.
3. No person who has been tried by another court for conduct also proscribed under
article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless
the proceedings in the other court:
(a) Were for the purpose of shielding the person concerned from criminal
responsibility for crimes within the jurisdiction of the Court; or
(b) Otherwise were not conducted independently or impartially in accordance
with the norms of due process recognized by international law and were
conducted in a manner which, in the circumstances, was inconsistent with
an intent to bring the person concerned to justice.
Article 21
Applicable law
1. The Court shall apply:
(a) In the first place, this Statute, Elements of Crimes and its Rules of
Procedure and Evidence;
(b) In the second place, where appropriate, applicable treaties and the
principles and rules of international law, including the established
principles of the international law of armed conflict;
(c) Failing that, general principles of law derived by the Court from national
laws of legal systems of the world including, as appropriate, the national
laws of States that would normally exercise jurisdiction over the crime,
provided that those principles are not inconsistent with this Statute and
with international law and internationally recognized norms and
standards.
2. The Court may apply principles and rules of law as interpreted in its previous
decisions.
3. The application and interpretation of law pursuant to this article must be
consistent with internationally recognized human rights, and be without any
adverse distinction founded on grounds such as gender as defined in article 7,
paragraph 3, age, race, colour, language, religion or belief, political or other
opinion, national, ethnic or social origin, wealth, birth or other status.
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Part III General principles of Criminal Law
Article 22
Nullum crimen sine lege
1. A person shall not be criminally responsible under this Statute unless the conduct
in question constitutes, at the time it takes place, a crime within the jurisdiction of
the Court.
2. The definition of a crime shall be strictly construed and shall not be extended by
analogy. In case of ambiguity, the definition shall be interpreted in favour of the
person being investigated, prosecuted or convicted.
3. This article shall not affect the characterization of any conduct as criminal under
international law independently of this Statute.
Article 23
Nulla poena sine lege
A person convicted by the Court may be punished only in accordance with this Statute.
Article 24
Non-retroactivity ratione personae
1. No person shall be criminally responsible under this Statute for conduct prior to
the entry into force of the Statute.
2. In the event of a change in the law applicable to a given case prior to a final
judgement, the law more favourable to the person being investigated, prosecuted
or convicted shall apply.
Article 25
Individual criminal responsibility
1. The Court shall have jurisdiction over natural persons pursuant to this Statute.
2. A person who commits a crime within the jurisdiction of the Court shall be
individually responsible and liable for punishment in accordance with this Statute.
3. In accordance with this Statute, a person shall be criminally responsible and liable
for punishment for a crime within the jurisdiction of the Court if that person:
(a) Commits such a crime, whether as an individual, jointly with another or
through another person, regardless of whether that other person is
criminally responsible;
(b) Orders, solicits or induces the commission of such a crime which in fact
occurs or is attempted;
(c) For the purpose of facilitating the commission of such a crime, aids, abets
or otherwise assists in its commission or its attempted commission,
including providing the means for its commission;
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(d) In any other way contributes to the commission or attempted commission
of such a crime by a group of persons acting with a common purpose. Such
contribution shall be intentional and shall either:
(i) Be made with the aim of furthering the criminal activity or criminal
purpose of the group, where such activity or purpose involves the
commission of a crime within the jurisdiction of the Court; or
(ii) Be made in the knowledge of the intention of the group to commit
the crime;
(e) In respect of the crime of genocide, directly and publicly incites others to
commit genocide;
(f) Attempts to commit such a crime by taking action that commences its
execution by means of a substantial step, but the crime does not occur
because of circumstances independent of the person's intentions.
However, a person who abandons the effort to commit the crime or
otherwise prevents the completion of the crime shall not be liable for
punishment under this Statute for the attempt to commit that crime if that
person completely and voluntarily gave up the criminal purpose.
4. No provision in this Statute relating to individual criminal responsibility shall
affect the responsibility of States under international law.
Article 26
Exclusion of jurisdiction over persons under eighteen
The Court shall have no jurisdiction over any person who was under the age of 18 at the time
of the alleged commission of a crime.
Article 27
Irrelevance of official capacity
1. This Statute shall apply equally to all persons without any distinction based on
official capacity. In particular, official capacity as a Head of State or Government, a
member of a Government or parliament, an elected representative or a
government official shall in no case exempt a person from criminal responsibility
under this Statute, nor shall it, in and of itself, constitute a ground for reduction of
sentence.
2. Immunities or special procedural rules which may attach to the official capacity of
a person, whether under national or international law, shall not bar the Court from
exercising its jurisdiction over such a person.
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Article 28
Responsibility of commanders and other superiors
In addition to other grounds of criminal responsibility under this Statute for crimes within the
jurisdiction of the Court:
(a) A military commander or person effectively acting as a military
commander shall be criminally responsible for crimes within the
jurisdiction of the Court committed by forces under his or her effective
command and control, or effective authority and control as the case may
be, as a result of his or her failure to exercise control properly over such
forces, where:
(i) That military commander or person either knew or, owing to the
circumstances at the time, should have known that the forces
were committing or about to commit such crimes; and
(ii) That military commander or person failed to take all necessary
and reasonable measures within his or her power to prevent or
repress their commission or to submit the matter to the competent
authorities for investigation and prosecution.
(b) With respect to superior and subordinate relationships not described in
paragraph (a), a superior shall be criminally responsible for crimes within
the jurisdiction of the Court committed by subordinates under his or her
effective authority and control, as a result of his or her failure to exercise
control properly over such subordinates, where:
(i) The superior either knew, or consciously disregarded information
which clearly indicated, that the subordinates were committing or
about to commit such crimes;
(ii) The crimes concerned activities that were within the effective
responsibility and control of the superior; and
(iii) The superior failed to take all necessary and reasonable measures
within his or her power to prevent or repress their commission or to
submit the matter to the competent authorities for investigation and
prosecution.
Article 29
Non-applicability of statute of limitations
The crimes within the jurisdiction of the Court shall not be subject to any statute of
limitations.
Article 30
Mental element
1. Unless otherwise provided, a person shall be criminally responsible and liable for
punishment for a crime within the jurisdiction of the Court only if the material
elements are committed with intent and knowledge.
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2. For the purposes of this article, a person has intent where:
(a) In relation to conduct, that person means to engage in the conduct;
(b) In relation to a consequence, that person means to cause that consequence
or is aware that it will occur in the ordinary course of events.
3. For the purposes of this article, ‘knowledge’ means awareness that a circumstance
exists or a consequence will occur in the ordinary course of events. ‘Know’ and
‘knowingly’ shall be construed accordingly.
Article 31
Grounds for excluding criminal responsibility
1. In addition to other grounds for excluding criminal responsibility provided for in
this Statute, a person shall not be criminally responsible if, at the time of that
person's conduct:
(a) The person suffers from a mental disease or defect that destroys that
person's capacity to appreciate the unlawfulness or nature of his or her
conduct, or capacity to control his or her conduct to conform to the
requirements of law;
(b) The person is in a state of intoxication that destroys that person's capacity
to appreciate the unlawfulness or nature of his or her conduct, or capacity
to control his or her conduct to conform to the requirements of law, unless
the person has become voluntarily intoxicated under such circumstances
that the person knew, or disregarded the risk, that, as a result of the
intoxication, he or she was likely to engage in conduct constituting a crime
within the jurisdiction of the Court;
(c) The person acts reasonably to defend himself or herself or another person
or, in the case of war crimes, property which is essential for the survival of
the person or another person or property which is essential for
accomplishing a military mission, against an imminent and unlawful use
of force in a manner proportionate to the degree of danger to the person or
the other person or property protected. The fact that the person was
involved in a defensive operation conducted by forces shall not in itself
constitute a ground for excluding criminal responsibility under this
subparagraph;
(d) The conduct which is alleged to constitute a crime within the jurisdiction
of the Court has been caused by duress resulting from a threat of imminent
death or of continuing or imminent serious bodily harm against that
person or another person, and the person acts necessarily and reasonably
to avoid this threat, provided that the person does not intend to cause a
greater harm than the one sought to be avoided. Such a threat may either
be:
(i) Made by other persons; or
(ii) Constituted by other circumstances beyond that person's control.
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2. The Court shall determine the applicability of the grounds for excluding criminal
responsibility provided for in this Statute to the case before it.
3. At trial, the Court may consider a ground for excluding criminal responsibility
other than those referred to in paragraph 1 where such a ground is derived from
applicable law as set forth in article 21. The procedures relating to the
consideration of such a ground shall be provided for in the Rules of Procedure and
Evidence.
Article 32
Mistake of fact or mistake of law
1. A mistake of fact shall be a ground for excluding criminal responsibility only if it
negates the mental element required by the crime.
2. A mistake of law as to whether a particular type of conduct is a crime within the
jurisdiction of the Court shall not be a ground for excluding criminal responsibility.
A mistake of law may, however, be a ground for excluding criminal responsibility if
it negates the mental element required by such a crime, or as provided for in
article 33.
Article 33
Superior orders and prescription of law
1. The fact that a crime within the jurisdiction of the Court has been committed by a
person pursuant to an order of a Government or of a superior, whether military or
civilian, shall not relieve that person of criminal responsibility unless:
(a) The person was under a legal obligation to obey orders of the Government
or the superior in question;
(b) The person did not know that the order was unlawful; and
(c) The order was not manifestly unlawful.
2. For the purposes of this article, orders to commit genocide or crimes against
humanity are manifestly unlawful.
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Part IV Composition and administration of the Court
Article 34
Organs of the Court
The Court shall be composed of the following organs:
(a) The Presidency;
(b) An Appeals Division, a Trial Division and a Pre-Trial Division;
(c) The Office of the Prosecutor;
(d) The Registry.
Article 35
Service of judges
1. All judges shall be elected as full-time members of the Court and shall be available
to serve on that basis from the commencement of their terms of office.
2. The judges composing the Presidency shall serve on a full-time basis as soon as
they are elected.
3. The Presidency may, on the basis of the workload of the Court and in consultation
with its members, decide from time to time to what extent the remaining judges
shall be required to serve on a full-time basis. Any such arrangement shall be
without prejudice to the provisions of article 40.
4. The financial arrangements for judges not required to serve on a full-time basis
shall be made in accordance with article 49.
Article 36
Qualifications, nomination and election of judges
1. Subject to the provisions of paragraph 2, there shall be 18 judges of the Court.
2. (a) The Presidency, acting on behalf of the Court, may propose an increase in
the number of judges specified in paragraph 1, indicating the reasons why
this is considered necessary and appropriate. The Registrar shall promptly
circulate any such proposal to all States Parties.
(b) Any such proposal shall then be considered at a meeting of the Assembly
of States Parties to be convened in accordance with article 112. The
proposal shall be considered adopted if approved at the meeting by a vote
of two thirds of the members of the Assembly of States Parties and shall
enter into force at such time as decided by the Assembly of States Parties.
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(c) (i) Once a proposal for an increase in the number of judges has been
adopted under subparagraph (b), the election of the additional
judges shall take place at the next session of the Assembly of States
Parties in accordance with paragraphs 3 to 8, and article 37,
paragraph 2;
(ii) Once a proposal for an increase in the number of judges has
been adopted and brought into effect under subparagraphs (b)
and (c) (i), it shall be open to the Presidency at any time
thereafter, if the workload of the Court justifies it, to propose a
reduction in the number of judges, provided that the number of
judges shall not be reduced below that specified in paragraph 1.
The proposal shall be dealt with in accordance with the
procedure laid down in subparagraphs (a) and (b). In the event
that the proposal is adopted, the number of judges shall be
progressively decreased as the terms of office of serving judges
expire, until the necessary number has been reached.
3. (a) The judges shall be chosen from among persons of high moral character,
impartiality and integrity who possess the qualifications required in
their respective States for appointment to the highest judicial offices.
(b) Every candidate for election to the Court shall:
(i) Have established competence in criminal law and procedure, and
the necessary relevant experience, whether as judge, prosecutor,
advocate or in other similar capacity, in criminal proceedings; or
(ii) Have established competence in relevant areas of international law
such as international humanitarian law and the law of human rights,
and extensive experience in a professional legal capacity which is of
relevance to the judicial work of the Court;
(c) Every candidate for election to the Court shall have an excellent
knowledge of and be fluent in at least one of the working languages of the
Court.
4. (a) Nominations of candidates for election to the Court may be made by any
State Party to this Statute, and shall be made either:
(i) By the procedure for the nomination of candidates for appointment
to the highest judicial offices in the State in question; or
(ii) By the procedure provided for the nomination of candidates for the
International Court of Justice in the Statute of that Court.
Nominations shall be accompanied by a statement in the necessary detail
specifying how the candidate fulfils the requirements of paragraph 3.
(b) Each State Party may put forward one candidate for any given election
who need not necessarily be a national of that State Party but shall in any
case be a national of a State Party.
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(c) The Assembly of States Parties may decide to establish, if appropriate, an
Advisory Committee on nominations. In that event, the Committee's
composition and mandate shall be established by the Assembly of States
Parties.
5. For the purposes of the election, there shall be two lists of candidates:
List A containing the names of candidates with the qualifications specified in
paragraph 3 (b) (i); and
List B containing the names of candidates with the qualifications specified in
paragraph 3 (b) (ii).
A candidate with sufficient qualifications for both lists may choose on which list to
appear. At the first election to the Court, at least nine judges shall be elected from
list A and at least five judges from list B. Subsequent elections shall be so
organized as to maintain the equivalent proportion on the Court of judges
qualified on the two lists.
6. (a) The judges shall be elected by secret ballot at a meeting of the Assembly of
States Parties convened for that purpose under article 112. Subject to
paragraph 7, the persons elected to the Court shall be the 18 candidates
who obtain the highest number of votes and a two-thirds majority of the
States Parties present and voting.
(b) In the event that a sufficient number of judges is not elected on the first
ballot, successive ballots shall be held in accordance with the procedures
laid down in subparagraph (a) until the remaining places have been filled.
7. No two judges may be nationals of the same State. A person who, for the purposes
of membership of the Court, could be regarded as a national of more than one
State shall be deemed to be a national of the State in which that person ordinarily
exercises civil and political rights.
8. (a) The States Parties shall, in the selection of judges, take into account
the need, within the membership of the Court, for:
(i) The representation of the principal legal systems of the world;
(ii) Equitable geographical representation; and
(iii) A fair representation of female and male judges.
(b) States Parties shall also take into account the need to include judges with
legal expertise on specific issues, including, but not limited to, violence
against women or children.
9. (a) Subject to subparagraph (b), judges shall hold office for a term of nine
years and, subject to subparagraph (c) and to article 37, paragraph 2,
shall not be eligible for re-election.
(b) At the first election, one third of the judges elected shall be selected by lot
to serve for a term of three years; one third of the judges elected shall be
selected by lot to serve for a term of six years; and the remainder shall
serve for a term of nine years.
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(c) A judge who is selected to serve for a term of three years under
subparagraph (b) shall be eligible for re-election for a full term.
10. Notwithstanding paragraph 9, a judge assigned to a Trial or Appeals Chamber in
accordance with article 39 shall continue in office to complete any trial or appeal
the hearing of which has already commenced before that Chamber.
Article 37
Judicial vacancies
1. In the event of a vacancy, an election shall be held in accordance with article 36 to
fill the vacancy.
2. A judge elected to fill a vacancy shall serve for the remainder of the predecessor's
term and, if that period is three years or less, shall be eligible for re-election for a
full term under article 36.
Article 38
The Presidency
1. The President and the First and Second Vice-Presidents shall be elected by an
absolute majority of the judges. They shall each serve for a term of three years or
until the end of their respective terms of office as judges, whichever expires earlier.
They shall be eligible for re-election once.
2. The First Vice-President shall act in place of the President in the event that
the President is unavailable or disqualified. The Second Vice-President shall
act in place of the President in the event that both the President and the First
Vice-President are unavailable or disqualified.
3. The President, together with the First and Second Vice-Presidents, shall constitute
the Presidency, which shall be responsible for:
(a) The proper administration of the Court, with the exception of the Office of
the Prosecutor; and
(b) The other functions conferred upon it in accordance with this Statute.
4. In discharging its responsibility under paragraph 3 (a), the Presidency shall
coordinate with and seek the concurrence of the Prosecutor on all matters of
mutual concern.
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Article 39
Chambers
1. As soon as possible after the election of the judges, the Court shall organize itself
into the divisions specified in article 34, paragraph (b). The Appeals Division shall
be composed of the President and four other judges, the Trial Division of not less
than six judges and the Pre-Trial Division of not less than six judges. The
assignment of judges to divisions shall be based on the nature of the functions to
be performed by each division and the qualifications and experience of the judges
elected to the Court, in such a way that each division shall contain an appropriate
combination of expertise in criminal law and procedure and in international law.
The Trial and Pre-Trial Divisions shall be composed predominantly of judges with
criminal trial experience.
2. (a) The judicial functions of the Court shall be carried out in each
division by Chambers.
(b) (i) The Appeals Chamber shall be composed of all the judges of the
Appeals Division;
(ii) The functions of the Trial Chamber shall be carried out by three
judges of the Trial Division;
(iii) The functions of the Pre-Trial Chamber shall be carried out either by
three judges of the Pre-Trial Division or by a single judge of that
division in accordance with this Statute and the Rules of Procedure
and Evidence;
(c) Nothing in this paragraph shall preclude the simultaneous constitution of
more than one Trial Chamber or Pre-Trial Chamber when the efficient
management of the Court's workload so requires.
3. (a) Judges assigned to the Trial and Pre-Trial Divisions shall serve in those
divisions for a period of three years, and thereafter until the completion of
any case the hearing of which has already commenced in the division
concerned.
(b) Judges assigned to the Appeals Division shall serve in that division
for their entire term of office.
4. Judges assigned to the Appeals Division shall serve only in that division. Nothing
in this article shall, however, preclude the temporary attachment of judges from
the Trial Division to the Pre-Trial Division or vice versa, if the Presidency considers
that the efficient management of the Court's workload so requires, provided that
under no circumstances shall a judge who has participated in the pre-trial phase of
a case be eligible to sit on the Trial Chamber hearing that case.
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Article 40
Independence of the judges
1. The judges shall be independent in the performance of their functions.
2. Judges shall not engage in any activity which is likely to interfere with their
judicial functions or to affect confidence in their independence.
3. Judges required to serve on a full-time basis at the seat of the Court shall not
engage in any other occupation of a professional nature.
4. Any question regarding the application of paragraphs 2 and 3 shall be decided by
an absolute majority of the judges. Where any such question concerns an
individual judge, that judge shall not take part in the decision.
Article 41
Excusing and disqualification of judges
1. The Presidency may, at the request of a judge, excuse that judge from the exercise
of a function under this Statute, in accordance with the Rules of Procedure and
Evidence.
2. (a) A judge shall not participate in any case in which his or her impartiality
might reasonably be doubted on any ground. A judge shall be disqualified
from a case in accordance with this paragraph if, inter alia, that judge has
previously been involved in any capacity in that case before the Court or in
a related criminal case at the national level involving the person being
investigated or prosecuted. A judge shall also be disqualified on such other
grounds as may be provided for in the Rules of Procedure and Evidence.
(b) The Prosecutor or the person being investigated or prosecuted may
request the disqualification of a judge under this paragraph.
(c) Any question as to the disqualification of a judge shall be decided by an
absolute majority of the judges. The challenged judge shall be entitled to
present his or her comments on the matter, but shall not take part in the
decision.
Article 42
The Office of the Prosecutor
1. The Office of the Prosecutor shall act independently as a separate organ of the
Court. It shall be responsible for receiving referrals and any substantiated
information on crimes within the jurisdiction of the Court, for examining them and
for conducting investigations and prosecutions before the Court. A member of the
Office shall not seek or act on instructions from any external source.
2. The Office shall be headed by the Prosecutor. The Prosecutor shall have full
authority over the management and administration of the Office, including the
staff, facilities and other resources thereof. The Prosecutor shall be assisted by one
or more Deputy Prosecutors, who shall be entitled to carry out any of the acts
required of the Prosecutor under this Statute. The Prosecutor and the Deputy
Prosecutors shall be of different nationalities. They shall serve on a full-time basis.
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3. The Prosecutor and the Deputy Prosecutors shall be persons of high moral
character, be highly competent in and have extensive practical experience in the
prosecution or trial of criminal cases. They shall have an excellent knowledge of
and be fluent in at least one of the working languages of the Court.
4. The Prosecutor shall be elected by secret ballot by an absolute majority of the
members of the Assembly of States Parties. The Deputy Prosecutors shall be
elected in the same way from a list of candidates provided by the Prosecutor. The
Prosecutor shall nominate three candidates for each position of Deputy Prosecutor
to be filled. Unless a shorter term is decided upon at the time of their election, the
Prosecutor and the Deputy Prosecutors shall hold office for a term of nine years
and shall not be eligible for re-election.
5. Neither the Prosecutor nor a Deputy Prosecutor shall engage in any activity which
is likely to interfere with his or her prosecutorial functions or to affect confidence
in his or her independence. They shall not engage in any other occupation of a
professional nature.
6. The Presidency may excuse the Prosecutor or a Deputy Prosecutor, at his or her
request, from acting in a particular case.
7. Neither the Prosecutor nor a Deputy Prosecutor shall participate in any matter in
which their impartiality might reasonably be doubted on any ground. They shall
be disqualified from a case in accordance with this paragraph if, inter alia, they
have previously been involved in any capacity in that case before the Court or in a
related criminal case at the national level involving the person being investigated
or prosecuted.
8. Any question as to the disqualification of the Prosecutor or a Deputy Prosecutor
shall be decided by the Appeals Chamber.
(a) The person being investigated or prosecuted may at any time request the
disqualification of the Prosecutor or a Deputy Prosecutor on the grounds
set out in this article;
(b) The Prosecutor or the Deputy Prosecutor, as appropriate, shall be entitled
to present his or her comments on the matter.
9. The Prosecutor shall appoint advisers with legal expertise on specific issues,
including, but not limited to, sexual and gender violence and violence against
children.
Article 43
The Registry
1. The Registry shall be responsible for the non-judicial aspects of the administration
and servicing of the Court, without prejudice to the functions and powers of the
Prosecutor in accordance with article 42.
2. The Registry shall be headed by the Registrar, who shall be the principal
administrative officer of the Court. The Registrar shall exercise his or her functions
under the authority of the President of the Court.
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3. The Registrar and the Deputy Registrar shall be persons of high moral character,
be highly competent and have an excellent knowledge of and be fluent in at least
one of the working languages of the Court.
4. The judges shall elect the Registrar by an absolute majority by secret ballot, taking
into account any recommendation by the Assembly of States Parties. If the need
arises and upon the recommendation of the Registrar, the judges shall elect, in the
same manner, a Deputy Registrar.
5. The Registrar shall hold office for a term of five years, shall be eligible for reelection
once and shall serve on a full-time basis. The Deputy Registrar shall hold
office for a term of five years or such shorter term as may be decided upon by an
absolute majority of the judges, and may be elected on the basis that the Deputy
Registrar shall be called upon to serve as required.
6. The Registrar shall set up a Victims and Witnesses Unit within the Registry. This
Unit shall provide, in consultation with the Office of the Prosecutor, protective
measures and security arrangements, counselling and other appropriate assistance
for witnesses, victims who appear before the Court, and others who are at risk on
account of testimony given by such witnesses. The Unit shall include staff with
expertise in trauma, including trauma related to crimes of sexual violence.
Article 44
Staff
1. The Prosecutor and the Registrar shall appoint such qualified staff as may be
required to their respective offices. In the case of the Prosecutor, this shall include
the appointment of investigators.
2. In the employment of staff, the Prosecutor and the Registrar shall ensure the
highest standards of efficiency, competency and integrity, and shall have regard,
mutatis mutandis, to the criteria set forth in article 36, paragraph 8.
3. The Registrar, with the agreement of the Presidency and the Prosecutor, shall
propose Staff Regulations which include the terms and conditions upon which the
staff of the Court shall be appointed, remunerated and dismissed. The Staff
Regulations shall be approved by the Assembly of States Parties.
4. The Court may, in exceptional circumstances, employ the expertise of gratis
personnel offered by States Parties, intergovernmental organizations or nongovernmental
organizations to assist with the work of any of the organs
of the Court. The Prosecutor may accept any such offer on behalf of the Office of
the Prosecutor. Such gratis personnel shall be employed in accordance with
guidelines to be established by the Assembly of States Parties.
Article 45
Solemn undertaking
Before taking up their respective duties under this Statute, the judges, the
Prosecutor, the Deputy Prosecutors, the Registrar and the Deputy Registrar shall
each make a solemn undertaking in open court to exercise his or her respective
functions impartially and conscientiously.
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Article 46
Removal from office
1. A judge, the Prosecutor, a Deputy Prosecutor, the Registrar or the Deputy Registrar
shall be removed from office if a decision to this effect is made in accordance with
paragraph 2, in cases where that person:
(a) Is found to have committed serious misconduct or a serious breach of his
or her duties under this Statute, as provided for in the Rules of Procedure
and Evidence; or
(b) Is unable to exercise the functions required by this Statute.
2. A decision as to the removal from office of a judge, the Prosecutor or a Deputy
Prosecutor under paragraph 1 shall be made by the Assembly of States Parties, by
secret ballot:
(a) In the case of a judge, by a two-thirds majority of the States Parties upon a
recommendation adopted by a two-thirds majority of the other judges;
(b) In the case of the Prosecutor, by an absolute majority of the States Parties;
(c) In the case of a Deputy Prosecutor, by an absolute majority of the States
Parties upon the recommendation of the Prosecutor.
3. A decision as to the removal from office of the Registrar or Deputy Registrar shall
be made by an absolute majority of the judges.
4. A judge, Prosecutor, Deputy Prosecutor, Registrar or Deputy Registrar whose
conduct or ability to exercise the functions of the office as required by this Statute
is challenged under this article shall have full opportunity to present and receive
evidence and to make submissions in accordance with the Rules of Procedure and
Evidence. The person in question shall not otherwise participate in the
consideration of the matter.
Article 47
Disciplinary measures
A judge, Prosecutor, Deputy Prosecutor, Registrar or Deputy Registrar who has committed
misconduct of a less serious nature than that set out in article 46, paragraph 1, shall be subject
to disciplinary measures, in accordance with the Rules of Procedure and Evidence.
Article 48
Privileges and immunities
1. The Court shall enjoy in the territory of each State Party such privileges and
immunities as are necessary for the fulfilment of its purposes.
2. The judges, the Prosecutor, the Deputy Prosecutors and the Registrar shall, when
engaged on or with respect to the business of the Court, enjoy the same privileges
and immunities as are accorded to heads of diplomatic missions and shall, after
the expiry of their terms of office, continue to be accorded immunity from legal
process of every kind in respect of words spoken or written and acts performed by
them in their official capacity.
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3. The Deputy Registrar, the staff of the Office of the Prosecutor and the staff
of the Registry shall enjoy the privileges and immunities and facilities necessary
for the performance of their functions, in accordance with the agreement on the
privileges and immunities of the Court.
4. Counsel, experts, witnesses or any other person required to be present at the seat
of the Court shall be accorded such treatment as is necessary for the proper
functioning of the Court, in accordance with the agreement on the privileges and
immunities of the Court.
5. The privileges and immunities of:
(a) A judge or the Prosecutor may be waived by an absolute majority of the
judges;
(b) The Registrar may be waived by the Presidency;
(c) The Deputy Prosecutors and staff of the Office of the Prosecutor may be
waived by the Prosecutor;
(d) The Deputy Registrar and staff of the Registry may be waived by the
Registrar.
Article 49
Salaries, allowances and expenses
The judges, the Prosecutor, the Deputy Prosecutors, the Registrar and the Deputy Registrar
shall receive such salaries, allowances and expenses as may be decided upon by the Assembly
of States Parties. These salaries and allowances shall not be reduced during their terms of
office.
Article 50
Official and working languages
1. The official languages of the Court shall be Arabic, Chinese, English, French,
Russian and Spanish. The judgements of the Court, as well as other decisions
resolving fundamental issues before the Court, shall be published in the official
languages. The Presidency shall, in accordance with the criteria established by the
Rules of Procedure and Evidence, determine which decisions may be considered as
resolving fundamental issues for the purposes of this paragraph.
2. The working languages of the Court shall be English and French. The Rules of
Procedure and Evidence shall determine the cases in which other official
languages may be used as working languages.
3. At the request of any party to a proceeding or a State allowed to intervene in a
proceeding, the Court shall authorize a language other than English or French to
be used by such a party or State, provided that the Court considers such
authorization to be adequately justified.
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Article 51
Rules of Procedure and Evidence
1. The Rules of Procedure and Evidence shall enter into force upon adoption by a
two-thirds majority of the members of the Assembly of States Parties.
2. Amendments to the Rules of Procedure and Evidence may be proposed by:
(a) Any State Party;
(b) The judges acting by an absolute majority; or
(c) The Prosecutor.
Such amendments shall enter into force upon adoption by a two-thirds majority of
the members of the Assembly of States Parties.
3. After the adoption of the Rules of Procedure and Evidence, in urgent cases where
the Rules do not provide for a specific situation before the Court, the judges may,
by a two-thirds majority, draw up provisional Rules to be applied until adopted,
amended or rejected at the next ordinary or special session of the Assembly of
States Parties.
4. The Rules of Procedure and Evidence, amendments thereto and any provisional
Rule shall be consistent with this Statute. Amendments to the Rules of Procedure
and Evidence as well as provisional Rules shall not be applied retroactively to the
detriment of the person who is being investigated or prosecuted or who has been
convicted.
5. In the event of conflict between the Statute and the Rules of Procedure and
Evidence, the Statute shall prevail.
Article 52
Regulations of the Court
1. The judges shall, in accordance with this Statute and the Rules of Procedure and
Evidence, adopt, by an absolute majority, the Regulations of the Court necessary
for its routine functioning.
2. The Prosecutor and the Registrar shall be consulted in the elaboration of the
Regulations and any amendments thereto.
3. The Regulations and any amendments thereto shall take effect upon adoption
unless otherwise decided by the judges. Immediately upon adoption, they shall be
circulated to States Parties for comments. If within six months there are no
objections from a majority of States Parties, they shall remain in force.
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Part V Investigation and prosecution
Article 53
Initiation of an investigation
1. The Prosecutor shall, having evaluated the information made available to him or
her, initiate an investigation unless he or she determines that there is no
reasonable basis to proceed under this Statute. In deciding whether to initiate an
investigation, the Prosecutor shall consider whether:
(a) The information available to the Prosecutor provides a reasonable basis to
believe that a crime within the jurisdiction of the Court has been or is
being committed;
(b) The case is or would be admissible under article 17; and
(c) Taking into account the gravity of the crime and the interests of victims,
there are nonetheless substantial reasons to believe that an investigation
would not serve the interests of justice.
If the Prosecutor determines that there is no reasonable basis to proceed and his or
her determination is based solely on subparagraph (c) above, he or she shall
inform the Pre-Trial Chamber.
2. If, upon investigation, the Prosecutor concludes that there is not a sufficient basis
for a prosecution because:
(a) There is not a sufficient legal or factual basis to seek a warrant or
summons under article 58;
(b) The case is inadmissible under article 17; or
(c) A prosecution is not in the interests of justice, taking into account
all the circumstances, including the gravity of the crime, the interests
of victims and the age or infirmity of the alleged perpetrator, and
his or her role in the alleged crime; the Prosecutor shall inform
the Pre-Trial Chamber and the State making a referral under article 14
or the Security Council in a case under article 13, paragraph (b), of his
or her conclusion and the reasons for the conclusion.
3. (a) At the request of the State making a referral under article 14 or the
Security Council under article 13, paragraph (b), the Pre-Trial Chamber
may review a decision of the Prosecutor under paragraph 1 or 2 not to
proceed and may request the Prosecutor to reconsider that decision.
(b) In addition, the Pre-Trial Chamber may, on its own initiative, review
a decision of the Prosecutor not to proceed if it is based solely on
paragraph 1 (c) or 2 (c). In such a case, the decision of the Prosecutor shall
be effective only if confirmed by the Pre-Trial Chamber.
4. The Prosecutor may, at any time, reconsider a decision whether to initiate an
investigation or prosecution based on new facts or information.
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Article 54
Duties and powers of the Prosecutor with respect to investigations
1. The Prosecutor shall:
(a) In order to establish the truth, extend the investigation to cover all
facts and evidence relevant to an assessment of whether there is
criminal responsibility under this Statute, and, in doing so, investigate
incriminating and exonerating circumstances equally;
(b) Take appropriate measures to ensure the effective investigation and
prosecution of crimes within the jurisdiction of the Court, and in doing so,
respect the interests and personal circumstances of victims and witnesses,
including age, gender as defined in article 7, paragraph 3, and health, and
take into account the nature of the crime, in particular where it involves
sexual violence, gender violence or violence against children; and
(c) Fully respect the rights of persons arising under this Statute.
2. The Prosecutor may conduct investigations on the territory of a State:
(a) In accordance with the provisions of Part 9; or
(b) As authorized by the Pre-Trial Chamber under article 57, paragraph 3 (d).
3. The Prosecutor may:
(a) Collect and examine evidence;
(b) Request the presence of and question persons being investigated, victims
and witnesses;
(c) Seek the cooperation of any State or intergovernmental organization or
arrangement in accordance with its respective competence and/or
mandate;
(d) Enter into such arrangements or agreements, not inconsistent with this
Statute, as may be necessary to facilitate the cooperation of a State,
intergovernmental organization or person;
(e) Agree not to disclose, at any stage of the proceedings, documents or
information that the Prosecutor obtains on the condition of confidentiality
and solely for the purpose of generating new evidence, unless the provider
of the information consents; and
(f) Take necessary measures, or request that necessary measures be taken, to
ensure the confidentiality of information, the protection of any person or
the preservation of evidence.
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Article 55
Rights of persons during an investigation
1. In respect of an investigation under this Statute, a person:
(a) Shall not be compelled to incriminate himself or herself or to confess guilt;
(b) Shall not be subjected to any form of coercion, duress or threat, to torture
or to any other form of cruel, inhuman or degrading treatment or
punishment;
(c) Shall, if questioned in a language other than a language the person fully
understands and speaks, have, free of any cost, the assistance of a
competent interpreter and such translations as are necessary to meet the
requirements of fairness; and
(d) Shall not be subjected to arbitrary arrest or detention, and shall not be
deprived of his or her liberty except on such grounds and in accordance
with such procedures as are established in this Statute.
2. Where there are grounds to believe that a person has committed a crime within
the jurisdiction of the Court and that person is about to be questioned either by
the Prosecutor, or by national authorities pursuant to a request made under Part 9,
that person shall also have the following rights of which he or she shall be
informed prior to being questioned:
(a) To be informed, prior to being questioned, that there are grounds to
believe that he or she has committed a crime within the jurisdiction of the
Court;
(b) To remain silent, without such silence being a consideration in the
determination of guilt or innocence;
(c) To have legal assistance of the person's choosing, or, if the person does not
have legal assistance, to have legal assistance assigned to him or her, in
any case where the interests of justice so require, and without payment by
the person in any such case if the person does not have sufficient means to
pay for it; and
(d) To be questioned in the presence of counsel unless the person has
voluntarily waived his or her right to counsel.
Article 56
Role of the Pre-Trial Chamber in relation to a unique investigative
opportunity
1. (a) Where the Prosecutor considers an investigation to present a unique
opportunity to take testimony or a statement from a witness or to examine,
collect or test evidence, which may not be available subsequently for the
purposes of a trial, the Prosecutor shall so inform the Pre-Trial Chamber.
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(b) In that case, the Pre-Trial Chamber may, upon request of the Prosecutor,
take such measures as may be necessary to ensure the efficiency and
integrity of the proceedings and, in particular, to protect the rights of the
defence.
(c) Unless the Pre-Trial Chamber orders otherwise, the Prosecutor shall
provide the relevant information to the person who has been arrested or
appeared in response to a summons in connection with the investigation
referred to in subparagraph (a), in order that he or she may be heard on
the matter.
2. The measures referred to in paragraph 1 (b) may include:
(a) Making recommendations or orders regarding procedures to be followed;
(b) Directing that a record be made of the proceedings;
(c) Appointing an expert to assist;
(d) Authorizing counsel for a person who has been arrested, or appeared
before the Court in response to a summons, to participate, or where there
has not yet been such an arrest or appearance or counsel has not been
designated, appointing another counsel to attend and represent the
interests of the defence;
(e) Naming one of its members or, if necessary, another available judge of the
Pre-Trial or Trial Division to observe and make recommendations or orders
regarding the collection and preservation of evidence and the questioning
of persons;
(f) Taking such other action as may be necessary to collect or preserve
evidence.
3. (a) Where the Prosecutor has not sought measures pursuant to this article but
the Pre-Trial Chamber considers that such measures are required to
preserve evidence that it deems would be essential for the defence at trial,
it shall consult with the Prosecutor as to whether there is good reason for
the Prosecutor's failure to request the measures. If upon consultation, the
Pre-Trial Chamber concludes that the Prosecutor's failure to request such
measures is unjustified, the Pre-Trial Chamber may take such measures on
its own initiative.
(b) A decision of the Pre-Trial Chamber to act on its own initiative under this
paragraph may be appealed by the Prosecutor. The appeal shall be heard
on an expedited basis.
4. The admissibility of evidence preserved or collected for trial pursuant to this
article, or the record thereof, shall be governed at trial by article 69, and given such
weight as determined by the Trial Chamber.
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Article 57
Functions and powers of the Pre-Trial Chamber
1. Unless otherwise provided in this Statute, the Pre-Trial Chamber shall exercise its
functions in accordance with the provisions of this article.
2. (a) Orders or rulings of the Pre-Trial Chamber issued under articles 15, 18, 19,
54, paragraph 2, 61, paragraph 7, and 72 must be concurred in by a
majority of its judges.
(b) In all other cases, a single judge of the Pre-Trial Chamber may exercise the
functions provided for in this Statute, unless otherwise provided for in
the Rules of Procedure and Evidence or by a majority of the Pre-Trial
Chamber.
3. In addition to its other functions under this Statute, the Pre-Trial Chamber may:
(a) At the request of the Prosecutor, issue such orders and warrants as may be
required for the purposes of an investigation;
(b) Upon the request of a person who has been arrested or has appeared
pursuant to a summons under article 58, issue such orders, including
measures such as those described in article 56, or seek such cooperation
pursuant to Part 9 as may be necessary to assist the person in the
preparation of his or her defence;
(c) Where necessary, provide for the protection and privacy of victims and
witnesses, the preservation of evidence, the protection of persons who
have been arrested or appeared in response to a summons, and the
protection of national security information;
(d) Authorize the Prosecutor to take specific investigative steps within the
territory of a State Party without having secured the cooperation of that
State under Part 9 if, whenever possible having regard to the views of the
State concerned, the Pre-Trial Chamber has determined in that case that
the State is clearly unable to execute a request for cooperation due to the
unavailability of any authority or any component of its judicial system
competent to execute the request for cooperation under Part 9;
(e) Where a warrant of arrest or a summons has been issued under article 58,
and having due regard to the strength of the evidence and the rights of the
parties concerned, as provided for in this Statute and the Rules of
Procedure and Evidence, seek the cooperation of States pursuant to article
93, paragraph 1 (k), to take protective measures for the purpose of
forfeiture, in particular for the ultimate benefit of victims.
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Article 58
Issuance by the Pre-Trial Chamber of a warrant of arrest or a
summons to appear
1. At any time after the initiation of an investigation, the Pre-Trial Chamber shall, on
the application of the Prosecutor, issue a warrant of arrest of a person if, having
examined the application and the evidence or other information submitted by the
Prosecutor, it is satisfied that:
(a) There are reasonable grounds to believe that the person has committed a
crime within the jurisdiction of the Court; and
(b) The arrest of the person appears necessary:
(i) To ensure the person's appearance at trial;
(ii) To ensure that the person does not obstruct or endanger the
investigation or the court proceedings; or
(iii) Where applicable, to prevent the person from continuing with the
commission of that crime or a related crime which is within the
jurisdiction of the Court and which arises out of the same
circumstances.
2. The application of the Prosecutor shall contain:
(a) The name of the person and any other relevant identifying information;
(b) A specific reference to the crimes within the jurisdiction of the Court
which the person is alleged to have committed;
(c) A concise statement of the facts which are alleged to constitute those
crimes;
(d) A summary of the evidence and any other information which establish
reasonable grounds to believe that the person committed those crimes;
and
(e) The reason why the Prosecutor believes that the arrest of the person is
necessary.
3. The warrant of arrest shall contain:
(a) The name of the person and any other relevant identifying information;
(b) A specific reference to the crimes within the jurisdiction of the Court for
which the person's arrest is sought; and
(c) A concise statement of the facts which are alleged to constitute those
crimes.
4. The warrant of arrest shall remain in effect until otherwise ordered by the Court.
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5. On the basis of the warrant of arrest, the Court may request the provisional arrest
or the arrest and surrender of the person under Part 9.
6. The Prosecutor may request the Pre-Trial Chamber to amend the warrant of arrest
by modifying or adding to the crimes specified therein. The Pre-Trial Chamber
shall so amend the warrant if it is satisfied that there are reasonable grounds to
believe that the person committed the modified or additional crimes.
7. As an alternative to seeking a warrant of arrest, the Prosecutor may submit an
application requesting that the Pre-Trial Chamber issue a summons for the person
to appear. If the Pre-Trial Chamber is satisfied that there are reasonable grounds to
believe that the person committed the crime alleged and that a summons is
sufficient to ensure the person's appearance, it shall issue the summons, with or
without conditions restricting liberty (other than detention) if provided for by
national law, for the person to appear. The summons shall contain:
(a) The name of the person and any other relevant identifying information;
(b) The specified date on which the person is to appear;
(c) A specific reference to the crimes within the jurisdiction of the Court
which the person is alleged to have committed; and
(d) A concise statement of the facts which are alleged to constitute the crime.
The summons shall be served on the person.
Article 59
Arrest proceedings in the custodial State
1. A State Party which has received a request for provisional arrest or for arrest and
surrender shall immediately take steps to arrest the person in question in
accordance with its laws and the provisions of Part 9.
2. A person arrested shall be brought promptly before the competent judicial
authority in the custodial State which shall determine, in accordance with the law
of that State, that:
(a) The warrant applies to that person;
(b) The person has been arrested in accordance with the proper process; and
(c) The person's rights have been respected.
3. The person arrested shall have the right to apply to the competent authority in the
custodial State for interim release pending surrender.
4. In reaching a decision on any such application, the competent authority in the
custodial State shall consider whether, given the gravity of the alleged crimes,
there are urgent and exceptional circumstances to justify interim release and
whether necessary safeguards exist to ensure that the custodial State can fulfil its
duty to surrender the person to the Court. It shall not be open to the competent
authority of the custodial State to consider whether the warrant of arrest was
properly issued in accordance with article 58, paragraph 1 (a) and (b).
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5. The Pre-Trial Chamber shall be notified of any request for interim release and shall
make recommendations to the competent authority in the custodial State. The
competent authority in the custodial State shall give full consideration to such
recommendations, including any recommendations on measures to prevent the
escape of the person, before rendering its decision.
6. If the person is granted interim release, the Pre-Trial Chamber may request
periodic reports on the status of the interim release.
7. Once ordered to be surrendered by the custodial State, the person shall be
delivered to the Court as soon as possible.
Article 60
Initial proceedings before the Court
1. Upon the surrender of the person to the Court, or the person's appearance before
the Court voluntarily or pursuant to a summons, the Pre-Trial Chamber shall
satisfy itself that the person has been informed of the crimes which he or she is
alleged to have committed, and of his or her rights under this Statute, including
the right to apply for interim release pending trial.
2. A person subject to a warrant of arrest may apply for interim release pending trial.
If the Pre-Trial Chamber is satisfied that the conditions set forth in article 58,
paragraph 1, are met, the person shall continue to be detained. If it is not so
satisfied, the Pre-Trial Chamber shall release the person, with or without
conditions.
3. The Pre-Trial Chamber shall periodically review its ruling on the release or
detention of the person, and may do so at any time on the request of the
Prosecutor or the person. Upon such review, it may modify its ruling as to
detention, release or conditions of release, if it is satisfied that changed
circumstances so require.
4. The Pre-Trial Chamber shall ensure that a person is not detained for an
unreasonable period prior to trial due to inexcusable delay by the Prosecutor. If
such delay occurs, the Court shall consider releasing the person, with or without
conditions.
5. If necessary, the Pre-Trial Chamber may issue a warrant of arrest to secure the
presence of a person who has been released.
Article 61
Confirmation of the charges before trial
1. Subject to the provisions of paragraph 2, within a reasonable time after the
person's surrender or voluntary appearance before the Court, the Pre-Trial
Chamber shall hold a hearing to confirm the charges on which the Prosecutor
intends to seek trial. The hearing shall be held in the presence of the
Prosecutor and the person charged, as well as his or her counsel.
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2. The Pre-Trial Chamber may, upon request of the Prosecutor or on its own motion,
hold a hearing in the absence of the person charged to confirm the charges on
which the Prosecutor intends to seek trial when the person has:
(a) Waived his or her right to be present; or
(b) Fled or cannot be found and all reasonable steps have been taken to secure
his or her appearance before the Court and to inform the person of the
charges and that a hearing to confirm those charges will be held.
In that case, the person shall be represented by counsel where the Pre-Trial
Chamber determines that it is in the interests of justice.
3. Within a reasonable time before the hearing, the person shall:
(a) Be provided with a copy of the document containing the charges on which
the Prosecutor intends to bring the person to trial; and
(b) Be informed of the evidence on which the Prosecutor intends to rely at the
hearing.
The Pre-Trial Chamber may issue orders regarding the disclosure of information
for the purposes of the hearing.
4. Before the hearing, the Prosecutor may continue the investigation and may amend
or withdraw any charges. The person shall be given reasonable notice before the
hearing of any amendment to or withdrawal of charges. In case of a withdrawal of
charges, the Prosecutor shall notify the Pre-Trial Chamber of the reasons for the
withdrawal.
5. At the hearing, the Prosecutor shall support each charge with sufficient evidence
to establish substantial grounds to believe that the person committed the crime
charged. The Prosecutor may rely on documentary or summary evidence and need
not call the witnesses expected to testify at the trial.
6. At the hearing, the person may:
(a) Object to the charges;
(b) Challenge the evidence presented by the Prosecutor; and
(c) Present evidence.
7. The Pre-Trial Chamber shall, on the basis of the hearing, determine whether there
is sufficient evidence to establish substantial grounds to believe that the person
committed each of the crimes charged. Based on its determination, the Pre-Trial
Chamber shall:
(a) Confirm those charges in relation to which it has determined that there is
sufficient evidence, and commit the person to a Trial Chamber for trial on
the charges as confirmed;
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(b) Decline to confirm those charges in relation to which it has determined
that there is insufficient evidence;
(c) Adjourn the hearing and request the Prosecutor to consider:
(i) Providing further evidence or conducting further investigation with
respect to a particular charge; or
(ii) Amending a charge because the evidence submitted appears to
establish a different crime within the jurisdiction of the Court.
8. Where the Pre-Trial Chamber declines to confirm a charge, the Prosecutor shall
not be precluded from subsequently requesting its confirmation if the request is
supported by additional evidence.
9. After the charges are confirmed and before the trial has begun, the Prosecutor may,
with the permission of the Pre-Trial Chamber and after notice to the accused,
amend the charges. If the Prosecutor seeks to add additional charges or to
substitute more serious charges, a hearing under this article to confirm those
charges must be held. After commencement of the trial, the Prosecutor may, with
the permission of the Trial Chamber, withdraw the charges.
10. Any warrant previously issued shall cease to have effect with respect to any
charges which have not been confirmed by the Pre-Trial Chamber or which have
been withdrawn by the Prosecutor.
11. Once the charges have been confirmed in accordance with this article, the
Presidency shall constitute a Trial Chamber which, subject to paragraph 9 and to
article 64, paragraph 4, shall be responsible for the conduct of subsequent
proceedings and may exercise any function of the Pre-Trial Chamber that is
relevant and capable of application in those proceedings.
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Part VI The trial
Article 62
Place of trial
Unless otherwise decided, the place of the trial shall be the seat of the Court.
Article 63
Trial in the presence of the accused
1. The accused shall be present during the trial.
2. If the accused, being present before the Court, continues to disrupt the trial, the
Trial Chamber may remove the accused and shall make provision for him or her to
observe the trial and instruct counsel from outside the courtroom, through the use
of communications technology, if required. Such measures shall be taken only in
exceptional circumstances after other reasonable alternatives have proved
inadequate, and only for such duration as is strictly required.
Article 64
Functions and powers of the Trial Chamber
1. The functions and powers of the Trial Chamber set out in this article shall be
exercised in accordance with this Statute and the Rules of Procedure and Evidence.
2. The Trial Chamber shall ensure that a trial is fair and expeditious and is conducted
with full respect for the rights of the accused and due regard for the protection of
victims and witnesses.
3. Upon assignment of a case for trial in accordance with this Statute, the Trial
Chamber assigned to deal with the case shall:
(a) Confer with the parties and adopt such procedures as are necessary to
facilitate the fair and expeditious conduct of the proceedings;
(b) Determine the language or languages to be used at trial; and
(c) Subject to any other relevant provisions of this Statute, provide for
disclosure of documents or information not previously disclosed,
sufficiently in advance of the commencement of the trial to enable
adequate preparation for trial.
4. The Trial Chamber may, if necessary for its effective and fair functioning, refer
preliminary issues to the Pre-Trial Chamber or, if necessary, to another available
judge of the Pre-Trial Division.
5. Upon notice to the parties, the Trial Chamber may, as appropriate, direct that there
be joinder or severance in respect of charges against more than one accused.
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6. In performing its functions prior to trial or during the course of a trial, the Trial
Chamber may, as necessary:
(a) Exercise any functions of the Pre-Trial Chamber referred to in article 61,
paragraph 11;
(b) Require the attendance and testimony of witnesses and production of
documents and other evidence by obtaining, if necessary, the assistance of
States as provided in this Statute;
(c) Provide for the protection of confidential information;
(d) Order the production of evidence in addition to that already collected prior
to the trial or presented during the trial by the parties;
(e) Provide for the protection of the accused, witnesses and victims; and
(f) Rule on any other relevant matters.
7. The trial shall be held in public. The Trial Chamber may, however, determine that
special circumstances require that certain proceedings be in closed session for the
purposes set forth in article 68, or to protect confidential or sensitive information
to be given in evidence.
8. (a) At the commencement of the trial, the Trial Chamber shall have read to
the accused the charges previously confirmed by the Pre-Trial Chamber.
The Trial Chamber shall satisfy itself that the accused understands the
nature of the charges. It shall afford him or her the opportunity to make an
admission of guilt in accordance with article 65 or to plead not guilty.
(b) At the trial, the presiding judge may give directions for the conduct of
proceedings, including to ensure that they are conducted in a fair and
impartial manner. Subject to any directions of the presiding judge, the
parties may submit evidence in accordance with the provisions of this
Statute.
9. The Trial Chamber shall have, inter alia, the power on application of a party or on
its own motion to:
(a) Rule on the admissibility or relevance of evidence; and
(b) Take all necessary steps to maintain order in the course of a hearing.
10. The Trial Chamber shall ensure that a complete record of the trial, which
accurately reflects the proceedings, is made and that it is maintained and
preserved by the Registrar.
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Article 65
Proceedings on an admission of guilt
1. Where the accused makes an admission of guilt pursuant to article 64, paragraph
8 (a), the Trial Chamber shall determine whether:
(a) The accused understands the nature and consequences of the admission of
guilt;
(b) The admission is voluntarily made by the accused after sufficient
consultation with defence counsel; and
(c) The admission of guilt is supported by the facts of the case that are
contained in:
(i) The charges brought by the Prosecutor and admitted by the accused;
(ii) Any materials presented by the Prosecutor which supplement the
charges and which the accused accepts; and
(iii) Any other evidence, such as the testimony of witnesses, presented
by the Prosecutor or the accused.
2. Where the Trial Chamber is satisfied that the matters referred to in paragraph 1 are
established, it shall consider the admission of guilt, together with any additional
evidence presented, as establishing all the essential facts that are required to prove
the crime to which the admission of guilt relates, and may convict the accused of
that crime.
3. Where the Trial Chamber is not satisfied that the matters referred to in paragraph
1 are established, it shall consider the admission of guilt as not having been made,
in which case it shall order that the trial be continued under the ordinary trial
procedures provided by this Statute and may remit the case to another Trial
Chamber.
4. Where the Trial Chamber is of the opinion that a more complete presentation of
the facts of the case is required in the interests of justice, in particular the interests
of the victims, the Trial Chamber may:
(a) Request the Prosecutor to present additional evidence, including the
testimony of witnesses; or
(b) Order that the trial be continued under the ordinary trial procedures
provided by this Statute, in which case it shall consider the admission of
guilt as not having been made and may remit the case to another Trial
Chamber.
5. Any discussions between the Prosecutor and the defence regarding modification
of the charges, the admission of guilt or the penalty to be imposed shall not be
binding on the Court.
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Article 66
Presumption of innocence
1. Everyone shall be presumed innocent until proved guilty before the Court in
accordance with the applicable law.
2. The onus is on the Prosecutor to prove the guilt of the accused.
3. In order to convict the accused, the Court must be convinced of the guilt of the
accused beyond reasonable doubt.
Article 67
Rights of the accused
1. In the determination of any charge, the accused shall be entitled to a public
hearing, having regard to the provisions of this Statute, to a fair hearing conducted
impartially, and to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail of the nature, cause and content of
the charge, in a language which the accused fully understands and speaks;
(b) To have adequate time and facilities for the preparation of the defence and
to communicate freely with counsel of the accused's choosing in
confidence;
(c) To be tried without undue delay;
(d) Subject to article 63, paragraph 2, to be present at the trial, to conduct the
defence in person or through legal assistance of the accused's choosing, to
be informed, if the accused does not have legal assistance, of this right and
to have legal assistance assigned by the Court in any case where the
interests of justice so require, and without payment if the accused lacks
sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him or her and to
obtain the attendance and examination of witnesses on his or her behalf
under the same conditions as witnesses against him or her. The accused
shall also be entitled to raise defences and to present other evidence
admissible under this Statute;
(f) To have, free of any cost, the assistance of a competent interpreter and such
translations as are necessary to meet the requirements of fairness, if any of
the proceedings of or documents presented to the Court are not in a
language which the accused fully understands and speaks;
(g) Not to be compelled to testify or to confess guilt and to remain silent,
without such silence being a consideration in the determination of guilt or
innocence;
(h) To make an unsworn oral or written statement in his or her defence; and
(i) Not to have imposed on him or her any reversal of the burden of proof or
any onus of rebuttal.
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2. In addition to any other disclosure provided for in this Statute, the Prosecutor
shall, as soon as practicable, disclose to the defence evidence in the Prosecutor's
possession or control which he or she believes shows or tends to show the
innocence of the accused, or to mitigate the guilt of the accused, or which may
affect the credibility of prosecution evidence. In case of doubt as to the application
of this paragraph, the Court shall decide.
Article 68
Protection of the victims and witnesses and their participation in the
proceedings
1. The Court shall take appropriate measures to protect the safety, physical and
psychological well-being, dignity and privacy of victims and witnesses. In so
doing, the Court shall have regard to all relevant factors, including age, gender as
defined in article 7, paragraph 3, and health, and the nature of the crime, in
particular, but not limited to, where the crime involves sexual or gender violence
or violence against children. The Prosecutor shall take such measures particularly
during the investigation and prosecution of such crimes. These measures shall not
be prejudicial to or inconsistent with the rights of the accused and a fair and
impartial trial.
2. As an exception to the principle of public hearings provided for in article 67, the
Chambers of the Court may, to protect victims and witnesses or an accused,
conduct any part of the proceedings in camera or allow the presentation of
evidence by electronic or other special means. In particular, such measures shall be
implemented in the case of a victim of sexual violence or a child who is a victim or
a witness, unless otherwise ordered by the Court, having regard to all the
circumstances, particularly the views of the victim or witness.
3. Where the personal interests of the victims are affected, the Court shall permit
their views and concerns to be presented and considered at stages of the
proceedings determined to be appropriate by the Court and in a manner which is
not prejudicial to or inconsistent with the rights of the accused and a fair and
impartial trial. Such views and concerns may be presented by the legal
representatives of the victims where the Court considers it appropriate, in
accordance with the Rules of Procedure and Evidence.
4. The Victims and Witnesses Unit may advise the Prosecutor and the Court on
appropriate protective measures, security arrangements, counselling and
assistance as referred to in article 43, paragraph 6.
5. Where the disclosure of evidence or information pursuant to this Statute may lead
to the grave endangerment of the security of a witness or his or her family, the
Prosecutor may, for the purposes of any proceedings conducted prior to the
commencement of the trial, withhold such evidence or information and instead
submit a summary thereof. Such measures shall be exercised in a manner which is
not prejudicial to or inconsistent with the rights of the accused and a fair and
impartial trial.
6. A State may make an application for necessary measures to be taken in respect of
the protection of its servants or agents and the protection of confidential or
sensitive information.
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Article 69
Evidence
1. Before testifying, each witness shall, in accordance with the Rules of Procedure
and Evidence, give an undertaking as to the truthfulness of the evidence to be
given by that witness.
2. The testimony of a witness at trial shall be given in person, except to the extent
provided by the measures set forth in article 68 or in the Rules of Procedure and
Evidence. The Court may also permit the giving of viva voce (oral) or recorded
testimony of a witness by means of video or audio technology, as well as the
introduction of documents or written transcripts, subject to this Statute and in
accordance with the Rules of Procedure and Evidence. These measures shall not be
prejudicial to or inconsistent with the rights of the accused.
3. The parties may submit evidence relevant to the case, in accordance with article
64. The Court shall have the authority to request the submission of all evidence
that it considers necessary for the determination of the truth.
4. The Court may rule on the relevance or admissibility of any evidence, taking into
account, inter alia, the probative value of the evidence and any prejudice that such
evidence may cause to a fair trial or to a fair evaluation of the testimony of a
witness, in accordance with the Rules of Procedure and Evidence.
5. The Court shall respect and observe privileges on confidentiality as provided for in
the Rules of Procedure and Evidence.
6. The Court shall not require proof of facts of common knowledge but may take
judicial notice of them.
7. Evidence obtained by means of a violation of this Statute or internationally
recognized human rights shall not be admissible if:
(a) The violation casts substantial doubt on the reliability of the evidence; or
(b) The admission of the evidence would be antithetical to and would
seriously damage the integrity of the proceedings.
8. When deciding on the relevance or admissibility of evidence collected by a State,
the Court shall not rule on the application of the State's national law.
Article 70
Offences against the administration of justice
1. The Court shall have jurisdiction over the following offences against its
administration of justice when committed intentionally:
(a) Giving false testimony when under an obligation pursuant to article 69,
paragraph 1, to tell the truth;
(b) Presenting evidence that the party knows is false or forged;
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(c) Corruptly influencing a witness, obstructing or interfering with the
attendance or testimony of a witness, retaliating against a witness for
giving testimony or destroying, tampering with or interfering with the
collection of evidence;
(d) Impeding, intimidating or corruptly influencing an official of the Court for
the purpose of forcing or persuading the official not to perform, or to
perform improperly, his or her duties;
(e) Retaliating against an official of the Court on account of duties performed
by that or another official;
(f) Soliciting or accepting a bribe as an official of the Court in connection with
his or her official duties.
2. The principles and procedures governing the Court's exercise of jurisdiction over
offences under this article shall be those provided for in the Rules of Procedure
and Evidence. The conditions for providing international cooperation to the Court
with respect to its proceedings under this article shall be governed by the domestic
laws of the requested State.
3. In the event of conviction, the Court may impose a term of imprisonment not
exceeding five years, or a fine in accordance with the Rules of Procedure and
Evidence, or both.
4. (a) Each State Party shall extend its criminal laws penalizing offences against
the integrity of its own investigative or judicial process to offences against
the administration of justice referred to in this article, committed on its
territory, or by one of its nationals;
(b) Upon request by the Court, whenever it deems it proper, the State Party
shall submit the case to its competent authorities for the purpose of
prosecution. Those authorities shall treat such cases with diligence and
devote sufficient resources to enable them to be conducted effectively.
Article 71
Sanctions for misconduct before the Court
1. The Court may sanction persons present before it who commit misconduct,
including disruption of its proceedings or deliberate refusal to comply with its
directions, by administrative measures other than imprisonment, such as
temporary or permanent removal from the courtroom, a fine or other similar
measures provided for in the Rules of Procedure and Evidence.
2. The procedures governing the imposition of the measures set forth in paragraph 1
shall be those provided for in the Rules of Procedure and Evidence.
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Article 72
Protection of national security information
1. This article applies in any case where the disclosure of the information or
documents of a State would, in the opinion of that State, prejudice its national
security interests. Such cases include those falling within the scope of article 56,
paragraphs 2 and 3, article 61, paragraph 3, article 64, paragraph 3, article 67,
paragraph 2, article 68, paragraph 6, article 87, paragraph 6 and article 93, as well
as cases arising at any other stage of the proceedings where such disclosure may
be at issue.
2. This article shall also apply when a person who has been requested to give
information or evidence has refused to do so or has referred the matter to the State
on the ground that disclosure would prejudice the national security interests of a
State and the State concerned confirms that it is of the opinion that disclosure
would prejudice its national security interests.
3. Nothing in this article shall prejudice the requirements of confidentiality
applicable under article 54, paragraph 3 (e) and (f), or the application of article 73.
4. If a State learns that information or documents of the State are being, or are likely
to be, disclosed at any stage of the proceedings, and it is of the opinion that
disclosure would prejudice its national security interests, that State shall have the
right to intervene in order to obtain resolution of the issue in accordance with this
article.
5. If, in the opinion of a State, disclosure of information would prejudice its national
security interests, all reasonable steps will be taken by the State, acting in
conjunction with the Prosecutor, the defence or the Pre-Trial Chamber or Trial
Chamber, as the case may be, to seek to resolve the matter by cooperative means.
Such steps may include:
(a) Modification or clarification of the request;
(b) A determination by the Court regarding the relevance of the information
or evidence sought, or a determination as to whether the evidence, though
relevant, could be or has been obtained from a source other than the
requested State;
(c) Obtaining the information or evidence from a different source or in a
different form; or
(d) Agreement on conditions under which the assistance could be provided
including, among other things, providing summaries or redactions,
limitations on disclosure, use of in camera or ex parte proceedings, or other
protective measures permissible under the Statute and the Rules of
Procedure and Evidence.
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6. Once all reasonable steps have been taken to resolve the matter through
cooperative means, and if the State considers that there are no means or
conditions under which the information or documents could be provided or
disclosed without prejudice to its national security interests, it shall so notify the
Prosecutor or the Court of the specific reasons for its decision, unless a specific
description of the reasons would itself necessarily result in such prejudice to the
State's national security interests.
7. Thereafter, if the Court determines that the evidence is relevant and necessary for
the establishment of the guilt or innocence of the accused, the Court may
undertake the following actions:
(a) Where disclosure of the information or document is sought pursuant to a
request for cooperation under Part 9 or the circumstances described in
paragraph 2, and the State has invoked the ground for refusal referred to
in article 93, paragraph 4:
(i) The Court may, before making any conclusion referred to in
subparagraph 7 (a) (ii), request further consultations for the purpose
of considering the State's representations, which may include, as
appropriate, hearings in camera and ex parte;
(ii) If the Court concludes that, by invoking the ground for refusal
under article 93, paragraph 4, in the circumstances of the case, the
requested State is not acting in accordance with its obligations
under this Statute, the Court may refer the matter in accordance
with article 87, paragraph 7, specifying the reasons for its
conclusion; and
(iii) The Court may make such inference in the trial of the accused as to
the existence or non-existence of a fact, as may be appropriate in the
circumstances; or
(b) In all other circumstances:
(i) Order disclosure; or
(ii) To the extent it does not order disclosure, make such inference in
the trial of the accused as to the existence or non-existence of a fact,
as may be appropriate in the circumstances.
Article 73
Third-party information or documents
If a State Party is requested by the Court to provide a document or information in its custody,
possession or control, which was disclosed to it in confidence by a State, intergovernmental
organization or international organization, it shall seek the consent of the originator to
disclose that document or information. If the originator is a State Party, it shall either consent
to disclosure of the information or document or undertake to resolve the issue of disclosure
with the Court, subject to the provisions of article 72. If the originator is not a State Party and
refuses to consent to disclosure, the requested State shall inform the Court that it is unable to
provide the document or information because of a pre-existing obligation of confidentiality to
the originator.
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Article 74
Requirements for the decision
1. All the judges of the Trial Chamber shall be present at each stage of the trial and
throughout their deliberations. The Presidency may, on a case-by-case basis,
designate, as available, one or more alternate judges to be present at each stage of
the trial and to replace a member of the Trial Chamber if that member is unable to
continue attending.
2. The Trial Chamber's decision shall be based on its evaluation of the evidence and
the entire proceedings. The decision shall not exceed the facts and circumstances
described in the charges and any amendments to the charges. The Court may base
its decision only on evidence submitted and discussed before it at the trial.
3. The judges shall attempt to achieve unanimity in their decision, failing which the
decision shall be taken by a majority of the judges.
4. The deliberations of the Trial Chamber shall remain secret.
5. The decision shall be in writing and shall contain a full and reasoned statement of
the Trial Chamber's findings on the evidence and conclusions. The Trial Chamber
shall issue one decision. When there is no unanimity, the Trial Chamber's decision
shall contain the views of the majority and the minority. The decision or a
summary thereof shall be delivered in open court.
Article 75
Reparations to victims
1. The Court shall establish principles relating to reparations to, or in respect of,
victims, including restitution, compensation and rehabilitation. On this basis, in
its decision the Court may, either upon request or on its own motion in
exceptional circumstances, determine the scope and extent of any damage, loss
and injury to, or in respect of, victims and will state the principles on which it is
acting.
2. The Court may make an order directly against a convicted person specifying
appropriate reparations to, or in respect of, victims, including restitution,
compensation and rehabilitation.
Where appropriate, the Court may order that the award for reparations be made
through the Trust Fund provided for in article 79.
3. Before making an order under this article, the Court may invite and shall take
account of representations from or on behalf of the convicted person, victims,
other interested persons or interested States.
4. In exercising its power under this article, the Court may, after a person is convicted
of a crime within the jurisdiction of the Court, determine whether, in order to give
effect to an order which it may make under this article, it is necessary to seek
measures under article 93, paragraph 1.
5. A State Party shall give effect to a decision under this article as if the provisions of
article 109 were applicable to this article.
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6. Nothing in this article shall be interpreted as prejudicing the rights of victims
under national or international law.
Article 76
Sentencing
1. In the event of a conviction, the Trial Chamber shall consider the appropriate
sentence to be imposed and shall take into account the evidence presented and
submissions made during the trial that are relevant to the sentence.
2. Except where article 65 applies and before the completion of the trial, the Trial
Chamber may on its own motion and shall, at the request of the Prosecutor or the
accused, hold a further hearing to hear any additional evidence or submissions
relevant to the sentence, in accordance with the Rules of Procedure and Evidence.
3. Where paragraph 2 applies, any representations under article 75 shall be heard
during the further hearing referred to in paragraph 2 and, if necessary, during any
additional hearing.
4. The sentence shall be pronounced in public and, wherever possible, in the
presence of the accused.
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Part VII Penalties
Article 77
Applicable penalties
1. Subject to article 110, the Court may impose one of the following penalties on a
person convicted of a crime referred to in article 5 of this Statute:
(a) Imprisonment for a specified number of years, which may not exceed a
maximum of 30 years; or
(b) A term of life imprisonment when justified by the extreme gravity of the
crime and the individual circumstances of the convicted person.
2. In addition to imprisonment, the Court may order:
(a) A fine under the criteria provided for in the Rules of Procedure and
Evidence;
(b) A forfeiture of proceeds, property and assets derived directly or indirectly
from that crime, without prejudice to the rights of bona fide third parties.
Article 78
Determination of the sentence
1. In determining the sentence, the Court shall, in accordance with the Rules of
Procedure and Evidence, take into account such factors as the gravity of the crime
and the individual circumstances of the convicted person.
2. In imposing a sentence of imprisonment, the Court shall deduct the time, if any,
previously spent in detention in accordance with an order of the Court. The Court
may deduct any time otherwise spent in detention in connection with conduct
underlying the crime.
3. When a person has been convicted of more than one crime, the Court shall
pronounce a sentence for each crime and a joint sentence specifying the total
period of imprisonment. This period shall be no less than the highest individual
sentence pronounced and shall not exceed 30 years imprisonment or a sentence of
life imprisonment in conformity with article 77, paragraph 1 (b).
Article 79
Trust Fund
1. A Trust Fund shall be established by decision of the Assembly of States Parties for
the benefit of victims of crimes within the jurisdiction of the Court, and of the
families of such victims.
2. The Court may order money and other property collected through fines or
forfeiture to be transferred, by order of the Court, to the Trust Fund.
3. The Trust Fund shall be managed according to criteria to be determined by the
Assembly of States Parties.
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Article 80
Non-prejudice to national application of penalties and national laws
Nothing in this Part affects the application by States of penalties prescribed by their national
law, nor the law of States which do not provide for penalties prescribed in this Part.
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Part VIII Appeal and Revision
Article 81
Appeal against decision of acquittal or conviction or against sentence
1. A decision under article 74 may be appealed in accordance with the Rules of
Procedure and Evidence as follows:
(a) The Prosecutor may make an appeal on any of the following grounds:
(i) Procedural error,
(ii) Error of fact, or
(iii) Error of law;
(b) The convicted person, or the Prosecutor on that person's behalf, may make
an appeal on any of the following grounds:
(i) Procedural error,
(ii) Error of fact,
(iii) Error of law, or
(iv) Any other ground that affects the fairness or reliability of the
proceedings or decision.
2. (a) A sentence may be appealed, in accordance with the Rules of Procedure
and Evidence, by the Prosecutor or the convicted person on the ground of
disproportion between the crime and the sentence;
(b) If on an appeal against sentence the Court considers that there are
grounds on which the conviction might be set aside, wholly or in part, it
may invite the Prosecutor and the convicted person to submit grounds
under article 81, paragraph 1 (a) or (b), and may render a decision on
conviction in accordance with article 83;
(c) The same procedure applies when the Court, on an appeal against
conviction only, considers that there are grounds to reduce the sentence
under paragraph 2 (a).
3. (a) Unless the Trial Chamber orders otherwise, a convicted person shall
remain in custody pending an appeal;
(b) When a convicted person's time in custody exceeds the sentence of
imprisonment imposed, that person shall be released, except that if the
Prosecutor is also appealing, the release may be subject to the conditions
under subparagraph (c) below;
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(c) In case of an acquittal, the accused shall be released immediately, subject
to the following:
(i) Under exceptional circumstances, and having regard, inter alia, to
the concrete risk of flight, the seriousness of the offence charged
and the probability of success on appeal, the Trial Chamber, at the
request of the Prosecutor, may maintain the detention of the person
pending appeal;
(ii) A decision by the Trial Chamber under subparagraph (c) (i) may be
appealed in accordance with the Rules of Procedure and Evidence.
4. Subject to the provisions of paragraph 3 (a) and (b), execution of the decision or
sentence shall be suspended during the period allowed for appeal and for the
duration of the appeal proceedings.
Article 82
Appeal against other decisions
1. Either party may appeal any of the following decisions in accordance with
the Rules of Procedure and Evidence:
(a) A decision with respect to jurisdiction or admissibility;
(b) A decision granting or denying release of the person being investigated or
prosecuted;
(c) A decision of the Pre-Trial Chamber to act on its own initiative under
article 56, paragraph 3;
(d) A decision that involves an issue that would significantly affect the fair and
expeditious conduct of the proceedings or the outcome of the trial, and for
which, in the opinion of the Pre-Trial or Trial Chamber, an immediate
resolution by the Appeals Chamber may materially advance the
proceedings.
2. A decision of the Pre-Trial Chamber under article 57, paragraph 3 (d), may be
appealed against by the State concerned or by the Prosecutor, with the leave of the
Pre-Trial Chamber. The appeal shall be heard on an expedited basis.
3. An appeal shall not of itself have suspensive effect unless the Appeals Chamber so
orders, upon request, in accordance with the Rules of Procedure and Evidence.
4. A legal representative of the victims, the convicted person or a bona fide owner of
property adversely affected by an order under article 75 may appeal against the
order for reparations, as provided in the Rules of Procedure and Evidence.
Article 83
Proceedings on appeal
1. For the purposes of proceedings under article 81 and this article, the Appeals
Chamber shall have all the powers of the Trial Chamber.
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2. If the Appeals Chamber finds that the proceedings appealed from were unfair in a
way that affected the reliability of the decision or sentence, or that the decision or
sentence appealed from was materially affected by error of fact or law or
procedural error, it may:
(a) Reverse or amend the decision or sentence; or
(b) Order a new trial before a different Trial Chamber.
For these purposes, the Appeals Chamber may remand a factual issue to the
original Trial Chamber for it to determine the issue and to report back accordingly,
or may itself call evidence to determine the issue. When the decision or sentence
has been appealed only by the person convicted, or the Prosecutor on that
person's behalf, it cannot be amended to his or her detriment.
3. If in an appeal against sentence the Appeals Chamber finds that the sentence is
disproportionate to the crime, it may vary the sentence in accordance with Part 7.
4. The judgement of the Appeals Chamber shall be taken by a majority of the judges
and shall be delivered in open court. The judgement shall state the reasons on
which it is based. When there is no unanimity, the judgement of the Appeals
Chamber shall contain the views of the majority and the minority, but a judge may
deliver a separate or dissenting opinion on a question of law.
5. The Appeals Chamber may deliver its judgement in the absence of the person
acquitted or convicted.
Article 84
Revision of conviction or sentence
1. The convicted person or, after death, spouses, children, parents or one person
alive at the time of the accused's death who has been given express written
instructions from the accused to bring such a claim, or the Prosecutor on the
person's behalf, may apply to the Appeals Chamber to revise the final judgement
of conviction or sentence on the grounds that:
(a) New evidence has been discovered that:
(i) Was not available at the time of trial, and such unavailability was
not wholly or partially attributable to the party making application;
and
(ii) Is sufficiently important that had it been proved at trial it would
have been likely to have resulted in a different verdict;
(b) It has been newly discovered that decisive evidence, taken into account at
trial and upon which the conviction depends, was false, forged or falsified;
(c) One or more of the judges who participated in conviction or confirmation
of the charges has committed, in that case, an act of serious misconduct or
serious breach of duty of sufficient gravity to justify the removal of that
judge or those judges from office under article 46.
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2. The Appeals Chamber shall reject the application if it considers it to be
unfounded. If it determines that the application is meritorious, it may, as
appropriate:
(a) Reconvene the original Trial Chamber;
(b) Constitute a new Trial Chamber; or
(c) Retain jurisdiction over the matter,
with a view to, after hearing the parties in the manner set forth in the Rules of
Procedure and Evidence, arriving at a determination on whether the judgement
should be revised.
Article 85
Compensation to an arrested or convicted person
1. Anyone who has been the victim of unlawful arrest or detention shall have
an enforceable right to compensation.
2. When a person has by a final decision been convicted of a criminal offence, and
when subsequently his or her conviction has been reversed on the ground that a
new or newly discovered fact shows conclusively that there has been a miscarriage
of justice, the person who has suffered punishment as a result of such conviction
shall be compensated according to law, unless it is proved that the non-disclosure
of the unknown fact in time is wholly or partly attributable to him or her.
3. In exceptional circumstances, where the Court finds conclusive facts showing that
there has been a grave and manifest miscarriage of justice, it may in its discretion
award compensation, according to the criteria provided in the Rules of Procedure
and Evidence, to a person who has been released from detention following a final
decision of acquittal or a termination of the proceedings for that reason.
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Part IX International cooperation and judicial assistance
Article 86
General obligation to cooperate
States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the
Court in its investigation and prosecution of crimes within the jurisdiction of the Court.
Article 87
Requests for cooperation: general provisions
1. (a) The Court shall have the authority to make requests to States Parties for
cooperation. The requests shall be transmitted through the diplomatic
channel or any other appropriate channel as may be designated by each
State Party upon ratification, acceptance, approval or accession.
Subsequent changes to the designation shall be made by each State Party in
accordance with the Rules of Procedure and Evidence.
(b) When appropriate, without prejudice to the provisions of subparagraph
(a), requests may also be transmitted through the International Criminal
Police Organization or any appropriate regional organization.
2. Requests for cooperation and any documents supporting the request shall either
be in or be accompanied by a translation into an official language of the requested
State or one of the working languages of the Court, in accordance with the choice
made by that State upon ratification, acceptance, approval or accession.
Subsequent changes to this choice shall be made in accordance with the Rules of
Procedure and Evidence.
3. The requested State shall keep confidential a request for cooperation and any
documents supporting the request, except to the extent that the disclosure is
necessary for execution of the request.
4. In relation to any request for assistance presented under this Part, the Court may
take such measures, including measures related to the protection of information,
as may be necessary to ensure the safety or physical or psychological well-being of
any victims, potential witnesses and their families. The Court may request that any
information that is made available under this Part shall be provided and handled
in a manner that protects the safety and physical or psychological well-being of
any victims, potential witnesses and their families.
5. (a) The Court may invite any State not party to this Statute to provide
assistance under this Part on the basis of an ad hoc arrangement, an
agreement with such State or any other appropriate basis.
(b) Where a State not party to this Statute, which has entered into an ad hoc
arrangement or an agreement with the Court, fails to cooperate with
requests pursuant to any such arrangement or agreement, the Court may
so inform the Assembly of States Parties or, where the Security Council
referred the matter to the Court, the Security Council.
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6. The Court may ask any intergovernmental organization to provide information or
documents. The Court may also ask for other forms of cooperation and assistance
which may be agreed upon with such an organization and which are in accordance
with its competence or mandate.
7. Where a State Party fails to comply with a request to cooperate by the Court
contrary to the provisions of this Statute, thereby preventing the Court from
exercising its functions and powers under this Statute, the Court may make a
finding to that effect and refer the matter to the Assembly of States Parties or,
where the Security Council referred the matter to the Court, to the Security
Council.
Article 88
Availability of procedures under national law
States Parties shall ensure that there are procedures available under their national law for all
of the forms of cooperation which are specified under this Part.
Article 89
Surrender of persons to the Court
1. The Court may transmit a request for the arrest and surrender of a person,
together with the material supporting the request outlined in article 91, to any
State on the territory of which that person may be found and shall request the
cooperation of that State in the arrest and surrender of such a person. States
Parties shall, in accordance with the provisions of this Part and the procedure
under their national law, comply with requests for arrest and surrender.
2. Where the person sought for surrender brings a challenge before a national court
on the basis of the principle of ne bis in idem as provided in article 20, the
requested State shall immediately consult with the Court to determine if there has
been a relevant ruling on admissibility. If the case is admissible, the requested
State shall proceed with the execution of the request. If an admissibility ruling is
pending, the requested State may postpone the execution of the request for
surrender of the person until the Court makes a determination on admissibility.
3. (a) A State Party shall authorize, in accordance with its national procedural
law, transportation through its territory of a person being surrendered to
the Court by another State, except where transit through that State would
impede or delay the surrender.
(b) A request by the Court for transit shall be transmitted in accordance with
article 87. The request for transit shall contain:
(i) A description of the person being transported;
(ii) A brief statement of the facts of the case and their legal
characterization; and
(iii) The warrant for arrest and surrender;
(c) A person being transported shall be detained in custody during the period
of transit;
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(d) No authorization is required if the person is transported by air and no
landing is scheduled on the territory of the transit State;
(e) If an unscheduled landing occurs on the territory of the transit State, that
State may require a request for transit from the Court as provided for in
subparagraph (b). The transit State shall detain the person being
transported until the request for transit is received and the transit is
effected, provided that detention for purposes of this subparagraph may
not be extended beyond 96 hours from the unscheduled landing unless the
request is received within that time.
4. If the person sought is being proceeded against or is serving a sentence in
the requested State for a crime different from that for which surrender to the Court
is sought, the requested State, after making its decision to grant the request, shall
consult with the Court.
Article 90
Competing requests
1. A State Party which receives a request from the Court for the surrender of a person
under article 89 shall, if it also receives a request from any other State for the
extradition of the same person for the same conduct which forms the basis of the
crime for which the Court seeks the person's surrender, notify the Court and the
requesting State of that fact.
2. Where the requesting State is a State Party, the requested State shall give priority
to the request from the Court if:
(a) The Court has, pursuant to article 18 or 19, made a determination that the
case in respect of which surrender is sought is admissible and that
determination takes into account the investigation or prosecution
conducted by the requesting State in respect of its request for extradition;
or
(b) The Court makes the determination described in subparagraph (a)
pursuant to the requested State's notification under paragraph 1.
3. Where a determination under paragraph 2 (a) has not been made, the requested
State may, at its discretion, pending the determination of the Court under
paragraph 2 (b), proceed to deal with the request for extradition from the
requesting State but shall not extradite the person until the Court has determined
that the case is inadmissible. The Court's determination shall be made on an
expedited basis.
4. If the requesting State is a State not Party to this Statute the requested State, if it is
not under an international obligation to extradite the person to the requesting
State, shall give priority to the request for surrender from the Court, if the Court
has determined that the case is admissible.
5. Where a case under paragraph 4 has not been determined to be admissible by the
Court, the requested State may, at its discretion, proceed to deal with the request
for extradition from the requesting State.
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6. In cases where paragraph 4 applies except that the requested State is under an
existing international obligation to extradite the person to the requesting State not
Party to this Statute, the requested State shall determine whether to surrender the
person to the Court or extradite the person to the requesting State. In making its
decision, the requested State shall consider all the relevant factors, including but
not limited to:
(a) The respective dates of the requests;
(b) The interests of the requesting State including, where relevant, whether
the crime was committed in its territory and the nationality of the victims
and of the person sought; and
(c) The possibility of subsequent surrender between the Court and the
requesting State.
7. Where a State Party which receives a request from the Court for the surrender of a
person also receives a request from any State for the extradition of the same
person for conduct other than that which constitutes the crime for which the
Court seeks the person's surrender:
(a) The requested State shall, if it is not under an existing international
obligation to extradite the person to the requesting State, give priority to
the request from the Court;
(b) The requested State shall, if it is under an existing international obligation
to extradite the person to the requesting State, determine whether to
surrender the person to the Court or to extradite the person to the
requesting State. In making its decision, the requested State shall consider
all the relevant factors, including but not limited to those set out in
paragraph 6, but shall give special consideration to the relative nature and
gravity of the conduct in question.
. Where pursuant to a notification under this article, the Court has determined a
case to be inadmissible, and subsequently extradition to the requesting State is
refused, the requested State shall notify the Court of this decision.
Article 91
Contents of request for arrest and surrender
1. A request for arrest and surrender shall be made in writing. In urgent cases, a
request may be made by any medium capable of delivering a written record,
provided that the request shall be confirmed through the channel provided for in
article 87, paragraph 1 (a).
2. In the case of a request for the arrest and surrender of a person for whom a
warrant of arrest has been issued by the Pre-Trial Chamber under article 58, the
request shall contain or be supported by:
(a) Information describing the person sought, sufficient to identify the person,
and information as to that person's probable location;
(b) A copy of the warrant of arrest; and
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(c) Such documents, statements or information as may be necessary to meet
the requirements for the surrender process in the requested State, except
that those requirements should not be more burdensome than those
applicable to requests for extradition pursuant to treaties or arrangements
between the requested State and other States and should, if possible, be
less burdensome, taking into account the distinct nature of the Court.
3. In the case of a request for the arrest and surrender of a person already convicted,
the request shall contain or be supported by:
(a) A copy of any warrant of arrest for that person;
(b) A copy of the judgement of conviction;
(c) Information to demonstrate that the person sought is the one referred to
in the judgement of conviction; and
(d) If the person sought has been sentenced, a copy of the sentence imposed
and, in the case of a sentence for imprisonment, a statement of any time
already served and the time remaining to be served.
4. Upon the request of the Court, a State Party shall consult with the Court, either
generally or with respect to a specific matter, regarding any requirements under its
national law that may apply under paragraph 2 (c). During the consultations, the
State Party shall advise the Court of the specific requirements of its national law.
Article 92
Provisional arrest
1. In urgent cases, the Court may request the provisional arrest of the person sought,
pending presentation of the request for surrender and the documents supporting
the request as specified in article 91.
2. The request for provisional arrest shall be made by any medium capable of
delivering a written record and shall contain:
(a) Information describing the person sought, sufficient to identify the person,
and information as to that person's probable location;
(b) A concise statement of the crimes for which the person's arrest is sought
and of the facts which are alleged to constitute those crimes, including,
where possible, the date and location of the crime;
(c) A statement of the existence of a warrant of arrest or a judgement of
conviction against the person sought; and
(d) A statement that a request for surrender of the person sought will follow.
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3. A person who is provisionally arrested may be released from custody if the
requested State has not received the request for surrender and the documents
supporting the request as specified in article 91 within the time limits specified in
the Rules of Procedure and Evidence. However, the person may consent to
surrender before the expiration of this period if permitted by the law of the
requested State. In such a case, the requested State shall proceed to surrender the
person to the Court as soon as possible.
4. The fact that the person sought has been released from custody pursuant to
paragraph 3 shall not prejudice the subsequent arrest and surrender of that person
if the request for surrender and the documents supporting the request are
delivered at a later date.
Article 93
Other forms of cooperation
1. States Parties shall, in accordance with the provisions of this Part and under
procedures of national law, comply with requests by the Court to provide the
following assistance in relation to investigations or prosecutions:
(a) The identification and whereabouts of persons or the location of items;
(b) The taking of evidence, including testimony under oath, and the
production of evidence, including expert opinions and reports necessary to
the Court;
(c) The questioning of any person being investigated or prosecuted;
(d) The service of documents, including judicial documents;
(e) Facilitating the voluntary appearance of persons as witnesses or experts
before the Court;
(f) The temporary transfer of persons as provided in paragraph 7;
(g) The examination of places or sites, including the exhumation and
examination of grave sites;
(h) The execution of searches and seizures;
(i) The provision of records and documents, including official records and
documents;
(j) The protection of victims and witnesses and the preservation of evidence;
(k) The identification, tracing and freezing or seizure of proceeds, property
and assets and instrumentalities of crimes for the purpose of eventual
forfeiture, without prejudice to the rights of bona fide third parties; and
(l) Any other type of assistance which is not prohibited by the law of
the requested State, with a view to facilitating the investigation and
prosecution of crimes within the jurisdiction of the Court.
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2. The Court shall have the authority to provide an assurance to a witness or an
expert appearing before the Court that he or she will not be prosecuted, detained
or subjected to any restriction of personal freedom by the Court in respect of any
act or omission that preceded the departure of that person from the requested
State.
3. Where execution of a particular measure of assistance detailed in a request
presented under paragraph 1, is prohibited in the requested State on the basis of
an existing fundamental legal principle of general application, the requested State
shall promptly consult with the Court to try to resolve the matter. In the
consultations, consideration should be given to whether the assistance can be
rendered in another manner or subject to conditions. If after consultations the
matter cannot be resolved, the Court shall modify the request as necessary.
4. In accordance with article 72, a State Party may deny a request for assistance, in
whole or in part, only if the request concerns the production of any documents or
disclosure of evidence which relates to its national security.
5. Before denying a request for assistance under paragraph 1 (l), the requested State
shall consider whether the assistance can be provided subject to specified
conditions, or whether the assistance can be provided at a later date or in an
alternative manner, provided that if the Court or the Prosecutor accepts the
assistance subject to conditions, the Court or the Prosecutor shall abide by them.
6. If a request for assistance is denied, the requested State Party shall promptly
inform the Court or the Prosecutor of the reasons for such denial.
7. (a) The Court may request the temporary transfer of a person in custody for
purposes of identification or for obtaining testimony or other assistance.
The person may be transferred if the following conditions are fulfilled:
(i) The person freely gives his or her informed consent to the transfer;
and
(ii) The requested State agrees to the transfer, subject to such conditions
as that State and the Court may agree.
(b) The person being transferred shall remain in custody. When the purposes
of the transfer have been fulfilled, the Court shall return the person
without delay to the requested State.
8. (a) The Court shall ensure the confidentiality of documents and information,
except as required for the investigation and proceedings described in the
request.
(b) The requested State may, when necessary, transmit documents or
information to the Prosecutor on a confidential basis. The Prosecutor may
then use them solely for the purpose of generating new evidence.
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(c) The requested State may, on its own motion or at the request of the
Prosecutor, subsequently consent to the disclosure of such documents or
information. They may then be used as evidence pursuant to the
provisions of Parts 5 and 6 and in accordance with the Rules of Procedure
and Evidence.
9. (a) (i) In the event that a State Party receives competing requests, other
than for surrender or extradition, from the Court and from another
State pursuant to an international obligation, the State Party shall
endeavour, in consultation with the Court and the other State, to
meet both requests, if necessary by postponing or attaching
conditions to one or the other request.
(ii) Failing that, competing requests shall be resolved in accordance
with the principles established in article 90.
(b) Where, however, the request from the Court concerns information,
property or persons which are subject to the control of a third State or an
international organization by virtue of an international agreement, the
requested States shall so inform the Court and the Court shall direct its
request to the third State or international organization.
10. (a) The Court may, upon request, cooperate with and provide assistance to a
State Party conducting an investigation into or trial in respect of conduct
which constitutes a crime within the jurisdiction of the Court or which
constitutes a serious crime under the national law of the requesting State.
(b) (i) The assistance provided under subparagraph (a) shall include,
inter alia:
a. The transmission of statements, documents or other types of
evidence obtained in the course of an investigation or a trial
conducted by the Court; and
b. The questioning of any person detained by order of the Court;
(ii) In the case of assistance under subparagraph (b) (i) a:
a. If the documents or other types of evidence have been
obtained with the assistance of a State, such transmission shall
require the consent of that State;
b. If the statements, documents or other types of evidence have
been provided by a witness or expert, such transmission shall be
subject to the provisions of article 68.
(c) The Court may, under the conditions set out in this paragraph, grant a
request for assistance under this paragraph from a State which is not a
Party to this Statute.
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Article 94
Postponement of execution of a request in respect of ongoing
investigation or prosecution
1. If the immediate execution of a request would interfere with an ongoing
investigation or prosecution of a case different from that to which the request
relates, the requested State may postpone the execution of the request for a period
of time agreed upon with the Court. However, the postponement shall be no
longer than is necessary to complete the relevant investigation or prosecution in
the requested State. Before making a decision to postpone, the requested State
should consider whether the assistance may be immediately provided subject to
certain conditions.
2. If a decision to postpone is taken pursuant to paragraph 1, the Prosecutor
may, however, seek measures to preserve evidence, pursuant to article 93,
paragraph 1 (j).
Article 95
Postponement of execution of a request in respect of an admissibility
challenge
Where there is an admissibility challenge under consideration by the Court pursuant to article
18 or 19, the requested State may postpone the execution of a request under this Part pending
a determination by the Court, unless the Court has specifically ordered that the Prosecutor
may pursue the collection of such evidence pursuant to article 18 or 19.
Article 96
Contents of request for other forms of assistance under article 93
1. A request for other forms of assistance referred to in article 93 shall be made in
writing. In urgent cases, a request may be made by any medium capable of
delivering a written record, provided that the request shall be confirmed through
the channel provided for in article 87, paragraph 1 (a).
2. The request shall, as applicable, contain or be supported by the following:
(a) A concise statement of the purpose of the request and the assistance
sought, including the legal basis and the grounds for the request;
(b) As much detailed information as possible about the location or
identification of any person or place that must be found or identified in
order for the assistance sought to be provided;
(c) A concise statement of the essential facts underlying the request;
(d) The reasons for and details of any procedure or requirement to be
followed;
(e) Such information as may be required under the law of the requested State
in order to execute the request; and
(f) Any other information relevant in order for the assistance sought to be
provided.
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3. Upon the request of the Court, a State Party shall consult with the Court, either
generally or with respect to a specific matter, regarding any requirements under its
national law that may apply under paragraph 2 (e). During the consultations, the
State Party shall advise the Court of the specific requirements of its national law.
4. The provisions of this article shall, where applicable, also apply in respect of a
request for assistance made to the Court.
Article 97
Consultations
Where a State Party receives a request under this Part in relation to which it identifies
problems which may impede or prevent the execution of the request, that State shall consult
with the Court without delay in order to resolve the matter. Such problems may include, inter
alia:
(a) Insufficient information to execute the request;
(b) In the case of a request for surrender, the fact that despite best efforts, the
person sought cannot be located or that the investigation conducted has
determined that the person in the requested State is clearly not the person
named in the warrant; or
(c) The fact that execution of the request in its current form would require the
requested State to breach a pre-existing treaty obligation undertaken with
respect to another State.
Article 98
Cooperation with respect to waiver of immunity and consent to
surrender
1. The Court may not proceed with a request for surrender or assistance which would
require the requested State to act inconsistently with its obligations under
international law with respect to the State or diplomatic immunity of a person or
property of a third State, unless the Court can first obtain the cooperation of that
third State for the waiver of the immunity.
2. The Court may not proceed with a request for surrender which would require the
requested State to act inconsistently with its obligations under international
agreements pursuant to which the consent of a sending State is required to
surrender a person of that State to the Court, unless the Court can first obtain the
cooperation of the sending State for the giving of consent for the surrender.
Article 99
Execution of requests under articles 93 and 96
1. Requests for assistance shall be executed in accordance with the relevant
procedure under the law of the requested State and, unless prohibited by such law,
in the manner specified in the request, including following any procedure outlined
therein or permitting persons specified in the request to be present at and assist in
the execution process.
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2. In the case of an urgent request, the documents or evidence produced in response
shall, at the request of the Court, be sent urgently.
3. Replies from the requested State shall be transmitted in their original language
and form.
4. Without prejudice to other articles in this Part, where it is necessary for the
successful execution of a request which can be executed without any compulsory
measures, including specifically the interview of or taking evidence from a person
on a voluntary basis, including doing so without the presence of the authorities of
the requested State Party if it is essential for the request to be executed, and the
examination without modification of a public site or other public place, the
Prosecutor may execute such request directly on the territory of a State as follows:
(a) When the State Party requested is a State on the territory of which the
crime is alleged to have been committed, and there has been a
determination of admissibility pursuant to article 18 or 19, the Prosecutor
may directly execute such request following all possible consultations with
the requested State Party;
(b) In other cases, the Prosecutor may execute such request following
consultations with the requested State Party and subject to any reasonable
conditions or concerns raised by that State Party. Where the requested
State Party identifies problems with the execution of a request pursuant to
this subparagraph it shall, without delay, consult with the Court to resolve
the matter.
5. Provisions allowing a person heard or examined by the Court under article 72 to
invoke restrictions designed to prevent disclosure of confidential information
connected with national security shall also apply to the execution of requests for
assistance under this article.
Article 100
Costs
1. The ordinary costs for execution of requests in the territory of the requested State
shall be borne by that State, except for the following, which shall be borne by the
Court:
(a) Costs associated with the travel and security of witnesses and experts or
the transfer under article 93 of persons in custody;
(b) Costs of translation, interpretation and transcription;
(c) Travel and subsistence costs of the judges, the Prosecutor, the Deputy
Prosecutors, the Registrar, the Deputy Registrar and staff of any organ of
the Court;
(d) Costs of any expert opinion or report requested by the Court;
(e) Costs associated with the transport of a person being surrendered to the
Court by a custodial State; and
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(f) Following consultations, any extraordinary costs that may result from the
execution of a request.
2. The provisions of paragraph 1 shall, as appropriate, apply to requests from States
Parties to the Court. In that case, the Court shall bear the ordinary costs of
execution.
Article 101
Rule of speciality
1. A person surrendered to the Court under this Statute shall not be proceeded
against, punished or detained for any conduct committed prior to surrender, other
than the conduct or course of conduct which forms the basis of the crimes for
which that person has been surrendered.
2. The Court may request a waiver of the requirements of paragraph 1 from the State
which surrendered the person to the Court and, if necessary, the Court shall
provide additional information in accordance with article 91. States Parties
shall have the authority to provide a waiver to the Court and should endeavour to
do so.
Article 102
Use of terms
For the purposes of this Statute:
(a) "surrender" means the delivering up of a person by a State to the Court,
pursuant to this Statute.
(b) "extradition" means the delivering up of a person by one State to another
as provided by treaty, convention or national legislation.
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Part X Enforcement
Article 103
Role of States in enforcement of sentences of imprisonment
1. (a) A sentence of imprisonment shall be served in a State designated by the
Court from a list of States which have indicated to the Court their
willingness to accept sentenced persons.
(b) At the time of declaring its willingness to accept sentenced persons, a
State may attach conditions to its acceptance as agreed by the Court and in
accordance with this Part.
(c) A State designated in a particular case shall promptly inform the Court
whether it accepts the Court's designation.
2. (a) The State of enforcement shall notify the Court of any circumstances,
including the exercise of any conditions agreed under paragraph 1, which
could materially affect the terms or extent of the imprisonment. The Court
shall be given at least 45 days' notice of any such known or foreseeable
circumstances. During this period, the State of enforcement shall take no
action that might prejudice its obligations under article 110.
(b) Where the Court cannot agree to the circumstances referred to in
subparagraph (a), it shall notify the State of enforcement and proceed in
accordance with article 104, paragraph 1.
3. In exercising its discretion to make a designation under paragraph 1, the Court
shall take into account the following:
(a) The principle that States Parties should share the responsibility for
enforcing sentences of imprisonment, in accordance with principles of
equitable distribution, as provided in the Rules of Procedure and Evidence;
(b) The application of widely accepted international treaty standards
governing the treatment of prisoners;
(c) The views of the sentenced person;
(d) The nationality of the sentenced person;
(e) Such other factors regarding the circumstances of the crime or the person
sentenced, or the effective enforcement of the sentence, as may be
appropriate in designating the State of enforcement.
4. If no State is designated under paragraph 1, the sentence of imprisonment shall be
served in a prison facility made available by the host State, in accordance with the
conditions set out in the headquarters agreement referred to in article 3,
paragraph 2. In such a case, the costs arising out of the enforcement of a sentence
of imprisonment shall be borne by the Court.
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Article 104
Change in designation of State of enforcement
1. The Court may, at any time, decide to transfer a sentenced person to a prison of
another State.
2. A sentenced person may, at any time, apply to the Court to be transferred from the
State of enforcement.
Article 105
Enforcement of the sentence
1. Subject to conditions which a State may have specified in accordance with article
103, paragraph 1 (b), the sentence of imprisonment shall be binding on the States
Parties, which shall in no case modify it.
2. The Court alone shall have the right to decide any application for appeal and
revision. The State of enforcement shall not impede the making of any such
application by a sentenced person.
Article 106
Supervision of enforcement of sentences and conditions of
imprisonment
1. The enforcement of a sentence of imprisonment shall be subject to the supervision
of the Court and shall be consistent with widely accepted international treaty
standards governing treatment of prisoners.
2. The conditions of imprisonment shall be governed by the law of the State
of enforcement and shall be consistent with widely accepted international treaty
standards governing treatment of prisoners; in no case shall such conditions be
more or less favourable than those available to prisoners convicted of similar
offences in the State of enforcement.
3. Communications between a sentenced person and the Court shall be unimpeded
and confidential.
Article 107
Transfer of the person upon completion of sentence
1. Following completion of the sentence, a person who is not a national of the State
of enforcement may, in accordance with the law of the State of enforcement, be
transferred to a State which is obliged to receive him or her, or to another State
which agrees to receive him or her, taking into account any wishes of the person to
be transferred to that State, unless the State of enforcement authorizes the person
to remain in its territory.
2. If no State bears the costs arising out of transferring the person to another State
pursuant to paragraph 1, such costs shall be borne by the Court.
3. Subject to the provisions of article 108, the State of enforcement may also, in
accordance with its national law, extradite or otherwise surrender the person to a
State which has requested the extradition or surrender of the person for purposes
of trial or enforcement of a sentence.
74
Rome Statute of the International Criminal Court
Article 108
Limitation on the prosecution or punishment of other offences
1. A sentenced person in the custody of the State of enforcement shall not be subject
to prosecution or punishment or to extradition to a third State for any conduct
engaged in prior to that person's delivery to the State of enforcement, unless such
prosecution, punishment or extradition has been approved by the Court at the
request of the State of enforcement.
2. The Court shall decide the matter after having heard the views of the sentenced
person.
3. Paragraph 1 shall cease to apply if the sentenced person remains voluntarily for
more than 30 days in the territory of the State of enforcement after having served
the full sentence imposed by the Court, or returns to the territory of that State
after having left it.
Article 109
Enforcement of fines and forfeiture measures
1. States Parties shall give effect to fines or forfeitures ordered by the Court under
Part 7, without prejudice to the rights of bona fide third parties, and in accordance
with the procedure of their national law.
2. If a State Party is unable to give effect to an order for forfeiture, it shall take
measures to recover the value of the proceeds, property or assets ordered by the
Court to be forfeited, without prejudice to the rights of bona fide third parties.
3. Property, or the proceeds of the sale of real property or, where appropriate, the sale
of other property, which is obtained by a State Party as a result of its enforcement
of a judgement of the Court shall be transferred to the Court.
Article 110
Review by the Court concerning reduction of sentence
1. The State of enforcement shall not release the person before expiry of the sentence
pronounced by the Court.
2. The Court alone shall have the right to decide any reduction of sentence, and shall
rule on the matter after having heard the person.
3. When the person has served two thirds of the sentence, or 25 years in the case of
life imprisonment, the Court shall review the sentence to determine whether it
should be reduced. Such a review shall not be conducted before that time.
4. In its review under paragraph 3, the Court may reduce the sentence if it finds that
one or more of the following factors are present:
(a) The early and continuing willingness of the person to cooperate with the
Court in its investigations and prosecutions;
75
Rome Statute of the International Criminal Court
(b) The voluntary assistance of the person in enabling the enforcement of the
judgements and orders of the Court in other cases, and in particular
providing assistance in locating assets subject to orders of fine, forfeiture
or reparation which may be used for the benefit of victims; or
(c) Other factors establishing a clear and significant change of circumstances
sufficient to justify the reduction of sentence, as provided in the Rules of
Procedure and Evidence.
5. If the Court determines in its initial review under paragraph 3 that it is not
appropriate to reduce the sentence, it shall thereafter review the question of
reduction of sentence at such intervals and applying such criteria as provided for
in the Rules of Procedure and Evidence.
Article 111
Escape
If a convicted person escapes from custody and flees the State of enforcement, that State may,
after consultation with the Court, request the person's surrender from the State in which the
person is located pursuant to existing bilateral or multilateral arrangements, or may request
that the Court seek the person's surrender, in accordance with Part 9. It may direct that the
person be delivered to the State in which he or she was serving the sentence or to another
State designated by the Court.
76
Rome Statute of the International Criminal Court
Part XI Assembly of states parties
Article 112
Assembly of States Parties
1. An Assembly of States Parties to this Statute is hereby established. Each State
Party shall have one representative in the Assembly who may be accompanied by
alternates and advisers. Other States which have signed this Statute or the Final
Act may be observers in the Assembly.
2. The Assembly shall:
(a) Consider and adopt, as appropriate, recommendations of the Preparatory
Commission;
(b) Provide management oversight to the Presidency, the Prosecutor and the
Registrar regarding the administration of the Court;
(c) Consider the reports and activities of the Bureau established under
paragraph 3 and take appropriate action in regard thereto;
(d) Consider and decide the budget for the Court;
(e) Decide whether to alter, in accordance with article 36, the number of
judges;
(f) Consider pursuant to article 87, paragraphs 5 and 7, any question relating
to non-cooperation;
(g) Perform any other function consistent with this Statute or the Rules of
Procedure and Evidence.
3. (a) The Assembly shall have a Bureau consisting of a President, two
Vice-Presidents and 18 members elected by the Assembly for three-year
terms.
(b) The Bureau shall have a representative character, taking into account, in
particular, equitable geographical distribution and the adequate
representation of the principal legal systems of the world.
(c) The Bureau shall meet as often as necessary, but at least once a year. It
shall assist the Assembly in the discharge of its responsibilities.
4. The Assembly may establish such subsidiary bodies as may be necessary, including
an independent oversight mechanism for inspection, evaluation and investigation
of the Court, in order to enhance its efficiency and economy.
5. The President of the Court, the Prosecutor and the Registrar or their
representatives may participate, as appropriate, in meetings of the Assembly and
of the Bureau.
77
Rome Statute of the International Criminal Court
6. The Assembly shall meet at the seat of the Court or at the Headquarters of the
United Nations once a year and, when circumstances so require, hold special
sessions. Except as otherwise specified in this Statute, special sessions shall be
convened by the Bureau on its own initiative or at the request of one third of the
States Parties.
7. Each State Party shall have one vote. Every effort shall be made to reach decisions
by consensus in the Assembly and in the Bureau. If consensus cannot be reached,
except as otherwise provided in the Statute:
(a) Decisions on matters of substance must be approved by a two-thirds
majority of those present and voting provided that an absolute majority of
States Parties constitutes the quorum for voting;
(b) Decisions on matters of procedure shall be taken by a simple majority of
States Parties present and voting.
8. A State Party which is in arrears in the payment of its financial contributions
towards the costs of the Court shall have no vote in the Assembly and in the
Bureau if the amount of its arrears equals or exceeds the amount of the
contributions due from it for the preceding two full years. The Assembly may,
nevertheless, permit such a State Party to vote in the Assembly and in the Bureau
if it is satisfied that the failure to pay is due to conditions beyond the control of the
State Party.
9. The Assembly shall adopt its own rules of procedure.
10. The official and working languages of the Assembly shall be those of the General
Assembly of the United Nations.
78
Rome Statute of the International Criminal Court
Part XII Financing
Article 113
Financial Regulations
Except as otherwise specifically provided, all financial matters related to the Court and the
meetings of the Assembly of States Parties, including its Bureau and subsidiary bodies, shall
be governed by this Statute and the Financial Regulations and Rules adopted by the Assembly
of States Parties.
Article 114
Payment of expenses
Expenses of the Court and the Assembly of States Parties, including its Bureau and subsidiary
bodies, shall be paid from the funds of the Court.
Article 115
Funds of the Court and of the Assembly of States Parties
The expenses of the Court and the Assembly of States Parties, including its Bureau and
subsidiary bodies, as provided for in the budget decided by the Assembly of States Parties,
shall be provided by the following sources:
(a) Assessed contributions made by States Parties;
(b) Funds provided by the United Nations, subject to the approval of the
General Assembly, in particular in relation to the expenses incurred due to
referrals by the Security Council.
Article 116
Voluntary contributions
Without prejudice to article 115, the Court may receive and utilize, as additional funds,
voluntary contributions from Governments, international organizations, individuals,
corporations and other entities, in accordance with relevant criteria adopted by the Assembly
of States Parties.
Article 117
Assessment of contributions
The contributions of States Parties shall be assessed in accordance with an agreed scale of
assessment, based on the scale adopted by the United Nations for its regular budget and
adjusted in accordance with the principles on which that scale is based.
Article 118
Annual audit
The records, books and accounts of the Court, including its annual financial statements, shall
be audited annually by an independent auditor.
79
Rome Statute of the International Criminal Court
Part XIII Final clauses
Article 119
Settlement of disputes
1. Any dispute concerning the judicial functions of the Court shall be settled by the
decision of the Court.
2. Any other dispute between two or more States Parties relating to the
interpretation or application of this Statute which is not settled through
negotiations within three months of their commencement shall be referred to the
Assembly of States Parties. The Assembly may itself seek to settle the dispute or
may make recommendations on further means of settlement of the dispute,
including referral to the International Court of Justice in conformity with the
Statute of that Court.
Article 120
Reservations
No reservations may be made to this Statute.
Article 121
Amendments
1. After the expiry of seven years from the entry into force of this Statute, any State
Party may propose amendments thereto. The text of any proposed amendment
shall be submitted to the Secretary-General of the United Nations, who shall
promptly circulate it to all States Parties.
2. No sooner than three months from the date of notification, the Assembly of States
Parties, at its next meeting, shall, by a majority of those present and voting, decide
whether to take up the proposal. The Assembly may deal with the proposal
directly or convene a Review Conference if the issue involved so warrants.
3. The adoption of an amendment at a meeting of the Assembly of States Parties or
at a Review Conference on which consensus cannot be reached shall require a
two-thirds majority of States Parties.
4. Except as provided in paragraph 5, an amendment shall enter into force for all
States Parties one year after instruments of ratification or acceptance have been
deposited with the Secretary-General of the United Nations by seven-eighths of
them.
5. Any amendment to articles 5, 6, 7 and 8 of this Statute shall enter into force for
those States Parties which have accepted the amendment one year after the
deposit of their instruments of ratification or acceptance. In respect of a State
Party which has not accepted the amendment, the Court shall not exercise its
jurisdiction regarding a crime covered by the amendment when committed by that
State Party's nationals or on its territory.
80
Rome Statute of the International Criminal Court
6. If an amendment has been accepted by seven-eighths of States Parties in
accordance with paragraph 4, any State Party which has not accepted the
amendment may withdraw from this Statute with immediate effect,
notwithstanding article 127, paragraph 1, but subject to article 127, paragraph 2,
by giving notice no later than one year after the entry into force of such
amendment.
7. The Secretary-General of the United Nations shall circulate to all States Parties
any amendment adopted at a meeting of the Assembly of States Parties or at a
Review Conference.
Article 122
Amendments to provisions of an institutional nature
1. Amendments to provisions of this Statute which are of an exclusively institutional
nature, namely, article 35, article 36, paragraphs 8 and 9, article 37, article 38,
article 39, paragraphs 1 (first two sentences), 2 and 4, article 42, paragraphs 4 to 9,
article 43, paragraphs 2 and 3, and articles 44, 46, 47 and 49, may be proposed at
any time, notwithstanding article 121, paragraph 1, by any State Party. The text of
any proposed amendment shall be submitted to the Secretary-General of the
United Nations or such other person designated by the Assembly of States Parties
who shall promptly circulate it to all States Parties and to others participating in
the Assembly.
2. Amendments under this article on which consensus cannot be reached shall be
adopted by the Assembly of States Parties or by a Review Conference, by a twothirds
majority of States Parties. Such amendments shall enter into force for all
States Parties six months after their adoption by the Assembly or, as the case may
be, by the Conference.
Article 123
Review of the Statute
1. Seven years after the entry into force of this Statute the Secretary-General of the
United Nations shall convene a Review Conference to consider any amendments
to this Statute. Such review may include, but is not limited to, the list of crimes
contained in article 5. The Conference shall be open to those participating in the
Assembly of States Parties and on the same conditions.
2. At any time thereafter, at the request of a State Party and for the purposes set out
in paragraph 1, the Secretary-General of the United Nations shall, upon approval
by a majority of States Parties, convene a Review Conference.
3. The provisions of article 121, paragraphs 3 to 7, shall apply to the adoption and
entry into force of any amendment to the Statute considered at a Review
Conference.
81
Rome Statute of the International Criminal Court
Article 124
Transitional Provision
Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute,
may declare that, for a period of seven years after the entry into force of this Statute for the
State concerned, it does not accept the jurisdiction of the Court with respect to the category of
crimes referred to in article 8 when a crime is alleged to have been committed by its nationals
or on its territory. A declaration under this article may be withdrawn at any time. The
provisions of this article shall be reviewed at the Review Conference convened in accordance
with article 123, paragraph 1.
Article 125
Signature, ratification, acceptance, approval or accession
1. This Statute shall be open for signature by all States in Rome, at the headquarters
of the Food and Agriculture Organization of the United Nations, on 17 July 1998.
Thereafter, it shall remain open for signature in Rome at the Ministry of Foreign
Affairs of Italy until 17 October 1998. After that date, the Statute shall
remain open for signature in New York, at United Nations Headquarters, until 31
December 2000.
2. This Statute is subject to ratification, acceptance or approval by signatory States.
Instruments of ratification, acceptance or approval shall be deposited with the
Secretary-General of the United Nations.
3. This Statute shall be open to accession by all States. Instruments of accession shall
be deposited with the Secretary-General of the United Nations.
Article 126
Entry into force
1. This Statute shall enter into force on the first day of the month after the 60th day
following the date of the deposit of the 60th instrument of ratification, acceptance,
approval or accession with the Secretary-General of the United Nations.
2. For each State ratifying, accepting, approving or acceding to this Statute after the
deposit of the 60th instrument of ratification, acceptance, approval or accession,
the Statute shall enter into force on the first day of the month after the 60th day
following the deposit by such State of its instrument of ratification, acceptance,
approval or accession.
Article 127
Withdrawal
1. A State Party may, by written notification addressed to the Secretary-General of
the United Nations, withdraw from this Statute. The withdrawal shall take effect
one year after the date of receipt of the notification, unless the notification
specifies a later date.
82
Rome Statute of the International Criminal Court
2. A State shall not be discharged, by reason of its withdrawal, from the obligations
arising from this Statute while it was a Party to the Statute, including any financial
obligations which may have accrued. Its withdrawal shall not affect any
cooperation with the Court in connection with criminal investigations and
proceedings in relation to which the withdrawing State had a duty to cooperate
and which were commenced prior to the date on which the withdrawal became
effective, nor shall it prejudice in any way the continued consideration of any
matter which was already under consideration by the Court prior to the date on
which the withdrawal became effective.
Article 128
Authentic texts
The original of this Statute, of which the Arabic, Chinese, English, French, Russian and
Spanish texts are equally authentic, shall be deposited with the Secretary-General of the
United Nations, who shall send certified copies thereof to all States.
Inwitness whereof, the undersigned, being duly authorized thereto by their respective
Governments, have signed this Statute.
Done at Rome, this 17th day of July 1998.
Annex 750
Mahuika et al. v. New Zealand, Communication No. 547 / 1993, U.N. Doc.
CCPR/C/70/D/547/1993 (27 October 2000)

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q,->rrMF>230>@rr`>2F1arrl0/g@


Annex 751
Althammer v. Austria, Communication No. 998/2001, U.N. Doc CCPR/C/78/D/998/2001 (22
September 2003)

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Annex 752
Cecilia Derksen v. Netherlands, Communication No. 976/2001, U.N. Doc CCPR/C/D/976/2001
(1 April 2004)

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Annex 753
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)

1
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
Geneva, 25 January 2005
2
International Commission of Inquiry on Darfur
Report to the Secretary-General
Executive Summary
Acting under Chapter VII of the United Nations Charter, on 18 September 2004 the Security Council
adopted resolution 1564 requesting, inter alia, that the Secretary-General ‘rapidly establish an
international commission of inquiry in order immediately to investigate reports of violations of
international humanitarian law and human rights law in Darfur by all parties, to determine also whether
or not acts of genocide have occurred, and to identify the perpetrators of such violations with a view to
ensuring that those responsible are held accountable’.
In October 2004, the Secretary General appointed Antonio Cassese (Chairperson), Mohamed Fayek,
Hina Jilani, Dumisa Ntsebeza and Therese Striggner-Scott as members of the Commission and requested
that they report back on their findings within three months. The Commission was supported in its work
by a Secretariat headed by an Executive Director, Ms. Mona Rishmawi, as well as a legal research team
and an investigative team composed of investigators, forensic experts, military analysts, and
investigators specializing in gender violence, all appointed by the Office of the United Nations High
Commissioner for Human Rights. The Commission assembled in Geneva and began its work on 25
October 2004.
In order to discharge its mandate, the Commission endeavoured to fulfil four key tasks: (1) to investigate
reports of violations of international humanitarian law and human rights law in Darfur by all parties; (2)
to determine whether or not acts of genocide have occurred; (3) to identify the perpetrators of violations
of international humanitarian law and human rights law in Darfur; and (4) to suggest means of ensuring
that those responsible for such violations are held accountable. While the Commission considered all
events relevant to the current conflict in Darfur, it focused in particular on incidents that occurred
between February 2003 and mid-January 2005.
The Commission engaged in a regular dialogue with the Government of the Sudan throughout its
mandate, in particular through meetings in Geneva and in the Sudan, as well as through the work of its
investigative team. The Commission visited the Sudan from 7-21 November 2004 and 9-16 January
2005, including travel to the three Darfur States. The investigative team remained in Darfur from
November 2004 through January 2005. During its presence in the Sudan, the Commission held extensive
meetings with representatives of the Government, the Governors of the Darfur States and other senior
officials in the capital and at provincial and local levels, members of the armed forces and police, leaders
of rebel forces, tribal leaders, internally displaced persons, victims and witnesses of violations, NGOs
and United Nations representatives.
The Commission submitted a full report on its findings to the Secretary-General on 25 January 2005.
The report describes the terms of reference, methodology, approach and activities of the Commission
and its investigative team. It also provides an overview of the historical and social background to the
conflict in Darfur. The report then addresses in detail the four key tasks referred to above, namely the
3
Commission’s findings in relation to: i) violations of international human rights and humanitarian law by
all parties; ii) whether or not acts of genocide have taken place; iii) the identification of perpetrators; and
iv) accountability mechanisms. These four sections are briefly summarized below.
I. Violations of international human rights law and international humanitarian law
In accordance with its mandate to ‘investigate reports of violations of human rights law and international
humanitarian law’, the Commission carefully examined reports from different sources including
Governments, inter-governmental organizations, United Nations bodies and mechanisms, as well as nongovernmental
organizations.
The Commission took as the starting point for its work two irrefutable facts regarding the situation in
Darfur. Firstly, according to United Nations estimates there are 1,65 million internally displaced persons
in Darfur, and more than 200,000 refugees from Darfur in neighbouring Chad. Secondly, there has been
large-scale destruction of villages throughout the three states of Darfur. The Commission conducted
independent investigations to establish additional facts and gathered extensive information on multiple
incidents of violations affecting villages, towns and other locations across North, South and West
Darfur. The conclusions of the Commission are based on the evaluation of the facts gathered or verified
through its investigations.
Based on a thorough analysis of the information gathered in the course of its investigations, the
Commission established that the Government of the Sudan and the Janjaweed are responsible for serious
violations of international human rights and humanitarian law amounting to crimes under international
law. In particular, the Commission found that Government forces and militias conducted indiscriminate
attacks, including killing of civilians, torture, enforced disappearances, destruction of villages, rape and
other forms of sexual violence, pillaging and forced displacement, throughout Darfur. These acts were
conducted on a widespread and systematic basis, and therefore may amount to crimes against humanity.
The extensive destruction and displacement have resulted in a loss of livelihood and means of survival
for countless women, men and children. In addition to the large scale attacks, many people have been
arrested and detained, and many have been held incommunicado for prolonged periods and tortured. The
vast majority of the victims of all of these violations have been from the Fur, Zaghawa, Massalit, Jebel,
Aranga and other so-called ‘African’ tribes.
In their discussions with the Commission, Government of the Sudan officials stated that any attacks
carried out by Government armed forces in Darfur were for counter-insurgency purposes and were
conducted on the basis of military imperatives. However, it is clear from the Commission’s findings that
most attacks were deliberately and indiscriminately directed against civilians. Moreover even if rebels,
or persons supporting rebels, were present in some of the villages – which the Commission considers
likely in only a very small number of instances - the attackers did not take precautions to enable civilians
to leave the villages or otherwise be shielded from attack. Even where rebels may have been present in
villages, the impact of the attacks on civilians shows that the use of military force was manifestly
disproportionate to any threat posed by the rebels.
The Commission is particularly alarmed that attacks on villages, killing of civilians, rape, pillaging and
forced displacement have continued during the course of the Commission’s mandate. The Commission
considers that action must be taken urgently to end these violations.
4
While the Commission did not find a systematic or a widespread pattern to these violations, it found
credible evidence that rebel forces, namely members of the SLA and JEM, also are responsible for
serious violations of international human rights and humanitarian law which may amount to war crimes.
In particular, these violations include cases of murder of civilians and pillage.
II. Have acts of genocide occurred?
The Commission concluded that the Government of the Sudan has not pursued a policy of genocide.
Arguably, two elements of genocide might be deduced from the gross violations of human rights
perpetrated by Government forces and the militias under their control. These two elements are, first, the
actus reus consisting of killing, or causing serious bodily or mental harm, or deliberately inflicting
conditions of life likely to bring about physical destruction; and, second, on the basis of a subjective
standard, the existence of a protected group being targeted by the authors of criminal conduct. However,
the crucial element of genocidal intent appears to be missing, at least as far as the central Government
authorities are concerned. 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 organized attacks on villages pursued the intent to drive the victims from their homes,
primarily for purposes of counter-insurgency warfare.
The Commission does recognise that in some instances individuals, including Government officials, may
commit acts with genocidal intent. Whether this was the case in Darfur, however, is a determination that
only a competent court can make on a case by case basis.
The conclusion that no genocidal policy has been pursued and implemented in Darfur by the
Government authorities, directly or through the militias under their control, should not be taken in any
way as detracting from the gravity of the crimes perpetrated in that region. International offences such as
the crimes against humanity and war crimes that have been committed in Darfur may be no less serious
and heinous than genocide.
III. Identification of perpetrators
The Commission has collected reliable and consistent elements which indicate the responsibility of some
individuals for serious violations of international human rights law and international humanitarian law,
including crimes against humanity or war crimes, in Darfur. In order to identify perpetrators, the
Commission decided that there must be ‘a reliable body of material consistent with other verified
circumstances, which tends to show that a person may reasonably be suspected of being involved in the
commission of a crime.’ The Commission therefore makes an assessment of likely suspects, rather than
a final judgment as to criminal guilt.
Those identified as possibly responsible for the above-mentioned violations consist of individual
perpetrators, including officials of the Government of Sudan, members of militia forces, members of
rebel groups, and certain foreign army officers acting in their personal capacity. Some Government
officials, as well as members of militia forces, have also been named as possibly responsible for joint
criminal enterprise to commit international crimes. Others are identified for their possible involvement
in planning and/or ordering the commission of international crimes, or of aiding and abetting the
5
perpetration of such crimes. The Commission also has identified a number of senior Government
officials and military commanders who may be responsible, under the notion of superior (or command)
responsibility, for knowingly failing to prevent or repress the perpetration of crimes. Members of rebel
groups are named as suspected of participating in a joint criminal enterprise to commit international
crimes, and as possibly responsible for knowingly failing to prevent or repress the perpetration of crimes
committed by rebels.
The Commission has decided to withhold the names of these persons from the public domain. This
decision is based on three main grounds: 1) the importance of the principles of due process and respect
for the rights of the suspects; 2) the fact that the Commission has not been vested with investigative or
prosecutorial powers; and 3) the vital need to ensure the protection of witnesses from possible
harassment or intimidation. The Commission instead will list the names in a sealed file that will be
placed in the custody of the UN Secretary-General. The Commission recommends that this file be
handed over to a competent Prosecutor (the Prosecutor of the International Criminal Court, according to
the Commission’s recommendations), who will use that material as he or she deems fit for his or her
investigations. A distinct and very voluminous sealed file, containing all the evidentiary material
collected by the Commission, will be handed over to the High Commissioner for Human Rights. This
file should be delivered to a competent Prosecutor.
IV. Accountability mechanisms
The Commission strongly recommends that the Security Council immediately refer the situation of
Darfur to the International Criminal Court, pursuant to article 13(b) of the ICC Statute. As repeatedly
stated by the Security Council, the situation constitutes a threat to international peace and security.
Moreover, as the Commission has confirmed, serious violations of international human rights law and
humanitarian law by all parties are continuing. The prosecution by the ICC of persons allegedly
responsible for the most serious crimes in Darfur would contribute to the restoration of peace in the
region.
The alleged crimes that have been documented in Darfur meet the thresholds of the Rome Statute as
defined in articles 7 (1), 8 (1) and 8 (f). There is an internal armed conflict in Darfur between the
governmental authorities and organized armed groups. A body of reliable information indicates that war
crimes may have been committed on a large-scale, at times even as part of a plan or a policy. There is
also a wealth of credible material which suggests that criminal acts were committed as part of
widespread or systematic attacks directed against the civilian population, with knowledge of the attacks.
In the opinion of the Commission therefore, these may amount to crimes against humanity.
The Sudanese justice system is unable and unwilling to address the situation in Darfur. This system has
been significantly weakened during the last decade. Restrictive laws that grant broad powers to the
executive have undermined the effectiveness of the judiciary, and many of the laws in force in Sudan
today contravene basic human rights standards. Sudanese criminal laws do not adequately proscribe war
crimes and crimes against humanity, such as those carried out in Darfur, and the Criminal Procedure
Code contains provisions that prevent the effective prosecution of these acts. In addition, many victims
informed the Commission that they had little confidence in the impartiality of the Sudanese justice
system and its ability to bring to justice the perpetrators of the serious crimes committed in Darfur. In
any event, many have feared reprisals in the event that they resort to the national justice system.
6
The measures taken so far by the Government to address the crisis have been both grossly inadequate
and ineffective, which has contributed to the climate of almost total impunity for human rights violations
in Darfur. Very few victims have lodged official complaints regarding crimes committed against them or
their families, due to a lack of confidence in the justice system. Of the few cases where complaints have
been made, most have not been properly pursued. Furthermore, procedural hurdles limit the victims’
access to justice. Despite the magnitude of the crisis and its immense impact on civilians in Darfur, the
Government informed the Commission of very few cases of individuals who have been prosecuted, or
even disciplined, in the context of the current crisis.
The Commission considers that the Security Council must act not only against the perpetrators but also
on behalf of the victims. It therefore recommends the establishment of a Compensation Commission
designed to grant reparation to the victims of the crimes, whether or not the perpetrators of such crimes
have been identified.
It further recommends a number of serious measures to be taken by the Government of the Sudan, in
particular (i) ending the impunity for the war crimes and crimes against humanity committed in Darfur;
(ii) strengthening the independence and impartiality of the judiciary, and empowering courts to address
human rights violations; (iii) granting full and unimpeded access by the International Committee of the
Red Cross and United Nations human rights monitors to all those detained in relation to the situation in
Darfur; (iv) ensuring the protection of all the victims and witnesses of human rights violations; (v)
enhancing the capacity of the Sudanese judiciary through the training of judges, prosecutors and
lawyers; (vi) respecting the rights of IDPs and fully implementing the Guiding Principles on Internal
Displacement, particularly with regard to facilitating the voluntary return of IDPs in safety and dignity;
(vii) fully cooperating with the relevant human rights bodies and mechanisms of the United Nations and
the African Union; and (viii) creating, through a broad consultative process, a truth and reconciliation
commission once peace is established in Darfur.
The Commission also recommends a number of measures to be taken by other bodies to help break the
cycle of impunity. These include the exercise of universal jurisdiction by other States, re-establishment
by the Commission on Human Rights of the mandate of the Special Rapporteur on human rights in
Sudan, and public and periodic reports on the human rights situation in Darfur by the High
Commissioner for Human Rights.
7
INTRODUCTION................................................................................................................................................................ 9
I. THE ROLE OF THE COMMISSION OF INQUIRY............................................................................................ 9
1. Establishment of the Commission .......................................................................................................................... 9
2. Terms of reference................................................................................................................................................... 9
3. Working methods................................................................................................................................................... 11
4. Principal constraints under which the Commission has operated..................................................................... 12
5. Brief account of the Commission’s visits to the Sudan....................................................................................... 13
6. Cooperation of the Sudanese authorities and the rebels..................................................................................... 14
II. THE HISTORICAL AND SOCIAL BACKGROUND......................................................................................... 17
1. The Sudan .............................................................................................................................................................. 17
2. Darfur..................................................................................................................................................................... 19
3. The Current Conflict in Darfur ............................................................................................................................ 22
SECTION I.......................................................................................................................................................................... 26
THE COMMISSION’S FINDINGS OF VIOLATIONS OF INTERNATIONAL HUMAN RIGHTS LAW AND
HUMANITARIAN LAW BY THE PARTIES ............................................................................................................... 26
I. INTRODUCTION...................................................................................................................................................... 26
II. THE NATURE OF THE CONFLICT IN DARFUR............................................................................................. 26
III. CATEGORIES OF PERSONS OR GROUPS PARTICIPATING IN THE ARMED CONFLICT ............ 27
1. Government Armed Forces ................................................................................................................................... 27
2. Government supported and/or controlled militias – The Janjaweed ................................................................. 31
3. Rebel movement groups ........................................................................................................................................ 37
IV. THE INTERNATIONAL LEGAL OBLIGATIONS INCUMBENT UPON THE SUDANESE
GOVERNMENT AND THE REBELS....................................................................................................................... 40
1. Relevant Rules of International Law Binding the Government of the Sudan .................................................. 41
2. Rules binding rebels .............................................................................................................................................. 51
V. CATEGORIES OF INTERNATIONAL CRIMES............................................................................................ 51
VI. VIOLATIONS OF INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN LAW – THE
COMMISION’S FACTUAL AND LEGAL FINDINGS.......................................................................................... 53
1. Overview of violations of international human rights and humanitarian law reported by other bodies. ....... 53
2. Information provided by the Government of the Sudan ..................................................................................... 57
3. Information provided by the rebel groups........................................................................................................... 59
4. The task of the Commission.................................................................................................................................. 60
5. Two Irrefutable Facts: Massive displacement and large-scale destruction of villages. ................................... 61
6. Violations committed by the parties...................................................................................................................... 63
VI. ACTION OF SUDANESE BODIES TO STOP AND REMEDY VIOLATIONS.......................................... 108
1. Action by the police.............................................................................................................................................. 108
2. Action by the Judiciary........................................................................................................................................ 110
3. Sudanese Laws Relevant to the Present Inquiry ............................................................................................... 113
4. Action by Other Bodies........................................................................................................................................ 115
VII. ACTION BY THE REBELS TO REMEDY THE VIOLATIONS THEY COMMITTED ......................... 123
SECTION II ...................................................................................................................................................................... 124
HAVE ACTS OF GENOCIDE OCCURRED?............................................................................................................. 124
I. THE NOTION OF GENOCIDE............................................................................................................................. 124
II. DO THE CRIMES PERPETRATED IN DARFUR CONSTITUTE ACTS OF GENOCIDE? ..................... 129
SECTION III .................................................................................................................................................................... 133
IDENTIFICATION OF THE POSSIBLE PERPETRATORS OF INTERNATIONAL CRIMES....................... 133
I. GENERAL................................................................................................................................................................ 133
II. MODES OF CRIMINAL LIABILITY FOR INTERNATIONAL CRIMES................................................... 135
1. Perpetration or co-perpetration of international crimes................................................................................... 135
2. Joint criminal enterprise to commit international crimes .............................................................................. 136
3. Aiding and abetting international crimes .......................................................................................................... 139
4. Planning international crimes ............................................................................................................................ 140
5. Ordering international crimes ............................................................................................................................ 140
6. Failing to prevent or repress the perpetration of international crimes (superior responsibility)................... 141
SECTION IV..................................................................................................................................................................... 144
8
POSSIBLE MECHANISMS TO ENSURE ACCOUNTABILITY FOR THE CRIMES COMMITTED IN
DARFUR ........................................................................................................................................................................... 144
I.GENERAL: THE INADEQUACIES OF THE SUDANESE JUDICIAL CRIMINAL SYSTEM AND THE
CONSEQUENT NEED TO PROPOSE OTHER CRIMINAL MECHANISMS ................................................. 144
II. MEASURES TO BE TAKEN BY THE SECURITY COUNCIL ...................................................................... 145
1. Referral to the International Criminal Court ................................................................................................... 145
2. Establishment of a Compensation Commission ................................................................................................ 149
III. POSSIBLE MEASURES BY OTHER BODIES................................................................................................ 153
1. Possible role of national courts of States other than Sudan............................................................................. 153
2. Truth and Reconciliation Commission .............................................................................................................. 156
3. Strengthening the Sudanese Criminal Justice System..................................................................................... 157
SECTION V ...................................................................................................................................................................... 158
CONCLUSIONS AND RECOMMENDATIONS ........................................................................................................ 158
I. FACTUAL AND LEGAL FINDINGS .................................................................................................................. 158
II. DO THE CRIMES PERPETRATED IN DARFUR CONSTITUTE ACTS OF GENOCIDE?................... 160
III. WHO ARE THE PERPETRATORS? ............................................................................................................... 161
IV. THE COMMISSION’S RECOMMENDATIONS CONCERNING MEASURES DESIGNED TO
ENSURE THAT THOSE RESPONSIBLE ARE HELD ACCOUNTABLE ....................................................... 162
1. Measures that should be taken by the Security Council ................................................................................... 162
2. Action that should be taken by the Sudanese authorities ................................................................................. 163
3. Measures That Could be Taken by Other Bodies.............................................................................................. 164
9
INTRODUCTION
I. THE ROLE OF THE COMMISSION OF INQUIRY
1. Establishment of the Commission
1. The International Commission of Inquiry on Darfur (henceforth the Commission) was
established pursuant to United Nations Security Council resolution 1564 (2004), adopted on 18
September 2004. The resolution, passed under Chapter VII of the United Nations Charter, requested the
Secretary-General rapidly to set up the Commission. In October 2004 the Secretary-General appointed a
five member body (Mr. Antonio Cassese, from Italy; Mr. Mohammed Fayek, from Egypt; Ms Hina
Jilani, from Pakistan; Mr. Dumisa Ntsebeza, from South Africa, and Ms Theresa Striggner-Scott, from
Ghana), and designated Mr. Cassese as its Chairman. The Secretary-General decided that the
Commission’s staff should be provided by the Office of the High Commissioner for Human Rights. Ms
Mona Rishmawi was appointed Executive Director of the Commission and head of its staff. The
Commission assembled in Geneva and began its work on 25 October 2004. The Secretary-General
requested the Commission to report to him within three months, i.e. by 25 January 2005.
2. Terms of reference
2. In § 12, resolution 1564 (2004) sets out the following tasks for the Commission: “to investigate
reports of violations of international humanitarian law and human rights law in Darfur by all parties”;
“to determine also whether or not acts of genocide have occurred”; and “to identify the perpetrators of
such violations”; “with a view to ensuring that those responsible are held accountable”. Under the
resolution, these tasks must be discharged “immediately”.
3. The first of the above tasks implies that the Commission, rather than investigating alleged
violations, must investigate “reports” of such violations committed by “all parties”. This means that it is
mandated to establish facts relating to possible violations of international human rights and humanitarian
law committed in Darfur.. In this respect the Commission must act as a fact-finding body, beginning
with an assessment of information contained in the various reports made by other bodies including
Governments, United Nations bodies, organs of other intergovernmental organizations, as well as NGOs.
4. It also falls to the Commission to characterize, from the viewpoint of international criminal law,
the violations of international human rights law and humanitarian law it may establish. This legal
characterization is implicitly required by the further tasks of the Commission set out by the Security
Council, namely (i) to establish whether those violations amount to genocide, and (ii) to identify the
perpetrators. Clearly, the Commission may not be in a position to fulfil these tasks if it has not
previously established (a) whether the violations amount to international crimes, and, if so, (b) under
what categories of crimes they fall (war crimes, crimes against humanity, genocide, or other crimes).
This classification is required not only for the purpose of determining whether those crimes amount to
genocide, but also for the process of identifying the perpetrators. In order to name particular persons as
suspected perpetrators, it is necessary to define the international crimes for which they might be held
responsible.
10
5. The second task with which the Security Council entrusted the Commission is that of legally
characterizing the reported violations with a view to ascertaining whether they amount to genocide.
6. The third task is that of “identifying the perpetrators of violations” “with a view to ensuring that
those responsible are held accountable”. This requires the Commission not only to identify the
perpetrators, but also to suggest possible mechanisms for holding those perpetrators accountable. The
Commission therefore must collect a reliable body of material that indicate which individuals may be
responsible for violations committed in Darfur and who should therefore be brought to trial with a view
to determining their liability. The Commission has not been endowed with the powers proper to a
prosecutor (in particular, it may not subpoena witnesses, or order searches or seizures, nor may it request
a judge to issue arrest warrants against suspects). It may rely only upon the obligation of the
Government of the Sudan and the rebels to cooperate. Its powers are therefore limited by the manner in
which the Government and the rebels fulfil this obligation.
7. In order to discharge its mandate in conformity with the international law that it is bound to
apply, the Commission has to interpret the word “perpetrators” as covering the executioners or material
authors of international crimes, as well as those who may have participated in the commission of such
crimes under the notion of joint criminal enterprise, or ordered their perpetration, or aided or abetted the
crimes, or in any other manner taken part in their perpetration. The Commission has included in this
inquiry those who may be held responsible for international crimes, under the notion of superior
responsibility, because they failed to prevent or repress the commission of such crimes although they a)
had (or should have had) knowledge of their commission, and b) wielded control over the persons who
perpetrated them. This interpretation is justified by basic principles of international criminal law, which
provide that individual criminal responsibility arises when a person materially commits a crime, as well
as when he or she engages in other forms or modalities of criminal conduct.
8. Furthermore, the language of the Security Council resolution makes it clear that the request to
“identify perpetrators” is “with a view to ensuring that those responsible are held accountable”. In § 7
the resolution reiterates its request to the Government of the Sudan “to end the climate of impunity in
Darfur” and to bring to justice “all those responsible, including members of popular defence forces and
Janjaweed militias” for violations of human rights law and international humanitarian law (emphasis
added). Furthermore, the tasks of the Commission include that of “ensuring that those responsible are
held accountable”. Thus, the Security Council has made it clear that it intends for the Commission to
identify all those responsible for alleged international crimes in Darfur. This is corroborated by an
analysis of the objective of the Security Council: if this body aimed at putting an end to atrocities, why
should the Commission confine itself to the material perpetrators, given that those who bear the greatest
responsibility normally are the persons who are in command, and who either plan or order crimes, or
knowingly condone or acquiesce in their perpetration?
9. This interpretation is also in keeping with the wording of the same paragraph in other official
languages (for instance, the French text speaks of “auteurs de ces violations” and the Spanish text of
“los autores de tales transgresiones”). It is true that in many cases a superior may not be held to have
taken part in the crimes of his or her subordinates, in which case he or she would not be regarded as a
perpetrator or author of those crimes. In those instances where criminal actions by subordinates are
isolated episodes, the superior may be responsible only for failing to “submit the matter to the competent
11
authorities for investigation and prosecution”1. In such instances, unquestionably the superior may not
be considered as the author of the crime perpetrated by his or her subordinates. However, when crimes
are committed regularly and on a large scale, as part of a pattern of criminal conduct, the responsibility
of the superior is more serious. By failing to stop the crimes and to punish the perpetrators, he or she in a
way takes part in their commission.
10. The fourth task assigned to the Commission therefore is linked to the third and is aimed at
ensuring that “those responsible are held accountable”. To this effect, the Commission intends to
propose measures for ensuring that those responsible for international crimes in Darfur are brought to
justice.
11. As is clear from the relevant Security Council resolution, the Commission is mandated to
consider only the situation in the Darfur region of the Sudan. With regard to the time-frame, the
Commission’s mandate is inferred by the resolution. While the Commission considered all events
relevant to the current conflict in Darfur, it focused in particular on incidents that occurred between
February 2003, when the magnitude, intensity and consistency of incidents noticeably increased, until
mid-January 2005 just before the Commission was required to submit its report.
3. Working methods
12. As stated above, the Commission started its work in Geneva on 25 October 2004. It immediately
discussed and agreed upon its terms of reference and methods of work. On 28 October 2004 it sent a
Note Verbale to Member States and intergovernmental organizations, and on 2 November 2004 it sent a
letter to non-governmental organizations, providing information about its mandate and seeking relevant
information. It also posted information on its mandate, composition and contact details on the web-site
of the Office of the High Commissioner for Human Rights (www.ohchr.org).
13. The Commission agreed at the outset that it would discharge its mission in strict confidentiality.
In particular, it would limit its contacts with the media to providing factual information about its visits to
the Sudan. The Commission also agreed that its working methods should be devised to suit each of its
different tasks.
14. Thus, with regard to its first and second tasks, the Commission decided to examine existing
reports on violations of international human rights and humanitarian law in Darfur, and to verify the
veracity of these reports through its own findings, as well as to establish further facts. Although clearly it
is not a judicial body, in classifying the facts according to international criminal law, the Commission
adopted an approach proper to a judicial body. It therefore collected all material necessary for such a
legal analysis.
15. The third task, that of “identifying perpetrators”, posed the greatest challenge. The Commission
discussed the question of the standard of proof that it would apply in its investigations. In view of the
limitations inherent in its powers, the Commission decided that it could not comply with the standards
1 According to the language of Article 28 (a) (ii) of the Statute of the International Criminal Court, which codifies
customary international law.
12
normally adopted by criminal courts (proof of facts beyond a reasonable doubt)2, or with that used by
international prosecutors and judges for the purpose of confirming indictments (that there must be a
prima facie case)3. It concluded that the most appropriate standard was that requiring a reliable body of
material consistent with other verified circumstances, which tends to show that a person may reasonably
be suspected of being involved in the commission of a crime.4 The Commission would obviously not
make final judgments as to criminal guilt; rather, it would make an assessment of possible suspects5 that
would pave the way for future investigations, and possible indictments, by a prosecutor.
16. The Commission also agreed that, for the purpose of “identifying the perpetrators”, it would
interview witnesses, officials and other persons occupying positions of authority, as well as persons in
police custody or detained in prison; examine documents; and visit places (in particular, villages or
camps for IDPs, as well as mass grave sites) where reportedly crimes were perpetrated.
17. For the fulfilment of the fourth task the Commission deemed it necessary to make a preliminary
assessment of the degree to which the Sudanese criminal justice system has been able and willing to
prosecute and bring to trial alleged authors of international crimes perpetrated in Darfur, and then
consider the various existing international mechanisms available. It is in the light of these evaluations
that it has made recommendations on the most suitable measures.
4. Principal constraints under which the Commission has operated
18. There is no denying that while the various tasks assigned to the Commission are complex and
unique, the Commission was called upon to discharge them under difficult conditions. First of all, it
operated under serious time constraints. As pointed out above, given that the Security Council had
2 See for instance Rule 87 of the ICTY Rules of Procedure and Evidence and Article 66 (3) of the Statute of the International
Criminal Court.
3 Judge R. Sidhwa, of the ICTY, in his Review of the Indictment against Ivica Raji􀃼 (decision of 29 August 1995, case no. IT-
95-12) noted that under Rule 47(A) of the Tribunal’s Rules of Procedure and Evidence (whereby the Prosecutor can issue an
indictment whenever satisfied “ that there is sufficient evidence to provide reasonable grounds for believing that a suspect has
committed a crime within the jurisdiction of the Tribunal”), a prima facie case existed when the prosecutor had in his
possession sufficient evidence providing reasonable grounds to believe that the suspect had committed the crime within the
jurisdiction of the Tribunal. According to the distinguished Judge, “reasonable grounds point to such facts and circumstances
as would justify a reasonable or ordinarily prudent man to believe that a suspect has committed a crime. To constitute
reasonable grounds, facts must be such which are within the possession of the Prosecutor which raise a clear suspicion of the
suspect being guilty of the crime....It is sufficient that the Prosecutor has acted with caution, impartiality and diligence as a
reasonably prudent prosecutor would under the circumstances to ascertain the truth of his suspicions. It is not necessary that he
has double checked every possible piece of evidence, or investigated the crime personally, or instituted an enquiry into any
special matter...The evidence... need not be overly convincing or conclusive; it should be adequate or satisfactory to warrant
the belief that the suspect has committed the crime. The expression “sufficient evidence” is thus not synonymous with
“conclusive evidence” or “evidence beyond reasonable doubt.” (in ICTY, Judicial Reports 1994-1995, vol. II, The Hague-
London-Boston, Kluwer, 1999, at 1065). According to Judge G. Kirk McDonald’ s decision on the Review of the Indictment
against Dario Kordi􀃼 and others (10 November 1995, case no. IT—95-14), by prima facie case one refers to a credible case
which would, if not contradicted by the defence, be a sufficient basis to convict the accused on the charge laid out against him
(ibidem, p. 1123).
4 This standard is even lower than that laid down in Rule 40 bis (B) (iii) of the ICTY Rules of Procedure and Evidence (a Rule
providing that, if “a reliable and consistent body of material which tends to show that the suspect may have committed a
crime” is available, an ICTY Judge may order the transfer and provisional detention of a suspect).
5 See Rule 2 of the ICTY Rules of Procedure and Evidence, containing a definition of suspects (“Suspect: a person concerning
whom the [ICTY] Prosecutor possesses reliable information which tends to show that the person may have committed a crime
over which the Tribunal has jurisdiction”)
13
decided that the Commission must act urgently, the Secretary-General requested that the Commission
report to him within three months of its establishment. The fulfilment of its complex tasks, in particular
those concerning the finding of serious violations and the identification of perpetrators, required the
Commission to work intensely and under heavy time pressure.
19. Furthermore, both its fact-finding mission and its task of identifying perpetrators would have
benefited from the assistance of a great number of investigators, lawyers, military analysts and forensic
experts. Given the scale and magnitude of incidents related to the conflict in Darfur, the establishment of
facts and the collection of credible probative elements for the identification of suspected perpetrators are
difficult tasks, which are not to be taken lightly. The Commission’s budget did not allow for more than
thirteen such experts. Having said this, the Commission nevertheless was able to gather a reliable and
consistent body of material with respect to both the violations that occurred and the persons who might
be suspected of bearing criminal responsibility for their perpetration. The Commission thus considers
that it has been able to take a first step towards accountability.
5. Brief account of the Commission’s visits to the Sudan
20. The Commission first visited the Sudan from 8 to 20 November 2004. It met with a number of
high level officials including the First Vice-President, the Minister of Justice, the Minister for Foreign
Affairs, the Minister of Interior, the Minister of Defence, the Minister of Federal Affairs, the Deputy
Chief Justice, the Speaker of Parliament, the Deputy Head of the National Security and Intelligence
Service, and members of the Rape Committees. It met with representatives of non-governmental
organizations, political parties, and interested foreign government repesentatives in the Sudan. In
addition, it held meetings with the United Nations Advance Mission in the Sudan (UNAMIS) and other
United Nations representatives in the country. The Commission also visited Kober prison (See Annex 2
for a full list of meetings).
21. From 11 to 17 November 2004, the Commission visited Darfur. It divided itself into three teams,
each focusing on one of the three states of Darfur. Each team met with the State Governor (Wali) and
senior officials, visited camps of internally displaced persons, and spoke with witnesses and to the tribal
leaders. In addition, the West Darfur team visited refugee camps in Chad and the South Darfur team
visited the National Security Detention Center in Nyala.
22. The Commission’s investigation team was led by a Chief Investigator and included four
investigators, two female investigators specializing in gender violence, four forensic experts and two
military analysts. Investigation team members interviewed witnesses and officials in Khartoum and
accompanied the Commissioners on their field mission to the three Darfur States. The investigation team
was then divided into three sub-teams which were deployed to North, South and West Darfur. 6
23. One Commission member and Commission staff, acting on behalf of the Commission visited
Eritrea from 25-26 November 2004. They met with representatives of two rebel groups: The Sudan
Liberation Movement/Army (SLM/A) and the Justice and Equality Movement (JEM). They also met
with former Sudanese officials who are now residing in Eritrea. Two members of the Commission,
6 See Annex IV for a detailed overview of the activities of the investigative team.
14
accompanied by two staff members, travelled to Addis Ababa from 30 November to 3 December 2004.
The objectives were: to obtain a thorough assessment from the African Union (AU) on the situation in
Darfur, the African Mission in the Sudan (AMIS) and the Inter-Sudanese talks in Abuja; and to discuss
with the AU leadership ways and modalities for the Commission to strengthen its working cooperation.
The delegation met with high level officials of the AU, including the newly appointed Special
Representative for the Sudan. The delegation also had the opportunity to meet extensively with the Chair
and some key members of the AU Integrated Task Force on Darfur.
24. A second visit to the Sudan took place between 9 and 16 January 2004. During this visit, the
Commission focused on interviewing witnesses particularly in detention centres, and also met with some
officials, members of civil society, and UN staff in Khartoum.
25. With the assistance of a team of five legal researchers and one political affairs officer, who were
lead by the Executive Director, the Commission analysed the information provided. It reviewed and
analysed published, public reports on Darfur, other reports that were brought to the attention of the
Commission in response to its requests for information, as well as other types of information. In order to
manage the more than 20,000 pages of material it received, the Commission developed a database in
which it recorded bibliographic and evidentiary details. The incidents’ analysis carried out by the
research team also was recorded in the database as a way to facilitate swift access by the Commissioners
and staff to resource material and source information.
6. Cooperation of the Sudanese authorities and the rebels
26. Security Council resolution 1564 (2004) was adopted under Chapter VII of the United Nations
Charter. The Security Council (SC) had previously determined (already in resolution 1556 (2004), at
preambular § 21) that the situation in the Sudan constitutes a “threat to international peace and security
and to stability in the region” under Article 39 of the United Nations Charter.
27. § 12 of the resolution, which requests the Secretary-General to establish an international
commission of inquiry, also “calls on all parties to cooperate fully with such a commission”. The
Commission considers that, by the very nature of the Commission and its mandate, both the Government
of the Sudan and the rebels are under a bona fide obligation to cooperate with it in the discharge of its
various functions. In any event, both the Government of the Sudan and the rebel groups have willingly
accepted to cooperate with the Commission.
(i.) Criteria for appraising cooperation
28. The Commission set forth the following criteria for evaluating the degree of cooperation of both
the Government and the rebels: (i) freedom of movement throughout the territory of the Sudan; (ii)
unhindered access to all places and establishments, and freedom to meet and interview representatives of
governmental and local authorities, military authorities, community leaders, non-governmental
organizations and other institutions, and any such person whose testimony is considered necessary for
the fulfilment of its mandate; (iii) free access to all sources of information, including documentary
material and physical evidence; (iv) appropriate security arrangements for the personnel and documents
15
of the Commission; (v) protection of victims and witnesses and all those who appear before the
Commission in connection with the inquiry and, in particular, guarantee that no such person would, as a
result of such appearance, suffer harassment, threats, acts of intimidation, ill-treatment and reprisals; and
(vi) privileges, immunities and facilities necessary for the independent conduct of the inquiry. A letter
was sent to the Government outlining these criteria.
(ii.) Cooperation of the Government
29. As mentioned above, since its inception the Commission has engaged in a constant dialogue with
the Government of the Sudan through meetings in Geneva and the Sudan, and through the work of its
investigative team.
30. Generally speaking the attitude of the Government authorities towards the Commission has been
cooperative. The authorities appointed an efficient liaison official in Khartoum, Dr Abdelmonem Osman
Taha organized all the meetings with senior Government officials requested by the Commission. In
addition, the Minister of Interior as the President’s representative on Darfur appointed a Committee
presided over by Major-General Magzoub and consisted of six senior officials from the Ministries of
Defence and Interior, as well as the National Security and Intelligence Service The Commission met the
Committee and received relevant documents about the Government’s views on the conflict in Darfur.
31. Moreover, in his report dated 3 December 2004 (S/2004/947), the Secretary-General referred to a
meeting of the Joint Implementation Mechanism (JIM) held on 12 November 2004, during which the
Minister of Justice provided the following assurances regarding the work of the Commission: a) the
Government would accept the report of the Commission, whatever its findings; b) witnesses of incidents
would not be subjected to maltreatment; and c) following strict instruction from the President, Omer
Hassan Al-Bashir, no Sudanese officials would obstruct the Commission’s investigations.
32. Furthermore, the Government did not impede the conduct of the Commission’s work in the
Sudan. In November 2004, a middle-level officer of the National Security Services refused to allow the
Commission to have access to a number of persons being held in detention in Nyala (South Darfur). The
Commission’s Chairman requested the assistance of the liaison officer in Khartoum, and, subsequently,
the Commission was able to interview the detainees without any hindrance. The Commission underwent
a similar experience in Khartoum in January 2005, during its second visit to the Sudan. When some
middle-level authorities refused to allow the Commission access to the National Security’s Detention
Centre in Khartoum, the Chairman requested the immediate intervention of higher authorities and the
Commission was eventually allowed access to the Centre.
33. However, one issue must be raised regarding the minutes of the meetings of the Security
Committees at the locality and State levels. In a meeting with the First Vice-President Ali Osman
Mohammed Taha held in Khartoum on 10 November 2004, the Commission asked to review the records
of the various Government agencies in Darfur concerning decisions relating to the use of armed forces
against rebels and measures concerning the civilian population. The Commission promised to keep its
scrutiny of such records strictly confidential. During the same meeting, First Vice-President Taha
assured the Commission that it would be able to have access to and examine the minutes of the meetings
of the Security Committees in the three States of Darfur and their various localities. However, when
16
requested to produce those minutes, each of the Governors of the three States asserted that no such
minutes existed and instead produced a selected list of final decisions on general issues. According to
reliable sources, minutes and reports of such meetings are in fact produced by the Security Committees,
and some of them relate to the operations conducted in Darfur to oppose the rebels or to deal with
displaced persons. In spite of its requests, the Commission did not see copies of these documents.
34. An episode bearing on cooperation relates to another request by the Commission. In a meeting
held on 9 November 2004 with Bakri Hassan Salih, Minister of Defence and other senior Ministry of
Defence officials, the Commission requested access to records of the deployment of military aircraft and
helicopter gunships in Darfur since February 2003. Again, the Commission undertook to treat such
records confidentially. The Minister of Defence agreed to comply with the request and promised that the
Commission would obtain the records in Darfur from the relevant authorities. When the Commission did
not obtain copies of these records in Darfur, it reiterated its request in a meeting with the Committee on
Darfur on 20 November 2004. The Chairman of the Committee promised to provide those records and
subsequently provided the Commission with an incomplete file, promising that it would be
supplemented with further information. After further requests by the Commission, a number of records
related to the use of aircraft in Darfur between February 2003 and January 2005 were produced.
However, a complete set of the records requests was never provided to the Commission.
35. The Commission also wishes to stress that there have been episodes indicative of pressure put by
some regional or local authorities on prospective witnesses, or on witnesses already interviewed by the
Commission. For instance, in the first week of November 2004, in El Fashir (North Darfur) a
government official, reportedly the chief of the local office of the National Security and Intelligence
Service, gave money to some IDPs and urged them not to talk to the Commission. It was also reported to
the Commission that the Sudanese authorities had deployed infiltrators posing as internally displaced
persons (IDPs) into some camps such as Abushouk. In the same camp various eyewitnesses reported an
episode that could be taken to amount to witness harassment. On 19 December 2004, around 12.30 in the
afternoon, approximately twenty vehicles and three trucks drove through the camp. They stopped in the
centre of the camp and started shouting: “We killed the Torabora (a common word used for indicating
the rebels). We killed your fathers, your brothers. You have to sleep forever.” Women and children in
the vicinity ran away, returning only after the soldiers had left the area. People in the camp were very
worried about the safety of the entire camp.
36. In other instances, local authorities refused to allow the Commission’s investigative team entry
into a camp to interview witnesses. However these cases were settled in due course, after negotiations
with the authorities.
(iii.) Cooperation of the Rebels
37. The Commission was in contact only with the two main rebel movements, the JEM and the
SLM/A, and generally considers that both groups cooperated with the Commission. The Commission
met with representatives and members of the two groups on a number of occasions in the Sudan, as well
as outside the country. It met with the leadership of SLM/A and JEM in Asmara (Eritrea), including the
Secretary-General and military commanders of the SLM/A, Minnie Arkawi Minawi, the chief negotiator
of the SLM/A at the AU-sponsored talks, Dr. Sherif Harir, and the Chairman of the JEM, Dr. Khalil
Ibrahim, as well as other senior officials of both groups. Discussions were open and frank, and both
17
organisations provided responses to queries presented by the Commission. In Darfur, the Commission
met, on several occasions, with various representatives of the two rebel groups.
38. The Commission received a number of documents from both groups, which included information
of a more general nature about Darfur and the Sudan, as well as detailed documentation on specific
incidents including names of victims allegedly killed in attacks. However, the Commission was led to
believe that the documentary information provided by the rebels would be more extensive and detailed
than what in fact was obtained.
39. The Commission was never refused access to areas under the control of the rebels and was able
to move freely in these areas. The rebel groups did not interfere with the Commission’s investigations of
reported incidents involving the rebels.
II. THE HISTORICAL AND SOCIAL BACKGROUND
1. The Sudan
40. In order to understand the current crisis in Darfur, it is important briefly to place the situation in
Darfur within a broader context. The Sudan is the largest country in Africa with a territory covering
about 2.5 million square kilometres bordering Egypt in the North, the Red Sea, Eritrea and Ethiopia in
the East, Uganda, Kenya and the Democratic Republic of the Congo in the South, and the Central
African Republic, Chad and Libya in the West. The Sudan has an estimated population of 39 million
inhabitants. About 32% of the population are urban, 68% rural, and about 7% nomads. Islam is the
predominant religion, particularly in the North, while Christianity and animist traditional religions are
more prevalent in the South. The Sudan is a republic with a federal system of government. There are
multiple levels of administration, with 26 States (Wilayaat) subdivided into approximately 120 localities
(Mahaliyaat).
41. The elements that constitute national identity in the Sudan are complex. The population of the
Sudan is made up of a multitude of tribes and its inhabitants speak more than 130 languages and
dialects. An Islamic-African-Arab culture has emerged over the years and has become predominant in
the North of the country. The Arabic language is now spoken throughout most of the country and
constitutes a “lingua franca” for most Sudanese.
42. The Sudan is considered a Least Developed Country (LDC), and ranks 139 in the 2004 UNDP’s
Human Development Index.7 There is no adequate national road grid that connects the country, and
large parts of the Sudan rely on an agricultural and pastoral subsistence economy. However, commercial
agriculture, industrial development as well as limited exploitation of natural resources, in particular
following the discovery of oil in the central/southern part of the country, have developed in recent years.
From the time of British colonization to date the focus of attention has been on both the central region
where the Blue and White Niles meet, since development and construction are centred in Khartoum, and
on the fertile region of El Jezzira where long-fiber cotton has been cultivated as the country’s main crop.
With the exception of these regions, the rest of the Sudan’s wide territories have remained largely
7 See 2004 UNDP Human Development Report, http://www.undp .org
18
marginalized and neglected, including Darfur and other regions like Kordofan, the Nuba mountains, the
East of the Sudan and the South. Even the Northern region between the border with Egypt and Khartoum
has remained a desolate, desert area.
43. The Sudan gained independence from British-Egyptian rule on 1 January 1956. Since
independence, the country has fluctuated between military regimes and democratic rule. During its 49
years of national rule, the Sudan has experienced 10 years of democracy in the periods 1956 to 1958,
1965 to 1969, and 1985 to 1989. During the remaining time, the Sudan has been ruled by military
regimes, which came to power through coups d’état.
44. After two years of democratic governance following independence in 1956, General Ibrahim
Abbud came to power through a coup in November 1958. Abbud supported the spread of the Arabic
language and Islam, a movement which was met with resistance in the South. Unrest in the South
increased in 1962, and in 1963 an armed rebellion emerged. Repression by the Government throughout
the country increased, and in 1964 student protests in Khartoum led to general public disorder, which
soon spread. Abbud resigned as head of state and a transitional Government was appointed to serve
under the provisional Constitution of 1956.
45. The transitional Government held elections in April and May 1965. A coalition Government
headed by a leading politician of the Umma party, Mohmmed Ahmed Mahjub, was formed in June
1965. However, the Mahjub Government failed to agree on and implement effective reform policies, and
in May 1969 a group of officers led by Colonel Gaafar Mohamed Al-Nimeiri took power. They adopted
a one-party socialist ideology, which later changed to political Islam. In February 1972 Nimeiri signed
the so-called Addis Ababa agreement with rebels from the South, which provided for a kind of
autonomy for the South. This agreement made peace possible for the next 11 years. However, during the
last years of his rule, General Nimeiri took several measures to strengthen his grip on power. Following
the discovery of oil in the South, Nimeiri implemented measures to ensure the incorporation into the
North of the oil-rich areas in the South, and cancelled the grant of autonomy for the South. Furthermore,
in September 1983 under the influence of Hassan Al Turabi, the then leader of the National Islamic
Front and the Muslim Brotherhood, Nimeiri introduced Sharia rule. All of these steps led to strong
reactions in the South, and eventually to the start of the second war with the South in 1983. Other key
measures related to the laws governing land ownership and the local/tribal administration systems, as
mentioned below.
46. Finally, in April 1985, after 16 years in power, the military Government of Nimeiri was
overthrown in a military coup organized by army officers and a Transitional Military Council was put in
place under the leadership of General Abed Rahman Siwar Al-Dahab. Elections were organized in 1986,
which led to the victory of the Umma party’s leader, Sadiq Al-Mahdi, who became Prime Minister. Al-
Mahdi’s Government lasted less than four years. During this period it started to take some important
measures, but was faced with serious challenges, including the continuing war in the South as well as
drought and desertification.
47. The current President of the Sudan, General Omar Hassan El-Bashir, assumed power in June
1989, following a military coup d’état organized in cooperation with the Muslim Brotherhood. Many
Sudanese either were imprisoned or went into exile following the coup. Property was confiscated and
political parties were banned. El-Beshir, like Nimeiri, was heavily influenced by the main ideologue of
19
the National Islamic Front, Hassan Al-Turabi. Beginning in 1989, the legal and judicial systems were
significantly altered to fit the party’s version of political Islam.
48. The ruling party’s ideological base was modified in 1998 with the drafting and entry into force of
a new Constitution on 1 July 1998 and the holding of elections in December the same year. The 1998
Constitution still reflects a strict ideology, provides for a federal system of government and guarantees
some important basic rights. The December 1998 elections, which were boycotted by all major
opposition parties, resulted in the election of President El-Beshir for a further five-year term, with his
National Congress party assuming 340 of the 360 parliamentary seats. Turabi became the Speaker of
Parliament. Party members continued to hold key positions and strong influence over the Government,
army, security forces, judiciary, academic institutions and the media.
49. In 1999, an internal power struggle within the National Congress resulted in President El-Beshir
declaring a state of emergency, dissolving the Parliament, and suspending important provisions of the
Constitution, including those related to the structures of the local government in the states. In May
2000, Turabi led a split from the ruling National Congress, in effect establishing a new party called the
Popular Congress. Many officials linked to Turabi were dismissed from Government and in May 2001,
Turabi himself was placed under house arrest and was later accused of organizing a coup d’etat. He
remains in detention today. At least 70 key members of the Popular Congress presently are detained
without charge or trial, and a number have fled the Sudan to exile.
50. Since it erupted in 1983, the internal conflict between the North and the South has had a
significant impact on the Sudan in many ways. It is the longest conflict in Africa involving serious
human rights abuses and humanitarian disasters. During the conflict, more than 2 million persons have
died and 4.5 million persons have been forcibly displaced from their homes. However, following many
years of war, and also as a result of heavy international pressure, the Government and the main rebel
movement in the South, the Sudan People’s Liberation Movement /Army (SPLM/A), initiated peace
talks in 2002. The Sudan peace process, under the auspices of the Inter-Governmental Authority on
Development (IGAD) and with the support of a Troika (The United States of America, the United
Kingdom of Great Britain and Northern Ireland and Norway), made significant progress. In July 2002,
the parties signed the Machakos Protocol, in which they reached specific agreement on a broad
framework, setting forth principles of governance, a transitional process and structures of government as
well as on the right to self-determination for the people of southern Sudan. They agreed to continue talks
on the outstanding issues of power-sharing, wealth-sharing, and a cease-fire. The IGAD-brokered peace
process advanced substantially with the signing in Naivasha (Kenya) of a series of framework protocols
in 2003 and 2004. On 31 December 2004, the parties signed two protocols on the implementation
modalities and a permanent ceasefire, marking the end of the talks and negotiations in Naivasha. The
process culminated on 9 January 2005 when, during an official ceremony, First Vice-President Taha and
SPLM/A Chairman John Garang signed the Comprehensive Peace Agreement (CPA), comprising all
previously signed documents including the 31 December 2004 protocols. The CPA marks the end of two
decades of civil war, calls for a six-month pre-interim period followed by a six-year interim period,
which would end with a referendum on the right to self-determination in southern Sudan. The CPA
provides for an immediate process leading to the formulation of a national interim constitution. The
Committee, composed of seven members from each side, will have eight weeks to draft the Constitution
which it then will submit to be submited to a National Constitutional Review. This Committee will have
two weeks to approve the Constitution.
2. Darfur
20
51. The Darfur region in the western part of the Sudan is a geographically large area comprising
approximately 250 000 square kilometres with an estimated population of 6 million persons. Darfur
borders with Libya, Chad and the Central African Republic. Since 1994 the region has been divided
administratively into three states of North, South and West Darfur. Like all other states in the Sudan,
each of the three states in Darfur is governed by a Governor (Wali), appointed by the central
Government in Khartoum, and supported by a local administration. Major urban centres include the
capitals of the three Darfur states, Nyala in South Darfur, El Geneina in West Darfur, and the capital of
North Darfur, El Fashir, which is also the historical capital of the region. In addition, there are a few
major towns spread out over the entire region which serve as local administrative and commercial
centres. The majority of the population, however, lives in small villages and hamlets, often composed of
only a few hundred families. The economy of the three Darfur states is based mainly on subsistence and
limited industrial farming, as well as cattle herding.
52. Darfur was a sultanate that emerged in 1650 in the area of the Jebel Marrah plateau and survived
with some interruptions until it fell to British hands in 1917 and was incorporated into the Sudan
proper.8 The region is inhabited by tribal groups that can be classified in different ways. However,
distinctions between these groups are not clear-cut, and tend to sharpen when conflicts erupt.
Nevertheless, individual allegiances are still heavily determined by tribal affiliations. The historic tribal
structure, which dates back many centuries, is still in effect in Darfur although it was weakened by the
introduction of local government during the time of Nimeiri’s rule. Some of the tribes are predominantly
agriculturalist and sedentary, living mainly from crop production during and following the rainy season
from July to September. Some of the sedentary tribes also include cattle herders. Among the
agriculturalists, one finds the Fur, the Barni, the Tama, the Jebel, the Aranga and the Masaalit. Among
the mainly sedentary cattle herders, one of the major groups is the southern Rhezeghat, as well as the
Zaghawa. In addition, a number of nomadic and semi-nomadic tribes can also be traditionally found in
Darfur herding cattle and camels in Darfur, which include the Taaysha, the Habaneya, the Beni Helba,
the Mahameed and others. It should be pointed out that all the tribes of Darfur share the same religion
(Islam), and while some of the tribes do possess their own language, Arabic is generally spoken.
53. The issue of land has for long been at the centre of politics in Darfur. Land-ownership in Darfur
has been traditionally communal. The traditional division of the land into homelands – so-called “dar” -
which are essentially areas to which individual tribes can be said to have a historical claim, is crucial in
the local self-perception of the population. The traditional attribution of land to individual tribes in
existence today dates back to the beginning of the 20th century when the last sultan of Darfur, Sultan Ali
Dinar, decreed this division which was generally accepted by all tribes. While this traditional division of
land is not geographically demarcated in an exact manner, some general observations are possible. For
instance, in the northern parts of West Darfur and some western parts of North Darfur, the Zaghawa
tribe predominates, and the area is also referred to as Dar Zaghawa – the homeland of the Zaghawa. In
the area around and south of El Geneina, still in West Darfur, the Masaalit tribe has its homeland. While
the name Darfur would mean the homeland of the Fur, the actual area where this tribe has its homeland,
is located in the centre of the Darfur region, around the Jebel Marrah area, covering an area where the
borders of the three states of Darfur meet, but also stretching further into all three states. The
Rhezehghat are mainly found in the southern parts of South Darfur. As noted, some tribes, essentially
most of the nomadic tribes, do not possess land and have traditionally transited through land belonging
8 Mohamad, Mohamed Suliman, Darfur: New Prespective, (Cambridge: Cambridge Academic Press, 2004) at 17
(Arabic edition).
21
to other tribes. Although this traditional division of land into homelands of different tribes has been in
existence for many years, extensive intermarriage and socio-economic interconnectedness between the
tribes have rendered a clear demarcation of both tribes and homelands less precise or accurate.
Nevertheless, the self-perception of people as members of tribes and the social networks connected to
the tribal structures remain a central feature of the demographics of Darfur.
54. Historically land was collectively owned by the members of the tribe and its use was determined
by the tribal leadership. Tribal leaders had extensive powers to allocate parcels of land to its members
for dwelling, grazing, agriculture, or other forms of use. During the 1970s, however, the land laws were
changed and individual ownership became possible. Although the land ownership was now attributed to
the State, those who possessed land for at least one year could claim legal title. Those who did not have
land had additional incentive to demonstrate loyalty to the Government in order to acquire it.
55. In recent years both ecological and demographic transformations have had an impact on inter-tribal
relations. Darfur is part of the Great Sahara region, and while it has some agricultural areas, particularly
around the Jebel Marrah plateau, most of the region remains arid desert land. Drought and desertification
had their impact in the 70s and 80s, and the fight for scarce resources became more intense. In
particular, tensions between agriculturalists and cattle herders were affected. Cattle herders in search of
pasture and water often invaded the fields and orchards of the agriculturalists, and this led to bloody
clashes as described below. Corridors that were agreed upon amongst the tribes to facilitate the
movements of cattle for many years were not respected. As fertile land became scarce, settled people’s
tolerance of the seasonal visitors diminished.9
56. Drought and desertification had its impact not only on Darfur but the entire region of the Sahara,
which led to increased migration of nomadic groups from Chad, Libya, and other states into the more
fertile areas of Darfur. It is generally not disputed that while this immigration was initially absorbed by
the indigenous groups in Darfur, the increased influx combined with the tougher living conditions during
the drought led to clashes and tensions between the newcomers and the locals. 10
9 According to J.D.Fage and W.Tordoff, A History of Africa, 4th edn. (London and New York: Routledge, 2002), “there
can be little doubt that the lands of the agricultural peoples of the Sudan immediately south of the Sahara have in fact
been subject for centuries to raids, infiltration, conquest and settlement by nomadic pastoralists coming from the
desert.” (at 63-64).
10 As noted by A. Mosely Lesch, The Sudan – Contested national Identies (Bloomington and Indianapolis, Indiana
University Press, 1998), “In the westernmost region of Dar Fur, many peoples resented control from Khartoum, and
tension between Fur farmers and Rizaiqat Arab cattle herders escalated in 1984-5 as drought forced the nomads to
encroach upon cultivated land. Fur were angry that the central government let Libyan troops deploy in northwest Dar
Fur and permitted rebels from Chad to camp inside Dar Fur, where they joined with Zaghawa tribesmen to raid Fur
villages. The SPLA claimed that 6,500 foreign troops were camped in Dar Fur by mid-1988, a number that grew as
Libya and the rebels prepared to overthrow the Ndjamena government in December 1999. The extent of destruction was
indicated in a report in January 1989 that 57 villages had been burmed in the Wadi Saleh agricultural district, where
nearly 400 had died, 42,000 were displaced and 12,000 tons of food were destroyed. Further attacks by 3,000 murahiliin
(Arab militias) on Jabal Marra in May 1989 burned 40 villages and left 80,000 homeless. Those government-armed
murahiliin also attacked displaced persons from the south. In March 1987, in apparent revenge for the SPLA’s killing of
150 Rizaiqat militiamen while they raided Dinka villages in western Bahr al-Ghazal, Rizaiqat murahiliin and Arab
townspeople killed 1,000 destitute Dinka displaced persons in the largely Arab town of al-Da’ien. When police tried to
shelter the Dinka women and children in the police station and on railway cars, the Rizaiqat torched the wagons and
stormed the police station. The SPLA played no direct role in these conflicts, since the vast distance prevented the
SPLA from aiding the Fur groups or protecting the displaced persons.” (at 91-2).
22
57. It was customary for the Darfur tribes to solve their differences through traditional law, especially
the many disputes which occur between nomadic tribes and sedentary tribes like murders and incidents
related to cattle stealing, which can develop into inter-tribal conflicts. Traditionally, disputes between
members of tribes were settled peacefully by the respective tribal leaders, who would meet to reach a
mutually acceptable solution. The State was then seen as a neutral mediator. But President Nimeiri
introduced new structures of local administration and formally abolished the tribal system. The
administrators of the new structures, who were appointed by the central Goverrnment, had executive and
judicial powers. Although the tribes continued to informally resort to the tribal system, this system was
significantly weakened. Local leaders were often chosen on the basis of their political loyalty to the
regime, rather than their standing in the community. They were sometimes financed and strengthened
particularly through the State’s security apparatus. This meant that when the State had to step in to
resolve traditional conflicts, it was no longer seen as an impartial arbitrator.
58. Inter-tribal conflict was further aggravated by an increased access to weapons, through channels
with Chad and Libya in particular. Libya aspired to have a friendly rule in Chad and the attempts to
contain Libya’s ambitions in the region led several foreign governments to pour arms into the region. In
addition, several Chadian armed rebellions were launched from Darfur. The conflict in the South of the
Sudan also had its impact on the region through easier access to weapons. As a consequence, each major
tribe as well as some villages began to organize militias and villages defence groups, essentially a group
of armed men ready to defend and promote the interests of the tribe or the village.
59. The tribal clashes in the latter part of the 1980’s were essentially between sedentary and nomadic
tribes, and in particular between the Fur and a number of Arab nomadic tribes, which had organized
themselves in a sort of alliance named the Arab Gathering, while some members of the Fur tribe had
created a group called the African Belt. The conflict was mediated by the Government and local tribal
leaders in 1990, but tensions remained during the years to come, and clashes between these tribes
continued. This further led to resentment among some Darfurians against the Government of El Beshir,
which apparently was neither able nor willing effectively to address the unfolding situation in Darfur.
60. In the context of the present conflict in Darfur, and in the years preceding it, the distinction
between so-called African and Arab tribes has come to the forefront, and the tribal identity of
individuals has increased in significance. The distinction stems, to a large extent, from the cumulative
effects of marginalization, competing economic interests and, more recently, from the political
polarization which has engulfed the region. The ‘Arab’ and ‘African’ distinction that was always more
of a passive distinction in the past has now become the reason for standing on different sides of the
political divide. The perception of one’s self and of others plays a key role in this context.
3. The Current Conflict in Darfur
61. The roots of the present conflict in Darfur are complex. In addition to the tribal feuds resulting
from desertification, the availability of modern weapons, and the other factors noted above, deep layers
relating to identity, governance, and the emergence of armed rebel movements which enjoy popular
support amongst certain tribes, are playing a major role in shaping the current crisis.
62. It appears evident that the two rebel groups in Darfur, the Sudan Liberation Movement/Army
(SLM/A) and the Justice and Equality Movement (JEM) began organizing themselves in the course of
2001 and 2002 in opposition to the Khartoum Government, which was perceived to be the main cause of
23
the problems in Darfur. While only loosely connected, the two rebel groups cited similar reasons for the
rebellion, including socio-economic and political marginalization of Darfur and its people. In addition,
the members of the rebel movements were mainly drawn from local village defence groups from
particular tribes, which had been formed as a response to increases in attacks by other tribes. Both rebel
groups had a clearly stated political agenda involving the entirety of the Sudan, demanding more equal
participation in government by all groups and regions of the Sudan. Initially the SLM/A, at that stage
named the Darfur Liberation Front, came into existence with an agenda focused on the situation of the
people of Darfur, and only later expanded its agenda to cover all of the Sudan. The Justice and Equality
Movement based its agenda on a type of manifesto - the “Black Book”, published in 2001 - which
essentially seeks to prove the disparities in the distribution of power and wealth, by noting that Darfur
and its populations, as well as some populations of other regions, have been consistently marginalized
and not included in influential positions in the central Government in Khartoum. It is noteworthy that the
two movements did not argue their case from a tribal point of view, but rather spoke on behalf of all
Darfurians, and mainly directed their attacks at Government installations. It also appears that with regard
to policy formulation, the New Sudan policy of the SPLM/A in the South had an impact on the SLM/A,
while the JEM seemed more influenced by trends of political Islam. Furthermore, it is possible that the
fact that the peace negotiations between the Government and the SPLM/A were advancing rapidly, did
in some way represent an example to be followed by other groups, since armed struggle would
apparently lead to fruitful negotiations with the Government. It should also be recalled that despite this
broad policy base, the vast majority of the members of the two rebel movements came from essentially
three tribes: The Fur, the Massalit and the Zaghawa.
63. It is generally accepted that the rebel movements began their first military activities in late 2002
and in the beginning of 2003 through attacks mainly directed at local police offices, where the rebels
would loot Government property and weaponry. The Government seemed initially to be taken aback by
these attacks, but was apparently in no position to retaliate, nor, it appears, did it initially consider the
rebellion a serious military matter. Furthermore, for the Government the rebellion came at a particularly
inopportune time, as it was in the process of intense peace negotiations with the SPLM/A, and
negotiations were advancing rapidly.
64. There are indications that the Government initially was concerned that Chad was involved in the
crisis. President El-Beshir travelled to El Fashir, the capital of North Darfur, in April 2003, to meet with
the President of Chad, Idriss Deby, along with many local political and tribal leaders of Darfur, seeking
to find a solution to the crisis. President Deby assured President El-Beshir that the Government of Chad
was not involved in the conflict.
65. In March and April 2003 the rebels attacked Government installations in Kutum, Tine and El
Fashir, including the military section of the airport in El Fashir where the rebels destroyed several
military aircraft on the ground and killed many soldiers. An air-force commander was later captured by
the rebels and was detained for about three months. Despite the efforts of the Government, he was only
released following tribal mediation.
66. Most reports indicate that the Government was taken by surprise by the intensity of the attacks, as
it was ill-prepared to confront such a rapid military onslaught. Furthermore, the looting by rebels of
Government weaponry strengthened their position. An additional problem was the fact that the
Government apparently was not in possession of sufficient military resources, as many of its forces were
still located in the South, and those present in Darfur were mainly located in the major urban centres.
Following initial attacks by the rebels against rural police posts, the Government decided to withdraw
24
most police forces to urban centres. This meant that the Government did not have de facto control over
the rural areas, which was where the rebels were based. The Government was faced with an additional
challenge since the rank and file of the Sudanese armed forces was largely composed of Darfurians, who
were probably reluctant to fight “their own” people.
67. From available evidence and a variety of sources including the Government itself, it is apparent
that faced with a military threat from two rebel movements and combined with a serious deficit in terms
of military capabilities on the ground in Darfur, the Government called upon local tribes to assist in the
fighting against the rebels. In this way, it exploited the existing tensions between different tribes.
68. In response to the Government’s call, mostly Arab nomadic tribes without a traditional homeland
and wishing to settle, given the encroaching desertification, responded to the call. They perhaps found in
this an opportunity to be allotted land. One senior government official involved in the recruitment
informed the Commission that tribal leaders were paid in terms of grants and gifts on the basis of their
recruitment efforts and how many persons they provided. In addition, the Government paid some of the
Popular Defence Forces (PDF) staff their salaries through the tribal leaders,11 with State budgets used for
these purposes. The Government did not accept recruits from all tribes. One Masaalit leader told the
Commission that his tribe was willing to provide approximately one thousand persons to the PDF but,
according to this source, the Government did not accept, perhaps on the assumption that the recruits
could use this as an opportunity to acquire weapons and then turn against the Government. Some reports
also indicate that foreigners, from Chad, Libya and other states, responded to this call and that the
Government was more than willing to recruit them.
69. These new “recruits” were to become what the civilian population and others would refer to as the
“Janjaweed”, a traditional Darfurian term denoting an armed bandit or outlaw on a horse or camel. A
more elaborate description of these actors will follow below.
70. Efforts aimed at finding a political solution to the conflict began as early as August 2003 when
President Deby of Chad convened a meeting between representatives of the Government and rebel
groups in Abeche. The talks, which the JEM refused to join because it considered the Chadian mediation
to be biased, led to the signing on 3 September 2003 of an agreement which envisaged a 45-day
cessation of hostilities. Several rounds of talks took place thereafter under Chadian mediation. On 8
April 2004, the Government and the SLM/A and JEM signed a humanitarian ceasefire agreement, and in
N’Djamena on 28 May they signed an agreement on ceasefire modalities. Subsequent peace talks took
place in Addis Ababa, Ethiopia, and in Abuja, Nigeria, under the mediation of the African Union. On 9
November in Abuja, the Government, the SLM/A and the JEM signed two Protocols, one on the
improvement of the humanitarian situation and the second on the enhancement of the security situation
in Darfur. In the context of further negotiations, the parties have not been able to overcome their
differences and identify a comprehensive solution to the conflict.
71. Besides the political negotiations, the African Union also has been playing a leading role, through
the African Mission in Sudan (AMIS), in seeking a solution to the conflict and in monitoring the ceasefire
through the establishment of the AU Cease-Fire Commission in Darfur, including the deployment of
monitors. In spite of all of these efforts and the signing of several protocols, fighting and violations of
11 See section on the Popular Defence Forces below.
25
the ceasefire between the rebels and the Government and its militias were still being reported in January
2005.
72. Regardless of the fighting between the rebels on the one hand, and the Government and Janjaweed
on the other, the most significant element of the conflict has been the attacks on civilians, which has led
to the destruction and burning of entire villages, and the displacement of large parts of the civilian
population.
26
SECTION I
THE COMMISSION’S FINDINGS OF VIOLATIONS OF
INTERNATIONAL HUMAN RIGHTS LAW AND HUMANITARIAN
LAW BY THE PARTIES
I. INTRODUCTION
73. In fulfilling its mandate the Commission had to establish whether reported violations of
international human rights law and humanitarian law in Darfur had in fact occurred. In addition, the
Commission had to determine whether other, more recent violations had occurred. Before setting out the
results of its fact-finding, the Commission must address a few general and preliminary issues.
II. THE NATURE OF THE CONFLICT IN DARFUR
74. The first such issue relates to the nature of the armed conflict raging in Darfur. This
determination is particularly important with regard to the applicability of the relevant rules of
international humanitarian law. The distinction is between international armed conflict, non-international
or internal armed conflict, and domestic situations of tensions or disturbances. The Geneva Conventions
set out an elaborate framework of rules that are applicable to international armed conflict or ‘all cases of
declared war or of any armed conflict which may arise between two or more of the High Contracting
Parties’.12 Common Article 3 of the Geneva Conventions and Additional Protocol II set out the
prerequisite of a non-international armed conflict. It follows from the above definition of an
international conflict that a non-international conflict is a conflict without the involvement of two States.
Modern international humanitarian law does not legally set out the notion of armed conflict. Additional
Protocol II only gives a negative definition which, in addition, seems to narrow the scope of Article 3
common to the Geneva Conventions.13 The jurisprudence of the international criminal tribunals has
explicitly elaborated on the notion: ‘an armed conflict exists whenever there is resort to armed force
between States or protracted armed violence between governmental authorities and organized armed
groups or between such groups within a State’.14 Internal disturbances and tensions, ‘such as riots,
isolated and sporadic acts of violence and other acts of a similar nature’ are generally excluded from the
notion of armed conflict .15
75. The conflict in Darfur opposes the Government of the Sudan to at least two organized armed
groups of rebels, namely the Sudan Liberation Movement/Army (SLM/A) and the Justice and Equality
Movement (JEM).16 As noted above, the first two groups of insurgents took up arms against the central
authorities in or around 2002. However, the scale of rebel attacks increased noticeably in February 2003.
The rebels exercise de facto control over some areas of Darfur. The conflict therefore does not merely
12 Common Article 2 (1)
13 Article 1(2)
14 See ICTY Appeals Chamber, Tadi􀃼, Interlocutory Appeal on Jurisdiction (1995), § 70.
15 See Additional Protocol II, Art. 1 (2) and the ICC Statute, Article 8(2)(d) and (f).
16 A third rebel group recently emerged, namely the National Movement for Reform and Development, NMRD. According to a
Report of the UN Secretary-General of 3 December 2004, on 2, 3 and 26 November 2004 the NMRD reportedly attacked four
villages around the Kulbus area. It also clashed with armed militias in the Jebel Moon area (see UN doc. S/2004/947, at §10
(f)).
27
amount to a situation of internal disturbances and tensions, riots, or isolated and sporadic acts of
violence. Rather, the requirements of (i) existence of organized armed groups fighting against the central
authorities, (ii) control by rebels over part of the territory and (iii) protracted fighting, in order for this
situation to be considered an internal armed conflict under common Article 3 of the Geneva Conventions
are met.
76. All the parties to the conflict (the Government of the Sudan, the SLA and the JEM) have
recognised that this is an internal armed conflict. Among other things, in 2004 the two rebel groups and
the Government of the Sudan entered into a number of international agreements, inter se, in which they
invoke or rely upon the Geneva Conventions.
III. CATEGORIES OF PERSONS OR GROUPS PARTICIPATING IN THE ARMED
CONFLICT
77. This section will briefly review the various groups taking an active part in the armed conflict in
Darfur. On the side of the Government, the various elements of the Sudan People’s Armed Forces have
played a key role in the armed conflict and therefore are described below. In addition, according to the
Commission’s findings, the National Security and Intelligence Service has a central role and is
responsible for the design, planning and implementation of policies associated with the conflict. The
Service is often referred to as the de facto State power and its influence appears to reach the highest
levels of authority. Its mandate and structure are described below. The role of the Government-supported
militia, commonly referred to as ‘Janjaweed’, is also set out below. Finally, the structure and role of the
main rebel groups referred to above are explained here in further detail.
1. Government Armed Forces
(i) General features
78. The Sudanese armed force is a conventional armed force with a mandate to protect and to
maintain internal security.17 It carries out its mandate through an army, including Popular Defence Force
militia and Borders Intelligence, as well as an air force and navy. According to information received by
the Commission, currently the army numbers approximately 200,000 in strength, although its logistical
capacity was designed for an army of 60,000. Support, in particular air support, therefore goes primarily
to priority areas and is re-deployed only after those areas have calmed down. The central command and
control of armed forces operations are therefore imperative.
(ii) Structure
79. The Commander-in-Chief of the armed forces is the President, although for operational purposes
he exercises this power through the Minister of Defence. The Minister appoints a Commander of the
Armed Forces and Chief of General Staff who, together with five Deputy Chiefs of Staff (including
Operations, Logistics, Administration, Training and Morale), form the ‘Committee of the Joint Chiefs of
Staff’ or ‘command group’.
17 Article 122, Part VII, Constitution of Sudan
28
(iii) Military Intelligence
80. While Military Intelligence (MI) was once a part of the ‘Operations’ branch within the armed
forces, it now forms an independent branch with its own administration and command. MI has the power
to arrest, detain and interrogate. With regard to communication and reporting, the MI branch passes
information through the operational chain, as well as directly to the Presidency, through the Chief of the
MI branch.
(iv) Popular Defence Forces
81. For operational purposes, the Sudanese armed forces can be supplemented by the mobilization of
civilians or reservists into the Popular Defence Forces (PDF). The mandate of the PDF derives from the
Popular Defence Forces Act of 1989, which defines the PDF as ‘Paramilitary forces’ made up of
Sudanese citizens who meet certain criteria. Article 6 of the Act states that the functions of the PDF are
to ‘assist the People’s Armed Forces and other regular forces whenever needed’, ‘contribute to the
defence of the nation and help to deal with crises and public disasters’ and perform ‘any other task
entrusted to them by the Commander-in-Chief himself or pursuant to a recommendation of the Council.’
According to the Act, a body known as ‘The Council of the Popular Defence Forces’ advises the
Commander-in-Chief on matters affecting the PDF, including areas in which the PDF should be
established, military training and education for PDF members, and other issues relating to the duties and
activities of the PDF.
82. According to information gathered by the Commission, local government officials are asked by
army Headquarters to mobilize and recruit PDF forces through tribal leaders and sheikhs.18 The Wali is
responsible for mobilization in each State because he is expected to be familiar with the local tribal
leaders. As one tribal leader explained to the Commission, ‘in July 2003 the State called on tribal leaders
for help. We called on our people to join the PDF. They responded by joining, and started taking orders
from the Government as part of the state military apparatus.’
83. The PDF provides arms, uniforms and training to those mobilized, who are then integrated into
the regular army for operations. At that point, the recruits come under regular army command and
normally wear the same uniform as the unit they are fighting with. One senior commander explained the
recruitment and training of PDF soldiers as follows:
‘Training is done through central barracks and local barracks in each state. A person comes
forward to volunteer. We first determine whether training is needed or not. We then do a
security check and a medical check. We compose a list and give it to the military. This is
done at both levels – Khartoum and state or local level. We give basic training (for example,
on the use of weapons, discipline, …) which can take two weeks or so, depending on the
individual.’
‘A person may come with a horse or camel – we may send them into military operations on
their camel or horse. [...] Recruits are given weapons and weapons are retrieved again at the
end of training.’
18 See below for details on the relationship between the PDF and the ‘Janjaweed’.
29
84. According to another senior commander, most of the PDF recruits come ‘well-versed in firearms
and are tough and fit’ but ‘need training in discipline’. He noted that uniforms, weapons and ammunition
were not always returned by recruits following demobilisation, and that weapons and ammunition would
at times be distributed through tribal leaders in order to ensure that they are returned on demobilization.
(v) Borders Intelligence
85. The armed forces also include an operational unit called the ‘Borders Intelligence’, the primary
role of which is to gather information. Members of this unit are recruited from the local population.
They are deployed to their areas of origin, according to their experience in the area, knowledge of the
tribes, and ability to differentiate between people of different tribal and national origins based on local
knowledge. Borders Intelligence guards are under the direct control of the Military Intelligence Officers
in the particular Division where they are deployed and otherwise fall under the regular chain of
command for the armed forces.
86. While initially Borders Intelligence officers were recruited in relation to the conflict in southern
Sudan, the Government began recruiting them during the early stages of the armed conflict in Darfur in
late 2002 and early 2003. Some consider this was done as a cover to recruit Janjaweed.19 According to a
senior armed forces commander, Borders Intelligence soldiers are recruited directly into the army in the
same way as regular soldiers. An advertisement is made through media channels for volunteers who
meet certain criteria, in particular with regard to age, citizenship and fitness. Approximately 3,000
Borders Intelligence soldiers have been recruited in this way and deployed in Darfur.
(vi) Reporting and command structure
87. Planning for all military operations is done in Khartoum by the Committee of the Joint Chiefs of
Staff. Orders in relation to a particular operation are passed from the Committee to the Director of
Operations, who gives them to the Area Commander. The Area Commander then gives the orders to the
Divisional Commander, who shares them with the Brigade Commander for implementation.
88. With regard to reporting, information flows from Battalion level, to the Brigade Commander, to
the Divisional Commander, to the Area Commander, to the Director of Operations, and finally to the
Deputy Chief of Staff and Command Group. The Command Group reports to the Chief of Staff who
reports, if necessary, to the Minister of Defence and finally to the Presidency. Within the army, reporting
and all other communications take place up and down the chain of command as with most conventional
armed forces.
(vii) National Security and Intelligence Service
89. National Security forces are regular forces whose mission is to oversee the internal and external
security of the Sudan, monitor relevant events, analyze the significance and dangers of the same, and
recommend protection measures.20 According to information received by the Commission, the National
19 See below for further details.
20 Article 124, Part VII, Constitution of Sudan.
30
Security and Intelligence Service is one of the most powerful organs in the Sudan. Its derives from the
National Security Force Act of 1999, as amended in 2001, which states that there shall be an Internal
Security Organ in charge of internal security, and a Sudanese Intelligence Organ in charge of external
security.21
90. National Security Forces act under the general supervision of the President.22 The direct
responsibility of the Organ is assumed by the Director-General23 who is appointed by the President.24
The Director-General is responsible to the President for the execution of his functions and the overall
performance of the Organ.25
91. According to the Act, a body known as “The National Security Council” is to be established to
oversee the implementation of the security plan of the country; to supervise the progress of security
work; to co-ordinate between security organs; to follow-up on the implementation of security policies
and programmes; to approve regulations related to the organization of work; and to constitute a technical
committee from the organs forming the Council in order to assist in the progress of work.26 The National
Security Council is to be constituted of the President, the President’s advisor on security affairs, the
Minister of Defence, the Minister of Foreign Relations, the Minister of Internal Affairs, the Minister of
Justice, the Director of the Internal Security Organ, and the Director of the Sudanese Intelligence
Organ.27
92. The Act also provides for the establishment of the “High Technical Security Committee” which
has a mandate to study the security plans presented by the states and the competent organs, submit the
plans to the Council for approval, follow-up on implementation, and receive reports with respect thereto.
The Committee is to co-ordinate the business of security committees in the various states, with regard to
the security plans set out by the Council.28
93. Major General Sallah Abdallah (also known as Sallah Gosh), the Director-General of the
National Security and Intelligence Service, informed the Commission of a decision to create one unified
service, comprising both the internal and external intelligence. This service was formed in February
2004 and is known as “the National Security and Intelligence Service.” The Director-General told the
Commission that he reports at least every second day to the President and/or First Vice-President. While
he co-operates with other organs of the Government, he is accountable directly to the President.
94. With regard to the Darfur crisis, the Director-General stated that the National Security and
Intelligence Service would gather information and report to the President about the situation. Depending
on the nature of the issue, it would also report to the Ministry of Defence, Ministry of Interior, Ministry
of Foreign Affairs or Ministry of Humanitarian Affairs. Based on the information received, the
President would then instruct the Cabinet. He further stated that the President formed a coordinating
Committee in response to the crisis, which was headed by the Minister for Federal Affairs and included
21 Article 5(1) and 5(2), National Security Act.
22 Article 5(3), National Security Act.
23 Article 5(4), National Security Act.
24 Article 10(1), National Security Act.
25 Article 10(3), National Security Act
26 Article 35, National Security Act.
27 Article 34(1), National Security Act.
28 Articles 38 and 39, National Security Act.
31
Minister of Defence, Minister of Interior, Director of Intelligence, Minister of Foreign Affairs and
Minister of Humanitarian Affairs. However, according to the Director-General the Committee has not
met in the last 12 months. Instead, each of the relevant Ministries or Organs have dealt individually or
bilaterally with the matter under their competence.
95. As to the hierarchy within the National Security and Intelligence Service, the Director-General
informed the Commission that he has a Deputy, with whom he shares his activities and functions, as
well as four Directors. The Service has a desk specifically to address the situation in Darfur, which
receives all information regarding the area, including external public information. This unit is
responsible for producing and analyzing intelligence. Every unit reports up the chain of command and
ultimately every action is reported to the Director-General.
96. The Commission noted that the National Security Force Act, as amended in 2001, gives the
security forces wide-reaching powers, including the power to detain without charge or access to a judge
for up to nine months. In Khartoum, the Commission interviewed detainees that were held
incommunicado by the security forces in “ghost houses” under abhorrent conditions. In some cases,
torture, beatings and threats were used during interrogations and so as to extract confessions. Some of
the detainees had been held for 11 months without charge, access to a lawyer or communication with
family.
97. The security forces collect information on all aspects of life in the three States of Darfur. This
information is disseminated to the relevant Ministries for appropriate action. The Director-General
confirmed that this information or intelligence may relate to matters such as the presence of rebels and
whether or not they have arms. The military may use this information to make operational decisions.
While the National Security and Intelligence Service does not give orders to the military, it provides it
with information which is used as a basis for operational planning.
2. Government supported and/or controlled militias – the ‘Janjaweed’
98. A major question relates to the militias in Darfur, often referred to as Janjaweed, fursan
(horsemen, knights), or mujahedeen. The term ‘Janjaweed’, in particular, has been widely used by
victims of attacks to describe their attackers. The term has consequently also been used by many
international organizations and the media in their reports on the situation in Darfur, and was used by the
Security Council in resolution 1564. Victims of attacks have indicated that the Janjaweed were acting
with and on behalf of Government forces. In contrast, senior Sudanese State authorities, in Khartoum
and in the three Darfur States indicated to the Commission that any violations committed by the
Janjaweed have no relationship to State actors. Given the allegedly central role played by the Janjaweed
in the acts being investigated by the Commission and given the discrepancy in the understanding of the
identity of the Janjaweed and their alleged link with the State, it was essential for the Commission to
clarify the character and role of those actors to whom the term is being applied.
99. This section clarifies the concept of ‘Janjaweed’ and the implications for the determination of
international criminal responsibility. As explained below, the Commission has gathered very substantial
material which it considers substantiates use of the term ‘Janjaweed’, in the limited context of the
Commission’s mandate, as a generic term to describe Arab militia acting, under the authority, with the
32
support, complicity or tolerance of the Sudanese State authorities, and who benefit from impunity for
their actions. For this reason, the Commission has chosen to use the term ‘Janjaweed’ throughout this
report, and also because it reflects the language used by the Security Council in the various resolutions
concerning Darfur and, most of all, because it is constantly referred to by victims.
(i.) Emergence of the term janjaweed
100. In Darfur the term “Janjaweed” has been used in the past to describe bandits who prey on rural
populations through, among other things, the stealing of cattle and highway robbery. The word
“Janjaweed” is an Arabic colloquialism from the region, and generally means "a man (a devil) on a horse."
The term was used in the tribal conflicts of the 1990s to specifically denote militias from mainly Arab
tribes which would attack and destroy the villages of sedentary tribes.
101. The fact that the Janjaweed are described as Arab militias does not imply that all Arabs are fighting
on the side of the Janjaweed. In fact, the Commission found that 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 tribes29. 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.
102. The Commission found that when faced with the rebellion in Darfur launched by two rebel
movements in early 2003, the Government called on a number of Arab tribes to assist in the fight. Some
tribal leaders with relationships with both local and central Government officials played a key role in
recruiting and organizing militia members and liaising with Government officials. One senior Government
official, at provincial level, described how an initial Government recruitment of fighting men drew also
upon Arab outlaws and, as other reports have described, the recruitment of convicted felons. The
Commission also received credible evidence that the ranks of the Janjaweed include fighters from
neighbouring countries, primarily Chad and Libya.
(ii.) Uses of the term in the context of current events in Darfur
103. Victims of attacks consistently refer to their attackers as Janjaweed, most often attacking with the
support of Government forces. When asked to provide further details, victims report that the Janjaweed
attackers are from Arab tribes and, in most instances, attacked on horseback or on camels and were
armed with automatic weapons of various types.
104. With the exception of these two precisions, it is probably impossible to define the ‘Janjaweed’,
as used in Darfur today, as a homogenous entity. In particular, actors to whom it has been applied can
usually also be described with other terminology. For example, the Commission found that on numerous
occasions the term ‘Janjaweed’ was used, by victims and members of the authorities, to describe
particular men who they had named as leaders of attacks on villages in which civilians were killed and
rapes were committed. The Commission was later able to confirm that these men were in fact members
29 The Commission was informed of certain Rezeghat in Ed Daien, South Darfur, who had refused to answer the call to
join other Arab tribes in the fight and instead joined the SLA.
33
of the PDF. Separately, the Commission was informed that a senior member of the local authorities had
described one man as a local Janjaweed leader. The man was similarly identified by a victim of an attack
as being a Janjaweed leader who had conducted attacks in which civilians were killed. Later, the
Commission obtained an official Government letter in which Darfur provincial authorities referred to the
same man as being a member of the ‘Fursan’. Finally, this man himself showed the Commission
evidence that he is a member of the PDF. By way of a further example, the Commission confirmed that
PDF forces in one State conduct their attacks on horseback and on camels in a specific deployment
configuration and using particular types of weapons. Many victims of attacks in the same area and who
identified their attackers as Janjaweed, described for the Commission attackers wearing the same
uniforms, using the same deployment during the attack and using the same weapons as those employed
by local PDF forces. In a further instance, one victim was asked by the Commission to distinguish
between Janjaweed, army and police who had allegedly attacked his village. He responded by saying
that for himself and other victims they were all the same.
105. These are a few examples, among multiple testimonies and material evidence, confirming for the
Commission that, in practice, the term ‘Janjaweed’ is being used interchangeably with other terms used
to describe militia forces working with the Government. Where victims describe their attackers as
Janjaweed, these persons might be from a tribal Arab militia, from the PDF or from some other entity, as
described below.
(iii.) Organization and structure of Janjaweed
106. The Janjaweed are not organized in one single coherent structure, and the Commission identified
three main categories of Janjaweed actor, determined according to their type of affiliation with the
Government of Sudan. The first category includes militias which are only loosely affiliated with the
Government and which have received weapons and other supplies from the State. These militias are
thought to operate primarily under a tribal management structure30. They 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.
107. A second category includes militias which are organized in paramilitary structures and in parallel
to regular forces, including groups known as “the Strike Force”, the Mujahedeen or the Fursan (the
horsemen). Some of these may be headed by officers in the regular army while also controlled by senior
tribal leaders. While militias in this category are thought to operate within a defined command structure
they do not have any legal basis.
108. A third category of militia includes members of the PDF31 and Border Intelligence32 which have a
legislative basis under Sudanese law. The PDF fight alongside the regular armed forces.
30 For instance some Rezeigat witnesses in West Darfur said they have been attacked near Kulbus by “Janjaweed
Zaghawa”. In this instance, it is clear that they refer to the Zaghawa tribal militias, who likely also attack on horses and
camels.
31 President El-Bashir also confirmed that in order to rein the Janjaweed, they were incorporated in “other areas”, such
as the armed forces and the police: see interview on CNN on August 31, 2004, transcript at
http://edition.cnn.com/2004/WORLD/africa/08/31/amanpour.bashir/index.html;
32 The existence of the Border Guard is supported by many witness testimonies. In an interview with the Commission,
General El Fadil, Deputy-Director of Military Intelligence, said that his department was responsible for recruiting for
the ‘Border Guard’, and made a distinction between them and the PDF.
34
109. There are links between all three categories. For example, the Commission has received
independent testimony that the PDF has supplied uniforms, weapons, ammunition and payments to Arab
tribal militia from the first category. The leaders of these tribes meet regularly with the PDF Civilian Coordinator,
who takes their concerns to the Security Committee of the locality.
110. The Commission has gathered substantial material attesting to the participation of militia from all
three categories in committing violations of international human rights and humanitarian law. The
Commission has determined, further, that attackers from all 3 categories have been identified by victims
and other witnesses as Janjaweed.
(iv) Links between the militias and the State
111. The Commission has established that clear links exist between the State and militias from all three
categories. The close relationship between the militias and the PDF, a State institution established by law,
demonstrates the strong link between these militias and the State as a whole. In addition, militias from all
three categories have received weapons, and regular supplies of ammunition which have been distributed
to the militias by the army, by senior civilian authorities at the locality level or, in some instances, by the
PDF to the other militias.
112. The PDF take their orders from the army and conduct their attacks on villages under the direct
leadership of an army officer with the rank of Captain or Lieutenant. Testimonies of victims consistently
depict close coordination in raids between government armed forces and militia men who they have
described as Janjaweed and the Commission has very substantial material attesting to the participation of
all categories of militia in attacks on villages in coordination with attacks or surveillance by Sudanese
military aircraft. Numerous sources have reported that Government of Sudan aircraft have been used to
supply the Janjaweed with arms.
113. Members of the PDF receive a monthly salary from the State which is paid through the army. The
Commission has reports of the tribal militia members, or their leaders, receiving payments for their attacks
and one senior Government official involved in the recruitment of militia informed the Commission that
tribal leaders were paid in terms of grants and gifts according to the success of their recruitment efforts.
In addition, the Commission has substantial testimony that this category of militia has the tacit agreement
of the State authorities to loot any property they find and to gain compensation for their attacks in this way.
A consistent feature of attacks is the systematic looting of the possessions of villagers, including cash,
personal valuable items and, above all, livestock. Indeed, all of these militias operate with almost
complete impunity for attacks on villages and related human rights violations. For example, the
Commission has substantial testimony indicating that police officers in one locality received orders not to
register or investigate complaints made by victims against Janjaweed.
114. A Report of the Secretary-General, pursuant to paragraphs 6 and 13 to16 of Security Council
resolution 1556 (2004) of 30 August 200433, mentions that “the Government also accepted that the militias
under its influence were not limited to those previously incorporated into the Popular Defence Forces, but
also included militias that were outside and later linked with or mobilized to join those forces. This means
33 S/2004/703
35
that the commitment to disarm refers both to the Popular Defence Forces and to militias that have operated
in association with them”.
115. Confidential documents made available to the Commission further support the above conclusions
on links between the militias and the Government, and identify some individuals within the governmental
structure who would have had a role in the recruitment of the militias.
116. The Commission does not have exact figures of the numbers of active Janjaweed, however, most
sources indicate that in each of Darfur's three states there is at least one large Janjaweed group as well as
several smaller ones. One report identified at least 16 Janjaweed camps still active throughout Darfur
with names of Janjaweed commanders. According to information obtained by the Commission, Misteria,
in North Darfur, is one Janjaweed camp which continues to be used today and which incorporates a
militia known as the Border Guards. It was set up as a base for Janjaweed from which they receive
training, weapons, ammunition and can eventually be recruited into the PDF structure, into the police, or
into the army. The Commission received evidence that civilians have been abducted by leaders of this
camp and detained within the camp where they were tortured and used for labour. These civilians were
taken out of the camp and hidden during 3 pre-arranged monitoring visits by AU forces. In the first half
of 2004 the Misteria camp was populated by approximately 7,000 Janjaweed. By the end of 2004 most
of these men had been registered as PDF or police and army regular forces. An army officer with the
rank of Colonel was stationed in the camp throughout the year and was responsible for training,
ammunition stores and paying salaries to the Janjaweed. Two military helicopters visited the camp
roughly once a month bringing additional weapons and ammunition. On at least one occasion the camp
was visited by an army Brigadier.
(v.) The position of the Government
117. Especially since the international community has become aware of the impact of the Janjaweed
actions, responses of the Government of the Sudan to the use of the term seems to have been aimed at
denying the existence of any links between the State and the Janjaweed; and most 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 the Janjaweed and their links with the State.
118. The Minister of Defence during a press conference on 28 January 2004 invited the media to
differentiate between the "rebels", the "Janjaweed", the "Popular Defence Forces (PDF)" and "tribal
militias", such as the "militias" of the Fur tribe, and the "Nahayein" of the Zaghawa. He said the PDF are
volunteers who aid the armed forces but the Janjaweed are "gangs of armed bandits" with which the
government has no relations whatsoever.34 President Bashir intended his pledge on 19 June 2004 to
"disarm the Janjaweed" to apply only to the bandits, not the Popular Defence Forces, Popular Police or
other tribesmen armed by the state to fight the rebels35.
34 "The Minister of Defence meets the media…", in Arabic, al-Adwa, 29 December 2003.
35 See Akhbar al-Youm and other major newspapers of 23 June 2004. President Bashir said he used the term
"Janjaweed" only because "malevolent powers" were employing it to "slander" the government; see the contradiction
with the Report of the Secretary-General pursuant to paragraphs 6 and 13 to16 of Security Council resolution 1556
(2004) of 30 August 2004 mentioned above, where the Government expresses its acceptance to disarm the PDF.
36
119. Contrasting with the above, some official statements confirm the relationship between the
government and the militias. In a widely publicized comment addressed to the citizens of Kulbus, a town
the rebels had failed to overrun in December 2003, the President said: "Our priority from now on is to
eliminate the rebellion, and any outlaw element is our target … We will use the army, the police, the
mujahedeen, the horsemen to get rid of the rebellion".36 The Minister of Justice told the ad hoc delegation
of the Committee on Development and Cooperation of the European Parliament during its visit in February
2004 that “the Government made a sort of relationship with the Janjaweed. Now the Janjaweed abuse it. I
am sure that the Government is regretting very much any sort of commitments between them and the
Government. We now treat them as outlaws. The devastation they are doing cannot be tolerated at all”.37
On 24 April 2004, the Foreign Minister stated: “The government may have turned a blind eye toward the
militias,” he said. “This is true. Because those militias are targeting the rebellion.”38 The Commission
has formally requested the Minister on three occasions to provide it with the above statement or any
other statement related to the militias, but has not received it.
120. Despite Government statements regretting the actions of the Janjaweed, the various militias’
attacks on villages have continued throughout 2004, with continued Government support.
(vi.) The question of legal responsibility for acts commited by the Janjaweed
121. The “Janjaweed” to whom most victims refer in the current conflict are Arab militias that raid the
villages of those victims, mounted on horses or camels, and kill, loot, burn and rape. These militias
frequently operate with, or are supported by, the Government, as evidenced both by consistent witness
testimonies describing Government forces’ support during attacks, the clear patterns in attacks
conducted across Darfur over a period of a year, and by the material gathered by the Commission
concerning the recruitment, arming and training of militias by the Government. Some militias may, as
the Government alleges, sometimes act independently of the Government and take advantage of the
general climate of chaos and impunity to attack, loot, burn, destroy, rape, and kill.
122. A major legal question arises with regard to the militias referred to above: who (in addition to the
individual perpetrators) is criminally responsible for crimes allegedly committed by Janjaweed?
123. When militias attack jointly with the armed forces, it can be held that they act under the effective
control of the Government, consistently with the notion of control set out in 1999 in Tadi􀃼 (Appeal), at
§§ 98-145. Thus they are acting as de facto State officials of the Government of Sudan. It follows that, if
it may be proved that all the requisite elements of effective control were fulfilled in each individual case,
responsibility for their crimes is incurred not only by the individual perpetrators but also by the relevant
officials of the army for ordering or planning, those crimes, or for failing to prevent or repress them,
under the notion of superior responsibility.
124. When militias are incorporated in the PDF and wear uniforms, they acquire, from the viewpoint
of international law the status of organs of the Sudan. Their actions and their crimes could be legally
attributed to the Government. Hence, as in the preceding class, any crime committed by them involved
36 "Sudanese president says war against outlaws is government priority", Associated Press, 31 December 2003.
37 Report by ad hoc delegation of the Committee on Development and Cooperation of the European Parliament of its
visit in February 2004,.
38 “Sudan Minister Hails U.N. Rights Vote,” Associated Press, Khartoum, The Guardian (London), April 24, 2004.
37
not only the criminal liability of the perpetrator, but also the responsibility of their superior authorities of
the Sudan if they ordered or planned those crimes or failed to prevent or repress such crimes (superior
responsibility).
125. On the basis of its investigations, the Commission is confident that the large majority of attacks
on villages conducted by the militia have been undertaken with the acquiesecence of State officials. The
Commission considers that in some limited instances militias have sometimes taken action outside of the
direct control of the Government of Sudan and without receiving orders from State officials to conduct
such acts. In these circumstances, only individual perpetrators of crimes bear responsibility for such
crimes. However, whenever it can be proved that it was the Government that instigated those militias to
attack certain tribes, or that the Government provided them with weapons and financial and logistical
support, it may be held that (i) the Government incurs international responsibility (vis-à-vis all other
member States of the international community) for any violation of international human rights law
committed by the militias, and in addition (ii) the relevant officials in the Government may be held
criminally accountable, depending on the specific circumstances of each case, for instigating or for
aiding and abetting the violations of humanitarian law committed by militias.
126. The Commission wishes to emphasize that, if it is established that the Government used the
militias as a “tactic of war”, even in instances where the Janjaweed may have acted without evidence of
Government support, Government officials may incur criminal responsibility for joint criminal enterprise
to engage in indiscriminate attacks against civilians and murder of civilians. Criminal responsibility may
arise because although the Government may have intended to kill rebels and destroy villages for counterinsurgency
purposes, it was foreseeable, especially considering the history of conflicts between the tribes
and the record of criminality of the Janjaweed, that giving them authorization, or encouragement, to
attack their long-term enemies, and creating a climate of total impunity, would lead to the perpetration of
serious crimes. The Government of Sudan willingly took that risk.
3. Rebel movement groups
(i.) The Sudan Liberation Movement/Army (SLM/A)
127. The Sudan Liberation Movement/Army (SLM/A) is one of the two main rebel organizations in
Darfur. By all accounts, it appears to be the largest in terms of membership and geographical activity. It
is composed mainly of Zaghawa, Fur and Masaalit, as well as some members of Arab tribes. The
SLM/A initially called itself the Darfur Liberation Front, and at the time was defending a secessionist
agenda for Darfur. In a statement released on 14 March 2003, the Darfur Liberation Front changed its
name to the Sudan Liberation Movement and the Sudan Liberation Army (SLM/A), and called for a
“united democratic Sudan” and for separation between State and religion.
128. The SLM/A claims that all post-independence Governments of the Sudan have pursued policies
of marginalization, racial discrimination, exclusion, exploitation and divisiveness, which in Darfur have
disrupted the peaceful coexistence between the region’s African and Arab communities. As indicated in
its policy statement released in March 2003, “the SLM/A is a national movement that aims along with
other like-minded political groups to address and solve the fundamental problems of all of the Sudan.
The objective of SLM/A is to create a united democratic Sudan on a new basis of equality, complete
restructuring and devolution of power, even development, cultural and political pluralism and moral and
38
material prosperity for all Sudanese”39. It called upon tribes of “Arab background” to join its struggle for
democracy. At various occasion it has stated that it was seeking an equitable share for Darfur in the
country’s distribution of wealth and political power.
129. The SLM/A emphasizes that it has a national agenda and does not argue its case from a tribal
perspective, and underlines that its cause is directed against the Khartoum Government, and not the Arab
tribes in Darfur: “The Arab tribes and groups are an integral and indivisible component of Darfur social
fabric that have been equally marginalized and deprived of their rights to development and genuine
political participation. SLM/A firmly opposes and struggles against the Khartoum government’s policies
of using some Arab tribes and organization such as the Arab Alliance and Quresh to achieve its
hegemonic devices that are detrimental both to Arabs and non-Arabs.”40
130. In addition, it should also be noted that the SLM/A is part of the Sudanese opposition umbrella
group, the National Democratic Alliance (NDA), which also includes the Sudan People’s Liberation
Movement /Army (SPLM/A), the Umma party and other Sudanese opposition parties.
131. The SLM/A, as indicated by its name, is influenced in terms of agenda and structure by its
southern counterpart, the SPLM/A. During the Commission’s meetings with the SLM/A leadership in
Asmara, Eritrea, it was made clear that the group is divided into a political arm, the “Movement”, and a
military arm, the “Army”. At the oustset of the conflict, the structure of the SLM/A remained unclear. In
October 2003, the SLM/A reportedly held a conference in North Darfur State during which changes in
their structure were discussed and a clear division of work proposed between the military and the
political wings. Nowadays, and following the discussion members of the Commission had with SLM/A
representatives in Eritrea, it appears that the movement’s non-military chairman is Abdel Wahid
Mohamad al Nur and that the main military leader and the group’s Secretary-General is Minnie Arkawi
Minawi. The negotiation team in the peace talks with the Government is headed by Dr. Sherif Harir.
Little is known about the detailed structure, or about the actual size of the military arm. According to
information obtained by the Commission, the SLM/A has acquired most of its weapons through the
looting of Government installations, in particular police stations as well as army barracks. Other sources
claim that foreign support has also played an important role in the build-up of the SLM/A forces. The
Commission, however, was not in a position to confirm this.
132. The Commission obtained little information about the areas controlled by the SLM/A in Darfur.
While certain rural areas are said to be under the group’s control, given its operation as a mobile guerilla
group, these areas of control are not fixed. In the beginning of the conflict most of the fighting seems to
have taken place in North and northern West Darfur, while it gradually moved southward into South
Darfur during the last months of 2004.
(ii) The Justice and Equality Movement (JEM)
39 Press Release/Commentary by SLM/A of 14 March 2003, available at
http://www.sudan.net/news/press/postedr/214.shtml
40 Press Release/Commentary by SLM/A of 14 March 2003, available at
http://www.sudan.net/news/press/postedr/214.shtml
39
133. Like the SLM/A, the Justice and Equality Movement (JEM) is a Darfur-based rebel movement,
which emerged in 2001, and formed part of the armed rebellion against the Government launched in
early 2003. In the field, it is difficult to make a distinction between JEM and SLM/A, as most often
reports on actions by rebels do not distinguish between the two. It has been reported that members of the
JEM have yellow turbans. It also appears that while SLM/A is the larger military actor of the two, the
JEM is more political and has a limited military capacity, in particular following the reported split of the
group and the ensuing emergence of the NMRD (see below).
134. The JEM is led by Dr. Khalil Ibrahim, a former State Minister who sided with Hassan El Turabi
when the latter formed the Popular National Congress in 2000. Various sources of information have
stated that the JEM have been backed by Turabi. While Turabi’s role in and influence on the JEM
remains unclear, after an initial release following two years’ detention in October 2003, he reportedly
admitted that his party has links with JEM. However during a meeting with the members of the
Commission, Dr. Khalil Ibrahim denied such a link, and stated that in fact Turabi was the main reason
for the atrocities committed in the Darfur.
135. The “Black Book” appears to be the main ideological base of the JEM. This manifesto, which
appeared in 2001, seeks to prove that there has been a total marginalization of Darfur and other regions
of the Sudan, in terms of economic and social development, but also of political influence. It presents
facts that aim to show, "the imbalance of power and wealth in Sudan". It was meant to be an anatomy of
Sudan that revealed the gaps and discrimination in contrast to the positive picture promoted by the
Government. The Black Book seeks to show in a meticulous fashion how the Sudan's post-independence
administrations have been dominated by three tribes all from the Nile valley north of Khartoum, which
only represent about five per cent of the Sudan's population according to the official census. Despite
this, the Black Book argues, these three tribes have held between 47 and 70 per cent of cabinet positions
since 1956, and the presidency up until today. Persons from the North are also reportedly
overwhelmingly dominant in the military hierarchy, the judiciary and the provincial administration.
According to the Black Book, those leaders have attempted to impose a uniform Arab and Islamic
culture on one of the continent's most heterogeneous societies41. The message is designed to appeal to all
marginalized Sudanese - whether of Arab, Afro-Arab or African identity, Christian or Muslim. Based on
this ideology, the JEM is not only fighting against the marginalization, but also for political change in
the country, and has a national agenda directed against the present Government of the Sudan.
136. The Commission obtained very little information about the size and geographic location OF JEM
forces in Darfur. Most of its members appear to belong to the Zaghawa tribe, and most JEM activity is
reported in the northern parts of West Darfur. The Commission did find information about a number of
incidents in which the JEM had been involved in attacks on civilians (see below).
137. In early May 2004, the JEM split into two factions: one group under the leadership of Dr. Khalil,
while the other group comprises commanders in the field led by Colonel Gibril. The split reportedly
occurred after the field commanders called a conference in Karo, near the Chadian border in North
Darfur State, on 23 May 2004. The conference was organized by the commanders to discuss directly
with the political leaders the future of the movement and their ideological differences.
(iii.)Other rebel groups
41 Sudan Tribune: Black book history, William Wallis, 21 August 2004
40
138. During 2004 a number of other rebel groups emerged. The Commission was not in a position to
obtain detailed information about any of these groups nor did it meet with any persons openly affiliated
with them.
139. One such group is the National Movement for Reconstruction/Reform and Development
(NMRD). On 6 June, the NMRD issued a manifesto stating that it was not party to the ceasefire
agreement concluded between the Government and the SLM/A and the JEM in April, and that it was
going to fight against the Government. The commanders and soldiers of this movement are mainly from
the Kobera Zaghawa sub-tribe, a distinct sub-tribe of the Wagi Zaghawa, who are prominent in the
SLM/A. The NMRD is particularly active in the Chadian border town of Tine and in the Jabel Moun
area in West Darfur state.
140. On 14 December 2004, talks between the Government of the Sudan and an NMRD delegation
began in N’djamena, with Chadian mediation. On 17 December the parties signed two protocols, one on
humanitarian access and another on security issues in the war zone. The Protocols underscored the
N'Djamena Agreement of 8 April on cease-fire and the Addis Ababa Agreement of 28 May on the ceasefire
committee and Abuja Protocols of 9 November. Under the protocols, both parties pledged to abide
by a comprehensive ceasefire in Darfur, release war prisoners and organize voluntary repatriation for
internally displaced persons, (IDPs) and refugees.
141. In addition to the NMRD, a small number of new armed groups have emerged, but only very
little information is available about their political agenda, composition and activities. One of these
groups is named Korbaj, which means “whip” in Arabic, and is supposedly composed of members of
Arab tribes. Another group is named Al Shahamah, which in Arabic means “The Nobility Movement”,
and was first heard of at the end of September 2004, and is supposedly located in Western Kordofan
state, which borders Darfur in the East. The group seeks fair development opportunities for the region, a
review of the power and wealth sharing agreement signed between the Government and the Sudan
People's Liberation Movement (SPLM), and a revision of the agreement on administrative arrangements
for the Nuba Mountains and the Southern Blue Nile regions. A third group, the Sudanese National
Movement for the Eradication of Marginalisation emerged in December 2004 when it claimed
responsibility for an attack on Ghubeish in Western Kordofan. Little is known of this groups, but some
reports claim it is a splinter group from the SLM/A. None of these three groups are party to any of the
agreements signed by the other rebel groups with the Government.
IV. THE INTERNATIONAL LEGAL OBLIGATIONS INCUMBENT UPON THE SUDANESE
GOVERNMENT AND THE REBELS
142. In order to legally characterise the facts, the Commission must first determine the rules of
international human rights law and humanitarian law against which these facts may be evaluated. It is
important therefore to set out the relevant international obligations that are binding on both the
Government and the rebels.
41
1. Relevant Rules of International Law Binding the Government of the Sudan
143. Two main bodies of law apply to the Sudan in the conflict in Darfur: international human rights
law and international humanitarian law. The two are complementary. For example, they both aim to
protect human life and dignity, prohibit discrimination on various grounds, and protect against torture or
other cruel, inhuman and degrading treatment. They both seek to guarantee safeguards for persons
subject to criminal justice proceedings, and to ensure basic rights including those related to health, food
and housing. They both include provisions for the protection of women and vulnerable groups, such as
children and displaced persons. The difference lies in that whilst human rights law protects the
individual at all times, international humanitarian law is the lex specialis which applies only in situations
of armed conflict.
144. States are responsible under international human rights law to guarantee the protection and
preservation of human rights and fundamental freedoms at all times, in war and peace alike. The
obligation of the State to refrain from any conduct that violates human rights, as well as the duty to
protect those living within its jurisdiction, is inherent in this principle. Additional Protocol II to the
Geneva Conventions evokes the protection of human rights law for the human person. This in itself
applies the duty of the state to protect also to situations of armed conflict. International human rights law
and humanitarian law are, therefore, mutually reinforcing and overlapping in situations of armed
conflict.
145. Accountability for serious violations of both international human rights law and international
humanitarian law is provided for in the Rome Statute of the International Criminal Court. The Sudan has
signed but not yet ratified the Statute and therefore is bound to refrain from “acts which would defeat the
object and purpose” of the Statute.42
146. The following sections will address the particular provisions reflected in these two bodies of law
that are applicable to the conflict in Darfur.
(i.) International human rights law
147. The Sudan is bound by a number of international treaties on human rights. These include the
International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic,
Social and Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of Racial
Discrimination (ICERD), and the Convention on the Rights of the Child (CRC). The Sudan has signed,
but not yet ratified, the Optional Protocol to the Convention on the Rights of the Child on the
Involvement of Children in Armed Conflict. In contrast, the Sudan has not ratified the Convention on the
Prevention and Punishment of the Crime of Genocide, the Convention on Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, or the Convention on the Elimination of
Discrimination Against Women. At regional level, the Sudan has ratified the African Charter on Human
and Peoples’ Rights. As a State party to these various treaties, the Sudan is legally bound to respect,
protect and fulfil the human rights of those within its jurisdiction.
42 Article 18, Vienna Convention on the Law of Treaties (1969). Ratified by Sudan on 18 April 1990.
42
148. A number of provisions of these treaties are of particular relevance to the armed conflict
currently underway in Darfur. These include: (i) the right to life and to not be ‘arbitrarily deprived’
thereof 43; (ii) the right not to be subjected to torture or to cruel, inhuman or degrading treatment or
punishment44 ; (iii) the right not to be subjected to arbitrary arrest or detention45; (iv) the right of persons
deprived of their liberty to be treated with humanity and with respect for their inherent dignity46; (v) the
right to freedom of movement, to choose one’s own residence and hence not to be displaced arbitrarily47;
(vi) the right to property,48 to adequate housing and not to be subjected to forced eviction49; (vii) the
right to health50; (viii) the right to adequate food51 and to water52; (ix) the right to fair trial 53; (x) the
right to effective remedy for any serious violations of human rights 54; (xi) the right to reparation for
violations of human rights 55; and (xii) the obligation to bring to justice the perpetrators of human rights
violations.56
149. In the case of a state of emergency, international human rights law contains specific provisions
which prescribe the actions of States. In particular, article 4 of the International Covenant on Civil and
Political Rights sets out the circumstances under which a State party may derogate temporarily from part
of its obligations under the Covenant. Two conditions must be met in order for this article to be invoked:
43 Article 6(1)ICCPR, Article 4 AC. The Human Rights Committee rightly held that this right is laid down in
international norms that are peremptory in nature, or jus cogens (General Comment 29, at §11). See
CCPRT/C/21/Rev.1/Add.11, 31 August 2001.
44 Article 7 ICCPR, Article 5 AC. The Human Rights Committee rightly held that this right is recognized in norms that
belong to the corpus of jus cogens (General Comment 29,§ 11).
45 Article 9 ICCPR, Article 6 AC. It is notable that the Human Rights Committee has stated that “the prohibitions
against taking of hostages, abductions or unacknowledged detention are not subject to derogation. The absolute nature
of these prohibitions, even in times of emergency, is justified by their status as norms of general international law”
(General Comment 29, at § 13(b)).
46 Article 10 ICCPR
47 Article 12 ICCPR; Article 12(1) AC. The UN Human Rights Committee held this right so important that in its view
even a State making a declaration of derogation under Article 4 UNC would not be entitled to engage in forcible
deportation or transfer of persons.
48 Article 14 AC
49 Article 11, ICESCR.
50 Article 12, ICESCR ; article 24, CRC ; article 5 (e) (iv), ICERD; AC article 16.
51 Article 11, ICESCR.
52 Articles 11 and 12, ICESCR. See General Comment 15, Committee on Economic, Social and Cultural Rights, which
notes at § 22 that ‘during armed conflicts, emergency situations and natural disasters, the right to water embraces those
obligations by which States parties are bound under international humanitarian law. This includes protection of objects
indispensable for survival of the civilian population, including drinking water installations and supplies and irrigation
works, protection of the natural environment against widespread, long-term and severe damage and ensuring that
civilians, internees and prisoners have access to adequate water.’ (footnotes omitted)
53 Article 14 ICCPR, Article 7 AC
54 Article 2(3) of the ICCPR and Article 7(1)(a) of the AC. The UN Human Rights Committee rightly held in its
aforementioned Comment no.29 that this right “is inherent in the Covenant as a whole” (§ 14) and therefore may not be
derogated from, even if it is not expressly provided for in Article 4.
55 Articles 2(3), 9(5) and 14 (6) ICCPR. According to General Comment 31, of 26 May 2004, of the UN Human Rights
Committee, “Article 2(3) requires that State Parties make reparation to individuals whose Covenant rights have been violated.
Without reparation to individuals whose Covenant rights have been violated, the obligation to provide an effective remedy,
which is central to the efficacy of the Article 2(3), is not discharged.” (UN doc. CCPR/C/21/Rev.1/Add.13, at § 16).
56 Article 2(3) ICCPR. See General Comment 31 of the Human Rights Committee, which states that “A failure by a State Party
to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant. Cessation of an
ongoing violation is an essential element of the right to an effective remedy.”(at § 15) and “Where the investigations [of
alleged violations of human rights] reveal violations of certain Covenant rights, States Parties must ensure that those
responsible are brought to justice. As with the failure to investigate, failure to bring to justice perpetrators of such violations
could in and of itself give rise to a separate breach of the Covenant. These obligations arise notably in respect of those
violations recognized as criminal under either domestic or international law, such as torture and similar cruel, inhuman and
degrading treatment (Article 7), summary and arbitrary killing (Article 6) and enforced disappearance (Articles 7 and 9 and,
frequently, 6).” (at § 18).
43
first, there must be a situation that amounts to a public emergency that threatens the life of the nation,
and secondly, the state of emergency must be proclaimed officially and in accordance with the
constitutional and legal provisions that govern such proclamation and the exercise of emergency
powers.57 The State also must immediately inform the other States parties, through the Secretary-
General, of the provisions it has derogated from and of the reasons for such measures.58 Even during
armed conflict, measures derogating from the Covenant ‘are allowed only if and to the extent that the
situation constitutes a threat to the life of the nation’.59 In any event, they must comply with
requirements set out in the Covenant itself, including that those measures be limited to the extent strictly
required by the exigencies of the situation. Moreover, they must be consistent with other obligations
under international law, particularly the rules of international humanitarian law and peremptory norms of
international law.60
150. Article 4 of the ICCPR clearly specifies the provisions which are non-derogable and which
therefore much be respected at all times. These include the right to life; the prohibition of torture or
cruel, inhuman or degrading punishment; the prohibition of slavery, the slave trade and servitude; and
freedom of thought, conscience and religion. Moreover, measures derogating from the Covenant must
not involve discrimination on the ground of race, colour, sex, language, religion or social origin.
151. Other non-derogable ‘elements’ of the Covenant, as defined by the Human Rights Committee,
include the right of all persons deprived of their liberty to be treated with humanity and with respect for
the inherent dignity of the human person; the prohibition against taking hostages, abductions or
unacknowledged detention; certain elements of the rights of minorities to protection; the prohibition of
deportation or forcible transfer of population; and the prohibition of propaganda for war and of advocacy
of national, racial or religious hatred that would constitute incitement to discrimination, hostility or
violence.61 The obligation to provide effective remedies for any violation of the provisions of article 2,
paragraph 3, of the Covenant must be always complied with.62
152. In addition, the protection of those rights recognized as non-derogable require certain procedural
safeguards, including judicial guarantees. For example, the right to take proceedings before a court to
enable the court to decide on the lawfulness of detention, and remedies such as habeas corpus or
amparo, must not be restricted by derogations under article 4. In other words, ‘the provisions of the
Covenant relating to procedural safeguards may never be made subject to measures that would
circumvent the protection of non-derogable rights.’63
153. The Sudan has been under a continuous state of emergency since 1999 and, in December 2004,
the Government announced the renewal of the state of emergency for one more year. According to the
information available to the Commission, the Government has not taken steps legally to derogate from
57 General Comment 29, para 2.
58 See General Comment 29, para 17, where the Committee states that notification ‘is essential not only for the
discharge of the Committee’s functions, in particular in assessing whether the measures taken by the State party were
strictly required by the exigencies of the situation, but also to permit other States parties to monitor compliance with the
provisions of the Covenant. […] the Committee emphasizes that the notification by States parties should include full
information about the measures taken and a clear explanation of the reasons for them, with full documentation attached
regarding their law.’
59 General Comment 29, para 3.
60 General Comment 29, paras 9 and 11.
61 General Comment 29, para 13.
62 General Comment 29, para 14.
63 General Comment 29, para 15.
44
its obligations under the ICCPR. In any event, whether or not the Sudan has met the necessary
conditions to invoke article 4, it is bound at a minimum to respect the non-derogable provisions and
‘elements’ of the Covenant at all times.
(ii.) International humanitarian law
154. With regard to international humanitarian law, the Sudan is bound by the four Geneva
Conventions of 1949, as well as the Ottawa Convention on the Prohibition of the Use, Stockpiling,
Production and Transfer of Anti-Personnel Mines and on their Destruction, of 18 September 1997,64
whereas it is not bound by the two Additional Protocols of 1977, at least qua treaties.65 As noted above,
the Sudan has signed, but not yet ratified, the Statute of the International Criminal Court and the
Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in
Armed Conflict, and is therefore bound to refrain from “acts which would defeat the object and purpose”
of that Statute and the Optional Protocol.
155. The Sudan also has signed a number of legally binding international agreements concerning the
armed conflict in Darfur, all of which entered into force upon signature. Six of these agreements were
made with the two groups of rebels, one was entered into solely with the African Union, and two only
with the United Nations.66 Most of the Agreements contain provisions on international humanitarian
law, in particular on the protection of civilians, as noted below.
156. In addition to international treaties, the Sudan is bound by customary rules of international
humanitarian law. These include rules relating to internal armed conflicts, many of which have evolved
as a result of State practice and jurisprudence from international, regional and national courts, as well as
pronouncements by States, international organizations and armed groups.
157. The core of these customary rules is contained in Article 3 common to the Geneva Conventions.
It encapsulates the most fundamental principles related to respect for human dignity, which are to be
observed in internal armed conflicts. These principles and rules are thus binding upon any State, as well
as any insurgent group that has attained some measure of organized structure and effective control over
part of the territory. According to the International Court of Justice, the provisions of Article 3 common
to the Geneva Conventions “constitute a minimum yardstick” applicable to any armed conflict “and
reflect what the Court in 1949 [in the Corfu Channel case] called ‘elementary considerations of
humanity’”67.
158. Other customary rules crystallized in the course of diplomatic negotiations for the adoption of the
two Additional Protocols of 1977, for the negotiating parties became convinced of the need to respect
some fundamental rules, regardless of whether or not they would subsequently ratify the Second
Protocol. Yet other rules were adopted at the1974-77 Diplomatic Conference as provisions that spelled
64 Ratified on 13 October 2003
65 On this point see infra, §§….
66 See the Humanitarian Cease Fire Agreement on the Conflict in Darfur, of 8 April 2004; the Protocol on the Establishment of
Humanitarian Assistance in Darfur, of 8 April 2004; the Protocol on the Improvement of the Humanitarian Situation in Darfur,
of 9 November 2004, and the Protocol on the Enhancement of the Security Situation in Darfur in Accordance with the
N’Djamena Agreement, also of 9 November 2004.
67 Nicaragua (merits), (1986) at § 218
45
out general principles universally accepted by States. States considered that such provisions partly
codified, and partly elaborated upon, general principles, and that they were therefore binding upon all
States or insurgents regardless of whether or not the former ratified the Protocols. Subsequent practice
by, or attitude of, the vast majority of States showed that over time yet other provisions of the Second
Additional Protocol came to be regarded as endowed with a general purport and applicability. Hence
they too may be held to be binding on non-party States and rebels.
159. That a body of customary rules regulating internal armed conflicts has thus evolved in the
international community is borne out by various elements. For example, some States in their military
manuals for their armed forces clearly have stated that the bulk of international humanitarian law also
applies to internal conflicts.68 Other States have taken a similar attitude with regard to many rules of
international humanitarian law.69
160. Moreover, in 1994 the Secretary-General, in proposing to the Security Council the adoption of
the Statute of the International Criminal Tribunal for Rwanda, took what he defined as “an expansive
approach” to Additional Protocol II. He suggested that the new Tribunal should also pronounce upon
violations of Additional Protocol II which, as a whole, “has not yet been universally recognized as part
of customary international law” and, in addition, “for the first time criminalize[d] common Article 3 of
the four Geneva Conventions”.70 Significantly, no member of the Security Council opposed the
Secretary-General’s proposal, demonstrating consensus on the need to make headway in the legal
regulation of internal conflict and to criminalize deviations from the applicable law. Thus the Tribunal’s
Statute in Article 4 grants the Court jurisdiction over violations of common Article 3 of the Geneva
Conventions and the Second Additional Protocol, thereby recognizing that those violations constitute
international crimes.
68 For instance see the German Manual (Humanitarian Law in Armed Conflicts – Manual, Federal Ministry of Defence of the
Federal Republic of Germany, VR II 3, August 1992). In § 211, at p. 24, it is stated that “In a non-international armed conflict
each party shall be bound to apply, as a minimum, the fundamental humanitarian provisions of international law embodied
in the four 1949 Geneva Conventions (common Article 3), the 1954 Cultural Property Convention (article 19) and the 1977
Additional Protocol II. German soldiers like their Allies are required to comply with the rules of international humanitarian law
in the conduct of military operations in all armed conflict however such conflicts are characterized”; emphasis in the original).
See also the British Manual (The Manual of the Law of Armed Conflict, UK Ministry of Defence, Oxford, Oxford University
Press, 2004). At pp. 384-98 it sets out what the UK Government considers to be “certain principles of customary international
law which are applicable to internal armed conflicts” (§ 15.1, at p. 382).
69 It is also significant that the United States also took the view that general rules or principles governing internal armed
conflicts have evolved. Thus, for instance, before the adoption, in 1968, of General Assembly resolution 2444, which
“affirmed” a set of principles to be complied with in any armed conflict, the US representative stated that these principles
“constituted a reaffirmation of existing law” (see UN GAOR, 3rd Committee, 23rd Session, 1634th Mtg, at 2). (These
principles were worded as follows: “ (a)That the right of the parties to a conflict to adopt means of injuring the enemy is not
unlimited; (b) That it is prohibited to launch attacks against the civilian populations as such; (c) That a distinction must be
made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the
latter be spared as much as possible”). In 1972 the US Department of Defence noted that the resolution in question was
“declaratory of existing customary international law” (see 67 American Journal of International Law (1973), at 124).
Similarly, in 1987 the US Deputy Legal Adviser to the State Department stated that “the basic core of Protocol II is, of course,
reflected in common Article 3 of the 1949 Geneva Conventions and therefore is, and should be, a part of generally accepted
customary law. This specifically includes its prohibitions on violence towards persons taking no active part in hostilities,
hostage taking, degrading treatment, and punishment without due process”(in 2 American University Journal of International
Law and Politics (1987), at 430-1).
70 See UN doc. S/1995/134 (13 February 1995), at § 12.
46
161. Furthermore, in 1995, in its judgment in Tadi􀃼 (Interlocutory appeal) the ICTY Appeals
Chamber held that the main body of international humanitarian law also applied to internal conflicts as a
matter of customary law, and that in addition serious violations of such rules constitute war crimes.71
162. No less significantly, when the Statute of the International Criminal Court was drafted in Rome
in 1998, some States expressly insisted that violations of international humanitarian law should also be
regarded as war crimes.72 More importantly, no State participating in the Diplomatic Conference
opposed the inclusion in the Statute of a set of provisions granting the Court jurisdiction over violations
of humanitarian law in internal armed conflict that were held to constitute war crimes.73 This is
indicative of the attitude of the vast majority of the member States of the international community
towards the international legal regulation of internal armed conflict. Similarly, it is significant that the
Statute was signed by 120 States, including the Sudan. This signature, although from the viewpoint of
the law of treaties it only produced the limited effect emphasized above is also material from the
viewpoint of customary international law:74 it proves that the general legal view evolved in the
overwhelming majority of the international community (including the Sudan) to the effect that (i)
internal armed conflicts are governed by an extensive set of general rules of international humanitarian
law and (ii) serious violations of those rules may involve individual criminal liability.75
163. The adoption of the ICC Statute, followed by the Statute of the Special Court for Sierra Leone,
can be regarded as the culmination of a law-making process that in a matter of few years led both to the
crystallization of a set of customary rules governing internal armed conflict and to the criminalization of
serious breaches of such rules (in the sense that individual criminal liability may ensue from serious
violations of those rules).
164. This law-making process with regard to internal armed conflict is quite understandable. As a
result both of the increasing expansion of human rights doctrines and the mushrooming of civil wars,
States came to accept the idea that it did not make sense to afford protection only in international wars
to civilians and other persons not taking part in armed hostilities: civilians suffer from armed violence in
the course of internal conflicts no less than in international wars. It would therefore be inconsistent to
leave civilians unprotected in civil wars while protecting them in international armed conflicts.
Similarly, it was felt that a modicum of legal regulation of the conduct of hostilities, in particular of the
use of means and methods of warfare, was also needed when armed clashes occur not between two
States but between a State and insurgents.76
71 §§ 96-127 as well as 128-137
72 For instance, see the statement of the French Foreign Minister M.Védrine, in 44 Annuaire Francais de Droit International
(1998), at 128-9.
73 See Article 8(2) (c)-(f)
74 In various decisions international criminal tribunals have attached importance to the adoption of the ICC Statute as indicative
of the formation of new rules of customary law or as codifying existing rules. See for instance Tadi􀃼 (Appeal, 1999)
75 This legal view was restated in the Statute of the Special Court for Sierra Leone (2000), adopted following an Agreement
between the United Nations and the Government of Sierra Leone pursuant to SC resolution 1315(2000). Article 3 of the Statute
grants the Special Court jurisdiction over violations of common Article 3 and the Second Additional Protocol, and Article 4
confers on the Court jurisdiction over “other serious violations of international humanitarian law”, namely attacks on civilians
or humanitarian personnel, as well as the conscription or enlistment of children under the age of 15.
76 The powerful urge to apply humanitarian law to spare civilian from the horrors of civil wars was expressed in 2000 by the
then US Ambassador at large for War Crimes David Scheffer, when he stated in 2000, if “the provisions of Protocol II were
followed by rebel and government forces throughout the world, many of the most horrific human tragedies the world has
documented within the past decade could have been avoided”. See text in S. Murphy (ed.), United States Practice in
International Law, vol. 1, 1999-2001 (Cambridge, Cambridge University Press, 2002), at 370.
47
165. Customary international rules on internal armed conflict thus tend both to protect civilians, the
wounded and the sick from the scourge of armed violence, and to regulate the conduct of hostilities
between the parties to the conflict. As pointed out above, they basically develop and specify
fundamental human rights principles with regard to internal armed conflicts.
166. For the purposes of this report, it is sufficient to mention here only those customary rules on
internal armed conflict which are relevant and applicable to the current armed conflict in Darfur. These
include:
(i) the distinction between combatants and civilians, and the protection of civilians, notably against
violence to life and person, in particular murder 77(this rule was reaffirmed in some agreements
concluded by the Government of the Sudan with the rebels)78;
(ii) the prohibition on deliberate attacks on civilians;79
(iii) the prohibition on indiscriminate attacks on civilians,80 even if there may be a few armed elements
among civilians;81
77 The rule is laid down in Common Article 3 of the 1949 Geneva Conventions, has been restated in many cases, and is set out
in the 2004 British Manual on the Law of Armed Conflict (at § 15.6). It should be noted that in the Report made pursuant to § 5
of the UN Security Council resolution 837 (1993) on the investigation into the 5 June 1993 attack on UN Forces in Somalia,
the UN Secretary-General noted that “ The [Geneva] Conventions were designed to cover inter-State wars and large-scale civil
wars. But the principles they embody have a wider scope. Plainly a part of contemporary international customary law, they are
applicable wherever political ends are sought through military means. No principle is more central to the humanitarian law of
armed conflict than the obligation to respect the distinction between combatants and non-combatants. That principle is violated
and criminal responsibility thereby incurred when organizations deliberately target civilians or when they use civilians as
shields or otherwise demonstrate a wanton indifference to the protection of non-combatants.”(UN doc. S/26351, 24 August
1993, Annex, § 12). According to a report of the Inter-American Commission on Human Rights on the human rights situation
in Colombia issued in 1999, international humanitarian law prohibits “the launching of attacks against the civilian population
and requires the parties to an armed conflict, at all times, to make a distinction between members of the civilian population and
parties actively taking part in the hostilities and to direct attacks only against the latter and, inferentially, other legitimate
military objectives.” (Third Report on the Human Rights Situation in Colombia, Doc OAS/Ser.L/V/II.102 Doc. 9 rev.1, 26
February 1999, § 40). 77
See also Tadi􀃼 (ICTY Appeals Chamber), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, (1995),
§§ 98, 117, 132; Kordi􀃼 and Cerkez, Case No. IT-95-14/2 (Trial Chamber III), Decision on the Joint Defence Motion to
Dismiss the Amended Indictment for Lack of Jurisdiction based on the limited Jurisdictional Reach of Articles 2 and 3, 2
March 1999, §§ 25-34 (recognizing that Articles 51(2) and 52(1) of Additional Protocol I and Article 13(2) of Additional
Protocol II constitute customary international law).
78 See Article 2 of the Humanitarian Cease Fire Agreement on the Conflict in Darfur, of 8 April 2004 (each Party undertakes to
“refrain from any violence or any other abuse on civilian populations”) as well as Article 2(1) of the Protocol on the
Improvement of the Humanitarian Situation in Darfur, of 9 November 2004 (the Parties undertake “to take all steps required to
prevent all attacks, threats, intimidation and any other form of violence against civilians by any Party or group, including the
Janjaweed and other militias”).
79 See Tadi􀃼 (Interlocutory Appeal), at §§100-102. As the International Court of Justice held in its Advisory Opinion on
Legality of the Threat or Use of Nuclear Weapons (at § 78), “States must never make civilians the object of attack”. The
general rule on the matter was restated and specified in Article 51(2) of the First Additional Protocol of 1977, whereby “The
civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the
primary purpose of which is to spread terror among the civilian population are prohibited”. A similar provision is contained in
Article 13(2) of the Second Additional Protocol of 1977. These provisions, in the part concerning the intention to spread
terror, may be held to have turned into customary law, if only because they ultimately spell out a notion inherent in the
customary law prohibition of any deliberate attack on civilians. See also Article 8(2)(e)(i) of the ICC Statute and Article 4 (a)
of the Statute of the Special Court for Sierra Leone.
It should also be mentioned that in 1991, replying to a question in Parliament, the German Minister of Foreign affairs
condemned ”the continued military engagements of Turkish troops against the civilian population in Kurdish areas as a serious
violations of international law”(in Bundestag, Drucksache, 12/1918, 14 January 1992, at 3). Furthermore, in a communiqué
concerning Rwanda issued in 1994, the French Ministry of Foreign Affairs condemned “the bombardments against civilian
populations who have fled to Goma in Zaire…The attacks on the security of populations are unacceptable” (Communiqué of
the Ministry of Foreign Affairs on Rwanda, 17 July 1994, in Politique étrangère de la France, July 1994, p. 101).
48
(iv) the prohibition on attacks aimed at terrorizing civilians;82
(v) the prohibition on intentionally directing attacks against personnel, installations, material, units or
vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter
of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects
under the international law of armed conflict;83
(vi) the prohibition of attacks against civilian objects;84
(vii) the obligation to take precautions in order to minimize incidental loss and damage as a result of
attacks,85 such that each party must do everything feasible to ensure that targets are military objectives86
and to choose means or methods of combat that will minimise loss of civilians;87
(viii) the obligation to ensure that when attacking military objectives, incidental loss to civilians is not
disproportionate to the military gain anticipated;88
80This rule was held to be of customary nature in Tadi􀃼 (Interlocutory Appeal), at §§100-102, is restated and codified in Article
13 of Additional Protocol II, which is to be regarded as a provision codifying customary international law, and is also
mentioned in the 2004 British Manual of the Law of Armed Conflict, at §§15.6.5 and 15.15-15.15.1.
81 In a press release concerning the conflict in Lebanon, in 1983 the ICRC stated that “the presence of armed elements among
the civilian population does not justify the indiscriminate shelling of women, children and old people.” (ICRC, Press release
no. 1474, Geneva, 4 November 1983).
In 1997 in Tadi􀃼 and ICTY Trial Chamber held that “it is clear that the targeted population [of a crime against humanity] must
be of predominantly civilian nature. The presence of certain non-civilian elements in the midst does not change the character of
the population”( judgment of 7 May 1997, at § 638 and see also § 643).
82 See the 2004 British Manual of the Law of Armed Conflict, at § 15.8.
83 See § 3 of the Security Council resolution 1502 (2003),83 as well as Article (8)(2)(e)(iii) of the ICC Statute and Article 4 (b)
of the Statute of the Special Court for Sierra Leone);
84Pursuant § 5 of General Assembly Resolution 2675 (XXV, of 9 December 1970), which was adopted unanimously and,
according to the2004 British Manual of the Law of Armed Conflict, “can be regarded as evidence of State practice”(§ 15-16.2),
“dwellings and other installations that are used only by the civilian population should not be the object o military operations”.
See also the 2004 British Manual of the Law of Armed Conflict, at §§15.9 and 15.9.1, 15.16 and 15.16.1-3);
85 See the 2004 British Manual of the Law of Armed Conflict, at §§ 15.22-15.22.1.
86 See Zoran Kupreški􀃼 and others, ICTY Trial Chamber, judgment of 14 January 2000, at § 260
87 See for instance the Military Manual of Benin (Military Manual,1995, Fascicule III, pp. 11 and 14 (“Precautions must be
taken in the choice of weapons and methods of combat in order to avoid civilian losses and damage to civilian objects…The
direction and the moment of an attack must be chosen so as to reduce civilian losses and damage to civilian objects as much as
possible”), of Germany (Military Manual, 1992, at §457), of Kenya (Law of Armed Conflict Manual, 1997, Precis no. 4, pp. 1
and 8), of Togo (Military Manual, 1996, Fascicule III, pp. 11 and 14), as well as the Joint Circular on Adherence to
International humanitarian Law and Human Rights of the Philippines (1992, at §2 (c)). See also Zoran Kupreški􀃼 and others,
ICTY Trial Chamber, judgment of 14 January 2000, at § 260.
88In Zoran Kupreški􀃼 and others, an ICTY Trial Chamber held in 2000 that “Even if it can be proved that the Muslim
population of Ahmici [a village in Bosnia and Herzegovina] was not entirely civilians but comprised some armed elements,
still no justification would exist for widespread and indiscriminate attacks against civilians. Indeed, even in a situation of fullscale
armed conflict, certain fundamental norms still serve to unambiguously outlaw such conduct, such as rules pertaining to
proportionality.” (judgment of 14 January 2000, at § 513).
See also some pronouncements of States. For instance, in 2002, in the House of Lords the British Government pointed out
that, with regard to the civil war in Chechnya, it had stated to the Russian Government that military “operations must be
proportionate and in strict adherence to the rule of law.” (in 73 British Yearbook of International Law” 2002, at 955). The point
was reiterated by the British Minister for trade in reply to a written question in the House of Lords (ibidem, at 957). Se also the
2004 British Manual of the Law of Armed Conflict, at § 15.22.1. in 1992, in a joint memorandum submitted to the UN, Jordan
and the US stated that “the customary rule that prohibits attacks which reasonably may be expected at the time to cause
incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be
excessive in relation to the concrete and direct military advantage anticipated, are prohibited” (UN doc. A/C.6/47/3, 28
September 1992, at § 1(h)). In a judgment of 9 December 1985, an Argentinean Court of Appeals held in the Military Junta
case that the principle of proportionality constitutes a customary international norm on account of its repeated doctrinal
approbation. Spain insisted on the principle of proportionality in relation to the internal armed conflicts in Chechnya and in
Bosnia and Herzegovina ( see the statements in the Spanish Parliament of the Spanish Foreign Minister, in Activitades, Textos
y Documentos de la Politica Exterior Espa􀄖ola, Madrid 1995, at 353, 473.
49
(ix) the prohibition on destruction and devastation not justified by military necessity;89
(x) the prohibition on the destruction of objects indispensable to the survival of the civilian population;90
(xi) the prohibition on attacks on works and installations containing dangerous forces;91
(xii) the protection of cultural objects and places of worship;92
(xiii) the prohibition on the forcible transfer of civilians;93
(xiv) the prohibition on torture and any inhuman or cruel treatment or punishment;94
(xv) the prohibition on outrages upon personal dignity, in particular humiliating and degrading
treatment, including rape and sexual violence;95
(xvi) the prohibition on declaring that no quarter will be given;96
(xvii) the prohibition on ill-treatment of enemy combatants hors de combat and the obligation to treat
captured enemy combatants humanely;97
(xviii) the prohibition on the passing of sentences and the carrying out of executions without previous
judgment pronounced by a regularly constituted court, affording all the judicial guarantees recognized as
indispensable by the world community;98
(xix) the prohibition on collective punishments;99
(xx) the prohibition on the taking of hostages;100
(xxi) the prohibition on acts of terrorism;101
(xxii) the prohibition on pillage;102
In addition, see the 1999 Third Report on Colombia of the Inter-American Commission on Human Rights (Doc.
OAS/Se.L/V/II.102 Doc.9, rev.1, 26 February 1999, at §§ 77 and 79). See also the 1999 UN Secretary-General’s Bulletin, § 5.5
(with reference to UN forces)
89 Rome Statute, at Article 8(2)(e)(xii). See also the 2004 British Manual of the Law of Armed Conflict, at §§ 15.17- 15.17.2).
Under Article 23(g) of the Hague Regulations, it is prohibited “to destroy or seize the enemy’s property, unless such
destruction or seizure be imperatively demanded by the necessities of war”. The grave breaches provisions in the Geneva
Conventions also provide for the prohibition of extensive destruction and appropriation of property, not justified by military
necessity and carried out unlawfully and wantonly (see First Geneva Convention, Article 50 in fine; Second Geneva
Convention, Article 51 in fine; Fourth Geneva Convention, Article 147 in fine; Additional Protocol I, Article 51(1) in fine.
90 Article 14 of the Second Additional Protocol; as rightly stated in the 2004 British Manual of the Law of Armed Conflict, at §
15.19.1, “the right to life is a non-derogable human right. Violence to the life and person of civilians is prohibited, whatever
method is adopted to achieve it. It follows that the destruction of crops, foodstuffs, and water sources, to such an extent that
starvation is likely to follow, is also prohibited.”);
91 Article 15. Additional Protocol II; see also the 2004 British Manual of the Law of Armed Conflict, at § 15.21.
92 Article 16, Additional Protocol II.
93 Article 17, Additional Protocol II, Article 8(2)(e)(viii) of the Rome Statute, and referred to in the 2004 British Manual of the
Law of Armed Conflict, at §§ 15.14, 15.14.1-2).
94 See common Article 3 (1) (a)).
95 See common Article 3, (1) (c).
96 See Article 8 (2) (e) (x) of the ICC Statute.
97 See common Article 3(1) as well as the 2004 British Manual of the Law of Armed Conflict, at § 15.6.4.
98 See common Article 3 (1) (d); see also General Comment 29 of the Human Rights Committee, at § 16.
99 See Article 4(b) of the Statute of the ICTR and Article 3 (b) of the Statute of the Special Court for Sierra Leone; see also
General Comment 29 of the Human Rights Committee, at § 11, according to which any such punishment is contrary to a
peremptory rule of international law.
100 See common Article 3 (1) (b) of the 1949 Geneva Conventions as well as Article 4 (c) of the Statute of the ICTR and
Article 3 (c) of the Statute of the Special Court for Sierra Leone)
101 Article 4 (2)(d), Additional Protocol II; Article 4 (d) of the Statute of the ICTR and Article 3 (d) of the Statute of the Special
Court. In his Report on the establishment of the Special Court for Sierra Leone, the Secretary-General stated that violations of
Article 4 of Additional Protocol II have long been considered crimes under customary international law. See also Gali􀃼, ICTY
Trial Chamber, judgment of 5 December 2003, at § 769.
50
(xxiii) the obligation to protect the wounded and the sick;103
(xxiv) the prohibition on the use in armed hostilities of children under the age of 15;104
167. It should be emphasized that the international case law and practice indicated above show that
serious violations of any of those rules have been criminalized, in that such violations entail individual
criminal liability under international law.
168. Having surveyed the relevant rules applicable in the conflict in Darfur, it bears stressing that to a
large extent the Government of the Sudan is prepared to consider as binding some general principles and
rules laid down in the two Additional Protocols of 1977 and to abide by them, although formally
speaking it is not party to such Protocols. This is apparent, for instance, from the Protocol on the
Establishment of Humanitarian Assistance in Darfur, signed on 8 April 2004 by the Government of the
Sudan with the SLA and JEM, stating in Article 10 (2) that the three parties undertook to respect a
corpus of principles, set out as follows:
“The concept and execution of the humanitarian assistance in Darfur
will be conform [sic] to the international principles with a view to
guarantee that it will be credible, transparent and inclusive, notably:
the 1949 Geneva Conventions and its two 1977 Additional Protocols;
the 1948 Universal Declaration on Human Rights, the 1966
International Convention [sic] on Civil and Public[sic] Rights, the
1952 Geneva Convention on Refugees [sic], the Guiding Principles on
Internal Displacement (Deng Principles) and the provisions of General
Assembly resolution 46/182” (emphasis added).
169. The reference to the two Protocols clearly implies that the parties to the Agreement intended to
accept at least the general principles they lay down. The same implicit recognition of those principles
can be inferred from the third preambular paragraph of the Protocol on the Enhancement of the Security
Situation in Darfur in Accordance with the N’Djamena Agreement, of 9 November 2004, whereby the
three parties condemn “all acts of violence against civilians and violations of human rights and
international humanitarian law”. A similar preambular paragraph is also contained in the Protocol on the
Improvement of the Humanitarian Situation in Darfur, also of 9 November 2004, where in addition
preambular paragraph 10 states that the parties are “aware of the need to adhere to the humanitarian
principles embodied in the United Nations Charter and other relevant international instruments”.
102 Article 4 (2) (g), Additional Protocol II and Article 8(2)(e)(v) of the Rome Statute; see also the 2004 British Manual of the
Law of Armed Conflict, at §§ 15.23-15.23.1.
103 Common Article 3 (2) of the Geneva Conventions.
104 There are two treaty rules that ban conscripting or enlisting children under the age of 15 years into armed forces or groups
or using them to participate actively in hostilities (see Article 8 (2) (e)(vii) of the ICC Statute and Article 4 (c) of the Statute of
the Special Court for Sierra Leone). The Convention on the Rights of the Child, at Article 38,104 and the Protocol to the
Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts raise the minimum age of persons
directly participating in armed conflicts to 18 years, although not in mandatory terms ( Article 1 of the Protocol provides that
“States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of
18 years do not take a direct part in hostilities”(emphasis added); Article 4 (1) contains a similar provision concerning
rebels104; Articles 2 and 3 regulate the recruitment of children under 18). It may perhaps be held that a general consensus has
evolved in the international community on a minimum common denominator: children under 15 may not take an active part in
armed hostilities.
51
170. Significantly, in Article 8(a) of the Status of Mission Agreement (SOMA) on the Establishment
and Management of the Cease Fire Commission in the Darfur Area of the Sudan (CFC), of 4 June 2004,
between the Sudan and the African Union, it is provided that ‘The African Union shall ensure that the
CFC conducts its operation in the Sudan with full respect for the principles and rules of international
Conventions applicable to the conduct of military and diplomatic personnel. These international
Conventions include the four Geneva Conventions of 12 August 1949 and their Additional Protocols of
8 June 1977 and the UNESCO Convention of 14 May 1954 on the Protection of Cultural property in the
event of armed conflict and the Vienna Convention on Diplomatic Relations of 18 April 1961”
(emphasis added). Article 9 then goes on to provide that “The CFC and the Sudan shall therefore ensure
that members of their respective military and civilian personnel are fully acquainted with the principles
and rules of the above mentioned international instruments.” (emphasis added)
171. The above provisions clearly, albeit implicitly, evince the will of the contracting parties to abide
by the various treaties on humanitarian law, including the two Additional Protocols, although these
Protocols per se are not binding qua treaties on the Sudan.
2. Rules binding rebels
172. The SLM/A and JEM, like all insurgents that have reached a certain threshold of organization,
stability and effective control of territory, possess international legal personality and are therefore bound
by the relevant rules of customary international law on internal armed conflicts referred to above. The
same is probably true also for the NMRD.
173. Furthermore, as with the implied acceptance of general international principles and rules on
humanitarian law by the Government of the Sudan, such acceptance by rebel groups similarly can be
inferred from the provisions of some of the Agreements mentioned above.
174. In addition, the SLM/A and the JEM possess under customary international law the power to
enter into binding international agreements (so called jus contrahendum), have entered various
internationally binding Agreements with the Government. In these Agreements the rebels have
undertaken, among other things, to comply with humanitarian law. The NMRD concluded two
Agreements with the Government of the Sudan on 17 December 2004, one on humanitarian access and
the other on security issues in the war zone. In these Agreements the parties pledged to release prisoners
of war and organize the voluntary repatriation of internally displaced persons and refugees.
V. CATEGORIES OF INTERNATIONAL CRIMES
175. Serious violations of human rights law and humanitarian law may amount to international
crimes, subject to the conditions set out by the ICTY in Tadi􀃼 (Interlocutory Appeal)and largely
codified in the ICC Statute. In other words, these violations may entail the individual criminal liability of
their author or authors. These violations may also involve the international responsibility of the State or
of the international non-state entity to which those authors belong as officials (or for which they acted as
de facto organs), with the consequence that the State or the non-state-entity may have to pay
compensation to the victims of those violations.
52
176. It is now necessary briefly to mention the various categories of crimes that might be involved in
this process of legal classification.
177. War crimes. This class of international crimes embraces any serious violation of international
humanitarian law committed in the course of an international or internal armed conflict (whether against
enemy civilians or combatants) which entails the individual criminal responsibility of the person
breaching that law (see Tadi􀃼 (Interlocutory Appeal), at § 94). War crimes comprise, for instance,
indiscriminate attacks against civilians, ill-treatment or torture of prisoners of war or of detained enemy
combatants, rape of civilians, use of unlawful methods or means of warfare, etc.
178. Crimes against humanity. These are particularly odious offences constituting a serious attack on
human dignity or a grave humiliation or degradation of one or more human beings (for instance, murder,
extermination, enslavement, deportation or forcible transfer of population, torture, rape and other forms
of sexual violence, persecution, enforced disappearance of persons). What distinguishes this category of
crime from that of war crimes is that it is not concerned with isolated or sporadic breaches, but rather
with violations, which (i) may occur either in time of peace or of armed conflict, and (ii) constitute part
of a widespread or systematic practice of atrocities (or attacks) committed against the civilian
population.
179. With respect to the objective or material element of crimes against humanity, it should first be
noted that “The attack must be either widespread or systematic in nature.”105 Also, “only the attack, not
the individual acts of the accused, must be ‘widespread or systematic.’”106 As to the meaning of
“widespread”, an ICTY Trial Chamber held in Kordi􀃼 and Cerkez that “[A] crime may be widespread or
committed on a large scale by the ‘cumulative effect of a series of inhumane acts or the singular effect of
an inhumane act of extraordinary magnitude.’”107. It can also consider the number of victims108. As for
the requirement that the attack be “systematic”, it “requires an organised nature of the acts and the
improbability of their random occurrence.”109 With regard to the factors to consider in assessing
“widespread or systematic”, the ICTY Appeals Chamber rules that a Trial Chamber must “first identify
the population which is the object of the attack and, in light of the means, methods, resources and result
of the attack upon the population, ascertain whether the attack was indeed widespread or systematic.”
“The consequences of the attack upon the targeted population, the number of victims, the nature of the
acts, the possible participation of officials or authorities or any identifiable patterns of crimes, could be
taken into account to determine whether the attack satisfies either or both requirements of a ‘widespread’
or ‘systematic’ attack.”110. It is not necessary, but it may be relevant, to prove the attack is “the result of
the existence of a policy or plan.”111
105 See, e.g., Naletili􀃼 and Martinovi􀃼, (ICTY Trial Chamber), 31 March 2003, § 236; Akayesu, (ICTR Trial Chamber), 2
September 1998, § 579, n. 144.
106 See Kunarac, Kovac and Vukovi􀃼, (ICTY Trial Chamber), 22 February 2001, § 431.
107 See Kordi􀃼 and Cerkez, (ICTY Trial Chamber), 26 February 2001, § 179.
108 See, e.g., Blaski􀃼, (ICTY Trial Chamber), 3 March 2000, § 206; Naletili􀃼 and Martinovi􀃼, (Trial Chamber), 31 March
2003, § 236; Kayishema and Ruzindana, (ICTR Trial Chamber), 21 May 1999, § 123.
109 Naletili􀃼 and Martinovi􀃼 (ICTY Trial Chamber), 31 March 2003, § 236; see also Kunarac, Kovac and Vokovi􀃼, (ICTY
Appeals Chamber), 12 June 2002, § 94.
110 Kunarac, Kovac and Vokovi􀃼 (Appeals Chamber), 12 June 2002, § 95; see also Jelisi􀃼 (Trial Chamber), 14 December
1999, § 53: “The existence of an acknowledged policy targeting a particular community, the establishment of parallel
institutions meant to implement this policy, the involvement of high-level political or military authorities, the employment of
considerable financial, military or other resources and the scale or the repeated, unchanging and continuous nature of the
53
180. The subjective element or mens rea required for this category of crime is twofold: (a) the
criminal intent or recklessness required for the underlying crime (murder, extermination, rape, torture,
etc.), and (b) knowledge that the offence is part of a widespread or systematic practice. A specific subcategory
of crimes against humanity, namely persecution, requires in addition a further mental element:
a persecutory or discriminatory animus or intent, namely to subject a person or a group to
discrimination, ill-treatment or harassment on religious, racial, political, ethnic, national or other
grounds, so as to bring about great suffering or injury to that person or group (see in particular the
judgment of an ICTY Trial Chamber in Zoran Kupreški􀃼 and others, at §§ 616-27).
181. Genocide. Considering that Security Council resolution 1556 singled out this category of crime
for a specific inquiry of the Commission into whether crimes perpetrated in Darfur can be classified as
genocide, it is appropriate to devote a special section, infra, to this crime. At this juncture, suffice it to
say that, both under the 1948 Convention and the corresponding rules of customary law, genocide
comprises various acts against members of a national, ethnic, racial or religious group (killing members
of a group, causing serious bodily or mental harm to members of a group; deliberately inflicting on a
group conditions of life calculated to bring about its physical destruction in whole or in part; imposing
measures intended to prevent births within the group; forcibly transferring children of a group to
another group), committed with the intent to destroy, in whole or in part, the group.
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.
182. In accordance with its mandate set out by the Security Council, requesting the Commission to
“investigate reports of violations of human rights law and international humanitarian law”, the
violence committed against a particular civilian population are among the factors which may demonstrate the widespread or
systematic nature of an attack.”
111 Kunarac, Kovac and Vokovi􀃼, cit, § 98; Semanza, (ICTR Trial Chamber), 15 May 2003, § 329; but see earlier case law:
Blaski􀃼, (ICTY Trial Chamber), 3 March 2000, § 204; Kayishema and Ruzindana, (ICTR Trial Chamber), 21 May 1999, §§
123, 124, 581.
54
Commission carefully studied reports from different sources including Governments, inter-governmental
organizations, various United Nations mechanisms or bodies, as well as non-governmental
organizations. Immediately following the establishment of the Commission, a Note Verbale was sent out
to Member States and international and regional organizations on 28 October 2004, requesting that any
relevant information be submitted to the Commission. A similar letter was sent to non-governmental
organizations on 2 November 2004. The Commission subsequently received a great number of
documents and other material from a wide variety of sources, including the Government of the Sudan.
These materials were organized in a database and analyzed by the Commission. The following is a brief
account of these reports, which serves to clarify the context of the fact finding and the investigations
conducted by the Commission. In the sections following this overview, individual incidents are
presented according to the type of violation or international crime identified.
183. Information presented in the earlier reports examined by the Commission is mainly based on
witness accounts compiled through interviews of IDPs and refugees. Some of the later reports are based
on a broader inquiry drawing from other sources and methods to gather information, including satellite
imagery to detect destruction and burning of villages as well as field visits to Darfur itself. These reports
have also relied upon findings of researchers and observers from different organizations monitoring the
situation in Darfur.
184. Most reports note a pattern of indiscriminate attacks on civilians in villages and communities in
all three Darfur states beginning in early 2003. Attacks also took place in 2001 and 2002,112 however the
magnitude, intensity and consistency of the attacks increased noticeably beginning in early 2003. It is
generally agreed that this escalation coincides with the intensification of the internal armed conflict
between the Government and the two rebel movements, the Sudan Liberation Movement/Army
(SLM/A) and the Justice and Equality Movement (JEM). A large part of the information relates to the
impact of this conflict on the civilian population, including reference to the methods of combat
employed by the parties, and the counter-insurgency policies of the Government.
185. A common conclusion is that, in its response to the insurgency, the Government has committed
acts against the civilian population, directly or through surrogate armed groups, which amount to gross
violations of human rights and humanitarian law. While there has been comparatively less information
on violations committed by the rebel groups, some sources have reported incidents of such violations.
There is also information that indicates activities of armed elements who have taken advantage of the
total collapse of law and order to settle scores in the context of traditional tribal feuds, or to simply loot
and raid livestock.
186. There are consistent accounts of a recurrent pattern of attacks on villages and settlements,
sometimes involving aerial attacks by helicopter gunships or fixed-wing aircraft (Antonov and MIG),
including bombing and strafing with automatic weapons. However, a majority of the attacks reported are
ground assaults by the military, the Janjaweed, or a combination of the two. Hundreds of incidents have
been reported involving the killing of civilians, massacres, summary executions, rape and other forms of
sexual violence, torture, abduction, looting of property and livestock, as well as deliberate destruction
and torching of villages. These incidents have resulted in the massive displacement of large parts of the
112 For example, the Commission heard evidence of Government armed forces and Janjaweed attacks on Kabkabiya,
North Darfur, in April 2001 and April 2002. According to witness testimonies, on 2 April 2001 the village of Shuba was
attacked and looted, and 13 people were killed. On 28 April 2002, 217 houses were burned and 17 people were killed.
See case study 2 below.
55
civilian population within Darfur as well as to neighbouring Chad. The reports indicate that the intensity
of the attacks and the atrocities committed in any one village spread such a level of fear that populations
from surrounding villages that escaped such attacks also fled to areas of relative security.
187. Except in a few cases, these incidents are reported to have occurred without any military
justification in relation to any specific activity of the rebel forces. This has strengthened the general
perception amongst observers that the civilian population has been knowingly and deliberately targeted
to achieve common or specific objectives and interests of the Government and the Janjaweed.
188. Eye-witness accounts of many incidents published in these reports mention that the assailant
forces are in uniform, but make a distinction between the uniforms worn by the regular military and the
Janjaweed. A variety of explanations have been offered for this distinction in the reports, including that
the Government’s Popular Defence Forces (PDF), largely recruited from within the Arab tribes, are
included in the term Janjaweed as it is commonly used in the context of this conflict. Others allege that
the Government provides the militia with these uniforms as well as weapons and see this as a
confirmation of their affiliation and association with the Government.
189. Some reports also contain accounts of military engagements between Government and rebel
forces which have resulted in severe violations of the rights of civilian populations, and which
demonstrate a complete disregard by the warring parties for their obligations regarding the security of
civilians. It is reported that wanton acts of destruction, far exceeding any military imperative, were
committed, mostly by Government forces. Janjaweed have featured in some of these incidents
contributing to the destruction, particularly by inflicting harm on civilian populations and through wide
scale looting in the course of, or following, the battle.
190. Although there is little information on violations committed by the rebel forces, there are some
reports that they have engaged in indiscriminate attacks resulting in civilian deaths and injuries and
destruction of private property. There are further reports of the killing of wounded and imprisoned
soldiers, attacking or launching attacks from protected buildings such as hospitals, abduction of civilians
and humanitarian workers, enforced disappearances of Government officials, looting of livestock,
commercial vehicles and goods. There are also allegations of the use of child soldiers by the rebels.
However, it should be noted that the number of reported violations allegedly committed by the
Government forces and the Janjaweed by far exceeds the number of cases reported on rebels.
191. While a majority of the reports are consistent in the description of events and the violations
committed, the crimes attributed to the Government forces and Janjaweed have varied according to the
differences in the interpretation of the events and the context in which they have occurred. Analyses of
facts by most of the observers, nevertheless, suggest that the most serious violations of human rights and
humanitarian law have been committed by militias, popularly termed “Janjaweed”, at the behest of and
with the complicity of the Government, which recruited these elements as a part of its counterinsurgency
campaign.
192. Various reports and the media claim to have convincing evidence that areas have been
specifically targeted because of the proximity to or the locus of rebel activity, but more importantly
because of the ethnic composition of the population that inhabits these areas. Almost all entities that
have reported on the situation in Darfur have noted that the populations subjected to violations are
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Darfurians who identify themselves as Africans, distinguishable from the Arab tribes in the region,
which are also reported to constitute the majority of the Janjaweed.
193. It is reported that amongst the African tribes, members of the Zaghawa, Fur and Masaalit tribes,
which have a marked concentration of population in some areas, have been particularly targeted. This is
generally attributed to the fact that the two main rebel groups in Darfur are ethnically African and are
largely drawn from these three tribes. It is for this reason that some observers have concluded that a
major objective of destruction and depopulation of targeted areas is to eliminate or pre-empt any
possibility of support for the rebels.
194. Some reports take into account the historical context of ethnic and tribal politics in Darfur, and
differences in the way of life and means of livelihood113 that have resulted in competing claims over
control and utilization of natural resources and land. On this basis, some reports conclude that elements
of persecution and ‘ethnic cleansing’ are present in the pattern of destruction and displacement.
195. This reading of the information by some sources has given an added dimension to the conflict.
Reports of deliberate destruction of the very means of survival of these populations have been seen as a
design towards their permanent expulsion from their places of habitation. Many of the sources have
suggested that the acts of killings, destruction and forced displacement, taken as a whole, amount to
extermination. Some reports have implied, and a few have determined, that the elements of the crime of
genocide are present in the patterns and nature of violations committed by the Government and its
militias.
196. According to recent reports, even though military offensives and large-scale displacement of
civilians in North and West Darfur have diminished in the past few months, probably because large parts
of the rural areas under Government control have been emptied of their rural inhabitants, violence there
has not ceased. In Government-controlled areas, displaced civilians have remained largely at the mercy
of the Janjaweed. Observers have reported that displaced civilians living under Government control in
these areas remain virtual prisoners—confined to camps and settlements with inadequate food, shelter
and humanitarian assistance, at constant risk of further attacks, rape and looting of their remaining
possessions. Even if incidents are reported to the police or other Government officials, little or no action
is taken to arrest perpetrators. Government-backed Janjaweed raids on new areas in South Darfur have
also been reported. There have also been reports of unidentified “militia incursions” along the border
into Chad, often with the apparent aim of raiding cattle and other livestock.
197. Concerns have been expressed that despite the Government’s assurances to the international
community, the security situation has not improved. Most IDPs remain afraid to return to their places of
origin out of fear of renewed attacks and due to the prevailing situation of impunity for acts of violence
committed against the civilian population. Some more recent reports note that Arab populations have
begun to settle in a few areas previously occupied by the displaced populations.
198. One report noted that the situation in Darfur was being distorted by international organizations
and international media. According to this source, the humanitarian situation was being blown out of
113 Most reports note that the Arab tribes in Darfur are generally associated with a nomadic lifestyle and the vast
majority of the African tribes are sedentary farmers, settled on land allotted to the tribes.
57
proportion by most observers. The cause of the conflict should be mainly ascribed to tribal animosities,
while the Government had responded to a rebellion and was also providing humanitarian assistance to
the displaced and affected populations.
2. Information provided by the Government of the Sudan
199. As was stated earlier, the Commission met with numerous officials, representing various
Governmental sectors, including the Presidency, foreign affairs, justice, defence, interior, local
Government, and national security. The meetings took place in Khartoum and in the three states of
Darfur. The officials presented the Government’s point of view and policies with regard to the conflict
in Darfur. While there are some variations in the views presented, there is a common thread that runs
through the official version. In addition, the Government provided the Commission with a considerable
amount of material, including documents and video tapes. Some material was also provided in response
to specific questions raised by the Commission.
200. The most coherent Governmental perspective on the conflict was presented by a Committee
established by the Minister of Interior in his capacity as the President’s representative on Darfur. The
Committee is composed of six senior officials from the Ministries of Defence and Interior, and the
National Security and Intelligence Service and is presided over by a major-general from the army.
During three meetings that lasted over 6 hours, the Committee shared with the Commission views,
statistics and documents. Most views presented by this Committee were echoed by many other highranking
officials. Other officials, particularly some working with the Advisory Council on Human
Rights, the National Security and Intelligence Service, and the three Governments in the three states of
Darfur also presented documents that are reflected below.
201. Like many other Government organs, the Committee asserted that the conflict is tribal. It
reported that while the region of Darfur has a history of co-existence between the various tribes in
Darfur, there is also a history of tribal conflicts. These conflicts were often resolved through traditional
reconciliation conferences, which the Government is now trying to promote. With regard to the identity
of various groups and whether they are Arab or African, the Committee maintained that there is no
Arab-African divide as inter-marriage amongst the various tribes is common. They also said that “the
Sudanese are considered Africans by the Arabs and Arabs by the Africans.” Therefore there is no ethnic
dimension to the conflict.
202. The Committee also argued that the existence of armed rebellion in Darfur is not new. It listed a
number of armed opposition groups in Darfur since 1956. In fact it listed eight different armed
movements that emerged in Darfur from independence until today.
203. The Committee attributed the current conflict to seven factors. The first factor is the competition
between various tribes, particularly between the sedentary tribes and nomadic tribes over natural
resources as a result of desertification. The second factor is the weakening of local administration after it
was dissolved by former President Nemeri. This administration was established on the basis of the
traditional tribal structures and was in the past capable of containing and mediating conflicts. The third
factor is the weak presence of the police. The fourth factor is the interference of foreign actors in the
situation in Darfur. The fifth factor is the wide availability of weapons and military uniforms due to
other previous conflicts in the region, particularly the Libya-Chad war, and the war in the South. The
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sixth factor is the politicization of issues and their exploitation by various political opposition parties in
the Sudan. The seventh is the scant development and the relative lack of infrastructure of Darfur.
204. The Committee also listed all the tribal conflicts and all the peace agreements that were
concluded between the tribes between 1932 and 2004. The list demonstrated that these conflicts were
sometimes between so called Arab tribes and African tribes; sometimes between different Arab tribes
and sometimes between different African tribes. They were resolved in the traditional ways by the
Ajaweed (wise men) that were selected by the concerned tribes to mediate amongst them. The common
feature of these conflicts was that they were often between sedentary and the nomadic groups.
205. With regard to the current conflict, the Committee blamed the rebels, particularly the SLA and
JEM, for most of the atrocities that took place in Darfur. Its view was that the rebels initiated attacks and
that the Government was acting only in a defensive mode. It asserted that the Government sustained
serious casualties, particularly highlighting the repeated attacks against the police, the local
administration and other law enforcement agents. The Committee stated that 100 such attacks were
documented and that they presented a pattern. Documents in police stations were burnt by rebels and
criminals were released. The Committed alleged that this led to the phenomena of the Janjaweed. The
Committee said that when the Government captured rebel weapons during these attacks, they found that
they included types of weapon that do not normally exist in the Sudan, implying that there is foreign
sponsorship of the rebellion.
206. The Committee also presented statistics concerning attacks against civilians by the rebels from
January 2003 until November 2004. It stated that there were 67 attacks in North Darfur, 60 in South
Darfur, and 83 in West Darfur. It highlighted that Kulbus was attacked 27 times by the rebels. It charged
the rebels with targeted killings, restriction of movement, levying taxes, obstructing education, looting
hospitals, and attacks on humanitarian workers.
207. With regard to attacks on the armed forces during the same period, the Committee stated that
from January 2003 until November 2004, there were 19 attacks in North Darfur; 16 in South Darfur; and
8 in West Darfur. The Committee claimed that in Buram some soldiers as well as 13 civilians were
killed by rebels inside the hospital. It claimed that most attacks were jointly carried out by SLA and
JEM.
208. The Committee provided the Commission with numbers of casualties incurred and of weapons
stolen between January 2003 and November 2004. With regard to the army, it was claimed that 937
were killed, 2264 injured, and 629 were missing, and 934 weapons were stolen. With regard to the
police, it was claimed that 685 were killed, 500 were injured, 62 were missing, and 1247 weapons were
looted. With regard to the security and intelligence apparatus, it was claimed that 64 were killed, 1 was
injured, 26 were missing, and 91 weapons were looted. As for civilians, it was claimed that 1990 were
killed, 112 were injured and 402 were missing. Significantly, the Committee stated that no weapons
were looted from civilians.
209. With regard to population displacement, the Committee maintained that rebels force people out
of their homes, who then seek protection in areas controlled by the Government. It further stated that the
rebels inhibit IDP’s from returning. Some other officials noted that the destruction of villages was a
normal consequence of the conflict where civilians had been caught in cross-fire. Some officials even
59
admitted that the Government would track rebels into villages, since this is where they would hide, and
that the destruction was caused by the ensuing fighting.
210. With regard to figures on displacement, the Committee said that the Government does not
possess accurate figures, but it relies on the figures given by the international organizations. It claimed
that the displaced were unwilling to cooperate and attacked Government officials, and that some leaders
of the displaced exaggerate figures because they are benefiting from the situation. The Committee said
that the Government tries to protect the civilian population, that it does not launch military operations
against civilians and only targets rebels. It stated that the IDP camps are now used as places from which
to launch attacks against the Government.
211. The Committee maintained that the Government took several initiatives to solve the conflict
peacefully, including a conference in El-Fashir held in 2001 to address the roots of problems particularly
in and around Jabel Murra, as well as the establishment by the President of a Committee to mediate
between the tribes.
212. With regard to the Janjaweed, the Committee, and other officials did not provide a consistent
view. While some asserted that they are bandits that come from all tribes, other officials admitted that
the Government sought the help of certain tribes and mobilized them. In particular, some interlocutors
acknowledged that the Government had provided arms to the non-rebellious tribes and that there was
cooperation with some tribal leaders who would receive financial grants to assist in the fight against the
rebels. Some openly acknowledged that there had been a process of recruitment into the PDF in the
context of the fight with the rebels.
213. The Government also asserted that it had taken measures to compensate those who, in its
determination, were the subject of wrongful bombardment. It also stated that it had established an
independent national commission of inquiry to examine the reports of violations. The effectiveness of
such bodies are discussed in the course of this report.
3. Information provided by the rebel groups
214. As noted above, the Commission met with the leadership of the two main rebel movements, the
SLM/A and the JEM in Asmara, Eritrea, as well as with other representatives in Darfur. With regard to
the origins of the conflict and the incidents during the conflict both groups had very similar positions.
215. Both argued that since the independence of the Sudan in 1956, Darfur has been marginalized and
underdeveloped. The JEM noted that the central Government has been dominated by essentially three
Arab tribes from the North of the country, who had consistently marginalized the other main regions (the
South, the East, the Nuba Mountains, Kordofan, Blue Nile and Darfur), most of which have raised arms
against the Government in response to the oppression, marginalization, “internal colonization” and
neglect. The imbalance was illustrated by the fact that the North only represented 4 % of the population,
but had by far the greatest influence and power in the central Government. According to the rebel
groups, the main strategy of the central Governments has been to maintain power by keeping the other
regions underdeveloped, divided and powerless. The war in the South with more than 2 million dead was
an example of the Government’s oppression.
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216. The SLM/A, in particular, noted the emergence in Darfur in the mid 1980’s of an alliance of
Arab tribes, the Arab Gathering, which had subsequently also been supported by the “Salvation”
Government of El-Beshir against the African tribes. In this context, tribes were seen to be either as “pro-
Salvation”, or “anti Salvation”, and a political and racist agenda in a sense emerged. An important issue
was the question of control over land. Since some tribes do not have traditional land allotted to them,
and with the conflict over natural resources growing, there was a systematic attempt to evict tribes
viewed as”non-Salvation” from their land.
217. In this sense, both rebel movements noted that they had started their activities as a response to
the discriminatory and divisive policies of the Government in Khartoum. Both groups noted that their
agenda was not tribal and was not directed against the Arab tribes. For this reason, the rebels had
directed their attacks against Government installations, and had on purpose avoided attacking Arab
tribes.
218. The JEM underlined that its internal regulations contained strong commitments to respect
international humanitarian law and international human rights law, and that no civilian targets had been
nor would be attacked. The JEM underlined that all its military assets had been procured independently
through its own means or acquired by looting from the Government.
219. Both rebel groups stated that the Government supported by Arab militia, the Janjaweed, had
attacked civilians throughout Darfur. The Government had created the Janjaweed by training and arming
them. The rebel groups stated further that members of the Janjaweed had been recruited from those
tribes without a traditional homeland, including Mohameed, Ireigat (Northern Reizegat), Iteifat, Zabalat
and Maairiyha, as well as from outside the Sudan from Chad, Cameroon, Mauritania and Algeria. The
proof that the Government was linked to the Janjaweed was the fact that attacks were conducted jointly.
The main reward for the Janjaweed was the promise of owning land, which also explained the massive
forced displacement of the civilian population.
220. According to the JEM, the Government and the Janjaweed have committed genocide by
specifically targeting people from African tribes, and specifically the Fur, Masaalit, Zaghawa, Birgit,
Aranga, Jebel and Tama. The Government armed forces, the PDF, the National Security and Intelligence
Service, the Police and the Janjaweed have, since the beginning of the war, allegedly killed more than
70,000 persons, burned more than 3200 villages and displaced more than 2 million persons. The JEM
claimed that the Government had issued an order to the police not to accept or investigate any
complaints from African tribes.
221. According to the JEM, extensive rape has been committed by the Government and the
Janjaweed, including an alleged mass rape of 120 women in July 2003 in Tawilah. The JEM noted that
the fact that no Arab woman had been raped and no Arab village had been destroyed was evidence that
the Government was specifically targeting African tribes. In addition, the Government and the
Janjaweed have repeatedly abducted women and children, and systematically looted property, including
livestock, cash and utensils.
4. The task of the Commission
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222. Taking these reports into account the Commission conducted independent investigations to
establish the facts. The conclusions of the Commission are based on the evaluation of the facts gathered
or verified through these investigations. However, reports from other sources are relied upon for analysis
where the facts reported are consistent with the results of the Commission’s own inquiry.
223. It was not possible for the Commission to investigate all of the many hundreds of individually
documented incidents reported by other sources. The Commission, therefore, selected incidents and
areas that were most representative of acts, trends and patterns relevant to the determination of violations
of international human rights and humanitarian law and with greater possibilities of effective factfinding.
In making this selection, access to the sites of incidents, protection of witnesses and the
potential for gathering the necessary evidence were, amongst others, of major consideration.
224. In addition to the material collected by the Commission during its visit to Darfur, the team of
investigators working under its direction investigated a large number of incidents covering all three
Darfur States (see Annex 4 for details).
5. Two Irrefutable Facts: Massive displacement and large-scale destruction of villages.
225. Results of the fact finding and investigations are presented in the next sections of the report and
are analysed in the light of the applicable legal framework as set out in the preceding Section. However,
before proceeding, two uncontested facts must be highlighted.
226. At the time of the establishment of the Commission and, subsequently, upon its arrival in the
Sudan in November 2004, two irrefutable facts about the situation in Darfur were immediately apparent.
Firstly, there were more than one million internally displaced persons (IDPs) inside Darfur (1,65 million
according to the United Nations) and more than 200,000 refugees from Darfur in neighbouring Chad to
the East of the Sudan. Secondly, there were several hundred destroyed and burned villages and hamlets
throughout the three states of Darfur. While the exact number of displaced persons and the number of
villages destroyed remain to be determined, the massive displacement and the destruction of villages are
facts beyond dispute. All observers and actors agree on this, and it was also confirmed to the
Commission during its mission in November by all its interlocutors, be it the Government in Khartoum,
the local administration in the three Darfur states, tribal leaders, international organizations and others.
227. The Commission has used these undisputed realities as the starting point for discharging its task
to determine what actions led to the situation depicted by these two undeniable realities, and in particular
which crimes resulting from violations of international humanitarian law and human rights were
committed in the course of these events, as well as determining the actors responsible for them.
228. Before proceeding with the presentation of the results of the Commission’s fact-finding as well
as the legal appraisal of these facts, it is worth providing some facts on both the displacement and the
destruction, so as to give a clear picture of the magnitude and scale of the situation.
(i.) Displacement
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229. In its Darfur Humanitarian Profile No. 8 of November 2004, the Office of Deputy Special
Representative of the United Nations Secretary-General for Sudan and the United Nations Resident and
Humanitarian Co-ordinator noted that: “The total conflict-affected population in Darfur is estimated at
2.27 million people, one third of the estimated pre-conflict population of 6.3 million. The total number
of IDPs in Darfur is estimated at 1.65 million, while the number of affected residents accessed by
humanitarian agencies is about 627,000. […] The numbers are highest in West Darfur with a total of
833,036 affected people, which is half of the pre-conflict West Darfur population of 1.6 million. The
West Darfur figure includes 652,509 IDPs. South Darfur has 761,030 conflict-affected people, including
595,594 IDPs. North Darfur, registering the lowest number of the three Darfur States, has an estimated
685,200 conflict affected people, of which 403,000 are IDPs.” It is also noted that “In addition, […] in
the three state capitals—Nyala, El Fashir and Geneina—none of the resident populations are included in
the category of conflict affected, in part because their number is relatively large as compared to the IDP
population that they are hosting. They are not yet judged to be in need of humanitarian assistance,
although many of them may be increasingly vulnerable.”114 It is noted that there are 101 locations, most
of them camps, throughout the Darfur region hosting IDPs, which include 22 locations in North Darfur,
42 locations in South Darfur and 37 locations in West Darfur. Some camps host up to 70,000 persons
while others are more “modest” in size and are host to “only” a few thousand IDPs.
230. In a meeting with the Commissioner–General of the Government Humanitarian Aid
Commission, Mr. Hassabo Mohammed Abdelrahman, on 12 January 2005, the Government of the
Sudan confirmed to the Commission that the total number of IDPs amounted to 1,651 million, and the
total number of conflict affected persons was 627,000. The Commissioner-General noted that the
Government was generally in agreement with the figures noted in the Humanitarian Profile released by
the United Nations (quoted above). It was noted that the 1,65 million IDPs were hosted in 81 camps and
safe areas, with 300,000 hosted in actual camps. The Commissioner-General further stated that a total of
400,000 IDPs had returned home; a figure the United Nations could not confirm.
231. In addition, as of 15 November 2004, the Office of the United Nations High Commissioner for
Refugees (UNHCR) reported that 203.051 persons from the Darfur region were living in eleven camps
and other locations as refugees in eastern Chad, along the border with the Sudan115.
232. The estimated number of conflict-affected populations in Darfur combined with the refugees in
Chad (1,65 million IDPs, 627,000 otherwise conflict affected persons, and 203, 051 refugees) reaches
the staggering figure of almost 2,5 million persons affected in one way or another – the vast majority by
being displaced from their homes.
(ii.) Destruction of villages
233. While the massive displacement of population in Darfur became the face of the humanitarian
crisis in the region, the widespread destruction of villages constitutes another irrefutable fact.
234. During its visit to Darfur the Commission was able to make a visual estimate of the extent of
destruction that had been caused in the course of the current conflict in all three Darfur states. The
114 Darfur Humanitarian Profile, No. 8, November 2004, available at http://www.unsudanig.org
115 UNHCR data, http://www.unhcr.ch/cgi-bin/texis/vtx/publ/opendoc.pdf?tbl=MEDIA&id=401159eca&page=publ
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Commission saw destroyed and partially destroyed villages in aerial exploration over some of the
affected areas such as those surrounding Mornei, Habila and Garsila in West Darfur, parts of the Jebel
Marrah plateau in South Darfur, and the Tawilah and Kutum area in North Darfur. Many of these
villages were abandoned and there were areas comprising several villages which were completely
deserted. To verify the facts, the Commission also visited some of the villages regarding which it had
received specific information of attacks and destruction, including villages in the localities of Shataya
and Masteri which were completely destroyed and abandoned.
235. There is an abundance of sites with evidence of villages burnt, completely or partially, with only
shells of outer walls of the traditional circular houses left standing. Water pumps and wells have been
destroyed, implements for food processing wrecked, trees and crops were burnt and cut down, both in
villages and in the wadis116, which are a major source of water for the rural population. Rural areas in
Darfur are not the only scenes of destruction. Several towns also show signs of damage to homes and
essential infrastructure such as hospitals, schools, and police stations.
236. The exact number of villages burnt and destroyed has not been counted, but several sources have
estimated the extent of destruction through verbal accounts, site inspections and other evidence.
According to some estimates over 700 villages in all the three states of Darfur have been completely or
partially destroyed117. The Commission further received information that the police had made an
assessment of the destruction and recorded the number of destroyed villages at over 2000. The
Government did not provide any official figures despite several requests in this regard from the
Commission. The Commission nevertheless received credible accounts and itself visited some sites
where hundreds of homes were burnt in a single location.
6. Violations committed by the parties
237. The individual sections below give an account of the Commissions factual findings, organized
according to the type of violation and the resulting international crime committed. In each section,
initially a summary and analysis of the findings reported by other sources is presented. This is followed
by an account of the findings made and information collected by the Commission on some individual
incidents. Each section deals with the crimes committed by the three categories of actors identified,
namely, the Government, the Janjaweed and the rebels. A legal appraisal of the factual findings is then
provided.
(i). Indiscriminate attacks on civilians
(a.) Factual findings
238. The Commission reviewed numerous reports of indiscriminate attacks on civilians. An analysis
of all accounts by other sources reveals a pattern of indiscriminate attacks on civilians in villages and
communities in all three Darfur states beginning in early 2003. Attacks are also reported to have taken
116 Wadi: A mainly dry water course in arid regions through which water flows only after heavy rainfalls.
117 Most sources assess that 600 villages and hamlets have been completely destroyed, while an additional 100 to 200
villages have been partially destroyed
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place in 2001 and 2002. However the magnitude, intensity and consistency of the attacks increased
noticeably beginning in early 2003, in particular following the attack by rebel forces on the airport in El
Fashir in April 2003. Attacks on civilians were still ongoing at the time of writing the present report.
239. The Commission also met with and received first hand witness accounts of attacks on civilians
from individuals and communities throughout the three Darfur states, as well as in Khartoum and in
refugee sites in Chad. Reports received by the Commission were verified wherever possible through the
work of the judicial investigators, forensic experts and military analysts assigned to work with the
Commission. The Commission also received and verified numerous additional incidents involving
attacks on civilians, based on information and evidence it received during the course of its work. These
are illustrated through several case studies outlined in the sections below.
240. From all accounts the Commission finds that the vast majority of attacks on civilians in villages
have been carried out by Government of the Sudan armed forces and Janjaweed, either acting
independently or jointly. Although attacks by rebel forces have also taken place, the Commission has
found no evidence that these are widespread or that they have been systematically targeted against the
civilian population. Incidents of rebel attacks are mostly against military targets, police or security
forces. Nevertheless, there are a few incidents in which rebel attacks have been carried out against
civilians and civilian structures, as well as humanitarian convoys. The following sections provide a
description of the Commission’s factual findings in relation to the patterns of attacks on civilians in the
three Darfur states.
(1). Attacks by Government armed forces and the Janjaweed
241. Based on its analysis of other sources and its own investigative work, the Commission found that
attacks on villages in Darfur conducted by Government of the Sudan armed forces and the Janjaweed
took place throughout the conflict with peaks in intensity during certain periods. Most often the attacks
began in the early morning, just before sunrise between 04:30 AM and 08:00 AM when villagers were
either asleep or at prayer. In many cases the attacks lasted for several hours. Some villages were attacked
repeatedly over the course of several days and months.118
242. In many cases a ground attack began with soldiers appearing in Land Cruisers and other vehicles,
followed by a large group of Janjaweed on horses and camels, all with weapons such as AK47s, G3s and
rocket-propelled grenades. Many of the attacks involved the killing of civilians, including women and
children, the burning of houses, schools and other civilian structures, as well as the destruction of wells,
hospitals and shops. Looting and theft of civilian property, in particular livestock, invariably followed
the attacks and in many instances every single item of moveable property was either stolen or destroyed
by the attackers. Often the civilians were forcibly displaced as a result of the attack.
243. Several of the attacks on villages were carried out with the support of Government of the Sudan
including the air force, involving air bombardments and regular aerial surveillance. The Commission
received credible evidence of the use of Mi-8 helicopters, Mi-24 helicopters and Antonov aircraft during
118 For example, the village of Shuba, North Darfur was attacked by Janjaweed in April 2001 and April 2002, and by
Government armed forces and Janjaweed in July 2003. The village of Amaki Sara, South Darfur reportedly was
attacked by Janjaweed in September 2002, and by Government armed forces and Janjaweed on 30 October 2004, while
rebel forces attacked a school in the village where police had established its headquarters on 2 October 2004.
65
air attacks on villages. Ground attacks frequently were preceded by the presence of aircraft near or
directly above the villages, which would either bomb the village or surrounding areas, or circle over the
village and retreat.119 In some cases, aircraft were used for reconnaissance purposes or to control and
inform troops on the ground, while in other cases air support was used to supply ground troops with
additional weapons and ammunition.120 Several incidents involved aerial bombardment of areas
surrounding the villages and/or bombing of civilians and civilian structures within villages themselves.
The fact that some of the attacks received aerial support presents a clear indication of the link between
the Janjaweed and the Government of the Sudan.
244. The effect of the repeated attacks on villages and the manner in which they were carried out,
including regular aerial surveillance at dawn, hovering of helicopter gun-ships and frequent bombing,
was to terrorise civilians and force them to flee the villages. Those who managed to find refuge in IDP
camps or host communities often refused to return to their villages out of fear of further attacks.
245. In a majority of cases, victims of the attacks belonged to African tribes, in particular the Fur,
Masaalit and Zaghawa tribes. When asked why they believed they were attacked, some witnesses stated
‘because they want our land and cattle’ or ‘they want to eliminate us from the area’. Other witnesses
referred to statements made by their aggressors during some of the attacks, such as ‘you are Tora Bora,
the SLA are your families’, ‘the Fur are slaves, we will kill them’, ‘we are here to eradicate blacks
(nuba)’, ‘we will drive you into poverty’, ‘this is not your land’ or ‘you are not from here’121. When
asked about the presence of armed groups within the villages, most witnesses denied the existence of
rebels in their villages at the time they were attacked. In a few cases witnesses said that villagers had
weapons to protect their livestock and families.
246. While in many cases witnesses clearly identified the attackers as Government soldiers or
Janjaweed, the exact identity of individual perpetrators was difficult to ascertain. In most cases the
attackers wore uniforms, similar to military uniforms, and either military caps or turbans, and were
mounted on camels or horses. In at least one incident, witnesses identified Janjaweed by a horse-like
sign worn on the shoulder (reportedly the emblem of the PDF). Victims were able in some cases to
identify individual perpetrators as either neighbours or recognized leaders of particular Arab tribes. A
few incidents seem to have involved the police acting together with Government armed forces and
Janjaweed.122 One of the cases reported to the Commission explicitly referred to the involvement in the
119 For example, the Commission verified evidence of an attack on Amaki Sara, South Darfur, on 30 October, 2004. At
1300hrs that day, soldiers on foot attacked from the south-west of the village. At 1400hrs, the soldiers were joined by an
air attack by two helicopters, both identified by witnesses from sketches as Mi-24, and 2 fixed-wing aircraft (1 x 4-prop
Antonov and 1 x 2-prop Antonov, both had white upper fuselage with a black belly). The attack started from the
direction of the large hill in the south–west of the village and circled it. The helicopters shot the people who were
working in the fields but did not fire on the village. The fixed-wing aircraft only circled without firing weapons. As
soon as the attack started, the villagers rapidly evacuated the area splitting to the north and south. Continuing to circle,
the helicopters fired 57mm rockets at the escaping villagers who the witnesses insist were unarmed. The helicopters
appeared to deliberately target people hiding beneath trees and bushes south of the village. Two rockets hit an area
beneath some trees and injured several persons. Similarly, two more rockets hit an area of bushes where villagers were
attempting to hide, injuring several more. Janjaweed later looted the village.
120 On 22nd August 2003 at 0500hrs, a joint force of Government armed forces and Janjaweed, approx 300-400 in
strength, attacked the villages of Namai, Bogah and Debsa in North Darfur. Government soldiers used six Toyota pickups,
camouflage green in colour with machine guns fitted to them, while the Janjaweed rode on horses and camels. An
Mi-8 helicopter landed twice to the rear of the attackers, unloading ammunition on both occasions.
121 See also Section II on Genocide.
122 On 5 October 2003 the village of Haloof in South Darfur reportedly was attacked by Government armed forces and
Janjaweed. According to witness testimony, the Janjaweed included two ‘policemen’. 24 civilians were killed and
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attacks of the PDF, together with regular Government armed forces and Janjaweed. In most cases,
however, victims did not differentiate between Government armed forces on the one hand, and militias,
and other groups acting, or perceived to be acting, with the support of Government authorities, on the
other. When asked whether the perpetrators were Government armed forces or Janjaweed, one victim
stated that ‘for us, these are one and the same’.123
247. It should also be noted that the Commission found no evidence of any warnings being issued to
civilians prior to the attacks on villages.
248. Many of the ground and air attacks on villages resulted in the indiscriminate killing of
civilians.124 In most cases of ground attacks, men were directly targeted to be killed and in some cases
there is evidence of efforts by the perpetrators to spare the lives of women. However women and
children were also victims of killings in the course of many attacks. Several of the attacks also involved
sexual violence including rape of women as part of the attack on civilians.125 In most cases, victims
named Janjaweed as perpetrators of sexual violence; however several incidents allegedly involved
Government soldiers acting together with Janjaweed.
249. In this context, the Commission also noted the comments made by Government officials in
meetings with the Commission. The Minister of Defence clearly indicated that he considered the
presence of even one rebel sufficient for making the whole village a legitimate military target. The
Minister stated that once the Government received information that there were rebels within a certain
village, ‘it is no longer a civilian locality, it becomes a military target.’ In his view, ‘a village is a small
area, not easy to divide into sections, so the whole village becomes a military target.’ It is also worth
noting that the West Darfur Minister of Social Affairs (who is also the Deputy Wali of the State of West
Darfur) considered the villagers responsible for the destruction that led to their massive displacement on
the grounds that they allowed their sons to join the rebels and to use their own villages for insurgent
activities.
250. The indiscriminate nature of attacks by Government armed forces and the Janjaweed on civilians
and civilian objects in villages is illustrated in the case studies below.
Case Study 1: Anka village, North Darfur
251. The Commission investigated the scene of an attack in and around Anka village in North Darfur.
The following facts were established through witness interviews and forensic investigations:
At about 9 am on or about the 17 or 18 February 2004 the village of Barey, situated about 5
kilometres from the village of Anka, was attacked by a combined force of Government
several others injured. In a separate incident on 22 May 2004, the village of Abqa Rajil in South Darfur was attacked by
Government armed forces and police just before sunrise. Subsequently the Commission obtained information that 6
persons, including 2 policemen, were tried and convicted.
123 Witness testimony regarding the attack on Haloof village, South Darfur, 5 October 2003, as received by members of
the Commission during visit to South Darfur.
124 Section xx below contains more detailed information on killings as a result of attacks.
125 Section xx below contains more detailed information on sexual violence during the course of attacks.
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soldiers and Janjaweed. A witness from Barey then alerted the villagers of Anka of a
possible imminent attack.
At about 5 PM on the same day, witnesses from Anka observed between 300 and 400
Janjaweed on foot, and another 100 Janjaweed on camels and horseback, advancing towards
Anka from the direction of Barey. The attackers were described as wearing the same khaki
uniforms as the Government soldiers, and were armed with Kalashnikovs G3s and rocketpropelled
grenades (RPGs).
Witnesses observed about 18 vehicles approaching from behind the Janjaweed forces,
including four heavy trucks and eighteen Toyota pickup vehicles. Some of the vehicles were
green and others were coloured navy blue. The pickups had Dushka (12.7mm tripod
mounted machine guns) fitted onto the back, and one had a Hound rocket launcher system
which was used to fire rockets into, and across, the village. The trucks carried Government
armed forces and were later used to transport looted property from the village.
According to witnesses, villagers fled the village in a northerly direction, towards a wooded
area about 5 kilometers from the village.
Before the Janjaweed entered the village, the Government armed forces bombed the area
around the village with Antonov aircraft. One aircraft circled the village while the other one
bombed. The first one was coloured white and had a black underside, while the second one
was completely white. The bombing lasted for about two hours, during which time 20 to 35
bombs were dropped around the outskirts of the village. A hospital building was hit during
the bombardment.
After the bombing the Janjaweed and Government soldiers moved in and looted the village
including bedding, clothes and livestock. Remaining buildings were then destroyed by
burning. Janjaweed also fired RPGs into the village from the top of the hill overlooking
Anka. The bombing of the areas around the village appear to have been conducted in order
to facilitate the looting and destruction of the village by Janjaweed and Government armed
forces on the ground.
According to witnesses, approximately 30 SLM/A members were present in the village at
the time of the attack, apparently to defend the village following the announcement of the
imminent attack.
15 civilians were killed in Anka as a result of shrapnel injuries during and after the attack. 8
others were wounded. While some have recovered, others reportedly are disabled as a result
of their injuries. The village is now totally deserted.
Case Study 2: Shuba, Kabkabya
252. The Commission received credible information from witnesses in relation to three separate
attacks on civilians in villages in the Shoba area, Kabkabya, North Darfur126:
126 This information was corroborated by reported investigations by other independent sources.
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The first attack began at 08h30 on 2 April 2001, a market day. Arab militia reportedly
attacked Shoba West and Shoba Karika with the intention of looting animals. However, 15
people were killed and nine were wounded as a result of the attack. Approximately 55 Arab
militia, wearing camouflage green uniforms and armed with AK47s, G3s and RPGs,
attacked the villages on horses and camels. The leader of the attack and the identity of
several other attackers were known to the victims and were reported to the police station
nearby. The police investigated the incident and arrested four suspected perpetrators, who
were still in the village at the time. According to witnesses, no rebels were present in the
village either at the time of the attack or at any other time.
Approximately 100 Arab militia attacked Shoba West and Shoba Karika from the north in a
second incident on 28 April 2002. The perpetrators of the second attack matched the profile
of those responsible for the first attack, and were led this time by two senior leaders of the
Arab militia. 24 people were killed during the attack and another 23 were injured. 338
houses were burned, and the north and east of the village were completely destroyed.
Property belonging to villagers, including all livestock, food and medicine, was looted.
According to witnesses, the attack took place from 04:15 AM until about 09:30 AM when
Government forces arrived. Villagers identified the perpetrators, who were about 500 meters
from the village with the looted goods. However, the Government soldiers reportedly
refused to pursue them and one officer told a witness that he was under instructions not to
pursue the attackers. Government armed forces later confiscated the villagers’ weapons.
Some time following the attack the Minister of Interior visited the area, together with the
Walis of the three Darfur states, to appraise the situation and later sent food and support to
rebuild the village.
A third attack took place from 05:00 AM to 06:00 PM on 25 July 2003, this time on Shoba
East and Shoba West. According to reports, the attack was led by the two senior Janjaweed
leaders and involved approximately 400 Janjaweed and Government armed forces using
camels, horses and Land Cruisers armed with 12.7mm machine guns. The villages were
totally destroyed during the attack. 42 people were killed, 10 were injured and every item of
moveable property in the villages was looted.
Case study 3: Adwa
253. The Commission investigated reports of a recent attack by Government armed forces and
Janjaweed on the village of Adwa in South Darfur:
According to witnesses, on 23 November 2004 at 06:00 AM Government of the Sudan
armed forces in complicity with Janjaweed launched an attack on Adwa. Rebel forces
reportedly held a base on top of the mountains near Adwa, and a battle between Government
soldiers and rebel forces ensued. Two helicopter gun-ships and an Antonov plane were used
during the attack, possibly for reconnaissance purposes. Ground forces used various
weapons including AK47, G3, G4 assault rifles, RPG7, machine guns, and Doshka 12,7mm
machine gun mounted on vehicles. According to witness reports, civilians including women,
children and elderly persons were targeted during the attack. Many were forced to flee to a
nearby mountain where they remained for several days. There are reports that Government
and Janjaweed armed forces instructed women not to flee and told them that they were not
69
targets. However, some women were captured and several were detained by the attackers for
two days. Men were summarily shot, as was anyone who attempted to escape. Young girls
were taken by the attackers to another location and many were raped in the presence of other
women. The attackers looted the village. While in the mountains, several of the victims
reportedly were shot by Government soldiers and Janjaweed. Many people were killed and
more than 100 persons were injured. Following the attack, representatives of an international
organization searched the village and found several injured women and children, whom they
escorted to hospital. They also found the bodies of between 20 and 30 civilians who had
been killed during the attack, including women and children. All of the victims were
reportedly from Adwa and belonged to the Fur tribe. It is also alleged that many are still to
be found in the mountains.
2. Attacks by rebel forces
254. The Commission also found that rebel forces have been responsible for attacks, in most cases
against military targets, police or security forces. In West Darfur, for example, rebel forces attacked a
police station in Tongfuka in October 2003. In South Darfur, according to witnesses, rebels attacked and
looted a police station and Government offices in Yassin in January 2004. In North Darfur, rebel forces
attacked a police station in Tawila, killing 28 policemen. According to witness reports, most attacks
against military targets by rebel forces have been conducted by the SLM/A, acting either independently
or together with rebel forces of the JEM.
255. The Commission also received information from witnesses of a number of attacks by rebel forces
on villages and individual civilians. In three separate incidents in West Darfur, members of the JEM
attacked the town of Kulbus. During the first attack the JEM arrived around 3:00 PM on 4 October 2003
in 35 Land Cruisers, surprising Government armed forces in the town. Some were wearing military
dessert camouflage uniforms and others were in civilian clothing, riding horses and camels, and carrying
weapons such as RPGs, Garanov, Kalashnikov, GM4, Katyoucha Hawn 106, Hawn 120 and machine
guns. Forty-two soldiers and seventeen civilians, all male, were killed along with one child. Fifty
civilians were injured. On the 25 and 26 December 2003, more than forty vehicles loaded with JEM
soldiers again attacked Kulbus. However, the attackers were held back by Government armed forces and
could not get into the town. 28 Government soldiers were killed along with four male civilians.
256. Rebel forces reportedly have been responsible also for attacks reportedly carried out against
civilian convoys, including vehicles carrying humanitarian supplies. The Commission received
information in relation to attacks and looting by rebels of commercial vehicles, trucks carrying
humanitarian supplies, cargo trains or passenger buses. However, the Commission was not able to verify
these reports through its own investigations. The Government of the Sudan presented the Commission
with a document listing attacks on humanitarian convoys.
Case study – Buram127
127 See references to killings during these incidents in the section below.
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257. In one particularly serious series of incidents, rebel forces conducted attacks in Buram, South
Darfur on three separate occasions:
During the first attack, at 06h00 AM on 13 March 2004, rebels arrived in Buram from the
north in eight Land Cruisers, each containing nine or ten soldiers. The attackers wore a
variety of different military uniforms. They attacked the local office of the National Security
and Intelligence Service setting it alight and then proceeded to shoot at the Sudan
Telecommunications office. They then attacked the police station, killing two policemen and
removing weapons and ammunition. From there they went to the offices of the local
administration where they stole two safes and destroyed official documents. They went to
the Zakat (religious tax) office where they destroyed documents, stole the safe and a
Mitsubishi pickup truck. They went to the bank where they removed two safes and set fire to
the building. They also stole a truck belonging to a civilian. A crowd of people witnessed
the incident and followed the attackers. They were apparently unafraid because the rebels
had announced that they were not going to hurt anyone other than the targets that they had
chosen, including certain officials. The rebels went to the house of the security manager,
who reportedly had already fled with his family, set fire to the house and stole the security
manager’s vehicle. The following morning at 05:00 AM the rebels left town towards Shurab.
At Wadi Haggam they stole weapons from the police. At Hufrat-an-Nahas they attacked a
military contingent and killed 17 Government soldiers.
A second attack took place a week later, reportedly by the same perpetrators driving the
same vehicles as were used in the first attack. After arriving in the village at 02:00 PM, the
attackers went to the prison and released all prisoners. The rebels invited the prisoners to
join them, which some did. The attackers set fire to the prison, killed one prison guard and
beat another. They then left the village, taking with them the prisoners who had joined them.
After the attack, the rebels stated publicly that they had come to liberate the people by force
and that they wanted popular support.
Later the rebels became involved in a battle with Government military forces in a location
nearby. In that battle, soldiers who had been injured were brought to Baram for medical
attention. Rebels fired shots at the hospital buildings and killed both soldiers and civilians.
The Commission could not confirm a claim by the Government that injured soldiers and
civilians had been killed inside the hospital building.
(b.) Legal appraisal
258. As stated above, various provisions of human rights and international humanitarian law are
relevant to the protection of civilians in armed conflict. International law prohibits any attack
deliberately directed at civilians, that is, persons that do not take a direct part in armed hostilities.
International law also prohibits indiscriminate attacks on civilians, that is, any attack on areas or places
where both civilians and combatants may be found, which is not directed at a specific military objective,
or employs methods or means of combat which cannot be directed at a specific military objective.
Parties to the conflict therefore must at all times distinguish civilians from those taking a direct part in
the hostilities, as well as differentiating civilian objects from military objectives. Deliberate attacks on
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civilian objects are prohibited. The notion of ‘civilian objects’ embraces all objects (houses, private
dwellings, orchards, schools, shelters, hospitals, churches, mosques, synagogues, museums, works of art,
and so on) that do no serve, nor are used for, military purposes.
259. To ensure that attacks on places or areas where both civilians and combatants may be found, do
not unlawfully jeopardize civilians, international law imposes two fundamental obligations, applicable
both in international and internal armed conflicts. First the obligation to take precautions for the purpose
of sparing civilians and civilian objects as much as possible. Such precautions, laid down in customary
international law, are as follows: a belligerent must (i) do everything feasible to verify that the objectives
to be attacked are not civilian in character; (ii) take all feasible precautions in the choice of means and
methods of combat with a view to avoiding or at least minimizing incidental injury to civilians or
civilian objects; (iii) refrain from launching attacks which may be expected to cause incidental loss of
civilian life or injury to civilians or civilian objects, which would be excessive in relation to the concrete
and direct military advantage anticipated; (iv) give effective advance warning of attacks which may
affect the civilian population, except “in cases of assault” (as provided for in Article 26 of the Hague
Regulations of 1907) or (as provided for in Article 57(2)(C)) “unless circumstances do not permit”
(namely when a surprise attack is deemed indispensable by a belligerent). Such warnings may take the
form of dropping leaflets from aircraft or announcing on the radio that an attack will be carried out.
According to the Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of
12 August 1949 (ICRC, Y. Sandoz and others eds., 1987, at § 2224) a warning can also be given by
sending aircraft that fly at very low altitude over the area to be attacked, so as to give civilians the time
to evacuate the area.
260. The second fundamental obligation incumbent upon belligerents (or, more broadly, on any party
to an international or internal armed conflict) is to respect the principle of proportionality when
conducting attacks on military objectives that may entail civilian losses. Under this principle a
belligerent, when attacking a military objective, shall not cause incidental injury to civilians
disproportionate to the concrete and direct military advantage anticipated. In the area of combat
operations the principle of proportionality remains a largely subjective standard, based on a balancing
between the expectation and anticipation of military gain and the actual loss of civilian life or
destruction of civilian objects. It nevertheless plays an important role, first of all because it must be
applied in good faith, and secondly because its application may involve the prohibition of at least the
most glaringly disproportionate injuries to civilians. One can therefore appreciate statements such as that
of Judge R. Higgins in her Dissenting Opinion appended to the Advisory Opinion delivered in Legality
of the Threat or Use of Nuclear Weapons. She pointed out that “The principle of proportionality... is
reflected in many provisions of Additional Protocol I to the Geneva Conventions of 1949. Thus even a
legitimate target may not be attacked if the collateral civilian casualties would be disproportionate to the
specific military gain from the attack.”(§ 20, at p. 587).
261. Intentionally directing attacks against the civilian population as such, or against civilians not
taking direct part in hostilities, is a serious violation of international humanitarian law and amounts to a
war crime.128 The components of this war crime are identical whether the acts take place in the course of
an international or non-international armed conflict.129
128 Article 8(2)(e)(i), ICC Statute.
129 They include:
􀁸 the perpetrator directing an attack;
􀁸 the object of the attack being a civilian population or individual civilians not taking direct part in hostilities;
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262. The Commission’s factual findings in relation to attacks on civilians in Darfur must be analysed
from the perspective of the prohibition of indiscriminate attacks on civilians. In this regard, it is
necessary to consider whether: i) precautions were taken to ensure the protection of civilians and civilian
objects, and ii) the attacks were proportionate to the military objectives.
263. As noted above, one justification given for the attacks by Government of the Sudan armed forces
and Janjaweed on villages is that rebels were present at the time and had used the villages as a base from
which to launch attacks – or, at the very least, that villagers were providing support to the rebels in their
insurgency activities. Government officials therefore suggested that the villagers had lost their legal
status as protected persons.
264. The ICTY has held that “a wide definition of civilian population … is justified”, in the context of
crimes against humanity, and that “the presence of those actively involved in the conflict should not
prevent the characterization of a population as civilian …”130 In another case, the ICTY again considered
the different elements of an attack directed against a civilian population as part of the definition of
crimes against humanity. According to a Trial Chamber, ‘as a minimum, the perpetrator must have
known or considered the possibility that the victim of his crime was a civilian’ and stressed that ‘in case
of doubt as to whether a person is a civilian, that person shall be considered to be civilian’.131 Similarly,
the ICTR held that “[w]here there are certain individuals within the civilian population who do not come
within the definition of civilians, this does not deprive the population of its civilian character”.132
Drawing on this reasoning, it is clear that the mere presence of a member or members of rebel forces in a
village would not deprive the rest of the village population of its civilian character.
265. Furthermore, as pointed out above, and contrary to assertions made to the Commission by
various Government officials, it is apparent from consistent accounts of reliable eyewitnesses that no
precautions have ever been taken by the military authorities to spare civilians when launching armed
attacks on villages. No eyewitnesses reported that leaflets had been launched, or that warnings had been
given on the radio or through the tribal chiefs, or that aircraft had flown low over villages to warn
civilians of an imminent attack. Moreover, the mode and pattern of aerial flights preceding attacks can in
no way be construed as warning signals, as these were clearly part of the attack. Even the Government
has not used this as a defence of it position on aerial attacks or support of ground forces during attacks.
􀁸 the perpetrator intending the civilian population as such or individual civilians not taking direct part in
hostilities to be the object of the attack;
􀁸 the conduct taking place in the context of and being associated with a non-international armed conflict ; and
􀁸 the perpetrator being aware of factual circumstances that established the existence of an armed conflict.
The mental element of an attack on a civilian population is inferred where ‘the civilian character of the objects damaged
was known or should have been known’, and ‘the attack was wilfully directed at civilian objects’. Article 8(2)(e)(i),
ICC Statute. See also ICTY, Review of the Indictment, The Prosecutor v Milan Marti􀃼, IT-95-11-R61, 108 ILR 39 at
45, which states “there exists, at present, a corpus of customary international law applicable to all armed conflicts
irrespective of their characterization as international or non-international armed conflicts. This corpus includes general
rules or principles designed to protect the civilian population as well as rules governing means and methods of warfare.
As the Appeals Chamber affirmed … the prohibition on attacking the civilian population as such, or individual
civilians, are both undoubtedly part of this corpus of customary law.”
130 Tadi􀃼, op. cit., Trial Chamber II Judgement of 7 May 1997, para. 643.
131 Kunarac et al, case Nos. IT-96-23-T and IT-96-23/1-T, Judgement of 22 February 2001, para 435.
132 Akayesu, Case No. ICTR-96-4-T, Trial Chamber Decision of 2 September 1998, para. 582.
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266. The issue of proportionality did obviously not arise when no armed groups were present in the
village, as the attack exclusively targeted civilians. However, whenever there might have been any
armed elements present, the attack on a village would not be proportionate, as in most cases the whole
village was destroyed or burned down and civilians, if not killed or wounded, would all be compelled to
flee the village to avoid further harm. The civilian losses resulting from the military action would
therefore be patently excessive in relation to the expected military advantage of killing rebels or putting
them hors de combat.
267. Concluding observations. It is apparent from the Commission’s factual findings that in many
instances Government forces and militias under their control attacked civilians and destroyed and burned
down villages in Darfur contrary to the relevant principles and rules of international humanitarian law.
Even assuming that in all the villages they attacked there were rebels present or at least some rebels were
hiding there, or that there were persons supporting rebels - an assertion that finds little support from the
material and information collected by the Commission - the attackers did not take the necessary
precautions to enable civilians to leave the villages or to otherwise be shielded from attack.133 The
impact of the attacks shows that the military force used was manifestly disproportionate to any threat
posed by the rebels. In fact, attacks were most often intentionally directed against civilians and civilian
objects. Moreover, the manner in which many attacks were conducted (at dawn, preceded by the sudden
hovering of helicopter gun ships and often bombing) demonstrates that such attacks were also intended
to spread terror among civilians so as to compel them to flee the villages. In a majority of cases, victims
of the attacks belonged to African tribes, in particular the Fur, Masaalit and Zaghawa tribes. From the
viewpoint of international criminal law these violations of international humanitarian law no doubt
constitute large-scale war crimes.
268. From the Commission’s findings it is clear that the rebels are responsible for attacks on civilians,
which constitute war crimes. In general, the Commission has found no evidence that attacks by rebels on
civilians have been widespread, or that rebel attacks have systematically targeted the civilian population.
(ii.)Killing of civilians
(a.) Factual findings
1. Killing by Government forces and/or militias
269. The Commission has had access to a vast number of reports from various sources which
document extensive killings of civilians throughout Darfur, from the beginning of 2003 up to the time of
publication of this report. These reports note that the great majority of the killings were committed by
people who witnesses described as Janjaweed, in most cases uniformed and on horses or camels. It is
reported that the killings are generally committed during attacks on villages or hamlets. The reports
further note that the killings are often the result of gunfire. Witness testimonies reflected in these reports
133 Statements to the contrary were made to members of the Commission by some Government officials, however in
spite of repeated requests by the Commission to provide evidence of warnings these statements were never
corroborated.
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describe attackers with Kalashnikovs and other automatic weapons shooting either indiscriminately or
targeting specific people, usually men of military age. The use of other weapons, such as swords, has
also been noted, albeit less frequently. In some of these cases, killings are reported to have occurred on a
massive scale with hundreds of civilians being killed in the course of an attack. Incidents of confinement
of the civilian population, accompanied by arbitrary executions have also been reported, as well as
civilian deaths as a result of indiscriminate air attacks by Government forces. The reports note that
killings have continued during displacement in camps at the hand of the militias surrounding the camps,
and that some IDPs have also been the victims of indiscriminate police shooting inside camps, in
response to alleged rebel presence.
270. The description of killings found in these reports corresponds to the findings made by the
Commission during its missions to the Sudan, through credible witness testimonies and investigations.
It is impossible to describe in this report all the incidents of killings which the Commission has
documented. However, a few cases are presented here which are characteristic of the pattern of killings
noted by the Commission,
271. The Commission found that while all parties involved in the conflict have committed crimes
against the civilian population, the Government of the Sudan and the Janjaweed bear responsibility for
an overwhelming majority of the murders134 of civilians committed during the conflict in Darfur.
Furthermore, most of the civilians killed at the hands of the Government or the militias are, in a
strikingly consistent manner, from the same tribes, namely Fur, Massalit, Zaghawa and, less frequently,
other African tribes, in particular the Jebel and the Aranga in West Darfur.
a. Killing in joint attacks by Government forces and Janjaweed
272. As an example of a case of mass killing of civilians documented by the Commission, the attack
on Surra, a village with a population of over 1700, east of Zalingi, South Darfur, in January 2004, is
revealing. Witnesses interviewed in separate groups gave a very credible, detailed and consistent
account of the attack, in which more than 250 persons were killed, including women and a large number
of children. An additional 30 people are missing. The Janjaweed and Government forces attacked
jointly in the early hours of the morning. The military fired mortars at unarmed civilians. The Janjaweed
were wearing camouflage military uniform and were shooting with rifles and machine guns. They
entered the homes and killed the men. They gathered the women in the mosque. There were around ten
men hidden with the women. They found those men and killed them inside the mosque. They forced
women to take off their maxi (large piece of clothing covering the entire body) and if they found that
they were holding their young sons under them, they would kill the boys. The survivors fled the village
and did not bury their dead.
134 The Commission uses ‘murder’ and ‘killing’ interchangeably. ‘Wilful killing’ is the language used in the grave
breaches provisions of the Geneva Conventions of 1949 (respectively Articles 50, 51, 130 and 147) and reproduced in
the war crimes provisions (grave breaches) in the various statutes of international criminal tribunals (see e.g. Article 2
of the ICTY Statute; Art. 8(2)(a)(i) of the ICC Statute). ‘Murder’ is used in Common Article 3 of the Geneva
Conventions and in the provisions of the various statutes of the international tribunals referring to war crimes other than
grave breaches (serious violations of the laws and customs of war in ICTY; violations of Common Article 3 for ICC
and ICTR) and crimes against humanity (see Art. 7 and 8(2)(c)(i) of the ICC Statute; Art. 3 and 4 of ICTR Statute,
Article 3 of ICTY Statute). In short, the ICTY has held that the elements of the crime for murder and wilful killing are
similar: Kordi􀃼 and Cerkez, (Trial Chamber), February 26, 2001, para. 233, confirmed by the Appeals Chamber on 17
December 2004, at §. 38, Delalic, §. 422.
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273. The Commission was able to find various elements to corroborate witness accounts and confirm
the occurrence of mass killings of civilians by Government forces and militias. For instance, the
Commission visited Kailek, a village in South Darfur mainly populated by people belonging to the Fur
tribe, and confirmed what eyewitnesses had told the Commission. This case illustrates not only the
occurrence of mass killings of civilians, but also of wrongful confinement accompanied by summary
executions, rape and other abuses. During the first attack described in the previous section, 9 villages
around Shataya, a town in the vicinity, were destroyed and 85 people were killed, including five women
and three children. After the attack, the whole population of the area went to Kailek. There were still
Janjaweed present in the surrounding villages, and people who attempted to return to these villages came
under attack and some were killed. The Commission found elements to corroborate reports according to
which 28 unarmed men who attempted to surrender themselves at the Kailek police station were all shot
- only one man survived. In addition, 17 policemen were also killed in this attack, all of whom belonged
to African tribes.
274. A second attack occurred in March 2004. Government forces and Janjaweed attacked at around
15h00, supported by aircraft and military vehicles. Again, villagers fled west to the mountains.
Janjaweed on horses and camels commenced hunting the villagers down, while the military forces
remained at the foot of the mountain. They shelled parts of the mountains with mortars, and machinegunned
people as well. People were shot when, suffering from thirst, they were forced to leave their
hiding places to go to water points. There are consistent reports that some people who were captured and
some of those who surrendered to the Janjaweed were summarily shot and killed. One woman claimed
to have lost 17 family members on the mountain. Her sister and her child were shot by a Janjaweed at
close range. People who surrendered or returned to Kailek were confined to a small open area against
their will for a long period of time (possibly over 50 days). Many people were subjected to the most
horrific treatment, and many were summarily executed. Men who were in confinement in Kailek were
called out and shot in front of everyone or alternatively taken away and shot. Local community leaders
in particular suffered this fate. There are reports of people being thrown on to fires to burn to death.
There are reports that people were partially skinned or otherwise injured and left to die.
275. The case of Kailek is not isolated. It is similar to other incidents in which similar patterns are
reported. For example, after months of consistent attacks of villages in the area, many persons gathered
in Deleig after having fled their villages. In March 2004, Janjaweed and Government forces surrounded
the town of Deleig, and then went from house to house looking for specific individuals. Many men were
arrested and taken to the police station. They were separated into different groups and some were
transported in a truck, allegedly to the Garsila area. The truck would come back empty and leave again
with a new group of men. Most of those taken away were executed. According to highly reliable
eyewitnesses, over 120 men were killed (reportedly mainly intellectuals and leaders). This was another
instance of planned and organized joint attack by the Government forces and the Janjaweed, during
which mass killings and summary executions were committed. The most recent such incident, although
at a relatively smaller scale, occurred in Adwa in November 2004. The Commission does not consider it
a coincidence that such brutal forms of killings have largely been committed against the Fur population.
276. The Commission considers that almost all of the hundreds of attacks that were conducted in
Darfur by Janjaweed and Government forces involved the killing of civilians.
b. Killing in attacks by Janjaweed
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277. Multiple killings have been committed by the Janjaweed during attacks. Several incidents of this
nature were verified by the Commission. One attack in Molli in West Darfur in April 2003 left 64 people
dead including a seven year old girl. The dead are buried in 8 multiple graves in the market area of the
village. A significant fact noted by the Commission was that the incident was reported to the police and
seven people were arrested, detained and eventually released three months later. The village of Nurei
close to the town of Mornei in West Darfur was attacked by Janjaweed and the Government forces in
December 2003. This attack was supported by helicopter cover. 67 civilians were killed in deliberate and
indiscriminate shooting by the assailants. All the houses in the village were burnt. Bodies of the victims
were buried in mass graves near the village. In another case, the Janjaweed attacked Mallaga village in
October 2004. Eighteen men were killed and four men and two women injured. The Commission
verified the presence of two grave sites in the village - one said to contain the bodies of two men, and
another with the bodies of seven men, all of whom died during the attack. In El Geneina the team also
visited one of the areas used as a public cemetery, where according to witnesses nine victims of the
attack on Mallaga were buried in a multiple grave, after the villagers brought the bodies to the town’s
hospital.
278. The Commission also notes that Janjaweed have, on a number of occasions, specifically targeted
and killed children including in Kailek and Surra referred to above. The Commission received many
reports of random and/or targeted killing of children, sometimes in horrific circumstances such as by
burning or mutilation.
279. Several incidents of this nature were verified by the Commission. In short, the Commission has
collected very substantial material and testimony which tend to confirm, in the context of attacks on
villages, the killing of thousands of civilians.
c. Killing as a result of air bombardment
280. Other cases of killings are directly attributable to the armed forces of the Government of the
Sudan, and especially killings caused by indiscriminate air attacks. For instance, the village of Amika
Sara, South Darfur was reportedly bombed by helicopter gun-ships, in an attack supported by Antonov
aircraft and with ground support from Janjaweed, in October 2004. The site was visited on three
occasions by the Commission. The evidence found was consistent with the testimony given by
witnesses, according to whom 17 civilians were killed. The remains of rockets fired from helicopters
were clearly identified. Crater analysis suggests that the helicopter attacks involved either multiple
passes or multiple aircraft, or both. The Commission verified the presence of fresh graves in the area.
281. A further example of many such attacks documented by the Commission is the attack on Habila
town in West Darfur in August 2003 when six bombs were dropped by an Antonov aircraft on the town
and the market, killing 30 civilians. The Commission’s investigators verified witness testimonies,
inspected sites showing evidence of bombardment, and saw graves where 27 of the 30 victims are
buried. Habila is mainly populated by the Massalit tribe. The Commission found no evidence that there
was any rebel activity or structures in the vicinity that could have been the target of this attack. The
Government acknowledged the attack and offered to compensate the victims.
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282. In another case investigated by the Commission and referred to in the previous section, Antonov
aircraft bombed Anka village and the surroundings, in February 2004. After the bombing, Janjaweed
attacked, destroying houses and looting property. As a result of the attack, fifteen people were killed by
shrapnel injury while others were wounded, houses were burned and property was lost. Some of the
survivers now have physical disabilities as a result of their injuries.
283. Based on its investigations and the pattern of air attacks which it has established, the
Commission is of the view that the military bears responsibility for a very large number of
indiscriminate air attacks which resulted in the death of numerous civilians.
d. Killing following displacement
284. Civilians have also been killed after they have reached IDP sites following displacement. On
some occasions, they have been killed as they ventured out of the camp, either to go back to their village
or for any other reason. For instance, different witnesses told the Commission of the recent killing of
three persons who had left an IDP camp in Kass to go and see their nearby village. The perpetrators were
unidentified, but the people interviewed said they were “probably Janjaweed”. They said that the militias
stayed around the camps and the village in case anyone tried to return. In another instance in Kalma
camp in South Darfur in November 2004, at a time when the Commission was present in Nyala, a
number of IDPs were reportedly killed and injured when police shot into the camp, allegedly in response
to attacks from rebels hiding in the camp.
2. Killing by Rebel Groups
a. Killing of civilians
285. The Commission also has found that rebels have killed civilians, although the incidents and
number of deaths have been few.
286. The Commission documented some rebel attacks and verified witness testimonies with thorough
investigations in the field. For instance, the Commission has investigated a JEM attack on the town of
Kulbus, West Darfur, on 4 October 2003, and on 25 and 26 December 2003. During the first attack in
Kulbus 42 soldiers and 17 male civilians including one child were killed. The Commission’s forensic
experts have been able to verify that some of the military were buried in the trenches which existed
around the military camp, and all civilians were buried in multiple graves in the town cemetery. In a
second attack on 25 and 26 December 28 Government soldiers were killed, as well as four male
civilians. Arguably, the town of Kulbus was a military target, evidenced by the military camp there. It
would need further investigation to determine whether civilians were caught in cross-fire, or whether
they were attacked in an indiscriminate or disproportionate manner, or killed wilfully.
287. These attacks were preceded by an attack described to the Commission by some eyewitnesses,
where members of the nomadic Rezeigat tribe were attacked while in the Kulbus area by members of the
SLA and JEM. The attackers killed forty eight persons including women and children and stole property
and livestock from the market and then destroyed it. The victims were buried many days after the attack
in areas surrounding Kulbus.
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288. The Commission has been unable to confirm reports it has received, especially from the
Government, concerning abductions, targeted killings and executions of civilians carried out by the
rebels primarily because the rebels suspect them of being Government spies. While the Commission
does not exclude that this may have happened, it has not been able to verify whether it had in fact
occurred.
b. Killing of humanitarian workers
289. The Commission was provided with a number of reports of incidents where humanitarian
workers were the victims of attacks. Although the Commission was not in a position to verify the
identity of perpetrators itself in the course of its work, credible sources attributed most of these instances
to the different groups of rebels. For instance, the new rebel movement NMRD (National Movement for
Reform and Development) is accused of an incident that occurred in October 2004 in Umbarro, North
Darfur, where two international workers were killed in a mine incident.
290. In another incident involving the same international humanitarian organization, two of its staff
members working with a mobile health clinic were brutally killed while travelling in a clearly marked
humanitarian convoy on the main road between Mershing and Duma in South Darfur. The circumstances
of the killings remain unclear.
(b.) Legal Appraisal
291. As stated above murder contravenes the provisions of the International Covenant on Civil and
Political Rights and of the African Charter on Human and People’s Rights, which protect the right to life
and to not be “arbitrarily deprived of his life”135. As for international humanitarian law, murder of
civilians who do not take active part in hostilities in an internal armed conflict, is prohibited both by
common Article 3 of the 1949 Geneva Conventions and by the corresponding rule of customary
international law, as codified in Article 4(2)(a) of Additional Protocol II. It is also criminalized either as
a war crime or, depending upon the circumstances, as a crime against humanity, as proved by case law
and by the Statutes of the various international tribunals. It is crucial to stress again at this point that
when considering if the murder of civilians amounts to a war crime or crime against humanity, the
presence of non-civilians does not deprive a population of its civilian character136. Therefore, even if it
were proved that rebels were present in a village under attack, or that they generally used the civilian
population as a ‘shield’, nothing would justify the murder of civilians who do not take part in the
hostilities.
135 Article 6(1)ICCPR, Article 4 of the African Charter. As mentioned above (§..), the UN Human Rights Committee
held that this right is laid down in international norms that are peremptory in nature, or norms of jus cogens (General
Comment no.29, at §11). See CCPRT/C/21/Rev.1/Add.11, 31 August 2001.
136 Akayesu, (ICTR Trial Chamber), September 2, 1998, para. 582: “Where there are certain individuals within the
civilian population who do not come within the definition of civilians, this does not deprive the population of its civilian
character.” See also Rutaganda, (ICTR Trial Chamber), December 6, 1999, para. 72; Musema, (ICTR Trial Chamber),
January 27, 2000, para. 207. See also Kayishema and Ruzindana, (ICTR Trial Chamber), May 21, 1999, para. 128:
“[T]he targeted population must be predominantly civilian in nature but the presence of certain non-civilians in their
midst does not change the character of that population.” See also Bagilishema, (ICTR Trial Chamber), June 7, 2001,
para. 79; Semanza, (ICTR Trial Chamber), May 15, 2003, para. 330.
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292. A particular feature of the conflict in Darfur should be stressed. Although in certain instances
victims of attacks have willingly admitted having been armed, it is important to recall that most tribes in
Darfur possess weapons, which are often duly licensed, to defend their land and cattle. Even if it were
the case that the civilians attacked possessed weapons, this would not necessarily be an indication that
they were rebels, hence lawful targets of attack, or otherwise taking active part in the hostilities. In
addition, it should be noted that the Government of the Sudan did not claim to have found weapons in
the villages that were attacked. Furthermore, many attacks occurred at times when civilians were asleep,
or praying, and were then not in a position to “take direct part in the hostilities”. The mere presence of
arms in a village is not sufficient to deprive civilians of their protected status as such.
293. In light of the above factual findings, 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.
294. Considering the limits of its inherent functions, the Commission has been unable to assert with
certainty the number of civilian victims in Darfur. The Commission leaves it to the competent court that
will pronounce on these alleged crimes to determine whether the mass killings may amount to
extermination as a crime against humanity.137
295. In addition, given the discriminatory character on political grounds of the systematic and
widespread murder of civilians, these acts may very well amount to the crime of persecution as a crime
against humanity. In Zoran Kupreški􀃼 and others, the ICTY Trial Chamber defined persecution as “the
gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international
customary or treaty law, reaching the same level of gravity as the other acts prohibited in Article 5.”138
In Article 7 (2) (g) of the ICC statute persecution is defined as ”The intentional and severe deprivation
of fundamental rights contrary to international law by reason of the identity of the group or collectivity”.
What is important to note here is that persecution can involve the violation of a number of fundamental
137 Murder can amount to extermination as a crime against humanity. Extermination is primarily concerned with the
mass destruction of a group of individuals, the emphasis being placed on the scale of the destruction, unlike murder
which may comprise a singular incident . Extermination generally involves “the destruction of a numerically significant
part of the population concerned.” Although conceptually what differentiates murder and extermination is the element
of mass killing involved in the latter, the perpetrator must not necessarily have committed mass killings himself, but
must have been involved in the killings of civilians on a large scale . Furthermore, “extermination may be retained
when the crime is directed against an entire group of individuals even though no discriminatory intent or intention to
destroy the group as such on national, ethnic, racial or religious grounds has been demonstrated; or where the targeted
population does not share any common national, ethnical, racial or religious characteristics” . The perpetrator must
however have “intended the killing” or was “reckless or grossly negligent as to whether the killing would result,” and
was “aware that his act(s) or omission(s) form[] part of a mass killing event Nahimana, Barayagwiza and Ngeze, (ICTR
Trial Chamber), December 3, 2003, para. 1061; Kayishema and Ruzindana, (ICTR Trial Chamber), May 21, 1999, note
8 to para. 645 and para. 144; Krstic, (ICTY Trial Chamber), August 2, 2001, para. 500;Vasiljevic, (ICTY Trial
Chamber), November 29, 2002, para. 228-229
138 See Zoran Kupreški􀃼 and others, ICTY Trial Chamber, judgment of 14 January 2000, at § 621.
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rights and that it must be committed on discriminatory grounds. The fact that the killings committed by
the Government and the Janjaweed appear to have been systematically targeted against the Fur, Massalit,
Zaghawa and other African tribes on political grounds is indicative of the discriminatory character of the
killing and may thus amount to persecution as a crime against humanity. .
296. As for the killing of civilians by the rebels, each individual violation must be considered as a
very serious war crime. The Commission is, however, unable to conclude that they form part of a
‘systematic’ or ‘widespread’ attack against the civilian population.
(iii.) Killing of detained enemy servicemen
(a.) Factual findings
297. Some cases of death in detention were reported to the Commission by all parties, although these
incidents are not thought to have occurred on a widespread basis. The Commission itself noted, inter
alia, the events that occurred in Kailek and Deleig where Government forces and members of militias
detained persons who they claimed were rebels hiding as civilians. Based on its substantial body of
information on events in both places, the Commission notes, firstly, that very few, if any, of the
thousands of people detained in Kailek and Deleij were rebels. Secondly, even if, as the Government
alleges, the young men who were killed were indeed members of the rebel groups, their summary
execution would contravene international law and the perpetrators should be held responsible for war
crimes. As for killing of detained servicemen by the rebels, the Commission has received reports,
especially from the Government, concerning executions of detained soldiers carried out by the rebels.
Such executions would constitutes war crimes, however, the Commission has not received independent
information to corroborate reports received.
(b) Legal Appraisal
298. International humanitarian law prohibits ill-treatment of detained enemy combatants, in
particular violence to life and person, including murder of all kinds (see common Article 3(1)(a) of the
Geneva Conventions). It also specifically prohibits the passing of sentences and the carrying out of
executions without previous judgement pronounced by a regularly constituted court, affording all the
judicial guarantees which are recognized as indispensable by civilized peoples (see Article 3(1) (d) of
the Geneva Conventions). Wilful killing of a detained combatant amounts to a war crime.
(iv.) Killing of wounded enemy servicemen
(a) Factual findings
299. While there have been allegations of murder of wounded soldiers, very few cases were in fact
brought to the attention of the Commission and it was unable to verify these reports.
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(b) Legal Appraisal
300. The wilful killing of wounded servicemen is strictly prohibited by international humanitarian law
(see Article 23 (b) and (c) of the Hague Regulations and common Article 3 (1)(a) of the Geneva
Conventions). It amounts to a war crime.
(v.) Wanton destruction of villages or devastation not justified by military necessity
(a.)Factual findings
1. Destruction by armed forces and Janjaweed
301. The Commission has received and examined a great number of reports which document both the
systematic and widespread destruction of entire villages and hamlets in the three states of Darfur. A
number of reports have presented satellite imagery clearly documenting this widespread destruction.
Some reports estimate that more than 600 villages and hamlets have been completely destroyed, while
an additional 100 to 200 villages have been partially destroyed. Other sources, based on Sudanese police
reports, indicate that more than 2000 villages were destroyed. As noted above, the destruction of villages
has been irrefutably established which is clearly acknowledged by the Government of the Sudan.
302. The Commission examined detailed reports of the destruction of almost 140 villages in the three
states of Darfur. While some reports have noted a few incidents of destruction of villages and private
property committed by the rebel groups, most of the reports contain witness accounts indicating that the
majority of villages were destroyed during attacks by Janjaweed, often under the direction and with the
participation and the support of the armed forces of the Government of the Sudan.
303. There are many incidents reported in which Government forces are said to have surrounded
villages and stood guard as the Janjaweed burnt and pillaged and committed other atrocities against the
population. Many villages are said to have been attacked more than once, until they were completely
destroyed.
304. Many reports also note that villages were burnt even after these had been abandoned by the
inhabitants who fled to IDP camps in larger urban centres in Darfur, or to neighbouring Chad. This has
led many observers to fear that this is a part of the policy executed through the Janjaweed to expel the
population from the targeted areas and to prevent the immediate or, possibly, long-term return of the
inhabitants. This concern is expressed because the villages reported to have been burnt and destroyed in
this manner are almost exclusively inhabited by African tribes, mostly Fur, Masaalit and Zaghawa.
305. Many of the villages were reportedly completely destroyed by deliberate demolition of structures
and more frequently by burning down the whole village. Straw-roofs of the traditional circular houses
were torched, as well as all other inflammable material, and vegetation inside and in the immediate
vicinity of the village was destroyed by burning. Some of these villages had hundreds of homes that
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were torched and burnt to the ground. During the attacks Janjaweed are reported to have destroyed
utensils, equipment for processing food, water containers and other household items essential for the
survival of the inhabitants. Wells were reportedly poisoned by dropping the carcasses of cattle into the
wells. In addition, as noted below, the destruction seems to have been consistently combined with
looting of personal valuables, cash and, above all, live-stock.
306. The Commission witnessed first-hand the extensive nature of the destruction, and subsequently
carried out detailed fact-finding at several sites in all the three states of Darfur to verify and establish
acts that resulted in the destruction, the methods employed, the forces responsible and the patterns that
indicate the intent behind these acts.
307. The Commission found that the witness testimonies previously reported were in conformity with
what was discovered as a result of its own inquiries and investigations. It can be confirmed that most
destruction has been caused by the Janjaweed with the support of the Government of the Sudan.
308. The trends and patterns are best illustrated in the case of West Darfur where the widespread
destruction is most visible. The Commission found 35 destroyed villages in only four localities (El
Geneina, Habila, Kulbus and Wadi Saleh). These are only a small number of the scores that are reported
to have been destroyed in the same area and are in addition to the ones that were damaged as a result of
aerial strikes by Government forces that the Commission has verified.
309. Of these 13 were destroyed in raids by the Janjaweed and 18 in combined attacks by Government
forces and the Janjaweed, who were wearing uniforms similar to those of the military. The manner of
destruction of most villages seems to follow a clear systematic pattern. Most of the destruction was
carried out by Janjaweed who set entire villages afire and destroyed any private property which was not
looted. Often the armed forces of the Government of the Sudan were present, either in aircraft or in
vehicles outside the village, but did not, except in a few cases, take part in the actual destruction, unless
destruction was caused by aerial bombardment.
310. From the material collected it is evident that the majority of the destroyed or damaged villages
belong either to the Masaalit, the Zaghawa, the Fur, or other African tribes. In West Darfur, for instance,
out of the 35 completely or partially destroyed villages investigated by the Commission, 31 belonged to
African tribes who had clearly been systematically targeted, while the remaining 4 belonged to two Arab
tribes who had been attacked by either the JEM or the SLA. This is further illustrated by the fact that
most other tribes have not been targeted in this way, if targeted at all. The Commission observed, for
instance, that in an area of 50 km between Al Geneina and Masteri inhabited mostly by Arab tribes, no
signs of destruction were recorded. Similar patterns have been noted in North and South Darfur in areas
where there is a concentration of Zaghawa and Fur populations, whose villages had been targeted.
311. The Commission heard credible accounts showing that the acts of destruction were wanton and
deliberate, and that in addition to homes all essential structures and implements for the survival of the
population were also destroyed. Oil presses, flour mills, water sources such as wells and pumps, crops
and vegetation and almost all household utensils were found scorched or smashed at the sites inspected
by the Commission team. The Commission has also noted the destruction of schools, health centres,
markets and other civilian objects.
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312. Such a pattern of destruction can only be interpreted as having the objective of driving out the
population through violence and preventing their return by destroying all means of survival and
livelihood. The Commission has also verified that a number of villages previously inhabited by the Fur
in South Darfur and Masaalit in West Darfur are now being populated by Arab tribes.
313. The Commission did not find any evidence of military activity by the rebels in the major areas of
destruction that could in any way justify the attacks on military grounds.
314. In some instances, such as around Kornoi and Tine in the northern parts of West Darfur and
some parts of North Darfur, destruction is mainly linked to aerial bombardment, but has been only
partial, with only a few structures destroyed.
315. In conclusion, the Commission finds that there is large-scale destruction of villages in all the
three states of Darfur. This destruction has been deliberately caused, by and large, by the Janjaweed
during attacks, independently or in combination with Government forces. Even though in most of the
incidents the Government forces may not have participated directly in the destruction, their complicity in
the attacks during which the destruction was conducted and their presence at the scene are sufficient to
make them jointly responsible. The destruction was targeted at the areas of habitation of African tribes,
in particular the Fur, Zaghawa and Massalit. There was no military necessity for the destruction and
devastation caused as a joint venture by the Janjaweed and the Government forces. The targets of
destruction during the attacks under discussion were exclusively civilian objects; and objects
indispensable to the survival of civilian population were deliberately and wantonly destroyed.
2. Destruction by rebels
316. In addition, the Commission has recorded incidents in North Darfur in which the SLA is reported
to have burnt houses as well as a police station during its attacks on the towns of Tawilah and Korma.
317. The Commission found no information or evidence which would indicate that the rebel groups
are responsible for causing widespread destruction. However, there are a few incidents in which they
have destroyed houses and buildings in towns and villages. This is particularly notable in the JEM
attacks on Kulbus town in West Darfur, and villages in this locality between October and December
2003. The Commission has heard credible testimony describing the partial destruction of a school, the
hospital and the market, deliberately inflicted by the rebel group during the attack on the town. There are
also credible accounts of the destruction of at least one village in the locality.
(b.) Legal appraisal
318. Article 11 of the International Covenant on Economic, Social and Cultural Rights provides, inter
alia, that “the States Parties to the present Covenant recognize the right of everyone to […] adequate
food, clothing and housing,”139.Furthermore, customary international law prohibits and criminalizes the
139 Committee on Economic, Social and Cultural Rights, General Comment no.4 on the right to adequate housing ,of 13
December 1991, and General Comment No. 7, on the right to adequate housing (art. 11.1 of the Covenant): Forced
evictions, of 20 May 1997.
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destruction of property of a hostile party carried out by a belligerent in the course of an international or
internal armed conflict, and not justified by military need.
319. It is apparent that the massive destruction of villages by the Government forces and the
Janjaweed was not justified by military necessity. Those villages were inhabited by civilians and, if
some rebels were living there or taking shelter in some homes, it was not warranted to destroy the whole
village by setting it afire. The destruction of so many civilian villages thus amounts to a very serious war
crime.
320. In addition to constituting a war crime140, destruction of property, if part of a systematic or
widespread attack on part of the civilian population, may amount to the crime of persecution as a crime
against humanity if carried out on discriminatory grounds. However, not all destruction of property per
se amounts to persecution. It must further be established that the destruction of property will have a
detrimental effect on the liberty and livelihood of those people in that area. As an ICTY Trial Chamber
held in Zoran Kupreški􀃼 and others141, such destruction should be akin to “the same inhumane
consequences as a forced transfer or deportation”. Another ICTY Trial Chamber held in Blaski􀃼 that the
“destruction of property must be construed to mean the destruction of towns, villages and other public or
private property not justified by military necessity and carried unlawfully, wantonly and
discriminatorily.”142
321. The destruction of property in Darfur was clearly part of a systematic and widespread attack on
the civilian population; it clearly had a detrimental effect on the liberty and livelihood of those people,
being deprived of all necessities of life in the villages; and it almost consistently involved the forced
displacement of persons. The destruction was clearly carried out “unlawfully and wantonly”, and the fact
that the vast majority of villages destroyed belonged to African tribes would also indicate that it is
carried out “discriminatorily”. In view of these facts, the Commission is led to the conclusion that this
destruction may well amount to the crime of persecution, as a crime against humanity.
(vi.) Forcible transfer of civilian populations
(a.) Factual findings
322. As noted above, the displacement of a very large part of the population of Darfur is a fact beyond
dispute. All reports examined by the Commission agree that the displacement has been forced and
widespread, affecting more than 1,85 million persons (1,65 million IDPs in Darfur, and more than
200,000 refugees in Chad)143. The magnitude of displacement caused at the outset of the crisis is still
problematic to determine, as there were practically no assessments or estimates carried out, since there
were no humanitarian organizations present in Darfur to conduct such an estimate, nor did the
Government put forward figures. Humanitarian access was also seriously hampered until mid-2004
140 See, e.g., Kordic and Cerkez, (ICTY Trial Chamber), February 26, 2001, §. 346-347
141 Judgment of 14 january 2000, §. 631 (see also §. 621)
142 Blask􀃼i, Judgment of 3 March 2000, §. 234.
143 Office of UN Deputy Special Representative of the UN Secretary-General for Sudan, & UN Resident and
Humanitarian Co-ordinator, Darfur Humanitarian Profile, No. 8, November 2004. UNHCR refugee statistics provided
by UNHCR Chad.
85
when the Government finally agreed to a more flexible and expeditious procedure for granting access to
humanitarian workers. Most reports argue that the displacement has been a major feature and, it would
appear, even an objective for some actors during the conflict.
323. Most official United Nations reports note that the number of displaced persons grew quite
dramatically over a relatively short period. For instance, as noted above, the Office of the Deputy
Special Representative of the United Nations Secretary-General for the Sudan and United Nations
Resident and Humanitarian Co-ordinator in its Humanitarian Profile of November 2004, noted that the
total number of IDPs exceeded 1,65 million persons. However when the United Nations first began to
estimate the number of displaced in September 2003, the number was less than 300,000.144
324. The Commission and its team witnessed ample evidence of the displacement and conducted a
great number of interviews with both IDPs in Darfur and refugees in Chad. In South Darfur the teams
visited IDPs in Kalma Camp, Otash, Zalingi, Kass and other sites. In North Darfur the teams interviewed
IDPs in Abushouk, Zam Zam and Fatoborno camp near El Fashir, as well as IDPs in Kutum. The West
Darfur team interviewed refuges across the border in Chad, including in the Bredjing camps, and also
spoke to IDPs in Mornei and Masteri.
325. As noted in the sections on attacks, killings and destruction above, the Commission found that
most of the internal displacement as well as the displacement to Chad occurred as a direct result of
attacks by Janjaweed and/or Government forces. Following the destruction of their villages, and also as
a result of direct threats and other violations committed by the attackers, the villagers decided to leave
their homes to seek security in large urban areas inside Darfur, or across the border in Chad. Others fled
out of fear of attacks, since they had received information about atrocities in the vicinity. Practically all
of the displaced had been unable to return to their villages due to continued insecurity caused by threats
from and presence of Janjaweed. The Commission was able to confirm that in the area between Kulbus
and Tina most of the villages were deserted, the original inhabitants having fled to Chad or other areas
inside the country. Only a few settlements were still inhabited, but by nomadic herders who were
observed to be settled around or in the villages. The presence of these herders was also noticed by the
Commission around the otherwise deserted villages around Sirba and Abu Surug in West Darfur. The
Commission spoke to some displaced persons who had sought to return but had again faced attacks.
326. A typical account involving displacement and the inability to return due to continued threat from
the Janjaweed is represented by the following interview with a refugee, a member of the Masaalit tribe,
in Chad, originally from a village in the Masteri area:
“The village was attacked by Government soldiers and Janjaweed in October 2003. It was a
Wednesday and fifth or sixth day of Ramadan. Women had gone to fetch water and at about
7 AM I saw people approaching the village. It was Government soldiers and Arabs coming
on horses and cars. There was a plane behind these people. There were about 200 people
with guns. They were shouting “This is not your land”, and were hitting the children with
whips. I ran towards my cow and untied it. One of the attackers, who was wearing khaki,
saw me from the hillock on which he was standing and shot me. I was wounded in the groin
and ran and hid in the cow shed. I came out only after they had left about 15-20 minutes
later. People were fleeing from the village. Some people carried me with them to Masteri,
144 Darfur Humanitarian Profile, No. 8, November 2004, available at http://www.unsudanig.org
86
where I was treated in the hospital for my injury. I was later told that my father and younger
brother had been killed. Four other people were also killed. I was also told that the soldiers
and Janjaweed had looted all the cattle and livestock. 15 days later some people went back
to the village, but the Arabs were still around the village. If they saw anyone they whipped
the women and killed the men. We first stayed near an IDP Camp in Masteri, and after three
months I crossed over to Chad. There were people from 20 villages in the place where we
stayed before coming to the Sudan.”
327. The Commission also found that, following displacement, the IDPs who remained inside Darfur
were still faced with a number of threats and largely confined to remain inside the camps or urban areas,
since venturing outside would involve risks of attacks and other violations, in particular rape, as
described below.
328. With regard to specific patterns in the displacement, the Commission notes that it appears that
one of the objectives of the displacement was linked to the counter-insurgency policy of the
Government, namely to remove the actual or potential support base of the rebels. The displaced
population belongs predominantly to the three tribes known to make up the majority in the rebel
movements, namely the Masaalit, the Zaghawa and the Fur, who appear to have been systematically
targeted and forced off their lands. The areas of origin of the displaced coincide with the traditional
homelands of the three tribes, while it is also apparent that other tribes have practically not been affected
at all.
329. At the same time, it seems very possible that the Janjaweed, who are composed of tribes
traditionally opposing the three displaced tribes, also benefited from this displacement as they would
gain access to land. The Commission found evidence indicating that Arab tribes had begun to settle in
areas previously inhabited by the displaced, thus further preventing an eventual return of the displaced.
(b) Legal Appraisal
330. Under Article 12 of the International Covenant on Civil and Political Rights “Everyone lawfully
within the territory of a State shall, within that territory, have the […] freedom to choose his residence.”
This provision thus protects freedom of movement and the right not to be displaced arbitrarily. The
Human Rights Committee has clearly enunciated this right in its General Comment No. 27. 145 On
several occasions the United Nations Committee on Economic, Social and Cultural Rights has stated that
forced evictions are prima facie incompatible with the requirements of the Covenant on Economic,
Social and Cultural Rights146.
331. International customary law prohibits the forcible transfer of civilian populations both in time of
peace and in time of war. As clarified in Article 7 (2) (d) of the Statute of the International Criminal
Court, which may be held to codify customary international law on the matter, “deportation or forcible
transfer of population means forced displacement of the persons concerned by expulsion or other
coercive acts from the area in which they are lawfully present, without grounds permitted under
international law”. The forced dislodgement of civilians from the area where they traditionally and
145 See Human Rights Committee, General Comment No. 27 of 2 November 1999, UN Doc CCPR/C/21/Rev.1/Add.9
146 General Comment No. 7, on the right to adequate housing (art. 11.1 of the Covenant): Forced evictions, of 20 May
1997
87
legally live, resulting from unlawful indiscriminate attacks on their dwellings and the scorching of their
villages, falls within the scope of the prohibition at issue.
332. Given the systematic and widespread character of the forced displacement of persons in Darfur,
the Commission finds that such action may well amount to a crime against humanity. The requisite
subjective element (awareness of the systematic nature of the forced displacement) would be inherent in
the fact that such displacement clearly amounted to a Government policy consistently pursued by the
relevant Government authorities and the Janjaweed. Furthermore, given the discriminatory character of
the displacement, these actions would amount to the crime of persecution as a crime against humanity.
(vii.) Rape and other forms of sexual violence
(a.) Factual findings
333. Various sources reported widespread rape and other serious forms of violence committed against
women and girls in all three states of Darfur. According to these sources, the rape of individual victims
was often multiple, carried out by more than one man, and accompanied by other severe forms of
violence, including beating and whipping. In some cases, women were reportedly raped in public, and
in some incidents, the women were further berated and called “slaves” or “Tora Bora.”
334. The following patterns have been reported: First, deliberate aggressions against women and
girls, including gang rapes, occurred during the attacks on the villages. Second, women and girls were
abducted, held in confinement for several days and repeatedly raped during that time. Third, rape and
other forms of sexual violence continued during flight and further displacement, including when women
left towns and IDP sites to collect wood or water. In certain areas, rapes also occurred inside towns.
Some women and girls became pregnant as a result of rape.
335. In most of the cases, the involvement of Janjaweed was reported. In many cases, the involvement
of soldiers was also alleged. There were few cases reported of rebels committing rape and sexual
violence.
336. In general, the findings of the Commission confirmed the above reported patterns. However, the
Commission considers that it is likely that many cases went unreported due to the sensitivity of the issue
and the stigma associated with rape. On their part, the authorities failed to address the allegations of rape
adequately or effectively.
1. Rape and other forms of sexual violence committed by the
Janjaweed and/or Government soldiers
a. Rape and other forms of sexual violence during attacks on villages
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337. According to the information reported by various organizations, cases of rape and sexual
violence took place during attacks on villages. In South Darfur, during the two month period from
August to September 2004, out of 120 victims of rape treated by medical professionals, at least 100
cases occurred during attacks on the victim’s villages. In a survey conducted in the Mornei camp in
West Darfur, medical teams treated around 20 victims of sexual violence from April to June 2004. Most
of the cases reportedly occurred during attacks on villages. Further cases of rape were reported during
the Government and Janjaweed attacks on Tawila and its surrounding villages during the first half of
2004. During March 2004 attacks by the Government troops and Janjaweed on Korma, North Darfur,
more than 20 women and young girls were reportedly raped. Further rapes of women were reported
during attacks around Miski, Disa and Um Baru in North Darfur; Azerni, Kornoi, Nertete, and Mukjar in
West Darfur. It has been also reported that 18 women were raped during the attack on Adwa, South
Darfur, at the beginning of December 2004. There are reports that women and girls continue to be
subject to sexual violence during attacks on their villages, including the report of a recent attack on
Hamada on 13 January 2005 in which women were subjected to rape.
338. The findings of the Commission confirm that rape and sexual abuse were perpetrated during
attacks by Janjaweed and soldiers. This included the joint attacks by Government soldiers and Janjaweed
attacks on Dobo, North Darfur, around March 2004; Badi, North Darfur, around February 2004; and
Adwa, South Darfur, in December 2004. It further includes attacks by soldiers on Kalokitting village,
South Darfur and on villages in the Wadi Saleh area, West Darfur, around August 2004, as well as
attacks by Janjaweed on Mongue, North Darfur, around August 2004; Gukor, West Darfur at the end of
2004; Kolonga, West Darfur, around March 2004; Goz Badeen, West Darfur, around August 2003; Um
Naima, West Darfur, in July 2003; and Nabagai, South Darfur, around March 2004. The Commission
interviewed several victims and eye-witnesses who confirmed that during the attacks on Tawila and its
surrounding villages in North Darfur, in February and March 2004, rape and other forms of sexual
violence committed by Janjaweed were prevalent. The Commission spoke with several victims and eyewitnesses,
and conducted on-site examinations which confirmed that many girls were raped by
Janjaweed during the attack on Tawila boarding school. The Commission also found that women were
gang-raped in public following the joint attack by Government soldiers and Janjaweed on Kanjew
village, West Darfur, in January 2004. In another case, the Commission found that the Janjaweed raped
five girls in public during the attack on Abdeika, West Darfur, in October 2003.
Case Study: Attack on a school in Tawila, North Darfur
339. One of the victims of rape during the attack on a boarding school in February 2004, a young girl,
told the Commission that:
At about 6:00 in the morning, a large number of Janjaweed attacked the school. She knew
that they were Janjaweed because of their “red skin”, a term she used for Arabs. They were
wearing camouflage Government uniforms. They arrived in a pickup truck of the same
colour as the uniforms they were wearing. On the day before, she noticed that the
Government soldiers had moved in position to surround the school. When they attacked the
boarding house, they pointed their guns at the girls and forced them to strip naked, took their
money, valuables and all of their bedding. There were around 110 girls at the boarding
school. All the events occurred in the sleeping quarters of the school.
The victim was taken from the group, blindfolded, pushed down to the ground on her back
and raped. She was held by her arms and legs. Her legs were forced and held apart. She was
raped twice. She confirmed that penetration occurred. The rape lasted for about one hour.
Nothing was said by the perpetrators during the rape. She heard other girls screaming and
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thought that they were also being raped. After the rape, the Janjaweed started burning and
looting. (She confirmed the presence of the military in the area, as she had seen military
helicopters used by the army on the same day.)
The victim became pregnant as a result of this rape and later gave birth to a child.
Case Study: Attack on Terga, West Darfur
340. The Commission interviewed another victim who provided information about multiple rapes of
women during an attack on Terga, West Darfur. This was how she described the attack and what
followed:
The village of Terga was attacked in January 2003. A plane bombed the village and then about 40
cars and men on horses arrived. They covered the entire area around Terga. The attackers in the
cars and on the horses were shooting the villagers. They were stealing from the houses. Four young
boys were executed in front of the villagers. The attack was conducted mainly by the military. The
Arab people did the stealing. Soldiers also committed rapes together with the Janjaweed.
When the attack occurred, the women ran to a wadi, where the army surrounded them. The victim
stated that she knew 19 of the women who were raped but that there were many more. She believed
there were around 50 in total. The young girls were raped first. The victim was raped by nine men.
Other women were also raped by many men. The women were kept for six days at the wadi.
b. Abductions and sexual slavery
341. Other sources reported that women and girls were abducted, held in confinement for several days
and repeatedly raped by Janjaweed and soldiers in villages under attack, military camps and hideouts.
Further, torture was reportedly used to prevent women from escaping. In March 2004, Janjaweed and
150 soldiers reportedly abducted and raped 16 young girls in Kutum, North Darfur. During the attacks
on Tawila and its surrounding villages in North Darfur in February 2004, around 35 female students
were allegedly abducted and raped by Janjaweed. Further abductions of women were reported in the
area surrounding El Geneina, West Darfur. Alarming reports were received of mass rape and sexual
violence against women and girls who were confined in Mukjar, West Darfur and Kailek, South Darfur.
Additional abductions and rape of women were reported, amongst others, in the surroundings of Disa
and Silea in West Darfur.
342. The Commission’s findings confirmed the above reported pattern. For instance, the Commission
found that women who went to market or were in search of water in Tarne, North Darfur, were
abducted, held for two to three days and raped by members of the military around March 2003. Notably,
the Government of Sudan had established a large military camp in the vicinity. During the Janjaweed
attack on Mengarassa village, West Darfur, in November 2003, twenty girls were abducted and taken to
the ’Ammar’ camp. The Commission further found that twenty-one women were abducted during the
joint Government armed forces and Janjaweed attack on Kanjew, West Darfur, in January 2004. The
women were held for three months by Janjaweed and some of them became pregnant as a result of rape
during their confinement. During the attack on Mallaga village, West Darfur, in October 2004, the
Janjaweed abducted four girls, one of them only twelve years old. The girls were held for three days,
raped and then released. Women were also abducted and raped in three Janjaweed camps following the
attacks on Korma, North Darfur, in March 2003. The Commission also confirmed that following the
attack on Tawila in February 2004 a group of around 30 female students was abducted by Janjaweed and
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held in an encampment where they were repeatedly raped. Several other women from villages
surrounding Tawila were also brought to this camp by the Janjaweed after their abduction following
attacks on their villages.
Case study: Kailek, South Darfur
343. The Commission interviewed several eyewitnesses who confirmed that following the joint
attacks by Government soldiers and Janjaweed in the area, up to 30,000 people were confined in Kailek,
South Darfur, for about 50 days. Women and children were separated from the men, confined in an area
around the Mosque, and later taken away by their captors to be raped. They were subjected to gang rapes
which lasted for protracted periods of time. Girls as young as 10 years old were raped.
344. One of the female witnesses described the terror of confinement in the area designated by captors
for women and children in Kailek as follows:
“We stayed in one place, we were not allowed to move around. The old women were allowed to
go and get water, and also to go and get food. We were forced to urinate in front of everybody.
We were afraid to use the toilet at night because we were surrounded by the attackers, and they
were on the look-out for women to rape.”
After being raped, some of the women did not have their clothes returned to them and they
were forced to remain naked. An independent source, who witnessed the situation in Kailek
told the Commission: “There were more than 80 cases of rape reported to us by the women
and children kept in the walled area. We also found four women with no clothes. They
covered themselves with a grass mat and were imploring us not to remove it. They said that
if they needed water or food, one of them had to borrow clothes from the other women to go
and fetch water or food.”
Anyone who attempted to assist the victims was either beaten or killed. On one occasion, a husband
attempted to assist his wife. He was so severely beaten that he is now permanently paralysed and is in
Khartoum hospital. These testimonies are fully corroborated by the entire body of material collected by
the Commission, including information obtained through independent observers who witnessed the
situation of the women in Kailek.
Case study: Wadi Tina, North Darfur
345. The Commission interviewed a victim who described how she and her six sisters were abducted
and held in confinement at the Janjaweed camp in Wadi Tina, after the attack on Tawila and the
surrounding villages. The victim, who has been raped 14 times over the period of one week provided the
following information:
At about 6h00 in the morning on 7 January 2003, she was at her home in the village of Tarna.
Around 3,000 Janjaweed riding horses and camels attacked the village. Some of them were in
vehicles. Some were wearing khaki uniforms and some were wearing civilian clothing with white
scarves on their heads. There were around 50 Land Cruisers and pick-up vehicles. All of the vehicles
91
had guns on them. The men on the vehicles were wearing army uniforms. They were wearing the
same uniforms as the Janjaweed were wearing. They were soldiers of the Sudanese army.
The victim saw women were being taken, people being killed, cattle being stolen, and food being
burnt. She further described the following: “Ten Janjaweed came into my house. They took me and
my six sisters who were 15, 16, 17, 19, 20 and 24 years old. They said ‘why are you staying here,
you slaves.’ We did not reply. They were armed and all of them were pointing their guns at us.
While they were in our house, they shot my two brothers. They took us outside and beat us with the
leather straps which they use to control the camels. The beating lasted for 20 minutes.
After being beaten, we were taken to Wadi Tina. They made us walk while they rode their camels.
It took us three hours to get there. During this time they beat us and threatened to kill us. When we
arrived at Wadi Tina, I saw at least 95 women there. We were left in the Wadi with a large group of
women and were guarded by at least 100 armed Janjaweed. All the women were naked. Soon after
our arrival we were forced at gun point to take off our clothing.
Around 8h00 in the morning on the second day at the Wadi, I was raped for the first time. A very
large group of Janjaweed arrived at the Wadi. They selected a woman each and raped them. Over a
period of a week, I was raped 14 times by different Janjaweed. I told them to stop. They said ’you
are women of Tora Bora and we will not stop this.’ We were called slaves and frequently beaten
with leather straps, punched and slapped. I feared for my life if I do not have sex with them. We
were humiliated in front of other women and were forced to have sex in front of them. Other
Janjaweed were watching”
After a week, she was released with four other girls and went back to Tarna village. She has not
seen her sisters since. She did not know the identity of any other women at the Wadi but stated that
three women died there as a result of being raped. The victim did not know the identity of the
perpetrators.
c. Rape and other forms of sexual violence during flight and further
displacement
346. Rape and other forms of sexual abuse were widely reported to continue during flight and further
displacement, including outside as well as inside of various IDP sites. The impact of the violence
committed outside the IDP sites is exacerbated by the fact that women and their families depended on
the collection of firewood for their livelihood and survival. In most of the cases, it was the women and
girls who went outside the camps to search for firewood and water, since they had a better chance to
survive attacks than the men and boys who risked being killed. According to one report, a family from
Magarsa, West Darfur, abandoned their house in February 2004 because of the conflict. The father of
the family stated that during the attempt to flee from their home, they had encountered six Arab men
who raped his 25 year old daughter in front of him, his wife and the young children. He was unable to
defend his daughter as the men threatened him with a weapon. According to another report, two women
were reportedly raped in the IDP camp in Kassab, North Darfur, in June 2004. In April 2004, a group of
40 IDP women went to collect wood outside of Mukjar, West Darfur and was reportedly attacked by six
armed Janjaweed. Some women were badly beaten and at least one woman was raped by four
Janjaweed. During the first week of July 2004, a medical team in Mukjar treated 15 women for serious
injuries sustained in eight separate incidents. In two of these incidents, beatings were followed by rape.
On 22 July 2004, around thirteen women were reportedly raped by Janjaweed when searching for
firewood around the IDP camp near Kass, South Darfur. In July 2004, around 20 women were
reportedly raped by Janjaweed when searching for firewood around the Sisi camp, West Darfur. Further
rapes of women venturing outside IDPs locations, such as Abu Shouk in North Darfur, Ardamata,
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Azarni, Garsila, Mornei, Krinding and Riyadh in West Darfur, and Al Jeer, Derej, Kalma, Kass and
Otash in South Darfur have been reported.
347. The Commission’s findings confirmed that rape and sexual violence continue to be perpetrated
against women and girls during flight and in areas of displacement. Rape by Janjaweed and Government
soldiers surrounding IDP sites have occurred in sufficient numbers to instil fear of such incidents
amongst women and girls, and has led to their virtual confinement inside these sites. The Commission
interviewed victims who have been raped and sexually abused outside the Abu Shouk and Zam Zam
camps in North Darfur, Habillah, Krinding, Masteri, Mornei and Sisi camps in West Darfur, and Kalma
and Derej camps in South Darfur.
348. In one instance, the Commission interviewed two young girls, 12 and 14 years old, who had gone
to collect wood with another five children in November 2004 outside the Abu Shouk camp. The soldiers
raped the two girls, called the children daughters and sons of “Tora Bora,” beat the other children and
threatened to kill them. Following the incident, the children went to complain to a nearby military camp
and described the perpetrators. The two girls went for a medical examination in the El Fashir hospital
and an official complaint was submitted to the local police. The initial response of the local authorities
was inadequate. Upon the insistence of the Commission, the local police investigated the incident and
informed the Commission that nine suspects were detained and that the case is currently with a
prosecutor. Furthermore, the Commission found that there was a prevalent sense of insecurity among
the IDPs in Kabkabiya, North Darfur. In particular, the women and girls collecting firewood feared
leaving Kabkabiya as they had been subjected to rape and sexual violence by the Janjaweed. Even if the
incidents had been reported to the police, the perpetrators appeared to enjoy impunity and the attacks
against women continued. The Commission also interviewed four young women who related two
incidents that occurred in June 2004 during which they were detained on the road from the Kutum
market, North Darfur, while they were returning back to their villages. In each incident, women were
forced to strip at gunpoint, raped by Janjaweed and later were left naked on the road. The circumstances
of the crime indicate that the same perpetrators committed the crimes.
Case study: Flight from Kalokitting, South Darfur
349. The Commission interviewed several eyewitnesses in relation to rapes of three women, one of
whom was killed, while fleeing the attack on their village Kalokitting, South Darfur, around March
2004. The Commission received the following information regarding this incident:
The village was attacked around four in the morning. Men with weapons, wearing khaki and
covering their faces, entered houses. There were many weapons, including Kalashnikov,
Dushka, and GM, as well as green vehicles. The army was there and everybody was wearing
khaki. There were around two to three white and green planes, which came very low. One
white plane was attacking. One of the victims stated as follows: “It was around 04h00 when I
heard the shooting. Three of us ran together. We were neighbours. Then we realised that we
did not bring our gold. When we returned, we saw soldiers. They said stop, stop. They were
several. The first gave his weapon to his friend and said to me to lie down. He pulled me and
threw me on the floor. He took off his trousers. He ripped my dress and there was one person
holding my hands. Then he “entered” [a word for intercourse]. Then the second “entered”, and
the third “entered.” I could not stand afterwards. There was another girl. When he said lie
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down, she said no. Kill me. She was young. She was a virgin. She was engaged. He killed
her.” The third woman who was also there stated that she was raped in the same way.
Case study: outside the Zam Zam IDP camp in North Darfur
350. The Commission also interviewed eyewitnesses of another incident that involved groups of
women who went to sell firewood in the market in El Fashir around October 2004. The Commission
obtained the following information:
Three separate groups of women were returning in the evening from El Fashir to the Zam Zam
camp in North Darfur. One witness was in the first group, which was stopped at a checkpoint
outside El Fashir, held there for some time, and then allowed to proceed. The witness left with
her group which included four other women and two children, and headed towards the Zam
Zam camp. Approximately, two kilometres after the checkpoint, around 20 soldiers dressed in
camouflage uniforms drove up to the group of women and ordered them to stop, while firing
some gunshots. The women were told to get down off their donkeys and lie on the ground. The
witness was holding her sister-in-law’s one year old child who started to cry. One of the
soldiers grabbed the child and threw it away on the side of the road . When one of the older
women in the group asked the soldier why did he do that, he kicked her in the head. Other
soldiers started to beat the other four women, including the witness. Some soldiers held one of
the other women down and started raping her. At the same time, the witness was held down on
the ground by soldiers who also pulled her clothing over her head. Four soldiers then had
vaginal intercourse with her, one after the other. At the time this was occurring, one of the
soldiers said: “You are the women of the war.” The other three women, including the older one,
were also raped in this incident. The soldiers were about finished raping the five women, when
the second group of women who went to El Fashir to sell wood arrived at the same location.
The first group of women was allowed to leave. The witness heard that the women in the
second group were also raped.
Case study: outside the Krinding IDP camp, West Darfur
351. The Commission interviewed two sisters who were raped while cutting firewood in Griri, outside
the Krinding IDP camp, West Darfur, around September 2004. The Commission obtained the following
credible information:
Three months before Ramadan, a group of women, three of them young, were cutting firewood
in Griri, outside the Krinding IDP camp where they have been living for the past ten months.
Around 11h00, four Arab men came to them and told them to sit down. The older man was
wearing khaki and three younger men were wearing Jallabia. The older men hit the witness,
who is 17 years old, six times on her back and eight times on her legs. She still had marks from
the incident [which were verified by the Commission]. The older man then took the witness
away from the other girls and raped her. The three young men were raping other girls. The
witness stated the following: “He took off only my underwear. He took his penis out of his
pants. He did not say anything, he just kept beating me while he raped me. After I was so hurt
and tired, I could not move and others took me to the doctor in Geneina big hospital. I was
bleeding a little. The doctor did a report that I was raped. He also told me that I have something
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broken inside. My eight year old sister was also with me that day and was also raped but not
beaten. I have injuries on my back and leg.”
352. In conclusion, while the Commission was not in a position to ascertain the precise number of
rapes perpetrated, it found that a sufficient number of such crimes have been committed during the
attacks and in the aftermath of the attacks on villages, that these attacks have created fear among women
and girls which has forced them to stay in or to return to their villages of origin, and that this can be
taken as one of the factors that led to their displacement. Particularly outrageous cases of abductions,
confinement and multiple rapes over protracted periods of time have further contributed to spreading
fear. Similarly, the Commission found sufficient evidence that rape and sexual violence continued to be
systematically perpetrated against women during their displacement, so as to perpetuate the feeling of
insecurity among them and fear of leaving the IDP sites.
353. The above patterns appear to indicate that rape and sexual violence have been used by the
Janjaweed and Government soldiers (or at least with their complicity) as a deliberate strategy with a
view to achieve certain objectives, including terrorizing the population, ensuring control over the
movement of the IDP population and perpetuating its displacement. Cases like Kailek demonstrate that
rape was used as a means to demoralize and humiliate the population.
2. Rape and other forms of sexual violence committed by rebels
354. Fewer cases of rape and sexual violence were reportedly committed by the rebels. In November
2004, the SLA allegedly hijacked and for three days held five girls from the Gimir tribe near Kulbus,
West Darfur. During these three days, four of the girls were allegedly raped and one was sexually
abused. Furthermore, there have been allegations that around 60 women and girls from the Beni
Mansour tribe were allegedly raped or assaulted by rebels in the Malam area between February and July
2004.
355. The Commission was unable to investigate the above reports. However, during its own
investigations of incidents involving rebels, the Commission did not find any cases of rape committed by
the rebels.
(b.) Legal Appraisal
356. Cruel, inhuman or degrading treatment or punishment (as well as torture) are prohibited by
several international human rights instruments to which Sudan is a party, including the International
Covenant on Civil and Political Rights,147 the Convention on the Rights of the Child,148 and the African
Charter on Human and Peoples’ Rights.149 The Convention on the Rights of the Child further requires
“State Parties to undertake to protect the child from all forms of sexual exploitation and sexual
147 Article 7.
148 Article 37.
149 Article 5.
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abuse.”150 Furthermore, the right of everyone to the enjoyment of the highest attainable standard of
physical and mental health, including sexual and reproductive health is guaranteed by the International
Covenant on Economic, Social and Cultural Rights.151
357. Common article 3 to the Geneva Conventions binds all parties to the conflict and, inter alia,
prohibits “violence to life and person, in particular… cruel treatment and torture”152 and “outrages upon
personal dignity, in particular, humiliating and degrading treatment.”153 While Sudan is not a party to
the Additional Protocol II to the Geneva Conventions, some of its provisions constitute customary
international law binding on all parties to the conflict. This includes prohibition of “rape, enforced
prostitution and any form of indecent assault,”154 and “slavery”155.
358. Rape may be either a war crime, when committed in time of international or internal armed
conflict, or a crime against humanity (whether perpetrated in time of war or peace), if it is part of a
widespread or systematic attack on civilians; it may also constitute genocide. Rape has been defined in
international case law (Akayesu, at § 597-598; Delali􀃼 and others, at § 479; Furundžija at §185, and
Kunarac and others (at §§ 438-60), in the judgment of the European Court of Human Rights in M.C. v.
Bulgaria (judgment of 4 December 2003, at §§ 88-108 and 148-187) and in the “Elements of Crimes”
adopted by the International Criminal Court. In short, rape is any physical invasion of a sexual nature
perpetrated without the consent of the victim, that is by force or coercion, such as that caused by fear of
violence, duress, detention or by taking advantage of a coercive environment.156
359. In addition to rape, international law also prohibits and criminalizes, as either a war crime or a
crime against humanity, any serious act of gender violence causing the victim to engage in an act of
sexual nature by force, or by threat of force or coercion against the victim or another person, or by
taking advantage of a coercive environment. The rationale for the criminalization of gender violence
even when it does not take the form of coercive penetration of the human body is that such acts
constitute an extreme form of humiliation and debasement of the victim, contrary to the most elementary
principles of respect for human dignity.
360. It is apparent from the information collected and verified by the Commission that rape or other
forms of sexual violence committed by the Janjaweed and Government soldiers in Darfur was
widespread and systematic and may thus well amount to a crime against humanity . The awareness of
the perpetrators that their violent acts were part of a systematic attack on civilians may well be inferred
from, among other things, the fact that they were cognizant that they would in fact enjoy impunity. The
Commission finds that the crimes of sexual violence committed in Darfur may amount to the crime of
150 Article 34(a).
151 Article 12.
152 Article 3(1)(a).
153 Article 3(1)(c ).
154 Article 4(2)(e ).
155 Article 4(2)f).
156 See Akayesu, at §§ 597-598, 686-688: “[R]ape is a form of aggression and . . . the central elements of the crime of
rape cannot be captured in a mechanical description of object and body parts . . . . Like torture, rape is used for such
purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person. Like
torture, rape is a violation of personal dignity. . . .” “The Chamber defines rape as a physical invasion of a sexual nature,
committed on a person under circumstances which are coercive. Sexual violence which includes rape, is considered to
be any act of a sexual nature which is committed on a person under circumstances which are coercive.” “Sexual
violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or
even physical contact.”
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rape as a crime against humanity, and it further finds that some in some instances the crimes committed
in Darfur may amount to the crime of sexual slavery as a crime against humanity. Furthermore, the
Commission finds that the fact that rape and other forms of sexual violence were conducted mainly
against three “African” tribes is indicative of the discriminatory intent of the perpetrators. The
Commission therefore finds that the elements of persecution as a crime against humanity may also be
present.
361. The Commission, as noted, did not find any case of rape committed by the rebels. However, if
rapes by rebel actors did in fact did take place, they would constitute war crimes.
(viii.) Torture, outrages upon personal dignity and cruel, inhuman or degrading
treatment.
(a.) Factual findings
362. Incidence of torture and inhuman and degrading treatment of civilians in Darfur has been
reported by several organizations. Rape, burning and beating, stripping women of their clothes, verbal
abuse and humiliation of civilians were reported to have occurred frequently during attacks by the
Janjaweed and the Government forces. Cruel and inhuman methods of killings, such as two cases of
killing by crucifixion were reported by one organization. Acts of torture and cruel, inhuman and
degrading treatment of civilians placed under forced confinement by Janjaweed and Government forces
following attacks on villages were also reported. Some sources have reported torture of captured enemy
combatants by both the Government and the rebels.
363. Some organizations have also reported cases of torture of individuals, arrested in connection with
the conflict in Darfur, during their detention by officials of the National Intelligence and Security
Services. It was reported that physical and mental suffering was systematically inflicted on the detainees
as punishment for their suspected affiliation with or support of rebels, and with the purpose of obtaining
information or confessions.
1. Torture and other cruel, inhuman or degrading treatment commited by the
Government of the Sudan and/or Janjaweed
(a.)Torture and other cruel, inhuman or degrading treatment during attacks
364. The Commission has established facts through its own investigations that confirm torture, cruel
and degrading treatment, and inhumane acts committed as a part of the systematic and widespread
attacks directed at the civilian population conducted by the Janjaweed and Government forces. Although
Government forces did not generally participate directly in the commission of such acts, the Janjaweed
committed the acts mostly in their presence, under their protection and with their acquiescence.
365. Inhumane acts such as throwing people, including children, into fire were committed by the
Janjaweed during several attacks. Five such incidents were reported from Urbatete, Tarabeba, Tanako,
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Mangarsa and Kanjew villages in West Darfur. In most of these incidents victims were burnt to death.
Extreme mental torture was inflicted on many mothers who saw their children burn alive after they were
snatched from their arms by the Janjaweed and thrown into the fire. Houses were set on fire with the
inhabitants still inside. Most of the victims in such incidents were children. Inhumane forms of killings
used by the Janjaweed include crucifixion of victims during the attack on the village of Hashab in North
Darfur in January 2004. In one case reported from Deleba in West Darfur, the victim was beaten to
death.
366. The persons under attack, predominantly from African ribes, were commonly subjected to
beatings and whipping by the Janjaweed. These included women and young girls. In many incidents
victims were subjected to severe beatings as a form of torture. The Commission has seen several victims
who still bear scars of these beatings, and some who suffered permanent physical damage as a result.
Stripping women of their clothes and the use of derogatory language as a means of humiliation and
mental torture were also common to many incidents.
367. Particularly shocking were the acts of torture and cruel and degrading treatment that
accompanied other serious crimes committed by Government forces and the Janjaweed against the
civilian population during the Kailek incident in South Darfur. During the attack as well as the
subsequent forced confinement of the population, several persons were subjected to severe torture in
order to extract information about rebels, as punishment or to terrorize the people. The Commission has
heard credible accounts that those captured by the assailants were dragged along the ground by horses
and camels from a noose placed around their necks. Witnesses described how a young man’s eyes were
gouged out. Once blinded, he was forced to run and then shot dead. The victim population was watched
over by guards who used the whips they carried to control and humiliate them. Several witnesses have
testified that abusive and insulting terms were used against the detainees, often calling them “slaves”.
Their suffering was compounded by the scarcity of food and water, and the unhygienic conditions in
which they were confined in the small, controlled spaces, within which they were forced to relieve
themselves, because of restrictions on their movements. Several hundred children are reported to have
died during the internment from an outbreak of disease.
(b) Torture and other cruel, inhuman or degrading treatment of detainees by
the National Security and Intelligence Service and by the Military
Intelligence.
368. The Commission gathered substantial evidence of the systematic use of torture by both the
National Security and Intelligence Service as well as the Military Intelligence against detainees in their
custody. In addition to other reliable information, the Commission has recorded testimony of those
arrested in relation to the conflict in Darfur and currently under detention in Khartoum regarding torture
and inhuman and degrading treatment to which they have been subjected. These include detainees kept
by the National Security and Intelligence Service in a secret place of detention in Khartoum which the
Commission discovered and inspected.
369. The Commission heard shocking accounts of physical and mental torture and cruel and degrading
treatment to which these detainees had been subjected, and the inhuman conditions of detention in which
they were kept. Most of them were repeatedly beaten, whipped, slapped and, in one case, kept under the
scorching sun for four days. Three of the persons were suspended from the ceiling and beaten, one of
them continuously for ten days. The Commission also met with another individual who had been
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tortured by the National Security and Intelligence Service for three days after his arrest from an IDP
camp in West Darfur. He stated that he had been suspended from the ceiling and beaten repeatedly. The
Commission saw the scars left on the bodies of these detainees and prisoners as signs of the torture
inflicted on them. In most of these cases torture, including threats to life and physical integrity, were
used to coerce information or extract confessions. They were blindfolded with their hands tied whenever
they were transported from one place of detention to another, and sometimes food was denied to them
for long periods of time.
370. The detainees kept in the secret place of detention, mentioned above, had been confined in cells
with barred windows 24 hours a day, without any outdoor exercise (the cells were occupied by a varying
number of detaines, ranging from 1 to 11). The detainees were not allowed regularly to use an outside
toilet, situated on the same floor, and were thus, among other things, forced to use bottles to urinate
inside their cells. Proper medical treatment or diet had not been made available to some of those who
were suffering from serious health problems.
371. The Commission was also able to visit a Military Intelligence Detention Unit situated within the
Army Headquarters in Khartoum. The Commission had been granted access to visit some military
officers held in a section of the detention centre, but it soon discovered the existence of another section
in the same detention centre, where no less than 40 detainees were held, most of them soldiers and noncommissioned
officers (corporal, sergeant, etc). All were held in custody in connection with the conflict
in Darfur (some were from Darfur, others had allegedly been arrested because they had talked critically
of the Government’s policy in Darfur). The detainees were held in 20 cells (a 21st cell was empty)
facing a corridor in a closed area. The cells are very cramped (their size being of about 1m by 2 m., or 1
m by 2.5-3m), with very high ceilings and some narrow openings at the top. Thirteen cells contained two
detainess each, while 7 cells had only one detainee each. Most detainees were soldiers but a few cells
contained soldiers and civilians. The cells have no lights, and the metal ‘window’ of the door is kept shut
for most of the day, only to be opened for 10-15 minutes during prayer time (five times a day). The
detainees therefore live in almost complete darkness for most of the day and night, and for periods
reaching months. The cells, with concrete walls and floor, often contain no mattress or blanket, but only
a mat. No exercise in the open air is allowed to the detainees. They hardly ever go out of their cell
except for relieving themselves in four latrines at the end of the corridor. A urine bottle is hung on the
door knob. The detainees had been given soap and\or tooth paste the day of the visit of the Commission,
for the first time in months.157
372. One detainee showed some scars on his back and arm, the result of beatings. Other witnesses
mentioned that they often heard screams coming from that other, secret, section of the Centre.
373. Other detainees, mainly officers, were held in larger cells, and seemed to have access to a small
prayer area. Similarly to what has been described above, none of the detainees met at the Military
Intelligence Detention Centre had been provided with any required medical treatment. Their families do
not know of their whereabouts.
157 At the end of the visit of this area of the Detention Centre, an officer that accompanied the Commission when it did
not interview inmates in private, insisted that Commissioners should visit a new sets of rooms ready to be used with a
view to replacing in part the sets of tiny cells. The Commission visited this new area, consisting of relatively spacious
rooms where up to 19 detainees could be held, and expressed the hope that the transfer should occur as soon as possible,
so that at least 19 detainees of the 31 currently held in the tiny cells could be accomodated there.
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2. Torture and other cruel, inhuman or degrading treatment commited by the
rebels
374. As noted, some sources have reported torture of captured enemy combatants by the rebels. The
Commission, however obtained no information indicating that this had taken place.
(b.) Legal appraisal
375. A number of international human rights instruments prohibit the use of torture. The Universal
Declaration of Human Rights, the ICCPR, the Convention on the Rights of the Child and the African
Charter on Human and Peoples’ Rights contain provisions prohibiting torture. The Sudan is party to the
last three instruments, and as such is legally bound by them. The prohibition contained in the above
mentioned international instruments is absolute and non-derogable in any circumstances. Furthermore,
under the International Covenant on Civil and Political Rights, even in situation of public emergency no
derogation from the prohibition of the use of torture can be made.
376. In addition, the prohibition on torture is also considered a peremptory norm of international law,
or in other words a norm of jus cogens. As such it cannot be derogated from by contrary international
agreement and a fortiori by a national law. That the prohibition of torture in customary international law
has such a legal nature was held by the ICTY in Furundžija (at §144, and § 153-157), by the House of
Lords in Pinochet,158 and also affirmed by the United Nations Special Rapporteur for Torture 159
377. Torture and cruel treatment are prohibited under common article 3 of the Geneva Conventions.
Torture is absolutely prohibited by the Geneva Conventions, both in internal and international armed
conflicts.
378. In addition to torture practised in the form of beating and severely and inhumanely ill-treating
detainees, mentioned above, the Commission considers, that conditions in the Military Intelligence
Detention Centre witnessed in Khartoum described above amounts to torture. To compel persons in
military custody to live 24 hours a day in extremely small cells similar to cages, in pitch dark, and no
outdoor exercise at all, in itself amounts to torture and thus constitutes a serious violation of
international human rights and humanitarian law
379. In connection with the conflict in Darfur, torture has been carried out on such a large scale and in
such widespread and systematic manner not only during attacks on the civilian population, where it was
inextricably linked with these attacks, but also in detention centres under the authority of the National
Security and Intelligence Service and the Military Intelligence. The Commission finds that the
occurrences of torture may therefore amount to a crime against humanity and, given the discriminatory
nature of the attacks, may also involve the crime of persecution as a crime against humanity.
158 Pinochet (Third), speeches by Lord Browne Wilkinson (in 38 International Legal Materials, 1999, at p. 589), Lord
Hope of Craighead (ibid., p. 626), Lord Millet (ibid, p. 649-50).
159 E/CN.4/1986/15, §3.
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(ix.) Plunder
(a.) Factual findings
380. The Commission has noted that the majority of the reports it has examined provide very similar
accounts of systematic and widespread looting and plunder of the property of civilians by Janjaweed, in
particular in the context of attacks as described above. These reports refer to witness accounts about
Arabs or Janjaweed who attack, often with the support of Government troops. Looting itself is generally
ascribed only to the Janjaweed, Arab or unspecified “men in uniform”, while there are no incidents of
looting clearly reported to have been committed by Government forces alone. The majority of the
reported incidents involve the looting of cattle, food and other private property and occur during attacks
on villages which often involve the killing of civilians and the destruction of the villages themselves.
The looting of the property of IDPs in places to which they have been displaced has also been recorded,
involving the looting of plastic sheeting, food and other household items by Janajweed.
381. In addition, a few incidents of looting have been reported by other sources where victims have
identified the perpetrators as the SLM/A, JEM or simply as rebels. These incidents have mainly been
directed against vehicles, either individual vehicles or vehicles in a convoy, and have mostly involved
the looting of food and supplies. In a very few cases it was also reported that the rebels committed acts
of looting during an attack on a village, in particular in West Darfur. There were a number of looting
incidents of humanitarian vehicles and other type of banditry where the perpetrators were not identified
by witnesses.
382. In the incidents reported, there seems to be no other specific geographic or temporal pattern
connected to the looting of property, other than the patterns identified under the sections dealing with the
crimes of destruction of villages and attacks, namely that the victims predominantly belong to the Fur,
Massalit, Zaghawa and other African tribes.
383. During its missions to the Sudan and Darfur, the Commission’s findings were very much in
conformity with the reports examined by the Commission. Practically all of the incidents investigated by
the Commission involved the looting of private property of civilians by Janjaweed in the context of
combined Janjaweed and Government attacks against villages.
384. Cases of armed banditry were also reported, involving the looting of civilians in vehicles and
other civilian targets. Most often, the perpetrators were unidentified.
385. A particular pattern recorded by the Commission was the fact that the IDPs and refugees
interviewed would place great emphasis on the crime of looting, and explain that the Janjaweed had
taken everything these persons had owned, involving all goods necessary to sustain life in the difficult
conditions in Darfur, including pans, cups and clothes, as well as livestock, representing the key source
of income of the affected people. Often, the IDPs and refugees had compiled detailed lists of the items
looted which were presented to the Commission.
386. As examples of the witness testimonies collected by the Commission, the following two
incidents are typical:
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On Saturday 27 December 2003, in the village of Domai Tamait in South Darfur: “We were
attacked in the early morning around the time of morning prayer which is around 05.30.
[witness shows bullet wound in leg]. The attackers were on horses and camels some with
uniforms. They killed 17 people, including 2 women and 2 boys, and 18 persons were
injured. They looted about 1,150 cattle and about 800 sheep and goats”.
In March 2004, in Dobo village in North Darfur: “They started burning everything and
stealing our belongings. We were attacked the same day the plane came, they bombed 5 cars
and the Janjaweed looted the village. They took away our cattle and belongings”.
387. The Commission also investigated looting in the context of attacks by Janjaweed during August
and September 2003, in the Masteri locality (West Darfur), where 47 villages had been attacked and
Janjaweed had committed acts of looting. In one of the incidents, in Korcha - Turgu village, early in the
morning, sometime in August 2003, hundreds of Janjaweed Arabs attacked the village. They were
wearing green army uniforms and riding horses and camels. They surrounded the village and started
shooting at men and boys. Six (6) men were killed and buried in single graves. The day before the attack
a helicopter and an Antonov were seen flying above the village. The attackers stole all livestock. The
village was burned and people sought refuge in Masteri town.
388. The Commission also found cases of looting committed by the rebel movements. In particular
during attacks against police stations and other Government installations, where rebels looted arms from
the Government. Usually these attacks were specifically targeted at the Government installations so as to
obtain weapons and ammunition, which the rebels needed in their fight. The rebels themselves
confirmed this practice to the Commission. In addition, the Commission found a few cases of looting of
private property committed by the rebels. For instance, in October and December 2003 the JEM attacked
Kulbus in West Darfur as described above, where they looted shops in the market. A number of cases of
looting of humanitarian convoys were also noted by the Commission, although it was not possible to
confirm the identity of the perpetrators.
389. In conclusion, and in conformity with most of the incidents reported by other sources, the
Commission found that the majority of cases involving looting were carried out by the Janjaweed and in
a few cases by the Government forces. Looting was mainly carried out against African tribes and usually
targeted property necessary for the survival and livelihood of these tribes. The rebel movements also
engaged in acts of looting, mainly targeting police stations so as to obtain weapons; on a few occasions
the rebels also targeted private property.
(b.) Legal Appraisal
390. As noted above under customary international law the crime of plunder or pillage is a war crime.
It consists of depriving the owner, without his or her consent, of his or her property in the course of an
internal or international armed conflict, and appropriating such goods or assets for private or personal
use, with the criminal intent of depriving the owner of his or her property.
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391. The pillage of villages and the appropriation of livestock, crops, household goods and other
personal belongings of the inhabitants by the Government forces or the militias under their control no
doubt amounts to a war crime.
392. Based on the information available to the Commission, it would appear that the looting carried
out mainly by the Janjaweed in the context of attacks against villages, has been conducted on a large
scale and has been condoned by the Government of the Sudan through the propagation of a culture of
impunity and the direct support of the Janjaweed.
393. In addition, as is the case with the destruction of villages, the Commission finds that pillaging,
being conducted on a systematic as well as widespread basis mainly against African tribes, was
discriminatory and calculated to bring about the destruction of livelihoods and the means of survival of
the affected populations. Hence, it could very well constitute a form of persecution as a crime against
humanity.
394. The Commission also finds it plausible that the rebel movements are responsible for the
commission of the war crime of plunder, albeit on a limited scale.
(x.) Unlawful confinement, incommunicado detentions and enforced disappearances
(a.) Factual findings
395. Reports from other sources reviewed by the Commission contained information on abductions,
unlawful confinement and detention of civilians occurring during and after attacks by the Janjaweed or
Government forces, as well as by the rebels. Many of the reports pertain to the abduction of women.
While incidents were reported, very few of the accounts contained much detail.
396. However, through its own investigations the Commission was able to gather more substantial
information on enforced disappearances. This information confirms the abduction and enforced
disappearances conducted by Janjaweed following attacks on villages. In many of the cases women and
men were abducted or disappeared, many without any trace. The Commission has also established that
Government armed forces, the state security apparatus and military intelligence are responsible for
unlawful confinement and detention of civilians. Furthermore, the Commission has received credible
information which demonstrates a pattern of unlawful confinement of individuals within IDP camps.
Many IDPs with whom the Commission met were unable to move even a few meters from their camp
for fear of attacks, including rape and killing, by Janjaweed. The Commission heard credible testimonies
from women who had been attacked, beaten and in some cases raped, while fetching firewood or water
outside the camp. In some cases, IDPs were prevented from accessing their cattle and crops nearby, due
to the threat of attacks outside the camps by Janjaweed. This pattern is reflected in the following witness
testimony from Fato Barno, North Darfur:
The people from all surrounding villages of Fato Barno are now living in Fato Barno IDP camp
in very distressed condition. We want to go back to villages and live there. But the villages are
not safe to live. The Janjaweed are still very active on the outskirts of our IDP camp. The people
living in our IDP camp often face attack from Janjaweed when they go out of the camp. There is
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a Government police camp nearby our camp but the police have failed to protect our people from
the Janjaweed attack. Two months ago, Janjaweed attacked my uncle and his sister when they
went outside Fato Barno IDP camp towards the village of Krene. Janjaweed killed my uncle’s
sister and shot my uncle in his right shoulder and right leg.
397. Abduction of women by Janjaweed was also found to be a part of some of the incidents of
attacks investigated by the Commission, including in Tawila, North Darfur, and Mallaga, Mangarsa and
Kanjew in West Darfur. Those who escaped or were eventually released were able to relate the enforced
confinement, sexual slavery, rape and torture that they had to suffer. As a general pattern, women were
forcibly taken from their villages and kept at Janjaweed camps for a period of time, some times as long
as three months, before they were either released or managed to escape captivity.
398. In some incidents of attacks by Janjaweed men and boys were also abducted and, in many of
these cases are still missing. The Commission received evidence that civilians have been abducted by
leaders of the Janjaweed and detained in camps that the Commission has identified where they were
tortured and used for labour. During pre arranged monitoring visits of independent observers, these
civilians were taken out of the camp and hidden. The Commission has credible evidence that the military
is in control of these camps and army officers were aware of the illegal detention of civilians in the
camp. In one case a civilian was seized by the Janjaweed after an attack on his village, was kept in
captivity in a Janjaweed camp and later shifted to military camp in the area.
399. The most serious cases of enforced disappearances involved the disappearance of civilians by
security and intelligence apparatus, both civil and military. The Commission received credible
information that several individuals were taken away by military intelligence or security operators.
While some of these individuals subsequently returned, many remain unaccounted for. Those who did
return have given credible testimony of the presence of many of those missing in unofficial and secret
places of detention maintained by the security apparatus in different locations in the Darfur region.
400. In one case, during a joint attack in March 2004 by the Janjaweed and Government armed forces
on several villages around Deleij in the Wadi Saleh area of West Darfur, 300 people were seized and
taken away by the Government forces. Almost half of these persons are still missing and many are
feared to have been killed.
401. Illegal arrest and detention of individuals appears to be common practice in operations by the
state security apparatus relating to the conflict in Darfur. The Commission met with persons held in
secret detention. These detainees included students, lawyers and traders. In many of these cases their
families were unaware of their arrest or of their whereabouts. Amongst them was one 15 year old boy
who had been arrested in Nyala, North Darfur, in November 2004 when he was returning home from
work. His family did not know of his arrest or of his whereabouts. He was epileptic, and had not
received any medical help since his detention. All of the detainees were held incommunicado. Except for
the case mentioned above, all had been detained for more than three months, and in one case for almost
a year, without any charge. They had never been produced before a court, nor allowed to see a lawyer.
402. The Commission has also received credible information on cases of abduction by the rebels. In
one case of rebel attack on Kulbus, towards the end of 2003, 13 men were abducted and are still missing.
In another attack on a village in Zalatia area in West Darfur, three children were abducted by a rebel
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group. These children are still missing. The Commission received further information on the abduction
by rebels of individuals from Fata Borno, Magla, and Kulkul. The rebels accused these persons of
collaborating with Government and Arab tribes. The Commission received credible information that
these persons were tortured and subjected to cruel, inhuman and degrading treatment. In other cases
individuals were abducted after their vehicles were seized and taken by the rebel groups. Both the SLA
and JEM have been named as those responsible for these incidents.
(b.) Legal appraisal
403. The right to liberty and security of person is protected by Article 9 of the ICCPR. The provisions
of this Article are to be necessarily read in conjunction with the other rights recognized in the Covenant,
particularly the prohibition of torture in Article 7, and article 10 that enunciates the basic standard of
humane treatment and respect for the dignity of all persons deprived of their liberty. Any deprivation of
liberty must be done in conformity with the provisions of Article 9: it must not be arbitrary; it must be
based on grounds and procedures established by law; information on the reasons for detention must be
given; and court control of the detention must be available, as well as compensation in the case of a
breach. These provisions apply even when detention is used for reasons of public security.
404. An important guarantee laid down in paragraph 4 of Article 9 is the right to control by a court of
the legality of detention. In its General Comments the Human Rights Committee has stated that
safeguards which may prevent violations of international law are provisions against incomunicado
detention, granting detainees suitable access to persons such as doctors, lawyers and family members. In
this regard the Committee has also stressed the importance of provisions requiring that detainees should
be held in places that are publicly recognized and that there must be proper registration of the names of
detainees and places of detention. It follows from the Comments of the Committee that for the
safeguards to be effective, these records must be available to persons concerned, such as relatives, or
independent monitors and observers.
405. Even in situations where a State has lawfully derogated from certain provisions of the Covenant,
the prohibition against unacknowledged detention, taking of hostages or abductions is absolute. Together
with the human right of all persons to be treated with humanity and with respect for the inherent dignity
of the human person, these norms of international law are not subject to derogation.
406. The ultimate responsibility for complying with obligations under international law rests with the
States. The duty of States extends to ensuring the protection of these rights even when they are violated
or are threatened by persons without any official status or authority. States remain responsible for all
violations of international human rights law that occur because of failure of the State to create
conditions that prevent, or take measures to deter, as well as by any acts of commission including by
encouraging, ordering, tolerating or perpetrating prohibited acts.
407. The importance of determining individual criminal responsibility for international crimes
whether committed under the authority of the State or outside such authority stands in addition to State
responsibility and is a critical aspect of the enforceability of rights and of protection against their
violation. International human rights law and humanitarian law provide the necessary linkages for this
process of determination.
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408. With regard to international humanitarian law, common Article 3 of the Geneva Conventions
prohibits acts of violence to life and person, including cruel treatment and torture, taking of hostages and
outrages upon personal dignity, in particular, humiliating and degrading treatment.
409. According to the Statute of the International Criminal Court, enforced disappearance means the
arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a
State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to
give information on the fate or whereabouts of those persons, with the intention of removing them from
the protection of the law for a prolonged period of time.160 When committed as part of a widespread or
systematic attack directed against any civilian population, with knowledge of the attack, these acts may
amount to a crime against humanity. 161
410. The abduction of women by Janjaweed may amount to enforced disappearance as a crime against
humanity. The incidents investigated establish that these abductions were systematic, were carried out
with the acquiescence of the State, as the abductions followed combined attacks by Janjaweed and
Government forces and took place in their presence and with their knowledge. The women were kept in
captivity for a sufficiently long period of time, and their whereabouts were not known to their families
throughout the period of their confinement. The Commission also finds that the restraints placed on the
IDP population in camps, particularly women, by terrorizing them through acts of rape or killings or
threats of violence to life or person by the Janjaweed, amount to severe deprivation of physical liberty in
violation of rules of international law.
160 Rome Statute of the International Criminal Court, article 7(2)(i). Similarly, the Declaration on the Protection of All
Persons from Enforced Disappearances defines an enforced disappearance as when ‘persons are arrested, detained or
abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of
Government, or by organized groups, or private individuals acting on behalf of, or with the support, direct or indirect,
consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons
concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection
of the law.’
161 The elements of the crime of enforced disappearance relevant to the Commissions findings are that the perpetrator
(a) Arrested, detained or abducted one or more persons; or
(b) Refused to give information on the fate or whereabouts of such person or persons.
2. Such refusal was preceded or accompanied by the deprivation of freedom.
3. The perpetrator was aware that such refusal was preceded or accompanied by that deprivation of freedom.
4. Such arrest, detention or abduction was carried out by, or with the authorization, support or acquiescence of, a State
or a political organization.
5. The refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such
person or persons was carried out by, or with the authorization or support of, such State or political organization.
6. The perpetrator intended to remove such person or persons from the protection of the law for a prolonged period of
time.
7. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
8. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic
attack directed against a civilian population
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411. The Commission also finds that the arrest and detention of persons by the State security
apparatus and the Military intelligence, including during attacks and intelligence operations against
villages, apart from constituting serious violations of international human rights law, may also amount to
the crime of enforced disappearance as a crime against humanity. These acts were both systematic and
widespread.
412. Abduction of persons during attacks by the Janjaweed and their detention in camps operated by
the Janjaweed, with the support and complicity of the Government armed forces amount to gross
violations of human rights, and to enforced disappearances. However, the Commission did not find any
evidence that these were widespread or systematic so as to constitute a crime against humanity.
Nevertheless, detainees were subjected to gross acts of violence to life and person. They were tortured or
subjected to cruel and humiliating and degrading treatment. The acts were committed as a part of and
were directly linked to the armed conflict. As serious violations of Common Article 3 of the Geneva
Conventions, binding on the Sudan, the Commission, finds that the acts constitute war crimes.
413. Abduction of persons by the rebels also constitute serious and gross violations of human rights,
and amount to enforced disappearance, but the Commission did not find any evidence that they were
either widespread or systematic in order to constitute a crime against humanity. The Commission,
nevertheless, has sufficient information to establish that acts of violence to life and person of the
detainees were committed in the incidents investigated by the Commission. They were also subjected to
torture and cruel, inhuman and degrading treatment. The acts were committed as a part of and directly
linked to the armed conflict and, therefore, constitute war crimes as serious violations of the Common
Article 3 of the Geneva Conventions.
(xi.) Recruitment and use of children under the age of 15 in armed hostilities
(a.) Factual findings
414. There have been some reports by other sources of the use of child soldiers by the two rebel
groups JEM and SLA. These reports, however, contained no details regarding, for instance, the manner
of their recruitment or the area of their deployment. The Government of the Sudan also made this
allegation against the rebels, but did not produce any concrete information or evidence that could assist
the Commission in making a finding of fact on this issue.
415. Inquiries made by the Commission indicate that both JEM and SLA have recruited children as
soldiers. There is, however, no indication that these are forced recruitments. These children have been
seen in uniforms and carrying weapons in and around the rebel camps. Independent observers confirmed
the presence of child soldiers in areas of conflict. While the Commission cannot rule out their
participation in combat, it did not receive credible information on deployment of child soldiers in armed
combat.
416. In its meetings with leaders of both rebel groups, the Commission did confront them with these
allegations. Both groups deny the use of children in armed combat. The SLA leadership does not deny
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that children are living in some of their camps. However, they deny that these are child soldiers or take
any part in armed hostilities. According to them, these children were orphaned as a result of the conflict
and the SLA takes care of them. The Commission does not find this explanation convincing. As stated
above, different sources have confirmed that the children are in uniform and carry weapons. The
Commission, therefore, cannot rule out their engagement in combat.
(b.) Legal appraisal
417. As stated above, an international customary rule has evolved on this matter to the effect that it is
prohibited to use children under 15 in armed hostilities. The Sudan has also ratified Convention 182 of
the International Labour Organization concerning the Prohibition and Immediate Action for the
Elimination of the Worst Forms of Child Labour, which prohibits the “forced or compulsory recruitment
of children for use in armed conflict”. The Convention defines children as all persons under the age of
18. Furthermore, the rebels, like the Government of the Sudan, are bound by Article 8 of the Protocol on
the Enhancement of the Security Situation in Darfur in Accordance with the N’Djamena Agreement, of
9 November 2004. Under this provision, “The Parties shall refrain from recruiting children as soldiers or
combatants, consistent with the African Charter on the Rights and Welfare of Children, the Convention
on the Rights of the Child (CRC) and the Optional Protocol to the CRC on the Involvement of Children
in Armed Conflict”.
418. It follows that if it is convincingly proved that the Government or the rebels have recruited and
used children under 15 in active military hostilities, they may be held accountable for such a crime.
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VI. ACTION OF SUDANESE BODIES TO STOP AND REMEDY VIOLATIONS
419. The Government of the Sudan was put on notice concerning the alleged serious crimes that are
taking place in Darfur. It was requested not only by the international community, but more importantly
by its own people, to put an end to the violations and to bring the perpetrators to justice. While several
Government officials acknowledged that serious violations of human rights and humanitarian law took
place in Darfur, they maintained however that they have been acting responsibly and in good faith to
stop the violence and address the crisis. Some argued that while it was sometimes argued that the
Government was unable to deal with all the problems, nobody could claim that it was unwilling.
420. The section below assesses the effectiveness of the measures taken by the Government of the
Sudan particularly to investigate these crimes and to bring their perpetrators to justice. It focuses on the
role of law enforcement agencies in particular, particularly the police, examines some aspects of the
legal and judicial system, and assesses some extra-judicial mechanisms such as the National
Commission of Inquiry and the Rape Commissions.
1. Action by the police
421. The role of the police in the current conflict is far from clear. The Government claims that this
institution was weakened as a result of the conflict in Darfur. Attacks on police stations and garrisons
and looting of weapons by the rebels have been an important feature of this insurgency. In fact, the
Government claims that between January 2003 and November 2004, 685 policemen were killed by
rebels, 500 were injured, 62 were missing, and 1247 weapons were looted from police stations.162 It
states that this resulted in a breakdown of law and order and encouraged banditry and crime.
422. Normally, in an international armed conflict the civil police force does not formally take part in
the hostilities and can, at least theoretically, be considered as a non-combatant benefiting from the
safeguards and protections against attack. However, in the particular case of the internal conflict in
Darfur, the distinction between the police and the armed forces is often blurred. There are strong
elements indicating occurrences of the police fighting alongside Government forces during attacks or
abstaining from preventing or investigating attacks on the civilian population committed by the
Janjaweed. There are also widespread and confirmed allegations that some members of the Janjaweed
have been incorporated into the police. President El-Bashir confirmed in an interview with international
media that in order to rein in the Janjaweed, they were incorporated in “other areas”, such as the armed
forces and the police.163 Therefore, the Commission is of the opinion that the ‘civilian’ status of the
police in the context of the conflict in Darfur is questionable.164
423. Victims, however, sometimes also attributed a positive role to the police. They told the
Commission that the police were indeed targeted during the attacks on villages, but they mainly blamed
the Janjaweed for these actions. Also while victims often express lack of confidence in the ability and
162 Figures provided by a Ministery of Interior Committee to the Commission on 19 November 2004.
163 See interview on CNN of 31 August 2004, transcript at
http://edition.cnn.com/2004/WORLD/africa/08/31/amanpour.bashir/index.html; accessed on 2 January 2005.
164 The situation is different for the few reported cases where the Janjaweed are alleged to have killed police officers. In
these cases, no legal justification can be found in international humanitarian law. The Janjaweed engaging in the armed
conflict are siding with the Government, and thus with the police.
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willingness of the Government to protect them, the police was often cited as an exception to this trend.
The reason is perhaps that apart from its leaders, most of the police in Darfur were Darfurians. Some
witnesses informed the Commission that during attacks by the Janjaweed, the police, often small in
numbers, attempted to protect the villagers, but were often ill-equipped and heavily outnumbered. One
example was an attack on Molli (Masaalit tribe) by the Janjaweed on 23 April 2003 - a market day.
Market stalls were totally destroyed and livestock looted. Police made arrests of seven Janjaweed, but
they were released by a court order, ostensibly for lack of evidence.
424. That the Janjaweed overpower the police is a trend that started even before the current crisis and
could be detected from information provided by the Government itself. For instance, the judgment in a
case known as Jagre al-Hadi al Makbul and others describes how a combination of the police and
armed popular forces numbering 39 left the inhabitants of Thabit at the mercy of a large contingent of
‘Fursan’ attackers.165 The case involves the two Arab tribes of Maalia and Rizigat. The facts of the case
are that a Rizigat member of the national security was killed in a fight with two Maalia policemen.
Forty days after the event, 700 to 800 Fursan in uniform and equipped with weapons gathered to revenge
his death. They attacked and killed 54, wounding another 24 and burning houses before retreating with
looted cattle and household property. According to the judgment, the 39 official forces, including police
and the popular forces, requested their headquarters to allow them to engage the attackers, however the
headquarters refused because of the disparity in numbers. The official forces then withdrew.
425. With the escalation of the crisis and the ineffectiveness of the police to address the crisis, the
people in Dafur appear to have no faith in this institution. A number of victims informed the
Commission that they would not go to the police to submit complaints against actions by the official
forces or the Janjaweed. They did not think that the police would pursue the complaint and they feared
reprisals. In fact, when officials in the three states of Darfur were requested to submit information on the
number of registered complaints, they mainly provided lists of complaints registered as a result of
attacks by the rebels. As for attacks by Janjaweed, little information was provided. The most extensive
list of complaints against the Janjaweed was provided by the Governor of North Darfur. It included 93
complaints registered between February 2003 and November 2004. The list was, however, silent on the
measures taken by the police to pursue these complaints.
426. The Government claimed that there were between 9,000 and 12,000 policemen deployed in
Darfur to protect the IDPs. The impact of this presence was, however, not felt by the IDPs, as the
situation at the Fata Burno IDP camp illustrates. The inhabitants there were confined in an area defined
by a reddish rock and a riverbed (Wadi). Any attempt by the IDPs to venture beyond the confined area
was met with shots from the Janjaweed in their nearby mountainous hideout. The police, located at the
edge of the camp, showed no interest in confronting the Janjaweed. It stands to reason to assume that
the police presence is more for political reasons than any form of protection. Also, between 27
September 2003 and May 2004, seven villages166 near Nyala were persistently attacked by the
Janjaweed. It resulted in the displacement of over 1000 civilians. No action was taken by police against
the Janjaweed.
165 The case was decided by the Special Court of Nyala – South Darfur which describes events that took place on 18
May 2002 involving 96 defendants, and where the court sentenced 88 persons to death, 1 for 10 years, as well as the
confiscation of weapons and return of property.
166 Umalhairan, Rahad Alnabag, Faralch Oldalyba, Draib alrech, Umbaouda, Baba, Kashlango
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427. Several procedural hurdles prevented the police from acting effectively. An example was the
practice whereby victims of certain crimes in Darfur, such as rape, required what was termed ‘Form 8’
from the police before they would be able to receive medical examination and treatment. A directive
titled “The Minister of Justice Criminal decree 1/2004”, effective from 21 August 2004, was adopted to
dispense with that requirement. However, it was clear from interviews conducted by the Commission
with rape victims, including in Zam Zam IDP camp in North Darfur, that the police still applied the
Form 8 rule. The prosecutor’s office and the police were hesitant when asked about their knowledge of
the decree and it was clear to the Commission that they were not aware of the existence of the decree.
Similarly, judicial officials in Khartoum were unaware of both the August 2004 decree and of a
subsequent decree on the same subject matter, which was effective from 11 December 2004.
2. Action by the Judiciary
428. The Commission repeatedly requested the Government to provide information on judicial action
taken to bring to justice the perpetrators of the alleged crimes committed in Darfur. Despite repeated
requests from the Commission, the Government continued to cite just one case relevant to the
Commission’s mandate and on which the judicial system had taken action in 2003. This was the case of
of Jamal Suliman Mohamad Shayeb in the village of Halouf regarding the killing of 24 individuals,
some of them women and children, looting of property, and the burning of the village. Two other cases
referred to the Commission as evidence of action by the judiciary were firstly, the case of Jagre al-Hadi
al Makbul and others before the Special Court of Nyala mentioned above, and secondly the case of
Hafedh Mohammed Dahab and others regarding the attacks on the village of Jugma and Jabra which
resulted in the killing of 4 people, including the burning of one individual, injuring others, as well as the
looting and burning of houses. However, both of these cases concerned events that occurred in 2002.
The Commission thus considers that Government failed to demonstrate that it had taken measures to
prosecute those involved in the attacks that had taken place since February 2003.
429. The Government also cited its acknowledgement of three cases of mistaken bombings. It stated
that it compensated the victims of Habila, Um Gozin, and Tulo. The head of the military committee that
was established to compensate the victims in Habila briefed the Commission. He claimed that the
victims were reluctant to receive compensation. The Commission learnt from other sources, however,
that the real reason was that the victims were insisting that a comprehensive investigation into the
alleged mistake take place.
430. The Government charged that the rebels attacked court buildings and personnel, implying that
this had weakened their effectiveness. Citing an example, the Commission was informed that during an
attack on Kutum, North Darfur on 1 August 2003, the rebels attacked the criminal court and the houses
of the judges, looting their contents. Documents, evidentiary material and files were also burned. During
an attack on 10 July 2004 on the village of Alliet, which has been the subject of frequent attacks by the
SLM/A and the JEM, as well as Government forces, a judge was abducted by the rebels. He was later
released on 13 of August 2004. In another attack on the same village on 20 September 2004, the
Government claimed that rebels attacked the court and destroyed furniture and documents. The house of
the judge was apparently also looted.
431. According to the Commission’s findings, it unlikely that the legal and judicial systems in Sudan
in their present form are capable of addressing the serious challenges resulting from the crisis in Darfur.
Victims often expressed lack of confidence in the ability of the judiciary to act independently and in an
impartial manner. Having some senior judges in Darfur involved the design and implementation of
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controversial policies such as the return of IDPs, weakened the credibility of the judiciary in the public
eye. A brief description of the judicial system and an assessment of its ability to do justice in accordance
with international human rights standards are provided below.
(i.) An Overview of the Sudanese Judicial System
432. The 1998 Constitution asserts the independence of the Judiciary. However, the Judiciary appears
to have been manipulated and politicised during the last decade. Judges disagreeing with the
Government often suffered harassment including dismissals.
433. Article 103 of the Constitution spells out the structure of the country’s judicial system which
includes the Supreme Court, Courts of Appeal and Courts of first instance. In a hierarchical fashion, the
Supreme Court, a three-member Bench and the highest and final judicial authority, is positioned at the
apex. Its decisions on appeals from the Court of Appeal on criminal, civil, personal and administrative
matters are final and may only be interfered with by the Chief Justice, if in his view a particular Shari’a
law has been infringed.
434. Each of the state capitals has a Court of Appeal presided over by three judges. Appeals on
criminal, civil and personal matters from the public courts lie to the Court of Appeal. The court can
review its own decisions and has a single-judge-first-instance jurisdiction to review matters of
administrative authority.
435. The Public Courts are set up under the 1991 Code of Criminal Procedure, which allows the Chief
Justice to constitute them but also to determine their jurisdiction. The courts’ jurisdiction is partly
appellate and partly courts of first instance. Appeals from the District Courts lie to the Public Courts.
The original jurisdiction of the courts lies in the adjudication of cases with commercial bias, as well as
cases involving personal status of non-muslims.
436. District Courts have original and appellate jurisdictions to hear appeals on civil (Civil Procedure
Act 1983) and criminal matters (Criminal Act 1991) from the Town Courts. The pecuniary powers of
the courts in civil cases as well as their penal powers as regards the imposition of fines in criminal
matters are defined by the Chief Justice.
437. The Town Courts are the lowest courts in the Sudan. Decisions rendered by the Town Courts
may be appealed to the District Courts. They are popular courts whose members are chosen from among
citizens of good conduct. A distinctive feature of these courts is their application of customs, not
inconsistent with general law or with public policy. In most cases they resort to conciliation and accord
in solving disputes over areas of pasture, water and cultivation. They are established under a warrant
issued by the Chief Justice.
438. In addition, a Constitutional Court established by Article 105 of the Constitution basically
considers and adjudicates on matters relating to the interpretation of articles of the constitution and
among others, “claims by the aggrieved for protection of freedoms, sanctities or rights guaranteed by
the Constitution”. As the President suspended significant provisions in the Constitution in 1999 and
granted wide powers to the security apparatus, there is little proof that this court is effective.
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439. Despite the above structure, a system of special and Specialized Courts has been established,
particularly in Darfur. Cases of interest to the Government appear to be referred to these courts. In
addition to these courts described below, the President has established some extraordinary courts to try
specific cases. For instance, a case involving 72 army officers, mostly from Darfur, was referred to such
an extraordinary court in Khartoum. A judge was brought from Kordofan to specially try the case.
440. On 12 January 2005, the Commission observed one session in a trial of a group of 28 individuals
from Darfur. They included a number of air force pilots who had refused to participate in bombing areas
in Darfur. Although the session was tense, the Commission was told that it was the first time that the
trial had been conducted in accordance with the regular proceedings. In previous sessions, even
questions on legal issues by the defence were refused. The defence team was dismissed by the court at
one stage. During that period, witnesses were examined and confessions against the defendants were
obtained. When a witness changed his statement during the trial session following the intervention of
defence lawyers, the court started perjury proceedings against him. He collapsed in the court.
(ii.)The Specialised Courts
441. Initially established as Special Courts by decrees under the State of Emergency in Darfur in
2001, the courts were in 2003 transformed into Specialised Courts. A decree issued by the Chief Justice
on 28 March 2003 first established the Specialized Court in West Darfur, and later did the same in North
and South Darfur. They failed, however, to remedy certain flaws in the Special Courts which were
passed down to the Specialised Courts.
442. The Specialised Courts inherited the functions and jurisdiction of the Special Courts. Thus, as its
predecessor, the new courts try charges of armed robbery, banditry, offences against the State,
possession of unlicensed firearms, attacks against the State, disturbing public order, and any other
crimes that the Chief Justice or the head of the Judiciary may include in the court’s jurisdiction. The
majority of those tried under these courts for possession of arms are said to be from farming
communities and practically never from nomadic tribes.
443. Special courts were headed by a judge sitting with a member of the police and a member of the
army. However, since a single judge sitting alone now heads a Specialised Sourt, the Sudanese
authorities argue that these courts are an improvement compared to the previous courts. A further
argument is that they have been established for reasons of expediency.
444. The specialised criminal courts were created in particular for Darfur and Kordofan, apparently to
help expedite the hearing of certain cases. However, the reason for their establishment may be described
as ‘fast tracking’ rather than ‘expediency’, particularly in light of the fact that, according to reports, the
hearing of a charge punishable by death penalty may take no more than one hour.
445. One flaw inherent in the 2003 Decree which established the courts, is its failure to ensure that
confessions extracted under torture or other forms of duress are excluded from the evidence. It is
fundamental to the principles of due process that an accused must not be compelled to testify against
himself or herself or to confess to guilt (article 14,3(g) ICCPR). Therefore, when an accused challenges
in court that his alleged confession was extracted under torture, the court is put on notice to investigate
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the challenge and to rule, giving reasons, for the admissibility or otherwise of the alleged confession
before continuing. There are several examples however to demonstrate that the specialized courts do not
proceed in this manner. It has been reported that an individual was arrested in January 2004 on charges
relating to banditry. He was said to have been tortured by security forces resulting from which he
confessed to the charge. At his appearance in court in June 2004, he told the judge he had confessed
under torture and sought to withdraw the confession. The judge summarily declined the withdrawal and
the case proceeded against the accused. Any law which ignores the procedure of investigating a
challenged confession and so allows a judge to summarily refuse the withdrawal of the confession, is
contrary to the rights of the accused.
446. The Special Courts decree allowed the accused to be represented by “friends” only. In other
words the accused could not exercise the right to be represented by a counsel of choice. Though the
2003 decree allows for legal representation, it lacks fullness. Counsel has limited time to cross examine
prosecution witnesses and to examine defence witnesses and there are restrictions for visiting the
accused in detention to facilitate the preparation of his defence.
447. The trials are still conducted summarily, as was done by the Special Courts and the death penalty
may be pronounced by the court for a wide-range of offences. According to the decree, an appeal must
be filed within seven days to the head of the judiciary, who delegates the case to members of the Court
of Appeal. This is a rather short period, considering that court records and grounds for appeal need to be
prepared before completing filing. Also interlocutory decisions are not subject to any appeal. One cannot
but believe that there is an element here to discourage convicted persons from appealing against their
convictions. Save for sentences of death, amputations, or life imprisonment, which are heard by a panel
of judges, the appeals are heard by one judge. There is no possibility of further judicial review. In a
situation where the right of appeal is limited, the likelihood that innocent persons may be put to death is
increased.
448. The court does not appear to draw a distinction between adult and minor offenders. Minors are
therefore at risk of receiving the death sentence, particularly so when they are charged and stand trial
together with adults. On a reliable account a trial of seven persons arrested at the Kalma IDP camp
included two persons under the age of 18. All seven denied the charge and have alleged police brutality.
At the Nyala Specialised Court where they were standing trial for murder, they faced the death penalty if
convicted.
449. The fact that the Specialised Courts apply principally to the Darfurs and Korduvan, rather than to
the whole of the Sudan, calls into question the credibility and reliability of these Courts. The purpose of
the courts is too glaring to miss. The Government would do a great service to its judicial system if it
took steps to repeal the decree that established the Courts. The Commission recommends that the
Government ensure the closure of the Courts.
3. Sudanese Laws Relevant to the Present Inquiry
450. A number of serious flaws prevent the justice system in Sudan from acting swiftly and
appropriately to address abuses. Much could be said about the compatibility of Sudanese laws with
international standards. A state of emergency was declared in Sudan in 1999 and has been consistently
renewed since then. Important constitutional guarantees are suspended. In effect, Sudan is still mainly
ruled by decrees. An example is the Specialised Court decree. Judicial officials tried to explain off the
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passing of decrees as an interim measure taken when Parliament is in recess, which Parliament may
retain or repeal when it reconvenes. Asked what would be the fate of a suspect convicted under the
decree before a Parliamentary action to repeal the law, one response was, “it’s not reversible”. The other
was that the conviction may be quashed on appeal. One cannot but view the continued parallel use of
decrees and laws as tending to make the parliamentary process a charade.
451. Furthermore, the Sudanese criminal laws do not adequately proscribe war crimes and crimes
against humanity. Also the 1991 Criminal Procedure Code contains provisions that prevent the effective
prosecution of these acts. The law provides wide powers to the executive and grants immunity from
prosecution to many state agents. To illustrate some of these problems, the provisions of the National
Security Forces Act of 1999, are presented below as an example.
452. By Section 31 of the National Security Law, an order issued by the Director General, a security
agent can carry out an arrest, a search, detain and investigate an individual. He has three days within
which to furnish the detainee with reasons for his arrest and detention. The period may be extended for
3 months by the Director General and may, with the approval of the attorney general, be renewed for a
further 3 months. If it is deemed necessary, the Director General may request the national Security
Council to renew the detention for a further 3 months. A detainee may appeal this decision before a
judge. There are no guarantees, however, for immediate access to counsel. The prescribed period of
detention under Section 31 is frequently ignored. The Commission met numerous detainees in security
detention centres who were detained for longer periods without access to a lawyer nor an appearance in
court.
453. Section 9 of the Act gives certain powers to a member of the organ designated by the Director
General to execute particular functions. It empowers seizure of property of detainees “in accordance
with law”. A right under section 32(2) allows the detainee to communicate with his family “where the
same does not prejudice the progress of the interrogation, inquiry and investigation of the case”. These
qualifying phrases negate clarity and only succeed in bringing vagueness and inferiority into the law.
Even if members of the detainee’s family are aware of the right to communicate or from where the
family may apply for permission to make contact with their relatives, it is doubtful that they will have
the courage to brave the aura of fear that surrounds the security apparatus. Investigations conducted by
the Commission disclose that more often than not, the permission when sought by the courageous few, is
not granted. In the result the detainee becomes an incomunicado detainee, his detention sometimes
exceeding a 12-month period, without charges, with no access to counsel, no appearance in court and not
permitted visitors. At Kobar prison in Khartoum the Commission interviewed a number of such
detainees. Others have been detained at a North Khartoum prison since January 2004 in similar
circumstances. A gross violation of the rights of the detainees and a contravention of Article 14.3(c) of
ICCPR. In addition, the National Security apparatus violates section 31 of its own law which indicates
that after the prescribed period of detention, that is to say a maximum of 9 months, the detainee must be
tried or released.
454. Section 33 gives wide immunities to members of the National Security and Intelligence Services
and their collaborators. None of them shall be compelled to give information about the organisation’s
activities which they have come by in the course of their duty. Except with the approval of the Director,
no civil or criminal action shall lie against either of them for any acts they may have committed in
connection with their work, which approval the Director will grant only if the action is unrelated to their
duties. Their right to institute action for compensation against the State is however preserved. Where
the Director approves that an action proceeds against a member of the force and his collaborators, and
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the action is based on acts done in the course of official work, be it during or after termination of
employment, the trial will take place in an ordinary court but will be heard in secret. Again, this is
contrary to Article 14,1 of ICCPR which sets down “public hearing” as a basic standard for a fair trial.
When confronted with trials in “secret”, Mr. Sallah Abdallah, also known as Mr. Sallah Gosh, (the
Director General of National Security and Intelligence Service) described the English translation as
inaccurate. Since then the Commission has had the Arabic text translated, and it is clear that the trial in
“secret” is part of the law. The clear inference from section 33, is that a security member can, under the
umbrella of the law, torture a suspect, even to death, if his acts are done in the course of duty. The
Commission strongly recommends the abolition of this law.
455. Based on the above, the Commission considers that in view of the impunity which reigns in
Darfur today, the judicial system has demonstrated that it lacks adequate structures, authority,
credibility, and willingness to effectively prosecute and punish the perpetrators of the alleged crimes that
continue to exist in Darfur.
4. Action by Other Bodies
(i.)The Sudanese Commission of Inquiry
456. The President set up a National Commission of Inquiry (hereinafter “the National Commission”)
on 8 May 2004. This ten member body was mandated to collect information of alleged violations of
human rights by armed groups in the Darfur states, inquire into allegations against armed groups in the
area and the possible resulting damage to lives and property and to determine the causes of the violations
when established. The Commission was provided a copy of the final report of the National Commission
on 16 January 2005.
457. The final report indicates the National Commission’s method of work. It met 65 times, listened to
228 witnesses, and visited the three states of Darfur several times. It visited 30 incident locations and
met with the local authorities, particularly the armed forces. It requested documents from various
governmental bodies and reviewed the reports of the organizations that visited Sudan, including the
United Nations, the Organization of African Unity and the Organization of the Islamic Conference, as
well various human rights groups, particularly Amnesty International and Human Rights Watch, as well
as reports by some Governments, particularly the United States and the European Union. In other words,
the National Commission was fully aware of the serious allegations of the crimes committed in Darfur.
458. The report starts with providing an overview of Darfur. It devotes a major part to the crime of
genocide. It discusses five crimes: bombing civilians in the context of the Geneva Conventions; killings;
extra-judicial killings, rape as a crime against humanity, and forcible transfer, and ethnic cleansing.
459. Below is an unofficial translation of the main findings of the National Commission, as they
appear in its Executive Summary:
Serious violations of human rights were committed in the three Darfur States. All parties to the
conflict were involved, in varying degrees, in these violations which led to much human
suffering that obliged the people of Darfur to migrate to State capitals and to take refuge in
Chad.
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What happened in Darfur, despite its gravity, does not constitute the crime of genocide because
of the unavailability of the genocide determination conditions. The National Commission had
no proof that any of the protected ethnic, religious, racial or national groups was subjected, in
bad faith, to bodily or mental harm or to living conditions targeted at its total or partial
extermination. The Darfur incidents are not similar to what happened in Rwanda, Bosnia or
Cambodia. In those precedents, the State concerned pursued a host of policies leading to the
extermination of a protected group.
The National Commission had proof that the Darfur incidents were caused by the factors
mentioned in the report and the explained circumstances. It also had proof that describing the
incidents as genocide was based on exaggerated unascertained figures relating to the numbers of
persons killed .
The National Commission had proof that the Armed Forces bombarded certain areas in which
some opposition members sought shelter. As a result of that bombardment, some civilians were
killed. The Armed Forces investigated the incident and indemnified those who sustained
damage or loss in the areas of Habilah, Umm Kazween and Tolo. The Wad Hagam incident is
still being investigated.
The National Commission had proof that the armed opposition groups committed similar acts
killing unarmed citizens as well as wounded military personnel in Buram hospital and burning
some of them alive.
The National Commission also had proof that many of the killing incidents were committed by
various tribes against each other in the context of the conflict going on in certain areas such as
Sania Deleiba, Shattaya etc.
The killing of citizens in all the aforementioned cases constitutes a violation of Common
Article 3 of the 1949 Geneva Conventions ....
The killing incidents committed by all the armed conflict parties, which, under their various
circumstances, may come up to a violation of Common Article 3 of the 1949 Geneva
Conventions, do not, in the opinion of the National Commission, constitute a genocide crime
because of the unavailability of the elements of this crime, particularly the absence of any proof
that any protected group was targeted and the absence of a criminal intent.
Allegations of summary executions were received from all parties. However, some of these
allegations were not proved beyond any doubt. Therefore, the National Commission
recommended that an independent judicial investigation should be conducted ... The rationale
in this respect is that any testimony before the National Commission should not be accepted as
evidence before any court in implementation of Article 12 of the 1954 Law on Investigation
Committee which stipulates that “any testimony given during any investigation conducted under
this Law shall not be accepted as evidence before any civil or criminal court”.
As regards the crimes of rape and sexual violence which received much attention in the
international media, the National Commission investigated them in all the States of Darfur at
various levels and heard a number of witnesses under oath, including the victims who were
referred by the National Commission to the concerned medical services for medical
examination. The National Commission had on hand the detailed reports of the judicial
committees which visited the various areas of Darfur, including displaced persons’ camps.
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All these measures proved to the National Commission that rape and sexual violence crimes had
been committed in the States of Darfur. They also proved that crimes had not been systematic
or widespread constituting a crime against humanity as mentioned in the allegations. The
National Commission also had proof that most of the rape crimes were filed against unknown
persons, but investigations led to accusing a number of persons, including ten members of the
regular forces. The Minister of Justice lifted their immunity and they are being tried now. Most
of these crimes were committed individually in the context of the prevailing security chaos. The
National Commission noticed that the word “rape”, with its legal and linguistic meanings, was
not known to the women of Darfur in general. They believed that the meaning of the word
“rape” was to use violence to compel a person to do something against that person’s will, and
not specifically to rape …. Unfortunately, scenes of a group rape were shot and were shown
outside the Sudan. Later on it was found out that they were fictitious. Some of the persons who
took part in this confessed that they were given sums of money as an incitement to play roles in
those scenes ....
Forced displacement as one of the components of ethnic cleansing, which implies forced or
violent displacement of an ethnic group or a group which speaks one language or has a
dominant culture, from a land on which it settled legally to another area, and which has been
associated throughout history with the idea of forming the “Nation State”, is a crime against
humanity.
In the light of the above, the National Commission visited several areas in the Darfur States
where, according to some allegations, forced displacement or ethnic cleansing was practised.
The Commission interrogated the inhabitants of those areas and was ascertained that some Arab
tribal groups had attack the Abram area, specifically the Meraya and Umm Shukah villages,
displacing some non-Arab groups and settling in the area. However, the authorities, as reported
by the Kas Locality Commissioner, initiated measures to rectify this situation and return
properties to their owners. The acts of some Arab groups led to the forced displacement of
those non-Arab groups. The National Commission, therefore, believes that a judicial
investigation should be conducted in order to know the conditions and circumstances which led
to this situation. If the forced displacement crime is proved, legal measures should be taken
against these groups because this incident constitutes a serious precedent violating customary
practices and triggers similar acts worsening the problem
The National Commission visited many of the villages which were burned in Kulbus, El
Geneina, Wadi Saleh and Kas localities. The National Commission found most of them
uninhabited which rendered it impossible for the National Commission to question their
inhabitants. The National Commission found there some of the police forces which were
deployed after the incidents in preparation for the voluntary return of the displaced persons.
However, the information given by the Shartai and Omdahs who accompanied the National
Commission, and the evidence available, indicate that all parties were responsible, under the
circumstances of the blazing conflict, for the burning of the villages. The National Commission
had proof that the acts of burning were the direct cause of the displacement of the villages’
inhabitants of various tribes, the majority of whom were Fur, to camps, e.g. Deleig and Kalma,
near safe areas where the various services were available. Accordingly, the Commission
believes that, with the exception of the above incident concerning which the Commission
recommended that an investigation be conducted, the forced displacement crime was not
proved.
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The incidents which occurred led to the displacement of big numbers of citizens. Citizens were
terrified and frightened. This situation caused many citizens to leave their villages and go to the
camps. The National Commission had proof that the Darfur tribes, regardless of their ethnic
origin, hosted the displaced persons seeking accommodation and that no tribe settled by force in
the quarters of another tribe. This was confirmed by the Nazer of Albani Helba and the Nazer
of Al Habania ….”
460. In its recommendations, the National Commission suggested administrative and judicial
measures, in particular that the causes of the conflict “should be studied and the administrative
deficiency, which was one of the factors worsening the conflict, should be rectified”. It further
recommended that judicial investigation committees concerned with the following items be established:
a. Allegations of extrajudicial executions at Deleig and Tenko, because there are evidences
which the National Commission believes should be subject of a detailed judicial
investigation leading to trial of the persons proven to have committed the acts they are
accused of, particularly as there are accusations against certain persons.
b. Allegations that some Arab groups captured two villages of the Fur tribe in Kas
Locality. The Commission knew that an administrative investigation was being
conducted by a committee established by the Wali of the South Darfur Sate in view of
the seriousness of the accusation and its consequences which necessitate acceleration of
the relevant measures.
c. Investigating the incidents of Buram, Meleit and Kulbus, i.e. killing wounded persons in
the hospitals and burning some of them alive, and taking the necessary action against
perpetrators, particularly as certain names known to citizens were mentioned in the
testimonies of witnesses.”
461. To summarise, the Executive Summary states that serious violations of human rights were
committed in the three Darfur States. All parties to the conflict were involved. What happened did not
constitute genocide. Numbers of persons killed were exaggerated: losses of life incurred by all parties,
including the armed forces and police, did not exceed a few thousands. Rape and crimes of sexual
violence were committed but were not widespread or systematic to amount to a crime against humanity.
The National Commission recommends judicial investigations into some specific incidents and a setting
up of a judicial committee to investigate property losses.
462. The Commission finds that while it is important for the National Commission to acknowledge
some wrong-doings, its findings and recommendations are insufficient and inappropriate to address the
gravity of the situation. Simply put, they provide too little too late. The massive scale of alleged crimes
committed in Darfur is hardily captured by the report of the National Commission. As a result, the report
attempts to justify the violations rather than seeking effective measures to address them. While this is
disappointing particularly to the victims of these violations, the Commission is not taken by surprise by
the tone and content of the report. The Commission is aware that the National Commission was under
enormous pressure to present a view that is close to the Government’s version of events. The report of
the National Commission provides a glaring example of why it is impossible under the current
circumstances in Sudan for a national body to provide an impartial account of the situation in Darfur, let
alone recommend effective measures.
(ii.) The Parliamentary Committee of Inquiry
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463. A parliamentary committee to enhance peace, security and development in the Darfur States was
established in accordance with National Assembly resolution 38 of December 2003, with a membership
of some 59 people. It was to meet with responsible authorities, executive bodies and other relevant
personalities, as well as interview parties to the conflict. Its findings, inter alia, expressed concerns in
relation to under-development in Darfur and contained recommendation to improve the conditions for
the IDP's.
464. The committee made recommendations in the areas of security, humanitarian aid, social structure
enhancement, services and development, opening up of police posts with adequate logistics for speedy
response to crises and seizure of arms in the wrong hands. To date, there has been no indication of the
government complying with the recommendations of the Parliamentary Committee to improve the
conditions of the IDP’s, to develop social structure and generally improve services in Darfur, nor
compliance with its recommendation to seize arms in the wrong hands. Seizure of arms would naturally
mean seizure from the SLA and JEM as well as the Janjaweed, who had otherwise been given
Government support.
(iii.) The committees against rape
465. In the Joint Communique issued by the Government and the United Nations during the visit of
the United Nations Secretary-General on 3 July, 2004, on the situation in Darfur, the Government of the
Sudan committed to undertake concrete measures to end impunity for human rights violations in the
region.Towards this end, the Government had undertaken to immediately investigate all cases of
violations, including those brought to its attention by the United Nations, AU, and other sources.
466. Allegations of rape and other incidents of sexual abuse of women were prominent amongst the
serious violations of human rights in the region reported by multiple sources. The Minister of Justice,
under powers vested in him by Section 3 (2) of the Commissions of Inquiry Act, 1954, issued a decree
on 28 July 2004, establishing separate Rape Committees for the three Darfur states, North, South and
West Darfur.
467. The Committees were composed of three members each, comprising a judge of the Appeal Court
as the Chair, a legal counsel from the Ministry of Justice and a police officer. All members of the
Committees were women.
468. The mandate of the Committees was “to investigate the crimes of rape in the three states of
Darfur”. The Committees were delegated the powers of the office of the district prosecutor to carry out
their mandate167. The Committees were required to report to the Minister of Justice within two weeks of
the commencement of their work.
469. Before commenting on the working of the Committees, the inadequacies of the mandate need to
be addressed. The mandate of the rape Committees was too narrow to address the serious allegations of
167 Article 20 of the Criminal Procedure Act, 1991 empowers the Minister of Justice to grant the powers of the office of the
Prosecution Attorney to any person or Commission whenever he deems it to be in the interest of justice. Under Article 19 of
the Criminal Procedure Act, 1991, the office of the Prosecution Attorney has the powers to direct the investigation in a
criminal complaint, to frame charges, to file prosecutions and to supervise the progress of the case in the court.
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violence against women. Reports of abuse suffered by women include, but are not limited to rape168.
Excluding other forms of sexual abuse from the scope of the inquiry left a vast number of allegations
unaddressed. Further, means of redress and reparation for the victims was not brought within the scope
of the mandate. This limited the effectiveness of the initiative in providing comprehensive justice to
victims. International law not only requires States to address violations of human rights and take
measures to prevent their occurrence, but also imposes the obligation to provide an effective remedy for
violations169.
470. The Committees were not given any guidelines to ensure that methods of investigation were
suited to the objective of ending impunity and facilitating the victims in reporting the crimes committed
against them. The Sudan Criminal Act and the Criminal Procedure Act do not contain substantive and
procedural provisions that can be applied to the special situation of crimes committed during an armed
conflict. The absence of such guidelines, including the determination of criteria for selection of cases for
investigation and prosecution, left the Committees without guidance as to the proper methods for
investigating crimes constituting serious violations of human rights. This omission on the part of the
Ministry of Justice affected the work of the Committees and their ability to achieve their objectives.
471. The time allotted to the Committees within which to carry out their work was grossly inadequate
considering the immensity of the task. This indicates a lack of any serious commitment on the part of the
Government to investigate the allegations of widespread rape and to end impunity for this crime.
472. During its first mission to Sudan the Commission met the Chairpersons and members of the three
rape committees in Khartoum. The Commission thanks the Government for allowing this opportunity
and to the members of the Committees for making themselves available for the two meetings with the
Commission.
473. Members of the Commission were told that the Committees began their work in the states under
their respective jurisdiction on 11 August 2004. All the three committees adopted a common
methodology. The establishment of the Committees and their arrival in the different states was
announced publicly through the electronic media. The Committees arranged for this announcement to be
made in all the IDP camps in the province and visited the camps to receive complaints of rape. They also
visited police stations and the office of the district attorney in order to obtain information on any cases of
rape already registered.
474. In the camps the Committees met with the managers of the camp and the tribal and local leaders
of the population residing in the camp. Small committees were constituted in each of the camps they
visited to explain the mandate of the Committees and to elicit information from the IDPs.
475. During the course of the Rape Committees’ work, a decree was issued by the Minister of Justice
on 21 August, 2004, removing the requirement of registering a complaint of rape with the police before
the victim could be medically examined or receive any medical treatment.
168 Give figures on incidents of sexual violence from section on rape in Section 1 of the report.
169 Article 2 of the ICCPR. Sudan is a party to the Covenant.
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476. It is evident from their accounts that the Committees received only a few complaints. Many of
the cases they processed were already registered in the police stations before their arrival, or occurred
during the period that they were conducting their inquiry in the respective provinces. The approach
adopted by the Committees in proceeding with the inquiry, as explained by the three Chairpersons, was
to hear a complaint, interrogate the victim to ascertain if the elements of the crime of rape as defined in
the Criminal Act, 1991, were present170, and then require the victim to be medically examined. If the
medical report corroborated the victim’s allegations the case would be sent to the police for further
investigation. In cases where the perpetrators were unnamed or unknown, no further investigation was
conducted. Where such corroboration was available, and the perpetrator/s was identified by the victim
the cases were recommended for prosecution and sent to the office of the district prosecutor.
477. The Chairpersons of the Committees informed the Commission that in North Darfur the
Committee did not process any case in which it had received the complaint directly. This Committee had
completed investigation of 8 cases and sent these to the prosecutor for further action. In West Darfur
three cases were registered by the Committee on direct complaints from victims. These, together with
other cases (already registered with the police before the Committee started work) investigated by the
Committee were sent to the prosecutor. In South Darfur the Committee investigated cases that had
already been registered at the police station in Nyala. The Chairpersons did not remember the total
number of cases investigated by the Committees in West and South Darfur. The members of the
Committees had no documents giving the details of the cases.
478. The Advisory Council on Human Rights handed a document to the Commission in which it is
stated that the three investigation committees had ended a three week visit to the region and had
submitted their interim report to the Minister of Justice in September. Together the committees had
registered 50 cases, 29 in West, 10 in North and 11 in south Darfur. Of these 35 were against unknown
perpetrators. There is no information on how many of the identified accused in cases investigated by the
Committees were prosecuted or convicted. Details of the cases were also not made available to the
Commission. Information on action taken to end impunity, provided by the ACHR lists 7 cases of rape
in which the accused were arrested and tried; one case in which 13 accused were tried and convicted for
producing fake video implicating the military in the commission of rape; two cases in which the district
prosecutor, on reports made by United Nations monitors, visited IDP camps and recorded statements of
victims and initiated proceedings; and one case of abduction and rape was registered against unknown
armed opposition groups.
479. The Commission was made aware of the difficulties that the Rape Committees confronted in
implementing their mandate and the severe constraints they experienced because of the lack of resources
and technical assistance. However, the approach adopted by the Committees in conducting their work
could not be conducive to achieving the objectives for which they were established. The Committees
failed to give due consideration to the context in which they were working and to adopt an approach
suitable to the circumstances. The incidents of rape they were called upon to investigate had occurred
over a period of eighteen months, and the affected population had been displaced, probably more than
once. All the Committees admitted having received complaints of rape which occurred during attacks on
villages. None of these complaints was recorded or investigated. The reasons given for not taking action
on such cases were non-production of victims before the Committee, absence of witnesses and failure of
170 Article 145 (2) of the Criminal Act, 1991 makes “penetration” essential to constitute the act of “sexual intercourse”. Article
149 defines rape as an act of sexual intercourse committed on another person without her/his consent. Where the victim is in
the custody or under the authority of the offender, consent shall not be relevant.
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victims to present themselves for a medical examination, or to produce a report of any earlier
examination by a competent authority.
480. The Committees placed undue burden on the affected population to produce evidence and did not
exercise their powers to activate relevant authorities to investigate in order to overcome the gaps in
information made available by victims and witnesses The reliance on medical evidence, for instance, to
initiate investigation seems highly misplaced when a majority of the complaints pertained to rape that
had occurred some time back, or where the victim was a married woman.
481. The lack of sufficient commitment to achieving their goals is apparent in several aspects of the
Committees’ work. The first indication of the Committees failure is the lack of public response to their
invitation to bring complaints. The Commission has personally received several accounts from victims
in IDP camps alleging rape and other forms of sexual abuse suffered by women during attacks on their
villages, while fleeing the villages and, more recently, around the camps where they have taken
shelter171. The fact that people were generally hesitant to approach the Committees with their
complaints indicates a lack of trust in the Government.
482. The Committees could not mitigate this distrust by adopting an approach that inspired more
confidence in their ability to provide redress to the victims. Those who did approach the Committees
with complaints or information on rape did not receive a response that would encourage them to believe
in a meaningful out come of the investigation. In many of the cases they did not find sufficient merit in
the complaint to proceed any further. Others were considered too short on evidence to proceed with the
investigation. Several of the complaints they heard were against unknown persons. Some complaints
were registered with the police, but many were not registered because the complainants became
disinterested when they heard that these complaints could not be pursued because of the lack of
identification of an accused or a suspect.
483. The Committees rejected too many cases for the reason that their interrogation of the victims
revealed that the crime complained of did not amount to rape, as penetration had not occurred or that the
complainants had confused the Arabic term for oppression with the term for rape and had mistakenly
come forward with complaints of other forms of abuse or violence, such as beatings.
484. In their discussions with the Commission on the methodology of the Rape Committees, the wide
publicity of the mandate of the Committees was greatly emphasized. In addition small committees were
said to have been constituted in the camps to explain the purpose of the investigation to the affected
population. In view of this the presumption that women were confused and that their complaint was not
that of rape is not understandable. From its own experience of interviews with victims and witnesses, the
Commission does not find this explanation convincing. Women, who had given accounts to the
Commission of violence committed upon them, could fully understand the nature of the abuse that they
had suffered, including rape.
485. It is disappointing that the Committees confined themselves to the crime of rape and did not
process cases in which other forms of sexual abuse, including attempt to rape, were reported. The
Committees lost a valuable opportunity of gathering important information on crimes committed against
171 Refernce to cases in the Section on rape collected during COI mission.
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women by failing to record the information brought to its attention and confining the registration of
cases only to those complaints which, in their assessment, could be further investigated.
486. The Committees were delegated the powers to direct investigations, frame charges, file
prosecutions and to supervise the progress of cases in the court. The Committees limited their task only
to receiving complaints and to sending the cases for further investigations to the police. Where the police
did not pursue the investigation the Committees took no action. In cases that they recommended for
prosecution the Committees had no information if these cases were filed or if these had resulted in
conviction. They ended their work in three weeks and presented their reports to the Ministry of Justice
through the Advisory Council on Human Rights. There was no involvement of the Committees in any
follow-up to their reports. They had not received any comments on their reports from the ministry nor
were they involved in any follow-up to their reports.
487. If the intention of the Government was to end impunity and to establish a mechanism for
facilitating victims in reporting crime of rape with a view to ensuring that perpetrators are held
accountable, the initiative was poorly designed and lacked the potential for achieving this objective. The
Government created the Committees as an immediate measure, but failed to make them effective or of
any remedial value to the victims. An appraisal of the working methodology of the Committees and the
details of the work received from the Chairpersons reveals several lacunas. The Commission can not
agree with the Government’s position that the statistics representing the work of the Committees indicate
a much lower incidence of the crime of rape than is reported by sources such as the United Nations, AU
and other national and international organizations. The work of the Rape Committees does not provide a
sound basis for any conclusions with regard to the incidence of rape in Darfur nor does it satisfy the
requirement of state responsibility to investigate cases of serious violations of human rights and of
accountability of those responsible
VII. ACTION BY THE REBELS TO REMEDY THE VIOLATIONS THEY COMMITTED
488. Both the Government and the rebels themselves have reported to the Commission that the rebels
have taken no action whatsoever to investigate and repress the international crimes committed by their
members. The justifications offered by the rebels for such failure is either that no such crimes have been
perpetrated, or else that they may have been committed by members of military units who were acting
on their own and outside or beyond the instructions given by the political and military leaders.
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SECTION II
HAVE ACTS OF GENOCIDE OCCURRED?
I. THE NOTION OF GENOCIDE
489. The second task assigned to the Commission is that of establishing whether the crimes allegedly
perpetrated in Darfur may be characterized as acts of genocide, or whether they instead fall under other
categories of international crimes.
490. As stated above, the Genocide Convention of 1948 and the corresponding customary
international rules require a number of specific objective and subjective elements for individual criminal
responsibility for genocide to arise. The objective element is twofold. The first, relating to the prohibited
conduct, is as follows: (i) the offence must take the form of (a) killing, or (b) causing serious bodily or
mental harm, or (c) inflicting on a group conditions of life calculated to bring about its physical
destruction; or (d) imposing measures intended to prevent birth within the group, or (e) forcibly
transferring children of the group to another group. The second objective element relates to the targeted
group, which must be a “national, ethnical, racial or religious group”. Genocide can be charged when the
prohibited conduct referred to above is taken against one of these groups or members of such group.
491. Also the subjective element or mens rea is twofold: (a) the criminal intent required for the
underlying offence (killing, causing serious bodily or mental harm, etc.) and, (b) “the intent to destroy,
in whole or in part” the group as such. This second intent is an aggravated criminal intention or dolus
specialis: it implies that the perpetrator consciously desired the prohibited acts he committed to result in
the destruction, in whole or in part, of the group as such, and knew that his acts would destroy in whole
or in part, the group as such.
492. As clarified by international case law, the intent to destroy a group “in part” requires the
intention to destroy “a considerable number of individuals”172 or “a substantial part”173, but not
necessarily a “very important part” 174 of the group.175 Instances mentioned in either case law or the legal
literature include, for example, the intent to kill all Muslims of Bosnia-Herzegovina, or all Muslims
living in a region of that country,176 or, for example, to destroy all the Jews living in Italy or the
Armenians living in France.177
172 See Kayishema and Ruzindana (ICTR, Trial Chamber, 21 May 1999), at § 97.
173 See Jelisi􀃼 (ICTY Trial Chamber, 14 December 1999, at §§ 82), Bagilishema (ICTR, Trial Chamber, 7 June 2001,, at §
64) and Semanza (ICTR, Trial Chamber, 15 May 2003, at § 316.
174 See Jelisi􀃼 (ICTY, Trial Chamber, 14 December 1999), at §§ 81-2.
175 According to B. Whitaker, Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of
Genocide, UN Doc. E/CN.4/Sub.2/1985/6, at § 29, the expression “in part” indicates “a reasonably significant number,
relative to the total of the group as a whole, or else a significant section of a group such as its leadership”. Interestingly, the
United States, in its domestic legislation implementing the Genocide Convention, defined “substantial part” as “a part of a
group of such numerical significance that the destruction or loss of that part would cause the destruction of the group as a
viable entity within the nation of which such group is a part.” (Genocide Convention Implementation Act 1987, sec. 1093 (8)).
176 Krsti􀃼, (ICTY Trial Chamber), August 2, 2001, § 590: “[T]he physical destruction may target only a part of the
geographically limited part of the larger group because the perpetrators of the genocide regard the intended destruction as
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493. Of course, this special intent must not be confused with motive, namely the particular reason that
may induce a person to engage in criminal conduct. For instance, in the case of genocide a person
intending to murder a set of persons belonging to a protected group, with the specific intent of
destroying the group (in whole or in part), may be motivated, for example, by the desire to appropriate
the goods belonging to that group or set of persons, or by the urge to take revenge for prior attacks by
members of that groups, or by the desire to please his superiors who despise that group. From the
viewpoint of criminal law, what matters is not the motive, but rather whether or not there exists the
requisite special intent to destroy a group178.
494. The definition of protected groups. While they specify the classes of prohibited conduct,
international rules on genocide use a broad and loose terminology when indicating the various groups
against which one can engage in acts of genocide, including references to notions that may overlap (for
instance, “national” and “ethnical”). This terminology is criticised for referring to notions such as ‘race’,
which are now universally regarded as outmoded or even fallacious. Nevertheless, the principle of
interpretation of international rules whereby one should give such rules their maximum effect (principle
of effectiveness, also expressed by the Latin maxim ut res magis valeat quam pereat) suggests that the
rules on genocide should be construed in such a manner as to give them their maximum legal effects. It
follows that by “national groups”, one should mean those sets of individuals which have a distinctive
identity in terms of nationality or of national origin. On the other hand, “racial groups” comprise those
sets of individuals sharing some hereditary physical traits or characteristics. “Ethnical groups” may be
taken to refer to sets of individuals sharing a common language, as well as common traditions or cultural
heritage. The expression “religious groups” may be taken to encompass sets of individuals having the
same religion, as opposed to other groups adhering to a different religion.
495. Are tribal groups protected by international rules proscribing genocide? In 1996 the United
Nations International Law Commission in its report on the “Draft Code of Crimes Against Peace and
Security of Mankind” stated that “The Commission was of the view that the present article [17 of the
Draft Code] covered the prohibited acts when committed with the necessary intent against members of a
tribal group” (p. 33, at § 9; emphasis added). According to anthropologists a “tribe” constitutes a
territorial division of certain large populations, based on kinship or the belief that they descend from one
ancestor: these aggregates have a chief and call themselves by one name and speak one language.179
sufficient to annihilate the group as a distinct entity in the geographic area at issue.”; confirmed by the Appeals Chamber,
judgement of 19 April 2004, §§ 6-23.
177 W. Schabas, Genocide in International Law (Cambridge, Cambridge University Press, 2000), at 235, notes that the term
“in part” is intended “to undermine pleas from criminals who argue that they did not intend the destruction of the group as a
whole”. He then notes that the Turkish Government targeted in 1915 the Armenians “within its borders, not those of the
Diaspora”; the Nazis intended to destroy all the Jews living in Europe; the Rwandan extremists did not intend to eliminate
“Tutsi population beyond the country’s borders”.
178 See e.g. Jelisi􀃼 (Appeals Chamber), July 5, 2001, § 49.
179 See for instance L. Mair, Primitive Government (London, Penguin Books, 1970), pp. 7-16. Under an authoritative
definition, “In its primary sense, the tribe is a community organized in terms of kinship, and its subdivisions are the intimate
kindred groupings of moieties, gentes, and totem groups. Its territorial basis is rarely defined with any precision, and its
institutions are typically the undifferentiated and intermittent structures of an omnifunctional social system. The leadership of
the tribe is provided by the group of adult males, the lineage elders acting as tribal chiefs, the village headmen, or the
shamans, or tribal magicians. These groups and individuals are the guardians of the tribal customs and of an oral tradition of
law.” (The New Encyclopedia Britannica (2003), XXV, at 1008).
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496. The aforementioned view about “tribal groups”, which has remained isolated,180 may be accepted
on condition that the “tribal group” should also constitute a distinct “racial, national, ethnical or
religious” group. In other words, tribes as such do not constitute a protected group.181
497. It is apparent that the international rules on genocide are intended to protect from obliteration
groups targeted not on account of their constituting a territorial unit linked by some community bonds
(such as kinship, language and lineage), but only those groups --whatever their magnitude-- which show
the particular hallmark of sharing a religion, or racial or ethnic features, and are targeted precisely on
account of their distinctiveness. In sum, tribes may fall under the notion of genocide set out in
international law only if, as stated above, they also exhibit the characteristics of one of the four
categories of group protected by international law.
498. The question of genocidal acts against groups that do not perfectly match the definitions of the
four above mentioned groups. The genocide perpetrated in 1994 in Rwanda vividly showed the
limitations of current international rules on genocide and obliged the Judges of the ICTR to place an
innovative interpretation on those rules. The fact is that the Tutsi and the Hutu do not constitute at first
glance distinct ethnic, racial religious or national groups. They have the same language, culture and
religion, as well as basically the same physical traits. In Akayesu the ICTR Trial Chamber emphasized
that the two groups were nevertheless distinct because (i) they had been made distinct by the Belgian
colonizers when they established a system of identity cards differentiating between the two groups (§
702), and (ii) the distinction was confirmed by the self-perception of the members of each group. As the
Trials Chamber pointed out, “all the Rwandan witnesses who appeared before it invariably answered
spontaneously and without hesitation the questions of the Prosecutor regarding their ethnic identity”
(ibidem). The Trial Chamber also insisted on the fact that what was required by the international rules on
genocide was that the targeted group be “a stable and permanent group”, “constituted in a permanent
fashion and membership of which is determined by birth”, and be identifiable as such (§§ 511 and 702).
The objective criterion of a “stable and permanent group”, which, if considered per se, could be held to
be rather questionable, was supplemented in the ICTR case law (and subsequently in that of the ICTY)
by the subjective standard of perception and self-perception as a member of a group.182 According to this
case law, in case of doubt one should also establish whether (i) a set of persons are perceived and in fact
180 W. Schabas (Genocide in International Law, Cambridge, Cambridge University Press, 2000), after citing the statement of
the International Law Commission, argues that “It is not difficult to understand why tribal groups fit within the four corners
of the domain, whereas political and gender groups do not” (at p. 112). This proposition is not however supported by any
legal argument.
181 That, for the purpose of the legal notion of genocide, a tribe or a group of tribes may the regarded as the target of genocide
only if it also constitutes a racial, ethnic or religious group, is borne out by the ruling of the Australian Federal Court in 1999
in Nulyarimma v. Thompson and Buzzacott v. Hill, with regard to Aboriginal groups or tribes. Some Aboriginal persons had
claimed that conduct engaged in by certain Ministers of the Commonwealth or Commonwealth parliamentarians were
contributing to the destruction of the Aboriginal people as en ethnic or racial group. The Court dismissed the claim. The
majority of Judges held that the legal ground for dismissal was that the legal notion of genocide could not be acted upon in
the Australian legal system for lack of the necessary domestic legislation. Judge Merkel opined instead that genocide could be
acted upon within the domestic legal system of Australia, although in his view in casu the claim was nevertheless groundless
on its merits, because “cultural genocide” is not covered either by customary international law or the 1948 Convention. What
is interesting for our purposes is, however, that none of the three judges held that the Aboriginals could not be legitimately
held to be a target-group under the proper notion of genocide. In other words, the three Judges implicitly supported the view
that Australian aboriginal tribes or units do constitute a racially and ethnically distinct group, on account of their ethnicity,
religion, culture, language, and colour.
According to The Encyclopedia Britannica, vol. 1, at pp. 714-5 , and vol. 14, at pp. 434-9, the Australian aboriginal society is
divided up in tribes or language-named groups based on land ownership and kinship.
182 See Kayishema and Ruzindana, § 98, Musema , at § 161, Rutaganda, § 56, as well as, before the ICTY, Jelisi􀃼 (Trial
Chamber), at §§70-71 and Krsti􀃼 (Trial Chamber), at §§ 556-7 and 559-60).
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treated as belonging to one of the protected groups, and in addition (ii) they consider themselves as
belonging to one of such groups.183
499. In short, the approach taken to determine whether a group is a (fully) protected one has evolved
from an objective to a subjective standard to take into account that “collective identities, and in
particular ethnicity, are by their very nature social constructs, “imagined” identities entirely dependent
on variable and contingent perceptions, and not social facts, which are verifiable in the same manner as
natural phenomena or physical facts”.184
500. It would seem that the subjective test may usefully supplement and develop, or at least elaborate
upon the standard laid down in the 1948 Convention and the corresponding customary rules on
genocide. Indeed, the criteria initially used by courts to interpret and apply those treaty provisions and
customary rules have proved either too loose or too rigid; in short, they were unable to take account of
situations where manifestly there existed a stark opposition and conflict between two distinct sets of
persons, one of which carried out the actus reus typical of genocide with the intent to destroy the other
in whole or in part. Moreover, it would be erroneous to underestimate one crucial factor: the process of
formation of a perception and self-perception of another group as distinct (on ethnic, or national, or
religious or racial ground). While on historical and social grounds this may begin as a subjective view,
as a way of regarding the others as making up a different and opposed group, it gradually hardens and
crystallizes into a real and factual opposition. It thus leads to an objective contrast. The conflict, thus,
from subjective becomes objective. It ultimately brings about the formation of two conflicting groups,
one of them intent on destroying the other.
501. What matters from a legal point of view is the fact that the interpretative expansion of one of the
elements of the notion of genocide (the concept of protected group) by the two International Criminal
Tribunals is in line with the object and scope of the rules on genocide (to protect from deliberate
annihilation essentially stable and permanent human groups, which can be differentiated on one of the
grounds contemplated by the Convention and the corresponding customary rules). In addition, this
expansive interpretation does not substantially depart from the text of the Genocide Convention and the
corresponding customary rules, because it too hinges on four categories of groups which, however, are
no longer identified only by their objective connotations but also on the basis of the subjective
perceptions of members of groups. Finally, and perhaps more importantly, this broad interpretation has
not been challenged by States. It may therefore be safely held that that interpretation and expansion has
become part and parcel of international customary law.
183 In Kayishema and Ruzindana the subjective test was only held to be applicable to the notion of ethnic group (“An ethnic
group is one whose members share a common language and culture; or, a group which distinguishes itself, as such (selfidentification);
or a group identified as such by others, including perpetrators of crimes (identification by others)”; at § 98).
The subjective test was instead considered applicable to any group protected by the Convention (and customary law) by the
ICTY Trial Chamber in Jelisi􀃼 (at §§ 70-71: “A group may be stigmatised [...] by way of positive or negative criteria. A
"positive approach" would consist of the perpetrators of the crime distinguishing a group by the characteristics which they
deem to be particular to a national, ethnical, racial or religious group. A "negative approach" would consist of identifying
individuals as not being part of the group to which the perpetrators of the crime consider that they themselves belong and
which to them displays specific national, ethnical, racial or religious characteristics. Thereby, all individuals thus rejected
would, by exclusion, make up a distinct group.”), as well as by an ICTR Trial Chamber in Musema (at § 161), and Rutaganda
(at § 56).
184 G. Verdirame, “The Genocide Definition in the jurisprudence of the ad hoc tribunals”, 49 International and Comparative
Law Quarterly (2000), at 592.
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502. Proof of genocidal intent. Whenever direct evidence of genocidal intent is lacking, as is mostly
the case, this intent can be inferred from many acts and manifestations or factual circumstances.185 In
Jelisi􀃼 the Appeals Chamber noted that “as to proof of specific intent, it may, in the absence of direct
explicit evidence, be inferred from a number of facts and circumstances, such as the general context, the
perpetration of other culpable acts systematically directed against the same group, the scale of atrocities
committed, the systematic targeting of victims on account of their membership of a particular group, or
the repetition of destructive and discriminatory acts” (§ 47).
503. Courts and other bodies charged with establishing whether genocide has occurred must however
be very careful in the determination of the subjective intent. As the ICTY Appeals Chamber rightly put it
in Krsti􀃼 (Appeal), “Genocide is one of the worst crimes known to humankind, and its gravity is
reflected in the stringent requirements of specific intent. Convictions for genocide can be entered only
where intent has been unequivocally established”(Judgment of 19 April 2004, at § 134).On this ground
the Appeals Chamber, finding that the Trial Chamber had erred in demonstrating that the accused
possessed the genocidal intent, reversed the Trial Chamber’s conviction of genocide and sentenced
Krsti􀃼 for complicity in genocide.
504. Similarly, States have shown caution when defining genocidal intent with regard to particular
events, as is shown, for instance, by the position the Canadian authorities took in 1999 with regard to the
question of mass killing of Kosovar Albanians by the armed forces of the central authorities of the
Federal Republic of Yugoslavia (FRY) in the internal armed conflict between Kosovo and the
Government of the FRY.186
505. Is genocide graver than other international crimes? It has widely been held that genocide is the
most serious international crime. In Kambanda (§ 16) and Serushago (§15) the ICTR defined it as “the
crime of crimes” (but see below). In Krsti􀃼 the ICTY Appeals Chamber stated that “Among the grievous
crimes this Tribunal has the duty to punish, the crime of genocide is singled out for special
condemnation and opprobrium. The crime is horrific in its scope; its perpetrators identify entire human
groups for extinction. Those who devise and implement genocide seek to deprive humanity of the
manifold richness its nationalities, races, ethnicities and religions provide. This is a crime against all
185 See Jelisi􀃼 (Appeals Chamber), at § 47; Rutaganda (Appeals Chamber), at § 528; Krsti􀃼 (Appeals Chamber), at § 34. A
number of factors from which intent may be inferred were mentioned in Akayesu (§§523-4: “the general context of the
perpetration of other culpable acts systematically directed against that same group, whether . . . committed by the same
offender or by others”; “the scale of atrocities committed”; the “general nature” of the atrocities committed “in a region or a
country” ; “the fact of deliberately and systematically targeting victims on account of their membership of a particular group,
while excluding the members of other groups”; “the general political doctrine which gave rise to the acts” ;“the repetition of
destructive and discriminatory acts” or “the perpetration of acts which violate, or which the perpetrators themselves consider
to violate the very foundation of the group—acts which are not in themselves covered by the list.…but which are committed
as part of the same pattern of conduct.”), in Musema (§ 166) as well as Kayishema and Ruzindana (§§ 93 and 527: “the
number of group members affected” ;“the physical targeting of the group or their property”; “the use of derogatory language
toward members of the targeted group”; “the weapons employed and the extent of bodily injury”; “the methodical way of
planning”; “the systematic manner of killing” and “the relative proportionate scale of the actual or attempted destruction of a
group.”).
186 In a Memorandum of 30 March 1999, the Legal Bureau of the Canadian Department of Foreign Affairs pointed out first
that in the case of the Kosovar Albanians one element of genocide was present (“targeting a group on the basis of ethnicity”).
Then, after noting that so-called ethnic cleansing has been expressly excluded from the Genocide Convention in the 1948
negotiations, it pointed that that such notion (namely the forcible expulsion of person from their homes in order to escape the
threat of subsequent ill-treatment), showed an intent different from the “intent to destroy”. It went on note that “Ethnic
Albanians are being killed and injured in order to drive them from their homes, not in order to destroy them as a group, in
whole or in part” (in 37 Canadian Yearkook of International Law 1999, at 328; emphasis in the original).
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humankind, its harm being felt not only by the group targeted for destruction, but by all of
humanity.”(§36).
506. It is indisputable that genocide bears a special stigma, for it is aimed at the physical obliteration
of human groups. However, one should not be blind to the fact that some categories of crimes against
humanity may be similarly heinous and carry a similarly grave stigma. In fact, the Appeals Chamber of
the ICTR reversed the view that genocide was the “crime of crimes”. In Kayishema and Ruyindana, the
accused alleged “that the Trial Chamber erred in finding that genocide is the “crime of crimes” because
there is no such hierarchical gradation of crimes”. The Appeals Chamber agreed: “The Appeals
Chamber remarks that there is no hierarchy of crimes under the Statute, and that all of the crimes
specified therein are “serious violations of international humanitarian law”, capable of attracting the
same sentence.” (§ 367).187
II. DO THE CRIMES PERPETRATED IN DARFUR CONSTITUTE ACTS OF GENOCIDE?
507. General. There is no doubt that some of the objective elements of genocide materialized in
Darfur. As discussed above, the Commission has collected substantial and reliable material which tends
to show the occurrence of systematic killing of civilians belonging to particular tribes, of large-scale
causing of serious bodily or mental harm to members of the population belonging to certain tribes, and
of massive and deliberate infliction on those tribes of conditions of life bringing about their physical
destruction in whole or in part (for example by systematically destroying their villages and crops, by
expelling them from their homes, and by looting their cattle). However, two other constitutive elements
of genocide require a more in depth analysis, namely whether (a) the target groups amount to one of the
group protected by international law, and if so (b) whether the crimes were committed with a genocidal
intent. These elements are considered separately below.
508. Do members of the tribes victims of attacks and killing make up objectively a protected group?
The various tribes that have been the object of attacks and killings (chiefly the Fur, Massalit and
Zaghawa tribes) do not appear to make up ethnic groups distinct from the ethnic group to which persons
or militias that attack them belong. They speak the same language (Arabic) and embrace the same
religion (Muslim).188 In addition, also due to the high measure of intermarriage, they can hardly be
distinguished in their outward physical appearance from the members of tribes that allegedly attacked
them. Furthermore, inter-marriage and coexistence in both social and economic terms, have over the
years tended to blur the distinction between the groups. Apparently, the sedentary and nomadic character
of the groups constitutes one of the main distinctions between them. It is also notable that members of
the African tribes speak their own dialect in addition to Arabic, while members of Arab tribes only speak
Arabic.
509. If not, may one hold that they subjectively make up distinct groups? If objectively the two sets of
persons at issue do not make up two distinct protected groups, the question arises as to whether they may
nevertheless be regarded as such subjectively, in that they perceive each other and themselves as
constituting distinct groups.
187 Note however that the Appeals Chamber concluded that the Trial Chamber had made no reversable error: “The Appeals
Chamber finds that the Trial Chamber’s description of genocide as the “crime of crimes” was at the level of general
appreciation, and did not impact on the sentence it imposed.” (§ 367). See also Semanya, ICTR Trial Chamber, § 555.
188 See section above, ‘Historical and social background …’
130
510. As noted above, in recent years the perception of differences has heightened and has extended to
distinctions that were earlier not the predominant basis for identity. The rift between tribes, and the
political polarization around the rebel opposition to the central authorities, has extended itself to issues
of identity. Those tribes in Darfur who support rebels have increasingly come to be identified as
“African” and those supporting the government as the “Arabs”. A good example to illustrate this is that
of the Gimmer, a pro-government African tribe and how it is seen by the African tribes opposed to the
government as having been “Arabized”. Clearly, not all “African” tribes support the rebels and not all
“Arab” tribes support the Government. Some “Arab” tribes appear to be either neutral or even support
the rebels. Other measures contributing to a polarization of the two groups include the 1987-1989
conflict over access to grazing lands and water sources between nomads of Arab origin and the
sedentary Fur. The Arab-African divide has also been fanned by the growing insistence on such divide
in some circles and in the media. All this has contributed to the consolidation of the contrast and
gradually created a marked polarisation in the perception and self-perception of the groups concerned.
At least those most affected by the conditions explained above, including those directly affected by the
conflict, have come to perceive themselves as either “African” or “Arab”.
511. There are other elements that tend to show a self-perception of two distinct groups. In many
cases militias attacking “African” villages tend to use derogatory epithets, such as “slaves”, “blacks”,
Nuba”, or “Zurga” that might imply a perception of the victims as members of a distinct group.
However, in numerous other instances they use derogatory language that is not linked to ethnicity or
race.189 As for the victims, they often refer to their attackers as Janjaweed, a derogatory term that
normally designates “a man (a devil) with a gun on a horse.” However, in this case the term Janjaweed
clearly refers to “militias of Arab tribes on horseback or on camelback.” In other words, the victims
perceive the attackers as persons belonging to another and hostile group.
512. For these reasons it may be considered that the tribes who were victims of attacks and killings
subjectively make up a protected group.
513. Was there a genocidal intent? Some elements emerging from the facts including the scale of
atrocities and the systematic nature of the attacks, killing, displacement and rape, as well as racially
motivated statements by perpetrators that have targeted members of the African tribes only, could be
indicative of the genocidal intent. However, there are other more indicative elements that show the lack
of genocidal intent. The fact that in a number of villages attacked and burned by both militias and
Government forces the attackers refrained from exterminating the whole population that had not fled,
but instead selectively killed groups of young men, is an important element. A telling example is the
attack of 22 January 2004 on Wadi Saleh, a group of 25 villages inhabited by about 11 000 Fur.
189 Epithets that eyewitnesses or victims reported to the Commission include the following: “This is your end. The
Government armed me.” “You are Massalit, why do you come here, why do you take our grass? You will not take anything
today.” “You will not stay in this country.” Destroy the Torabora.” “You are Zaghawa tribes, you are slaves.” “Where are
your fathers, we would like to shoot and kill them”. “Take your cattle, go away and leave the village.” In an attack of 1
November 2003 on the village of Bir-Saliba (in the region of Sirba, Kulbus), a witness heard the attackers yell “Allah Akbar,
we are going to evict you Nyanya” and explained that “Nyanya” in their dialect is the name of the poison used to kill insects
(however, probably this derogatory term was also used as a reference to the rebel organization in the South that existed before
the establishment of the SPLA, and was called NYANYA).
During rape: “You are the mother of the people who are killing our people.” “Do not cut the grass because the camels use it.”
“You sons of Torabora we are going to kill you.” “”You do not have the right to be educated and must be Torabora” (to an
18 year old student of a boarding school); “You are not allowed to take this money to fathers that are real Torabora” (to a girl
from whom the soldier that raped her also took all her money); “You are very cheap people, you have to be killed”.
131
According to credible accounts of eye witnesses questioned by the Commission, after occupying the
villages the Government Commissioner and the leader of the Arab militias that had participated in the
attack and burning, gathered all those who had survived or had not managed to escape into a large area.
Using a microphone they selected 15 persons (whose name they read from a written list), as well as 7
omdas, and executed them on the spot. They then sent all elderly men, all boys, many men and all
women to a nearby village, where they held them for some time, whereas they executed 205 young
villagers, who they asserted were rebels (Torabora). According to male witnesses interviewed by the
Commission and who were among the survivors, about 800 persons were not killed (most young men of
those spared by the attackers were detained for some time in the Mukjar prison).
514. This case clearly shows that 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.
515. Another element that tends to show the Sudanese Government’s lack of genocidal intent can be
seen in the fact that persons forcibly dislodged from their villages are collected in IDP camps. In other
words, the populations surviving attacks on villages are not killed outright, so as to eradicate the group;
they are rather forced to abandon their homes and live together in areas selected by the Government.
While this attitude of the Sudanese Government may be held to be in breach of international legal
standards on human rights and international criminal law rules, it is not indicative of any intent to
annihilate the group. This is all the more true because the living conditions in those camps, although
open to strong criticism on many grounds, do not seem to be calculated to bring about the extinction of
the ethnic group to which the IDPs belong. Suffice it to note that the Government of Sudan generally
allows humanitarian organizations to help the population in camps by providing food, clean water,
medicines and logistical assistance (construction of hospitals, cooking facilities, latrines, etc.)
516. Another element that tends to show the lack of genocidal intent is the fact that in contrast with
other instances described above, in a number of instances villages with a mixed composition (African
and Arab tribes) have not been attacked. This for instance holds true for the village of Abaata (north-east
of Zelingei, in Western Darfur), consisting of Zaghawa and members of Arab tribes.
517. Furthermore, it has been reported by a reliable source that one inhabitant of the Jabir Village
(situated about 150 km from Abu Shouk Camp) was among the victims of an attack carried out by
Janjaweed on 16 March 2004 on the village. He stated that he did not resist when the attackers took 200
camels from him, although they beat him up with the butt of their guns. Instead, prior to his beating, his
young brother, who possessed only one camel, had resisted when the attackers had tried to take his
camel, and had been shot dead. Clearly, in this instance the special intent to kill a member of a group to
destroy the group as such was lacking, the murder being only motivated by the desire to appropriate
cattle belonging to the inhabitants of the village. Irrespective of the motive, had the attackers’ intent
been to annihilate the group, they would not have spared one of the brothers.
518. Conclusion. On the basis of the above observations, the Commission concludes that the
Government of Sudan has not pursued a policy of genocide. Arguably, two elements of genocide might
be deduced from the gross violations of human rights perpetrated by Government forces and the militias
under their control. These two elements are: first, the actus reus consisting of killing, or causing serious
bodily or mental harm, or deliberately inflicting conditions of life likely to bring about physical
132
destruction; and, second, on the basis of a subjective standard, the existence of a protected group being
targeted by the authors of criminal conduct. Recent developments have led to the perception and selfperception
of members of African tribes and members of Arab tribes as making up two distinct ethnic
groups. However, one crucial element appears to be missing, at least as far as the central Government
authorities are concerned: genocidal intent. 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 organized attacks on villages pursued the intent to drive the victims from their
homes, primarily for purposes of counter-insurgency warfare.
519. However, as pointed out above, the Government also entertained the intent to drive a particular
group out of an area on persecutory and discriminatory grounds for political reasons. In the case of
Darfur this discriminatory and persecutory intent may be found, on many occasions, in some Arab
militias, as well as in the central Government: the systematic attacks on villages inhabited by civilians
(or mostly by civilians) belonging to some “African” tribes (Fur, Masaalit and Zaghawa), the systematic
destruction and burning down of these villages, as well as the forced displacement of civilians from
those villages attest to a manifestly persecutory intent. In this respect, in addition to murder as a crime
against humanity, the Government may be held responsible for persecution as a crime against humanity.
This would not affect the conclusion of the Commission that the Government of Sudan has not pursued
the policy of genocide in Darfur.
520. One should not rule out the possibility that in some instances 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.190 If any single
individual, including Governmental officials, has such intent, it would be for a competent court to make
such a determination on a case by case basis. Should the competent court determine that in some
instances certain individuals pursued the genocidal intent, the question would arise of establishing any
possible criminal responsibility of senior officials either for complicity in genocide or for failure to
investigate, or repress and punish such possible acts of genocide.
521. Similarly, it would be for a competent court to determine whether some individual members of
the militias supported by the Government, or even single Government officials, pursued a policy of
extermination as a crime against humanity, or whether murder of civilians was so widespread and
systematic as to acquire the legal features proper to extermination as a crime against humanity.
522. The above conclusion that no genocidal policy has been pursued and implemented in Darfur by
the Government authorities, directly or though the militias under their control, 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. This is exactly what happened in Darfur, where massive
atrocities were perpetrated on a very large scale, and have so far gone unpunished.
190 As the ICTR Appeals Chamber rightly noted in Kayishema and Ruzindana, “genocide is not a crime that can only be
committed by certain categories of persons. As evidenced by history, it is a crime which has been committed by the
low-level executioner and the high-level planner or instigator alike.”(at § 170).
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SECTION III
IDENTIFICATION OF THE POSSIBLE PERPETRATORS OF
INTERNATIONAL CRIMES
I. GENERAL
523. The Commission has satisfied itself, on the basis of credible probative information which it has
collected or has been rendered to it, and which is consistent with reports from various reliable sources,
that a number of persons may be suspected to bear responsibility for crimes committed in Darfur.
Although the heads of responsibility may vary, the probative elements (both documentary and
testimonial) the Commission has gathered are sufficient to indicate a number of persons as possibly
responsible for those crimes.
524. As mentioned earlier in this report, to “identify perpetrators”, the Commission has decided that
the most appropriate standard was that of requiring “a reliable body of material consistent with other
verified circumstances, which tends to show that a person may reasonably be suspected of being
involved in the commission of a crime.” The Commission does not therefore make final judgments as to
criminal guilt; rather, it makes an assessment of possible suspects that will pave the way for future
investigations, and possible indictments, by a prosecutor, and convictions by a court of law.
525. The Commission has however decided to withhold the names of these persons from the public
domain. It will instead list them in a sealed file that will be placed in the custody of the United Nations
Secretary-General. The Commission recommends that this file be handed over to a competent Prosecutor
(the ICC Prosecutor, according to the Commission’s recommendations), who will use that material as he
or she deems fit for his or her investigations. A distinct and voluminous sealed file, containing all the
evidentiary material collected by the Commission, will be handed over to the High Commissioner for
Human Rights. This file should be delivered to a competent Prosecutor..
526. The decision to keep confidential the names of the persons who may be suspected to be
responsible for international crimes in Darfur is based on three main grounds. First, it would be contrary
to elementary principles of due process or fair trial to make the names of these individuals public. In this
connection, it bears emphasizing Article 14 of the ICCPR and Article 55 (2) of the ICC Statute,191 which
concern the rights of persons under investigation and which may be reasonably held to codify customary
191 “Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that
person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under
Part 9, that person shall also have [in addition to the rights enumerated in Article 55(1)] the following rights of which he
or she shall be informed prior to being questioned:
(a)To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime
within the jurisdiction of the Court;
(b)To remain silent, without such silence being a consideration in the determination of guilt or innocence;
(c) To have legal assistance of the person’s choosing, or, if the person does not have legal assistance, to have legal
assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the
person in any such case if the person does not have sufficient means to pay for it;
(d)To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.”
134
international law. These rights include the right to be informed that there are grounds to believe that the
person has committed a crime, the right to remain silent and to have legal assistance. The publication of
the names would be done without granting the possible perpetrators the fundamental rights that any
suspect must enjoy.
527. The aforementioned ground for withholding the names of the persons suspected responsible is
particularly valid considering that the situation in Darfur is currently subject to intense scrutiny by the
international community. Were the Commission to name those persons, the world media might indeed
be inclined to jump to conclusions and hold that such persons were outright guilty, and not simply
suspected of bearing responsibility.
528. The second and related ground for which the Commission deems it indispensable to withhold
names is linked to the nature of the mission discharged by the Commission. As pointed out above, the
Commission has not been vested with prosecutorial or investigative functions proper. It has therefore
confined itself to collecting reliable information about the persons that might be suspected to be
responsible for crimes in Darfur. Most of the persons the Commission has interviewed took part on the
basis of assurances of confidentiality. The Commission therefore did not take signed witness statements,
but rather made careful accounts of the testimony given by witnesses. In addition to witness accounts, it
collected police reports, judicial decisions, hospital records, etc. It also made crime scene verification
(checking for consistency with witness version, photographing and mapping, and assessing located grave
sites). The Commission has thus gathered information that allows it to take a first step in the direction of
ensuring accountability for the crimes committed in Darfur, by pointing to the appropriate prosecutorial
and judicial authorities those who deserve thorough investigation. However, the information it has
gathered would be misused if names were to be published, as this could lead to premature judgements
about criminal guilt that would not only be unfair to the suspect, but would also jeopardize the entire
process undertaken to fight impunity.
529. The third ground for confidentiality is the need to protect witnesses heard by the Commission (as
well as prospective witnesses). In many instances it would not be difficult for those who may be
suspected of bearing responsibility to identify witnesses who have spoken to the Commission, and
intimidate, harass or even kill those witnesses. It is for this reason that not only the name of the possible
perpetrator will be withheld, but also the list of witnesses questioned by the Commission, as well as
other reliable sources of probative material. These will be included in the sealed file, which, as stated
above, shall only be handed over to the Prosecutor.
530. To render any discussion on perpetrators intelligible, two legal tools are necessary: the categories
of crimes for which they may be suspected to be responsible, and the enumeration of the various modes
of participation in international crimes under which the various persons may be suspected of bearing
responsibility. As the categories of international crimes have been listed elsewhere in the report, it may
suffice here to recall briefly the various modes of participation in international crimes giving rise to
individual criminal responsibility. In this context, the Commission’s findings on possible perpetrators is
presented in the most anonymous yet comprehensive way possible.
531. The Commission notes at the outset that it has identified ten (10) high-ranking central
Government officials, seventeen (17) Government officials operating at the local level in Darfur,
fourteen (14) members of the Janjaweed, as well as seven (7) members of the different rebel groups and
135
three (3) officers of a foreign army (who participated in their individual capacity in the conflict), who
may be suspected of bearing individual criminal responsibility for the crimes committed in Darfur.
532. The Commission’s mention of the number of individuals it has identified should not however be
taken as an indication that the list is exhaustive. First, the Commission has collected numerous names of
other possible Janjaweed perpetrators, who have been identified by one eyewitness as participants or
leaders of an attack. The names of these individuals will be listed and can be found in the sealed body of
evidentiary material handed over to the High Commissioner for Human Rights, for transmittal to the
judicial accountability mechanism decided by the Security Council. Furthermore, and importantly, the
Commission has gathered substantial material on different influential individuals, institutions, groups of
persons, or committees, which have played a significant role in the conflict in Darfur, including on
planning, ordering, authorizing, and encouraging attacks. These include, but are not limited to, the
military, the National Security and Intelligence Service, the Military Intelligence and the Security
Committees in the three States of Darfur. These institutions should be carefully investigated so as to
determine the possible criminal responsibility of individuals taking part in their activities and
deliberations.
II. MODES OF CRIMINAL LIABILITY FOR INTERNATIONAL CRIMES
1. Perpetration or co-perpetration of international crimes
533. Under international criminal law, all those who, individually or jointly, take a conduct considered
prohibited and criminalized, bear individual criminal liability for their conduct, if the requisite mens rea
is present. Furthermore, a person may “commit” a crime by omission, where he or she has a duty to
act.192
(i.) The Government of the Sudan
534. The Commission has identified six (6) officials of the Government of the Sudan who participated
directly in the commission of an international crime in Darfur. Five of these individuals, members of the
armed forces operating in Darfur or civilian officials of the local Government in one of the three Darfur
States, have led or otherwise participated in attacks against civilians, leading to forcible displacement of
the affected villagers from their homes. These individuals may be responsible, under the doctrine of
joint criminal enterprise, for the crimes committed by others during attacks. However, these individuals
can be suspected of having committed indiscriminate attacks on civilians as a war crime. Finally, one
official is suspected of having committed the crime of torture as a crime against humanity, on the
persons of various detained individuals suspected of rebel activities.
(ii.) Janjaweed
192 See Rutaganda, ICTR Trial Chamber, § 41; Kunarac, Kovac & Vukovi􀃼, ICTY Trial Chamber, § 390, citing Tadi􀃼,
ICTY Appeals Chamber, §188.
136
535. The Commission has collected reliable material tending to show that fourteen (14) members of
the Janjaweed have participated directly in the commission of an international crime in Darfur. These
individuals have been identified by eyewitnesses when participating in an attack on a village, which
often involved burning, looting, killing and sometimes rape. These individuals may be responsible,
under the doctrine of joint criminal enterprise, for the crimes committed by others during attacks.
However, they may be held responsible as direct perpetrators for the crimes they undeniably committed.
Some of them are suspected of having committed various crimes simultaneously. Of these Janjaweed
identified as perpetrators by the Commission, all of them are suspected of having committed
indiscriminate attacks on civilians as a war crime. In addition, one (1) is also suspected of having
participated in illegal detention of civilians and two (2) in the murder of civilians as crimes against
humanity.
(iii.) Rebels
536. Three (3) members of the rebel groups have been seen by eyewitnesses as having participated in
an attack on a village, where looting, abduction, destruction and killing occurred. These individuals may
be responsible, under the doctrine of joint criminal enterprise, for the crimes committed by others during
attacks. However, they may be held responsible as direct perpetrators for the crimes they undeniably
committed. In this case, they can be suspected of having committed indiscriminate attacks on civilians as
a war crime.
(iv.)Foreign army officers (participating in their personal capacity)
537. Three (3) foreign army officers have been seen by eyewitnesses as having participated in an
attack on a village, where looting, destruction and killing occurred. These individuals may be
responsible, under the doctrine of joint criminal enterprise, for the crimes committed by others during
attacks. However, they may be held responsible as direct perpetrators for the crimes they undeniably
committed. In this case, they can be suspected of having committed indiscriminate attacks on civilians as
a war crime.
2. Joint criminal enterprise to commit international crimes
538. The notion of joint criminal enterprise in international criminal law. As most national penal
systems, also international criminal law does not hold criminally liable only those persons who, either
alone or jointly with other persons, physically commit international crimes. International law also
criminalizes conduct of all those who participated, although in varying degrees, in the commission of
crimes, without performing the same acts. We will discuss below the notions of planning, ordering,
instigating, aiding and abetting. International law, as was held in various cases,193 also upholds the
notion of joint criminal enterprise or of “common purpose” or “common design” and thus criminalizes
the acts of a multitude of individuals who undertake actions that could not be carried out singly but
perforce require the participation of more than one person. Indeed, in international criminal law the
193 See Tadi􀃼 Appeals judgment (1999), at §§ 185-229, the Trial Chamber decision in Brðianin and Tali􀃼 (Decision on
Form of Further Amended Indictment and Prosecution Application to Amend), of 26 June 2001, at 22-49. See also the
Trial Chamber judgment in Kordi􀃼 and 􀃽erkez, (judgment of 26 February 2001), at §§ 393-400, Krsti􀃼 (judgment of 2
August 2001, at §§ 611-46), Kvocka and others (judgment of 2 November 2001, at §§ 265-318), Vasiljevi􀃼 (judgment
of 29 November 2002), at §§ 63-9.
137
notion of joint criminal enterprise acquires greater significance than in most national legal systems, for
most international crimes (crimes against humanity, genocide and most war crimes) are offences where
the final criminal result may only be achieved through the involvement of many persons. This being the
case, it would be illogical and inconsistent only to punish the person who is at the end of the chain, the
man who pulls the trigger. All those who, although in varying degrees, participate in the accomplishment
of the final result, must bear responsibility, or, as an ICTY Trial Chamber put it: “If the agreed crime is
committed by one or other of the participants in the joint criminal enterprise, all of the participants in
that enterprise are guilty of the crime regardless of the part played by each in its commission”.194
539. The necessary requirements for there arising criminal liability for joint criminal enterprise are the
following: (i) a plurality of persons; (ii) the existence of a common plan involving the commission of an
international crime (this plan need, design or purpose need not be previously arranged or formulated, but
“may materialise extemporaneously and be inferred from the fact that a plurality of persons acts in
unison to put into effect a joint criminal enterprise”195; (iii) participation of the accused persons in the
execution of the common plan.
540. There may be two principal modalities of participation in a joint criminal enterprise to commit
international crimes.196 First, there may be a multitude of persons participating in the commission of a
crime, who share from the outset a common criminal design (to kill civilians indiscriminately, to bomb
hospitals, etc.). In this case, all of them are equally responsible under criminal law, although their role
and function in the commission of the crime may differ (one person planned the attack, another issued
the order to the subordinates to take all the preparatory steps necessary for undertaking the attack, others
physically carried out the attack, and so on). The crucial factor is that the participants voluntarily took
part in the common design and intended the result. Of course, depending on the importance of the role
played by each participant, their position may vary at the level of sentencing, and international judges
may pass different sentences. Nevertheless, they are all equally liable under criminal law.197
541. There may be another major form of joint criminal liability. It may happen that while a multitude
of persons share from the outset the same criminal design, one or more perpetrators commit a crime that
had not been agreed upon or envisaged at the beginning, neither expressly nor implicitly, and therefore
did not constitute part and parcel of the joint criminal enterprise. For example, a military unit, acting
under superior orders, sets out to detain, contrary to international law, a number of enemy civilians;
however, one of the servicemen, in the heat of military action, kills or tortures one of those civilians. If
this is the case, the problem arises of whether the participants in the group other than the one who
committed the crime not previously planned or envisaged, also bear criminal responsibility for such
crime. As held in the relevant case law,198 ‘the responsibility for a crime other than the one agreed upon
in the common plan arises only if, under the circumstances of the case, (i) it was foreseeable that such a
crime might be perpetrated by one or other members of the group, and (ii) the accused willingly took that
risk.” In the example given above, and dependent upon the circumstances of each case, a court would
have to determine whether it was foreseeable that detention at gunpoint of enemy servicemen might
result in death or torture.
194 Krnojelac, ICTY Trial Chamber, 15 March 2002, § 82.
195 See Tadi􀃼 (Appeal), 1999, at § 227.
196 Although the ICTY Appeals Chamber, in Tadi􀃼 (Appeal), 1999 ( at §§ 196, 202-204) found that the case law points
to three different categories, in fact they boil down to two, for the first two are similar.
197 On this class of joint criminal enterprise see Tadi􀃼 (Appeals), 1999, at §§, 196; Krsti􀃼 (judgment of 2 August 2001,
at §§ 611-46); Kvocka and others (judgment of 2 November 2001, at §§ 265-318), Vasiljevi􀃼 (judgment of 29
November 2002, at §§ 63-9.
198 See the ICTY Appeals Chamber’s judgment in Tadi􀃼 (Appeal), 1999, at § 228.
138
(i.) The Government of the Sudan
542. The Commission has identified six (6) members of the central Government of the Sudan who can
be suspected of having committed an international crime under the notion of joint criminal enterprise.
Some are members of the Sudan armed forces and some are high officials of the central Government in
Khartoum. Considering that the crimes committed in Darfur were widespread and based on a overall
policy, these persons have, in their official capacity and in the exercise of their functions, taken actions
that have contributed to the commission of crimes in Darfur. Depending on the circumstances of each
case, these individuals can thus be suspected, through the doctrine of joint criminal enterprise, of having
committed murder of civilians as a crime against humanity; indiscriminate attacks on civilians as a war
crime; forced displacement as a crime against humanity; and destruction of civilian objects as a war
crime. Three (3) of them are also suspected of being responsible under the doctrine of joint criminal
enterprise for the crime of enforced disappearance, a crime against humanity.
543. The Commission has also identified eight (8) local Government officials or members of the
armed forces operating in Darfur who can be suspected of international crimes under the doctrine of
joint criminal enterprise. Three (3) have contributed by their actions in the detention and execution of
civilians. The five (5) others, as noted above, have been identified by eyewitnesses when participating in
an attack on a village, which often involved burning, looting, and killing. Depending on the
circumstances of each case, these individuals can thus be suspected, through the doctrine of joint
criminal enterprise, of having committed murder of civilians as a crime against humanity; forcible
confinement of civilians as a crime against humanity, forced displacement as a crime against humanity;
destruction of civilian objects as a war crime.
(ii.) Janjaweed
544. The Commission has identified fourteen (14) Janjaweed who can be suspected of having
committed an international crime under the notion of joint criminal enterprise. These individuals have
been identified by eyewitnesses when participating in an attack on a village, which often involved
burning, looting, killing and sometimes rape. Depending on the circumstances of each case, these
individuals can thus be suspected, through the doctrine of joint criminal enterprise, of having committed
murder of civilians as a crime against humanity; indiscriminate attacks on civilians as a war crime;
destruction of civilian objects and looting as war crimes; and rape, torture and forcible displacement of
civilians as crime against humanity.
(iii.) Rebels
545. Three (3) members of the rebel groups have been seen by eyewitnesses as having participated in
an attack on a village, where looting, abduction, destruction and killing occurred. These individuals,
depending of the circumstances, may be responsible, under the doctrine of joint criminal enterprise, for
the crimes committed during these attacks, namely murder of civilians, destruction of civilian objects,
unlawful detention of civilians and looting as war crimes.
(iv.) Foreign army officers (acting in their personal capacity)
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546. Three (3) foreign army officers have been seen by eyewitnesses as having participated in an
attack on a village, where looting, destruction and killing occurred. These individuals may be
responsible, under the doctrine of joint criminal enterprise, for the crimes committed during these
attacks, namely murder of civilians, destruction of civilian objects and looting as war crimes.
3. Aiding and abetting international crimes
547. The notion of aiding and abetting in international criminal law. As pointed by international case
law,199 aiding and abetting a crime involves that a person (the accessory) gives practical assistance
(including the provision of arms), encouragement or moral support to the author of the main crime (the
principal), and such assistance has a substantial effect on the perpetration of the crime. The subjective
element or mens rea resides in the accessory having knowledge that his actions assist the perpetrator in
the commission of the crime.200
(i.) The Government of the Sudan
548. The Commission has identified six (6) central Government officials who may be suspected of
aiding and abetting international crimes in Darfur, by recruiting, arming, providing financial support or
otherwise aiding and abetting the crimes committed by the Janjaweed, which include murder of civilians
as a crime against humanity; indiscriminate attacks on civilians and destruction of civilian objects as war
crimes, forced displacement as a crime against humanity; as well as looting as war crime and rape as
crime against humanity. The Commission notes that a pattern of looting and rape by the Janjaweed has
clearly emerged during the conflict in Darfur, a fact which could not have been ignored by those
identified by the Commission. By continuing their actions nonetheless, they may be suspected of having
aided and abetted the Janjaweed to loot and rape.
199 See the decisions by the ICTR in Akayesu (§§ 704-5), Musema (§126) and by the ICTY in Furundžija (§§ 190-249)
and Kunarac and others (§391).
200 The distinction between responsibility for aiding and abetting and responsibility for joint criminal enterprise was
explained in Tadi􀃼, Appeals Chamber, §. 229:
“(i) The aider and abettor is always an accessory to a crime perpetrated by another person, the principal.
(ii) In the case of aiding and abetting no proof is required of the existence of a common concerted plan, let alone of the
pre-existence of such a plan. No plan or agreement is required: indeed, the principal may not even know about the
accomplice’s contribution.
(iii) The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the
perpetration of a certain specific crime (murder, extermination, rape, torture, wanton destruction of civilian property,
etc.), and this support has a substantial effect upon the perpetration of the crime. By contrast, in the case of acting in
pursuance of a common purpose or design, it is sufficient for the participant to perform acts that in some way are
directed to the furthering of the common plan or purpose.
(iv) In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider
and abettor assist the commission of a specific crime by the principal. By contrast, in the case of common purpose or
design more is required (i.e., either intent to perpetrate the crime or intent to pursue the common criminal design plus
foresight that those crimes outside the criminal common purpose were likely to be committed), as stated above.”
140
549. For the same reasons, the Commission has identified seven (7) local Government officials or
members of the armed forces operating in Darfur who may be suspected of aiding and abetting the
Janjaweed to commit the crimes noted above.
(ii.) Janjaweed
550. The Commission has identified four (4) Janjaweed who may be suspected of aiding and abetting
international crimes in Darfur, by recruiting, arming, providing financial support or otherwise aiding and
abetting the crimes committed by the Janjaweed, including murder of civilians as a crime against
humanity; indiscriminate attacks on civilians and destruction of civilian objects as war crimes, forced
displacement as a crime against humanity; as well as looting as war crime and rape as crime against
humanity. The Commission notes that a pattern of looting and rape by the Janjaweed has clearly
emerged during the conflict in Darfur, a fact which could not have been ignored by those identified by
the Commission. By continuing their actions nonetheless they may be suspected of having aided and
abetted the Janjaweed to loot and rape.
4. Planning international crimes
551. Planning consists of devising, agreeing upon with others, preparing and arranging for the
commission of a crime. As held by international case law, planning implies that “one or several persons
contemplate designing the commission of a crime at both the preparatory and executory phases.”201
552. It is apparent from the exposition of violations set out in Section I of this Report that serious
violations of human rights and humanitarian law were perpetrated on a large scale by Government forces
or militias under Government control. Such violations as deliberate attacks on civilians, or
indiscriminate attacks on civilians and civilian objects, or attacks on villages hiding or sheltering rebels,
which caused disproportionate harm to civilians, or mass executions, as well as forced displacement of
civilians from their homes were widespread and systematic, and amounted to crimes against humanity.
In addition, they were so frequent and repeated, that they made up a systematic pattern of criminal
conduct. In other words, these attacks manifestly resulted from a centrally planned and organized policy.
553. Thus, it can safely be said that the magnitude and large-scale nature of some crimes against
humanity (indiscriminate attacks in civilians, forced transfer of civilians), as well as their consistency
over a long period of time (February 2003 to the present), necessarily imply that these crimes result from
a central planning operation.
554. Against this background, the Commission has found reliable material which tends to show that
two (2) high officials of the local authorities in Darfur have been involved in the planning of crimes
against humanity and large-scale war crimes in Darfur, including indiscriminate attacks on civilians and
destruction of civilian objects as war crimes; and murder of civilians as crime against humanity.
5. Ordering international crimes
201 See the rulings of an ICTR Trial Chamber in Akayesu (§480) and ICTY Trials Chambers in Blaški􀃼 (at §279) and
Kordi􀃼 and 􀃽erkez (at § 386).
141
555. As held by international case law, the order to commit an international crime need not be given in
writing or in any particular form. Furthermore, the existence of an order may be proved though
circumstantial evidence. 202 Ordering implies however a superior-subordinate relationship between the
person giving the order and the one executing it. The ‘superior’ must be in a position where he or she
possesses the authority to order203.
(i.) The Government of the Sudan
556. By reason of the official position in the chain of command, or by description of eyewitnesses in
the battlefield, the Commission has gathered reliable material and information which tend to show that
two (2) members of the central Government of the Sudan and two (2) members of the military operating
in Darfur can be suspected of having ordered the commission of crimes against humanity and large-scale
war crimes in Darfur, including indiscriminate attacks on civilians and destruction of civilian objects as
war crimes; and forced displacement as crime against humanity.
(ii.) Janjaweed
557. The Commission has collected reliable information which allows it to point to two (2) members
of the Janjaweed who have directly ordered the men under their control to execute civilians. They may
be suspected of having ordered the murder of civilians, a crime against humanity.
6. Failing to prevent or repress the perpetration of international crimes (superior responsibility)
558. The notion of superior responsibility (or command responsibility) in international criminal law.
In international law persons who hold positions of command may be held criminally responsible if they
knowingly fail to prevent and repress international crimes committed by their subordinates. Command
responsibility is a well-established principle of international law that reflects the hierarchical structure of
disciplined forces.204 This responsibility for omission, set out in a number of national and international
cases,205 arises under the following cumulative conditions: (i) the person exercises effective command,
control or authority over the perpetrators; it is not necessary for a formal hierarchical structure to exist,
for a de facto position of authority or control may suffice; in addition, the superior may be either a
military commander or a politician or a civilian leader; moreover, the authority or control need not be
exercised directly over the perpetrators of the crimes, but may be wielded through the chain of
command; (ii) the superior knew, or should have known, or had information which should have enabled
202 See Blaški􀃼, ICTY Trial Chamber, § 281.
203 See Kordi􀃼 and Cerkez, ICTY Trial Chamber, § 380, confirmed by the Appeals Chamber, 17 December 2004, § 28..
204 See 72 British Yearbook of International Law 2001, at 699.
205 They start with Yamashita, brought before the US Supreme Court in 1946 (judgment of 4 February 1946, 327 US 1,
66 S. Ct. 340, 90 L. Ed. 499 (1946)) and upheld in some cases brought before the US Court sitting in Nuremberg (see
US v. Pohl and others, judgment of 3 November 1947, in Trials of War Criminals before the Nürnberg Military
Tribunals under Control Council Law no. 10 (Washington, DC: US Govt. Print, Office, 1950, vol. V at 1011 and 1055);
US v. von List and others, judgment of 19 February 1948 (ibidem, vol. XI, at 512-515, 1230, 1244, 1256-1271, 1299,
1303); US v. von Leeb and others, judgment of 28 October 1948 (ibidem, vol. XI, at 510-550, 631), US v. von
Weizsäcker, judgment of 12 December 1949 (ibidem, vol. XIV, at 487, 517, 671), , as well as in Delali􀃼 and others (§§
354-8), in Blaski􀃼 (§§295-303), in Kordi􀃼 and 􀃽erkez (§ 405-17).
142
him to conclude in the circumstances prevailing at the time, that crimes were being or had been
committed, and consciously disregarded such information or knowledge; (iii) the superior failed to take
the necessary action to prevent or repress the crimes; in particular, he failed to take all the measures
necessary to prevent the perpetration of the crimes; or he failed to stop the crimes while they were being
committed; or failed to report to the relevant authorities that his subordinates had engaged in criminal
conduct, or else failed to order the punishment of the perpetrators, if such punishment fell within his
remit.
559. Depending on the circumstances of each case, the subjective element required by international
law is knowledge (that is awareness that crimes are being committed or are about to be committed) and
intent (the desire or will not to take action) or at least recklessness (awareness that failure to prevent the
action of subordinates risks bringing about certain harmful consequences, and nonetheless ignoring such
risk). Instead, when the superior should have known that crimes were being committed or had been
committed, culpable negligence seems to be sufficient. Finally, when the superior knows that crimes
have been committed and fails to act to repress them, what is required, in addition to knowledge, is
intent not to take action (or at least culpable negligence)
560. It is necessary to add that the notion of superior responsibility also applies to internal armed
conflicts, as authoritatively held by international criminal tribunals.206 The legal opinion of States is to
the same effect.207
561. With regard to the position of rebels, it would be groundless to argue (as some rebel leaders did
when questioned by the Commission) that the two groups of insurgents (SLA and JEM) were not tightly
organized militarily, with the consequence that often military engagements conducted in the field had
not been planned, directed or approved by the military leadership. Even assuming that this was true,
commanders must nevertheless be held accountable for actions of their subordinates. The notion is
widely accepted in international humanitarian law that each army, militia or military unit engaging in
fighting either in an international or internal armed conflict must have a commander charged with
holding discipline and ensuring compliance with the law. This notion is crucial to the very existence as
well as enforcement of the whole body of international humanitarian law, because without a chain of
command and a person in control of military units, anarchy and chaos would ensue and no one could
ensure respect for law and order.
562. There is another and more specific reason why the political and military leadership of SLA and
JEM may not refuse to accept being held accountable for any crime committed by their troops in the
field, if such leadership refrained from preventing or repressing these crimes. This reason resides in the
signing by that leadership of the various agreements with the Government of the Sudan. By entering into
those agreements on behalf of their respective “movements” the leaders of each “movement” assumed
full responsibility for conduct or misconduct of their combatants. More specifically, in the Protocol on
206 See the rulings by an ICTY Trial Chamber in Hadzihasanovi􀃼 and others (Decision on joint challenge to
jurisdiction, 12 November 2002, §§ 9-179) and by the ICTY Appeals Chamber in the same case (Decision on
interlocutory appeal challenging jurisdiction in relation to command responsibility, 16 July 2003, at §§ 11-36).
207 For instance, in a Memorandum of 21 January 2000 the Canadian Foreign Department’s Legal Bureau, after stating
that Articles 25 and 28 of the ICC Statute (respectively on responsibility for ordering, soliciting, etc. crimes and
responsibility of commanders or superiors) “codify international customary law with respect to criminal responsibility”
(in 38 Canadian Yearbook of International Law 2000, at 336), the legal Bureau goes on to note that “In internal armed
conflicts, a non-state leader could also be convicted of war crimes, if the prosecutor proved that the leader was part of
an ‘organized armed group.’ ” (ibidem, at 337).
143
the Establishment of Humanitarian Assistance in Darfur, of 8 April 2004, the rebels undertook to respect
the general principles of international humanitarian law, and these principle no doubt include that of
superior responsibility.
(i.) The Government of the Sudan
563. The Commission has gathered reliable information which allows it to identify eight (8) senior
central Government officials and military commanders and six (6) local Government officials or
members of the armed forces operating in Darfur who may be suspected of being responsible for
knowingly failing to prevent or repress the perpetration of crimes, i.e. for superior responsibility. A
consistent body of credible material collected by the Commission suggests that these officials were
cognisant of the situation in Darfur, and the large-scale perpetration of violations of international human
rights law and international humanitarian law in the region, from their own sources and from other
sources, or at the very least, should have known what was happening in Darfur, but failed to take any
action to stop the atrocities being perpetrated. Furthermore, they failed to punish those under their
control who committed serious crimes. Depending on the circumstances of each case, they may be
suspected of bearing superior responsibility for the crimes committed by the men under their effective
control, which included murder of civilians as a crime against humanity; indiscriminate attacks on
civilians as a war crime and forced displacement as a crime against humanity; destruction of civilian
objects and looting as war crimes; and torture as war crime.
(ii.) Rebels
564. In keeping with the comment made above concerning the structure of the rebel groups in mind,
the Commission has gathered sufficient reliable material to point to four (4) individuals holding
positions of importance within the different rebel groups who may be suspected of being responsible for
knowingly failing to prevent or repress the perpetration of crimes committed by rebels. Having effective
overall control over military personnel fighting for the rebel groups, there is information that they were
aware of some crimes committed by such military personnel or at the very least, should have known
what was happening, but failed to take any action to stop the atrocities being perpetrated. Furthermore,
they failed to punish those under their control who committed serious crimes. These individuals may
thus be suspected to be responsible, under the doctrine of superior responsibility, for the crimes
committed by the rebels under their authority, namely murder of civilians, destruction of civilian objects,
forced disappearances and looting as war crimes.
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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
565. The need to do justice. The magnitude and serious nature of the crimes committed against the
civilian population in Darfur, both by the Government forces and the Janjaweed, and by the rebels,
demand immediate action by the international community to end these atrocities. Authors of these
crimes must be brought to justice. At the same time measures to bring relief and redress to the victims
must be initiated to complete the process of accountability.
566. It is notable that not only the United Nations Security Council, in its resolutions 1556 and 1564,
emphasized the urgent need for justice, but also the very parties to the conflict in Darfur insisted on the
principle of accountability. Thus, in the Protocol on the Improvement of the Humanitarian Situation in
Darfur, of 9 November 2004, the parties “[stressed] the need to restore and uphold the rule of law,
including investigating all cases of human rights violations and bringing to justice those responsible, in
line with the AU’s expressed commitment to fight impunity” (preambular § 7). Moreover, the parties to
the conflict, at Article 2(8), committed themselves to “[e]nsure that all forces and individuals involved
or reported to be involved in violations of the rights of the IDPs, vulnerable groups and other civilians
will be transparently investigated and held accountable to the appropriate authorities”. The question
however arises as to whether these are meaningless commitments, having only cosmetic value.
567. The inaction of both the Sudanese authorities and the rebels. The failure of both the Government
and the rebels to prosecute and try those allegedly responsible for the far too numerous crimes
committed in Darfur is conspicuous and unacceptable. As pointed out above, the Government has taken
some steps, which however constitute more a window-dressing operation than a real and effective
response to large scale criminality linked to the armed conflict. The rebels have failed to take any
investigative or punitive action whatsoever.
568. The normal and ideal response to atrocities is to bring the alleged perpetrators to justice in the
courts of the State where the crimes were perpetrated, or of the State of nationality of the alleged
perpetrators. There may indeed be instances where a domestic system operates in an effective manner
and is able to deal appropriately with atrocities committed within its jurisdiction. However, the very
nature of most international crimes implies, as a general rule, that they are committed by State officials
or with their complicity; often their prosecution is therefore better left to other mechanisms.
Considering the nature of the crimes committed in Darfur and the shortcomings of the Sudanese criminal
justice system, which have led to effective impunity for the alleged perpetrators, the Commission is of
the opinion that the Sudanese courts are unable and unwilling to prosecute and try the alleged offenders..
Other mechanisms are needed to do justice.
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569. The Commission is of the view that two measures should be taken by the Security Council to
ensure that justice is done for the crimes committed in Darfur, keeping in mind that any justice
mechanism must adhere to certain recognized principles: it must be impartial, independent, and fair.
With regard to the judicial accountability mechanism, the Commission recommends the referral of the
situation of Darfur to the International Criminal Court (ICC) by the United Nations Security Council.
As stated above, the Sudanese judicial system has proved incapable, and the authorities unwilling, of
ensuring accountability for the crimes committed in Darfur. The international community cannot stand
idle by, while human life and human dignity are attacked daily and on so large a scale in Darfur. The
international community must take on the responsibility to protect the civilians of Darfur and end the
rampant impunity currently prevailing there.
570. The other measure is designed to provide for compensation to the victims of so many gross
violations of human rights, most of them amounting to international crimes. It is therefore proposed that
a Compensation Commission be established by the Security Council.
II. MEASURES TO BE TAKEN BY THE SECURITY COUNCIL
1. Referral to the International Criminal Court
(i.) Justification for suggesting the involvement of the ICC
571. The ICC is the first international permanent court capable of trying individuals accused of serious
violations of international humanitarian law and human rights law, namely war crimes, crimes against
humanity and genocide. The treaty that established the ICC, the Rome Statute208, entered into force on
July 1, 2002. The Commission holds the view that the International Criminal Court should be drawn
upon. Resort to the ICC would present at least six major merits.
572. The Commission holds the view that resorting to the ICC would have at least six major merits.
First, the International Criminal Court was established with an eye to crimes likely to threaten peace and
security. This is the main reason why the Security Council may trigger the Court’s jurisdiction under
Article 13 (b). The investigation and prosecution of crimes perpetrated in Darfur would have an impact
on peace and security. More particularly, it would be conducive, or contribute to, peace and stability in
Darfur, by removing serious obstacles to national reconciliation and the restoration of peaceful relations.
Second, as the investigation and prosecution in the Sudan of persons enjoying authority and prestige in
the country and wielding control over the State apparatus, is difficult or even impossible, resort to the
ICC, the only truly international institution of criminal justice, which would ensure that justice be done.
The fact that trials proceedings would be conducted in the Hague, the seat of the ICC, far away from the
community over which those persons still wield authority and where their followers live, might ensure a
neutral atmosphere and prevent the trials from stirring up political, ideological or other passions. Third,
only the authority of the ICC, backed up by that of the United Nations Security Council, might compel
both leading personalities in the Sudanese Government and the heads of rebels to submit to investigation
and possibly criminal proceedings. Fourth, the Court, with an entirely international composition and a
208 Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, accessible at:
http://www.un.org/law/icc/statute/romefra.htm
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set of well-defined rules of procedure and evidence, is the best suited organ for ensuring a veritably fair
trial of those indicted by the Court Prosecutor. Fifth, the ICC could be activated immediately, without
any delay (which would be the case if one were to establish ad hoc tribunals or so called mixed or
internationalized courts). Sixth, the institution of criminal proceedings before the ICC, at the request of
the Security Council, would not necessarily involve a significant financial burden for the international
community.209
(ii.) Inadvisability of other mechanisms
573. The Commission considers that the ICC is the only credible way of bringing alleged perpetrators
to justice. It strongly advises against other measures.
(a.) The inadvisability of setting up an ad hoc International Criminal Tribunal
574. Given that international action is urgently needed, one might consider opportune to establish an
ad hoc International Criminal Tribunal, as was the case for previous armed conflicts such as those in the
former Yugoslavia and in Rwanda, when the ICC did not exist yet. However, at least two considerations
militate against such a solution. First, these Tribunals, however meritorious, are very expensive.
Secondly, at least so far, on a number of grounds they have been rather slow in the prosecution and
punishment of the indicted persons. It would seem that it is primarily for these reasons that at present no
political will appears to exist in the international community to set up yet another ad hoc International
Criminal Tribunal (another major reason being that now a permanent and fully-fledged international
criminal institution is available).
(b.) The inadvisability to expand to mandate of one of the existing Ad Hoc Criminal
Criminal Tribunals
575. The same reasons hold true against the possible expansion, by the Security Council, of the
mandate of the ICTY or the ICTR, so as to also include jurisdiction over crimes committed in Darfur.
First, this expansion would be time-consuming. It would require, after a decision of the Security
Council, the election of new judges and new prosecutors as well as the appointment of Registry staff.
Indeed, at present the Tribunals are overstretched, for they are working very hard to implement to
“completion strategy” elaborated and approved by the Security Council. Consequently, any new task for
either Ad Hoc Criminal Tribunal would require new personnel, at all levels. In addition, the allocation of
new tasks and the election or appointment of new staff would obviously require new financing. Thus, the
second disadvantage of this option is that it would be very expensive. It should be added the conferment
of a new mandate on one of the existing Tribunals would exhibit a third drawback: such expansion could
end up creating great confusion in the Tribunal, which all of sudden would have to redesign its priorities
and reconvert its tasks so as to accommodate the new functions.
209 Under Article 115 of the ICC Statute “The expenses of the Court... shall be provided by the following sources: (a)
assessed contributions made by States Parties; (b) Funds provided by ther United Nations, subject to the approval of the
General Assembnly, in particular in relation to the expenses incurred due to referrals by the Security Council”
(emphasis added). Thus, a referral by the Security Council may entail some expenses for the United Nations, chiefly for
financing investigations. Nevertheless, no financial burden will be borne by the United Nations for the most expensive
part of the functioning of international criminal tribunals, namely the establishment of the court, the payment for the
seat of the court, as well as payment of Judges, the Prosecutor’s office and the Registry staff.
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(c.) The inadvisability of establishing mixed courts
576. Where, as in Sudan, States are faced with emergency situations involving the commission of
large-scale atrocities, an option may be not to resort to national or international criminal courts, but
rather to establish courts that are mixed in their composition, that is consisting of both international
judges and prosecutors and of judges and prosecutors having the nationality of the State where the trials
are held.
577. The mixed courts established in other conflicts have followed two similar but distinct models.
First, the mixed courts can be organs of the relevant State, being part of its judiciary, as in Kosovo, East
Timor, Bosnia and Cambodia. Alternatively, the courts may be international in nature, that is,
freestanding tribunals not part of the national judiciary, as in Sierra Leone. The latter, for instance, is an
international criminal court, but some of its judges and other officials are nationals of Sierra Leone,
giving it a hybrid character which makes it different from other international criminal courts, such as the
ICC, the ICTY and the ICTR. It also differs from these international criminal courts in that it is located
in the country where the crimes occurred and it is funded by voluntary contributions (not assessed
contributions from the United Nations budget or, as is the case for the ICC, by the States parties).
578. One obvious drawback for the creation of a special court for the crimes committed in Darfur is its
financial implications. The special court for Sierra Leone, with its voluntary contributions, is hardly
coping with the demands of justice there. Another major drawback can be seen in the time-consuming
process for establishing these courts by means of an agreement with the United Nations. The ICC offers
the net advantage, as noted above, to impose no significant financial burden on the international
community and to be immediately available.
579. Thirdly, the investigation and prosecution would relate to persons enjoying authority and prestige
in the country and wielding control over the State apparatus. The establishment of a special court by
agreement between the actual Government and the United Nations for the investigation and prosecution
of members of that very Government seems unlikely. Moreover, the situation of the national judges who
would sit on courts dealing with crimes which may have been committed by leaders would not only be
uncomfortable, but unbearable and dangerous.
580. Fourthly, many of the Sudanese laws are grossly incompatible with international norms. To
establish mixed courts with the possibility for them of relying upon the national legal system would give
rise to serious problems, particularly with regard to the 1991 Sudanese criminal procedural law. In
contrast, the ICC constitutes a self-contained regime, with a set of detailed rules on both substantive and
procedural law that are fully attuned to respect for the fundamental human rights all those involved in
criminal proceedings before the Court.
581. Furthermore, and importantly, the situation of Sudan is distinguishable in at least one respect
from most situations where a special court has been created in the past. The impugned crimes are within
the jurisdiction rationae temporis of the ICC, i.e. the crimes discussed in this Report were committed
after 1 July 2002210.
210 See ICC Statute, article 11.
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582. Based on all of the above, the Commission strongly holds the view that resort to the ICC, the
only truly international criminal institution, is the single best mechanism to allow justice to be made for
the crimes committed in Darfur.
(iii.) Modalities of activation of the ICC jurisdiction
583. Sudan signed the Rome Statute of the ICC on 8 September 2000, but has not yet ratified it and is
thus not a State party211. The prosecution of nationals of a State that is not party to the Rome Statute is
possible under limited circumstances. First, it is possible if the crime occurred on the territory of a State
party (Rome Statute, art. 12 (2) (a)). This is obviously not applicable in this case since the crimes
occurred in the Sudan and were allegedly committed by Sudanese nationals212. Secondly, the ICC’s
jurisdiction can be triggered by a referral to the Prosecutor by the Security Council acting under Chapter
VII of the Charter of the United Nations (Rome Statute, art. 13 (b)). Finally, the Sudan may, by
declaration lodged with the Court’s Registrar, accept the exercise of jurisdiction by the Court with
respect to the crimes in question (Rome Statute, art. 12 (3)).
584. The Commission strongly recommends to the Security Council to immediately refer to the ICC
the situation of Darfur and the crimes perpetrated there since the beginning of the internal armed conflict
in Darfur. The Security Council’s referral would be fully warranted, for indisputably the situation of
Darfur constitutes a threat to the peace, as the Security Council determined in its resolutions 1556 (2004)
and 1564 (2004). The prosecution by the ICC of persons allegedly responsible for the most serious
crimes in Darfur would no doubt contribute to the restoration of peace in that region. Recourse to the
Court would have the numerous major merits emphasized above.
585. There is little doubt that the alleged crimes that have been documented in Darfur meet the
thresholds of the Rome Statute as defined in articles 7 (1), 8 (1) and 8 (f). As was stated earlier, today
there is a protracted armed conflict not of an international nature in Darfur between the governmental
authorities and organized armed groups. As the factual findings demonstrate, a body of reliable
information indicates that war crimes may have been committed on a large-scale, at times even as part of
a plan or a policy. There is also a wealth of credible material which suggests that criminal acts which
constitute widespread or systematic attacks directed against the civilian population were committed with
knowledge of the attacks. These may amount to crimes against humanity.
586. The Sudanese justice system is unable and unwilling to address the situation in Darfur. This
system has been significantly weakened during the last decade. Restrictive laws that grant broad powers
to the executive particularly undermined the effectiveness of the judiciary. In fact, many of the laws in
force in Sudan today contravene basic human rights standards. The Sudanese criminal laws do not
adequately proscribe war crimes and crimes against humanity such as those carried out in Darfur and the
Criminal Procedure Code contains provisions that prevent the effective prosecution of these acts. In
211 See ICC’s official website: http://www.icc-cpi.int/statesparties.html#S, retrieved on Novermber 2, 2004, updated as
of September 27, 2004
212 If crimes under the jurisdiction of the ICC were proved to have been commited in Chad or by Chad nationals, the
situation would remain the same so far as the Court’s jurisdiction is concerned: Chad has signed the Rome Statute on
October 20, 1999 but has not yet ratified it. See ICC website: http://www.icc-cpi.int/statesparties.html#S , retrieved on
November 2, 2004, updated as of September 27, 2004.
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addition, many victims informed the Commission that they had little confidence in the impartiality of the
Sudanese justice system and its ability to bring to justice the perpetrators of the serious crimes
committed in Darfur. In any event, many feared reprisals if they resorted to the national justice system.
587. The measures taken so far by the Government to address the crisis have been both grossly
inadequate and ineffective. As is stated elsewhere in this report, very few victims lodged official
complaints regarding crimes committed against them or their families due to a lack of confidence in the
justice system. Of the few cases where complaints were made, most of the cases were not properly
pursued. Further procedural hurdles limited the victims’ access to justice, such as a requirement of
medical examination for victims of rape. A Minister of Justice Decree relaxing this requirement for
registering rape complaints is not known to most law enforcement agencies in Darfur. The Rape
Commissions established by the Minister of Justice have been ineffective in investigating this crime.
The Ministry of Defence established one Committee to compensate the victims of three incidents of
bombing by mistake in Habila, Um Gozin and Tulo. While the report of the National Commission of
Inquiry established by the President acknowledged some wrong-doings on the part of the Government,
most of the report is devoted to justifying and rationalizing the actions taken by the Government in
relation to the conflict. The reality is that, despite the magnitude of the crisis and its immense impact on
civilians in Darfur, the Government informed the Commission of very few cases of individuals who
have been prosecuted or even simply disciplined in the context of the current crisis.
588. Referring the situation in Darfur to the ICC in a resolution adopted under Chapter VII of the
United Nations Charter would have a mandatory effect. In this way, the Government of Sudan could not
deny the Court’s jurisdiction under any circumstances. The Commission recommends that the resolution
should empower the ICC prosecutor to investigate on his own initiative any individual case that is
related to the current conflict in Darfur. As for the temporal scope of these investigations, the
Commission suggests that the resolution should not limit the investigations to a specific time frame. As
is clear from this report, while there was escalation in the attacks after February 2003, the Commission
received information regarding events that took place in 2002 and even before. As pursuant to Article
1(1) of its Statute the ICC has temporal jurisdiction as from 1 July 2002, the Prosecutor could investigate
crimes committed after that date.
589. In the opinion of the Commission, it would be fully appropriate for the Security Council to
submit the situation of Darfur to the ICC. The Security Council has repeatedly emphasized, in
resolutions 1556 and 1564, that the Government of Sudan has committed serious violations of human
rights against its own nationals, and that serious breaches of human rights are also being committed by
the rebels. To this consistent pattern of large scale violations of human rights not only individual States,
but the whole world community through its most important political organ should energetically react.
Moreover, the Security Council also stressed in its aforementioned resolutions the need to put a stop to
impunity in Darfur, for the end of such impunity would contribute to restoring security in the region,
thereby allowing the hundreds of thousands of internally displaced persons to return to their homes or to
any other place of their choosing (see in particular its resolutions 1556 and 1564). It would thus be
consistent for the Security Council, the highest body of the international community responsible for
maintaining peace and security, to refer the situation of Darfur and the crimes perpetrated there, to the
highest criminal judicial institution of the world community.
2. Establishment of a Compensation Commission
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590. For the reasons that will be set out below, the Commission also proposes to the Security Council
the establishment of a Compensation Commission, not as an alternative, but rather as a measure
complementary to the referral to the ICC. States have the obligation to act not only against perpetrators
but also on behalf of victims. While a Compensation Commission does not constitute a mechanism for
ensuring that those responsible are held accountable, its establishment would be vital to redressing the
rights of the victims of serious violations committed in Darfur.
(i.) Justification for suggesting the establishment of a Compensation Commission
591. Given the magnitude of damage caused by the armed conflict to civilian populations, it proves
necessary to envisage granting reparation to victims of crimes committed during such conflict, whether
or not the perpetrators of international crimes have been identified.
592. This proposal is based on practical and moral grounds, as well as on legal grounds. As for the
former, suffice it to mention that in numerous instances, particularly in rape cases, it will be very
difficult for any judicial mechanism to establish who perpetrated such crimes. In other words, judicial
findings and retribution by a court of law may prove very difficult or even impossible. In such cases it
would be necessary at least to make good the material and moral damage caused to the victims.
Although the perpetrators will in fact continue to enjoy impunity, the international community may not
turn a blind eye to the victims’ plight. It should as a minimum attenuate their suffering by obliging the
Sudanese State to make reparation for their harm.
593. Serious violations of international humanitarian law and human rights law can entail not only the
individual criminal liability of the perpetrator but also the international responsibility of the State (or
state-like entity) on whose behalf the perpetrator was acting. This international responsibility involves
that the State (or the state-like entity) must pay compensation to the victim.213
594. At the time this international obligation was first laid down, and perhaps even in 1949, when the
Geneva Conventions were drafted and approved, the obligation was clearly conceived of as an
obligation of each contracting State towards any other contracting State concerned. In other words, it
was seen as an obligation between States, with the consequence that (i) each relevant State was entitled
to request reparation or compensation from the other State concerned, and (ii) its nationals could
concretely be granted compensation for any damage suffered only by lodging claims with national courts
or other organs of the State. National case law in some countries214 has held that the obligation at issue
213 The international obligation to pay compensation was first laid down in Article 3 of the 1907 Hague Convention on Land
Warfare, whereby “A belligerent party which violates the provisions of the said Regulations [the Regulations annexed to the
Convention, also called Hague Regulations] shall, if the case demands, be liable to pay compensation. It shall be responsible
for all acts committed by persons forming part of its armed forces”. This obligation was restated, with regard to grave
breaches of the 1949 Geneva Conventions, in each Convention, where it was provided that “No High Contracting Party shall
be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High
Contracting Party in respect of breaches referred to in the preceding article [on grave breaches]” (common Article on grave
breaches, found respectively at 51/52 /131/148). The same obligation, although worded in the terms of Article 3 of the 1907
Hague Convention, was laid down in Article 91 of the First Additional Protocol.
214 See the Japanese cases mentioned by Shin Hae Bong, “Compensation for Victims of Wartime Atrocities – Recent
Developments in Japan’s Case Law”, in 3 Journal of International Criminal Justice (2005), at 187-206.. See also the German
cases referred to in A.Gattini, Le Riparazioni di Guerra nel Diritto Internazionale (Padova: Cedam, 2003), 249 ff. However,
on 11 March 2004 the Italian Court of cassation delivered in Ferrini an elaborate judgment in which the Court, based among
other things on jus cogens, held that a an Italian deported to Germany for slave labour in 1944 was entitled to compensation for
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was not intended directly to grant rights to individual victims of war crimes or grave breaches. In
addition, the international obligation was to be considered as fulfilled any time, following the conclusion
of a peace treaty, the responsible State had agreed to pay to the other State or States war reparations or
compensation for damages caused to the nationals of the adversary, regardless of whether actual
payment was ever made.
595. The emergence of human rights doctrines in the international community and the proclamation of
human rights at the universal and national level since the adoption of the United Nations Charter in 1945
had a significant impact on this area as well. In particular, the right to an effective remedy for any
serious violation of human rights has been enshrined in many international treaties.215 Furthermore, the
United Nations Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power,
adopted by the General Assembly in 1985, provides that States should develop and make readily
available appropriate rights and remedies for victims.216
596. The right to an effective remedy also involves the right to reparation (including compensation), if
the relevant judicial body satisfies itself that a violation of human rights has been committed; indeed,
almost all the provisions cited above mention the right to reparation as the logical corollary of the right
to an effective remedy.
597. As the then President of the ICTY, Judge C. Jorda, rightly emphasized in his letter of 12 October
2000 to the United Nations Secretary-General217, the universal recognition and acceptance of the right to
an effective remedy cannot but have a bearing on the interpretation of the international provisions on
State responsibility for war crimes and other international crimes. These provisions may now be
construed to the effect that the obligations they enshrine are assumed by States not only towards other
contracting States but also vis-à-vis the victims, i.e. the individuals who suffered from those crimes. In
other words, there has now emerged in international law a right of victims of serious human rights
abuses (in particular, war crimes, crimes against humanity and genocide) to reparation (including
compensation) for damage resulting from those abuses.
598. In light of the above, and based on the aforementioned body of law on human rights, the
proposition is warranted that at present, whenever a gross breach of human rights is committed which
this war crime, because the international norms on compensation, given their peremptory nature, overrode the customary rules
on foreign State immunity (text in Italian in 87 Rivista di diritto internazionale (2004), 540-551)).
215 See Article 2 (3) of the UN Covenant on Civil and Political Rights, Article 6 of the 1965 Convention on the Elimination of
Racial Discrimination, Article 14 of the 1984 Convention Against Torture, Article 39 of the 1989 Convention on the Rights of
the Child, as well as Articles 19 (3) and 68 (3) of the Statute of the International Criminal Court. See also Article 8 of the 1948
Universal Declaration of Human Rights.
216 Article 21 of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted on 29
November 1985 by the UN General Assembly (resolution 40/34). See also the “Basic Principles and Guidelines on the right to
a remedy and reparation for victims of violations of international human rights and humanitarian law” which are currently
under consideration by the Commission on Human Rights upon proposals by Mr T. van Boven and Mr C. Bassiouni .
217 “The emergence of human rights under international law has altered the traditional State responsibility concept, which
focused on the State as the medium of compensation. The integration of human rights into State responsibility has removed the
procedural limitation that victims of war could seek compensation only through their own Governments, and has extended the
right to compensation to both nationals and aliens. There is a strong tendency towards providing compensation not only to
States but also to individuals based on State responsibility. Moreover, there is a clear trend in international law to recognize a
right to compensation in the victim to recover from the individual who caused his or her injury. This right is recognized in the
Victims Declaration [adopted by the GA], the Basic Principles [adopted by the Commission on Human Rights], other
international human rights instruments and, most specifically, in the ICC Statute, which is indicative of the state of the law at
present.”(in UN doc. S/2000/1063, at p. 11, § 20 of the Annex).
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also amounts to an international crime, customary international law not only provides for the criminal
liability of the individuals who have committed that breach, but also imposes an obligation on States of
which the perpetrators are nationals, or for which they acted as de jure or de facto organs, to make
reparation (including compensation) for the damage made.
599. Depending on the specific circumstances of each case, reparation may take the form of restitutio
in integrum (restitution of the assets pillaged or stolen), monetary compensation, rehabilitation including
medical and psychological care as well as legal and social services, satisfaction including a public
apology with acknowledgment of the facts and acceptance of responsibility, or guarantees of nonrepetition.
218 As rightly stressed by the U.N. Secretary-General in 2004, it would also be important to
combine various mechanisms or forms of reparation.219
600. It is in light of this international legal regulation that the obligation of the Sudan to pay
compensation for all the crimes perpetrated in Darfur by its agents and officials or de facto organs must
be seen. A similar obligation is incumbent upon rebels for all crimes they may have committed, whether
or not the perpetrators are identified and punished.
(ii.) Establishment of a Compensation Commission
601. It is therefore proposed to establish an International Compensation Commission, consisting of
fifteen (15) members, ten (10) appointed by the United Nations Secretary-General and five (5) by an
independent Sudanese body. This Commission, to be chaired by an international member, should be
composed of persons with an established international reputation, some specialising in law (in particular
international law, torts, or commercial law), others in accounting, loss adjustment and environmental
damage. The Commission should split into five chambers, each of three members; it should sit in Darfur
and have a three year mandate. Four Chambers should deal with compensation for any international
crime perpetrated in Darfur. A special fifth Chamber should deal specifically with compensation for
victims of rape. Such chamber is necessary considering the widespread nature of this crime in Darfur
and the different nature of the damage suffered by the victims. Compensation also takes a special
meaning here considering that, for rape in particular, as stated above it is very difficult to find the actual
perpetrators. Many victims will not benefit from seeing their aggressor held accountable by a court of
law. Hence a special scheme may be advisable to ensure compensation (or, more generally, reparation)
for the particularly inhumane consequences suffered by the numerous women raped in Darfur.
218 The various forms of compensation and their respective advantages were aptly set out by the UN Secretary-General in his
Report to the SC of 23 August 2004 on “The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies”.
There the Secretary-General stated the following: “reparations sometimes include non-monetary elements, such as restitution
of victims’ legal rights, programmes of rehabilitation for victims and symbolic measures, such as official apologies,
monuments and commemorative ceremonies. The restoration of property rights, or just compensation where this cannot be
done, is another common aspect of reparations in post-conflict countries. Material forms of reparation present perhaps the
greatest challenges, especially when administered through mass government programmes. Difficult questions include who is
included among the victims to be compensated, how much compensation is to be rewarded, what kinds of harm are to be
covered, how harm is to be quantified, how different kinds of harm are to be compared and compensated and how
compensation is to be distributed.” (UN doc. S/2004/616, at p. 18-9, § 54).
219 “No single form of reparation is likely to be satisfactory to victims. Instead, appropriately conceived combinations of
reparation measures will usually be required, as a complement to the proceedings of criminal tribunals and truth commissions.
Whatever mode of transitional justice is adopted and however reparations programmes are conceived to accompany them, both
the demands of justice and the dictates of peace require that something be done to compensate victims. Indeed, the judges of
the tribunals for Yugoslavia and Rwanda have themselves recognized this and have suggested that the United Nations consider
creating a special mechanism for reparations that would function alongside the tribunals.” (ibidem, p. 19, § 55).
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602. The Commission should pronounce upon claims to compensation made by all victims of crimes,
that is (under the terms of the GA Declaration of Basic Principles of Justice for Victims of Crime and
Abuse of Power, adopted on 29 November 1995), persons that “individually or collectively, have
suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial
impairment of their fundamental rights” as a result of international crimes in Darfur, committed by either
Government authorities or any de facto organ acting on their behalf or by rebels, whether or not the
perpetrator has been identified and brought to trial.
603. Funding for payment of compensation to victims of crimes committed by Government forces or
de facto agents of the Government should be provided by the Sudanese authorities, which should be
requested by the United Nations Security Council to place the necessary sum into an escrow account.
Funding for compensation of victims of crimes committed by rebels (whether or not the perpetrators
have been identified and brought to trial) should be afforded through a Trust Fund to be established on
the basis of international voluntary contributions.
III. POSSIBLE MEASURES BY OTHER BODIES
604. While referral to the ICC is the main immediate measure to be taken to ensure accountability, the
Commission wishes to highlight some other available measures, which are not suggested as possible
substitutes for the referral of the situation of Darfur to the ICC.
1. Possible role of national courts of States other than Sudan
605. Courts of States other than Sudan may play an important role in bringing to justice persons
suspected or accused of international crimes in Darfur. In this respect the question however arises of
whether and to what extent this is compatible with the activation of the ICC. It is therefore fitting briefly
to discuss the issue of the respective role of national courts and the ICC in cases where a situation has
been referred by the Security Council to the ICC.
(i.) Referral by the Security Council and the principle of complementarity
606. The question to be addressed is that of whether the principle of complementarity on which the
ICC is based, i.e. the principle whereby the Court only steps in when the competent national courts
prove to be unable or unwilling genuinely to try persons accused of serious international crimes falling
under the Court’s jurisdiction, should apply in the case under discussion. In other words, the question
arises whether, when the Security Council refers a “situation” to the ICC under Article 13 (b) of the ICC
Statute, the Court must apply the principle of complementarity and therefore first see whether there is
any competent national court willing and able to prosecute the crimes emerging in the “situation”.
607. The Commission notes that while it is true that under Article 18 (1) of the ICC Statute the
Prosecutor is bound to notify all States Parties that a State has referred to him a “situation” or that he has
decided to initiate investigations proprio motu, no such duty of notification to States Parties exists with
regard to Security Council referrals. However, from these rules on notifications it does not follow that
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complementarity becomes inapplicable in the case of Security Council referrals. Indeed, it would seem
that the fact that the Prosecutor is not obliged to notify States Parties of a Security Council referral is
justified by the fact that in such case all States are presumed to know of such referral, given that acts of
that body are public and widely known. This is further evidenced by the fact that the Security Council is
the supreme body of the Organization and all members of the United Nations are bound by its decisions
pursuant to Article 25 of the United Nations Charter. In contrast, without the Prosecutor’s notification it
would be hard for States immediately to become cognizant of his decision to initiate an investigation
proprio motu or following the referral by a State. Complementarity therefore also applies to referrals by
the Security Council.
608. However, a referral by the Security Council is normally based on the assumption that the
territorial State is not administering justice because it is unwilling or unable to do so.220 Therefore, the
principle of complementarity will not usually be invoked in casu with regard to that State.
609. The Commission’s recommendation for a Security Council referral to the ICC is based on the
correct assumption that Sudanese courts are unwilling and unable to prosecute the numerous
international crimes perpetrated in Darfur since 2003. The Commission acknowledges that the final
decision in this regard lies however with the ICC Prosecutor.
(ii.)The notion of “universal jurisdiction”
610. The Commission wishes to emphasise that the triggering of the ICC jurisdiction by the Security
Council should be without prejudice to the role that the national criminal courts of other States can play.
Indeed, other states might exercise the so-called universal jurisdiction over crimes allegedly committed
in Darfur. The Commission sees the exercise of universal jurisdiction, subject to the conditions set out
below, as a complementary means of ensuring accountability for the crimes committed in Darfur, which
could indeed help to alleviate the burden of the ICC.
611. The traditional way to bring to trial alleged perpetrators of international crimes to justice is for
States to rely on one of two unquestionable principles: territoriality (the crime has been committed on
the State’s territory) and active nationality (the crime has been committed abroad, but the perpetrator is a
national of the prosecuting State). In addition, extraterritorial jurisdiction over international crimes
committed by non-nationals has been exercised and is generally accepted on the basis of passive
personality (the victim is a national of the prosecuting State).
612. In the absence of any of these accepted jurisdictional links at the time of the commission of the
offence, the principle of universality empowers any State to bring to trial persons accused of
international crimes, regardless of the place of commission of the crime, and the nationality of the
perpetrator or the victim. This principle is justified by the notion that international crimes constitute
attacks on the whole international community and infringe on values shared by all members of that
community.
220 The Commission however acknowledges that the final decision in this regard remains that of the ICC Prosecutor.
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613. It seems indisputable that a general rule of international law exists authorising States to assert
universal jurisdiction over war crimes, as well as crimes against humanity and genocide. The existence
of this rule is proved by the convergence of States’ pronouncements, national pieces of legislation,221 as
well as by case law.222
614. However, the customary rules in question, construed in the light of general principles currently
prevailing in the international community, arguably make the exercise of universal jurisdiction subject to
two major conditions. First, the person suspected or accused of an international crime must be present on
the territory of the prosecuting State. Second, before initiating criminal proceedings this State should
request the territorial State (namely, the State where the crime has allegedly been perpetrated) or the
State of active nationality (that is, the State of which the person suspected or indicted is a national)
whether it is willing to institute proceedings against that person and hence prepared to request his or her
extradition. Only if the State or States in question refuse to seek the extradition, or are patently unable or
unwilling to bring the person to justice, may the State on whose territory the person is present initiate
proceedings against him or her.
615. In the case of Darfur the second condition would not need to be applied, for, as pointed out
above, Sudanese courts and other judicial authorities have clearly shown that they are unable or
unwilling to exercise jurisdiction over the crimes perpetrated in Darfur.
(iii.) Exercise of universal jurisdiction and the principle of complementarity of the
ICC
616. The issue of Security Council referrals and the principle of complementarity has been discussed
above. The Commission takes the view that complementarity would also apply to the relations between
the ICC and those national courts of countries other than Sudan. In other words, the ICC should defer to
national courts other than those of Sudan which genuinely undertake proceedings on the basis of
universal jurisdiction. While, as stated above, a referral by the Security Council will normally be based
on the assumption that the territorial State is not administering justice because it is unwilling or unable
to do so223, there is instead no reason to doubt a priori the ability or willingness of any other State
asserting either universal jurisdiction or jurisdiction based on any of the basis for extra-territorial
jurisdiction mentioned above. The principle of complementarity, one of the mainstays of the ICC
system, should therefore operate fully in cases of assertion of universal jurisdiction over a crime which
had been referred to the ICC by the Security Council.
221 See for instance the legislation of such countries as Spain (Article 23 of the 1985 General law on the Judiciary), Austria
(Article 65.1.2 of the Criminal Code), Switzerland ( Articles 108 and 109 of the Military Penal Code), and Germany (Article
6.9 of the Criminal Code).
222 For instance, see the decision the Spanish Constitutional Court delivered on 10 February 1997 in the Panamian Ship
case (in El Derecho, cdrom, 2002, Constitutional decisions); the decision (auto) the Spanish Audiencia nacional handed
down on 4 November 1998 in don Alfonso Francisco Scilingo (ibidem., Criminal cases)., the decisions of the same
Audencia nacional in Pinochet (decision of 24 September 1999, ibidem), Fidel Castro (decision of 4 March 1999,
ibidem), as well as the judgment of 21 February 2001 handed down by the German Supreme Court (Bundesgerichtshof)
in Sokolovi􀃼 (3 StR 372/00),.
223 As stated above, the Commission however acknowledges that the final decision in this regard lies with the ICC
Prosecutor.
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2. Truth and Reconciliation Commission
617. The Commission considers that a Truth and Reconciliation Commission could play an important
role in ensuring justice and accountability. Criminal courts, by themselves, may not be suited to reveal
the broadest spectrum of crimes that took place during a period of repression, in part because they may
convict only on proof beyond a reasonable doubt. In situations of mass crime, such as have taken place
in Darfur, a relatively limited number of prosecutions, no matter how successful, may not completely
satisfy victims’ expectations of acknowledgement of their suffering. What is important, in Sudan, is a
full disclosure of the whole range of criminality.
618. The Commission has looked at several accountability mechanisms that formed part of certain
Truth and Reconciliation Commissions (TRC). In one of these, amnesties were granted to perpetrators of
serious violations of human rights and humanitarian law. Even though these amnesties were granted in
exchange for public confessions by the perpetrators, they generally -- and correctly so in the
Commission’s opinion-- have been considered unacceptable in international law. They have also been
widely considered a violation of the accepted United Nations position that there should be no amnesty
for genocide, war crimes and crimes against humanity. However, in the same TRC (and in another one)
some witnesses who were summoned under subpoena, and were compelled to testify against themselves,
were granted “use immunity”, in terms whereof they were assured that such information as they
disclosed to the TRC would not be used against them in any criminal proceedings. “Use immunity” may
be held to be acceptable in international law, at least in the circumstances of a TRC: it contributes to the
revelation of truth. Perpetrators are constrained to reveal all, albeit on the limited assurance that their
testimonies at the TRC will not be used against them in criminal proceedings. Nevertheless, society can
hold them accountable for the crimes they admit to have committed, and they may still be prosecuted,
the only evidence not usable against them being the one they gave at the TRC hearings.
619. In another TRC, criminal and civil liability for non-serious crimes (excluding murder and rape
for example) could be extinguished, provided the perpetrators made a full disclosure of all their crimes,
made apologies to their victims, and agreed to fulfil community service or paid reparations or
compensation to the victims. All this happened in circumstances where the courts oversaw the whole
process. This measure is a variant of the accountability mechanisms; it ensures that as many perpetrators
as possible are revealed because they come forward, but they also pay some price to society -
particularly to the victims. It is not an amnesty process as such; it is not unlike a plea bargaining
arrangement between the State and the offender. The additional benefit of such an arrangement at the
initiative of the TRC is that it becomes a process in which the community, and particularly the victims,
become very directly involved.
620. In many contexts, therefore, TRCs have played an important role in promoting justice,
uncovering truth, proposing reparations, and recommending reforms of abusive institutions.
621. Whether a TRC would be appropriate for Sudan, and at what stage it should be established, is a
matter that only the Sudanese people should decide through a truly participatory process. These
decisions should ideally occur (i) once the conflict is over and peace is re-established; (ii) as a
complementary measure to criminal prosecution, which instead should be set in motion as soon as
possible, even if the conflict is underway, with a view to having a deterrent effect, that is, stopping
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further violence; and (iii) on the basis of an informed discussion among the broadest possible sections of
Sudanese society which takes into account international experience and, on this basis, assesses the likely
contribution of a TRC to Sudan. Recent international experience indicates that TRC's are likely to have
credibility and impact only when their mandates and composition are determined on the basis of a broad
consultative process, including civil society and victim groups. TRCs established for the purpose of
substituting justice or producing a distorted truth should be avoided.
3. Strengthening the Sudanese Criminal Justice System
622. In the face of the rampant impunity in Darfur and in the Sudan it is essential that the Sudanese
legal and judicial system be strengthened so as to be able to render justice in a manner that is consistent
with human rights law.
623. It would first be advisable for Sudan to abolish the “specialized courts”, which have not proved
in the least efficient in fighting impunity for crimes arising out of the state of emergency declared by the
President. Sudan should also consider passing legislation designed to ensure the full independence and
impartiality of the judiciary and provide it with adequate powers enabling it to address human rights
violations.
624. Moreover, Sudan should consider providing training to its judges, prosecutor and investigators,
to be given by international experts with an appropriate experience in training. Special emphasis should
be laid on human rights law, humanitarian law, as well as international criminal. Special legislation and
training should also be envisaged to improve the independence and impartiality of the judiciary.
625. It would also be important to recommend to the Sudanese authorities to repeal Article 33 of the
National Security Force Act 1999, granting immunity from prosecution to any “member” or
“collaborator” “for any act connected with the official work” of such persons. While the authorities
have assured the Commission that immunity was automatically lifted where serious violations of
international human rights or humanitarian law were committed, the Commission has not been able to
verify, despite numerous formal requests, that this had indeed been the case. To the contrary, the
Commission can only infer from the absence of any real prosecution of those responsible for the
numerous crimes committed in Darfur that the aforementioned provision granting immunity has been, at
least de facto, applied. This provision is in any case contrary to international law, at least if applied to
serious violations of international human rights law and crimes against humanity. Immunities currently
accruing to other public officials, such as members of the police, for human rights violations, should also
be abolished.
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SECTION V
CONCLUSIONS AND RECOMMENDATIONS
626. The people of Darfur have suffered enormously during the last few years. Their ordeal must
remain at the centre of international attention. They have been living a nightmare of violence and abuse
that has stripped them of the very little they had. Thousands were killed, women were raped, villages
were burned, homes destroyed, and belongings looted. About 1,8 million were forcibly displaced and
became refugees or internally-displaced persons. They need protection.
627. Establishing peace and ending the violence in Darfur are essential for improving the human
rights situation. But real peace cannot be established without justice. The Sudanese justice system has
unfortunately demonstrated that it is unable or unwilling to investigate and prosecute the alleged
perpetrators of the war crimes and crimes against humanity committed in Darfur. It is absolutely
essential that those perpetrators be brought to justice before a competent and credible international
criminal court. It is also important that the victims of the crimes committed in Darfur be compensated.
628. The Sudan is a sovereign state and its territorial integrity must be respected. While the
Commission acknowledges that the Sudan has the right to take measures to maintain or re-establish its
authority and defend its territorial integrity, sovereignty entails responsibility. The Sudan is required not
only to respect international law, but also to ensure its respect. It is regrettable that the Government of
the Sudan has failed to protect the rights of its own people. The measures it has taken to counter the
insurgency in Darfur have been in blatant violation of international law. The international community
must therefore act immediately and take measures to ensure accountability. Those members of rebel
groups that have committed serious violations of human rights and humanitarian law must also be held
accountable.
629. Measures taken by all parties to the internal conflict in the Sudan must be in conformity with
international law.
I. FACTUAL AND LEGAL FINDINGS
630. In view of the findings noted in the various sections above, the Commission concludes that the
Government of the Sudan and the Janjaweed are responsible for a number of violations of international
human rights and humanitarian law. Some of these violations are very likely to amount to war crimes,
and given the systematic and widespread pattern of many of the violations, they would also amount to
crimes against humanity. The Commission further finds that the rebel movements are responsible for
violations which would amount to war crimes.
631. In particular, the Commission finds that in many instances Government forces and militias under
their control attacked civilians and destroyed and burned down villages in Darfur contrary to the relevant
principles and rules of international humanitarian law. Even assuming that in all the villages they
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attacked there were rebels present, or at least some rebels were hiding there, or that there were persons
supporting rebels - a fact that the Commission has been unable to verify for lack of reliable evidence -
the attackers did not take the necessary precautions to enable civilians to leave the villages or to
otherwise be shielded from attack. The impact of the attacks on civilians shows that the use of military
force was manifestly disproportionate to any threat posed by the rebels. In addition, it appears that such
attacks were also intended to spread terror among civilians so as to compel them to flee the villages.
From the viewpoint of international criminal law these violations of international humanitarian law no
doubt constitute large-scale war crimes.
632. The Commission finds that large scale destruction of villages in Darfur has been deliberately
caused, by and large, by the Janjaweed during attacks, independently or in combination with
Government forces. Even though in most of the incidents the Government may not have participated in
the destruction, their complicity in the attacks during which the destruction was conducted and their
presence at the scene of destruction are sufficient to make them jointly responsible for the destruction.
There was no military necessity for the destruction and devastation caused. The targets of destruction
during the attacks under discussion were exclusively civilian objects. The destruction of so many
civilian villages is clearly a violation of international human rights law and international humanitarian
law and amounts to a very serious war crime.
633. 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 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 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.
634. It is apparent from the information collected and verified by the Commission that rape or other
forms of sexual violence committed by the Janjaweed and Government soldiers in Darfur was
widespread and systematic and may thus well amount to a crime against humanity . The awareness of
the perpetrators that their violent acts were part of a systematic attack on civilians may well be inferred
from, among other things, the fact that they were cognizant that they would in fact enjoy impunity. The
Commission finds that the crimes of sexual violence committed in Darfur may amount to rape as a crime
against humanity, or sexual slavery as a crime against humanity.
635. The Commission considers that torture has formed an integral and consistent part of the attacks
against civilians by Janjaweed and Government forces. Torture and inhuman and degrading treatment
can be considered to have been committed in both a widespread and systematic manner, amounting to a
crime against humanity. In addition, the Commission considers, that conditions in the Military
Intelligence Detention Centre witnessed in Khartoum clearly amount to torture and thus constitute a
serious violation of international human rights and humanitarian law.
636. It is estimated that more than 1,8 million persons have been forcibly displaced from their homes,
and are now hosted in IDP sites throughout Darfur, as well as in refugee camps in Chad. The
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Commission finds that the forced displacement of the civilian population was both systematic and
widespread, and such action would amount to a crime against humanity.
637. The Commission finds that the Janjaweed have abducted women, conduct which may amount to
enforced disappearance as a crime against humanity. The incidents investigated establish that these
abductions were systematic and were carried out with the acquiescence of the State, as the abductions
followed combined attacks by Janjaweed and Government forces and took place in their presence and
with their knowledge. The women were kept in captivity for a sufficiently long period of time, and their
whereabouts were not known to their families throughout the period of their confinement. The
Commission also finds that the restraints placed on the IDP population in camps, particularly women, by
terrorizing them through acts of rape or killings or threats of violence to life or person by the Janjaweed,
amount to severe deprivation of physical liberty in violation of rules of international law. The
Commission also finds that the arrest and detention of persons by the State security apparatus and the
Military Intelligence, including during attacks and intelligence operations against villages, apart from
constituting serious violations of international human rights law, may also amount to the crime of
enforced disappearance as a crime against humanity, as these acts were both systematic and widespread.
638. In a vast majority of cases, victims of the attacks belonged to African tribes, in particular the Fur,
Masaalit and Zaghawa tribes, who were systematically targeted on political grounds in the context of the
counter-insurgency policy of the Government. The pillaging and destruction of villages, being conducted
on a systematic as well as widespread basis in a discriminatory fashion appears to have been directed to
bring about the destruction of livelihoods and the means of survival of these populations. The
Commission also considers that the killing, displacement, torture, rape and other sexual violence against
civilians was of such a discriminatory character and may constitute persecution as a crime against
humanity.
639. While the Commission did not find a systematic or a widespread pattern to violations commited
by rebels, it nevertheless found credible evidence that members of the SLA and JEM are responsible for
serious violations of international human rights and humanitarian law which may amount to war crimes.
In particular, these violations include cases of murder of civilians and pillage.
II. DO THE CRIMES PERPETRATED IN DARFUR CONSTITUTE ACTS OF GENOCIDE?
640. The Commission concluded that the Government of the Sudan has not pursued a policy of
genocide. Arguably, two elements of genocide might be deduced from the gross violations of human
rights perpetrated by Government forces and the militias under their control. These two elements are,
first, the actus reus consisting of killing, or causing serious bodily or mental harm, or deliberately
inflicting conditions of life likely to bring about physical destruction; and, second, on the basis of a
subjective standard, the existence of a protected group being targeted by the authors of criminal conduct.
Recent developments have led members of African and Arab tribes to perceive themselves and others as
two distinct ethnic groups. The rift between tribes, and the political polarization around the rebel
opposition to the central authorities has extended itself to the issues of identity. The tribes in Darfur
supporting rebels have increasingly come to be identified as “African” and those supporting the
Government as “Arabs”. However, the crucial element of genocidal intent appears to be missing, at least
as far as the central Government authorities are concerned. 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
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seem that those who planned and organized attacks on villages pursued the intent to drive the victims
from their homes, primarily for purposes of counter-insurgency warfare.
641. The Commission does recognize that in some instances, individuals, including Government
officials, may commit acts with genocidal intent. Whether this was the case in Darfur, however, is a
determination that only a competent court can make on a case-by-case basis.
642. The conclusion that no genocidal policy has been pursued and implemented in Darfur by the
Government authorities, directly or through the militias under their control, should not be taken as in any
way detracting from the gravity of the crimes perpetrated in that region. 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. This is exactly what happened in Darfur, where massive
atrocities were perpetrated on a very large scale, and have so far gone unpunished.
III. WHO ARE THE PERPETRATORS?
643. As requested by the Security Council, to “identify perpetrators” the Commission decided that the
most appropriate standard was that requiring that there must be “a reliable body of material consistent
with other verified circumstances, which tends to show that a person may reasonably be suspected of
being involved in the commission of a crime.” The Commission therefore has not made final judgments
as to criminal guilt; rather, it has made an assessment of possible suspects that will pave the way for
future investigations, and possible indictments, by a prosecutor, and convictions by a court of law.
644. Those identified as possibly responsible for the above-mentioned violations consist of individual
perpetrators, including officials of the Government of the Sudan, members of militia forces, members of
rebel groups, and certain foreign army officers acting in their personal capacity. Some Government
officials, as well as members of militia forces, have also been named as possibly responsible for joint
criminal enterprise to commit international crimes. Others are identified for their possible involvement
in planning and/or ordering the commission of international crimes, or of aiding and abetting the
perpetration of such crimes. The Commission also has identified a number of senior Government
officials and military commanders who may be responsible, under the notion of superior (or command)
responsibility, for knowingly failing to prevent or repress the perpetration of crimes. Members of rebel
groups are named as suspected of participating in a joint criminal enterprise to commit international
crimes, and as possibly responsible for knowingly failing to prevent or repress the perpetration of crimes
committed by rebels. The Commission has collected sufficient and consistent material (both testimonial
and documentary) to point to numerous (51) suspects. Some of these persons are suspected of being
responsible under more than one head of responsibility, and for more than one crime.
645. The Commission decided to withhold the names of these persons from the public domain. This
decision is based on three main grounds: 1) the importance of the principles of due process and respect
for the rights of the suspects; 2) the fact that the Commission has not been vested with investigative or
prosecutorial powers; and 3) the vital need to ensure the protection of witnesses from possible
harassment or intimidation. The Commission instead will list the names in a sealed file that will be
placed in the custody of the United Nations Secretary-General. The Commission recommends that this
file be handed over to a competent Prosecutor (the Prosecutor of the International Criminal Court,
according to the Commission’s recommendations), who will use that material as he or she deems fit for
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his or her investigations. A distinct and very voluminous sealed file, containing all the evidentiary
material collected by the Commission, will be handed over to the High Commissioner for Human
Rights. This file should be delivered to a competent Prosecutor
646. The Commission’s mention of the number of individuals it has identified should not, however, be
taken as an indication that the list is exhaustive. Numerous names of other possible perpetrators, who
have been identified on the basis of insufficient evidence to name them as suspects can be found in the
sealed body of evidentiary material handed over to the High Commissioner for Human Rights.
Furthermore, the Commission has gathered substantial material on different influential individuals,
institutions, groups of persons, or committees, which have played a significant role in the conflict in
Darfur, including on planning, ordering, authorizing, and encouraging attacks. These include, but are not
limited to, the military, the National Security and Intelligence Service, the Military Intelligence and the
Security Committees in the three States of Darfur. These institutions should be carefully investigated so
as to determine the possible criminal responsibility of individuals taking part in their activities and
deliberations.
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
647. With regard to the judicial accountability mechanism, the Commission strongly recommends that
the Security Council should refer the situation in Darfur to the International Criminal Court, pursuant to
Article 13(b) of the Statute of the Court. Many of the alleged crimes documented in Darfur have been
widespread and systematic. They meet all the thresholds of the Rome Statute for the International
Criminal Court. The Sudanese justice system has demonstrated its inability and unwillingness to
investigate and prosecute the perpetrators of these crimes.
648. The Commission holds the view that resorting to the ICC would have at least six major merits.
First, the International Court was established with an eye to crimes likely to threaten peace and security.
This is the main reason why the Security Council may trigger the Court’s jurisdiction under Article 13
(b). The investigation and prosecution of crimes perpetrated in Darfur would have an impact on peace
and security. More particularly, it would be conducive, or contribute to, peace and stability in Darfur, by
removing serious obstacles to national reconciliation and the restoration of peaceful relations. Second, as
the investigation and prosecution in the Sudan of persons enjoying authority and prestige in the country
and wielding control over the State apparatus, is difficult or even impossible, resort to the ICC, the only
truly international institution of criminal justice, which would ensure that justice be done. The fact that
trials proceedings would be conducted in The Hague, the seat of the ICC, far away from the community
over which those persons still wield authority and where their followers live, might ensure a neutral
atmosphere and prevent the trials from stirring up political, ideological or other passions. Third, only the
authority of the ICC, backed up by that of the United Nations Security Council, might impel both
leading personalities in the Sudanese Government and the heads of rebels to submit to investigation and
possibly criminal proceedings. Fourth, the Court, with an entirely international composition and a set of
well-defined rules of procedure and evidence, is the best suited organ for ensuring a veritably fair trial of
those indicted by the Court Prosecutor. Fifth, the ICC could be activated immediately, without any delay
(which would be the case if one were to establish ad hoc tribunals or so called mixed or internationalized
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courts). Sixth, the institution of criminal proceedings before the ICC, at the request of the Security
Council, would not necessarily involve a significant financial burden for the international community.
649. The Security Council should, however, act not only against the perpetrators but also on behalf of
victims. In this respect, the Commission also proposes the establishment an International Compensation
Commission, consisting of fifteen (15) members, ten (10) appointed by the United Nations Secretary-
General and five (5) by an independent Sudanese body.
2. Action that should be taken by the Sudanese authorities
650. Government of the Sudan was put on notice concerning the alleged serious crimes that are taking
place in Darfur. It was requested not only by the international community, but more importantly by its
own people, to put an end to the violations and to bring the perpetrators to justice. It must take serious
measures to address these violations. The Commission of Inquiry therefore recommends the
Government of the Sudan to:
(i) end the impunity for the war crimes and crimes against humanity committed in
Darfur. A number of measures must be taken in this respect. It is essential that
Sudanese laws be brought in conformity with human rights standards through inter
alia abolishing the provisions that permit the detention of individuals without judicial
review, the provisions granting officials immunity from prosecution as well as the
provisions on specialized courts;
(ii) respect the rights of IDPs and fully implement the Guiding Principles on Internal
Displacement, particularly with regard to facilitating their voluntary return in safety
and dignity;
(iii) strengthen the independence and impartiality of the judiciary and to confer on courts
adequate powers to address human rights violations;
(iv) grant the International Committee of the Red Cross and the United Nations human
rights monitors full and unimpeded access to all those detained in relation to the
situation in Darfur;
(v) ensure the protection of all the victims and witnesses of human rights violations,
particularly those who were in contact with the Commission of Inquiry and ensure the
protection of all human rights defenders;
(vi) with the help of international community, enhance the capacity of the Sudanese
judiciary through the training of judges, prosecutors and lawyers. Emphasis should be
laid on human rights law, humanitarian law, as well as international criminal law;
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(vii) fully cooperate with the relevant human rights bodies and mechanisms of the United
Nations and the African Union, particularly, the special representative of the United
Nations Secretary-General on human rights defenders; and
(viii) create through a broad consultative process, including civil society and victim groups,
a truth and reconciliation commission once peace is established in Darfur.
3. Measures That Could be Taken by Other Bodies
651. The Commission also recommends that measures designed to break the cycle of impunity should
include the exercise by other States of universal jurisdiction, as outlined elsewhere in this report.
652. Given the seriousness of the human rights situation in Darfur and its impact on the human rights
situation in the Sudan, the Commission recommends that the Commission on Human Rights consider the
re-establishment of the mandate of the Special Rapporteur on human rights in the Sudan.
653. The Commission recommends that the High Commissioner for Human Rights should issue
public and periodic reports on the human rights situation in Darfur.
165
Annex 1. Curricula vitae of Commission’s members
Antonio Cassese (Chairman)
Professor Cassese was a Judge (1993-2000) and the first President (1993-97) of the International
Criminal Tribunal for the Former Yugoslavia. He also served as a member of the Italian delegation
to the United Nations Commission on Human Rights, the Council of Europe Steering Committee on
Human Rights, and was President of the Council of Europe Committee Against Torture (1989-93).
He has taught international law at the University of Florence and the European University Institute
in Florence. In 2002, he was the recipient of the prize granted by the Academie Universelle des
Cultures presided over by Nobel Peace Prize winner, Elie Wiesel, ‘for his exceptional contribution
to the protection of human rights in Europe and the world’. Professor Cassese has published
extensively on issues of international human rights and international criminal law and is the author
of International Law, 2nd edn. (Oxford University Press, 2005) and International Criminal Law
(Oxford University Press, 2003). He is the co-founder and co-editor of the European Journal of
International Law, and founder and editor-in-chief of the Journal of International Criminal Justice.
He has been granted Doctorates honoris causa by the Erasmus University at Rotterdam, Paris XIII
University and the University of Geneva, and is a member of the Institut de droit international.
Mohammed Fayek
Mohammed Fayek is the Secretary-General of the Arab Organization for Human Rights, a nongovernmental
organization which defends human rights in the Arab region. He is a member of the
National Council for human rights in Egypt and the Egyptian Council for Foreign Affairs, and is
Vice-President of the Egyptian Committee for Afro-Asian Solidarity. He is the owner and directorgeneral
of Dar El-Mustaqbal El-Arabi publishing house.
Mr Fayek has previously served in Egypt as Minister of Information, Minister of State for Foreign
Affairs, Minister of National Guidance, and Chef de Cabinet and Advisor to the President for
African and Asian Affairs. He was an elected member of the Egyptian Parliament for two
consecutive terms for the Kasr El-Nil constituency in Cairo.
Hina Jilani
Hina Jilani has been the Special Representative of the Secretary-General on Human Rights
Defenders since the establishment of the mandate in 2000. She is an Advocate of the Supreme
Court of Pakistan and has been a human rights defender for many years, working in particular in
favour of the rights of women, minorities and children. She was a co-founder of the first all-women
law firm in Pakistan in 1980 and founded the country’s first legal aid center in 1986.
Ms Jilani is the Secretary-General of the Human Rights Commission of Pakistan. She has been a
member of the Council and Founding Board of International Council of Human Rights Policy; the
Steering Committee of the Asia Pacific Forum for Women Law and Development; the International
Human Rights Council at the Carter Centre; and the Women’s Action Forum in Pakistan. She is a
member of the District High Court and Supreme Court Bar Associations of Pakistan.
Dumisa Ntsebeza
166
In 1995, Dumisa Ntsebeza was appointed as a Commissioner on the Truth and Reconciliation
Commission in South Africa. He led the Commission's Investigative Unit, was the Head of its
Witness Protection Programme and served occasionally as Deputy and Acting Chair. Mr Ntsebeza
is the founder and former president of the South African National Association of Democratic
Lawyers, and a past President of South Africa's Black Lawyers Association. He has served as acting
judge on the High Court of South Africa, as well as the South African Labour Court.
Mr Ntsebeza has lectured at the University of Transkei and chaired the institution's governing body,
the University of Transkei Council. He has been a visiting Professor of Political Science and Law at
the University of Connecticut. He is an advocate of the High Court of South Africa and a member
of the Cape Bar, and currently holds chambers in Cape Town.
Therese Striggner-Scott
Ms Striggner-Scott is a barrister and principal partner with a legal consulting firm in Accra, Ghana.
She has served as Judge of the High Courts of Ghana and Zimbabwe, and was the Executive
Chairperson of the Ghana Law Reform Commission from January 2000 to February 2004. She was
a member of the Standing Commission of Inquiry Regarding Public Violence and Intimidation in
South Africa (‘the Goldstone Commission’).
Ms Striggner-Scott has held various diplomatic titles including Ambassador of Ghana to France
(with accreditations to Spain, Portugal, Greece and the Holy See, as well as UNESCO) and to Italy
(with accreditations to Turkey, Croatia, Slovenia and Greece as well as the FAO, WFP and IFAD).
She has served as a member of UNESCO’s Legal Commission and was an elected member of the
organization’s Executive Board. She was also a member of the Conventions and Recommendations
Committee, the Executive Board’s human rights body, and served as Chair of the Committee at the
Executive Board’s 140th session.
167
Annex 2. List of official meetings with the Government of the Sudna an the SLM/A and the JEM
I. Sudanese Governmental Representatives
A. Khartoum
􀁸 First Vice President, H.E. Ali Uthman Muhammad Taha
􀁸 Director General, National Security and Intelligence Service: Major General Sallah
Gosh
􀁸 Minister of Justice: H.E. Ali Mohamed Osman Yasin
􀁸 Minister of Foreign Affairs: H.E. Mr. Mustafa Osman Ismail
􀁸 Minister of Interior and Special Representative of the President to Darfur: H.E. Mr.
Abdel Rahim Mohammed Hussein
􀁸 State Minister for the Interior, H.E. Mr. Ahmed Mohammed Haroon
􀁸 Minister of Federal Affairs, H.E. Mr. Nafi Nafi
􀁸 Minister of International Cooperation: H.E Mr. Yusuf Takana
􀁸 Minister of Defence: H.E. Mr. General Bakri Hassan Saleh
􀁸 Deputy Chief Justice and other Members of the Judiciary
􀁸 Deputy Director of Military Intelligence, General El Fadil
􀁸 Speaker of Parliament and Other Members
􀁸 Members of the National Commission of Inquiry in Darfur: Chairman Professor
Dafa Allah Elhadj Yousuf
􀁸 Rapporteur of the Advisory Council for Human Rights: Mr. Abdelmonem Osman
Mohamed Taha
􀁸 Members of the Rape Committee
􀁸 Members of the Committee on Darfur to assist the International Commission on
Darfur, Chairman Major General Magzoub
B. North Darfur
􀁸 Governor – Wali of North Darfur: Mr. Kibul
􀁸 Army; Major General Ismat Abdulrahim Zeimat Abidi Director of operations in the
ministry of Defence in Khartoum.
􀁸 Chief Prosecutor, Mr. Moulana El Gadi
􀁸 Chief Justice, Mr. Hisham Mohamed Youssef
􀁸 Police, Mr. Hassan Mohamed Ibrahim
􀁸 National Securiy, Deputy Director, Mr. Saleh Saddiq Mohamed
C. South Darfur
􀁸 Wali of South Darfur; Engineer Ata Al-AlMoneim
􀁸 General-Secretary of Government
􀁸 Chief Justice of South Darfur;
􀁸 Judge of Nyala Specialized Court, Mr. Murtar Ibrahim
􀁸 Director of National Security for South Darfur State, Colonel Abdel Razim
􀁸 Chief of Police of Nyala, Adedin El Taher Al Haj
􀁸 Chief of Police of Zalinguei
􀁸 Head of the 16th division in charge of South Darfur;Bridagier Abdallah Abdo,
􀁸 Head of military intelligence; Colonel Hoseith Abdelmelik Ahmedelsheik,
168
􀁸 Capt. Adel Youssif, legal adviser, head of the judiciary branch of the military;
􀁸 Members of the SLA and one of JEM, who are representatives of their movement to
the AUCFC: Mohammed Adam and Ahmed Fadi, SLA and Magil Hassin, JEM
D. West Darfur
􀁸 Wali of West Darfur, Mr. Sulieman Abdalla Adam
􀁸 Chief Justice and members of the judiciary and the Specialized Courts, Court of
Appeal, Public Court and District Court. A so-called “Legal Adviser to the Wali”
􀁸 Attorney General / Chief Prosecutor and the Legal adviser of the Wali.
􀁸 Minister of Cultural and Social Affairs and acting as Minister of Health; Deputy Wali;
Mr. Jaffar Abdul Hakam,.
􀁸 Military Commander of West Darfur, 22nd Division - Name recorded as Brig-General
Samsadin
􀁸 Deputy Commissioner of Police, El Geineina
􀁸 Meeting with the Head of National Security, West Darfur, El Geneina
II. SLM/A and JEM Representatives:
1. SLM/A
􀁸 Mr. Minawi Minnie Arkou, Chairman of Sudanese Liberation Movement/ Army
(SLM/A).
􀁸 Military Commander and humanitarian Director Suleiman Jamos.
􀁸 Representative of the SLM/A in the AU CFC in three areas; El Fashir, El Geneina
and Nyala
2. JEM
􀁸 Dr. Khalil Ibrahim Mohammed, Chairman of the Justice and Equality Movement
(JEM),
169
Annex 3: Places visited in the Sudan
I. Cities, towns, villages and sites
􀁸 Abu Shok Camp
􀁸 Adwa
􀁸 Amika Sara
􀁸 Buram
􀁸 Deleig
􀁸 El Fashir
􀁸 El Geneina
􀁸 Fato Borno camp
􀁸 Garzila
􀁸 Habila
􀁸 Habilah
􀁸 Haloof
􀁸 Kabkabiya
􀁸 Kabkabiya
􀁸 Kass
􀁸 Khartoum
􀁸 Kulbus
􀁸 Kutum
􀁸 Mornei
􀁸 Nyala
􀁸 Shataya
􀁸 Taisha
􀁸 Tawila
􀁸 Towing
􀁸 Wadi Saleh
􀁸 Zalinguei
􀁸 Zalinguei
􀁸 Zam zam camp
􀁸 “School” IDP camp Kass
􀁸 Abeche, Chad
􀁸 Bredjing Refugee camp
􀁸 Camp of Kalma
􀁸 Camp of Nyala
􀁸 Camp of Otash
􀁸 Camp of Zalinguei
􀁸 Hamadiya camp Zalinguei
D. Detention centers
􀁸 National Security Detention center in Khartoum
􀁸 National Security Detention Centre in Nyala
170
􀁸 National Intelligence Detention Center in Khartoum
􀁸 Kober prison in Khartoum
Places visited outside the Sudan
A. Eritrea, Asmara
B. Ethiopia, Addis Ababa
C. Chad, Abeche and Adré
171
Annex 3. List of public reports on Darfur consulted by the Commission
The International Commission of Inquiry reviewed numerous reports, from both public and
confidential sources, in relation to the conflict in Darfur. The following is a non exhaustive list of
the public reports consulted by the Commission. The titles of non public reports are not listed for
confidentiality purposes.
UNITED NATIONS
1. United Nations: Darfur Region: Incidents of Violence Against Civilians Reported to the
United Nations, February – September 2004
2. United Nations Inter-Agency Fact Finding and Rapid Assessment Mission, Kailek Town,
South Darfur 25 April 2004,
3. Joint Communiqué between the Government of the Sudan and the Secretary General to the
Sudan, 29 June – 3 July 04.
4. Report of the Secretary General pursuant to paragraphs 6 and 13 to 16 of the Security
Council resolution 1556 (2004). S/2004/703
5. Report of the Secretary-General on the Sudan pursuant to paragraphs 6, 13 and 16 of
Security Council resolution 1556 (2004), paragraph 15 of Security Council resolution 1564
(2004), and paragraph 17 of Security Council resolution 1574 (2004). S/2004/947
6. Report of the Secretary-General on Sudan pursuant to paragraph 15 of Security Council
Resolution 1564 of 18 September 2004, and paragraphs 6, 13 and 16 of Security Council
resolution 1556 of 30 July 2004. October 2004
7. UN High Level Mission to Darfur, the Sudan, 27 April – 02 May 04
8. Security Council resolution 1547, S/RES/1547
9. Security Council resolution 1556, S/RES/1556
10. Security Council resolution 1564, S/RES/1564
OHCHR
11. OHCHR Fact finding Mission to Darfur Report E/CN.4/2005/3
12. OHCHR October, November and December 2004 reports.
13. The Final Report of the First African Regional Consultation on Violence Against Women
With the Special Rapporteur Of the United Nations Commission on Human Rights On
Violence Against Women And the Special Rapporteur of the African Commission on
Human and Peoples’ Rights on Women Rights; Khartoum 25 -16 September 2004.
14. Report of the UN HR Commission on extrajudicial, summary or arbitrary executions in S. &
W. Sudan, E/CN.4/2005/7/Add.2, 6 August 2004
15. Report of the Representative of the Secretary-General on internally displaced persons,
Francis M. Deng. E/CN.4/2005/8, 27 September 2004.
OCHA
172
16. Deteriorating security threatens to plunge Darfur into ‘Chaos’, Under-Secretary-General
(OCHA) warns Security Council, SC/8262.
Sudan - UNCT
17. Weekly Round up of current Developments UNCT (31 May-5 June)
18. Office of the UN Resident and Humanitarian Co-ordinator for the Sudan; 6 December 2003,
22 March 2004,
19. UNCT Darfur Update 26 July 2003
UNHCR
20. UNHCR; The Darfur Crisis and Chad Mediation
UNICEF
21. UNICEF reports; Challenges of socio-cultural reconstruction and unity in Southern Sudan, 7
Jan 2004
WHO
22. Restrospective Mortality Survey; Among the Internally Displaced Population, Greater
Darfur Sudan, August 2004.
African Union Reports
22. Cease Fire Agreement and Protocol 08 April 2004
23. CFC Commission Agreement 28 May 2004
24. Conference Agreement 25 April 2004
25. Humanitarian Protocol 09 November 2004
26. Press Release 02 December 2004
27. Security Protocol 09 November 2004
28. Status of Mission Agreement 04 June 2004
29. Commission Ceasfire Report on the Incident in Dar Essalam and Wada General Area
30. Report of the Ceasefire Commission on the Situation inDarfur Conflict at the Joint
Commission Meeting Held in N'Djamena, Tchad by Brigadier General Fo Okonkwo
Chairman Ceasefire Commisison on 4 October 2004
31. Brief for the members of the joint Commisison for the Darfur Peace Talks in Abuja Nigeria
by Brigadier General Fo Okonkwo, Chairman Ceasefire Commission, 23 August 2004
Inter Governmental organizations reports
173
33. Arab League report on its mission to Darfur
34. Report of the Organization of Islamic Conference on its mission to Darfur
35. Report of the ad hoc delegation of the Committee on Development and Cooperation on its
mission to Sudan from 19 to 24 February 2004, CR/528901EN.doc
Governmental reports
36. US Department of State Report Documenting Atrocities in Darfur, September 2004
37. CRS Report for Congress. Sudan: The Darfur Crisis and the Status of North-South
Negotiations, 22 October 2004
38. The Use of Rape as a Weapon of War in the Conflict in Darfur Sudan, October 2004
List of Media and Press articles
68. Open-Range Management and Property Rights in Pastoral Africa - A Case of Spontaneous
Range Enclosure in South Darfur, Sudan, by Roy H. Behnke jr, August 1985.
69. Pastoral Land Tenure and Agricultural Expansion: Sudan and the Horn of Africa
70. Transcript of the Panorama Programme from 14 November 2004
71. Arabizing an Africa Capital: What if government brings up the African face of Sudan?
Mahgoub El-Tigani, December 11, 2004
72. Feature-Darfur 'A hundred days of failure', Wednesday December 15th, 2004 02:43. By Jim
Lobe
73. (EU) EU/SUDAN: EU to mobilise extra 80 million EUR to support enlarged African Union
mission to make Darfur safe
39. Violence against women: The unacknowledged casualties of war, Irene Khan International
Herald Tribune, Saturday, December 18, 2004
40. Presidents of Chad and Sudan Meet to Discuss Rebellion in Western Sudan,
04/13/03Presidents of Chad and Sudan Meet to Discuss Rebellion in Western Sudan,
04/13/03, AP.
List of International NGO reports
41. Sudanese Organization Against Torture
􀁸 Human Rights Report on Darfur May- October 04
􀁸 Darfur - The Tragedy Continues; 28 November 2004
􀁸 Alternative Report to the African Commission- May 2004
42. Sudanese Human Rights Organization
􀁸 Sudanese Human Rights Quarterly. Issue 17, Februrary2004.
􀁸 Issue N°.16 - October 2003
􀁸 Quarterly Issue N°. 15, June 2003
􀁸 Quarterly Issue N°.14, October 2002
􀁸 Quarterly Issue N°. 12, January 2002
􀁸 The Situation of Human Rights in Sudan, 26 March 2003
􀁸 Report on the situaiton of Human Rights in Sudan, October 1, 2003 – January 31,
2004, 5 February 2004
174
43. Amnesty International
􀁸 Sudan, Darfur “Too Many people killed for no reason”, 3 February 2004
􀁸 Darfur: Extrajudicial execution of 168 men, April 2004
􀁸 Darfur Incommunicado detention, torture and special courts 8 June 2004
􀁸 Sudan: At the mercy of killers – destruction of villages in Darfur, June 2004
􀁸 Sudan, Darfur Rape as a weapon of war Sexual violence and its consequences, July 2004
􀁸 Sudan: Arming the perpetrators of grave abuses in Darfur, 16 November 2004
􀁸 Sudan: Intimidation and denial, Attacks on freedom of expression in Darfur, August
2004
􀁸 Sudan No one to complain to: No respite for the victims, impunity for the perpetrators. 2
December 2004.
􀁸 Sudan, who will answer for the crimes? January 2005
44. Human Rights Watch
􀁸 Sudan, Darfur in Flames: Atrocities in Western Sudan April 2004, Vol. 16, No. 5 (a)
􀁸 Darfur Destroyed: Ethnic Cleansing by Government and Militia Forces in Western
Sudan May 2004, Vol. 16, No. 6 (a)
􀁸 Darfur Documents Confirm Government Policy of Militia Support, A Human Rights
Watch Briefing Paper, 19 July 2004
􀁸 Empty Promises? Continuing Abuses in Darfur Sudan, A Human Rights Watch Briefing
Paper, 11 August 2004
􀁸 Sudan Janjaweed Camps Still Active, Human Rights Watch 27 August 2004
􀁸 Addressing crimes against humanity and "ethnic cleansing" in Darfur, Sudan, Human
Rights Watch, May 24, 2004
􀁸 "If we return we will be killed" Consolidated Ethnic Cleansing in Darfur, Sudan
November 2004
45. International Crisis Group
􀁸 Darfur Deadline: A New International Action Plan, Africa report No83, 23 August 2004
􀁸 Darfur Rising: Sudan's New Crisis, ICG Africa Report No76, 25 March 2004
􀁸 Sudan: Now or Never in Darfur, Africa Report No80, 23 May 2004
􀁸 Sudan: Towards an Incomplete Peace, ICG Africa Report No73, 11 December 2003
􀁸 Sudan's Dual Crises: Refocusing on IGAD, Africa Briefing, 05 October 2004
46. AEGIS
􀁸 Darfur: Management of a Genocidal Crisis, November 2004, Report 201/04
175
Annex 4. Overview of the activities by the investigative teams of the Commission
The Commission’s investigation team was led by a Chief Investigator and included four judicial
investigators, two female investigators specializing in gender violence, four forensic experts from
the Argentine Forensic Anthropology Team and two military analysts.
Investigation team members interviewed witnesses and officials in Khartoum and accompanied the
Commissioners on their field mission to the three Darfur States. The investigation team was then
split into three sub-teams which were deployed to North, South and West Darfur.
West Darfur Team
The team for West Darfur was composed of two investigators, a military analyst and supported by
one or two forensic experts, according to requirements. The team also had two interpreters working
for it. The team was based in Al-Geneina for a total of 36 days, first from 27 November to 18
December 2004, and, in 2005, between 5 and 18 January. One of the investigators also
accompanied the Commissioners during their visit to West Darfur and Chad, in early November
2004.
The West Darfur team conducted thirteen visits to towns and villages outside of Al-Geneina, for a
total of 16 days, mostly through travel by road but also by way of 4 helicopter trips to more distant
locations. The areas covered by the team included most of Al-Geneina, Kulbus and Habilah
localities, while parts of Wadi Salih locality were also visited.
In all, the team collected information concerning attacks on 51 towns or villages and 11 cases of
rapes, through interviews from 116 eyewitnesses and 12 circumstantial witnesses.
Through that process, members of the team met with representatives from most of the tribal groups
in West Darfur, including Arab nomads. The team also held meetings with government officials,
including representatives from the military, police, judiciary and administration, as well as meetings
with representatives from the rebel groups (SLA and JEM). In addition to meetings with witnesses,
the team further held discussions with representatives from international NGOs, United Nations
Agencies and the AU.
North Darfur Team
The team in North Darfur was composed of two investigators, one analyst and members of the
Forensic Team, used on a shared basis with the West and South teams. The team also employed
interpreters and drivers to facilitate the mission.
The initial mission into El Fashir took place with the Commissioners on 11 November 2004.
During this mission, government officials, witnesses, NGO’s and other individuals were
interviewed. The team returned to Khartoum with the Commissioners on the 17 November 2004.
The team was due to redeployed into El Fashir on the 27 November 2004, however at this time a
State of Emergency in North Darfur was declared by the Government because of continued fighting
between the SLA and GOS and due to this and security concerns, deployment was not possible. The
team was assigned to assist the West Darfur Team in their investigation, until such time the security
situation eased.
176
The team was later diverted to South Darfur where it assisted in ongoing investigations. The team
spent from the 1 December 2004 to 6 December 2004 based in Nyala and then the team redeployed
to El Fashir until 19 December. During this period it carried out enquiries at specific targeted
locations, such as IDP camps, SLA contacts, destroyed villages and government officials. A close
liaison was also formed with the African Union mission. The final deployment for the team was
from 4 January 2005 to 19 January 2005, during which time it concentrated on specific targets that
could not be reached during the first mission. Places such as Tawila village, Kutum and Fato
Bourno IDP camp are examples. A number of Government officials (military) were interviewed at
length.
In total the North Darfur team interview 141 witness, covering 98 separate incidents, thirteen
involving GoS only, twenty-one involving Janjaweed only and 37 involving a combination of GoS
and Janjaweed. Twenty six witness were interview regarding incidents involving SLA and JEM.
Seven crime scenes were visited.
South Darfur Team
The Investigative Team for South Darfur (Nyala) was composed of three investigators. Earlier the
team was supported by forensic experts and investigators from other teams for several days. In
addition the team had two male interpreters working for it. An international female interpreter
joined the team in the final stages of the investigation to assist - particularly in sexual assault
matters.
The team was based in Nyala for a total of 36 days, first from 27 November to 18 December 2004,
and, in the 2005, between 5 and 18 January.
The South Darfur team conducted seven visits to towns and villages outside Nyala and Kass
through travel by road but also by way of four helicopter trips to areas when road were closed for
security reasons.
The South Darfur Team concentrated mainly on six case studies – namely the Kailek group of
towns and villages, Hallof, Taisha, Adwa, Ami Kasara and Buram collecting detailed information
on each of these cases - including the versions of the suspected parties. The team also collected
information on a very recent attack on a village which occurred on 14 January 2005.
In addition the team collected information concerning 39 rape and sexual assault cases. A number
of interviews were conducted with Government officials. The team also interviewed
representatives from JEM and SLA. Finally the team held discussions with representatives from
international NGOs, United Nations Agencies and the AU.
The Forensic team conducted crime scene examinations in 16 areas.
Annex 754
CESCR General Comment No. 16, The Equal Right of Men and Women to the Enjoyment of All
Economic, Social and Cultural Rights, E/C.12/2005/4 (11 August 2005)

UNITED
NATIONS E
Economic and Social
Council
Distr.
GENERAL
E/C.12/2005/4
11 August 2005
Original: ENGLISH
COMMITTEE ON ECONOMIC, SOCIAL
AND CULTURAL RIGHTS
Thirty-fourth session
Geneva, 25 April-13 May 2005
Agenda item 5
SUBSTANTIVE ISSUES ARISING IN THE IMPLEMENTATION OF
THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL
AND CULTURAL RIGHTS
General comment No. 16 (2005)
The equal right of men and women to the enjoyment of all economic, social
and cultural rights (art. 3 of the International Covenant on Economic,
Social and Cultural Rights)
Introduction
1. The equal right of men and women to the enjoyment of all human rights is one of the
fundamental principles recognized under international law and enshrined in the main
international human rights instruments. The International Covenant on Economic, Social and
Cultural Rights (ICESCR) protects human rights that are fundamental to the dignity of every
person. In particular, article 3 of this Covenant provides for the equal right of men and women
to the enjoyment of the rights it articulates. This provision is founded on Article 1, paragraph 3,
of the United Nations Charter and article 2 of the Universal Declaration of Human Rights.
Except for the reference to ICESCR, it is identical to article 3 of the International Covenant on
Civil and Political Rights (ICCPR), which was drafted at the same time.
2. The travaux préparatoires state that article 3 was included in the Covenant, as well as in
ICCPR, to indicate that beyond a prohibition of discrimination, “the same rights should be
expressly recognized for men and women on an equal footing and suitable measures should be
taken to ensure that women had the opportunity to exercise their rights …. Moreover, even if
article 3 overlapped with article 2, paragraph 2, it was still necessary to reaffirm the equality
GE.05-43539 (E) 310805
E/C.12/2005/4
page 2
rights between men and women. That fundamental principle, which was enshrined in the
Charter of the United Nations, must be constantly emphasized, especially as there were still
many prejudices preventing its full application”.1 Unlike article 26 of ICCPR, articles 3 and 2,
paragraph 2, of ICESCR are not stand-alone provisions, but should be read in conjunction with
each specific right guaranteed under part III of the Covenant.
3. Article 2, paragraph 2, of ICESCR provides for a guarantee of non-discrimination on the
basis of sex among other grounds. This provision, and the guarantee of equal enjoyment of
rights by men and women in article 3, are integrally related and mutually reinforcing. Moreover,
the elimination of discrimination is fundamental to the enjoyment of economic, social and
cultural rights on a basis of equality.
4. The Committee on Economic, Social and Cultural Rights (CESCR) has taken particular
note of factors negatively affecting the equal right of men and women to the enjoyment of
economic, social and cultural rights in many of its general comments, including those on the
right to adequate housing,2 the right to adequate food,3 the right to education,4 the right to the
highest attainable standard of health,5 and the right to water.6 The Committee also routinely
requests information on the equal enjoyment by men and women of the rights guaranteed under
the Covenant in its list of issues in relation to States parties’ reports and during its dialogue with
States parties.
5. Women are often denied equal enjoyment of their human rights, in particular by virtue of
the lesser status ascribed to them by tradition and custom, or as a result of overt or covert
discrimination. Many women experience distinct forms of discrimination due to the intersection
of sex with such factors as race, colour, language, religion, political and other opinion, national
or social origin, property, birth, or other status, such as age, ethnicity, disability, marital, refugee
or migrant status, resulting in compounded disadvantage.7
I. CONCEPTUAL FRAMEWORK
A. Equality
6. The essence of article 3 of ICESCR is that the rights set forth in the Covenant are to be
enjoyed by men and women on a basis of equality, a concept that carries substantive meaning.
While expressions of formal equality may be found in constitutional provisions, legislation and
policies of Governments, article 3 also mandates the equal enjoyment of the rights in the
Covenant for men and women in practice.
7. The enjoyment of human rights on the basis of equality between men and women must be
understood comprehensively. Guarantees of non-discrimination and equality in international
human rights treaties mandate both de facto and de jure equality. De jure (or formal) equality
and de facto (or substantive) equality are different but interconnected concepts. Formal equality
assumes that equality is achieved if a law or policy treats men and women in a neutral manner.
Substantive equality is concerned, in addition, with the effects of laws, policies and practices and
with ensuring that they do not maintain, but rather alleviate, the inherent disadvantage that
particular groups experience.
E/C.12/2005/4
page 3
8. Substantive equality for men and women will not be achieved simply through the
enactment of laws or the adoption of policies that are, prima facie, gender-neutral. In
implementing article 3, States parties should take into account that such laws, policies and
practice can fail to address or even perpetuate inequality between men and women because they
do not take account of existing economic, social and cultural inequalities, particularly those
experienced by women.
9. According to article 3, States parties must respect the principle of equality in and before
the law. The principle of equality in the law must be respected by the legislature when adopting
laws, by ensuring that those laws further equal enjoyment of economic, social and cultural rights
by men and women. The principle of equality before the law must be respected by
administrative agencies, and courts and tribunals, and implies that those authorities must apply
the law equally to men and women.
B. Non-discrimination
10. The principle of non-discrimination is the corollary of the principle of equality. Subject
to what is stated in paragraph 15 below on temporary special measures, it prohibits differential
treatment of a person or group of persons based on his/her or their particular status or situation,
such as race, colour, sex, language, religion, political and other opinion, national or social origin,
property, birth, or other status, such as age, ethnicity, disability, marital, refugee or migrant
status.
11. Discrimination against women is “any distinction, exclusion or restriction made on the
basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment
or exercise by women, irrespective of their marital status, on a basis of equality of men and
women, of human rights and fundamental freedoms in the political, economic, social, cultural,
civil or any other field”.8 Discrimination on the basis of sex may be based on the differential
treatment of women because of their biology, such as refusal to hire women because they could
become pregnant; or stereotypical assumptions, such as tracking women into low-level jobs on
the assumption that they are unwilling to commit as much time to their work as men.
12. Direct discrimination occurs when a difference in treatment relies directly and explicitly
on distinctions based exclusively on sex and characteristics of men or of women, which cannot
be justified objectively.
13. Indirect discrimination occurs when a law, policy or programme does not appear to be
discriminatory, but has a discriminatory effect when implemented. This can occur, for example,
when women are disadvantaged compared to men with respect to the enjoyment of a particular
opportunity or benefit due to pre-existing inequalities. Applying a gender-neutral law may leave
the existing inequality in place, or exacerbate it.
14. Gender affects the equal right of men and women to the enjoyment of their rights.
Gender refers to cultural expectations and assumptions about the behaviour, attitudes, personality
traits, and physical and intellectual capacities of men and women, based solely on their identity
as men or women. Gender-based assumptions and expectations generally place women at a
disadvantage with respect to substantive enjoyment of rights, such as freedom to act and to be
recognized as autonomous, fully capable adults, to participate fully in economic, social and
E/C.12/2005/4
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political development, and to make decisions concerning their circumstances and conditions.
Gender-based assumptions about economic, social and cultural roles preclude the sharing of
responsibility between men and women in all spheres that is necessary to equality.
C. Temporary special measures
15. The principles of equality and non-discrimination, by themselves, are not always
sufficient to guarantee true equality. Temporary special measures may sometimes be needed in
order to bring disadvantaged or marginalized persons or groups of persons to the same
substantive level as others. Temporary special measures aim at realizing not only de jure or
formal equality, but also de facto or substantive equality for men and women. However, the
application of the principle of equality will sometimes require that States parties take measures
in favour of women in order to attenuate or suppress conditions that perpetuate discrimination.
As long as these measures are necessary to redress de facto discrimination and are terminated
when de facto equality is achieved, such differentiation is legitimate.9
II. STATES PARTIES’ OBLIGATIONS
A. General legal obligations
16. The equal right of men and women to the enjoyment of economic, social and cultural
rights is a mandatory and immediate obligation of States parties.10
17. The equal right of men and women to the enjoyment of economic, social and cultural
rights, like all human rights, imposes three levels of obligations on States parties - the obligation
to respect, to protect and to fulfil. The obligation to fulfil further contains duties to provide,
promote and facilitate.11 Article 3 sets a non-derogable standard for compliance with the
obligations of States parties as set out in articles 6 through 15 of ICESCR.
B. Specific legal obligations
1. Obligation to respect
18. The obligation to respect requires States parties to refrain from discriminatory actions
that directly or indirectly result in the denial of the equal right of men and women to their
enjoyment of economic, social and cultural rights. Respecting the right obliges States parties not
to adopt, and to repeal laws and rescind, policies, administrative measures and programmes that
do not conform with the right protected by article 3. In particular, it is incumbent upon States
parties to take into account the effect of apparently gender-neutral laws, policies and
programmes and to consider whether they could result in a negative impact on the ability of men
and women to enjoy their human rights on a basis of equality.
2. Obligation to protect
19. The obligation to protect requires States parties to take steps aimed directly at the
elimination of prejudices, customary and all other practices that perpetuate the notion of
inferiority or superiority of either of the sexes, and stereotyped roles for men and women. States
parties’ obligation to protect under article 3 of ICESCR includes, inter alia, the respect and
adoption of constitutional and legislative provisions on the equal right of men and women to
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enjoy all human rights and the prohibition of discrimination of any kind; the adoption of
legislation to eliminate discrimination and to prevent third parties from interfering directly or
indirectly with the enjoyment of this right; the adoption of administrative measures and
programmes, as well as the establishment of public institutions, agencies and programmes to
protect women against discrimination.
20. States parties have an obligation to monitor and regulate the conduct of non-State actors
to ensure that they do not violate the equal right of men and women to enjoy economic, social
and cultural rights. This obligation applies, for example, in cases where public services have
been partially or fully privatized.
3. Obligation to fulfil
21. The obligation to fulfil requires States parties to take steps to ensure that in practice, men
and women enjoy their economic, social and cultural rights on a basis of equality. Such steps
should include:
− To make available and accessible appropriate remedies, such as compensation,
reparation, restitution, rehabilitation, guarantees of non-repetition, declarations,
public apologies, educational programmes and prevention programmes;
− To establish appropriate venues for redress such as courts and tribunals or
administrative mechanisms that are accessible to all on the basis of equality,
including the poorest and most disadvantaged and marginalized men and women;
− To develop monitoring mechanisms to ensure that the implementation of laws and
policies aimed at promoting the equal enjoyment of economic, social and cultural
rights by men and women do not have unintended adverse effects on disadvantaged
or marginalized individuals or groups, particularly women and girls;
− To design and implement policies and programmes to give long-term effect to the
economic, social and cultural rights of both men and women on the basis of equality.
These may include the adoption of temporary special measures to accelerate women’s
equal enjoyment of their rights, gender audits, and gender-specific allocation of
resources;
− To conduct human rights education and training programmes for judges and public
officials;
− To conduct awareness-raising and training programmes on equality for workers
involved in the realization of economic, social and cultural rights at the grass-roots
level;
− To integrate, in formal and non-formal education, the principle of the equal right of
men and women to the enjoyment of economic, social and cultural rights, and to
promote equal participation of men and women, boys and girls, in schools and other
education programmes;
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− To promote equal representation of men and women in public office and
decision-making bodies;
− To promote equal participation of men and women in development planning,
decision-making and in the benefits of development and all programmes related to the
realization of economic, social and cultural rights.
C. Specific examples of States parties’ obligations
22. Article 3 is a cross-cutting obligation and applies to all the rights contained in articles 6
to 15 of the Covenant. It requires addressing gender-based social and cultural prejudices,
providing for equality in the allocation of resources, and promoting the sharing of
responsibilities in the family, community and public life. The examples provided in the
following paragraphs may be taken as guidance on the ways in which article 3 applies to other
rights in the Covenant, but are not intended to be exhaustive.
23. Article 6, paragraph 1, of the Covenant requires States parties to safeguard the right of
everyone to the opportunity to gain a living by work which is freely chosen or accepted and to
take the necessary steps to achieve the full realization of this right. Implementing article 3, in
relation to article 6, requires inter alia, that in law and in practice, men and women have equal
access to jobs at all levels and all occupations and that vocational training and guidance
programmes, in both the public and private sectors, provide men and women with the skills,
information and knowledge necessary for them to benefit equally from the right to work.
24. Article 7 (a) of the Covenant requires States parties to recognize the right of everyone to
enjoy just and favourable conditions of work and to ensure, among other things, fair wages and
equal pay for work of equal value. Article 3, in relation to article 7 requires, inter alia, that the
State party identify and eliminate the underlying causes of pay differentials, such as
gender-biased job evaluation or the perception that productivity differences between men and
women exist. Furthermore, the State party should monitor compliance by the private sector with
national legislation on working conditions through an effectively functioning labour inspectorate.
The State party should adopt legislation that prescribes equal consideration in promotion,
non-wage compensation and equal opportunity and support for vocational or professional
development in the workplace. Finally, the State party should reduce the constraints faced by
men and women in reconciling professional and family responsibilities by promoting adequate
policies for childcare and care of dependent family members.
25. Article 8, paragraph 1 (a), of the Covenant requires States parties to ensure the right of
everyone to form and join trade unions of his or her choice. Article 3, in relation to article 8,
requires allowing men and women to organize and join workers’ associations that address their
specific concerns. In this regard, particular attention should be given to domestic workers, rural
women, women working in female-dominated industries and women working at home, who are
often deprived of this right.
26. Article 9 of the Covenant requires that States parties recognize the right of everyone to
social security, including social insurance, and to equal access to social services. Implementing
article 3, in relation to article 9, requires, inter alia, equalizing the compulsory retirement age for
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both men and women; ensuring that women receive the equal benefit of public and private
pension schemes; and guaranteeing adequate maternity leave for women, paternity leave for
men, and parental leave for both men and women.
27. Article 10, paragraph 1, of the Covenant requires that States parties recognize that the
widest possible protection and assistance should be accorded to the family, and that marriage
must be entered into with the free consent of the intending spouses. Implementing article 3, in
relation to article 10, requires States parties, inter alia, to provide victims of domestic violence,
who are primarily female, with access to safe housing, remedies and redress for physical, mental
and emotional damage; to ensure that men and women have an equal right to choose if, whom
and when to marry - in particular, the legal age of marriage for men and women should be the
same, and boys and girls should be protected equally from practices that promote child marriage,
marriage by proxy, or coercion; and to ensure that women have equal rights to marital property
and inheritance upon their husband’s death. Gender-based violence is a form of discrimination
that inhibits the ability to enjoy rights and freedoms, including economic, social and cultural
rights, on a basis of equality. States parties must take appropriate measures to eliminate violence
against men and women and act with due diligence to prevent, investigate, mediate, punish and
redress acts of violence against them by private actors.
28. Article 11 of the Covenant requires States parties to recognize the right of everyone to an
adequate standard of living for him/herself and his/her family, including adequate housing
(para. 1) and adequate food (para. 2). Implementing article 3, in relation to article 11,
paragraph 1, requires that women have a right to own, use or otherwise control housing, land and
property on an equal basis with men, and to access necessary resources to do so. Implementing
article 3, in relation to article 11, paragraph 2, also requires States parties, inter alia, to ensure
that women have access to or control over means of food production, and actively to address
customary practices under which women are not allowed to eat until the men are fully fed, or are
only allowed less nutritious food.12
29. Article 12 of the Covenant requires States parties to undertake steps towards the full
realization of the right of everyone to the enjoyment of the highest attainable standard of
physical and mental health. The implementation of article 3, in relation to article 12, requires at
a minimum the removal of legal and other obstacles that prevent men and women from accessing
and benefiting from health care on a basis of equality. This includes, inter alia, addressing the
ways in which gender roles affect access to determinants of health, such as water and food; the
removal of legal restrictions on reproductive health provisions; the prohibition of female genital
mutilation; and the provision of adequate training for health-care workers to deal with women’s
health issues.13
30. Article 13, paragraph 1, of the Covenant requires States parties to recognize the right of
everyone to education and in paragraph 2 (a) stipulates that primary education shall be
compulsory and available free to all. Implementing article 3, in relation to article 13, requires,
inter alia, the adoption of legislation and policies to ensure the same admission criteria for boys
and girls at all levels of education. States parties should ensure, in particular through
information and awareness-raising campaigns, that families desist from giving preferential
treatment to boys when sending their children to school, and that curricula promote equality and
non-discrimination. States parties must create favourable conditions to ensure the safety of
children, in particular girls, on their way to and from school.
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31. Article 15, paragraph 1 (a) and (b), of the Covenant require States parties to recognize the
right of everyone to take part in cultural life and to enjoy the benefits of scientific progress.
Implementing article 3, in relation to article 15, paragraph 1 (a) and (b), requires, inter alia,
overcoming institutional barriers and other obstacles, such as those based on cultural and
religious traditions, which prevent women from fully participating in cultural life, science
education and scientific research, and directing resources to scientific research relating to the
health and economic needs of women on an equal basis with those of men.
III. IMPLEMENTATION AT THE NATIONAL LEVEL
A. Policies and strategies
32. The most appropriate ways and means of implementing the right under article 3 of the
Covenant will vary from one State party to another. Every State party has a margin of discretion
in adopting appropriate measures in complying with its primary and immediate obligation to
ensure the equal right of men and women to the enjoyment of all their economic, social and
cultural rights. Among other things, States parties must, integrate into national plans of action
for human rights appropriate strategies to ensure the equal right of men and women to the
enjoyment of economic, social and cultural rights.
33. These strategies should be based on the systematic identification of policies, programmes
and activities relevant to the situation and context within the State, as derived from the normative
content of article 3 of the Covenant and spelled out in relation to the levels and nature of States
parties’ obligations referred to in paragraphs 16 to 21 above. The strategies should give
particular attention to the elimination of discrimination in the enjoyment of economic, social and
cultural rights.
34. States parties should periodically review existing legislation, policies, strategies and
programmes in relation to economic, social and cultural rights, and adopt any necessary changes
to ensure that they are consonant with their obligations under article 3 of the Covenant.
35. The adoption of temporary special measures may be necessary to accelerate the equal
enjoyment by women of all economic, social and cultural rights and to improve the de facto
position of women.14 Temporary special measures should be distinguished from permanent
policies and strategies undertaken to achieve equality of men and women.
36. States parties are encouraged to adopt temporary special measures to accelerate the
achievement of equality between men and women in the enjoyment of the rights under the
Covenant. Such measures are not to be considered discriminatory in themselves as they are
grounded in the State’s obligation to eliminate disadvantage caused by past and current
discriminatory laws, traditions and practices. The nature, duration and application of such
measures should be designed with reference to the specific issue and context, and should be
adjusted as circumstances require. The results of such measures should be monitored with a
view to being discontinued when the objectives for which they are undertaken have been
achieved.
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37. The right of individuals and groups of individuals to participate in decision-making
processes that may affect their development must be an integral component of any policy,
programme or activity developed to discharge governmental obligations under article 3 of the
Covenant.
B. Remedies and accountability
38. National policies and strategies should provide for the establishment of effective
mechanisms and institutions where they do not exist, including administrative authorities,
ombudsmen and other national human rights institutions, courts and tribunals. These institutions
should investigate and address alleged violations relating to article 3 and provide remedies for
such violations. States parties, for their part, should ensure that such remedies are effectively
implemented.
C. Indicators and benchmarks
39. National policies and strategies should identify appropriate indicators and benchmarks on
the right to equal enjoyment by men and women of economic, social and cultural rights in order
to effectively monitor the implementation by the State party of its obligations under the
Covenant in this regard. Disaggregated statistics, provided within specific time frames, are
necessary to measure the progressive realization of economic, social and cultural rights by men
and women, where appropriate.
IV. VIOLATIONS
40. States parties must fulfil their immediate and primary obligation to ensure the equal right
of men and women to the enjoyment of economic, social and cultural rights.
41. The principle of equality between men and women is fundamental to the enjoyment of
each of the specific rights enumerated in the Covenant. Failure to ensure formal and substantive
equality in the enjoyment of any of these rights constitutes a violation of that right. Elimination
of de jure as well as de facto discrimination is required for the equal enjoyment of economic,
social and cultural rights. Failure to adopt, implement and monitor effects of laws, policies and
programmes to eliminate de jure and de facto discrimination with respect to each of the rights
enumerated in articles 6 to 15 of the Covenant constitutes a violation of those rights.
42. Violations of the rights contained in the Covenant can occur through the direct action of,
failure to act or omission by States parties, or through their institutions or agencies at the national
and local levels. The adoption and undertaking of any retrogressive measures that affect the
equal right of men and women to the enjoyment of the all the rights set forth in the Covenant
constitutes a violation of article 3.
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Notes
1 Draft International Covenants on Human Rights Report of the Third Committee.
A/53/65 (17 December 1962), para. 85.
2 Committee on Economic, Social and Cultural Rights (hereinafter CESCR),
general comment No. 4 (1991): The right to adequate housing (article 11, paragraph 1 of the
Covenant) para. 6; general comment No. 7 (1997): The right to adequate housing (article 11,
paragraph 1 of the Covenant): Forced evictions, para. 10.
3 CESCR, general comment No. 12 (1999): The right to adequate food (article 11 of the
Covenant), para. 26.
4 CESCR, general comment No. 11 (1999): Plans for primary education (article 14 of the
Covenant), para. 3; general comment No. 13 (1999): The right to education (article 13 of the
Covenant), paras. 6 (b), 31 and 32.
5 CESCR, general comment No. 14 (2000): The right to the highest attainable standard of health
(article 12 of the Covenant), paras. 18-22.
6 CESCR, general comment No. 15 (2000): The right to water (articles 11 and 12 of the
Covenant), paras. 13 and 14.
7 Cf. Committee on the Elimination of Racial Discrimination, general comment XXV (2000):
Gender-related dimensions of racial discrimination.
8 As defined in article 1 of the Convention on the Elimination of All Forms of Discrimination
against Women.
9 However, there is one exception to this general principle: reasons specific to an individual
male candidate may tilt the balance in his favour, which is to be assessed objectively, taking into
account all criteria pertaining to the individual candidates. This is a requirement of the principle
of proportionality.
10 CESCR, general comment No. 3 (1990): The nature of States parties obligations
(art. 2, para. 2).
11 According to CESCR general comment Nos. 12 and 13, the obligation to fulfil incorporates
an obligation to facilitate and an obligation to provide. In the present general comment, the
obligation to fulfil also incorporates an obligation to promote the elimination of all forms of
discrimination against women.
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12 Other examples of obligations and possible violations of article 3 in relation to article 11 (1)
and (2) are further discussed in CESCR general comment No. 12, para. 26.
13 CESCR general comment No. 14. paras. 18-21.
14 Reference is made in this regard to general recommendation No. 25 on article 4, paragraph 1,
of the Convention on the Elimination of All Forms of Discrimination against Women adopted by
the Committee on the Elimination of Discrimination against Women (CEDAW), CESCR general
comment No. 13 and the Limburg Principles on the Implementation of the International
Covenant on Economic, Social and Cultural Rights.
-----

Annex 755
CESCR General Comment No. 20, Non-Discrimination in Economic, Social and Cultural Rights,
E/C.12/GC/20 (2 July 2009)

GE.09-43405 (E) 090709
UNITED
NATIONS E
Economic and Social
Council
Distr.
GENERAL
E/C.12/GC/20
2 July 2009
Original: ENGLISH
COMMITTEE ON ECONOMIC, SOCIAL
AND CULTURAL RIGHTS
Forty-second session
Geneva, 4-22 May 2009
Agenda item 3
GENERAL COMMENT No. 20
Non-discrimination in economic, social and cultural rights (art. 2, para. 2, of the
International Covenant on Economic, Social and Cultural Rights)
I. INTRODUCTION AND BASIC PREMISES
1. Discrimination undermines the fulfilment of economic, social and cultural rights for a
significant proportion of the world’s population. Economic growth has not, in itself, led to
sustainable development, and individuals and groups of individuals continue to face
socio-economic inequality, often because of entrenched historical and contemporary forms of
discrimination.
2. Non-discrimination and equality are fundamental components of international human
rights law and essential to the exercise and enjoyment of economic, social and cultural rights.
Article 2, paragraph 2, of the International Covenant on Economic, Social and Cultural Rights
(the Covenant) obliges each State party “to guarantee that the rights enunciated in the present
Covenant will be exercised without discrimination of any kind as to race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other status”.
3. The principles of non-discrimination and equality are recognized throughout the Covenant.
The preamble stresses the “equal and inalienable rights of all” and the Covenant expressly
recognizes the rights of “everyone” to the various Covenant rights such as, inter alia, the right to
work, just and favourable conditions of work, trade union freedoms, social security, an adequate
standard of living, health and education and participation in cultural life.
E/C.12/GC/20
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4. The Covenant also explicitly mentions the principles of non-discrimination and equality
with respect to some individual rights. Article 3 requires States to undertake to ensure the equal
right of men and women to enjoy the Covenant rights and article 7 includes the “right to equal
remuneration for work of equal value” and “equal opportunity for everyone to be promoted” in
employment. Article 10 stipulates that, inter alia, mothers should be accorded special protection
during a reasonable period before and after childbirth and that special measures of protection and
assistance should be taken for children and young persons without discrimination. Article 13
recognizes that “primary education shall be compulsory and available free to all” and provides
that “higher education shall be made equally accessible to all”.
5. The preamble, Articles 1, paragraph 3, and 55, of the Charter of the United Nations and
article 2, paragraph 1, of the Universal Declaration of Human Rights prohibit discrimination in
the enjoyment of economic, social and cultural rights. International treaties on racial
discrimination, discrimination against women and the rights of refugees, stateless persons,
children, migrant workers and members of their families, and persons with disabilities include
the exercise of economic, social and cultural rights,1 while other treaties require the elimination
of discrimination in specific fields, such as employment and education.2 In addition to the
common provision on equality and non-discrimination in both the Covenant and the International
Covenant on Civil and Political Rights, article 26 of the International Covenant on Civil and
Political Rights contains an independent guarantee of equal and effective protection before and
of the law.3
6. In previous general comments, the Committee on Economic, Social and Cultural Rights
has considered the application of the principle of non-discrimination to specific Covenant rights
relating to housing, food, education, health, water, authors’ rights, work and social security.4
1 See the International Convention on the Elimination of All Forms of Racial Discrimination
(ICERD); the Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW); the Convention relating to the Status of Refugees; the Convention relating to the
Status of Stateless Persons; the Convention on the Rights of the Child; the International
Convention on the Protection of the Rights of All Migrant Workers and Members of Their
Families; and the Convention on the Rights of Persons with Disabilities.
2 ILO Convention No. 111 concerning Discrimination in Respect of Employment and
Occupation (1958); and the UNESCO Convention against Discrimination in Education.
3 See general comment No. 18 (1989) of the Human Rights Committee on non-discrimination.
4 The Committee on Economic, Social and Cultural Rights (CESCR), general comment No. 4
(1991): The right to adequate housing; general comment No. 7 (1997): The right to adequate
housing: forced evictions (art. 11, para. 1); general comment No. 12 (1999): The right to
adequate food; general comment No. 13 (1999): The right to education (art. 13); general
comment No. 14 (2000): The right to the highest attainable standard of health (art. 12); general
comment No. 15 (2002): The right to water (arts. 11 and 12); general comment No. 17 (2005):
E/C.12/GC/20
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Moreover, general comment No. 16 focuses on State parties’ obligations under article 3 of the
Covenant to ensure equal rights of men and women to the enjoyment of all Covenant rights,
while general comments Nos. 5 and 6 respectively concern the rights of persons with disabilities
and older persons.5 The present general comment aims to clarify the Committee’s understanding
of the provisions of article 2, paragraph 2, of the Covenant, including the scope of State
obligations (Part II), the prohibited grounds of discrimination (Part III), and national
implementation (Part IV).
II. SCOPE OF STATE OBLIGATIONS
7. Non-discrimination is an immediate and cross-cutting obligation in the Covenant.
Article 2, paragraph 2, requires States parties to guarantee non-discrimination in the exercise of
each of the economic, social and cultural rights enshrined in the Covenant and can only be
applied in conjunction with these rights. It is to be noted that discrimination constitutes any
distinction, exclusion, restriction or preference or other differential treatment that is directly or
indirectly based on the prohibited grounds of discrimination and which has the intention or effect
of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of
Covenant rights.6 Discrimination also includes incitement to discriminate and harassment.
8. In order for States parties to “guarantee” that the Covenant rights will be exercised without
discrimination of any kind, discrimination must be eliminated both formally and substantively:7
(a) Formal discrimination: Eliminating formal discrimination requires ensuring that a
State’s constitution, laws and policy documents do not discriminate on prohibited grounds; for
example, laws should not deny equal social security benefits to women on the basis of their
marital status;
(b) Substantive discrimination: Merely addressing formal discrimination will not
ensure substantive equality as envisaged and defined by article 2, paragraph 2.8 The effective
The right of everyone to benefit from the protection of the moral and material interests resulting
from any scientific, literary or artistic production of which he is the author (art. 15, para. 1 (c);
general comment No. 18 (2005): The right to work (art. 6); and general comment No. 19 (2008):
The right to social security.
5 CESCR, general comment No. 5 (1994): Persons with disabilities; and general comment No. 6
(1995): The economic, social and cultural rights of older persons.
6 For a similar definition see art. 1, ICERD; art. 1, CEDAW; and art. 2 of the Convention on the
Rights of Persons with Disabilities (CRPD). The Human Rights Committee comes to a similar
interpretation in its general comment No. 18, paragraphs 6 and 7. The Committee has adopted a
similar position in previous general comments.
7 CESCR, general comment No. 16 (2005): The equal right of men and women to the enjoyment
of all economic, social and cultural rights (art. 3).
8 See also CESCR general comment No. 16.
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enjoyment of Covenant rights is often influenced by whether a person is a member of a group
characterized by the prohibited grounds of discrimination. Eliminating discrimination in practice
requires paying sufficient attention to groups of individuals which suffer historical or persistent
prejudice instead of merely comparing the formal treatment of individuals in similar
situations. States parties must therefore immediately adopt the necessary measures to prevent,
diminish and eliminate the conditions and attitudes which cause or perpetuate substantive or
de facto discrimination. For example, ensuring that all individuals have equal access to adequate
housing, water and sanitation will help to overcome discrimination against women and girl
children and persons living in informal settlements and rural areas.
9. In order to eliminate substantive discrimination, States parties may be, and in some cases
are, under an obligation to adopt special measures to attenuate or suppress conditions that
perpetuate discrimination. Such measures are legitimate to the extent that they represent
reasonable, objective and proportional means to redress de facto discrimination and are
discontinued when substantive equality has been sustainably achieved. Such positive measures
may exceptionally, however, need to be of a permanent nature, such as interpretation services for
linguistic minorities and reasonable accommodation of persons with sensory impairments in
accessing health-care facilities.
10. Both direct and indirect forms of differential treatment can amount to discrimination under
article 2, paragraph 2, of the Covenant:
(a) Direct discrimination occurs when an individual is treated less favourably than
another person in a similar situation for a reason related to a prohibited ground; e.g. where
employment in educational or cultural institutions or membership of a trade union is based on the
political opinions of applicants or employees. Direct discrimination also includes detrimental
acts or omissions on the basis of prohibited grounds where there is no comparable similar
situation (e.g. the case of a woman who is pregnant);
(b) Indirect discrimination refers to laws, policies or practices which appear neutral at
face value, but have a disproportionate impact on the exercise of Covenant rights as
distinguished by prohibited grounds of discrimination. For instance, requiring a birth registration
certificate for school enrolment may discriminate against ethnic minorities or non-nationals who
do not possess, or have been denied, such certificates.
Private sphere
11. Discrimination is frequently encountered in families, workplaces, and other sectors of
society. For example, actors in the private housing sector (e.g. private landlords, credit providers
and public housing providers) may directly or indirectly deny access to housing or mortgages on
the basis of ethnicity, marital status, disability or sexual orientation while some families may
refuse to send girl children to school. States parties must therefore adopt measures, which should
include legislation, to ensure that individuals and entities in the private sphere do not
discriminate on prohibited grounds.
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Systemic discrimination
12. The Committee has regularly found that discrimination against some groups is pervasive
and persistent and deeply entrenched in social behaviour and organization, often involving
unchallenged or indirect discrimination. Such systemic discrimination can be understood as legal
rules, policies, practices or predominant cultural attitudes in either the public or private sector
which create relative disadvantages for some groups, and privileges for other groups.
Permissible scope of differential treatment
13. Differential treatment based on prohibited grounds will be viewed as discriminatory unless
the justification for differentiation is reasonable and objective. This will include an assessment as
to whether the aim and effects of the measures or omissions are legitimate, compatible with the
nature of the Covenant rights and solely for the purpose of promoting the general welfare in a
democratic society. In addition, there must be a clear and reasonable relationship of
proportionality between the aim sought to be realized and the measures or omissions and their
effects. A failure to remove differential treatment on the basis of a lack of available resources is
not an objective and reasonable justification unless every effort has been made to use all
resources that are at the State party’s disposition in an effort to address and eliminate the
discrimination, as a matter of priority.
14. Under international law, a failure to act in good faith to comply with the obligation in
article 2, paragraph 2, to guarantee that the rights enunciated in the Covenant will be exercised
without discrimination amounts to a violation. Covenant rights can be violated through the direct
action or omission by States parties, including through their institutions or agencies at the
national and local levels. States parties should also ensure that they refrain from discriminatory
practices in international cooperation and assistance and take steps to ensure that all actors under
their jurisdiction do likewise.
III. PROHIBITED GROUNDS OF DISCRIMINATION
15. Article 2, paragraph 2, lists the prohibited grounds of discrimination as “race, colour, sex,
language, religion, political or other opinion, national or social origin, property, birth or other
status”. The inclusion of “other status” indicates that this list is not exhaustive and other grounds
may be incorporated in this category. The express grounds and a number of implied grounds
under “other status” are discussed below. The examples of differential treatment presented in this
section are merely illustrative and they are not intended to represent the full scope of possible
discriminatory treatment under the relevant prohibited ground, nor a conclusive finding that such
differential treatment will amount to discrimination in every situation.
Membership of a group
16. In determining whether a person is distinguished by one or more of the prohibited grounds,
identification shall, if no justification exists to the contrary, be based upon self-identification by
the individual concerned. Membership also includes association with a group characterized by
one of the prohibited grounds (e.g. the parent of a child with a disability) or perception by others
that an individual is part of such a group (e.g. a person has a similar skin colour or is a supporter
of the rights of a particular group or a past member of a group).
E/C.12/GC/20
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Multiple discrimination9
17. Some individuals or groups of individuals face discrimination on more than one of the
prohibited grounds, for example women belonging to an ethnic or religious minority. Such
cumulative discrimination has a unique and specific impact on individuals and merits particular
consideration and remedying.
A. Express grounds
18. The Committee has consistently raised concern over formal and substantive discrimination
across a wide range of Covenant rights against indigenous peoples and ethnic minorities among
others.
“Race and colour”
19. Discrimination on the basis of “race and colour”, which includes an individual’s ethnic
origin, is prohibited by the Covenant as well as by other treaties including the International
Convention on the Elimination of Racial Discrimination. The use of the term “race” in the
Covenant or the present general comment does not imply the acceptance of theories which
attempt to determine the existence of separate human races.10
Sex
20. The Covenant guarantees the equal right of men and women to the enjoyment of economic,
social and cultural rights.11 Since the adoption of the Covenant, the notion of the prohibited
ground “sex” has evolved considerably to cover not only physiological characteristics but also
the social construction of gender stereotypes, prejudices and expected roles, which have created
obstacles to the equal fulfilment of economic, social and cultural rights. Thus, the refusal to hire
a woman, on the ground that she might become pregnant, or the allocation of low-level or
part-time jobs to women based on the stereotypical assumption that, for example, they are
unwilling to commit as much time to their work as men, constitutes discrimination. Refusal to
grant paternity leave may also amount to discrimination against men.
9 See para. 27 of the present general comment on intersectional discrimination.
10 See the outcome document of the Durban Review Conference, para. 6: “Reaffirms that all
peoples and individuals constitute one human family, rich in diversity, and that all human beings
are born free and equal in dignity and rights; and strongly rejects any doctrine of racial
superiority along with theories which attempt to determine the existence of so-called distinct
human races.”
11 See art. 3 of the Covenant, and CESCR general comment No. 16.
E/C.12/GC/20
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Language
21. Discrimination on the basis of language or regional accent is often closely linked to
unequal treatment on the basis of national or ethnic origin. Language barriers can hinder the
enjoyment of many Covenant rights, including the right to participate in cultural life as
guaranteed by article 15 of the Covenant. Therefore, information about public services and
goods, for example, should also be available, as far as possible, in languages spoken by
minorities, and States parties should ensure that any language requirements relating to
employment and education are based on reasonable and objective criteria.
Religion
22. This prohibited ground of discrimination covers the profession of religion or belief of
one’s choice (including the non-profession of any religion or belief), that may be publicly or
privately manifested in worship, observance, practice and teaching.12 For instance,
discrimination arises when persons belonging to a religious minority are denied equal access to
universities, employment, or health services on the basis of their religion.
Political or other opinion
23. Political and other opinions are often grounds for discriminatory treatment and include
both the holding and not-holding of opinions, as well as expression of views or membership
within opinion-based associations, trade unions or political parties. Access to food assistance
schemes, for example, must not be made conditional on an expression of allegiance to a
particular political party.
National or social origin
24. “National origin” refers to a person’s State, nation, or place of origin. Due to such personal
circumstances, individuals and groups of individuals may face systemic discrimination in both
the public and private sphere in the exercise of their Covenant rights. “Social origin” refers to a
person’s inherited social status, which is discussed more fully below in the context of “property”
status, descent-based discrimination under “birth” and “economic and social status”.13
Property
25. Property status, as a prohibited ground of discrimination, is a broad concept and includes
real property (e.g. land ownership or tenure) and personal property (e.g. intellectual property,
goods and chattels, and income), or the lack of it. The Committee has previously commented that
12 See also the General Assembly’s Declaration on the Elimination of All Forms of Intolerance
and of Discrimination Based on Religion or Belief, proclaimed by the General Assembly in its
resolution 36/55 of 25 November 1981.
13 See paras. 25, 26 and 35, of the present general comment.
E/C.12/GC/20
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Covenant rights, such as access to water services and protection from forced eviction, should not
be made conditional on a person’s land tenure status, such as living in an informal settlement.14
Birth
26. Discrimination based on birth is prohibited and article 10, paragraph 3, of the Covenant
specifically states, for example, that special measures should be taken on behalf of children and
young persons “without any discrimination for reasons of parentage”. Distinctions must
therefore not be made against those who are born out of wedlock, born of stateless parents or are
adopted or constitute the families of such persons. The prohibited ground of birth also includes
descent, especially on the basis of caste and analogous systems of inherited status.15 States
parties should take steps, for instance, to prevent, prohibit and eliminate discriminatory practices
directed against members of descent-based communities and act against the dissemination of
ideas of superiority and inferiority on the basis of descent.
B. Other status16
27. The nature of discrimination varies according to context and evolves over time. A flexible
approach to the ground of “other status” is thus needed in order to capture other forms of
differential treatment that cannot be reasonably and objectively justified and are of a comparable
nature to the expressly recognized grounds in article 2, paragraph 2. These additional grounds
are commonly recognized when they reflect the experience of social groups that are vulnerable
and have suffered and continue to suffer marginalization. The Committee’s general comments
and concluding observations have recognized various other grounds and these are described in
more detail below. However, this list is not intended to be exhaustive. Other possible prohibited
grounds could include the denial of a person’s legal capacity because he or she is in prison, or is
involuntarily interned in a psychiatric institution, or the intersection of two prohibited grounds of
discrimination, e.g. where access to a social service is denied on the basis of sex and disability.
Disability
28. In its general comment No. 5, the Committee defined discrimination against persons with
disabilities17 as “any distinction, exclusion, restriction or preference, or denial of reasonable
14 See CESCR general comments Nos. 15 and 4 respectively.
15 For a comprehensive overview of State obligations in this regard, see general comment
No. 29 (2002) of the Committee on the Elimination of All Forms of Racial Discrimination on
art. 1, para. 1, regarding descent.
16 See para. 15 of the present general comment.
17 For a definition, see CRPD, art. 1: “Persons with disabilities include those who have longterm
physical, mental, intellectual or sensory impairments which in interaction with various
barriers may hinder their full and effective participation in society on an equal basis with others.”
E/C.12/GC/20
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accommodation based on disability which has the effect of nullifying or impairing the
recognition, enjoyment or exercise of economic, social or cultural rights”.18 The denial of
reasonable accommodation should be included in national legislation as a prohibited form of
discrimination on the basis of disability.19 States parties should address discrimination, such as
prohibitions on the right to education, and denial of reasonable accommodation in public places
such as public health facilities and the workplace,20 as well as in private places, e.g. as long as
spaces are designed and built in ways that make them inaccessible to wheelchairs, such users
will be effectively denied their right to work.
Age
29. Age is a prohibited ground of discrimination in several contexts. The Committee has
highlighted the need to address discrimination against unemployed older persons in finding
work, or accessing professional training or retraining, and against older persons living in poverty
with unequal access to universal old-age pensions due to their place of residence.21 In relation to
young persons, unequal access by adolescents to sexual and reproductive health information and
services amounts to discrimination.
Nationality
30. The ground of nationality should not bar access to Covenant rights,22 e.g. all children
within a State, including those with an undocumented status, have a right to receive education
and access to adequate food and affordable health care. The Covenant rights apply to everyone
including non-nationals, such as refugees, asylum-seekers, stateless persons, migrant workers
and victims of international trafficking, regardless of legal status and documentation.23
18 See CESCR general comment No. 5, para. 15.
19 See CRPD, art. 2: “‘Reasonable accommodation’ means necessary and appropriate
modification and adjustments not imposing a disproportionate or undue burden, where needed in
a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal
basis with others of all human rights and fundamental freedoms.”
20 See CESCR general comment No. 5, para. 22.
21 See, further, CESCR general comment No. 6.
22 This paragraph is without prejudice to the application of art. 2, para. 3, of the Covenant,
which states: “Developing countries, with due regard to human rights and their national
economy, may determine to what extent they would guarantee the economic rights recognized in
the present Covenant to non-nationals.”
23 See also general comment No. 30 (2004) of the Committee on the Elimination of All Forms of
Racial Discrimination on non-citizens.
E/C.12/GC/20
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Marital and family status
31. Marital and family status may differ between individuals because, inter alia, they are
married or unmarried, married under a particular legal regime, in a de facto relationship or one
not recognized by law, divorced or widowed, live in an extended family or kinship group or have
differing kinds of responsibility for children and dependants or a particular number of children.
Differential treatment in access to social security benefits on the basis of whether an individual is
married must be justified on reasonable and objective criteria. In certain cases, discrimination
can also occur when an individual is unable to exercise a right protected by the Covenant
because of his or her family status or can only do so with spousal consent or a relative’s
concurrence or guarantee.
Sexual orientation and gender identity
32. “Other status” as recognized in article 2, paragraph 2, includes sexual orientation.24 States
parties should ensure that a person’s sexual orientation is not a barrier to realizing Covenant
rights, for example, in accessing survivor’s pension rights. In addition, gender identity is
recognized as among the prohibited grounds of discrimination; for example, persons who are
transgender, transsexual or intersex often face serious human rights violations, such as
harassment in schools or in the workplace.25
Health status
33. Health status refers to a person’s physical or mental health.26 States parties should ensure
that a person’s actual or perceived health status is not a barrier to realizing the rights under the
Covenant. The protection of public health is often cited by States as a basis for restricting human
rights in the context of a person’s health status. However, many such restrictions are
discriminatory, for example, when HIV status is used as the basis for differential treatment with
regard to access to education, employment, health care, travel, social security, housing and
asylum.27 States parties should also adopt measures to address widespread stigmatization of
persons on the basis of their health status, such as mental illness, diseases such as leprosy and
women who have suffered obstetric fistula, which often undermines the ability of individuals to
24 See CESCR general comments Nos. 14 and 15.
25 For definitions, see the Yogyakarta Principles on the Application of International Human
Rights Law in relation to Sexual Orientation and Gender Identity.
26 See CESCR general comment No. 14, paras. 12(b), 18, 28 and 29.
27 See the guidelines published by the Office of the High Commissioner for Human Rights and
the Joint United Nations Programme on HIV/AIDS (UNAIDS) (2006), “International Guidelines
on HIV/AIDS and Human Rights, 2006 Consolidated Version”. Available online at:
http://data.unaids.org/Publications/IRC-pub07/JC1252-InternGuidelines_en.pdf.
E/C.12/GC/20
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enjoy fully their Covenant rights. Denial of access to health insurance on the basis of health
status will amount to discrimination if no reasonable or objective criteria can justify such
differentiation.
Place of residence
34. The exercise of Covenant rights should not be conditional on, or determined by, a person’s
current or former place of residence; e.g. whether an individual lives or is registered in an urban
or a rural area, in a formal or an informal settlement, is internally displaced or leads a nomadic
lifestyle. Disparities between localities and regions should be eliminated in practice by ensuring,
for example, that there is even distribution in the availability and quality of primary, secondary
and palliative health-care facilities.
Economic and social situation
35. Individuals and groups of individuals must not be arbitrarily treated on account of
belonging to a certain economic or social group or strata within society. A person’s social and
economic situation when living in poverty or being homeless may result in pervasive
discrimination, stigmatization and negative stereotyping which can lead to the refusal of, or
unequal access to, the same quality of education and health care as others, as well as the denial
of or unequal access to public places.
IV. NATIONAL IMPLEMENTATION
36. In addition to refraining from discriminatory actions, States parties should take concrete,
deliberate and targeted measures to ensure that discrimination in the exercise of Covenant rights
is eliminated. Individuals and groups of individuals, who may be distinguished by one or more of
the prohibited grounds, should be ensured the right to participate in decision-making processes
over the selection of such measures. States parties should regularly assess whether the measures
chosen are effective in practice.
Legislation
37. Adoption of legislation to address discrimination is indispensable in complying with
article 2, paragraph 2. States parties are therefore encouraged to adopt specific legislation that
prohibits discrimination in the field of economic, social and cultural rights. Such laws should
aim at eliminating formal and substantive discrimination, attribute obligations to public and
private actors and cover the prohibited grounds discussed above. Other laws should be regularly
reviewed and, where necessary, amended in order to ensure that they do not discriminate or lead
to discrimination, whether formally or substantively, in relation to the exercise and enjoyment of
Covenant rights.
Policies, plans and strategies
38. States parties should ensure that strategies, policies, and plans of action are in place and
implemented in order to address both formal and substantive discrimination by public and
E/C.12/GC/20
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private actors in the area of Covenant rights. Such policies, plans and strategies should address
all groups distinguished by the prohibited grounds and States parties are encouraged, among
other possible steps, to adopt temporary special measures in order to accelerate the achievement
of equality. Economic policies, such as budgetary allocations and measures to stimulate
economic growth, should pay attention to the need to guarantee the effective enjoyment of the
Covenant rights without discrimination. Public and private institutions should be required to
develop plans of action to address non-discrimination and the State should conduct human rights
education and training programmes for public officials and make such training available to
judges and candidates for judicial appointments. Teaching on the principles of equality and
non-discrimination should be integrated in formal and non-formal inclusive and multicultural
education, with a view to dismantling notions of superiority or inferiority based on prohibited
grounds and to promote dialogue and tolerance between different groups in society. States
parties should also adopt appropriate preventive measures to avoid the emergence of new
marginalized groups.
Elimination of systemic discrimination
39. States parties must adopt an active approach to eliminating systemic discrimination and
segregation in practice. Tackling such discrimination will usually require a comprehensive
approach with a range of laws, policies and programmes, including temporary special measures.
States parties should consider using incentives to encourage public and private actors to change
their attitudes and behaviour in relation to individuals and groups of individuals facing systemic
discrimination, or penalize them in case of non-compliance. Public leadership and programmes
to raise awareness about systemic discrimination and the adoption of strict measures against
incitement to discrimination are often necessary. Eliminating systemic discrimination will
frequently require devoting greater resources to traditionally neglected groups. Given the
persistent hostility towards some groups, particular attention will need to be given to ensuring
that laws and policies are implemented by officials and others in practice.
Remedies and accountability
40. National legislation, strategies, policies and plans should provide for mechanisms and
institutions that effectively address the individual and structural nature of the harm caused by
discrimination in the field of economic, social and cultural rights. Institutions dealing with
allegations of discrimination customarily include courts and tribunals, administrative authorities,
national human rights institutions and/or ombudspersons, which should be accessible to
everyone without discrimination. These institutions should adjudicate or investigate complaints
promptly, impartially, and independently and address alleged violations relating to article 2,
paragraph 2, including actions or omissions by private actors. Where the facts and events at issue
lie wholly, or in part, within the exclusive knowledge of the authorities or other respondent, the
burden of proof should be regarded as resting on the authorities, or the other respondent,
respectively. These institutions should also be empowered to provide effective remedies, such as
compensation, reparation, restitution, rehabilitation, guarantees of non-repetition and public
apologies, and State parties should ensure that these measures are effectively implemented.
E/C.12/GC/20
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Domestic legal guarantees of equality and non-discrimination should be interpreted by these
institutions in ways which facilitate and promote the full protection of economic, social and
cultural rights.28
Monitoring, indicators and benchmarks
41. States parties are obliged to monitor effectively the implementation of measures to comply
with article 2, paragraph 2, of the Covenant. Monitoring should assess both the steps taken and
the results achieved in the elimination of discrimination. National strategies, policies and plans
should use appropriate indicators and benchmarks, disaggregated on the basis of the prohibited
grounds of discrimination.29
-----
28 See CESCR general comments Nos. 3 and 9. See also the practice of the Committee in its
concluding observations on reports of States parties to the Covenant.
29 See CESCR general comments Nos. 13, 14, 15, 17 and 19, and its new reporting guidelines
(E/C.12/2008/2).

Annex 756
Consideration of Reports Submitted by States Parties under Article 40 of the Covenant,
Concluding Observations Report Regarding Russia's Compliance with the ICCPR, Russian
Federation, 1.CCPR/C/RUS/CO/6 (24 November 2009)

GE.09-46550
UNITED
NATIONS CCPR
International covenant
on civil and
political rights
Distr.
GENERAL
CCPR/C/RUS/CO/6
24 November 2009
Original: ENGLISH
HUMAN RIGHTS COMMITTEE
Ninety-seventh session
12-30 October 2009
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER ARTICLE 40 OF THE COVENANT
Concluding observations of the Human Rights Committee
RUSSIAN FEDERATION
1. The Committee considered the sixth periodic report of the Russian Federation
(CCPR/C/RUS/6) at its 2663rd, 2664th and 2665th meetings (CCPR/C/SR.2663-2665), held on
15 and 16 October 2009, and adopted the following concluding observations at its 2681th
meeting (CCPR/C/SR.2681), held on 28 October􀀂2009.
A. Introduction
2. The Committee welcomes the sixth periodic report of the Russian Federation, and the
inclusion in the report of information on a number of measures taken to address the concerns
expressed in the Committee’s previous concluding observations (CCPR/CO/79/RUS). It also
welcomes the dialogue with the delegation, the detailed written replies
(CCPR/C/RUS/Q/6/Add.1) submitted in response to the Committee’s list of issues, and the
additional information and clarifications provided orally.
CCPR/C/RUS/CO/6
page 2
B. Positive aspects
3. The Committee welcomes the various constitutional amendments, as well as legislative,
administrative and practical measures taken to improve the promotion and protection of human
rights in the State party since the examination of the fifth periodic report, in particular:
(a) The judicial reform in the context of the 2007-2011 Federal Special-Purpose
Programme for the Development of the Judicial System in the Russian Federation, the
establishment of the National Working Group on Judicial Reform and the adoption in 2009 of the
Law “On the securing of access to information on the activities of the courts of the Russian
Federation”;
(b) The adoption in 2008 of the National Plan on Countering Corruption and the
enactment of the Federal Law on Counteraction of Corruption;
(c) The upgrade of the accreditation status of the Federal Commissioner for Human
Rights (“Ombudsman”) following its review by the International Coordinating Committee of
National Institutions (ICC) in January 2009;
(d) The establishment of the Office of the Ombudsman for Children, in September
2009 and the ratification, in 2008, of the Optional Protocol to the Convention on the Rights of
the Child on the involvement of children in armed conflict;
(e) The adoption and entry into force of two administrative regulations relating to the
granting of political asylum and refugee status in the Russian Federation.
C. Principal subjects of concern and recommendations
4. The Committee notes with concern that many of its recommendations adopted following
the consideration of the State party’s fifth periodic report (CCPR/CO/79/RUS) have not yet been
implemented, and regrets that most subjects of concern remain. (art. 2)
The State party should re-examine, and take all necessary measures to give full effect
to the recommendations adopted by the Committee in its previous concluding
observations.
5. While acknowledging the information provided by the State party, the Committee
expresses once again its concern at the State party’s restrictive interpretation of, and continuing
failure to implement the Views adopted by the Committee under the Optional Protocol to the
Covenant. The Committee further recalls that, by acceding to the Optional Protocol, the State
party has recognized its competence to receive and examine complaints from individuals under
the its jurisdiction, and that failure to give effect to its Views would call into question the State
party’s commitment to the Optional Protocol. (art. 2)
The Committee urges the State party once again to review its position in relation to
Views adopted by the Committee under the Optional Protocol to the Covenant and to
implement all of those Views.
CCPR/C/RUS/CO/6
page 3
6. The Committee regrets the lack of information on instances where the Federal
Commissioner for Human Rights and the regional ombudsmen initiated the drafting of
legislation, or referred individual cases to courts. The Committee is also concerned that
recommendations made by the the Federal Commissioner for Human Rights are not always duly
implemented. (art. 2)
The State party should strengthen the legislative mandate of the Federal Commissioner
for Human Rights and the regional ombudsmen and provide them with additional
resources, so that they may be in a position to fulfil their mandate efficiently. The State
party should provide the Committee with detailed information on the number and the
outcome of complaints received and determined by the Federal Commissioner for
Human Rights and the regional ombudsmen, as well as on the recommendations and
the concrete action taken by the authorities in each case. Such detailed information
should be made publicly available through accessible means, such as the annual report
of the Federal Commissioner for Human Rights.
7. While taking note of the State party’s assurance that counter-terrorism measures are in
compliance with the Covenant, the Committee is nevertheless concerned about several aspects of
the 2006 Federal Law “on counteracting terrorism”, which imposes a wide range of restrictions
on Covenant rights that, in the Committee's view, are comparable to those permitted only under a
state of emergency under the State party's Constitution and the State of Emergency law, and in
particular: (a) the lack of precision in the particularly broad definitions of terrorism and terrorist
activity; (b) the counter-terrorism regime established by the 2006 Law is not subject to any
requirement of justification on grounds of necessity or proportionality, or to procedural
safeguards or judicial or parliamentary oversight; and (c) that the Law does not place limits on
the derogations that may be made from the provisions of the Covenant and does not take into
account the obligations imposed by article 4 of the Covenant. The Committee also regrets that
the Law lacks a provision explicitly outlining the obligation of the authorities to respect and
protect human rights in the context of a counter-terrorist operation. (art. 2)
The State party should review the relevant provisions of the 2006 Federal Law “On
counteracting terrorism” to bring it into line with the requirements of article 4 of the
Covenant, taking into account pertinent considerations set out in the Committee’s
general comment No. 29 (2001) on derogations during a state of emergency and general
comment No. 31 (2004) on the nature of the general legal obligation imposed on States
parties to the Covenant. In particular, the State party should:
(a) Adopt a narrower definition of crimes of terrorism limited to offences that
can justifiably be equated with terrorism and its serious consequences, and ensure that
the procedural guarantees established in the Covenant are fulfilled;
(b) Consider establishing an independent mechanism to review and report on
laws related to terrorism;
CCPR/C/RUS/CO/6
page 4
(c) Provide information on measures taken in this regard, including information
on which Covenant rights can be suspended during a counter-terrorist operation and
under what conditions.
8. The Committee expresses concern about the large number of convictions for terrorismrelated
charges, which may have been handed down by courts in Chechnya on the basis of
confessions obtained through unlawful detention and torture. (arts. 6, 7, and 14)
The State party should consider carrying out a systematic review of all terrorismrelated
sentences pronounced by courts in Chechnya to determine whether the trials
concerned were conducted in full respect for the standards set forth in article 14 of the
Covenant and ensure that no statement or confession made under torture has been
used as evidence.
9. The Committee is concerned about the large number of stateless and undocumented
persons in the State party, in particular former Soviet citizens who were unable to acquire
citizenship or nationality subsequent to the break-up of the USSR, and to regularize their status
in the Russian Federation or in any other State with which they have a significant connection,
and consequently remain stateless or with undetermined nationality. The Committee also notes
that members of certain ethnic groups from varying regions, in particular individuals from
Central Asia and the Caucasus, face problems acquiring citizenship due to complex legislation
governing naturalization and obstacles posed by strict residence registration requirements. (arts.
2, 3, 20 and 26)
The State party should take all necessary measures to regularize the status of stateless
persons on its territory by granting them a right to permanent residence and the
possibility of acquiring Russian citizenship. Furthermore, the State party should
consider acceding to the 1954 Convention relating to the Status of Stateless Persons
and the 1961 Convention on the Reduction of Statelessness and undertake the
legislative and administrative reform necessary to bring its laws and procedures in line
with these standards.
10. While noting the information provided by the State party on preventive measures taken to
address violence against women, in particular domestic violence, the Committee remains
concerned about the continued prevalence of domestic violence in the State party and the lack of
shelters available to women. The Committee regrets that it did not receive sufficient information
relating to the prosecution of authors of domestic violence, and also notes that the State party has
not adopted any special legislation with regard to domestic violence within the legal system. The
Committee is also concerned about allegations of honour killings in Chechnya of eight women
whose bodies were discovered in November 2008. (arts. 3, 6, 7 and 26)
The Committee urges the State party to strengthen its efforts to combat violence
against women, including by adopting specific criminal legislation in this regard. The
State party should promptly investigate complaints related to domestic violence and
other acts of violence against women, including honour killings, and ensure that those
responsible are prosecuted and adequately punished. Sufficient funding should be
CCPR/C/RUS/CO/6
page 5
allocated for victim assistance programmes, including those run by non-governmental
organizations, and additional shelters should be made available across the country.
The State party should also ensure mandatory training for the police to sensitize them
with regard to all forms of violence against women.
11. The Committee expresses its concern at reports of an increasing number of hate crimes
and racially motivated attacks against ethnic and religious minorities, as well as persistent
manifestations of racism and xenophobia in the State party, including reports of racial profiling
and harassment by law enforcement personnel targeting foreigners and members of minority
groups. The Committee is also concerned about the failure on the part of the police and judicial
authorities to investigate prosecute and punish hate crimes and racially motivated attacks against
ethnic and religious minorities, often qualified merely as “hooliganism”, with charges and
sentences that are not commensurate with the gravity of the acts. (arts. 6,7, 20 and 26)
The State party should make a sustained effort to improve the application of laws
punishing racially motivated crimes and ensure adequate investigation and
prosecution of all cases of racial violence and incitement to racially motivated violence.
Adequate reparation, including compensation, should be provided to the victims of
hate crimes. The State party is also encouraged to pursue public education campaigns
to sensitize the population to the criminal nature of such acts, and to promote a culture
of tolerance. Furthermore, the State party should intensify its sensitization efforts
among law enforcement officials, and ensure that mechanisms to receive complaints of
racially motivated police misconduct are readily available and accessible.
12. The Committee notes with concern that the death penalty has yet to be abolished de jure
in the State party despite the welcome moratorium on the execution of death sentences in force
since 1996, which the State party describes as solid. The Committee is also concerned that the
current moratorium will expire in January 2010. (art. 6)
The State party should take the necessary measures to abolish the death penalty de
jure at the earliest possible moment, and consider acceding to the Second Optional
Protocol to the Covenant.
13. Notwithstanding the position of the State party that no crimes were committed by
Russian military forces or other military groups against the civilian population on the territory of
South Ossetia (para. 264, CCPR/C/RUS/Q/6/Add.1), and that the State party does not take
responsibility for possible crimes by armed groups (para. 266), the Committee remains
concerned about allegations of large-scale, indiscriminate abuses and killings of civilians in
South Ossetia during the military operations by Russian forces in August 2008. The Committee
recalls that the territory of South Ossetia was under the de facto control of an organized military
operation of the State party, which therefore bears responsibility for the actions of such armed
groups. The Committee notes with concern that, to date, the Russian authorities have not carried
out any independent and exhaustive appraisal of serious violations of human rights by members
of Russian forces and armed groups in South Ossetia and that the victims have received no
reparations. (arts. 6, 7, 9, 13 and 14)
CCPR/C/RUS/CO/6
page 6
The State party should conduct a thorough and independent investigation into all
allegations of involvement of members of Russian forces and other armed groups
under their control in violations of human rights in South Ossetia. The State party
should ensure that victims of serious violations of human rights and international
humanitarian law are provided with an effective remedy, including the right to
compensation and reparations.
14. The Committee is concerned about ongoing reports of torture and ill-treatment, enforced
disappearance, arbitrary arrest, extrajudicial killing and secret detention in Chechnya and other
parts of the North Caucasus committed by the military, security services and other State agents,
and that the authors of such violations appear to enjoy widespread impunity due to a systematic
lack of effective investigation and prosecution. The Committee is particularly concerned that the
number of disappearances and abduction cases in Chechnya has increased in the period 2008-
2009, and about allegations of mass graves in Chechnya. While noting the establishment of a
special unit aimed at ensuring implementation of the judgments of the European Court of Human
Rights and payment of compensation to victims, the Committee regrets that the State party has
yet to bring to justice the perpetrators of the human rights violations in the cases concerned, even
though the identity of these individuals is often known. The Committee also notes with concern
the reports of collective punishment for relatives of terrorist suspects, such as the burning of
family homes, and harassment, threats and reprisals against judges and victims and their families
and regrets the failure on the part of the State party to provide effective protection to the persons
concerned. (arts. 6, 7, 9 and 10)
The State party is urged to implement fully the right to life and physical integrity of all
persons on its territory and should:
(a) Take stringent measures to put an end to enforced disappearances,
extrajudicial killings, torture, and other forms of ill-treatment and abuse committed or
instigated by law enforcement officials in Chechnya and other parts of the North
Caucasus;
(b) Ensure prompt and impartial investigation by an independent body of
all human rights violations allegedly committed or instigated by State agents and
suspend or reassign the agents concerned during the process of investigation;
(c) Prosecute perpetrators and ensure that they are punished in a manner
proportionate to the gravity of the crimes committed, and grant effective remedies,
including redress, to the victims;
(d) Take effective measures, in law and in practice, to protect victims and
their families, as well as their lawyers and judges, whose lives are under threat due to
their professional activities;
(e) Provide information on investigations launched, convictions and
penalties including those by military courts in relation to human rights violations
CCPR/C/RUS/CO/6
page 7
committed by State agents against the civilian population in Chechnya and other parts
of the North Caucasus, disaggregated by type of crime.
15. The Committee is concerned about the continuing substantiated reports of acts of torture
and other cruel, inhuman or degrading treatment or punishment committed by law enforcement
personnel and other State agents, including of persons who are in police custody, pretrial
detention and prison. The Committee is concerned about the extremely low rate of conviction of
the State agents concerned, initiated under section 117 (cruel treatment) of the Criminal Code,
and that most prosecutions for cases of torture are under section 286 (abuse of power) and
section 302 (extorting confessions) of the Criminal Code. While noting the establishment of
investigative committees pursuant to the decree of 2 August 2007, the Committee notes that
these committees are attached to the Prosecutor’s Office and thus may lack the necessary
independence when examining allegations of torture by public officials. The Committee also
expresses concern about reports that investigations and prosecutions of alleged perpetrators of
acts of torture and ill-treatment are frequently marked by undue delays and/or suspensions, and
that in practice, the burden of proof rests on the victims. Furthermore, while welcoming the
adoption of the 2008 Federal Law on Public Control of Monitoring of Human Rights in Places of
Detention, the Committee notes with concern the lack of a functioning national system with fully
trained professionals to review all places of detention and cases of alleged abuses of persons
while in custody. (arts. 6, 7, and 14)
The State party should:
(a) Consider amending the Criminal Code in order to criminalize torture as
such;
(b) Take all necessary measures for a fully functioning independent human
rights monitoring body to review all places of detention and cases of alleged abuses of
persons while in custody, ensuring regular, independent, unannounced and
unrestricted visits to all places of detention, and to initiate criminal and disciplinary
proceedings against those found responsible;
(c) Ensure that all alleged cases of torture, ill-treatment and disproportionate
use of force by law enforcement officials are fully and promptly investigated by an
authority independent of ordinary prosecutorial and police organs, that those found
guilty are punished under laws that ensure that sentences are commensurate with the
gravity of the offence, and that compensation is provided to the victims or their
families.
16. The Committee expresses its concern at the alarming incidence of threats, violent assaults
and murders of journalists and human rights defenders in the State party, which has created a
climate of fear and a chilling effect on the media, including for those working in the North
Caucasus, and regrets the lack of effective measures taken by the State party to protect the right
to life and security of these persons. (arts. 6, 7, and 19)
The State party is urged to:
CCPR/C/RUS/CO/6
page 8
(a) Take immediate action to provide effective protection to journalists and
human rights defenders whose lives and security are under threat due to their
professional activities;
(b) Ensure the prompt, effective, thorough, independent, and impartial
investigation of threats, violent assaults and murders of journalists and human rights
defenders and, when appropriate, prosecute and institute proceedings against the
perpetrators of such acts.
(c) Provide the Committee with detailed information on developments in all
cases of criminal prosecutions relating to threats, violent assaults and murders of
journalists and human rights defenders in the State party covering the period between
2003 and 2009.
17. The Committee is concerned about reports of extraditions and informal transfers by the
State party to return foreign nationals to countries in which the practice of torture is alleged
while relying on diplomatic assurances, notably within the framework of the 2001 Shanghai
Convention on Combating Terrorism, Separatism and Extremism. In particular, the Committee
notes with concern the return to Uzbekistan of persons suspected of involvement in the Andijan
protests of 2005. (arts. 6, 7, and 13)
The State party should ensure that no individual, including persons suspected of
terrorism, who are extradited or subjected to informal transfers, whether or not in the
context of the Shanghai Cooperation Organisation, is exposed to the danger of torture
or cruel, inhuman or degrading treatment or punishment. Furthermore, the State
party should recognise that, the more systematic the practice of torture or cruel,
inhuman or degrading treatment, the less likely it will be that a real risk of such
treatment can be avoided by diplomatic assurances, however stringent any agreed
follow-up procedure may be. The State party should exercise the utmost care in the use
of such assurances and adopt clear and transparent procedures allowing review by
adequate judicial mechanisms before individuals are deported, as well as effective
means to monitor the fate of the affected individuals.
18. While the Committee welcomes the various measures taken by the State party to combat
trafficking in persons, in particular through legislation and international cooperation, the
Committee is concerned about the notable lack of recognition of the rights and interests of
trafficking victims in the counter-trafficking efforts of the State party. (art. 8)
The State party should, as a matter of priority, take all necessary measures to ensure
that victims of trafficking in human beings are provided with medical, psychological,
social and legal assistance. Protection should be provided to all witnesses and victims of
trafficking so that they may have a place of refuge and an opportunity to give evidence
against those held responsible. The State party should also continue to reinforce
international cooperation as well as existing measures to combat trafficking in persons
CCPR/C/RUS/CO/6
page 9
and the demand for such trafficking, by devoting sufficient resources to prosecuting
perpetrators and imposing sanctions on those found responsible.
19. The Committee expresses concern about the significant number of persons with mental
disabilities who are deprived of their legal capacity in the State party and the apparent lack of
adequate procedural and substantive safeguards against disproportionate restrictions in their
enjoyment of rights guaranteed under the Covenant. In particular, the Committee is concerned
that there are no procedural safeguards and no recourse to appeal against the judicial decision
based on the mere existence of a psychiatric diagnosis to deprive an individual of his/her legal
capacity, as well as against the decision to institutionalize the individual which often follows
legal incapacitation. The Committee is also concerned that persons deprived of legal capacity
have no legal recourse to challenge other violations of their rights, including ill-treatment or
abuse by guardians and/or staff of institutions they are confined to, which is aggravated by the
lack of an independent inspection mechanism regarding mental health institutions. (arts. 9 and
10)
The State party should:
(a) Review its policy of depriving persons with mental disabilities of their legal
capacity and establish the necessity and proportionality of any measure on an
individual basis with effective procedural safeguards, ensuring in any event that all
persons deprived of their legal capacity have prompt access to an effective judicial
review of the original decision, and, when applicable, of the decision to subject them to
institutionalization;
(b) Ensure that persons with mental disabilities are able to exercise the right to
an effective remedy against violations of their rights and consider providing less
restrictive alternatives to forcible confinement and treatment of persons with mental
disabilities;
(c) Take appropriate measures to prevent all forms of ill-treatment in
psychiatric institutions, including through the establishment of inspection systems that
take into account the United Nations Principles for the Protection of Persons with
Mental Illness and the Improvement of Mental Health Care (adopted by the General
Assembly in resolution 46/119).
20. While welcoming the adoption of the Federal Special-Purpose Programme for the
Development of the Penal Correction System for 2007-2016, pursuant to Government decision
No. 540 of September 2006, as well as the overall reduction of the prison population to conform
to institutional capacity and the allocation of necessary resources, the Committee remains
concerned about overcrowding in prisons which continues to be a problem in some areas, as
acknowledged by the State party. (art. 10)
The State party should continue to take measures to improve conditions of detention of
persons deprived of their liberty through its Federal Special-Purpose Programme,
CCPR/C/RUS/CO/6
page 10
particularly in relation to the problem of overcrowding in prisons, with a view to
achieving full compliance with requirements of article 10.
21. The Committee is concerned about the lack of independence of judges in the State party.
In particular, the Committee is concerned about the appointment mechanism for judges that
exposes them to political pressure and about the lack of an independent disciplinary mechanism,
particularly in cases of corruption. The Committee is also concerned about the relatively low rate
of acquittal for criminal cases. (arts. 2 and 14)
The State party should amend the relevant domestic legal provisions in order to ensure
the full independence of the judiciary from the executive branch of government and
consider establishing, in addition to the collegiate corpus of judges, an independent
body responsible for matters relating to the appointment and promotion of judges, as
well as their compliance with disciplinary regulations.
22. The Committee expresses concern about the potential impact of the proposed draft law on
lawyers’ activity and the Bar on the independence of the legal profession and the right to a fair
trial as stipulated in article 14 of the Covenant. In particular, it notes with concern that the bill
proposes to enable the State Registration Agency to remove a lawyer's licence to practise
through a court action without prior approval of the Chambers of Lawyers under certain
circumstances, and to obtain access to the legal files of lawyers under investigation and demand
information on any case in which they are involved. (art. 14)
The State party should review the compatibility of the proposed draft law on lawyers’
activity and the Bar with its obligations under article 14 of the Covenant, as well as
article 22 of the Basic Principles on the Role of Lawyers and refrain from taking any
measures that constitute harassment or persecution of lawyers and unnecessarily
interfere with their defence of clients.
23. While welcoming the reduction, in 2008, of the prescribed length of civilian service for
conscientious objectors from 42 months to 21 months, the Committee notes with concern that it
is still 1.75 times longer than military service, and that the State party maintains the position that
the discrimination suffered by conscientious objectors is due to such alternative service
amounting to “preferential treatment” (para. 151, CCPR/C/RUS/6). The Committee notes with
regret that the conditions for alternative service are punitive in nature, including the requirement
to perform such services outside places of permanent residence, the receipt of low salaries,
which are below the subsistence level for those who are assigned to work in social organizations,
and the restrictions in freedom of movement for the persons concerned. The Committee is also
concerned that the assessment of applications, carried out by a draft panel for such service, is
under the control of the Ministry of Defence. (arts. 18, 19, 21, 22 and 25)
The State party should recognize fully the right to conscientious objection, and ensure
that the length and the nature of this alternative to military service do not have a
punitive character. The State party should also consider placing the assessment of
applications for conscientious objector status entirely under the control of civilian
authorities.
CCPR/C/RUS/CO/6
page 11
24. The Committee is concerned that media professionals continue to be subjected to
politically motivated trials and convictions, and in particular, that the practical application of the
Mass Media Act as well as the arbitrary use of defamation laws has served to discourage critical
media reporting on matters of valid public interest, adversely affecting freedom of expression in
the State party. (arts. 9, 14, and 19)
The State party should ensure that journalists can pursue their profession without fear
of being subjected to prosecution and libel suits for criticizing Government policy or
Government officials. In doing so, the State party should:
(a) Amend its Criminal Code to reflect the principle that public figures should
tolerate a greater degree of criticism than ordinary citizens;
(b) Decriminalise defamation and subject it only to civil lawsuits, capping any
damages awarded;
(c) Provide redress to journalists and human rights activists subjected to
imprisonment in contravention of articles 9 and 19 of the Covenant;
(d) Bring relevant provisions of the Mass Media Act into line with article 19 of the
Covenant by ensuring a proper balance between the protection of a person’s
reputation and freedom of expression.
24. In light of numerous reports that the extremism laws are being used to target
organizations and individuals critical of the Government, the Committee regrets that the
definition of “extremist activity” in the Federal Law on Combating Extremist Activity remains
vague, allowing for arbitrariness in its application, and that the 2006 amendment to this law has
made certain forms of defamation of public officials an act of extremism. The Committee also
notes with concern that some provisions of article 1 of the Federal Law on Combating Extremist
Activity include acts that are not sanctioned in the Criminal Code and are only punishable under
the Code of Administrative Offences, such as mass dissemination of extremist materials, the
application of which may not be subject to judicial review. The Committee is also concerned
about the loose manner in which the definition of “social groups” in article 148 of the Criminal
Code has been interpreted by the courts and their reliance on various experts in this respect,
granting protection for State organs and agents against “extremism”. (arts. 9 and 19)
The Committee reiterates its previous recommendation (CCPR/CO/79/RUS,
paragraph 20) that the State party should revise the Federal Law on Combating
Extremist Activity with a view to making the definition of "extremist activity" more
precise so as to exclude any possibility of arbitrary application, and consider repealing
the 2006 amendment. Moreover, in determining whether written material constitutes
“extremist literature”, the State party should take all measures to ensure the
independence of experts upon whose opinion court decisions are based and guarantee
the right of the defendant to counter-expertise by an alternative expert. The State party
should also define the concept of “social groups” as stipulated in section 148 of the
Criminal Code in a manner that does not include organs of the State or public officials.
CCPR/C/RUS/CO/6
page 12
25. The Committee is concerned about the reports of excessive use of force by the police
during demonstrations, in particular in the context of the 2007 Duma elections and the 2008
presidential elections, and regrets that it did not receive any information from the State party on
any investigation or prosecution measures taken in relation to members of the police in
connection with the excessive use of force. (art. 21)
The State party should provide detailed information on the results of any investigation,
prosecution and disciplinary measures taken vis-à-vis members of the police in
connection with the alleged cases of excessive use of force in the context of the Duma
elections in 2007 and the presidential elections in 2008. The State party should
establish an independent body with authority to receive, investigate and adjudicate all
complaints of excessive use of force and other abuses of power by the police.
26. The Committee notes with concern that, despite the amendments of July 2009, the
restrictions on the registration and operation of associations, non-governmental organizations
and political parties under the 2006 Non-Profit Organizations Act continue to pose a serious
threat to the enjoyment of the rights to freedom of expression, association and assembly in the
State party. The Committee also notes with regret that the measures taken by the State party to
reduce the number of international donors benefiting from tax exemption in the Russian
Federation has significantly limited the availability of foreign funding to non-governmental
organizations. (arts. 19, 21, and 22)
The State party should ensure that any restriction on the activities of nongovernmental
organizations under the 2006 Non-Profit Organizations Act is
compatible with the provisions of the Covenant by amending the law as necessary. The
State party should refrain from adopting any policy measures that directly or
indirectly restrict or hamper the ability of non-governmental organizations to operate
freely and effectively.
27. The Committee is concerned about acts of violence against lesbian, gay, bisexual and
transgender (LGBT) persons, including reports of harassment by the police and incidents of
people being assaulted or killed on account of their sexual orientation. The Committee notes with
concern the systematic discrimination against individuals on the basis of their sexual orientation
in the State party, including hate speech and manifestations of intolerance and prejudice by
public officials, religious leaders and in the media. The Committee is also concerned about
discrimination in employment, health care, education and other fields, as well as the
infringement of the right to freedom of assembly and association and notes the absence of
legislation that specifically prohibits discrimination on the basis of sexual orientation. (art. 26)
The State Party should:
(a) Provide effective protection against violence and discrimination based on
sexual orientation, in particular through the enactment of comprehensive antidiscrimination
legislation that includes the prohibition of discrimination on grounds of
sexual orientation;
CCPR/C/RUS/CO/6
page 13
(b) Intensify its efforts to combat discrimination against LGBT persons,
including by launching a sensitization campaign aimed at the general public as well as
providing appropriate training to law enforcement officials;
(c) Take all necessary measures to guarantee the exercise in practice of the right
to peaceful association and assembly for the LGBT community.
28. While welcoming decree No. 132 of 4 February 2009 on the sustainable development of
indigenous peoples in the North, Siberia and the Far East, and the corresponding action plan for
2009-2011, the Committee expresses concern about the alleged adverse impact upon indigenous
peoples of: (a) the 2004 amendment to article 4 of the Federal Law on Guarantees of the Rights
of Numerically Small Indigenous Peoples; (b) the process of consolidation of the constituent
territories of the Russian Federation through absorption of national autonomous areas; and (c)
the exploitation of lands, fishing grounds and natural resources traditionally belonging to
indigenous peoples through granting of licenses to private companies for development projects
such as the construction of pipelines and hydroelectric dams. (art.27)
The State party should provide, in its next periodic report, detailed information on the
impact of these measures upon the traditional habitat, way of life and economic
activities of indigenous peoples in the State party, as well as on their enjoyment of
rights guaranteed under article 27 of the Covenant.
29. The Committee requests the State party to publish its sixth periodic report and these
concluding observations, making them widely available to the general public and to the judicial,
legislative and administrative authorities. Printed copies should be distributed to universities,
public libraries, the library of the parliament, lawyers’ associations, and other relevant places.
The Committee also requests the State party to make the sixth periodic report and these
concluding observations available to civil society and to the non-governmental organizations
operating in the State party. In addition to Russian, the Committee recommends that the report
and the concluding observations be translated into the main minority languages spoken in the
Russian Federation.
30. In accordance with rule 71, paragraph 5, of the Committee’s rules of procedure, the State
party should provide, within one year, relevant information on its implementation of the
recommendations in paragraphs 13, 14, 16 and 17 above.
31. The Committee requests the State party to include in its seventh periodic report, due to be
submitted by 1 November 2012, specific, up-to-date information on follow-up action taken on all
the recommendations made and on the implementation of the Covenant as a whole. The
Committee also requests that the seventh periodic report be prepared in consultation with civil
society organizations operating in the State party.
-----

Annex 757
CESCR General Comment No. 21, Right of Everyone to Take Part in Cultural Life, E/C.12/GC/21
(21 December 2009)

GE.09-46922 (E) 070110
Committee on Economic, Social and Cultural Rights
Forty-third session
2–20 November 2009
General comment No. 21
Right of everyone to take part in cultural life (art. 15, para. 1 (a), of the
International Covenant on Economic, Social and Cultural Rights)
I. Introduction and basic premises
1. Cultural rights are an integral part of human rights and, like other rights, are
universal, indivisible and interdependent. The full promotion of and respect for cultural
rights is essential for the maintenance of human dignity and positive social interaction
between individuals and communities in a diverse and multicultural world.
2. The right of everyone to take part in cultural life is closely related to the other
cultural rights contained in article 15: the right to enjoy the benefits of scientific progress
and its applications (art. 15, para. 1 (b)); the right of everyone to benefit from the protection
of moral and material interests resulting from any scientific, literary or artistic production
of which they are the author (art. 15, para. 1 (c)); and the right to freedom indispensable for
scientific research and creative activity (art. 15, para. 3). The right of everyone to take part
in cultural life is also intrinsically linked to the right to education (arts. 13 and 14), through
which individuals and communities pass on their values, religion, customs, language and
other cultural references, and which helps to foster an atmosphere of mutual understanding
and respect for cultural values. The right to take part in cultural life is also interdependent
on other rights enshrined in the Covenant, including the right of all peoples to
self-determination (art. 1) and the right to an adequate standard of living (art. 11).
3. The right of everyone to take part in cultural life is also recognized in article 27,
paragraph 1, of the Universal Declaration of Human Rights, which states that “everyone has
the right freely to participate in the cultural life of the community”. Other international
instruments refer to the right to equal participation in cultural activities;1 the right to
participate in all aspects of social and cultural life;2 the right to participate fully in cultural
1 International Convention on the Elimination of All Forms of Racial Discrimination, art. 5 (e) (vi).
2 Convention on the Elimination of All Forms of Discrimination against Women, art. 13 (c).
United Nations E/C.12/GC/21
Economic and Social Council Distr.: General
21 December 2009
Original: English
E/C.12/GC/21
2 GE.09-46922
and artistic life;3 the right of access to and participation in cultural life;4 and the right to
take part on an equal basis with others in cultural life.5 Instruments on civil and political
rights,6 on the rights of persons belonging to minorities to enjoy their own culture, to
profess and practise their own religion, and to use their own language, in private and in
public,7 and to participate effectively in cultural life,8 on the rights of indigenous peoples to
their cultural institutions, ancestral lands, natural resources and traditional knowledge,9 and
on the right to development10 also contain important provisions on this subject.
4. In the present general comment, the Committee addresses specifically the right of
everyone under article 15 paragraph 1 (a), to take part in cultural life, in conjunction with
paragraphs 2, 3 and 4, as they relate to culture, creative activity and the development of
international contacts and cooperation in cultural fields, respectively. The right of everyone
to benefit from the protection of moral and material interests resulting from any scientific,
literary or artistic production of which they are the author, as provided for in article 15,
paragraph 1 (c), was the subject of general comment No. 17 (2005).
5. The Committee has gained long experience on this subject through its consideration
of reports and dialogue with States parties. In addition, it has twice organized a day of
general discussion, once in 1992 and again in 2008, with representatives of international
organizations and civil society with a view to preparing the present general comment.
II. Normative content of article 15, paragraph 1 (a)
6. The right to take part in cultural life can be characterized as a freedom. In order for
this right to be ensured, it requires from the State party both abstention (i.e., noninterference
with the exercise of cultural practices and with access to cultural goods and
services) and positive action (ensuring preconditions for participation, facilitation and
promotion of cultural life, and access to and preservation of cultural goods).
7. The decision by a person whether or not to exercise the right to take part in cultural
life individually, or in association with others, is a cultural choice and, as such, should be
recognized, respected and protected on the basis of equality. This is especially important for
all indigenous peoples, who have the right to the full enjoyment, as a collective or as
individuals, of all human rights and fundamental freedoms as recognized in the Charter of
the United Nations, the Universal Declaration of Human Rights and international human
rights law, as well as the United Nations Declaration on the Rights of Indigenous Peoples.
3 Convention on the Rights of the Child, art. 31, para. 2.
4 International Convention on the Protection of the Rights of All Migrant Workers and Members of
Their Families, art. 43, para. 1 (g).
5 Convention on the Rights of Persons with Disabilities, art. 30, para. 1.
6 In particular the International Covenant on Civil and Political Rights, arts. 17, 18, 19, 21 and 22.
7 International Covenant on Civil and Political Rights, art. 27.
8 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic
Minorities, art. 2, paras. 1 and 2. See also Framework Convention for the Protection of National
Minorities (Council of Europe, ETS No. 157), art. 15.
9 United Nations Declaration on the Rights of Indigenous Peoples, in particular arts. 5, 8, and 10–13 ff.
See also ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent
Countries, in particular arts. 2, 5, 7, 8, and 13–15 ff.
10 Declaration on the Right to Development (General Assembly resolution 41/128), art. 1. In its general
comment No. 4, paragraph 9, the Committee considers that rights cannot be viewed in isolation from
other human rights contained in the two international Covenants and other applicable international
instruments.
E/C.12/GC/21
GE.09-46922 3
A. Components of article 15, paragraph 1 (a)
8. The content or scope of the terms used in article 15, paragraph 1 (a), on the right of
everyone to take part in cultural life, is to be understood as set out below:
“Everyone”
9. In its general comment No. 17 on the right to benefit from the protection of moral
and material interests resulting from any scientific, literary or artistic production of which
one is the author,11 the Committee recognizes that the term “everyone” in the first line of
article 15 may denote the individual or the collective; in other words, cultural rights may be
exercised by a person (a) as an individual, (b) in association with others, or (c) within a
community or group, as such.
“Cultural life”
10. Various definitions of “culture” have been postulated in the past and others may
arise in the future. All of them, however, refer to the multifaceted content implicit in the
concept of culture.12
11. In the Committee’s view, culture is a broad, inclusive concept encompassing all
manifestations of human existence. The expression “cultural life” is an explicit reference to
culture as a living process, historical, dynamic and evolving, with a past, a present and a
future.
12. The concept of culture must be seen not as a series of isolated manifestations or
hermetic compartments, but as an interactive process whereby individuals and
communities, while preserving their specificities and purposes, give expression to the
culture of humanity. This concept takes account of the individuality and otherness of
culture as the creation and product of society.
13. The Committee considers that culture, for the purpose of implementing article 15 (1)
(a), encompasses, inter alia, ways of life, language, oral and written literature, music and
song, non-verbal communication, religion or belief systems, rites and ceremonies, sport and
games, methods of production or technology, natural and man-made environments, food,
11 See definition of “author” in general comment No. 17 (2005), paras. 7 and 8.
12 Culture is (a) “the set of distinctive spiritual, material, intellectual and emotional features of a
society or a social group, [which] encompasses, in addition to art and literature, lifestyles, ways of
living together, value systems, traditions and beliefs” (UNESCO Universal Declaration on Cultural
Diversity, fifth preambular paragraph); (b) “in its very essence, a social phenomenon resulting from
individuals joining and cooperating in creative activities [and] is not limited to access to works of art
and the human rights, but is at one and the same time the acquisition of knowledge, the demand for a
way of life and need to communicate” (UNESCO recommendation on participation by the people at
large in cultural life and their contribution to it, 1976, the Nairobi recommendation, fifth preambular
paragraph (a) and (c)); (c) “covers those values, beliefs, convictions, languages, knowledge and the
arts, traditions, institutions and ways of life through which a person or a group expresses their
humanity and meanings that they give to their existence and to their development” (Fribourg
Declaration on Cultural Rights, art. 2 (a) (definitions); (d) “the sum total of the material and spiritual
activities and products of a given social group which distinguishes it from other similar groups [and] a
system of values and symbols as well as a set of practices that a specific cultural group reproduces
over time and which provides individuals with the required signposts and meanings for behaviour and
social relationships in everyday life”. (Rodolfo Stavenhagen, “Cultural Rights: A social science
perspective”, in H. Niec (ed.), Cultural Rights and Wrongs: A collection of essays in commemoration
of the 50th anniversary of the Universal Declaration of Human Rights, Paris and Leicester, UNESCO
Publishing and Institute of Art and Law).
E/C.12/GC/21
4 GE.09-46922
clothing and shelter and the arts, customs and traditions through which individuals, groups
of individuals and communities express their humanity and the meaning they give to their
existence, and build their world view representing their encounter with the external forces
affecting their lives. Culture shapes and mirrors the values of well-being and the economic,
social and political life of individuals, groups of individuals and communities.
“To participate” or “to take part”
14. The terms “to participate” and “to take part” have the same meaning and are used
interchangeably in other international and regional instruments.
15. There are, among others, three interrelated main components of the right to
participate or take part in cultural life: (a) participation in, (b) access to, and (c) contribution
to cultural life.
(a) Participation covers in particular the right of everyone — alone, or in
association with others or as a community — to act freely, to choose his or her own
identity, to identify or not with one or several communities or to change that choice, to take
part in the political life of society, to engage in one’s own cultural practices and to express
oneself in the language of one’s choice. Everyone also has the right to seek and develop
cultural knowledge and expressions and to share them with others, as well as to act
creatively and take part in creative activity;
(b) Access covers in particular the right of everyone — alone, in association with
others or as a community — to know and understand his or her own culture and that of
others through education and information, and to receive quality education and training
with due regard for cultural identity. Everyone has also the right to learn about forms of
expression and dissemination through any technical medium of information or
communication, to follow a way of life associated with the use of cultural goods and
resources such as land, water,13 biodiversity, language or specific institutions, and to benefit
from the cultural heritage and the creation of other individuals and communities;
(c) Contribution to cultural life refers to the right of everyone to be involved in
creating the spiritual, material, intellectual and emotional expressions of the community.
This is supported by the right to take part in the development of the community to which a
person belongs, and in the definition, elaboration and implementation of policies and
decisions that have an impact on the exercise of a person’s cultural rights.14
B. Elements of the right to take part in cultural life
16. The following are necessary conditions for the full realization of the right of
everyone to take part in cultural life on the basis of equality and non-discrimination.
(a) Availability is the presence of cultural goods and services that are open for
everyone to enjoy and benefit from, including libraries, museums, theatres, cinemas and
sports stadiums; literature, including folklore, and the arts in all forms; the shared open
spaces essential to cultural interaction, such as parks, squares, avenues and streets; nature’s
gifts, such as seas, lakes, rivers, mountains, forests and nature reserves, including the flora
and fauna found there, which give nations their character and biodiversity; intangible
cultural goods, such as languages, customs, traditions, beliefs, knowledge and history, as
13 General comment No. 15 (2002), paras. 6 and 11.
14 UNESCO Universal Declaration on Cultural Diversity, art. 5. See also Fribourg Declaration on
Cultural Rights, art. 7.
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GE.09-46922 5
well as values, which make up identity and contribute to the cultural diversity of individuals
and communities. Of all the cultural goods, one of special value is the productive
intercultural kinship that arises where diverse groups, minorities and communities can
freely share the same territory;
(b) Accessibility consists of effective and concrete opportunities for individuals
and communities to enjoy culture fully, within physical and financial reach for all in both
urban and rural areas, without discrimination.15 It is essential, in this regard, that access for
older persons and persons with disabilities, as well as for those who live in poverty, is
provided and facilitated. Accessibility also includes the right of everyone to seek, receive
and share information on all manifestations of culture in the language of the person’s
choice, and the access of communities to means of expressions and dissemination.
(c) Acceptability entails that the laws, policies, strategies, programmes and
measures adopted by the State party for the enjoyment of cultural rights should be
formulated and implemented in such a way as to be acceptable to the individuals and
communities involved. In this regard, consultations should be held with the individuals and
communities concerned in order to ensure that the measures to protect cultural diversity are
acceptable to them;
(d) Adaptability refers to the flexibility and relevance of strategies, policies,
programmes and measures adopted by the State party in any area of cultural life, which
must be respectful of the cultural diversity of individuals and communities;
(e) Appropriateness refers to the realization of a specific human right in a way
that is pertinent and suitable to a given cultural modality or context, that is, respectful of the
culture and cultural rights of individuals and communities, including minorities and
indigenous peoples.16 The Committee has in many instances referred to the notion of
cultural appropriateness (or cultural acceptability or adequacy) in past general comments, in
relation in particular to the rights to food, health, water, housing and education. The way in
which rights are implemented may also have an impact on cultural life and cultural
diversity. The Committee wishes to stress in this regard the need to take into account, as far
as possible, cultural values attached to, inter alia, food and food consumption, the use of
water, the way health and education services are provided and the way housing is designed
and constructed.
C. Limitations to the right to take part in cultural life
17. The right of everyone to take part in cultural life is closely linked to the enjoyment
of other rights recognized in the international human rights instruments. Consequently,
States parties have a duty to implement their obligations under article 15, paragraph 1 (a),
together with their obligations under other provisions of the Covenant and international
instruments, in order to promote and protect the entire range of human rights guaranteed
under international law.
18. The Committee wishes to recall that, while account must be taken of national and
regional particularities and various historical, cultural and religious backgrounds, it is the
duty of States, regardless of their political, economic or cultural systems, to promote and
protect all human rights and fundamental freedoms.17 Thus, no one may invoke cultural
15 See general comment No. 20 (2009).
16 Fribourg Declaration on Cultural Rights, art. 1 (e).
17 Vienna Declaration and Programme of Action, para. 5.
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6 GE.09-46922
diversity to infringe upon human rights guaranteed by international law, nor to limit their
scope.18
19. Applying limitations to the right of everyone to take part in cultural life may be
necessary in certain circumstances, in particular in the case of negative practices, including
those attributed to customs and traditions, that infringe upon other human rights. Such
limitations must pursue a legitimate aim, be compatible with the nature of this right and be
strictly necessary for the promotion of general welfare in a democratic society, in
accordance with article 4 of the Covenant. Any limitations must therefore be proportionate,
meaning that the least restrictive measures must be taken when several types of limitations
may be imposed. The Committee also wishes to stress the need to take into consideration
existing international human rights standards on limitations that can or cannot be
legitimately imposed on rights that are intrinsically linked to the right to take part in
cultural life, such as the rights to privacy, to freedom of thought, conscience and religion, to
freedom of opinion and expression, to peaceful assembly and to freedom of association.
20. Article 15, paragraph 1 (a) may not be interpreted as implying for any State, group
or person any right to engage in any activity or perform any act aimed at the destruction of
any of the rights and freedoms recognized in the Covenant or at their limitation to a greater
extent than is provided for therein.19
D. Special topics of broad application
Non-discrimination and equal treatment
21. Article 2, paragraph 2, and article 3 of the Covenant prohibit any discrimination in
the exercise of the right of everyone to take part in cultural life on the grounds of race,
colour, sex, language, religion, political or other opinion, national or social origin, property,
birth or other status.20
22. In particular, no one shall be discriminated against because he or she chooses to
belong, or not to belong, to a given cultural community or group, or to practise or not to
practise a particular cultural activity. Likewise, no one shall be excluded from access to
cultural practices, goods and services.
23. The Committee emphasizes that the elimination of all forms of discrimination in
order to guarantee the exercise of the right of everyone to take part in cultural life can, in
many cases, be achieved with limited resources21 by the adoption, amendment or repeal of
legislation, or through publicity and information. In particular, a first and important step
towards the elimination of discrimination, whether direct or indirect, is for States to
recognize the existence of diverse cultural identities of individuals and communities on
their territories. The Committee also refers States parties to its general comment No. 3
(1990), paragraph 12, on the nature of States parties’ obligations, which establishes that,
even in times of severe resource constraints, the most disadvantaged and marginalized
individuals and groups can and indeed must be protected by the adoption of relatively lowcost
targeted programmes.
18 Universal Declaration on Cultural Diversity, art. 4.
19 International Covenant on Economic, Social and Cultural Rights, art. 5, para. 1.
20 See general comment No. 20 (2009).
21 See general comment No. 3 (1990); statement by the Committee: an evaluation of the obligation to
take steps to the “maximum of available resources” under an optional protocol to the Covenant
(E/C.12/2007/1).
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GE.09-46922 7
24. The adoption of temporary special measures with the sole purpose of achieving de
facto equality does not constitute discrimination, provided that such measures do not
perpetuate unequal protection or form a separate system of protection for certain
individuals or groups of individuals, and that they are discontinued when the objectives for
which they were taken have been achieved.
E. Persons and communities requiring special protection
1. Women
25. Ensuring the equal right of men and women to the enjoyment of economic, social
and cultural rights is a mandatory and immediate obligation of States parties.22
Implementing article 3 of the Covenant, in relation to article 15, paragraph 1 (a), requires,
inter alia, the elimination of institutional and legal obstacles as well as those based on
negative practices, including those attributed to customs and traditions, that prevent women
from participating fully in cultural life, science education and scientific research.23
2. Children
26. Children play a fundamental role as the bearers and transmitters of cultural values
from generation to generation. States parties should take all the steps necessary to stimulate
and develop children’s full potential in the area of cultural life, with due regard for the
rights and responsibilities of their parents or guardians. In particular, when taking into
consideration their obligations under the Covenant and other human rights instruments on
the right to education, including with regard to the aims of education,24 States should recall
that the fundamental aim of educational development is the transmission and enrichment of
common cultural and moral values in which the individual and society find their identity
and worth.25 Thus, education must be culturally appropriate, include human rights
education, enable children to develop their personality and cultural identity and to learn and
understand cultural values and practices of the communities to which they belong, as well
as those of other communities and societies.
27. The Committee wishes to recall in this regard that educational programmes of States
parties should respect the cultural specificities of national or ethnic, linguistic and religious
minorities as well as indigenous peoples, and incorporate in those programmes their
history, knowledge and technologies, as well as their social, economic and cultural values
and aspirations. Such programmes should be included in school curricula for all, not only
for minorities and indigenous peoples. States parties should adopt measures and spare no
effort to ensure that educational programmes for minorities and indigenous groups are
conducted on or in their own language, taking into consideration the wishes expressed by
communities and in the international human rights standards in this area.26 Educational
programmes should also transmit the necessary knowledge to enable everyone to participate
fully and on an equal footing in their own and in national communities.
22 General comment No. 16 (2005), para. 16.
23 Ibid., para. 31.
24 In particular articles 28 and 29 of the Convention on the Rights of the Child.
25 World Declaration on Education for All: Meeting Basic Learning Needs, art. I-3.
26 In particular the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and
Linguistic Minorities, the Declaration on the Rights of Indigenous Peoples and the International
Labour Organization Convention concerning Indigenous and Tribal Peoples in Independent Countries
(Convention No. 169).
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8 GE.09-46922
3. Older persons
28. The Committee is of the view that States parties to the Covenant are obligated to pay
particular attention to the promotion and protection of the cultural rights of older persons.
The Committee emphasizes the important role that older persons continue to play in most
societies by reason of their creative, artistic and intellectual abilities, and as the transmitters
of information, knowledge, traditions and cultural values. Consequently, the Committee
attaches particular importance to the message contained in recommendations 44 and 48 of
the Vienna International Plan of Action on Aging, calling for the development of
programmes featuring older persons as teachers and transmitters of knowledge, culture and
spiritual values, and encouraging Governments and international organizations to support
programmes aimed at providing older persons with easier physical access to cultural
institutions (such as museums, theatres, concert halls and cinemas).27
29. The Committee therefore urges States parties to take account of the
recommendations contained in the United Nations Principles for Older Persons, and in
particular of principle 7, that older persons should remain integrated in society, participate
actively in the formulation and implementation of policies that directly affect their
well-being and share their knowledge and skills with younger generations; and principle 16,
that older persons should have access to the educational, cultural, spiritual and recreational
resources of society.28
4. Persons with disabilities
30. Paragraph 17 of the Standard Rules on the Equalization of Opportunities for Persons
with Disabilities provides that States should ensure that persons with disabilities have the
opportunity to utilize their creative, artistic and intellectual potential, not only for their own
benefit, but also for the enrichment of their community, be they in urban or rural areas, and
that States should promote accessibility to and availability of places for cultural
performances and services.29
31. In order to facilitate participation of persons with disabilities in cultural life, States
parties should, inter alia, recognize the right of these persons to have access to cultural
material, television programmes, films, theatre and other cultural activities, in accessible
forms; to have access to places where cultural performances or services are offered, such as
theatres, museums, cinemas, libraries and tourist services and, to the extent possible, to
monuments and places of national cultural importance; to the recognition of their specific
cultural and linguistic identity, including sign language and the culture of the deaf; and to
the encouragement and promotion of their participation, to the extent possible, in
recreational, leisure and sporting activities.30
5. Minorities
32. In the Committee’s view, article 15, paragraph 1 (a) of the Covenant also includes
the right of minorities and of persons belonging to minorities to take part in the cultural life
of society, and also to conserve, promote and develop their own culture.31 This right entails
the obligation of States parties to recognize, respect and protect minority cultures as an
essential component of the identity of the States themselves. Consequently, minorities have
27 General comment No. 6 (1995), paras. 38 and 40.
28 General comment No. 6 (1995), para. 39.
29 General Assembly resolution 48/96, annex.
30 Convention on the Rights of Persons with Disabilities, art. 30.
31 International Covenant on Civil and Political Rights, art. 27; Declaration on the Rights of Persons
Belonging to National or Ethnic, Religious and Linguistic Minorities, para. 1 (1).
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GE.09-46922 9
the right to their cultural diversity, traditions, customs, religion, forms of education,
languages, communication media (press, radio, television, Internet) and other
manifestations of their cultural identity and membership.
33. Minorities, as well as persons belonging to minorities, have the right not only to
their own identity but also to development in all areas of cultural life. Any programme
intended to promote the constructive integration of minorities and persons belonging to
minorities into the society of a State party should thus be based on inclusion, participation
and non-discrimination, with a view to preserving the distinctive character of minority
cultures.
6. Migrants
34. States parties should pay particular attention to the protection of the cultural
identities of migrants, as well as their language, religion and folklore, and of their right to
hold cultural, artistic and intercultural events. States parties should not prevent migrants
from maintaining their cultural links with their countries of origin.32
35. As education is intrinsically related to culture, the Committee recommends that
States parties adopt appropriate measures to enable the children of migrants to attend, on a
basis of equal treatment, State-run educational institution and programmes.
7. Indigenous peoples
36. States parties should take measures to guarantee that the exercise of the right to take
part in cultural life takes due account of the values of cultural life, which may be strongly
communal or which can only be expressed and enjoyed as a community by indigenous
peoples.33 The strong communal dimension of indigenous peoples’ cultural life is
indispensable to their existence, well-being and full development, and includes the right to
the lands, territories and resources which they have traditionally owned, occupied or
otherwise used or acquired.34 Indigenous peoples’ cultural values and rights associated with
their ancestral lands and their relationship with nature should be regarded with respect and
protected, in order to prevent the degradation of their particular way of life, including their
means of subsistence, the loss of their natural resources and, ultimately, their cultural
identity.35 States parties must therefore take measures to recognize and protect the rights of
indigenous peoples to own, develop, control and use their communal lands, territories and
resources, and, where they have been otherwise inhabited or used without their free and
informed consent, take steps to return these lands and territories.
37. Indigenous peoples have the right to act collectively to ensure respect for their right
to maintain, control, protect and develop their cultural heritage, traditional knowledge and
traditional cultural expressions, as well as the manifestations of their sciences, technologies
and cultures, including human and genetic resources, seeds, medicines, knowledge of the
properties of fauna and flora, oral traditions, literature, designs, sports and traditional
games, and visual and performing arts.36 States parties should respect the principle of free,
32 International Convention on the Protection of the Rights of All Migrant Workers and Members of
Their Families, art. 31.
33 See Declaration on the Rights of Indigenous Peoples, art. 1. See also ILO Convention concerning
Indigenous and Tribal Peoples in Independent Countries (Convention No. 169), art. 1, para. 2.
34 United Nations Declaration on the Rights of Indigenous Peoples, art. 26 (a).
35 Convention No. 169, arts. 13–16. See also the United Nations Declaration on the Rights of
Indigenous Peoples, arts. 20 and 33.
36 ILO Convention No. 169, arts. 5 and 31. See also the United Nations Declaration on the Rights of
Indigenous Peoples, arts. 11–13.
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10 GE.09-46922
prior and informed consent of indigenous peoples in all matters covered by their specific
rights.37
8. Persons living in poverty
38. The Committee considers that every person or group of persons is endowed with a
cultural richness inherent in their humanity and therefore can make, and continues to make,
a significant contribution to the development of culture. Nevertheless, it must be borne in
mind that, in practice, poverty seriously restricts the ability of a person or a group of
persons to exercise the right to take part in, gain access and contribute to, on equal terms,
all spheres of cultural life, and more importantly, seriously affects their hopes for the future
and their ability to enjoy effectively their own culture. The common underlying theme in
the experience of persons living in poverty is a sense of powerlessness that is often a
consequence of their situation. Awareness of their human rights, and particularly the right
of every person to take part in cultural life, can significantly empower persons or groups of
persons living in poverty.38
39. Culture as a social product must be brought within the reach of all, on the basis of
equality, non-discrimination and participation. Therefore, in implementing the legal
obligations enshrined in article 15, paragraph 1 (a), of the Covenant, States parties must
adopt, without delay, concrete measures to ensure adequate protection and the full exercise
of the right of persons living in poverty and their communities to enjoy and take part in
cultural life. In this respect, the Committee refers States parties to its statement on poverty
and the International Covenant on Economic, Social and Cultural Rights.39
F. Cultural diversity and the right to take part in cultural life
40. The protection of cultural diversity is an ethical imperative, inseparable from respect
for human dignity. It implies a commitment to human rights and fundamental freedoms,
and requires the full implementation of cultural rights, including the right to take part in
cultural life.40
41. Cultures have no fixed borders. The phenomena of migration, integration,
assimilation and globalization have brought cultures, groups and individuals into closer
contact than ever before, at a time when each of them is striving to keep their own identity.
42. Given that globalization has positive and negative effects, States parties must take
appropriate steps to avoid its adverse consequences on the right to take part in cultural life,
particularly for the most disadvantaged and marginalized individuals and groups, such as
persons living in poverty. Far from having produced a single world culture, globalization
has demonstrated that the concept of culture implies the coexistence of different cultures.
43. States parties should also bear in mind that cultural activities, goods and services
have economic and cultural dimensions, conveying identity, values and meanings. They
must not be treated as having solely a commercial value.41 In particular, bearing in mind
article 15 (2) of the Covenant, States parties should adopt measures to protect and promote
37 ILO Convention No. 169, art. 6 (a). See also the United Nations Declaration on the Rights of
Indigenous Peoples, art. 19.
38 See E/C.12/2001/10, para. 5.
39 Ibid., para. 14.
40 See the Universal Declaration on Cultural Diversity, arts. 4 and 5.
41 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions,
preamble, para. 18. See also the Universal Declaration on Cultural Diversity, art. 8.
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GE.09-46922 11
the diversity of cultural expressions,42 and enable all cultures to express themselves and
make themselves known.43 In this respect, due regard should be paid to human rights
standards, including the right to information and expression, and to the need to protect the
free flow of ideas by word and image. The measures may also aim at preventing the signs,
symbols and expressions of a particular culture from being taken out of context for the sole
purpose of marketing or exploitation by the mass media.
III. States parties’ obligations
A. General legal obligations
44. The Covenant imposes on States parties the immediate obligation to guarantee that
the right set out in article 15, paragraph 1 (a), is exercised without discrimination, to
recognize cultural practices and to refrain from interfering in their enjoyment and
development.44
45. While the Covenant provides for the “progressive” realization of the rights set out in
its provisions and recognizes the problems arising from limited resources, it imposes on
States parties the specific and continuing obligation to take deliberate and concrete
measures aimed at the full implementation of the right of everyone to take part in cultural
life.45
46. As in the case of the other rights set out in the Covenant, regressive measures taken
in relation to the right of everyone to take part in cultural life are not permitted.
Consequently, if any such measure is taken deliberately, the State party has to prove that it
was taken after careful consideration of all alternatives and that the measure in question is
justified, bearing in mind the complete set of rights recognized in the Covenant.46
47. Given the interrelationship between the rights set out in article 15 of the Covenant
(see paragraph 2 above), the full realization of the right of everyone to take part in cultural
life also requires the adoption of steps necessary for the conservation, development and
dissemination of science and culture, as well as steps to ensure respect for the freedom
indispensable to scientific research and creative activity, in accordance with paragraphs 2
and 3, respectively, of article 15.47
B. Specific legal obligations
48. The right of everyone to take part in cultural life, like the other rights enshrined in
the Covenant, imposes three types or levels of obligations on States parties: (a) the
obligation to respect; (b) the obligation to protect; and (c) the obligation to fulfil. The
42 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, art.
IV-5.
43 See the Universal Declaration on Cultural Diversity, art. 6.
44 See general comment No. 20 (2009).
45 See general comments No. 3 (1990), para. 9, No. 13 (1999), para. 44, No. 14 (2000), para. 31, No.
17 (2005), para. 26 and No. 18 (2005), para. 20. See also the Limburg Principles on the
Implementation of the International Covenant on Economic, Social and Cultural Rights, para. 21.
46 See general comments No. 3 (1990), para. 9, No. 13 (1999), para. 45, No. 14 (2000), para. 32, No. 17
(2005), para. 27 and No. 18 (2005), para. 21.
47 See general comments No. 13 (1999), paras. 46 and 47, No. 14 (2000), para. 33, No. 17 (2005), para.
28 and No. 18 (2005), para. 22.
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12 GE.09-46922
obligation to respect requires States parties to refrain from interfering, directly or indirectly,
with the enjoyment of the right to take part in cultural life. The obligation to protect
requires States parties to take steps to prevent third parties from interfering in the right to
take part in cultural life. Lastly, the obligation to fulfil requires States parties to take
appropriate legislative, administrative, judicial, budgetary, promotional and other measures
aimed at the full realization of the right enshrined in article 15, paragraph 1 (a), of the
Covenant.48
49. The obligation to respect includes the adoption of specific measures aimed at
achieving respect for the right of everyone, individually or in association with others or
within a community or group:
(a) To freely choose their own cultural identity, to belong or not to belong to a
community, and have their choice respected;
This includes the right not to be subjected to any form of discrimination based on
cultural identity, exclusion or forced assimilation,49 and the right of all persons to
express their cultural identity freely and to exercise their cultural practices and way
of life. States parties should consequently ensure that their legislation does not
impair the enjoyment of these rights through direct or indirect discrimination.
(b) To enjoy freedom of opinion, freedom of expression in the language or
languages of their choice, and the right to seek, receive and impart information and ideas of
all kinds and forms including art forms, regardless of frontiers of any kind;
This implies the right of all persons to have access to, and to participate in, varied
information exchanges, and to have access to cultural goods and services,
understood as vectors of identity, values and meaning.50
(c) To enjoy the freedom to create, individually, in association with others, or
within a community or group, which implies that States parties must abolish censorship of
cultural activities in the arts and other forms of expression, if any;
This obligation is closely related to the duty of States parties, under article 15,
paragraph 3, “to respect the freedom indispensable for scientific research and
creative activity”.
(d) To have access to their own cultural and linguistic heritage and to that of
others;
In particular, States must respect free access by minorities to their own culture,
heritage and other forms of expression, as well as the free exercise of their cultural
identity and practices. This includes the right to be taught about one’s own culture as
well as those of others.51 States parties must also respect the rights of indigenous
peoples to their culture and heritage and to maintain and strengthen their spiritual
relationship with their ancestral lands and other natural resources traditionally
owned, occupied or used by them, and indispensable to their cultural life.
48 See general comments No. 13 (1990), paras. 46 and 47, No. 14 (2000), para. 33, No. 17 (2005), para.
28 and No. 18 (2005), para. 22. See also the Limburg Principles on the Implementation of the
International Covenant on Economic, Social and Cultural Rights, para. 6.
49 International Convention on the Protection of the Rights of All Migrant Workers and Members of
Their Families, art. 31
50 Universal Declaration on Cultural Diversity, para. 8.
51 Fribourg Declaration on Cultural Rights, arts. 6 (b) and 7 (b).
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GE.09-46922 13
(e) To take part freely in an active and informed way, and without
discrimination, in any important decision-making process that may have an impact on his or
her way of life and on his or her rights under article 15, paragraph 1 (a).
50. In many instances, the obligations to respect and to protect freedoms, cultural
heritage and diversity are interconnected. Consequently, the obligation to protect is to be
understood as requiring States to take measures to prevent third parties from interfering in
the exercise of rights listed in paragraph 49 above. In addition, States parties are obliged to:
(a) Respect and protect cultural heritage in all its forms, in times of war and
peace, and natural disasters;
Cultural heritage must be preserved, developed, enriched and transmitted to future
generations as a record of human experience and aspirations, in order to encourage
creativity in all its diversity and to inspire a genuine dialogue between cultures. Such
obligations include the care, preservation and restoration of historical sites,
monuments, works of art and literary works, among others.52
(b) Respect and protect cultural heritage of all groups and communities, in
particular the most disadvantaged and marginalized individuals and groups, in economic
development and environmental policies and programmes;
Particular attention should be paid to the adverse consequences of globalization,
undue privatization of goods and services, and deregulation on the right to
participate in cultural life.
(c) Respect and protect the cultural productions of indigenous peoples, including
their traditional knowledge, natural medicines, folklore, rituals and other forms of
expression;
This includes protection from illegal or unjust exploitation of their lands, territories
and resources by State entities or private or transnational enterprises and
corporations.
(d) Promulgate and enforce legislation to prohibit discrimination based on
cultural identity, as well as advocacy of national, racial or religious hatred that constitutes
incitement to discrimination, hostility or violence, taking into consideration articles 19 and
20 of the International Covenant on Civil and Political Rights and article 4 of the
International Convention on the Elimination of All Forms of Racial Discrimination.
51. The obligation to fulfil can be subdivided into the obligations to facilitate, promote
and provide.
52. States parties are under an obligation to facilitate the right of everyone to take part in
cultural life by taking a wide range of positive measures, including financial measures, that
would contribute to the realization of this right, such as:
(a) Adopting policies for the protection and promotion of cultural diversity, and
facilitating access to a rich and diversified range of cultural expressions, including through,
inter alia, measures aimed at establishing and supporting public institutions and the cultural
infrastructure necessary for the implementation of such policies; and measures aimed at
enhancing diversity through public broadcasting in regional and minority languages;
(b) Adopting policies enabling persons belonging to diverse cultural
communities to engage freely and without discrimination in their own cultural practices and
those of others, and to choose freely their way of life;
52 Universal Declaration on Cultural Diversity, art. 7.
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14 GE.09-46922
(c) Promoting the exercise of the right of association for cultural and linguistic
minorities for the development of their cultural and linguistic rights;
(d) Granting assistance, financial or other, to artists, public and private
organizations, including science academies, cultural associations, trade unions and other
individuals and institutions engaged in scientific and creative activities;
(e) Encouraging scientists, artists and others to take part in international
scientific and cultural research activities, such as symposiums, conferences, seminars and
workshops;
(f) Taking appropriate measures or programmes to support minorities or other
communities, including migrant communities, in their efforts to preserve their culture;
(g) Taking appropriate measures to remedy structural forms of discrimination so
as to ensure that the underrepresentation of persons from certain communities in public life
does not adversely affect their right to take part in cultural life;
(h) Taking appropriate measures to create conditions conducive to a constructive
intercultural relationship between individuals and groups based on mutual respect,
understanding and tolerance;
(i) Taking appropriate measures to conduct public campaigns through the media,
educational institutions and other available channels, with a view to eliminating any form
of prejudice against individuals or communities, based on their cultural identity.
53. The obligation to promote requires States parties to take effective steps to ensure
that there is appropriate education and public awareness concerning the right to take part in
cultural life, particularly in rural and deprived urban areas, or in relation to the specific
situation of, inter alia, minorities and indigenous peoples. This includes education and
awareness-raising on the need to respect cultural heritage and cultural diversity.
54. The obligation to fulfil requires that States parties must provide all that is necessary
for fulfilment of the right to take part in cultural life when individuals or communities are
unable, for reasons outside their control, to realize this right for themselves with the means
at their disposal. This level of obligation includes, for example:
(a) The enactment of appropriate legislation and the establishment of effective
mechanisms allowing persons, individually, in association with others, or within a
community or group, to participate effectively in decision-making processes, to claim
protection of their right to take part in cultural life, and to claim and receive compensation
if their rights have been violated;
(b) Programmes aimed at preserving and restoring cultural heritage;
(c) The inclusion of cultural education at every level in school curricula,
including history, literature, music and the history of other cultures, in consultation with all
concerned;
(d) Guaranteed access for all, without discrimination on grounds of financial or
any other status, to museums, libraries, cinemas and theatres and to cultural activities,
services and events.
C. Core obligations
55. In its general comment No. 3 (1990), the Committee stressed that States parties have
a minimum core obligation to ensure the satisfaction of, at the very least, minimum
essential levels of each of the rights set out in the Covenant. Thus, in accordance with the
Covenant and other international instruments dealing with human rights and the protection
E/C.12/GC/21
GE.09-46922 15
of cultural diversity, the Committee considers that article 15, paragraph 1 (a), of the
Covenant entails at least the obligation to create and promote an environment within which
a person individually, or in association with others, or within a community or group, can
participate in the culture of their choice, which includes the following core obligations
applicable with immediate effect:
(a) To take legislative and any other necessary steps to guarantee nondiscrimination
and gender equality in the enjoyment of the right of everyone to take part in
cultural life;
(b) To respect the right of everyone to identify or not identify themselves with
one or more communities, and the right to change their choice;
(c) To respect and protect the right of everyone to engage in their own cultural
practices, while respecting human rights which entails, in particular, respecting freedom of
thought, belief and religion; freedom of opinion and expression; a person’s right to use the
language of his or her choice; freedom of association and peaceful assembly; and freedom
to choose and set up educational establishments;
(d) To eliminate any barriers or obstacles that inhibit or restrict a person’s access
to the person’s own culture or to other cultures, without discrimination and without
consideration for frontiers of any kind;
(e) To allow and encourage the participation of persons belonging to minority
groups, indigenous peoples or to other communities in the design and implementation of
laws and policies that affect them. In particular, States parties should obtain their free and
informed prior consent when the preservation of their cultural resources, especially those
associated with their way of life and cultural expression, are at risk.
D. International obligations
56. In its general comment No. 3 (1990), the Committee draws attention to the
obligation of States parties to take steps, individually and through international assistance
and cooperation, especially through economic and technical cooperation, with a view to
achieving the full realization of the rights recognized in the Covenant. In the spirit of
Article 56 of the Charter of the United Nations, as well as specific provisions of the
International Covenant on Economic, Social and Cultural Rights (art. 2, para. 1, and arts. 15
and 23), States parties should recognize and promote the essential role of international
cooperation in the achievement of the rights recognized in the Covenant, including the right
of everyone to take part in cultural life, and should fulfil their commitment to take joint and
separate action to that effect.
57. States parties should, through international agreements where appropriate, ensure
that the realization of the right of everyone to take part in cultural life receives due
attention.53
58. The Committee recalls that international cooperation for development and thus for
the realization of economic, social and cultural rights, including the right to take part in
cultural life, is an obligation of States parties, especially of those States that are in a
position to provide assistance. This obligation is in accordance with Articles 55 and 56 of
53 See general comment No. 18 (2005), para. 29.
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16 GE.09-46922
the Charter of the United Nations, as well as articles 2, paragraph 1, and articles 15 and 23
of the Covenant.54
59. In negotiations with international financial institutions and in concluding bilateral
agreements, States parties should ensure that the enjoyment of the right enshrined in article
15, paragraph 1 (a), of the Covenant is not impaired. For example, the strategies,
programmes and policies adopted by States parties under structural adjustment programmes
should not interfere with their core obligations in relation to the right of everyone,
especially the most disadvantaged and marginalized individuals and groups, to take part in
cultural life.55
IV. Violations
60. To demonstrate compliance with their general and specific obligations, States parties
must show that they have taken appropriate measures to ensure the respect for and
protection of cultural freedoms, as well as the necessary steps towards the full realization of
the right to take part in cultural life within their maximum available resources. States
parties must also show that they have guaranteed that the right is enjoyed equally and
without discrimination, by men and women.
61. In assessing whether States parties have complied with obligations to take action, the
Committee looks at whether implementation is reasonable or proportionate with respect to
the attainment of the relevant rights, complies with human rights and democratic principles,
and whether it is subject to an adequate framework of monitoring and accountability.
62. Violations can occur through the direct action of a State party or of other entities or
institutions that are insufficiently regulated by the State party, including, in particular, those
in the private sector. Many violations of the right to take part in cultural life occur when
States parties prevent access to cultural life, practices, goods and services by individuals or
communities.
63. Violations of article 15, paragraph 1 (a), also occur through the omission or failure
of a State party to take the necessary measures to comply with its legal obligations under
this provision. Violations through omission include the failure to take appropriate steps to
achieve the full realization of the right of everyone to take part in cultural life, and the
failure to enforce relevant laws or to provide administrative, judicial or other appropriate
remedies to enable people to exercise in full the right to take part in cultural life.
64. A violation also occurs when a State party fails to take steps to combat practices
harmful to the well-being of a person or group of persons. These harmful practices,
including those attributed to customs and traditions, such as female genital mutilation and
allegations of the practice of witchcraft, are barriers to the full exercise by the affected
persons of the right enshrined in article 15, paragraph 1 (a).
65. Any deliberately retrogressive measures in relation to the right to take part in
cultural life would require the most careful consideration and need to be fully justified by
reference to the totality of the rights provided for in the Covenant and in the context of the
full use of the maximum available resources.
54 General comment No. 3 (1990), para. 14. See also general comment No. 18 (2005), para. 37.
55 See general comment No. 18 (2005), para. 30.
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GE.09-46922 17
V. Implementation at the national level
A. Legislation, strategies and policies
66. While States parties have a wide margin of discretion in selecting the steps they
consider most appropriate for the full realization of the right, they must immediately take
those steps intended to guarantee access by everyone, without discrimination, to cultural
life.
67. States parties must take the necessary steps without delay to guarantee immediately
at least the minimum content of the core obligations (see paragraph 56 above). Many of
these steps, such as those intended to guarantee non-discrimination de jure, do not
necessarily require financial resources. While there may be other steps that require
resources, these steps are nevertheless essential to ensure the implementation of that
minimum content. Such steps are not static, and States parties are obliged to advance
progressively towards the full realization of the rights recognized in the Covenant and, as
far as the present general comment is concerned, of the right enshrined in article 15,
paragraph 1 (a).
68. The Committee encourages States parties to make the greatest possible use of the
valuable cultural resources that every society possesses and to bring them within the reach
of everyone, paying particular attention to the most disadvantaged and marginalized
individuals and groups, in order to ensure that everyone has effective access to cultural life.
69. The Committee emphasizes that inclusive cultural empowerment derived from the
right of everyone to take part in cultural life is a tool for reducing the disparities so that
everyone can enjoy, on an equal footing, the values of his or her own culture within a
democratic society.
70. States parties, in implementing the right enshrined in article 15, paragraph 1 (a), of
the Covenant, should go beyond the material aspects of culture (such as museums, libraries,
theatres, cinemas, monuments and heritage sites) and adopt policies, programmes and
proactive measures that also promote effective access by all to intangible cultural goods
(such as language, knowledge and traditions).
B. Indicators and benchmarks
71. In their national strategies and policies, States parties should identify appropriate
indicators and benchmarks, including disaggregated statistics and time frames that allow
them to monitor effectively the implementation of the right of everyone to take part in
cultural life, and also to assess progress towards the full realization of this right.
C. Remedies and accountability
72. The strategies and policies adopted by States parties should provide for the
establishment of effective mechanisms and institutions, where these do not exist, to
investigate and examine alleged infringements of article 15, paragraph 1 (a), identify
responsibilities, publicize the results and offer the necessary administrative, judicial or
other remedies to compensate victims.
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18 GE.09-46922
VI. Obligations of actors other than States
73. While compliance with the Covenant is mainly the responsibility of States parties,
all members of civil society — individuals, groups, communities, minorities, indigenous -
peoples, religious bodies, private organizations, business and civil society in general — also
have responsibilities in relation to the effective implementation of the right of everyone to
take part in cultural life. States parties should regulate the responsibility incumbent upon
the corporate sector and other non-State actors with regard to the respect for this right.
74. Communities and cultural associations play a fundamental role in the promotion of
the right of everyone to take part in cultural life at the local and national levels, and in
cooperating with States parties in the implementation of their obligations under article 15,
paragraph 1 (a).
75. The Committee notes that, as members of international organizations such as United
Nations Educational, Scientific and Cultural Organization (UNESCO), the World
Intellectual Property Organization (WIPO), the International Labour Organization (ILO),
the Food and Agriculture Organization of the United Nations (FAO), the World Health
Organization (WHO) and the World Trade Organization (WTO), States parties have an
obligation to adopt whatever measures they can to ensure that the policies and decisions of
those organizations in the field of culture and related areas are in conformity with their
obligations under the Covenant, in particular the obligations contained in article 15 article
2, paragraph 1, and articles 22 and 23, concerning international assistance and cooperation.
76. United Nations organs and specialized agencies, should, within their fields of
competence and in accordance with articles 22 and 23 of the Covenant, adopt international
measures likely to contribute to the progressive implementation of article 15, paragraph 1
(a). In particular, UNESCO, WIPO, ILO, FAO, WHO and other relevant agencies, funds
and programmes of the United Nations are called upon to intensify their efforts to take into
account human rights principles and obligations in their work concerning the right of
everyone to take part in cultural life, in cooperation with the Office of the United Nations
High Commissioner for Human Rights.
Annex 758
CEDAW General Recommendation No. 28 on the Core Obligations of State Parties under Article
2. CEDAW/C/GC/28 (16 December 2010)

GE.10-47260
Committee on the Elimination of Discrimination
against Women
General recommendation No. 28 on the core obligations of
States parties under article 2 of the Convention on the
Elimination of All Forms of Discrimination against Women
I. Introduction
1. Through this general recommendation, the Committee on the Elimination of
Discrimination against Women (“the Committee”) aims to clarify the scope and meaning of
article 2 of the Convention on the Elimination of All Forms of Discrimination against
Women (“the Convention”), which provides ways for States parties to implement
domestically the substantive provisions of the Convention. The Committee encourages
States parties to translate this general recommendation into national and local languages
and to disseminate it widely to all branches of Government, civil society, including the
media, academia and human rights and women’s organizations and institutions.2. The
Convention is a dynamic instrument that accommodates the development of international
law. Since its first session in 1982, the Committee on the Elimination of Discrimination
against Women and other actors at the national and international levels have contributed to
the clarification and understanding of the substantive content of the Convention’s articles,
the specific nature of discrimination against women and the various instruments required
for combating such discrimination.
3. The Convention is part of a comprehensive international human rights legal
framework directed at ensuring the enjoyment by all of all human rights and at eliminating
all forms of discrimination against women on the basis of sex and gender. The Charter of
the United Nations, the Universal Declaration of Human Rights, the International Covenant
on Economic, Social and Cultural Rights, the International Covenant on Civil and Political
Rights, the Convention on the Rights of the Child, the International Convention on the
Protection of the Rights of All Migrant Workers and Members of Their Families and the
Convention on the Rights of Persons with Disabilities contain explicit provisions
guaranteeing women equality with men in the enjoyment of the rights they enshrine, while
other international human rights treaties, such as the International Convention on the
Elimination of All Forms of Racial Discrimination, are implicitly grounded in the concept
of non-discrimination on the basis of sex and gender. The International Labour
Organization (ILO) Conventions No. 100 (1951) concerning Equal Remuneration for Men
and Women Workers for Work of Equal Value, No. 111 (1958) concerning Discrimination
in Respect of Employment and Occupation and No. 156 (1981) concerning Equal
Opportunities and Equal Treatment for Men and Women Workers: Workers with Family
Responsibilities, the Convention against Discrimination in Education, the Declaration on
United Nations CEDAW/C/GC/28
Convention on the Elimination
of All Forms of Discrimination
against Women
Distr.: General
16 December 2010
Original: English
CEDAW/C/GC/28
2
the Elimination of Discrimination against Women, the Vienna Declaration and Programme
of Action, the Cairo Programme of Action and the Beijing Declaration and Platform for
Action also contribute to an international legal regime of equality for women with men and
non-discrimination. Likewise, the obligations of States entered into under regional human
rights systems are complementary to the universal human rights framework.
4. The objective of the Convention is the elimination of all forms of discrimination
against women on the basis of sex. It guarantees women the equal recognition, enjoyment
and exercise of all human rights and fundamental freedoms in the political, economic,
social, cultural, civil, domestic or any other field, irrespective of their marital status, and on
a basis of equality with men.
5. Although the Convention only refers to sex-based discrimination, interpreting article
1 together with articles 2 (f) and 5 (a) indicates that the Convention covers gender-based
discrimination against women. The term “sex” here refers to biological differences between
men and women. The term “gender” refers to socially constructed identities, attributes and
roles for women and men and society’s social and cultural meaning for these biological
differences resulting in hierarchical relationships between women and men and in the
distribution of power and rights favouring men and disadvantaging women. This social
positioning of women and men is affected by political, economic, cultural, social, religious,
ideological and environmental factors and can be changed by culture, society and
community. The application of the Convention to gender-based discrimination is made
clear by the definition of discrimination contained in article 1. This definition points out
that any distinction, exclusion or restriction which has the effect or purpose of impairing or
nullifying the recognition, enjoyment or exercise by women of human rights and
fundamental freedoms is discrimination, even where discrimination was not intended. This
would mean that identical or neutral treatment of women and men might constitute
discrimination against women if such treatment resulted in or had the effect of women
being denied the exercise of a right because there was no recognition of the pre-existing
gender-based disadvantage and inequality that women face. The views of the Committee on
this matter are evidenced by its consideration of reports, its general recommendations,
decisions, suggestions and statements, its consideration of individual communications and
its conduct of inquiries under the Optional Protocol.
6. Article 2 is crucial to the full implementation of the Convention, since it identifies
the nature of the general legal obligations of States parties. The obligations enshrined in
article 2 are inextricably linked with all other substantive provisions of the Convention, as
States parties have the obligation to ensure that all the rights enshrined in the Convention
are fully respected at the national level.
7. Article 2 of the Convention should be read in conjunction with articles 3, 4, 5 and 24
and in the light of the definition of discrimination contained in article 1. In addition, the
scope of the general obligations contained in article 2 should also be construed in the light
of the general recommendations, concluding observations, views and other statements
issued by the Committee, including the reports on the inquiry procedures and the decisions
of individual cases. The spirit of the Convention covers other rights that are not explicitly
mentioned in the Convention, but that have an impact on the achievement of equality of
women with men, which impact represents a form of discrimination against women.
II. Nature and scope of obligations of States parties
8. Article 2 calls on States parties to condemn discrimination against women in “all its
forms”, while article 3 refers to appropriate measures that States parties are expected to take
in “all fields” to ensure the full development and advancement of women. Through these
CEDAW/C/GC/28
3
provisions, the Convention anticipates the emergence of new forms of discrimination that
had not been identified at the time of its drafting.
9. Under article 2, States parties must address all aspects of their legal obligations
under the Convention to respect, protect and fulfil women’s right to non-discrimination and
to the enjoyment of equality. The obligation to respect requires that States parties refrain
from making laws, policies, regulations, programmes, administrative procedures and
institutional structures that directly or indirectly result in the denial of the equal enjoyment
by women of their civil, political, economic, social and cultural rights. The obligation to
protect requires that States parties protect women from discrimination by private actors and
take steps directly aimed at eliminating customary and all other practices that prejudice and
perpetuate the notion of inferiority or superiority of either of the sexes, and of stereotyped
roles for men and women. The obligation to fulfil requires that States parties take a wide
variety of steps to ensure that women and men enjoy equal rights de jure and de facto,
including, where appropriate, the adoption of temporary special measures in line with
article 4, paragraph 1, of the Convention and general recommendation No. 25 on article 4,
paragraph 1, of the Convention on the Elimination of All Forms of Discrimination against
Women, on temporary special measures. This entails obligations of means or conduct and
obligations of results. States parties should consider that they have to fulfil their legal
obligations to all women through designing public policies, programmes and institutional
frameworks that are aimed at fulfilling the specific needs of women leading to the full
development of their potential on an equal basis with men.
10. States parties have an obligation not to cause discrimination against women through
acts or omissions; they are further obliged to react actively against discrimination against
women, regardless of whether such acts or omissions are perpetrated by the State or by
private actors. Discrimination can occur through the failure of States to take necessary
legislative measures to ensure the full realization of women’s rights, the failure to adopt
national policies aimed at achieving equality between women and men and the failure to
enforce relevant laws. Likewise, States parties have an international responsibility to create
and continuously improve statistical databases and the analysis of all forms of
discrimination against women in general and against women belonging to specific
vulnerable groups in particular.
11. The obligations of States parties do not cease in periods of armed conflict or in states
of emergency resulting from political events or natural disasters. Such situations have a
deep impact on and broad consequences for the equal enjoyment and exercise by women of
their fundamental rights. States parties should adopt strategies and take measures addressed
to the particular needs of women in times of armed conflict and states of emergency.
12. Although subject to international law, States primarily exercise territorial
jurisdiction. The obligations of States parties apply, however, without discrimination both
to citizens and non-citizens, including refugees, asylum-seekers, migrant workers and
stateless persons, within their territory or effective control, even if not situated within the
territory. States parties are responsible for all their actions affecting human rights,
regardless of whether the affected persons are in their territory.
13. Article 2 is not limited to the prohibition of discrimination against women caused
directly or indirectly by States parties. Article 2 also imposes a due diligence obligation on
States parties to prevent discrimination by private actors. In some cases, a private actor’s
acts or omission of acts may be attributed to the State under international law. States parties
are thus obliged to ensure that private actors do not engage in discrimination against
women as defined in the Convention. The appropriate measures that States parties are
obliged to take include the regulation of the activities of private actors with regard to
education, employment and health policies and practices, working conditions and work
CEDAW/C/GC/28
4
standards, and other areas in which private actors provide services or facilities, such as
banking and housing.
III. General obligations contained in article 2
A. Introductory sentence of article 2
14. The introductory sentence of article 2 reads: “States Parties condemn discrimination
against women in all its forms, agree to pursue by all appropriate means and without delay
a policy of eliminating discrimination against women”.
15. The first obligation of States parties referred to in the chapeau of article 2 is the
obligation to “condemn discrimination against women in all its forms”. States parties have
an immediate and continuous obligation to condemn discrimination. They are obliged to
proclaim to their population and the international community their total opposition to all
forms of discrimination against women to all levels and branches of Government and their
determination to bring about the elimination of discrimination against women. The term
“discrimination in all its forms” clearly obligates the State party to be vigilant in
condemning all forms of discrimination, including forms that are not explicitly mentioned
in the Convention or that may be emerging.
16. States parties are under an obligation to respect, protect and fulfil the right to nondiscrimination
of women and to ensure the development and advancement of women in
order that they improve their position and implement their right of de jure and de facto or
substantive equality with men. States parties shall ensure that there is neither direct nor
indirect discrimination against women. Direct discrimination against women constitutes
different treatment explicitly based on grounds of sex and gender differences. Indirect
discrimination against women occurs when a law, policy, programme or practice appears to
be neutral in so far as it relates to men and women, but has a discriminatory effect in
practice on women because pre-existing inequalities are not addressed by the apparently
neutral measure. Moreover, indirect discrimination can exacerbate existing inequalities
owing to a failure to recognize structural and historical patterns of discrimination and
unequal power relationships between women and men.
17. States parties also have an obligation to ensure that women are protected against
discrimination committed by public authorities, the judiciary, organizations, enterprises or
private individuals, in the public and private spheres. This protection shall be provided by
competent tribunals and other public institutions and enforced by sanctions and remedies,
where appropriate. States parties should ensure that all Government bodies and organs are
fully aware of the principles of equality and non-discrimination on the basis of sex and
gender and that adequate training and awareness-raising programmes are set up and carried
out in this respect.
18. Intersectionality is a basic concept for understanding the scope of the general
obligations of States parties contained in article 2. The discrimination of women based on
sex and gender is inextricably linked with other factors that affect women, such as race,
ethnicity, religion or belief, health, status, age, class, caste and sexual orientation and
gender identity. Discrimination on the basis of sex or gender may affect women belonging
to such groups to a different degree or in different ways to men. States parties must legally
recognize such intersecting forms of discrimination and their compounded negative impact
on the women concerned and prohibit them. They also need to adopt and pursue policies
and programmes designed to eliminate such occurrences, including, where appropriate,
temporary special measures in accordance with article 4, paragraph 1, of the Convention
and general recommendation No. 25.
CEDAW/C/GC/28
5
19. Discrimination against women on the basis of sex and gender comprises, as stated in
general recommendation No. 19 on violence against women, gender-based violence,
namely, violence that is directed against a woman because she is a woman or violence that
affects women disproportionately. It is a form of discrimination that seriously inhibits
women’s ability to enjoy and exercise their human rights and fundamental freedoms on the
basis of equality with men. It includes acts that inflict physical, mental or sexual harm or
suffering, threats of such acts, coercion and other deprivations of liberty, the violence that
occurs within the family or domestic unit or within any other interpersonal relationship, or
violence perpetrated or condoned by the State or its agents regardless of where it occurs.
Gender-based violence may breach specific provisions of the Convention, regardless of
whether those provisions expressly mention violence. States parties have a due diligence
obligation to prevent, investigate, prosecute and punish such acts of gender-based violence.
20. The obligation to fulfil encompasses the obligation of States parties to facilitate
access to and provide for the full realization of women’s rights. The human rights of
women shall be fulfilled by the promotion of de facto or substantive equality through all
appropriate means, including through concrete and effective policies and programmes
aimed at improving the position of women and achieving such equality, including where
appropriate, through the adoption of temporary special measures in accordance with article
4, paragraph 1, and general recommendation No. 25.
21. States parties in particular are obliged to promote the equal rights of girls since girls
are part of the larger community of women and are more vulnerable to discrimination in
such areas as access to basic education, trafficking, maltreatment, exploitation and violence.
All these situations of discrimination are aggravated when the victims are adolescents.
Therefore, States shall pay attention to the specific needs of (adolescent) girls by providing
education on sexual and reproductive health and carrying out programmes that are aimed at
the prevention of HIV/AIDS, sexual exploitation and teenage pregnancy.
22. Inherent to the principle of equality between men and women, or gender equality, is
the concept that all human beings, regardless of sex, are free to develop their personal
abilities, pursue their professional careers and make choices without the limitations set by
stereotypes, rigid gender roles and prejudices. States parties are called upon to use
exclusively the concepts of equality of women and men or gender equality and not to use
the concept of gender equity in implementing their obligations under the Convention. The
latter concept is used in some jurisdictions to refer to fair treatment of women and men,
according to their respective needs. This may include equal treatment, or treatment that is
different but considered equivalent in terms of rights, benefits, obligations and
opportunities.
23. States parties also agree to “pursue by all appropriate means” a policy of eliminating
discrimination against women. This obligation to use means or a certain way of conduct
gives a State party a great deal of flexibility for devising a policy that will be appropriate
for its particular legal, political, economic, administrative and institutional framework and
that can respond to the particular obstacles and resistance to the elimination of
discrimination against women existing in that State party. Each State party must be able to
justify the appropriateness of the particular means it has chosen and demonstrate whether it
will achieve the intended effect and result. Ultimately, it is for the Committee to determine
whether a State party has indeed adopted all necessary measures at the national level aimed
at achieving the full realization of the rights recognized in the Convention.
24. The main element of the introductory phrase of article 2 is the obligation of States
parties to pursue a policy of eliminating discrimination against women. This requirement is
an essential and critical component of a State party’s general legal obligation to implement
the Convention. This means that the State party must immediately assess the de jure and de
facto situation of women and take concrete steps to formulate and implement a policy that
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6
is targeted as clearly as possible towards the goal of fully eliminating all forms of
discrimination against women and achieving women’s substantive equality with men. The
emphasis is on movement forward: from the evaluation of the situation to the formulation
and initial adoption of a comprehensive range of measures, to building on those measures
continuously in the light of their effectiveness and new or emerging issues, in order to
achieve the Convention’s goals. Such a policy must comprise constitutional and legislative
guarantees, including an alignment with legal provisions at the domestic level and an
amendment of conflicting legal provisions. It must also include other appropriate measures,
such as comprehensive action plans and mechanisms for monitoring and implementing
them, which provide a framework for the practical realization of the principle of formal and
substantive equality of women and men.
25. The policy must be comprehensive in that it should apply to all fields of life,
including those which are not explicitly mentioned in the text of the Convention. It must
apply to both public and private economic spheres, as well as to the domestic sphere, and
ensure that all branches of Government (executive, legislative and judicial branches) and all
levels of Government assume their respective responsibilities for implementation. It should
incorporate the entire range of measures that are appropriate and necessary in the particular
circumstances of the State party.
26. The policy must identify women within the jurisdiction of the State party (including
non-citizen, migrant, refugee, asylum-seeking and stateless women) as the rights-bearers,
with particular emphasis on the groups of women who are most marginalized and who may
suffer from various forms of intersectional discrimination.
27. The policy must ensure that women, as individuals and groups, have access to
information about their rights under the Convention and are able to effectively promote and
claim those rights. The State party should also ensure that women are able to participate
actively in the development, implementation and monitoring of the policy. To this end,
resources must be devoted to ensuring that human rights and women’s non-governmental
organizations are well-informed, adequately consulted and generally able to play an active
role in the initial and subsequent development of the policy.
28. The policy must be action- and results-oriented in the sense that it should establish
indicators, benchmarks and timelines, ensure adequate resourcing for all relevant actors and
otherwise enable those actors to play their part in achieving the agreed benchmarks and
goals. To this end, the policy must be linked to mainstream governmental budgetary
processes in order to ensure that all aspects of the policy are adequately funded. It should
provide for mechanisms that collect relevant sex-disaggregated data, enable effective
monitoring, facilitate continuing evaluation and allow for the revision or supplementation
of existing measures and the identification of any new measures that may be appropriate.
Furthermore, the policy must ensure that there are strong and focused bodies (national
women’s machinery) within the executive branch of the Government that will take
initiatives, coordinate and oversee the preparation and implementation of legislation,
policies and programmes necessary to fulfil the obligations of the State party under the
Convention. These institutions should be empowered to provide advice and analysis
directly to the highest levels of Government. The policy should also ensure that
independent monitoring institutions, such as national human rights institutes or independent
women’s commissions, are established or that existing national institutes receive a mandate
to promote and protect the rights guaranteed under the Convention. The policy must engage
the private sector, including business enterprises, the media, organizations, community
groups and individuals, and enlist their involvement in adopting measures that will fulfil the
goals of the Convention in the private economic sphere.
29. The words “without delay” make it clear that the obligation of States parties to
pursue their policy, by all appropriate means, is of an immediate nature. This language is
CEDAW/C/GC/28
7
unqualified, and does not allow for any delayed or purposely chosen incremental
implementation of the obligations that States assume upon ratification of or accession to the
Convention. It follows that a delay cannot be justified on any grounds, including political,
social, cultural, religious, economic, resource or other considerations or constraints within
the State. Where a State party is facing resource constraints or needs technical or other
expertise to facilitate the implementation of its obligations under the Convention, it may be
incumbent upon it to seek international cooperation in order to overcome these difficulties.
B. Subparagraphs (a)–(g)
30. Article 2 expresses the obligation of States parties to implement the Convention in a
general way. Its substantive requirements provide the framework for the implementation of
the specific obligations identified in article 2, subparagraphs (a)–(g), and all other
substantive articles of the Convention.
31. Subparagraphs (a), (f) and (g) establish the obligation of States parties to provide
legal protection and to abolish or amend discriminatory laws and regulations as part of the
policy of eliminating discrimination against women. States parties must ensure that,
through constitutional amendments or by other appropriate legislative means, the principle
of equality between women and men and of non-discrimination is enshrined in domestic
law with an overriding and enforceable status. They must also enact legislation that
prohibits discrimination in all fields of women’s lives under the Convention and throughout
their lifespan. States parties have an obligation to take steps to modify or abolish existing
laws, regulations, customs and practices which constitute discrimination against women.
Certain groups of women, including women deprived of their liberty, refugees, asylumseeking
and migrant women, stateless women, lesbian women, disabled women, women
victims of trafficking, widows and elderly women, are particularly vulnerable to
discrimination through civil and penal laws, regulations and customary law and practices.
By ratifying the Convention or acceding to it, States parties undertake to incorporate the
Convention into their domestic legal systems or to give it otherwise appropriate legal effect
within their domestic legal orders in order to secure the enforceability of its provisions at
the national level. The question of direct applicability of the provisions of the Convention at
the national level is a question of constitutional law and depends on the status of treaties
within the domestic legal order. The Committee takes the view, however, that the rights to
non-discrimination and equality in all fields of women’s lives throughout their lifespan, as
enshrined in the Convention, may receive enhanced protection in those States where the
Convention is automatically or through specific incorporation part of the domestic legal
order. The Committee urges those States parties in which the Convention does not form
part of the domestic legal order to consider incorporation of the Convention to render it part
of domestic law, for example through a general law on equality, in order to facilitate the
full realization of Convention rights as required by article 2.
32. Subparagraph (b) contains the obligation of States parties to ensure that legislation
prohibiting discrimination and promoting equality of women and men provides appropriate
remedies for women who are subjected to discrimination contrary to the Convention. This
obligation requires that States parties provide reparation to women whose rights under the
Convention have been violated. Without reparation the obligation to provide an appropriate
remedy is not discharged. Such remedies should include different forms of reparation, such
as monetary compensation, restitution, rehabilitation and reinstatement; measures of
satisfaction, such as public apologies, public memorials and guarantees of non-repetition;
changes in relevant laws and practices; and bringing to justice the perpetrators of violations
of human rights of women.
CEDAW/C/GC/28
8
33. According to subparagraph (c), States parties must ensure that courts are bound to
apply the principle of equality as embodied in the Convention and to interpret the law, to
the maximum extent possible, in line with the obligations of States parties under the
Convention. However, where it is not possible to do so, courts should draw any
inconsistency between national law, including national religious and customary laws, and
the State party’s obligations under the Convention to the attention of the appropriate
authorities, since domestic laws may never be used as justification for failures by States
parties to carry out their international obligations.
34. States parties must ensure that women can invoke the principle of equality in support
of complaints of acts of discrimination contrary to the Convention, committed by public
officials or by private actors. States parties must further ensure that women have recourse
to affordable, accessible and timely remedies, with legal aid and assistance as necessary, to
be settled in a fair hearing by a competent and independent court or tribunal, where
appropriate. Where discrimination against women also constitutes an abuse of other human
rights, such as the right to life and physical integrity in, for example, cases of domestic and
other forms of violence, States parties are obliged to initiate criminal proceedings, bring the
perpetrator(s) to trial and impose appropriate penal sanctions. States parties should
financially support independent associations and centres providing legal resources for
women in their work to educate women about their rights to equality and assist them in
pursuing remedies for discrimination.
35. Subparagraph (d) establishes an obligation of States parties to abstain from engaging
in any act or practice of direct or indirect discrimination against women. States parties must
ensure that State institutions, agents, laws and policies do not directly or explicitly
discriminate against women. They must also ensure that any laws, policies or actions that
have the effect or result of generating discrimination are abolished.
36. Subparagraph (e) establishes an obligation of States parties to eliminate
discrimination by any public or private actor. The types of measures that might be
considered appropriate in this respect are not limited to constitutional or legislative
measures. States parties should also adopt measures that ensure the practical realization of
the elimination of discrimination against women and women’s equality with men. This
includes measures that: ensure that women are able to make complaints about violations of
their rights under the Convention and have access to effective remedies; enable women to
be actively involved in the formulation and implementation of measures; ensure
Government accountability domestically; promote education and support for the goals of
the Convention throughout the education system and in the community; encourage the work
of human rights and women’s non-governmental organizations; establish the necessary
national human rights institutions or other machineries; and provide adequate
administrative and financial support to ensure that the measures adopted make a real
difference in women’s lives in practice. The obligations incumbent upon States parties that
require them to establish legal protection of the rights of women on an equal basis with
men, ensure through competent national tribunals and other public institutions the effective
protection of women against any act of discrimination and take all appropriate measures to
eliminate discrimination against women by any person, organization or enterprise also
extend to acts of national corporations operating extraterritorially.
CEDAW/C/GC/28
9
IV. Recommendations to States parties
A. Implementation
37. In order to satisfy the requirement of “appropriateness”, the means adopted by States
parties must address all aspects of their general obligations under the Convention to respect,
protect, promote and fulfil women’s right to non-discrimination and to the enjoyment of
equality with men. Thus the terms “appropriate means” and “appropriate measures” used in
article 2 and other articles of the Convention comprise measures ensuring that a State party:
(a) Abstains from performing, sponsoring or condoning any practice, policy or
measure that violates the Convention (respect);
(b) Takes steps to prevent, prohibit and punish violations of the Convention by
third parties, including in the home and in the community, and to provide reparation to the
victims of such violations (protect);
(c) Fosters wide knowledge about and support for its obligations under the
Convention (promote);
(d) Adopts temporary special measures that achieve sex non-discrimination and
gender equality in practice (fulfil).
38. States parties should also adopt other appropriate measures of implementation such
as:
(a) Promoting equality of women through the formulation and implementation of
national plans of action and other relevant policies and programmes in line with the Beijing
Declaration and Platform for Action, and allocating adequate human and financial
resources;
(b) Establishing codes of conduct for public officials to ensure respect for the
principles of equality and non-discrimination;
(c) Ensuring that reports of court decisions applying the provisions of the
Convention on the equality and non-discrimination principles are widely distributed;
(d) Undertaking specific education and training programmes about the principles
and provisions of the Convention directed to all Government agencies, public officials and,
in particular, the legal profession and the judiciary;
(e) Enlisting all media in public education programmes about the equality of
women and men, and ensuring in particular that women are aware of their right to equality
without discrimination, of the measures taken by the State party to implement the
Convention, and of the concluding observations by the Committee on the reports of the
State party;
(f) Developing and establishing valid indicators of the status of and progress in
the realization of human rights of women, and establishing and maintaining databases
disaggregated by sex and related to the specific provisions of the Convention.
B. Accountability
39. The accountability of the States parties to implement their obligations under article 2
is engaged through the acts or omissions of acts of all branches of Government. The
decentralization of power, through devolution and delegation of Government powers in
both unitary and federal States, does not in any way negate or reduce the direct
CEDAW/C/GC/28
10
responsibility of the State party’s national or federal Government to fulfil its obligations to
all women within its jurisdiction. In all circumstances, the State party that ratified or
acceded to the Convention remains responsible for ensuring full implementation throughout
the territories under its jurisdiction. In any process of devolution, States parties have to
make sure that the devolved authorities have the necessary financial, human and other
resources to effectively and fully implement the obligations of the State party under the
Convention. The Governments of States parties must retain powers to require such full
compliance with the Convention and must establish permanent coordination and monitoring
mechanisms to ensure that the Convention is respected and applied to all women within
their jurisdiction without discrimination. Furthermore, there must be safeguards to ensure
that decentralization or devolution does not lead to discrimination with regard to the
enjoyment of rights by women in different regions.
40. Effective implementation of the Convention requires that a State party be
accountable to its citizens and other members of its community at both the national and
international levels. In order for this accountability function to work effectively, appropriate
mechanisms and institutions must be put in place.
C. Reservations
41. The Committee considers article 2 to be the very essence of the obligations of States
parties under the Convention. The Committee therefore considers reservations to article 2
or to subparagraphs of article 2 to be, in principle, incompatible with the object and purpose
of the Convention and thus impermissible under article 28, paragraph 2. States parties that
have entered reservations to article 2 or to subparagraphs of article 2 should explain the
practical effect of those reservations on the implementation of the Convention and should
indicate the steps taken to keep the reservations under review, with the goal of withdrawing
them as soon as possible.
42. The fact that a State party has entered a reservation to article 2 or to subparagraphs
of article 2 does not remove the need for that State party to comply with its other
obligations under international law, including its obligations under other human rights
treaties that the State party has ratified or to which it has acceded and under customary
international human rights law relating to the elimination of discrimination against women.
Where there is a discrepancy between reservations to provisions of the Convention and
similar obligations under other international human rights treaties ratified by a State party
or to which it has acceded, it should review its reservations to the Convention with a view
to withdrawing them.
Annex 759
OHCHR, Situation of Human Rights in the Temporarily Occupied Autonomous Republic of
Crimea and the City of Sevastopol (Ukraine) (22 February 2014 to 12 September 2017)

Office of the United Nations
High Commissioner for Human Rights
Situation of human rights in the temporarily
occupied Autonomous Republic of Crimea and the
city of Sevastopol (Ukraine)
I
Contents
Paragraphs Page
I. Executive summary ................................................................................................. 1–19 1
II. Introduction ............................................................................................................. 20–29 3
III. Methodology ........................................................................................................... 30–35 5
IV. Application of international law .............................................................................. 36–45 5
1. International human rights law ................................................................... 37–41 6
2. International humanitarian law ................................................................... 42–45 6
V. Population data and movements .............................................................................. 46–54 7
VI. Civil and Political Rights ........................................................................................ 55–169 8
A. Right to nationality ......................................................................................... 55–72 8
1. Ukrainian citizens having Crimean residency registration who rejected Russian
Federation citizenship ..................................................................................... 58–63 8
2. Ukrainian citizens without Crimean residency registration who are excluded from
Russian Federation citizenship ....................................................................... 64–70 9
3. Ukrainian citizens who were made to renounce Ukrainian citizenship ...... 71–72 10
B. Administration of justice and fair trial rights .................................................. 73–79 10
C. Right to life ..................................................................................................... 80–83 11
D. Right to physical and mental integrity ............................................................ 84–92 12
E. Right to liberty and security ........................................................................... 93–104 13
1. Arbitrary arrests and detentions ............................................................... 94–98 13
2. Enforced disappearances .......................................................................... 99-104 14
F. Right to private and family life ....................................................................... 105–110 15
G. Rights of detainees .......................................................................................... 111–119 15
1. Violations of the rights of prisoners in Crimea ........................................... 112–115 16
2. Transfer of prisoners to the Russian Federation ......................................... 116–119 16
H. Forced enlistment .......................................................................................... 120–122 17
I. Freedom of movement .................................................................................... 123–135 17
1. Restrictions imposed by the Russian Federation ........................................ 125–128 17
2. Restrictions imposed by Ukraine ................................................................ 129–135 18
J. Freedom of thought, conscience and religion ................................................. 136–145 19
K. Freedom of peaceful assembly ....................................................................... 146–153 20
L. Freedom of opinion and expression ................................................................ 154–161 21
M. Freedom of association ................................................................................... 162–169 23
VII. Economic, Social and Cultural Rights .................................................................... 170–219 24
A. Property rights ................................................................................................ 170–181 24
1. Nationalization of property ......................................................................... 171–176 24
2. Housing, land and property of formerly deported people ........................... 177–181 24
II
B. Right to maintain one’s identity, culture and tradition ................................... 182–191 25
1. Limitations of the right of Ukrainians and Crimean Tatars to express their
culture and identity ......................................................................................... 183–186 25
2. The ban of the Mejlis .................................................................................. 187–193 26
C. Right to education in one’s native language ................................................... 194–201 27
D. Right to health ................................................................................................ 202–214 28
1. Medical staff deficit in public hospitals ...................................................... 204–208 28
2. Impaired treatment of drug users ................................................................ 209–214 29
E. Access to water and other essential services ................................................... 215–219 29
VIII. Conclusions and Recommendations ....................................................................... 220–226 30
IX. End notes ................................................................................................................ i
1
I. Executive Summary
1. On 14 March 2014, following a request of the Government of Ukraine addressed
to the United Nations Secretary-General to establish a human rights mission in Ukraine, the
Office of the United Nations High Commissioner for Human Rights (OHCHR) deployed a
Human Rights Monitoring Mission in Ukraine (HRMMU). Since then, HRMMU has been
collecting and analyzing information on the human rights situation throughout Ukraine,
including in the Autonomous Republic of Crimea and the city of Sevastopol1 on the basis of
United Nations General Assembly resolutions 68/262, reaffirming the territorial integrity of
Ukraine and 71/205 referring to the Crimean peninsula as Ukrainian territory temporarily
occupied2 by the Russian Federation. According to the Constitution of Ukraine, Crimea and
the city of Sevastopol are separate administrative units of the Crimean peninsula having
their own governing institutions.
2. The present report was developed based on the mandate of OHCHR and
HRMMU, but also following a request by General Assembly resolution 71/2053 on the
“Situation of human rights in the Autonomous Republic of Crimea and the city of
Sevastopol (Ukraine)” for a dedicated thematic report of OHCHR on the “situation of
human rights in the temporarily occupied Autonomous Republic of Crimea and the city of
Sevastopol”. The report covers the period from 22 February 2014 to 12 September 2017.
HRMMU has not been provided access to Crimea by Russian Federation authorities since
its former Head of Mission accompanied the former Assistant Secretary-General for Human
Rights, Ivan Šimonović, on 21-22 March 2014. As a result, it has been monitoring human
rights developments in Crimea from mainland Ukraine.
3. Pro-Russian groups in Crimea rejected the ousting by Parliament of former
President of Ukraine Viktor Yanukovych on 22 February 2014, criticizing it as an
unconstitutional change of power. One of these groups was the ‘people’s militia’, a local
paramilitary formation created on 23 February 2014, and commonly referred to as the
‘Crimean self-defence’.4 With the support of Russian Federation troops5, the Crimean selfdefence
blocked key infrastructure, airports and military installations and took control of
strategic facilities. It has been accused of committing numerous human rights abuses with
impunity since the end of February 2014.
4. The President of the Russian Federation Vladimir Putin stated that in a meeting
with heads of security agencies during the night of 22 and 23 February 2014 he took the
decision to “start working on the return of Crimea to the Russian Federation”.6
5. On 27 February 2014, uniformed men without insignia took control of the
Parliament of Crimea. On the same day, the Parliament of Crimea dismissed the
Government of Crimea. On 11 March 2014, the Parliaments of Crimea and Sevastopol
adopted a joint Declaration of Independence stating that Crimea and Sevastopol will unite
to form an independent state - the ”Republic of Crimea” - and seek integration into the
Russian Federation if Crimean residents choose to join the Russian Federation at a
referendum scheduled for 16 March.7 According to the pro-Russian authorities in Crimea, a
large majority of voters backed Crimea’s “incorporation” into the Russian Federation. The
referendum was declared invalid by the Government of Ukraine and the United Nations
General Assembly. The United Nations Secretary-General Ban-Ki Moon expressed “deep
concern and disappointment”, adding that the referendum would only exacerbate an
“already complex and tense situation”.8 Subsequently, the Russian Federation and the
“Republic of Crimea” signed on 18 March 2014 a “treaty of accession” effectively
annexing the peninsula into the Russian Federation.
6. One consequence of this development was the imposition of Russian Federation
citizenship on residents of Crimea. This has resulted in regressive effects on the enjoyment
of human rights, particularly for those who refused to automatically adopt Russian
2
Federation citizenship, were ineligible to obtain it, or were required to forfeit their
Ukrainian citizenship in order to remain employed.
7. Since the beginning of occupation, Ukrainian laws were substituted by Russian
Federation laws, in violation of the obligation under international humanitarian law to
respect the existing law of the occupied territory.9 Among other implications, this led to the
arbitrary implementation of Russian Federation criminal law provisions designed to fight
terrorism, extremism and separatism, which have restricted the right to liberty and security
of the person and the space for the enjoyment of fundamental freedoms.
8. Laws and judicial decisions deriving from the implementation of the legal
framework of the Russian Federation in Crimea have further undermined the exercise of
fundamental freedoms. Mandatory re-registration requirements were imposed on NGOs,
media outlets and religious communities in Crimea. Russian Federation authorities have
denied a number of them the right to re-register, generally on procedural grounds, raising
concerns about the use of legal norms and procedures to silence dissent or criticism.
9. Most affected by these restrictions were individuals opposed to the March 2014
referendum or criticizing Russian Federation control of Crimea, such as journalists,
bloggers, supporters of the Mejlis,10 pro-Ukrainian and Maidan activists, as well as persons
with no declared political affiliation but advocating strict compliance with the tenets of
Islam, who are often accused of belonging to extremist groups banned in the Russian
Federation, such as Hizb ut-Tahrir. The rights of these people to freedom of opinion and
expression, association, peaceful assembly, movement, thought, conscience and religion,
were obstructed through acts of intimidation, pressure, physical attacks, warnings as well as
harassment through judicial measures, including prohibitions, house searches, detentions
and sanctions.
10. Russian Federation justice system applied in Crimea often failed to uphold fair
trial rights and due process guarantees. Court decisions have confirmed actions, decisions
and requests of investigating or prosecuting bodies, seemingly without proper judicial
oversight. Courts frequently ignored credible claims of human rights violations occurring in
detention. Judges have applied Russian Federation criminal law provisions to a wide variety
of peaceful assemblies, speech and activities, and in some cases retroactively to events that
preceded the temporary occupation of Crimea or occurred outside of the peninsula in
mainland Ukraine.
11. Grave human rights violations, such as arbitrary arrests and detentions, enforced
disappearances, ill-treatment and torture, and at least one extra-judicial execution were
documented. For a three-week period following the overthrow of Ukrainian authorities in
Crimea, human rights abuses occurring on the peninsula were attributed to members of the
Crimean self-defence and various Cossack groups. Following Crimea’s temporary
occupation, on 18 March 2014, representatives of the Crimean Federal Security Service of
the Russian Federation (FSB) and police were more frequently mentioned as perpetrators.
12. While those human rights violations and abuses have affected Crimean residents
of diverse ethnic backgrounds, Crimean Tatars were particularly targeted especially those
with links to the Mejlis, which boycotted the March 2014 referendum and initiated public
protests in favour of Crimea remaining a part of Ukraine. Intrusive law enforcement raids
of private properties have also disproportionately affected the Crimean Tatars and
interfered with their right to privacy under the justification of fighting extremism.
Furthermore, the ban of the Mejlis, imposed in April 2016 by the Supreme Court of
Crimea, has infringed on the civil, political and cultural rights of Crimean Tatars.
13. The Russian Federation authorities in Crimea have failed to effectively
investigate most allegations of human rights violations committed by the security forces or
armed groups acting under the direction or control of the State. Failure to prosecute these
acts and ensure accountability has denied victims proper remedy and strengthened
impunity, potentially encouraging the continued perpetration of human rights violations.
3
14. Since the beginning of the temporary occupation, all penitentiary institutions in
Crimea have been integrated into the penitentiary system of the Russian Federation, leading
to numerous transfers of detainees from Crimea to penal colonies in the Russian Federation,
contrary to provisions of international humanitarian law.11
15. Restrictions affecting freedom of movement to and from Crimea have been
imposed by the Russian Federation and Ukraine on the grounds of security or pursuant to
immigration rules. They include five-year exiles, deportations, prohibitions on entry of
individuals and public transportation, non-recognition of documents, and restrictive
regulations applicable to travel of children and transportation of personal belongings.
16. Large scale expropriation of public and private property has been conducted
without compensation or regard for international humanitarian law provisions protecting
property from seizures or destruction. Crimean Tatars who returned from deportation in the
1990s and built their houses on land plots without obtaining construction permits remain at
risk of seeing their security of tenure contested and being forcibly evicted.
17. The space for public manifestation of Ukrainian culture and identity has shrunk
significantly. Groups manifesting their attachment to national symbols, dates or historic
figures have been issued warnings or sanctioned by courts for violating public order or
conducting unauthorized rallies. Education in the Ukrainian language has almost
disappeared from Crimea, jeopardizing one of the pillars of an individual’s identity and
cultural affiliation.
18. The availability of health services in free-of-charge State medical institutions has
been impaired since March 2014 due to the numerous departures of doctors and other
medical staff to more lucrative private sector institutions in Crimea. This has resulted in
delayed treatment of the most economically disadvantaged, jeopardizing their right to life
and health. Retrogressive measures stemming from the implementation of Russian
Federation legislation have affected people suffering from drug dependence.
19. The right of the Crimean population to an adequate standard of living has been
affected by measures taken by Ukrainian authorities or implemented on mainland Ukraine,
including the interruption of water and energy supplies to the peninsula. Under international
humanitarian law, the Russian Federation as the occupying power is obliged to ensure to
the fullest extent of the means available to it sufficient hygiene and public health standards,
as well as the provision of food and medical care to the population. At the same time, this
does not exonerate Ukraine from its obligations under the International Covenant on
Economic, Social and Cultural Rights not to interfere with the enjoyment of the rights it
enshrines, and from respecting the requirement under international humanitarian law to
ensure that the basic needs of the population continue to be met under conditions of
occupation.
II. Introduction
20. The political events that marked the Maidan protests in Kyiv, and culminated in
the departure, on 21 February 2014, of then President of Ukraine Viktor Yanukovych and
the establishment of an interim Government of Ukraine on 23 February, affected Crimea.
The Crimean peninsula had also been the theatre of pro- and larger anti-Maidan rallies
since December 2013.12
21. The President of the Russian Federation Vladimir Putin stated that in a meeting
with heads of security agencies during the night of 22 and 23 February 2014 he took the
decision to “start working on the return of Crimea to the Russian Federation”.13
4
22. On 23 February 2014, demonstrations in Sevastopol led to the resignation of the
Kyiv-appointed authorities and the installation by the local parliament of a pro-Russian
“People’s Mayor” on 24 February.14
23. In Simferopol, the capital of the Autonomous Republic of Crimea, supporters of
Ukrainian unity, mainly Crimean Tatars, clashed on 26 February with pro-Russian residents
in front of the parliament. A stampede left two people dead and some 70 injured. On the
following night, armed groups without insignia took over the buildings of the local
government and parliament. On 27 February, members of the Parliament of Crimea, in the
presence of gunmen, dismissed the local Government and elected Sergey Aksenov as the
Head of Crimea.15
24. On 6 March 2014, the Parliament of Crimea adopted a resolution calling for a
referendum16 on the status of the peninsula, to be held on 16 March 2014, basing the
decision on the “absence of legitimate State organs in Ukraine”.17 In an Opinion18
concerning the compatibility of this resolution with constitutional principles, the European
Commission for Democracy through Law (Venice Commission) of the Council of Europe
noted that the referendum violated the Constitution of Ukraine, and asserted that
circumstances in Crimea did not allow for a referendum to be held in line with European
democratic standards.19 On 17 March 2014, United Nations Secretary-General Ban-Ki
Moon regretted that the referendum would only exacerbate an “already complex and tense
situation”20. Furthermore, during his mission to Crimea on 21 and 22 March 2014, former
UN Assistant Secretary-General for Human Rights Ivan Šimonović received information on
alleged cases of non-Ukrainian citizens participating in the referendum, as well as
individuals voting numerous times in different locations.21
25. According to the pro-Russian authorities in Crimea, an overwhelming majority of
the Crimean population voted in favour of joining the Russian Federation. Opponents
boycotted the poll, considering it as unlawful.22 The authorities of Ukraine declared these
developments unconstitutional and terminated the powers of Crimean institutions.23
26. On 18 March 2014 a “Treaty on the Accession of the Republic of Crimea to the
Russian Federation” (“Treaty on Accession”) was signed in Moscow, and on 21 March
2014, the Parliament of the Russian Federation ratified a Constitutional Law “On the
Accession of the Republic of Crimea to the Russian Federation and the Creation of the New
Constituent Entities of the Republic of Crimea and the City of Federal Importance
Sevastopol within the Russian Federation”.
27. On 15 April 2014, the Parliament of Ukraine passed a law designed to regulate
legal aspects related to the temporary occupation of Crimea.24 It defines principles applying
to legal and property rights, economic activity, social rights and benefits, freedom of
movement, and compensation for damages incurred from the temporary occupation.
28. The General Assembly of the United Nations adopted two resolutions on Crimea.
Resolution 68/26225 on the “Territorial integrity of Ukraine” of 27 March 2014 states that
the March 2014 referendum has “no validity” and cannot form the basis for any alteration
of the status of Crimea. Resolution 71/205 on the “Situation of human rights in the
Autonomous Republic of Crimea and the city of Sevastopol (Ukraine)”, adopted on 19
December 201626, refers to Crimea as being under the “temporary occupation” of the
Russian Federation. It calls on the latter to abide by the Geneva Conventions. It also urges
the Russian Federation to ensure proper and unimpeded access of international human
rights monitoring missions and human rights non-governmental organizations (NGOs) to
the peninsula, and requests the United Nations Secretary-General to seek ways and means
to ensure safe and unfettered access to Crimea by established regional and international
human rights monitoring mechanisms. In addition, it requests the Office of the United
Nations High Commissioner for Human Rights (OHCHR) to prepare a dedicated thematic
report on the human rights situation in Crimea.
5
29. The present report was developed pursuant to General Assembly Resolution
71/205, and covers the period between 22 February 2014 and 12 September 2017. Since the
adoption of this resolution, OHCHR has been analyzing incidents occurring in Crimea
based on an international humanitarian law framework, as well as against international
human rights standards.
III. Methodology
30. HRMMU has a mandate inter alia to monitor and publicly report on the human
rights situation in Ukraine through teams based in various locations, including through a
presence in Crimea’s capital, Simferopol.27
31. Former Assistant Secretary-General for Human Rights Ivan Šimonović was the
last United Nations official to visit the Crimean peninsula, on 21 and 22 March 2014.28
32. On 18 September 2014, a letter addressed by HRMMU to the Head of Crimea
requested the opportunity to establish a sub-office in Simferopol, in line with its mandate
and General Assembly resolution 68/262. The response, received on 8 October 2014, stated
that HRMMU had been deployed on the territory of Ukraine upon the invitation of the
Government of Ukraine; that Crimea was part of the Russian Federation; and that questions
of international relations were not within the competence of Crimean institutions.
33. On 20 April 2017, following consultations with the Government of Ukraine,
OHCHR informed the Government of the Russian Federation of its intention to send a
mission of HRMMU to Crimea in order to prepare the report on the human rights situation
in Crimea requested by General Assembly resolution 71/205. While no formal response
was received, OHCHR was notified informally that it would not be granted access to
Crimea due to its mandate covering Ukraine and that any OHCHR mission would need to
be agreed upon directly with the Russian Federation authorities. A second notification
mentioning an OHCHR mission to Crimea, addressed to the Russian Federation on 13 June
2017, remained unanswered at the closing date of the present report.
34. In response, the Government of Ukraine, in its Notes Verbales of 30 March 2017,
19 July 2017, 28 July 2017 and 7 September 2017, reaffirmed its position on the need to
ensure safe and unfettered access to the Autonomous Republic of Crimea and the city of
Sevastopol by established regional and international human rights monitoring mechanisms
to enable them to carry out their mandate, expressed its readiness to provide HRMMU with
full freedom of movement throughout Ukraine, and confirmed its strong commitment to
properly implement resolution 71/205 of the United Nations General Assembly.
35. Given the lack of access to Crimea, HRMMU has monitored the human rights
situation in the peninsula from its presence in mainland Ukraine. HRMMU systematically
collects and analyzes information gathered through direct interviews and fact-finding
missions, including at the Administrative Boundary Line (ABL) between mainland Ukraine
and Crimea. This report only describes allegations of human rights violations and abuses
and violations of international humanitarian law that OHCHR could verify and corroborate
in accordance with its methodology. OHCHR is committed to the protection of its sources
and systematically assesses the potential risks of harm and retaliation against them.29
IV. Application of International Law
36. International human rights and humanitarian law are complementary bodies of
international law. In the case of occupation, humanitarian law and human rights law apply
concurrently and place protection obligations both on the occupying power and the State
whose territory is under occupation.
6
1. International Human Rights Law
37. Human rights are guaranteed by international treaties and agreements, as well as
customary law, which apply at all times, regardless of peace or war.
38. Under international law, the Russian Federation must respect its obligations under
international human rights law in Crimea from the moment it acquired “effective control”
over the territory.30
39. Ukraine considers that the occupation of Crimea started on 20 February 201431
and denies having human rights obligations in relation to this territory from the moment it
lost effective control over the peninsula. On 14 May 2015, the Parliament of Ukraine
adopted a Declaration on Derogation32 stating that the Russian Federation “shall bear full
responsibility for observance of human rights and performance of the respective
international obligations at the annexed and temporarily occupied territory.”
40. On 19 April 2017, the Government of Ukraine established an Intergovernmental
Commission on derogation in order to review periodically the territorial application of the
derogation. Its mandate includes the review of the necessity and proportionality of
derogation measures and making proposals to the Government on the continuation and
scope of the derogation.
41. OHCHR notes that States are allowed, in exceptional circumstances, namely in
times of public emergency threatening the life of the nation, to adjust their obligations
temporally under a treaty. However, under the International Covenant on Civil and Political
Rights, States have a continuing obligation to ensure respect for the rights recognized in the
Covenant in relation to the population of a territory controlled by de facto authorities or
armed groups within the limits of their effective power.33 Similarly, under the case law of
the European Court of Human Rights, a State that has lost effective control over a part of its
territory is nevertheless obliged under Article 1 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms to use all the legal and diplomatic
means available to continue to guarantee the enjoyment of the rights and freedoms defined
in the Convention to those living there, as the region is recognized under public
international law as part of its territory.34
2. International Humanitarian Law
42. Both the Russian Federation and Ukraine are parties to the 1907 Hague
Regulations, the Fourth Geneva Convention of 1949, and the 1977 Additional Protocol I to
the 1949 Geneva Conventions. This body of international law provides the primary basis
for rules governing occupation. The legal regime of an occupied territory is also regulated
by international customary law.
43. An occupying power does not acquire sovereignty over the occupied territory.
The occupying power must respect the laws in force in the occupied territory, unless they
constitute a threat to its security or an obstacle to the application of the Fourth Geneva
Convention.35
44. Under international law, States are responsible for violations of international
humanitarian law attributable to them, including: violations committed by their organs,
including their armed forces; violations committed by persons or entities they have
empowered to exercise elements of governmental authority; violations committed by
persons or groups acting in fact on their instructions, or under their direction or control; and
violations committed by private persons or groups which they acknowledge and adopt as
their own.36
45. In 2016, the Office of the Prosecutor of the International Criminal Court found
Crimea to be under the occupation of the Russian Federation and stated it will apply an
7
international armed conflict legal framework to the analysis of facts and alleged crimes
perpetrated there.37
V. Population data and movements
46. According to the last census conducted in Ukraine, in 2001, 125 nationalities
lived on the Crimean peninsula, which had a population of 2,401,209 (2,024,056 in Crimea
and 377,153 in Sevastopol).38 The census enumerated the population by ethnicity, finding
the largest national groups in Crimea and Sevastopol to be Russians, numbering 1,450,394
(60.40 per cent); Ukrainians 576,647 (24.12 per cent); and Crimean Tatars 245,291 (12.26
per cent).
47. There were also 35,157 Belarussians; 13,602 Tatars; 10,088 Armenians; 5,531
Jews; 4,562 Moldovans; 4,459 Poles; 4,377 Azeri; 3,087 Uzbeks; 3,036 Greeks; 3,027
Koreans; 2,790 Germans; 2,679 Chuvash; 2,594 Mordovians; 2,282 Bulgarians 2,137
Georgians; 1,905 Roma; and 1,192 Maris. In addition, 17,298 persons did not declare
themselves or belonged to ethnic groups numbering less than 1,000 individuals.
48. In September 2014, the Russian Federation conducted a census on the peninsula,
which was not recognized by the Government of Ukraine.39 According to its results, the
population of Crimea and Sevastopol had decreased by 4.8 per cent since 2001, down to
2,284,769, albeit with differences between the two administrative units: in Crimea, the
population decreased by 6.5 per cent, to 1,891,465, while that of Sevastopol grew by 4.1
per cent, to 393,304.
49. According to that same census, in the entire peninsula, the number of persons of
Russian nationality increased to 1,492,078 (65.31 per cent), the Ukrainians dropped to
344,515 (15.08 per cent) and the Crimean Tatars decreased to 232,340 (10.17 per cent). The
other communities diminished, except for the Tatars - a group culturally affiliated with the
Volga Tatars and the Crimean Tatars - whose numbers rose from 13,602 to 44,996.
50. Since the beginning of the occupation, the displacement of residents of Crimea -
mostly ethnic Ukrainians and Crimean Tatars - had multiple causes, notably the refusal to
live under Russian Federation jurisdiction, fear of persecution on ethnic or religious
grounds, threats or reported attacks, avoiding military conscription in the Russian
Federation army and enrolling in Ukrainian education institutions.
51. In April 2017, the State Emergency Service of Ukraine estimated the number of
internally displaced persons (IDPs) from Crimea living in mainland Ukraine at 22,822.40
Ukrainian NGOs estimate that between 50,000 and 60,000 former Crimean residents could
be displaced in mainland Ukraine.41
52. The demographic structure of Crimea continues to change, mainly as a result of a
continuous influx of Russian Federation citizens into Crimea, which started after the 2014
referendum. Most of them are pensioners, public servants and servicemen with their
families. Around 13,200 IDPs fleeing the conflict in eastern Ukraine had taken refuge in
Crimea at the end of 2014.42
53. According to the State Statistics Service of the Russian Federation, as of 1
January 2017, the population of the Crimean peninsula had increased by 56,152 since the
September 2014 census, to 2,340,921.43 During this period, the population of the city of
Sevastopol, where the Black Sea Fleet is based, rose from 393,304 to 428,753, which
constitutes an eight per cent increase.
54. OHCHR recalls that the 1949 Geneva Convention relative to the Protection on
Civilian Persons in Time of War provides in Article 49 that “The Occupying Power shall
not deport or transfer parts of its own civilian population into the territory it occupies”.
8
VI. Civil and Political Rights
A. Right to nationality
55. The adoption of the Treaty on Accession on 18 March 2014 had an immediate
consequence for the status of residents of Crimea and rights attached to it: all Ukrainian
citizens and stateless persons who were permanently residing on the peninsula, as
evidenced by a residency registration stamp in the passport, were automatically recognized
as citizens of the Russian Federation.44 An exception was made for persons who, within one
month of the entry into force of the treaty (i.e. by 18 April 2014), rejected Russian
Federation citizenship in writing.
56. The automatic citizenship rule led to the emergence of three vulnerable groups:
those who rejected in writing Russian Federation citizenship; those who, for lack of a
residency registration in Crimea, did not meet the legal criteria to become Russian
Federation citizens; and those who had to renounce their Ukrainian citizenship to keep their
employment. As of May 2015, the High Commissioner for Human Rights of the Russian
Federation (Ombudsperson) estimated that around 100,000 persons living in Crimea (about
4 per cent of the population) did not have Russian Federation citizenship.45
57. Imposing citizenship on the inhabitants of an occupied territory can be equated to
compelling them to swear allegiance to a power they may consider as hostile, which is
forbidden under the Fourth Geneva Convention.46 In addition to being in violation of
international humanitarian law, the automatic citizenship rule raises a number of important
concerns under international human rights law.
1. Ukrainian citizens having Crimean residency registration who rejected Russian
Federation citizenship
58. The procedure for rejecting Russian Federation citizenship, which had to be
completed by 18 April 2014, was marked by certain constraints: instructions from the
Russian Federal Migration Service (FMS) on the refusal procedure were only made
available on 1 April; information about FMS centres was not available until 4 April; only
two FMS centres were functioning on 9 April 2014; and some requirements in the
procedure evolved over time, such as the demand that both parents make the application on
behalf of their child.47
59. After 18 April 2014, FMS reported that 3,427 permanent residents of Crimea had
applied to opt out of automatically obtaining Russian Federation citizenship.48
60. Renouncing Russian Federation citizenship remains legally possible on the basis
of the 2002 law On Citizenship, except for people who were indicted, sentenced, have
outstanding obligations towards the Russian Federation, or have no other citizenship or
guarantee for the acquisition thereof.49
61. Residents of Crimea who opted out of Russian Federation citizenship became
foreigners. They could obtain residency permits through a simplified procedure, giving
them certain rights enjoyed by Russian Federation citizens, such as the right to pension,
free health insurance, social allowances, and the right to exercise professions for which
Russian Federation citizenship is not a mandatory requirement.50
62. However, overall, persons holding a residency permit and no Russian Federation
citizenship do not enjoy equality before the law and are deprived of important rights. They
cannot own agricultural land,51 vote and be elected, register a religious community, apply to
hold a public meeting, hold positions in the public administration and re-register their
private vehicle on the peninsula.52
9
63. OHCHR documented some cases of Crimean residents who had rejected Russian
Federation citizenship and faced discrimination. For instance, a man from Simferopol was
subjected to regular psychological harassment by his employer for having renounced
Russian Federation citizenship. In 2016, after two years of being pushed by his employer to
take back his formal rejection of Russian Federation citizenship, he was dismissed after
being told that his “anti-Russian” position disqualified him from continued employment.53
Two of his colleagues were also dismissed, including one who rejected Russian Federation
citizenship, and another who took up Russian Federation citizenship but publicly expressed
pro-Ukrainian views.
2. Ukrainian citizens without Crimean residency registration who are excluded from
Russian Federation citizenship
64. Ukrainian citizens living in Crimea whose passport stamps indicated they were
registered in mainland Ukraine could not become citizens of the Russian Federation. They
assumed the status of a foreigner. As such, they could no longer legally remain in Crimea
for more than 90 days within a period of 180 days from the moment they entered the
peninsula, according to Russian Federation legislation applicable to foreigners.
65. Non-compliance with immigration regulations imposed by the Russian Federation
can lead to court-ordered deportations. For instance, in 2016, a court in Sevastopol ordered
a Ukrainian citizen who had overstayed to be deported to mainland Ukraine although he
owned property in this city54; another court deported a Ukrainian citizen who had a wife
and children in Crimea.55
66. Under international humanitarian law, deportation or transfer of protected persons
from occupied territory to the territory of the occupying power or to that of any other
country, occupied or not, is prohibited regardless of the motive.56
67. Rules regulating stay were not consistently applied, sometimes favoring
individuals who supported Crimea’s accession to the Russian Federation. For example, the
Supreme Court of Crimea ruled not to deport a Ukrainian citizen who described himself as
“an active participant of the Russian Spring in Sevastopol” and claimed his deportation to
Ukraine would threaten his life and well-being.57 The Court accepted the argument that he
had a family in Crimea and that his deportation would interfere with his private and family
life.
68. Employment of Ukrainian citizens lacking Crimean residency registration is
prohibited. A quota system under Russian Federation law allows up to 5,000 foreigners to
reside and work in Crimea but this only applies to foreigners with non-Ukrainian passports
who were living in Crimea before March 2014 and held Ukrainian residence permits.58
69. In 2016, police raids against private businesses were conducted, resulting in the
opening of administrative proceedings against owners of catering institutions59 and private
entrepreneurs60 who were illegally employing Ukrainian citizens. People illegally employed
risk deportation and their employers face administrative sanctions of up to 800,000 RUB
(nearly USD 13,200) or closure of their business for up to 90 days.
70. Ukrainian citizens without residency registration in Crimea are excluded from
free health insurance and access to public hospitals. In one case documented by OHCHR, a
Ukrainian woman who had lived in Crimea for 10 years, but was registered in Kharkiv,
died in 2015 after a public hospital in Crimea refused to treat her due to the fact that she did
not have health insurance.61 According to Russian Federation legislation, she was a
foreigner and, as such, she did not have a Russian Federation passport affording the right to
free health insurance and access to public hospitals. The refusal to provide life-saving
medical treatment - including due to origin or status, such as citizenship - constitutes a
grave violation of the right to the highest attainable level of physical and mental health, and
10
a violation of the obligation, under international humanitarian law, to ensure that the health
system in place in an occupied territory continues to function adequately.
3. Ukrainian citizens who were made to renounce Ukrainian citizenship
71. Russian Federation law does not require Ukrainian citizens who apply for Russian
Federation citizenship to surrender their Ukrainian passports or relinquish their Ukrainian
citizenship. However, residents of Crimea who were employed in government and
municipal jobs before the referendum were obliged by law to give up their Ukrainian
citizenship no later than 18 April 2014, in addition to obtaining a passport of the Russian
Federation if they wanted to retain their employment.62 A law adopted by the Parliament of
Crimea further required them to possess “a copy of the document confirming denial of
existing citizenship of another State and the surrender of a passport of another State.”63
72. Before the Russian Federation occupied Crimea, 20,384 civil servants were
employed on the peninsula.64 According to the head of the FMS department for citizenship,
asylum and readmission in Crimea, as of 21 May 2015, 19,000 Crimean residents had
applied to renounce Ukrainian citizenship.65 While no information is provided about their
identity or profession, it is likely that civil servants constitute the bulk of this group. This is
contrary to the Fourth Geneva Convention, which prohibits an occupying power from
altering the status of public officials in the territories it occupies.66
B. Administration of justice and fair trial rights
73. The Treaty on Accession provided for a transition period until 1 January 2015 to
fully apply the legal framework of the Russian Federation in Crimea.67 In practice, the
gradual substitution of the Ukrainian legal system by that of the Russian Federation implied
that both systems coexisted, regulating different spheres and consequently causing
confusion for legal practitioners as well as legal uncertainty for rights-holders.68
74. OHCHR recalls that in accordance with international humanitarian law, the penal
laws in place in the occupied territory must remain in force and be applied by courts, with
the exception of norms that constitute a threat to the security of the occupying power, or an
obstacle to the application of relevant international humanitarian law provisions.69
75. As documented by OHCHR, the judicial and law enforcement authorities of the
Russian Federation in Crimea frequently violated the presumption of innocence; the right to
information without delay of the nature and cause of charge; the right to defend oneself or
be assisted by a lawyer of one’s own choice; the right to adequate time to prepare defence;
the right to trial without undue delay; the right to appeal or review; the right to a hearing by
an independent and impartial tribunal; and the right not to be compelled to testify against
oneself or confess guilt.
76. OHCHR documented cases demonstrating that allegations of torture and illtreatment
in post-referendum Crimea committed by State agents of the Russian Federation
during pre-trial investigations were often disregarded by courts. For instance, in March
2015, a court rejected the request of a defence lawyer to exclude evidence against his client
reportedly obtained under duress. The judge stated that torture allegations should be
examined together with other elements in order not to compromise the establishment of
facts and responsibility.70
77. Suspects were charged and some convicted in relation to acts which occurred
before the application of Russian Federation legislation in Crimea, in disregard of the
principle of non-retroactive application of criminal law enshrined in international human
rights and humanitarian law treaties.71 On 11 September 2017, a court in Crimea sentenced
a deputy chair of the Mejlis, Akhtem Chyigoz, to eight years of imprisonment on the basis
of Russian Federation legislation, after it found the accused guilty of organizing mass
protests, which were held on 26 February 2014 when the legal framework of Ukraine still
11
applied in Crimea. In addition, two individuals received prison sentences in 2015 and 2016
for allegedly injuring ’Berkut’ police officers during the Maidan protests in Kyiv, on 18
February 2014.72 Their convictions were based on Russian Federation legislation introduced
in Crimea after 18 March 2014.
78. Some judgments were passed in apparent disregard of the right to a hearing by a
competent, independent and impartial tribunal. In 2017, 10 Crimean Tatars arrested for
filming a police raid of the home of another Crimean Tatar man were judged in one day and
sentenced to five days of administrative arrest. No representatives of the prosecution were
present; two men were convicted in the absence of lawyers; and in at least one proceeding,
the judge ignored the public retraction of a witness statement supporting the claim that the
individuals were breaching public order and freedom of movement.73
79. Instances of intimidation of defence lawyers representing clients opposed to the
presence of the Russian Federation in Crimea have also been reported. On 25 January 2017,
a lawyer from the Russian Federation defending one of the deputy chairmen of the Mejlis
was forcefully brought to the FSB office in Simferopol for interrogation and asked to
disclose details of the case concerning his client. Despite being pressed to cooperate, he
refused, invoking his duty to uphold the attorney-client privilege, and was released after
two and a half hours. On 14 February 2017, an appellate court upheld a first instance
decision to enable the FSB investigator to interrogate him as a witness in a criminal case
against one of his clients.74 OHCHR reiterates that international administration of justice
standards explicitly protect the freedom of exercise of the profession of lawyer.75
C. Right to life
80. In February, March and April 2014, four persons were killed and two others died,
as described in this chapter, during incidents related to Crimea’s unrecognized accession to
the Russian Federation. While other deaths, including murders, have occurred in Crimea in
the three and a half years since the occupation began, OHCHR does not have credible
circumstantial evidence that they could be attributed to State agents of the Russian
Federation in Crimea.
81. In March 2014, a pro-Ukrainian Crimean Tatar activist, Mr. Reshat Ametov, was
abducted, tortured and summarily executed by people believed to be members of the
Crimean self-defence. He disappeared on 3 March after staging a one-man picket in front of
Crimea’s government building in Simferopol. Video footage shows him being led away by
three men in military-style jackets. On 15 March, his body was found in a village of the
Bilohirsk district, bearing signs of torture.76 The Crimean police opened a criminal
investigation. As of December 2014, more than 270 witnesses had been interrogated and
over 50 forensic analyses and 50 examinations had been carried out.77 OHCHR has serious
doubts about the effectiveness of these investigations. The suspects, members of the
Crimean self-defence, who were filmed abducting the victim, were only interrogated as
witnesses and later released. In 2015, the investigation was suspended due to the fact that
the individual suspected by the police to be the perpetrator was allegedly no longer in
Crimea.78 It resumed in 2016 but has since been conducted intermittently.79
82. Three killings occurred during armed incidents. On 18 March 2014, one
Ukrainian serviceman and one Crimean self-defence volunteer were killed during a
shooting incident in Simferopol.80 OHCHR does not have information about the
investigation conducted in relation to this case. On 6 April 2014, a Ukrainian Army naval
officer was killed by a Russian Federation serviceman in a dormitory in Novofedorivka.81 A
Russian Federation military tribunal in Crimea sentenced the perpetrator to two years of
imprisonment on 13 March 2015. The accused was convicted of homicide committed in
excess of the requirements of justifiable defence. In addition, the victim’s widow sued and
obtained from the Ministry of Defence of the Russian Federation 500,000 RUB (about USD
8,000) in compensation for the harm incurred.82
12
83. The impartiality of investigations carried out by the Crimean police is particularly
questionable in relation to the violence that occurred on 26 February 2014. On that date,
pro-Ukrainian and pro-Russian groups clashed in front of the parliament of Crimea,
resulting in the death of two pro-Russian demonstrators.83 The criminal proceedings
identified pro-Ukrainian supporters belonging to the Crimean Tatar community as being the
only suspects although the skirmishes involved representatives of pro-Russian groups as
well.84
D. Right to physical and mental integrity
84. The right to physical and mental integrity encompasses freedom from torture and
other inhuman treatment. The Russian Federation and Ukraine have both ratified
international conventions obliging them to prevent and redress torture, cruel and/or
inhuman or degrading treatment.85
85. Multiple and grave violations of the right to physical and mental integrity have
been committed by state agents of the Russian Federation in Crimea since 2014. The
absence of investigations suggests that their perpetrators have benefited from and continue
to enjoy impunity.
86. Victims and witnesses have accused the Crimean self-defence of violence against
pro-Ukrainian activists, mainly in 2014. Its members have reportedly been implicated in
attacks, abductions, enforced disappearances, one summary execution, arbitrary detention,
and torture and ill-treatment of individuals opposed to the March 2014 referendum, as well
as of Maidan supporters, members and affiliates of the Mejlis, journalists and Ukrainian
servicemen.86 On 11 June 2014, the Parliament of Crimea legalized the Crimean selfdefence
by turning it into a civil group with powers to assist the police.87
87. The Russian Federation has indicated that several criminal cases were opened in
which the suspects were members of the Crimean self-defence. These cases are connected
with a robbery, in April 2014, and incidents in which vehicles were taken illegally with the
threat of the use of firearms.88
88. Two legislative initiatives registered in the Crimean and Russian Federation
Parliaments in August 2014 proposing immunity from prosecution for actions committed
by the self-defence forces have not been pursued.
89. In view of the multiplicity of testimonies mentioning illicit acts committed by
members of the self-defence with apparent impunity, OHCHR has serious doubts that the
Russian Federation authorities have complied with their obligations to ensure
accountability through effective and impartial investigations. The duty to investigate and
prosecute is made more compelling by the fact that the existence of the self-defence group
has been legalized, and its members have been recognized as agents of the State.89
90. FSB and the Crimean police have also been accused of violating the right to
physical and mental integrity of persons holding dissenting views, in particular Crimean
Tatars and ethnic Ukrainians. Such violations have occurred prior to and during detention,
in penitentiary institutions and in places where people were illegally kept incommunicado.
91. In two cases documented by OHCHR in 2016, pro-Ukrainian supporters were
compelled by FSB officers to confess to terrorism-related crimes through torture with
elements of sexual violence. The victims were kept incommunicado, tied, blindfolded,
beaten up, subjected to forced nudity, electrocuted through electric wires placed on their
genitals, and threatened with rape with a soldering iron and wooden stick.90
92. Forced internment in a psychiatric institution has been used as a form of
harassment against political opponents, which may amount to torture or ill-treatment.
Procedurally, such placements are decided by a judge upon the request of the police or FSB
investigator. A deputy Chairman of the Mejlis, Mr. Ilmi Umerov, underwent an imposed
13
court-ordered ‘psychiatric assessment’ for three weeks91 after being charged in May 2016
with calls to violate the territorial integrity of the Russian Federation. In November and
December 2016 five Crimean Tatar men suspected of being members of Hizb ut-Tahrir, an
organization banned for terrorism in the Russian Federation, were also placed in a
psychiatric hospital for weeks. During the psychiatric assessment, doctors reportedly asked
them unrelated questions, including on their religious practice and political views.92
E. Right to liberty and security
93. The right to liberty and security of person exists to ensure that subjects of a State
can pursue their daily activities without harassment or apprehension of being restrained
without any lawful basis. It includes two key components: freedom from arbitrary arrest or
detention; and protection from enforced disappearances. Arbitrary deprivation of liberty
may amount to a violation of the requirement of common Article 3 of the Geneva
Conventions and Additional Protocol I that all civilians and persons hors de combat should
be treated humanely.
1. Arbitrary arrests and detentions
94. The Fourth Geneva Convention specifies that in an occupied territory, a civilian
may only be interned or placed in assigned residence for “imperative reasons of security”
(Article 78). Arbitrary detention is prohibited under customary international humanitarian
law93 and international human rights law protects individuals from arbitrary arrest and
detention by the State, as well as by private individuals or entities empowered or authorized
by the State to exercise powers of arrest or detention.94 According to the United Nations
Human Rights Committee, “arbitrariness is not to be equated with ‘against the law’, but
must be interpreted more broadly to include elements of inappropriateness, injustice, lack
of predictability and due process of law.”95 Any deprivation of liberty must therefore be
lawful, reasonable and necessary.
95. OHCHR documented multiple allegations of violations of the right to liberty as a
result of acts attributed to agents of the Russian Federation authorities in Crimea. While
most of them occurred in 2014, fresh claims of unlawful deprivation of liberty are regularly
recorded. Arbitrary arrests and detentions take different forms and appear to serve various
purposes, from instilling fear, to stifling opposition, and inflicting punishment.
96. In many cases, victims are neither charged nor tried, but detained by the police,
FSB or self-defence groups as a form of extra-judicial punishment or harassment. Detention
under such circumstances would usually last from several hours to several days, exceeding
the legal limits for temporary detention and ignoring procedural requirements, such as the
establishment of a protocol of arrest. Many of the victims were journalists, land or business
owners, and people arrested during so-called ‘prophylactic’ police operations at markets,
mosques, cafés, restaurants or places of entertainment. OHCHR noted a prevalence of
members of the Crimean Tatar community among people apprehended during police raids.
They were typically taken to the police centre to fight extremism (“Center E”),
photographed, fingerprinted and made to provide DNA samples before being released,
usually without any charges being pressed.96
97. In other cases, people deprived of liberty were charged with offences of
extremism, terrorism, territorial integrity violations, detained and tried. This form of
treatment has been commonly applied against political opponents, such as Crimean Tatar
figures linked to the Mejlis, practising Muslims accused of belonging to banned Islamic
groups, and journalists or individuals posting messages critical of the Russian Federation
authorities or expressing dissent on social media. Prosecutions often seemed to be tainted
by bias and a political agenda.97 The initial arrests were usually carried out by FSB and
followed by searches of victims’ houses and harassment of their families by law
14
enforcement. Victims were charged and subjected to lengthy pre-trial detention despite a
general lack of sufficient evidence.
98. In the most egregious cases, unlawful detentions were accompanied by physical
or psychological abuse amounting to torture. Many of the victims were people accused of
spying and planning terrorist acts, as well as political and civic activists supporting the
Maidan protests and pro-Ukrainian demonstrations in Crimea or seeking to assist Ukrainian
soldiers stationed in Crimea. On 9 March 2014, two members of a pro-Ukrainian
organization were abducted by the Crimean self-defence, detained in a secret location
without the presence of a lawyer for 11 days - and one of them tortured - before being
released.98 The arrests were made without reasonable suspicion, proper motivation and
court review, qualifying as violations of the right to liberty and security. In addition, the
torture allegations were not investigated, in denial of the right to an effective remedy.
2. Enforced disappearances
99. Enforced disappearance, as defined by the International Convention for the
Protection of All Persons from Enforced Disappearance,99 violates, or threatens to violate, a
range of international humanitarian law norms, most notably the prohibition of arbitrary
deprivation of liberty,100 torture and other cruel or inhuman treatment101 and murder.102 The
duty to prevent enforced disappearances is further supported by the requirement to record
the details of persons deprived of their liberty.103 The obligations placed on States by the
Convention arguably represent customary international law, which Ukraine (which has
ratified the Convention) and the Russian Federation (which has not done so) are required to
respect. OHCHR notes a precedent in the jurisprudence of the European Court of Human
Rights for holding an occupying power liable for violation of the right to liberty and
security arising from the failure of authorities to investigate the fate and whereabouts of
missing persons in its occupied territory.104
100. The first recorded case of enforced disappearance in Crimea occurred on 3 March
2014, less than a week after the establishment of a pro-Russian Government in Crimea, on
27 February.105 Since then, dozens of persons have gone missing, mostly in 2014. While the
majority of victims were released by perpetrators within hours or days, the whereabouts of
others are still unknown.
101. The highest number of enforced disappearances in a single month occurred in
March 2014, when at least 21 persons were abducted in Crimea. The victims included pro-
Ukrainian and Maidan activists, journalists, Crimean Tatars and former and active
Ukrainian servicemen. They were held incommunicado and often subjected to physical and
psychological abuse by armed individuals allegedly belonging to the Crimean self-defence
and one Cossack group. Most victims were released after being illegally held from a few
hours to several days, with no contact with their relatives or lawyers.106
102. OHCHR documented 10 cases of persons who disappeared and are still missing:
six Crimean Tatars, three ethnic Ukrainians and one Russian-Tatar - all men. Seven went
missing in 2014, two in 2015 and one in 2016.
103. On 1 October 2014, the Head of Crimea decided to create a ‘contact group’
focusing on the disappearances and other incidents involving Crimean Tatars. The group
convened for the first time on 14 October 2014 in the presence of investigative authorities
and the relatives of five missing Crimean Tatar men but achieved little beyond informationsharing
and the decision to transfer the investigations to the central Investigation
Department of the Russian Federation.107 Of the 10 disappearances mentioned, criminal
investigations were still ongoing in only one case as at 12 September 2017.108 They were
suspended in six cases due to the inability to identify suspects,109 and in three cases no
investigative actions have been taken as the disappearances were allegedly not reported.110
15
104. In five cases, the possible involvement of State agents was raised by witnesses
who saw the victims being abducted by men dressed in uniform associated with the security
forces or the Crimean self-defence. Circumstances which may suggest political motives in
the other five cases include the profile of the victims who were pro-Ukrainian activists or
had links to the Mejlis.
F. Right to private and family life
105. OHCHR estimates that up to 150 police and FSB raids of private houses,
businesses, cafés, bars, restaurants, markets, schools, libraries, mosques and madrassas
(Islamic religious schools) have taken place since the beginning of Crimea’s occupation.
These actions have usually been carried out with the justification to search for weapons,
drugs or literature with extremist content forbidden under Russian Federation law.111
Several interlocutors shared their conviction that the objective pursued by such operations
was to instil fear, particularly in the Crimean Tatar community, in order to pre-empt or
discourage actions or statements questioning the established order since March 2014.
106. The searches were conducted on the basis of the Russian Federation’s antiextremism
law, which is very broad and has been used extensively in Crimea. The law
gives wide discretion to law enforcement agencies to interpret and apply its provisions,
which can be viewed as an infringement of the principles of legality, necessity and
proportionality.112 In her annual report for 2014, the Ombudsperson of the Russian
Federation stated in relation to Crimea that law enforcement officers should adopt “a wellbalanced
approach that rules out any arbitrary, excessively broad interpretation of the
notion of ‘extremism’”.113
107. OHCHR documented raids, which at times took place without search warrants
being presented, involved excessive use of force, and amounted to an arbitrary or unlawful
interference with an individual’s privacy, family and home, in violation of international
human rights law. According to victims, materials considered illegal were planted in homes
and false written testimonies declaring the presence of illegal substances were signed under
duress.114 On 4 and 5 September 2014, at least 10 houses belonging to Crimean Tatars were
searched by police officers and FSB officials in Simferopol, Nizhnegorsk,
Krasnoperekopsk and Bakhchisaray.115 The police found no weapons or drugs but
confiscated religious literature.
108. There are reports that some house raids were conducted at a time when only
Crimean Tatar women were present and that the absence of female officers among those
carrying out the search greatly disturbed them.116
109. As at 12 September 2017, 38 individuals from Crimea and the city of Sevastopol
(35 men and three women) were on a special list of people ‘believed to be involved in
extremism or terrorism’, administered by the Russian Federation Financial Monitoring
Service.117 According to the laws of the Russian Federation on preventing financing of
terrorism applied in Crimea, the bank accounts of individuals on this special list should be
constantly monitored and most of their bank transactions are suspended.
110. In view of the excessively broad interpretation of the Russian Federation’s antiextremism
law applying to Crimea, such limitations may amount to undue interference with
the right to private and family life and to the right to the peaceful enjoyment of one’s
possessions.
G. Rights of detainees
111. According to the Ministry of Justice of Ukraine, on 20 March 2014, 1,086
individuals were detained at Crimea’s only pre-trial detention facility in Simferopol, 1353
convicts were serving their sentences in a strict regime colony in Simferopol, 789 convicts
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were held in a general regime colony in Kerch and 67 in a correction centre in Kerch. All
four institutions have been integrated into the penitentiary system of the Russian
Federation,118 which led to the transfer of hundreds of detainees held in Crimea to
penitentiary institutions in the Russian Federation.
1. Violations of the rights of prisoners in Crimea
112. After the Russian Federation took control of Crimea, local courts discontinued all
pending appeal proceedings under Ukrainian law, in violation of fair trial guarantees.119
Ukrainian penal legislation was repealed and prison sentences were requalified in
accordance with Russian Federation law, sometimes to the detriment of detainees.
113. Former detainees in Crimea complained to OHCHR about overcrowding, which
can amount to degrading treatment. Built for a maximum capacity of 817 people, the pretrial
detention centre in Simferopol had 1,066 detainees in March 2014,120 1,532 in
December 2015,121 and a similar level of overcrowding in 2016.122
114. Soon after the occupation started, correspondence between detainees in Crimea
and mainland Ukraine was blocked by the administration of the penitentiary service and all
family visits were denied violating the right of prisoners to be allowed to communicate with
family and friends at regular intervals.123
115. Pressure was exerted on detainees who refused to accept automatic Russian
Federation citizenship as prison officials recorded those who did or did not take Russian
Federation passports.124 A female detainee who rejected Russian Federation citizenship
complained that she was denied family visits and that sunflower oil was regularly poured
over her personal belongings as a harassment technique.125 Other detainees who refused
Russian Federation citizenship were placed in smaller cells or in solitary confinement.126
2. Transfer of prisoners to the Russian Federation
116. A sizeable number of Crimea’s prison population was transferred to the Russian
Federation.127 A key factor explaining this situation is the lack of specialized penitentiary
facilities in Crimea, which has led to the transfer of juveniles in conflict with the law,
people sentenced to life imprisonment, and prisoners suffering from serious physical and
mental illnesses. In addition, Crimea having no prisons for women, 240 female detainees
convicted by Crimean courts were sent to the Russian Federation between 18 March 2014
and 15 June 2016 to serve their sentences.128
117. Transfers of pre-trial detainees have also taken place. This is the case of
Ukrainian filmmaker Mr. Oleh Sientsov, who was arrested in Simferopol on 11 May 2014
on suspicion of "plotting terrorist acts”. On 23 May 2014, he was transferred to Moscow’s
Lefortovo prison and later to Rostov-on-Don (Russian Federation) where he was placed in
remand detention. Following his trial and conviction on 25 August 2015,129 he was
incarcerated in a high security penal colony in the Siberian region of Yakutia.
118. OHCHR notes that international humanitarian law strictly prohibits forcible
transfers of protected persons, including detainees, from occupied territory to the territory
of the occupying power, regardless of the motives of such transfers.130 In this regard, the
imposition of Russian Federation citizenship to residents of an occupied territory does not
alter their status as protected persons.
119. On 17 March 2017, negotiations between the Ombudspersons of Ukraine and the
Russian Federation enabled the return to mainland Ukraine of 12 detainees (11 men and a
woman) sentenced by Ukrainian courts before March 2014, and transferred from Crimea to
various penitentiary institutions in the Russian Federation after that date. OHCHR
interviewed each of them. Some detainees publicly expressing pro-Ukrainian sentiments
reported having been ill-treated and placed in solitary confinement.131 Others complained of
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the absence of medical treatment. OHCHR documented the death of at least three male
prisoners transferred from Crimea to the penitentiary institution in Tlyustenkhabl, Adygea
region, who were suffering from serious ailments and did not receive necessary medical
care.132 Under international human rights and humanitarian law provisions, detainees must
be provided with the medical attention required by their state of health.133
H. Forced enlistment
120. Since the occupation began, residents of Crimea have been subjected to
conscription in the armed forces of the Russian Federation. Until 31 December 2016,
military service could only take place on the territory of the Crimean peninsula.134 Since
2017, conscripts can also be sent to serve on the territory of the Russian Federation. On 25
May 2017, 30 conscripts from Sevastopol were sent to the Russian Federation after
reportedly expressing the will to serve there.135
121. OHCHR spoke to several Crimean Tatars who left the peninsula to avoid serving
in the Russian Federation army. They stated they could not return to Crimea as they would
be prosecuted for avoiding the draft.136 On 12 April 2017, the Military Commissioner of the
Russian Federation in Crimea announced that a criminal case had been opened against a
resident of Crimea who refused to serve in the Russian Federation army.
122. OHCHR notes that under international humanitarian law, an occupying power is
prohibited from compelling protected persons to serve in its armed or auxiliary forces or to
exercise pressure or propaganda which aims at securing voluntary enlistment.137
I. Freedom of movement
123. The introduction by the Russian Federation of a State border at the ABL between
mainland Ukraine and Crimea, in violation of General Assembly resolution 68/262, has
adversely affected freedom of movement between mainland Ukraine and the Crimean
peninsula. Other legal restrictions, as per this section, have been imposed both by the
Governments of the Russian Federation and Ukraine.138
124. International human rights law guarantees freedom of movement to anyone
lawfully within the borders of a State and the right to leave and enter their own country.139
It also recognizes that a sovereign Government has the right to restrict freedom of
movement provided such a measure is necessary, reasonable and proportionate.
1. Restrictions imposed by the Russian Federation authorities
125. On 25 April 2014, the Russian Federation authorities established its ‘border’ at
the northern entrance to Crimea. Ukrainian activists, supporters and members of the Mejlis,
in particular, have frequently faced infringements on their movement, including intrusive
and lengthy interrogations whenever entering or leaving Crimea through the ABL.
126. In addition, citizens of Ukraine have been deported from Crimea for violating
Russian Federation immigration rules, which, pursuant to resolution 68/262, should not
apply to the territory of Crimea. For instance, the Crimea-born chairman of an NGO from
Evpatoriia providing free legal aid was convicted in January 2017 of “illegal stay” by a
Crimean court which ordered his deportation.140 In 2012, his Crimean passport registration
had been cancelled on procedural grounds, which disqualified him from obtaining Russian
Federation citizenship in March 2014. The court which ordered his deportation found him
to be a foreigner who violated immigration rules by staying in Crimea beyond the
authorized 90-day period. Following the ruling, the man was transferred from Crimea to the
region of Krasnodar (Russian Federation), detained for 27 days, and subsequently deported
to mainland Ukraine where he currently lives as an IDP. He is banned from entering
Crimea - where his wife and son live - until 19 December 2021, which violates his freedom
18
of movement and his right to family life.141 In addition, his forced transfer and deportation
contravene international humanitarian law rules applying to protected persons in situations
of occupation.142
127. OHCHR has information that 20 to 25 other Ukrainian citizens were deported
from Crimea to mainland Ukraine in 2016, and has reasons to believe that the total number
since the beginning of the occupation of Crimea may be significantly higher.143
128. Unlawful limitations to freedom of movement were also imposed against political
opponents and individuals criticizing the human rights situation on the peninsula who were
prohibited entry into the Russian Federation, consequently banning their access to Crimea.
On 22 April 2014, a Russian Federation officer at the ABL handed the former leader of the
Mejlis, Mr. Mustafa Dzhemilev, an unsigned document informing him of being banned
from entering the territory of the Russian Federation for five years. On 5 July 2014, the
current head of the Mejlis, Mr. Refat Chubarov, was issued an entry ban for allegedly
inciting inter-ethnic hatred.144 Other people subjected to similar prohibitions include in
2014 the director of Crimean Tatar news agency QHA, and in 2016 a Ukrainian journalist
and a defence lawyer.145
2. Restrictions imposed by Ukraine
129. Between March and December 2014, Ukraine suspended air, train and bus
connections to the peninsula. Older persons, persons with disabilities and children were the
most affected by the absence of public transportation. Some said they had no choice but to
walk across the ABL for more than two kilometres, sometimes in adverse weather
conditions.146 The only means of transport remaining are private cars and taxis that operate
between Ukraine’s mainland and Crimea.
130. According to Ukrainian legislation, Ukrainian citizens have the right to free and
unimpeded access to Crimea.147 However, crossing into the peninsula is permitted – for
Ukrainian citizens and foreigners alike – only through three crossing points located in the
region of Kherson, namely Kalanchak, Chaplynka or Chonhar. Foreign citizens violating
rules on access to Crimea are prohibited from entering Ukraine for a period of three
years.148
131. National legal requirements related to the travel of children have constricted
freedom of movement. Children below 16 years of age, if accompanied by only one parent,
must have notarized written consent of the other parent.149 This has created problems for
Crimean residents, as documents issued by the Russian Federation authorities in Crimea are
not recognized in Ukraine.
132. Specific requirements also apply to foreigners and stateless persons who may
only enter and leave Crimea with a special permission issued by Ukrainian authorities
following a lengthy procedure.
133. Another freedom of movement restriction applied to limitations in the
transportation of consumer goods and personal belongings to and from Crimea introduced
by Government decree No. 1035 of 16 December 2015. A court decision issued in June
2017 found the restrictions to be unlawful, although OHCHR observed through monitoring
of the ABL it conducted in August 2017 that posters informing travellers of transportation
limitations under decree No. 1035 were still present at the Chonhar crossing point.150
134. A so-called civil blockade of Crimea was initiated in September 2015 by the
Crimean Tatar leadership in mainland Ukraine to prevent trade with the Russian Federation
occupying Crimea and draw the attention of the international community to human rights
violations on the peninsula. The enforcement of the blockade was accompanied by
incidents, including physical attacks by blockade participants of people travelling from
Crimea, as well as confiscation of goods and personal items, violating human rights and
19
impacting freedom of movement across the ABL.151 On 17 January 2015, the organizers of
the ‘civil blockade’ of Crimea announced they had stopped enforcing their embargo. 152
135. OHCHR noticed security risks for travellers related to the presence of
insufficiently marked minefields on both sides of the road leading to the Kalanchak and
Chaplynka crossing points. Representatives of Ukraine’s State Border Guard Service said
they had no maps with mine locations. Although small triangular mine signs are visible, the
risk of accidentally walking into an ill-marked minefield remains.153
J. Freedom of thought, conscience and religion
136. It is a norm of customary international humanitarian law that the convictions and
religious practices of civilians and persons hors de combat must be respected.154 Article 58
of the Fourth Geneva Convention provides that the occupying power must permit ministers
of religion to give spiritual assistance to members of their religious communities, and
Article 15 of the First Protocol to this Convention states that an occupying power should
respect and protect civilian religious personnel. Furthermore, the International Covenant on
Civil and Political Rights and the European Convention on the Protection of Human Rights
and Fundamental Freedoms provide that everyone has the right to freedom of thought,
conscience and religion, and that the right to manifest one’s religion and beliefs may only
be subject to limitations, which are prescribed by law and are necessary to protect public
safety, order, health, morals or the rights and freedoms of others.155
137. After the start of the occupation, freedom of religion or belief in Crimea has been
jeopardized by a series of incidents targeting representatives of minority confessions and
religious facilities belonging to them. Limitations on religious freedom have also resulted
from the imposition of legal re-registration requirements, legislation increasing restrictions
on the activities of religious groups in the name of fighting extremism, and judicial
decisions.
138. The Parliament of the Russian Federation adopted legal amendments - commonly
referred to as the ’Yarovaya package’ – which came into force on 20 July 2016 as an antiterrorism
measure allowing the authorities to monitor extremist groups. The amendments
practically ban missionary groups and house prayers by making proselytizing, preaching,
praying, or disseminating religious materials outside of “specially designated places”, like
officially recognized religious institutions, a punishable crime.156
139. In the first year after adoption of the ’Yarovaya package’ eight persons from
Crimea - including four Jehovah’s Witnesses, three Protestants and one Muslim – were
fined 5,000 RUB each (USD 85) for conducting a missionary activity.157 In addition, eight
religious communities - two Jehovah’s Witness, one Catholic, one Lutheran, one
Pentecostal and one Hare Krishna - were fined in amounts ranging from 30,000 RUB (USD
525) to 50,000 RUB (USD 875) for violating the prohibition for a religious organization to
conduct activities ”without indicating its official full name”.158
140. The gravest and most frequent incidents involving representatives of minority
confessions were reported in 2014. For instance, on 1 June, men in Russian Cossack
uniforms broke into the local Ukrainian Orthodox Church of the Kyiv Patriarchate (UOCKP)
in the village of Perevalne, shouting and terrorizing churchgoers. The car of the priest
was damaged. The police were called but did not investigate the incident.159 On 21 July, a
house in the village of Mramorne belonging to the UOC-KP was burnt to the ground.160 A
pastor of the Protestant Church from Simferopol and his family left the peninsula after
reportedly being told by FSB officers that he could ‘disappear’.161 Greek-Catholic priests
faced threats and persecution, resulting in four out of six of them leaving Crimea. A Polish
citizen and the senior Roman Catholic priest in the Simferopol parish had to leave on 24
October, due to the non-renewal of Ukrainian residence permits. Most of the 23 Turkish
Imams and teachers on the peninsula have left for the same reason.162 On 26 April,
unknown persons threw Molotov cocktails at a mosque in the village of Skalyste, setting it
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on fire. On 25 July, a Muslim cemetery in Otuz was damaged. Several mosques and
madrassas (Islamic schools) belonging to the Spiritual Administration of the Muslims of
Crimea (DUMK) were raided in 2014 by FSB officers searching for banned extremist
materials and members of radical groups.163 The raids have continued in the following years
but their frequency diminished after the DUMK leadership started cooperating with the
Russian Federation authorities in Crimea in 2015.
141. Pursuant to Russian Federation legislation imposed in Crimea, public
organizations in Crimea, including religious communities, were subjected to the obligation
to re-register to obtain legal status. The religious communities which applied for
registration had to submit the statutes of the organization, two records of community
meetings, a list of all the community members, and information on the “basis of the
religious belief”. Only Russian Federation citizens are allowed to register a religious
community.
142. Without registration, religious communities can congregate but cannot enter into
contracts to rent State-owned property, open bank accounts, employ people or invite
foreigners. The deadline for re-registration was extended twice and expired on 1 January
2016. The process has been lengthy and lacked transparency.164
143. Before the occupation of Crimea, there were 2,083 religious organizations in
Crimea and 137 in Sevastopol, both with and without legal entity status.165 As of 4
September 2017, 722 religious communities were registered in Crimea and 96 in
Sevastopol. They included the two largest religious organizations of the Christian Orthodox
and Muslim communities, as well as various Protestant, Jewish, Roman-Catholic and
Greek-Catholic communities, among other religious groups.
144. One of the religious communities registered in Crimea, the Jehovah’s Witnesses,
was declared illegal in an April 2017 decision of the Supreme Court of the Russian
Federation, which found that the group had violated the country’s anti-extremism law. On 1
June 2017, all 22 congregations in Crimea were de-registered, affecting the right to freedom
of religion of an estimated 8,000 believers. On 9 June 2017, a Jehovah Witness was told at
a military conscription centre in Crimea that he could not invoke his right to an alternative
civilian service under Russian Federation legislation unless he renounced his faith and
changed his religion.166 On 27 June, the head of the Jehovah Witnesses community in
Dzhankoy was summoned to court, charged with unlawful missionary activity, and died
later that day of a heart attack.167
145. The Ukrainian Orthodox Church of the Kyiv Patriarchate (UOC-KP) chose not to
re-register under Russian Federation law and thus has no legal recognition. Since 2014, five
UOC-KP churches have been either seized by paramilitary groups or closed due to nonrenewal
of their property leases.168 The activities of another UOC-KP church, located in
Simferopol, were disrupted on 31 August 2017, when court bailiffs stormed the building of
the church. The action was undertaken pursuant to a judgment, upheld by the Supreme
Court of the Russian Federation in February 2017, ordering to vacate premises in the
building used by a daughter company of the UOC-KP as office space and a shop. As of 12
September 2017, worship services were still held but fewer parishioners attended them.169
K. Freedom of peaceful assembly
146. Freedom of peaceful assembly guarantees the right of individuals to gather
peacefully in order to express an aim or issue in public. It is protected by various
international legal instruments and closely connected with other fundamental rights such as
freedom of speech, thought and association. Limitations are permitted in accordance with
international law, including administrative regulations, as long as they are proportionate
and not used to oppress the nature of free assembly.
21
147. The possibility to peacefully gather or hold a rally in Crimea has been
significantly reduced since March 2014. Restrictive legal measures placed additional
obstacles to the exercise of the right to peaceful assembly. According to legislation adopted
by the Parliament of Crimea in August 2014, the organizers of public assemblies must be
Russian Federation citizens and must officially request permission to hold an assembly no
more than 15 days and no fewer than 10 days prior to the planned event. In addition, a
resolution of the Government of Crimea of 4 July 2016 reduced from 665 to 366 the
number of locations throughout the ‘Republic of Crimea’ where public events could be
organized, without explaining the motives of this decision.170
148. Lengthy blanket prohibitions on holding public assemblies have been issued,
including an indefinite one decided by the Simferopol city authorities. In March 2016, a
ban on all public events on the territory of the city was decreed, with the exception of those
organized by the republican and local authorities.171 This measure was not taken in response
to a sudden deterioration of public order and clearly infringed on the freedom to hold
peaceful public assemblies.
149. Public events initiated by groups or individuals not affiliated with the Russian
Federation authorities in Crimea or which consider that Crimea remains a constituent part
of Ukraine have systematically been prohibited and prevented. On 23 September 2014, the
Prosecutor of Crimea issued a statement that “all actions aimed at the non-recognition of
Crimea as a part of the Russian Federation will be prosecuted.”172 Consequently, any
assembly demanding the return of Crimea to Ukraine or expressing loyalty to Ukraine has
been effectively outlawed.
150. Requests to hold peaceful public assemblies have often been rejected on
procedural technicalities, which appeared to be neither necessary to justify a ban nor
proportionate and responding to a general public interest. For example, the Simferopol city
authorities refused to grant permission for an assembly planned by the Crimean Tatar NGO
Kardashlyk for 23 August 2014 near the memorial complex for the victims of the Crimean
Tatar deportation. The motive provided was that the extremely high temperatures could
negatively affect the health of participants. Yet, other outdoor events planned on the same
day went ahead.173
151. In some cases, refusals to authorize public events were based on unsubstantiated
allegations that “extremist” or “separatist” messages would purportedly be disseminated
during their conduct. 174
152. Spontaneous gatherings have been met with sanctions. Crimean Tatars taking part
in unauthorized motorcades to commemorate the Crimean Tatar deportation were regularly
arrested, interrogated for hours, and fined.175 An elderly Crimean Tatar man holding a oneperson
picket in support of prosecuted Crimean Tatars was arrested in front of the building
of the Supreme Court of Crimea on 8 August 2017. He was charged with carrying out an
unauthorized public gathering and resisting police orders and sentenced by court to an
administrative fine of 10,000 RUB (USD 175) and 10 days of detention.
153. The European Court of Human Rights has found that restrictions imposed on
assemblies to prevent minor disorder are often disproportionate measures, and that
incidents of violence are better dealt with by way of subsequent prosecution or disciplinary
actions.176 In relation to blanket legal provisions which ban assemblies at specific times or
in particular locations, the Special Rapporteur on the rights to freedom of peaceful
assembly and of association stated that they require greater justification than restrictions on
individual assemblies.177
L. Freedom of opinion and expression and the media
154. Human rights law guarantees the right to hold opinions without interference.
Undue restrictions on the right to seek, receive and impart information and ideas of all
22
kinds gravely undermine freedom of expression, which is protected under Article 19 of the
International Covenant on Civil and Political Rights and Article 10 of the European
Convention on the Protection of Human Rights and Fundamental Freedoms.
155. The right to express one’s view or opinion has been significantly curtailed in
Crimea.178 In March 2014, analogue broadcasts of Ukrainian television channels were shut
off and the vacated frequencies started broadcasting Russian TV channels. Journalists were
attacked or ill-treated without any investigation being conducted into these incidents.179 In
June 2014, the only Ukrainian language newspaper, Krymska svitlytsia, was banned from
distribution and had to vacate its rented premises.
156. Official ‘warnings’ have often preceded the closing down of a media outlet. They
applied to views, articles or programmes whose content were deemed ‘extremist’. The
editor of the weekly Mejlis newspaper Avdet received several written and oral warnings
from FSB officers that the newspaper materials allegedly contained extremist content, such
as use of the terms ‘annexation’, and ‘temporary occupation’ of Crimea.180 The Crimean
Tatar ATR television channel was warned by Roskomnadzor, the Russian Federation media
regulatory body, against disseminating false rumours about repression on ethnic and
religious grounds and promoting extremism.181
157. ATR and Avdet were among the Crimean Tatar media outlets which were denied
re-registration according to Russian Federation legislation and had to cease operations on
the peninsula. When the deadline for re-registration expired on 1 April 2015,
Roskomnadzor reported that 232 media were authorized to work, a small fraction of the
approximately 3,000 media outlets previously registered under Ukrainian regulations.182 In
addition, other popular Crimean Tatar media outlets, such as Lale television channel,
Meydan and Lider radio stations, QHA news agency and 15minut Internet site, were denied
licenses to work. Procedural violations were cited as the main reasons for rejection.183
158. The minority language media that continued operating or registered as a new
media entity, have no political content or support the official position on the status of
Crimea. Crimean television has information and education programmes in the native
languages of national minorities, including Armenian, Bulgarian, Crimean Tatar, German,
Greek, and Ukrainian. Its programmes for the Crimean Tatar community include the
Crimean Tatar news Haberler, Netije, and Ekindi Subet; the talk-show Dilde, fikirde, işte
birlik; the educational programme Eglenip-Ogrenem; the cultural and religious programme
Selyam Aleykum; and the informational and cultural programme Tanysh-Belish.184
159. According to the United Nations Human Rights Committee “the penalization of a
media outlet [including online media], publishers or journalists solely for being critical of
the government or the political social system espoused by the government can never be
considered to be a necessary restriction of the freedom of expression.”185 Yet, provisions of
the Russian Federation penal code have regularly been used by the authorities in Crimea to
criminalize free speech and dissenting opinions of journalists and non-journalists alike.
160. On 7 July 2017, a court in Crimea convicted a Crimean Tatar man from
Sevastopol to one year and three months of prison for “publicly inciting hatred or enmity”.
During an eight months period in 2016, he had posted statements on Facebook mentioning
the “oppression” of the Crimean Tatars, referring to Crimea being “occupied” and
“annexed”, and quoting a Crimean Tatar leader who had organized the food and trade
blockade of Crimea in September 2015.186
161. People have also been charged under the accusation of advocating separatism. In
2017, the trials of a journalist from Crimea and a deputy chairman of the Mejlis, started.
Both men were charged with “public calls to violate the territorial integrity of the Russian
Federation” in connection with an article and a televised interview, respectively.187 If found
guilty, they face prison sentences of up to five years.
23
M. Freedom of association
162. Following the occupation of Crimea, most human right groups ceased to exist or
relocated elsewhere in Ukraine. Some did so in protest against the new situation, while
others felt compelled to do so, on account of personal threats and physical violence faced
by their members.
163. For instance, the director of the Yalta-based NGO Almenda left Crimea on 16
March 2014, one day after she was warned by members of the Crimean self-defence that
her safety was “no longer guaranteed.”188 Several members of the NGO Ukrainian House
were tortured and forcibly disappeared in connection with their role in organizing Maidan
events in Crimea and their subsequent opposition to Russian Federation presence.
164. Civic groups or non-governmental institutions which stayed but did not accept the
policies of the new authorities faced systematic obstruction of their activities, intimidation
and sometimes prosecution. In September 2014, the Crimean police organized searches,
seized property, and evicted the charitable organization Crimea Foundation from its
premises in Simferopol. The eviction also affected the central office of the Mejlis and the
Mejlis weekly newspaper Avdet.189
165. As other legal entities, NGOs were required to re-register under Russian
Federation law, which involved a number of constraints. Application documents included
inter alia a new version of the NGO statute and a formal decision by the NGO executive
body to align its founding documents with legislative requirements. If the NGO was not
registered at the local address of a founder who was a Crimean resident, applicants were
required to provide a letter from the owners of the intended rental premises of the NGO
guaranteeing that they did not object to such a registration.190
166. The re-registration of NGOs was further stymied by implementation of the
Russian Federation’s law on ‘foreign agents’ and ‘undesirable organizations’ in Crimea,
both of which have had a chilling effect on civic groups.191 Some decided not to seek
registration while others decided to forgo foreign funding rather than endure frequent
inspections and stigmatization.
167. The restrictive conditions placed by the legislation of the Russian Federation on
activities of civil society organizations have been reflected in the number of NGOs which
currently operate on the peninsula. As of 4 September 2017, 1,852 NGOs were registered in
Crimea and the city of Sevastopol192 compared to 4,090 in mid-March 2014.193
168. While the Russian Federation authorities in Crimea attempted to silence the
Mejlis, they selectively allowed the establishment of organizations representing the
Crimean Tatars, including Kyryym, Kyryym Birligi, the Crimean Tatar ’Inkishaf’ Society
and the Association of Crimean Tatar Businessmen.
169. Four national-cultural associations representing Ukrainians have been registered
in Crimea: the Simferopol-based Renaissance in Unity, Ukrainians of Simferopol,
Ukrainians of Yevpatoriia and Ukrainians of Yalta. The members of the unregistered
Simferopol-based Ukrainian Cultural Centre, which has been under constant surveillance
since 2014, were regularly called by the police or FSB for ‘informal talks’. Their public
activities, including paying tribute to Ukrainian literary, political or historic figures, were
often disrupted or prohibited. In May 2017, the Centre closed due to the absence of funds to
pay for the rent of its premises, and on 29 August 2017, its director left the peninsula for
mainland Ukraine following anonymous text message threats and information that the FSB
would arrest him.194
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VII. Economic, Social and Cultural Rights
A. Property rights
170. Following Crimea’s occupation, the Russian Federation authorities proceeded
with a large-scale nationalization of public and sometimes private property. Expropriation
was done in disregard of ownership rights and without compensation. Proper regulation of
housing, land and property issues are also central to the Crimean Tatars who, almost three
decades after returning from deportation, have not obtained security of tenure guarantees.
1. Property nationalization
171. Since the March 2014 referendum, many of the most economically valuable
assets in Crimea – from energy companies to mobile operators – have been expropriated,
often by force.
172. On 24 August 2014, the Crimean self-defence took over the Zaliv shipbuilding
company, preventing the management from entering the premises. A new administration
from Zelenodolsk (Tatarstan) was subsequently imposed on the firm.195 On 27 August
2014, members of the Crimean self-defence entered the headquarters of Ukrainian gas
company Krymgas and seized all documents and stamps. The entrances were blocked and
the employees were advised either to quit or to sign applications for transfer of their jobs to
a newly created gas company.196
173. Regulatory acts have been adopted to provide legitimacy to the nationalization
process.197 However, frequent amendments, which increased the number and nature of
property to be nationalized, undermined legal certainty and guarantees against arbitrariness.
For example, Resolution No. 2085-6/14, which originally focused on nationalization of
property without ownership or belonging to the State of Ukraine, was amended to include
111 individual property assets listed in a separate Annex called “List of property considered
as the property of the Republic of Crimea”. During 2014-2016, hotels, private apartments,
non-residential premises, markets, gas stations, land plots and movable property, were
added to the Annex by new resolutions, which contained no criteria for the nationalization
and, in most cases, no information on the owners of nationalized property.
174. On 27 February 2015 Crimea’s Parliament adopted Resolution No. 505-1/15
declaring an end to the nationalization process and prohibiting the inclusion of new
property into the Annex starting from 1 March 2015. However, this provision was
subsequently amended on 16 September 2015, allowing inclusion of land plots and some
new information in the List of nationalized property for “clarification purposes.” As of 12
September 2017, the Annex with the list of nationalized property had been amended 56
times and now contains 4,618 “nationalized” public and private real estate assets.198
175. Similar processes have taken place in the city of Sevastopol.199 With the purpose
of “restoring social fairness and maintaining public order”, the city authorities nationalized
13 companies and 30 real estate assets between February 2015 and July 2016.200
176. OHCHR recalls that, according to international humanitarian law, private
property, as well as the property of municipalities and institutions dedicated to religion,
charity and education, the arts and science may not be confiscated,201 and that immovable
public property must be administered according to the rule of usufruct.202
2. Housing, land and property of formerly deported people
177. The question of housing, land and property in Crimea is sensitive, particularly for
Crimean Tatars who returned from exile starting from the late 1980s. The unmanaged
25
return process and the perceived injustices in land allocation led to Crimean Tatars settling
on unoccupied or public land.203
178. While successive Governments of Ukraine took steps to facilitate repatriation to
Crimea and resolve some of the issues facing formerly deported persons, many problems
remained. In a decree issued by former President Viktor Yanukovych in 2010, the need to
solve “the burning problem of resettlement” of formerly deported persons was
acknowledged.204
179. After taking control of the peninsula, the Russian Federation authorities in
Crimea pledged to legalize the unauthorized appropriation of land or allocate alternative
land plots to Crimean Tatars.205 In 2015, they adopted a law enabling Russian Federation
citizens of Crimea who illegally built property on a seized plot of land to acquire this
land.206 There is no information on how this law has been implemented. Crimean Tatars
have expressed concern about the citizenship requirement prescribed by the law, which
automatically excludes from the process of legalization formerly deported persons who
were not residents of Crimea on 18 March 2014 or have returned from deportation after that
date. Other obstacles, including resistance from title owners of land plots and competing
interests among Crimean Tatar groups representing returnees have also adversely affected
the process of acquisition.
180. Additional concerns rose after several cities in Crimea allowed the demolition of
buildings constructed without necessary permits. The most recent decision applies to
Simferopol207 and envisages that buildings constructed on land plots located in areas of
restricted use, such as public areas and areas near utility facilities, will be torn down. The
demolition of such buildings, to be ordered by local administrations and special “demolition
commissions”, could result in evictions disproportionately affecting Crimean Tatars.
181. Forced evictions constitute a violation of a broad range of human rights, including
the right to adequate housing and freedom from arbitrary interference with home and
privacy.208 OHCHR recalls the importance of preventing forced evictions by inter alia
repealing legislation which allows for such practice and taking measures to ensure the right
to security of tenure for all residents.209
B. Right to maintain one’s identity, culture and tradition
182. The Russian Federation authorities in Crimea have denied various manifestations
of Ukrainian and Crimean Tatar culture and identity by groups perceived as hostile to the
Russian Federation and to Crimea’s status as a part of it. Pressure, intimidation and
prohibitive administrative or court decisions have been applied. Such actions violate Article
15 of the International Covenant on Economic, Social and Cultural Rights, which
guarantees the right of everyone to take part in cultural life, and Article 27 of the
International Covenant on Civil and Political Rights, which provides that in States where
ethnic, religious or linguistic minorities exist, persons belonging to such minorities should
not be denied the right, in community with other members of their group, to enjoy their
own culture, to profess and practice their own religion, or to use their own language.
1. Limitations of the right of Ukrainians and Crimean Tatars to express their culture
and identity
183. Following Crimea’s occupation, the Ukrainian and Crimean Tatar communities
have been constricted in their ability to display Ukrainian state and cultural symbols and
publicly celebrate important dates for their communities. Festivities and assemblies
organized by minority groups have only been allowed if those groups supported the
position of the Russian Federation on the status of Crimea.
26
184. On 18 February 2015, the Bakhchysarai authorities prohibited the local Mejlis
from carrying out a rally in commemoration of the anniversary of the death of Noman
Çelebicihan, an important figure in Crimean Tatar history. On 11 March 2015, a court in
Simferopol ordered 40 hours of corrective labour for three pro-Ukrainian activists and 20
hours for a fourth after they unfurled a Ukrainian flag bearing the inscription “Crimea is
Ukraine” during a rally to commemorate the anniversary of the national poet of Ukraine,
Taras Shevchenko, two days before.210 In June 2015, the city of Simferopol rejected an
application by the Mejlis’ to hold celebrations of the Crimean Tatar Flag Day.
185. Institutions promoting Ukrainian culture and traditions have been shut down. The
Museum of Ukrainian Vyshyvanka - a traditional Ukrainian embroidery - was closed in
February 2015, and books by contemporary Ukrainian authors have been removed from the
Franko Library located in Simferopol.211
186. The recognition under the constitution of the “Republic of Crimea” of Ukrainian
and Crimean Tatar as official languages on a par with the Russian language has been
largely declaratory. A draft law on the use of Crimea’s official languages was registered in
the Parliament of Crimea on 4 April 2017, but has yet to be discussed.212
2. The ban of the Mejlis
187. In 2016, the Russian Federation authorities in Crimea outlawed the Mejlis, a
development which many in the Crimean Tatar community perceived as an attack against
their culture and identity. While it is not supported by all Crimean Tatars, the Mejlis is
viewed by many as a self-governing body and traditional organ of an indigenous people. Its
members, forming an executive body, were elected by the Kurultai, the Crimean Tatars’
assembly.
188. On 26 April 2016, the Supreme Court of Crimea declared the Mejlis to be an
extremist organization and prohibited it from conducting any activities. The ruling was
followed by an instruction, in May 2016, by the Vice Prime Minister of Crimea addressed
to the heads of local governments in Crimea to report to the Prosecutor of Crimea any
violations committed by Mejlis members or activists.213
189. On 29 September 2016, the Supreme Court of the Russian Federation upheld the
ban, and supported the Prosecution which argued that the Crimean Tatar leadership of the
Mejlis had repeatedly violated Russian Federation legislation and caused prejudice to
residents of Crimea by organizing a trade blockade in 2015. The Mejlis was also accused of
orchestrating a cut-off in energy supplies to the peninsula - with adverse humanitarian
consequences for the population - caused by the sabotage of electricity pylons in mainland
Ukraine. OHCHR notes that the ruling confirms the significant restrictions already imposed
by the Russian Federation authorities in Crimea on this institution since 2014. It appears to
be based on prejudicial evidence and disregards the legitimate character of the Mejlis as an
elected organ representing the Crimean Tatar community.
190. In addition to prohibiting any public activity by or on behalf of the Mejlis, the
court decision implies that the estimated 2,500 members of the national and local Mejlis
bodies can incur criminal liability and face up to eight years in prison for belonging to an
organization recognized as extremist. While no criminal sanctions have been imposed so
far, some members of the Mejlis have been subjected to administrative sanctions. On 28
September 2016, eight of them were fined by courts in amounts ranging from 750 RUB
(USD 12) to 1,000 RUB (USD 15) for holding an “illegal meeting” of this organization.214
191. On 19 April 2017, the International Court of Justice delivered an Order on
provisional measures in proceedings brought by Ukraine against the Russian Federation,
concluding that the Russian Federation must “Refrain from maintaining or imposing
limitations on the ability of the Crimean Tatar community to conserve its representative
institutions, including the Mejlis“.215
27
192. On 25 August 2017, the Committee on the Elimination of Racial Discrimination
issued its Concluding Observations on the twenty-third and twenty-fourth periodic reports
of the Russian Federation.216 In these Concluding Observations, the Committee stated that
it was “particularly concerned” about the ban on the Mejlis and the “strict limitations on the
operation of Crimean Tatar representative institutions, such as the outlawing of the Mejlis
and the closure of several media outlets.”
193. As of 12 September 2017, the Mejlis remains a banned organization pursuant to
the decisions of the Supreme Courts of Crimea and the Russian Federation.
C. Right to education in native language
194. International human rights instruments ratified by both Ukraine and the Russian
Federation guarantee the right to education.217 States are obliged to prioritize the
introduction of compulsory, free primary education and must “take steps” towards the
realization of secondary, higher and fundamental education for all those within its
jurisdiction.218 Article 2 of the First Protocol to the European Convention on the Protection
of Human Rights and Fundamental Freedoms provides that states should respect the right of
parents to ensure education and teaching in conformity with their own religious and
philosophical convictions. Article 50 of the Fourth Geneva Convention provides that the
occupying power should, with the cooperation of the national and local authorities,
facilitate the proper working of all institutions devoted to the care and education of
children.
195. Shortly after the March 2014 referendum, schools and universities in Crimea
started functioning in accordance with the curriculum and educational standards of the
Russian Federation. The education and academic qualifications obtained in Ukrainian
educational establishments were recognized while a large-scale in-training programme for
over 20,000 Crimean teachers started in June 2014.219
196. Overall, the introduction of Russian Federation education standards has limited
the right of ethnic Ukrainians and Crimean Tatars to education in their native language.
While under Russian Federation law minority language instruction is available from grades
1 to 9, in senior classes of secondary schools (grades 10 and 11) all subjects must be taught
in Russian. Furthermore, there is no clear procedure regulating the education in a mother
tongue and no legally defined numeric threshold for opening schools or classes.
197. The number of students undergoing instruction in Ukrainian language has
dropped dramatically. In the 2013-2014 academic year, 12,694 students were educated in
the Ukrainian language. Following the occupation of Crimea, this number fell to 2,154 in
2014-2015, 949 in 2015-2016, and 371 in 2016-2017. In April 2015, the long-time director
of the only Ukrainian-language gymnasium in Simferopol left Crimea, allegedly due to
threats and harassment. Between 2013 and 2017, the number of Ukrainian schools
decreased from seven to one, and the number of classes from 875 to 28.220
198. OHCHR considers that the main reasons for this decrease include a dominant
Russian cultural environment and the departure of thousands of pro-Ukrainian Crimean
residents to mainland Ukraine. Pressure from some teaching staff and school
administrations to discontinue teaching in Ukrainian language has also been reported.
199. At the university level, the Department of Ukrainian Philology in the Vernadskiy
Taurida National University was closed down in September 2014 and the majority of its
teaching staff laid off.221 The departments of Ukrainian philology, culture of the Ukrainian
language and theory and history of the Ukrainian language have been merged into one
department. By the end of 2014, Ukrainian as a language of instruction had been removed
from university-level education in Crimea.
28
200. On 19 April 2017, the International Court of Justice delivered an Order on
provisional measures in proceedings brought by Ukraine against the Russian Federation,
concluding unanimously that the Russian Federation must “Ensure the availability of
education in the Ukrainian language”.222
201. The number of students receiving their instruction in Crimean Tatar language has
remained stable, largely due to a high level of cultural awareness among the Crimean
Tatars. In the 2013-2014 academic year, when Ukraine’s curriculum was last applied in
Crimea, 5,551 Crimean Tatars were educated in their native language. In 2014-2015, the
figure was 5,146, in 2015-2016 it was 5,334, and in 2016-2017, 5,330 children were
educated in Crimean Tatar.223 Fifteen Crimean Tatar national schools were functioning in
2017, as in 2013.224
D. Right to health
202. The availability of health care treatment in Crimea has been affected by the
departure of numerous doctors and medical staff from medical State institutions. Drug users
have additionally suffered from a disruption in treatment caused by the implementation of
Russian Federation legislation.
203. In General Comment No. 14, the United Nations Committee on Economic Social
and Cultural Rights reminded all States parties to the International Covenant on Economic,
Social and Cultural Rights of the “minimum essential levels of each of the rights enunciated
in the Covenant, including essential primary health care.” Those minimum essential levels
include “the right of access to health facilities, goods and services on a non-discriminatory
basis, especially for vulnerable or marginalized groups,” including the provision of
essential drugs. Similarly, international humanitarian law obliges an occupying power to
ensure food, hygiene, public health and medical supplies for the inhabitants of occupied
territories.
1. Medical staff deficit in public hospitals
204. Crimea is confronted with an acute lack of medical personnel, an enduring
phenomenon which pre-dates the occupation by the Russian Federation but has been
aggravated after March 2014 due to the departure of many doctors to the private sector.
205. Since 2014, many doctors in Crimea have left public health care institutions for
private clinics on the peninsula, which provide higher salaries and better working
conditions. A similar situation prevails in the city of Sevastopol, where salaries in private
clinics in 2017 were two and a half times higher (40,000 RUB i.e. USD 660) than in public
hospitals (16,000 RUB i.e. USD 265).225 Physicians in public hospitals also criticized what
they viewed as excessive bureaucratic paperwork and a system of remuneration deriving
from new Russian Federation regulations, with the payment of a full doctor’s salary
depending on the result of multiple inspections and internal audits.226
206. In November 2016, 7,195 doctors and 17,283 other medical personnel were
employed in public medical centres in Crimea, with only 62.3 per cent of physicians’
positions occupied.
207. The Minister of Health of Crimea publicly acknowledged a lack of physicians,
pediatricians, general practitioners, emergency staff and laboratory technicians. For three
months in 2016, the main public hospital in Crimea’s second most populated district,
Kerch, had no doctor in its neurosurgical department. The situation is most worrying in the
districts of Rozdolne, Nyzhnohirskyi, Krasnoperekopsk, Pervomaysky and Armyansk, and
in the countryside, where only 40 per cent of the medical staff positions are filled.227
29
208. The shortage of medical personnel has had an impact on the quality of free public
health care services and created long waits, delaying treatment for the most economicallydisadvantaged
patients and jeopardizing their right to health.228
2. Impaired treatment of drug users
209. Retrogressive measures introduced in Crimea since the application of Russian
Federation legislation have undermined the right to health for those suffering from drug
dependence.
210. An estimated 21,100 injecting drug-users lived in Crimea in 2013. Substitution
Maintenance Therapy (SMT) for Crimean patients was terminated after the peninsula was
incorporated in the Russian Federation. The latter bans the medical use of methadone and
buprenorphine in the treatment of drug dependence and does not have maintenance therapy
programmes.229 Medicines given to patients in rehabilitation centres include
benzodiazepines, barbiturates, neuroleptics and anti-psychotic drugs, which are not
considered a reasonable alternative to the banned treatments among independent health care
experts.
211. As a result, 803 registered heroin addicts previously receiving Opioid Substitution
Therapy (OST) in Crimea no longer had access to this treatment.230 This has had major
detrimental effects, including changes in treatment, breaches of patient confidentiality, and
increased mandatory drug screening.231
212. Without methadone, users often relapse into taking heroin and risk an overdose.
The United Nations Special Envoy for HIV/AIDS evoked the possibility that by January
2015, up to 100 former OST recipients had died in Crimea due to complications related to
overdose or suicide,232 although in June 2014, Crimea’s health authorities were denying any
deaths.233
213. Comprehensive harm reduction strategies, which include OST, are essential to
prevent and treat HIV, hepatitis and tuberculosis among people who inject drugs. The ban
on OST opiates crippled Crimea’s HIV prevention programmes, which included inter alia
needle exchanges covering 14,000 people and OST for intravenous drug-users.
214. According to the Chief Doctor of Crimea’s Centre for the prevention and control
of AIDS, 1,417 newly diagnosed cases of HIV infection were recorded in Crimea for the
first nine months of 2016, including 25 per cent resulting from drug injection.234
E. Access to water and other essential services
215. The right to an adequate standard of living including in particular access to food,
water and other essential items, is included in several international human rights treaties.235
In addition, international humanitarian law prohibits the attack, destruction, removal, or
rendering useless objects indispensable to the survival of the civilian population, such as
foodstuffs, water installations and supplies and irrigation works.236
216. Until 2014, Crimea was 82 per cent dependent on water supplies via the North
Crimean Canal that links the Dnepr river in mainland Ukraine and the peninsula. The
eastern Crimean regions stretching from Sudak to Kerch have virtually no surface sources
of water. On 13 May 2014, the Ukrainian State Water Resources Agency informed that
Ukraine had shut off water supplies to Crimea via the North-Crimean Canal. While this
situation had no negative implications on drinking water,237 agricultural lands were
affected, and practically all rice plantations on the peninsula perished.238 According to the
Federal target programme on the socioeconomic development of Crimea, until 2020
“Crimea’s dependence on supply of water via the North Crimean Canal can be eventually
reduced or eliminated by searching for underground water sources, including manmade
ones”.239
30
217. Crimea was also dependent on supplies from mainland Ukraine for up to 85 per
cent of the electricity it consumed. Access to energy is a component of the right to adequate
housing, which is derived from the right to an adequate standard of living.240 On 21-22
November 2015, energy deliveries were disrupted after perpetrators believed to be
supporting the blockade of Crimea damaged four transmission towers in the region of
Kherson, which supplied electricity to Crimea. Although one of the power lines was later
repaired, energy supplies from mainland Ukraine have since not resumed due to the nonrenewal
of the contract between Ukraine’s energy company and the Russian Federation
authorities in Crimea, which expired on 1 January 2016.241
218. Following the power outage, for about three weeks, the interruption of energy
deliveries to Crimea caused widespread disruptions, affecting food conservation, lighting,
heating, public transportation and economic activity. Although the Russian Federation
authorities in Crimea redirected available energy resources to the most critical social
infrastructure, such as hospitals and schools, the impact of this situation has been acute,
particularly for people with limited mobility and low income.
219. Pursuant to the International Covenant on Economic, Social and Cultural Rights,
States parties must ensure the satisfaction of minimum essential levels of rights under the
Covenant in all circumstances.242 Under international humanitarian law, the Russian
Federation as the occupying power is obliged to ensure to the fullest extent of the means
available to it sufficient hygiene and public health standards, as well as the provision of
food and medical care to the population. At the same time, this does not exonerate Ukraine
from its obligations under the International Covenant not to interfere with the enjoyment of
the rights it enshrines, and from respecting the requirement under international
humanitarian law to ensure that the basic needs of the population continue to be met under
conditions of occupation.243
VIII. Conclusions and Recommendations
220. The human rights situation in Crimea has significantly deteriorated since the
beginning of its occupation by the Russian Federation. The imposition of a new citizenship
and legal framework and the resulting administration of justice have significantly limited
the enjoyment of human rights for the residents of Crimea. The Russian Federation has
extended its laws to Crimea in violation of international humanitarian law. In many cases,
they have been applied arbitrarily.
221. Russian Federation authorities in Crimea have supported groups and individuals
loyal to the Russian Federation, including among national and religious minorities, while
preventing any criticism or dissent and outlawing organized opposition, such as the Mejlis.
The space for civil society to operate, criticize or advocate has considerably shrunk. Media
outlets have been shut down, disproportionately affecting the Crimean Tatar and Ukrainian
communities, their right to information and to maintain their culture and identity.
222. Grave human rights violations affecting the right to life, liberty and security have
not been effectively investigated. The judiciary has failed to uphold the rule of law and
exercise proper administration of justice. There is an urgent need for accountability for
human rights violations and abuses and providing the victims with redress.
223. Moreover, the freedom of movement between mainland Ukraine and Crimea has
been restricted and the ABL has acquired many attributes of a State border.
224. Since the attempted alteration of the status of Crimea by the Russian Federation, a
development which was denounced by General Assembly resolution 68/262 and later
qualified as occupation in General Assembly resolution 71/205, the forcible integration of
the peninsula into the political, legal, socio-economic, educational, informational, cultural
and security spheres of the Russian Federation has been actively pursued, deepening the
divide between this territory of Ukraine and the rest of the country.
31
225. In July 2016, Crimea was administratively attached to the Southern Federal
District of the Russian Federation, further strengthening implementation of policies from
the central level and coordination with neighboring regions of the Russian Federation. The
peninsula has been integrated into the energy grid of the Russian Federation, which is also
building a rail-and-road bridge through the Kerch strait, creating a land corridor to Crimea.
This intensified integration is further compounded by population movements - from the
Russian Federation to Crimea and from Crimea to mainland Ukraine - which tend to favour
and strengthen pro-Russia sentiments on the peninsula.
226. In order to improve the human rights situation in Crimea, OHCHR recommends:
To the Government of the Russian Federation to:
a) Uphold human rights in Crimea for all and respect obligations that apply to an
occupying power pursuant to international humanitarian law provisions;
b) Ensure proper and unimpeded access of international human rights monitoring
missions and human rights non-governmental organizations to Crimea, pursuant
to General Assembly resolution 71/205;
c) Apply Ukrainian laws in Crimea, pursuant to General Assembly resolutions 68/262
and 71/205;
d) Ensure accountability for human rights violations and abuses through effective
investigations of allegations of ill-treatment, torture, abductions, disappearances
and killings involving members of the security forces and the Crimean selfdefence;
bring perpetrators to justice and provide redress for victims;
e) Comply with the international humanitarian law prohibition to compel residents of
the occupied territory of Crimea to serve in the armed forces of the Russian
Federation and to deport or transfer parts of the civilian population of the Russian
Federation into Crimea; return to Crimea all protected persons transferred to the
territory of the Russian Federation;
f) Ensure independent and impartial administration of justice, including due process
and fair trial rights, and that persons deprived of liberty benefit from all legal
guarantees, including equal treatment before the law, the right not to be
arbitrarily detained, the presumption of innocence and the prohibition from selfincrimination;
g) End the practice of retroactive application of penal laws to acts committed before
the occupation of Crimea, and refrain from using law enforcement bodies and the
justice system to pressure and intimidate opponents;
h) Uphold the right of defence counsel to perform their professional functions without
intimidation, harassment or improper interference;
i) End the practice of extracting confessions of guilt from persons in detention through
threats, torture, or ill-treatment, and refrain from practices such as forcible
psychiatric hospitalization, which may amount to ill-treatment;
j) Ensure adequate medical assistance to all individuals detained in penitentiary
institutions irrespective of their citizenship or any other grounds;
k) Enable unimpeded freedom of movement to and from Crimea, and end
deportations of Crimean residents pursuant to Russian Federation immigration
rules;
l) Ensure that the rights to freedom of expression, peaceful assembly, association,
thought, conscience and religion can be exercised by any individual and group in
Crimea, without discrimination on any grounds, including race, nationality,
political views or ethnicity;
32
m) Stop applying legislation on extremism, terrorism and separatism to criminalize
free speech and peaceful conduct, and release all persons arrested and charged for
expressing dissenting views, including regarding the status of Crimea;
n) Allow the development of independent and pluralistic media outlets, including
those representing minority communities, and refrain from placing legal and
administrative obstacles on their registration or operation;
o) Put an end to police actions, including house searches, summons, detentions, taking
of DNA samples, targeting disproportionately members of the Crimean Tatar
community;
p) Lift any limitations on the ability of the Crimean Tatar community to conserve its
representative institutions, including the Mejlis;
q) Ensure the availability of education in the Ukrainian language, and enable all
ethnic communities in Crimea, including the Crimean Tatars and Ukrainians, to
maintain and develop their culture, traditions and identity, and to commemorate
important events;
r) Ensure access of all Crimean residents, including those without Russian Federation
passports, to employment, health treatment, property and public services, without
discrimination;
s) End the ban on the use of Substitution Maintenance Therapy (SMT) for patients
suffering from drug dependence;
t) Respect the right to property and the prohibition to confiscate private property;
ensure security of tenure for the Crimean Tatars by putting in place a mechanism
facilitating recognition of their property rights.
To the Government of Ukraine to:
a) Use all legal and diplomatic means available to promote and guarantee the
enjoyment of the human rights of residents of Crimea;
b) Investigate, within practical limits, human rights violations and abuses committed
in Crimea as well as those perpetrated in mainland Ukraine in relation to the
‘civil blockade’ of Crimea;
c) Remove all non-necessary restrictions to freedom of movement to and from
Crimea, and ensure that the perimeter of the mined area near the Kalanchak and
Chaplynka crossing points in the Kherson region is visible and well protected;
d) Simplify access to civil documents, education and other public services to
residents of Crimea and IDPs;
e) Support dialogue between the Ombudspersons of Ukraine and the Russian
Federation to facilitate the voluntary transfer of Ukrainian prisoners held in
Crimea to penitentiary institutions in mainland Ukraine;
f) Refrain from actions that would raise obstacles to the enjoyment by residents of
Crimea of their human rights.
To the international community:
a) Insist on full cooperation of the Russian Federation with international and
regional monitoring mechanisms, including by granting unrestricted access to
their representatives to Crimea;
33
b) Remind the Russian Federation and Ukraine to strictly abide by international
human rights law and international humanitarian law in ensuring the protection
of the population of Crimea;
c) Raise cases of human rights violations and abuses in discussions with the Russian
Federation authorities at bilateral and multilateral forums.
i
IX. End notes
1 Hereafter referred to as ‘Crimea’.
2 All future references to the term “occupation” are to be interpreted in line with UN
General Assembly resolution 71/205 referring to the “temporary occupation” of Crimea.
3 The resolution 71/205 was adopted by the UN General Assembly on 19 of December
2016.
4 The people’s militia was registered on 29 July 2014. It is composed of former policemen
and army officers, Afghan war veterans and biker groups, tasked to ‘maintain order and
combat fascism’ on the peninsula; see Народное Ополчение Республика Крым, “Устав
Общественной Организации”, 9 сентября 2014, available at: http://narodnoeopolchenie.
ru/ustav-obshhestvennoy-organizatsii/.
5 Speaking to journalists, the President of the Russian Federation, Vladimir Putin, stated:
“Behind the backs of the Crimean self-defense units, there were our soldiers. They acted in
a very polite, but decisive and professional manner. There was no other way to help the
people of Crimea to express their free will”. Video conference, Ria Novosti, 17 April 2014.
6 Interview given to the TV channel “Rossiya” as part of a documentary “Crimea. The way
home”, available at: https://www.youtube.com/watch?v=c8nMhCMphYU.
7 The referendum question provided two alternatives: “1. Are you in favour of the
Autonomous Republic of Crimea reuniting with Russia as a constituent part of the Russian
Federation?” or “2. Are you in favour of restoring the Constitution of the Republic of
Crimea of 1992 and of Crimea’s status as part of Ukraine?”
8 See the statement of the Spokesperson of the UN Secretary-General of 17 March 2014
http://www.un.org/apps/news/story.asp?NewsID=47366#.WcU48nRx3IU.
9 Article 45 of the Convention (IV) respecting the Laws and Customs of War on Land and
its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18
October 1907 and Article 64, Geneva Convention IV.
10 The Mejlis is a self-governing institution of the Crimean Tatar people holding executive
powers. Its members are chosen from among the members of an elected assembly, the
Kurultai.
11 Articles 49 and 76, Geneva Convention IV.
12 See “Human Rights Assessment Mission in Ukraine. Human Rights and Minority Rights
Situation”, OSCE report of the High Commissioner for National Minorities and the Office
for Democratic Institutions and Human Rights, The Hague/ Warsaw (12 May 2014), pp.
49-76.
13 Interview given to the TV channel “Rossiya” as part of a documentary “Crimea. The way
home”, available at: https://www.youtube.com/watch?v=c8nMhCMphYU.
14 https://www.theguardian.com/world/2014/feb/25/ukraine-sevastopol-installs-prorussian-
mayor.
15 According to the Constitution of the ‘Republic of Crimea’, adopted on 11 April 2014,
the Head of Crimea («Глава Республики Крым») who is the highest-ranking official of
Crimea may also act as the Prime Minister of Crimea. Starting from 14 April 2014, Sergey
Aksenov has been acting as the Head and the Prime Minister of Crimea. See:
http://glava.rk.gov.ru/rus/officially.htm
16 The referendum question provided two alternatives: “1. Are you in favour of the
Autonomous Republic of Crimea reuniting with Russia as a constituent part of the Russian
Federation?” or “2. Are you in favour of restoring the Constitution of the Republic of
Crimea of 1992 and of Crimea’s status as part of Ukraine?”
17 http://www.crimea.gov.ru/act/11689.
ii
18 The Opinion was prepared following a request of the Secretary-General of the Council of
Europe of 7 March 2014.
19 See Paragraph 28 of Opinion no. 762 / 2014 on “Whether the decision taken by the
Supreme Council of the Autonomous Republic of Crimea in Ukraine to organize a
referendum on becoming a constituent territory of the Russian Federation or restoring
Crimea’s 1992 constitution is compatible with constitutional principles” (Venice, 21-22
March 2014).
20 See supra endnote 8.
21 OHCHR report on the human rights situation in Ukraine, 15April 2014, paragraph 82
22 According to the Crimean the election commission, 1,274 096 persons (83.1 per cent)
cast their ballots, of whom 1,233,002 (96.77 per cent) voted to join the Russian Federation,
31,997 (2.51 per cent) voted for Crimea to be part of Ukraine, and 9,097 votes (0.72 per
cent) were invalid; see http://archive.is/bvjR6. In Sevastopol, 274,101 persons (89.5 per
cent) cast their ballots, of whom 262,041 (95.6 per cent) voted to join the Russian
Federation, 9,250 (3.37 per cent) voted for Crimea to be part of Ukraine, and 2,810 votes
were invalid (1.03 per cent); see http://archive.is/zbExZ.
23 On 14 March 2014, the Constitutional Court of Ukraine ruled that the decision to hold a
referendum was unconstitutional, and on 15 March the Parliament of Ukraine terminated
the powers of the Parliament of Crimea.
24 The law “On Securing the Rights and Freedoms of Citizens and the Legal Regime in the
Temporarily Occupied Territory of Ukraine” entered into force on 22 November 2014.
25 The resolution was adopted by 101 countries, 11 voted against, 58 abstained and 24 were
absent.
26 The resolution was adopted by 70 countries, 26 voted against, 77 abstained and 21 were
absent.
27 Agreement between the Office of the High Commissioner for Human Rights and the
Government of Ukraine concerning the deployment of a short-term UN Human Rights
Monitoring Mission in Ukraine, done at Geneva on 31 July 2014.
28 The objectives of the visit were to discuss allegations of human rights violations,
protection concerns and the establishment of a sub-office of the HRMMU in Simferopol.
See OHCHR report on the human rights situation in Ukraine, 15 March to 2 April 2014,
paragraphs 80 to 93.
29 Gender-sensitive investigation methods, including regarding interviewing, security
arrangements, witness protection and safe handling of information were used by OHCHR.
See OHCHR manual on gender integration in monitoring available at
https://intranet.ohchr.org/Offices/Geneva/TESPRDD/RuleofLawEqualityandNon-
DiscriminationBranch/WomensHumanRightsAndGenderSection/Documents/Chapter15-
20pp.pdf.
30 Article 42 of the 1907 Hague Regulations states: “Territory is considered occupied when
it is actually placed under the authority of the hostile army. The occupation extends only to
the territory where such authority has been established and can be exercised.”
31 On 15 September 2015, Article 1 of the law of Ukraine “On Securing the Rights and
Freedoms of Citizens and the Legal Regime in the Temporarily Occupied Territory of
Ukraine” was amended to establish the beginning of the occupation of Crimea on 20
February 2014.
32 The Government of Ukraine exercised its right to derogate from its obligations under the
International Covenant on Civil and Political Rights in relation to the rights to liberty and
security (Article 9); fair trial (Article 14); effective remedy (Article 2(3)); respect for
private and family life (Article 17); and freedom of movement (Article 12) as well as
obligations enshrined in Article 5 (liberty and security), Article 6 (fair trial) Article 8
iii
(respect for private and family life) and Article 13 (effective remedy) of the European
Convention for the Protection of Human Rights and Fundamental Freedoms.
33 Human Rights Committee, Concluding Observations on Moldova
(CCPR/C/MDA/CO/2(2009), paragraph 5).
34 Ilascu and Others v. Moldova and Russia, 48787/99, European Court of Human Rights, 8
July 2004, paragraph 331.
35 Article 43, 1907 Hague Regulations.
36 Henckaerts, Doswald-Beck, Customary International Humanitarian Law, Volume I. Rule
149, hereinafter, Customary IHL Rules; See also Article 3, Hague Convention (IV) and
Article 91, Additional Protocol I.
37 See Report of the International Criminal Court on Preliminary Examination Activities
(2016), paragraphs 155 to 158. Pursuant to two article 12(3) declarations lodged by the
Government of Ukraine on 17 April 2014 and 8 September 2015, the Court may exercise
jurisdiction over Rome Statute crimes committed on the territory of Ukraine since 21
November 2013.
38 http://2001.ukrcensus.gov.ua/eng/results/general/nationality/.
39 http://www.statdata.ru/naselenie-krima-i-sevastopolya.
40 http://www.dsns.gov.ua/ua/Ostanni-novini/61047.html.
41 http://www.internal-displacement.org/europe-the-caucasus-and-centralasia/
ukraine/figures-analysis.
42http://www.gks.ru/free_doc/new_site/population/demo/perepis_krim/obsh_itog_kfo.docx
43 http://www.statdata.ru/naselenie-krima-i-sevastopolya.
44 See Article 4 of the Russian Federation law “On the Accession of the Republic of Crimea
into the Russian Federation and the Creation of New Federal Subjects – the Republic of
Crimea and the City of Federal Significance Sevastopol” (21 March 2014).
45 See Annual Report of the High Commissioner for Human Rights of the Russian
Federation for 2014, Crimea chapter.
46 Article 45, 1907 Hague Regulations.
47 OHCHR report on the human rights situation in Ukraine, 2 April to 6 May 2014,
paragraph 127.
48 http://rian.com.ua/CIS_news/20140422/345528247.html.
49 Article 20, Federal Law No. 62-FZ "On Citizenship of the Russian Federation" (31 May
2002).
50http://helsinki.org.ua/advices/poluchenye-vyda-na-zhytelstvo-dlya-hrazhdanpozhelavshyh-
sohranyt-ukraynskoe-hrazhdanstvo-y-prozhyvayuschyh-postoyanno-naterrytoryy-
kryima/.
51 Article 3 of the Russian Federation Law “On circulation of agricultural land” (24 July
2002).
52 OHCHR report on the human rights situation in Ukraine, 16 February to 15 May 2016,
paragraph 197.
53 OHCHR report on the human rights situation in Ukraine, 16 November 2016 to 15
February 2017, paragraphs 139 to 141.
54 Judgment of the Balaklava district court of the Republic of Crimea, 22 November 2016,
No. 5-207/2016, http://sudact.ru/regular/doc/s56ZvgkNvSgw/
55 Judgment of the Supreme court of the Republic of Crimea, 15 November 2016, No. 12-
2050/2016, http://sudact.ru/regular/doc/hbZ5VPzDk7l0/.
56 In addition, the occupying power may undertake total or partial evacuation of a given
area if the security of the population or imperative military reasons so demand. See Article
49, Geneva Convention IV.
57 Judgment of the Supreme court of the Republic of Crimea, 17 November 2016, No. 12-
401/2016, http://sudact.ru/regular/doc/Q9mwes1Qfjb/.
iv
58 See “Human Rights in Retreat. Abuses in Crimea”, Human Rights Watch, 17 November
2014, available at: https://www.hrw.org/report/2014/11/17/rights-retreat/abuses-crimea.
59 Judgment of the Supreme court of the Republic of Crimea, 2 November 2016, No. 12-
1696/2016, http://sudact.ru/regular/doc/55PTDREeCUZT/.
60 Judgment of the Sudak city court of the Republic of Crimea, 25 October 2016, No. 5-
131/2016, http://sudact.ru/regular/doc/MdwdkOOIxGdO/.
61 OHCHR report on the situation of human rights in Ukraine, 16 November 2015 to 15
February 2016, paragraph 195.
62 Article 4 of the Federal Constitutional Law “On the Accession of the Republic of Crimea
into the Russian Federation and the Creation of New Federal Subjects – the Republic of
Crimea and the City of Federal Significance Sevastopol” (21 March 2014).
63 Article 11 of the Law of the Republic of Crimea “On State Civil Service of the Republic
of Crimea” (29 May 2014).
64 This number includes 3,581 persons employed in the city of Sevastopol and 16,803 in the
Autonomous Republic of
Crimea. http://www.ukrstat.gov.ua/druk/publicat/kat_u/2014/bl/03/bl_ds_13.zip.
65 http://ru.krymr.com/content/news/27024784.html.
66 Article 54, Geneva Convention IV.
67 Article 6 of the Russian Federation law “On the Accession of the Republic of Crimea into
the Russian Federation and the Creation of New Federal Subjects – the Republic of Crimea
and the City of Federal Significance Sevastopol” (21 March 2014).
68 The Annual Report of the High Commissioner for Human Rights of the Russian
Federation for 2014 mentions in relation to Crimea that the “objective difficulties of the
transition period throughout 2014” have given rise to “a number of legal and law
enforcement grey areas” which have encouraged corruption schemes, Moscow, 2015, p. 96.
69 Article 64, Geneva Convention IV.
70 OHCHR report on the human rights situation in Ukraine, 16 February to 15 May 2015,
paragraph 159
71 See Articles 64, 65, 67, and 70, Geneva Convention IV and Article 15, International
Covenant on Civil and Political Rights.
72 OHCHR report on the human rights situation in Ukraine, 16 February to 15 May 2015,
paragraphs 158-159 and HRMMU report on the human rights situation in Ukraine, 16 May
to 15 August 2016, paragraph 157.
73 OHCHR report on the human rights situation in Ukraine, 16 February to 15 May 2017,
paragraph 144.
74 Ibid. paragraph 145.
75 UN Basic Principles on the Role of Lawyers adopted by the Eighth United Nations
Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27
August to 7 September 1990, Principles 16 and 22.
76 OHCHR report on the human rights situation in Ukraine, 15 March to 2 April 2014,
paragraph 86.
77 See List of Issues in Relation to the Seventh Periodic Report of the Russian Federation,
Human Rights Committee, 18 December 2014, CCPR/C/RUS/Q/7/Add.1, paragraph 173.
78 http://khpg.org/en/index.php?id=1457018864.
79 HRMMU interview, 13 August 2017.
80 http://www.telegraph.co.uk/news/worldnews/europe/ukraine/10716412/Ukrainesunlikeliest-
funeral-the-only-two-foes-to-die-in-Russias-Crimea-takeover-are-mournedtogether.
html.
81 http://www.independent.co.uk/news/world/europe/ukraine-naval-officer-shot-dead-byrussian-
solider-in-crimea-9243306.html.
82 https://ru.krymr.com/a/27740314.html.
v
83https://www.kyivpost.com/article/content/euromaidan/two-die-in-rallies-outside-crimeanparliament-
says-ex-head-of-mejlis-337708.html.
84 OHCHR report on the human rights situation in Ukraine, 16 November 2015 to 15
February 2016, paragraph 187.
85 See Article 2, Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment; Article 7, International Covenant on Civil and Political Rights;
and Article 3, European Convention for the Protection of Human Rights and Fundamental
Freedoms.
86 See OHCHR report on the human rights situation in Ukraine, 15 June 2014, paragraphs
299-303 and 309 and OHCHR report on the human rights situation in Ukraine, 18 August
to 16 September 2014, paragraph 165.
87 See Report by Nils Muiznieks, Commissioner for Human Rights of the Council of
Europe, following his Mission in Kyiv, Moscow and Ukraine, from 7 to 12 September
2014, paragraph 17.
88 See List of Issues in Relation to the Seventh Periodic Report of the Russian Federation,
Human Rights Committee, 18 December 2014, CCPR/C/RUS/Q/7/Add.1, paragraph 174.
89 Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and
Summary Executions, Principle 2.
90 HRMMU interviews, 7 September 2016 and 11 December 2016.
91 OHCHR report on the human rights situation in Ukraine, 16 August to 15 November
2016, paragraph 158.
92 OHCHR report on the human rights situation in Ukraine, 16 November 2016 to 15
February 2017, paragraph 133.
93 Rule 99, Customary International Humanitarian law.
94 Article 9, International Covenant on Civil and Political Rights;
UN Human Rights Committee (HRC), General comment no. 35, Article 9 (Liberty and
security of person), 16 December 2014, CCPR/C/GC/35.
95 Communication No. 458/1991, A. W. Mukong v. Cameroon (Views adopted on 21 July
1994), in UN doc. GAOR, A/49/40 (vol. II), p. 181, paragraph 9.8.
96 OHCHR report on the human rights situation in Ukraine, 16 February to 15 May 2016,
paragraphs 183 to 185.
97 OHCHR report on the human rights situation in Ukraine, 16 November 2015 to 15
February 2016, paragraph 202.
98 HRMMU interview, 20 October 2014.
99 Article 2, Convention for the Protection of All Persons from Enforced Disappearance.
100 Rule 99, Customary International Humanitarian Law.
101 Rule 90, Ibid.
102 Rule 89, Ibid.
103 Rule 123, Ibid.
104 See Cyprus v. Turkey, 25781/94, Judgment, European Court of Human Rights, 10 May
2001, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-59454.
105 Reshat Ametov, a pro-Ukrainian activist, was abducted in Simferopol and found dead
two weeks later.
106 The Ukrainian NGO CrimeaSOS estimates that between March 2014 and March 2017,
agents of the Russian Federation were directly or indirectly involved in at least 36 cases of
enforced disappearances. See Enforced Disappearance in Crimea Annexed by Russian
Federation 2014-2016, CrimeaSOS, p. 2.
107 OHCHR report on the human rights situation in Ukraine, 15 November 2014,
paragraphs 213-215.
108 Information provided by the Prosecutor’s office of the Republic of Crimea to
CrimeaSOS on 29 November 2016.
vi
109 Ibid.
110 Ibid.
111 The Federal List of Extremist Materials was introduced by Federal Law No. 114-FZ “On
Combating Extremist Activities” (25 July 2002).
112 See Opinion No. 660/2011on the Federal Law on Combating Extremist Activity of
Russian Federation, The European Commission For Democracy Through Law (Venice
Commission), 1 June 2012.
113 Annual Report of the High Commissioner for Human Rights of the Russian Federation
for 2014, Moscow, 2015, p. 99
114 See “The Situation of the Crimean Tatars since the Annexation of Crimea by the Russian
Federation”, Report prepared by an Unofficial Turkish Delegation in Crimea on 27-30
April 2015 (5 June 2015), pp. 9-10.
115 OHCHR report on the human rights situation in Ukraine, 18 August to 16 September
2014, paragraphs 155-156.
116 See “The Situation of the Crimean Tatars since the Annexation of Crimea by the
Russian Federation”, ibid. p. 9.
117 http://fedsfm.ru/documents/terrorists-catalog-portal-act
118 http://www.krim.fsin.su/news/detail.php?ELEMENT_ID=129921.
119 Article 14(5), International Covenant on Civil and Political Rights.
120 Statistics of the State Penitentiary Service of Ukraine as of 20 March 2014,
http://www.kvs.gov.ua/peniten/control/main/uk/publish/article/735176.
121 Annual Report of the High Commissioner for Human Rights of the Russian Federation
for 2015, Moscow, p. 72
122 Report of the High Commissioner for Human Rights in the Republic of Crimea, 2016, p.
63, http://ombudsman.rk.gov.ru/file/doklad_2016.pdf.
123 Rule 58, United Nations Standard Minimum Rules for the Treatment of Prisoners (The
Nelson Mandela Rules).
124 OHCHR report on the human rights situation in Ukraine, 16 February to 15 May 2017,
paragraph 150.
125 HRMMU interview, 21 March 2017.
126 Ibid.
127 One Ukrainian NGO claimed on 31 May 2016 that 2,200 prisoners had been transferred
from Crimea to the Russian Federation, https://hromadskeradio.org/programs/hromadskahvylya/
2200-krymskyh-uvyaznenyh-bulo-peremishcheno-na-terytoriyu-rosiyiadvokat#.
V01n6plSZF0.twitter.
128 OHCHR report on the human rights situation in Ukraine, 16 May to 15 August 2016,
paragraph 181.
129 The trial started on 21 July 2015, and on 25 August 2015, a military tribunal sentenced
him to 20 years of imprisonment.
130 See Articles 49 and 76, Geneva Convention IV.
131 OHCHR report on the human rights situation in Ukraine, 16 February to 15 May 2017,
paragraph 151.
132 Ibid. paragraph 152.
133 See Article 76, Geneva Convention IV; Article 10, International Covenant on Civil and
Political Rights; Article 3, European Convention on Human Rights and Fundamental
Freedoms, and Kudla v. Poland, 30210/96, European Court of Human Rights, 26 October
2000, paragraph 94.
134 Article 7, Treaty of Accession between the Republic of Crimea and the Russian
Federation (18 March 2014).
135 This figure was announced by the military commissioner of Sevastopol, Alexei
Astakhov, on 25 May 2017.
vii
136 HRMMU interviews, 20 November 2015 and 13 October 2016.
137 Article 51, Geneva Convention IV.
138 See OSCE Special Monitoring Mission to Ukraine thematic report, “Freedom of
movement across the administrative boundary line with Crimea” (21 June 2015), available
at: http://www.osce.org/ukraine-smm/165691.
139 See Article 12, International Covenant on Civil and Political Rights; and Articles 2 and
3, Protocol 4 to the European Convention on Human Rights and Fundamental Freedoms.
140 HRMMU interview, 5 May 2017.
141 See Article 23, International Covenant on Civil and Political Rights; Article 10,
Convention on the Right of the Child; Article 8, European Convention on Human Rights
and Fundamental Freedoms.
142 Article 49, Geneva Convention IV.
143 HRMMU interview, 26 May 2017.
144 The decision on the undesirability of stay of Mr. Dzhemilev and Mr. Chubarov in the
Russian Federation was taken pursuant to Article 27 of the Federal Law “On the Procedure
of Exit from the Russian Federation and Entry to the Russian Federation. See Annual
Report of the High Commissioner for Human Rights of the Russian Federation for 2014, p.
101.
145 HRMMU interview, 17 October 2016.
146 HRMMU interviews, 19 February 2015, 22 September 2015 and 3 February 2016.
147 See Article 10, Law of Ukraine “On Guaranteeing the rights and freedoms of citizens
and on the legal regime on the temporarily occupied territory of Ukraine”.
148 On 23 November 2016, 14 citizens of Uzbekistan and one Azeri citizen travelling from
Crimea to mainland Ukraine were stopped by Ukrainian border guards on the ABL and
issued with three-year entry bans to Ukraine for having accessed Crimea through the
Russian Federation, in violation of Ukrainian legislation.
149 See Government Regulation No. 367 of 4 June 2015.
150 OHCHR report on the human rights situation in Ukraine, 16 May to 15 August 2017,
paragraph 148.
151 OHCHR report on the human rights situation in Ukraine, 16 August to 15 November
2015, paragraphs 144 to 146.
152 OHCHR report on the human rights situation in Ukraine, 16 November 2015 to 15
February 2016, paragraph 198.
153 OHCHR report on the human rights situation in Ukraine, 16 May to 15 August 2016,
paragraph 175.
154 Rule 104, Customary International Humanitarian Law.
155 See Article 18(3), International Covenant on Civil and Political Rights, and Article 9(2),
European Convention on Human Rights and Fundamental Freedoms.
156 Maximum fines amount to the equivalent of $780 for individuals or $15,000 for
organizations.
157 See Article 5.26, part 4 of the Code of Administrative Offenses of the Russian
Federation (“Carrying out missionary activity in violation of the requirements of the law”).
158 See Article 5.26, part 3, ibid.
159 OHCHR report on the human rights situation in Ukraine, 7 May to 7 June 2014,
paragraph 315.
160 OHCHR report on the human rights situation in Ukraine, 16 July to 16 August 2014,
paragraph 163.
161 OHCHR report on the human rights situation in Ukraine, 1 to 30 November 2014,
paragraph 84.
162 OHCHR report on the human rights situation in Ukraine 15 December 2014, paragraph
84.
viii
163 On 24 June 2014, the FSB raided a madrassa in the village of Kolchugino, in the
Simferopol district. On 13 August 2014, three madrassas in Simferopol were searched. On
22 September 2014, a seven-hour search was carried out at the Derekoi Mosque in Yalta.
164 See report of the Independent Expert on minority issues, Rita Izsák, concerning the
protection and promotion of the rights of religious minorities, A/68/268, paragraph 61: “It
is essential to ensure that all procedures for registration are accessible, inclusive, nondiscriminatory
and not unduly burdensome. Registration procedures designed to limit
beneficiaries due to political or social intolerance run afoul of human rights standards”.
See also report of the Special Rapporteur on freedom of religion or belief, Heiner
Bielefeldt, A/HRC/22/51, paragraph 42: “failure to register, or re-register periodically,
could lead to legal vulnerability that also exposes the religious minorities to political,
economic and social insecurity”.
165 The term “religious organizations” includes parishes, congregations, theological schools,
monasteries, and other constituent parts of a church or religious group.
166 http://khpg.org/en/index.php?id=1497831415.
167 https://uawire.org/news/jehovah-s-witness-follower-in-the-crimea-dies-after- his-trial.
168 The churches in Perevalne (Simferopol district) and Sevastopol were seized while those
in Krasnoperekopsk, Kerch and Saki were closed.
169 https://ru.krymr.com/a/news/28721834.html.
170 OHCHR report on the human rights situation in Ukraine, 16 May to 15 August 2016,
paragraphs 165 to 167.
171 OHCHR report on the human rights situation in Ukraine, 16 November 2015 to 15
February 2016, paragraphs 199-200.
172 OHCHR report on the human rights situation in Ukraine, 17 September to 31 October
2014, paragraph 212.
173 OHCHR report on the human rights situation in Ukraine, 18 August to 16 September
2014, paragraph 159.
174 According to the International Covenant on Civil and Political Rights (Article 21) and
the European Convention on Human Rights and Fundamental Freedoms (Article 11), state
authorities have a responsibility to respect and ensure freedom of peaceful assembly,
including by protecting assemblies from attacks or disruption by third parties. Any
restrictions of this right must be proportionate to achieve a legitimate aim that is
demonstrably necessary in a democratic society.
175 OHCHR report on the human rights situation in Ukraine, 16 May to 15 August 2015,
paragraph 175.
176 European Court of Human Rights, Stankov and the United Macedonian Organization
Ilinden v. Bulgaria (2001), paragraph 94.
177 See A/HRC/31/66 paragraph 30, and A/HRC/23/39, paragraph 63.
178 See Amnesty International “One Year On. Violations of the right to freedom, expression
and association in Crimea”, March 2015, pp 9-14.
179 OHCHR report on the human rights situation in Ukraine, 7 May to 7 June 2014,
paragraphs 298 to 301 and 303.
180 Ibid. paragraph 302.
181 OHCHR report on the human rights situation in Ukraine, 17 September to 31 October
2014, paragraph 230.
182 Ministry of Foreign Affairs of the Russian Federation, submission to UNESCO, 14 April
2015, available at: http://russianunesco.ru/eng/article/2070).
183 OHCHR report on the human rights situation in Ukraine, 16 February to 15 May 2015,
paragraphs 165-166.
ix
184 See Fourth Report submitted by the Russian Federation pursuant to Article 25,
paragraph 2 of the Framework Convention for the Protection of National Minorities
(Received on 20 December 2016), p. 28.
185 Human Rights Committee, General Comment No. 34, Article 19: Freedoms of opinion
and expression, UN Doc. CCPR/C/GC/34 (12 September 2011), paragraph 42.
186 OHCHR report on the human rights situation in Ukraine, 16 May to 15 August
2017,paragraph 139.
187 See Amnesty International Public statement, “Crimea: Rapidly Deteriorating Human
Rights Situation in the International Blind Spot”, 17 March 2017, p. 5.
188 HRMMU interview, 29 June 2014.
189 See “The situation of national minorities in Crimea following its annexation”, European
Parliament, Policy Department, Directorate General for External Policies, 2016, p.19,
available at:
http://www.europarl.europa.eu/RegData/etudes/STUD/2016/578003/EXPO_STU(2016)578
003_EN.pdf.
190 Russian Federal Law “On Amending the Federal Law ‘Enacting chapter 1 of the Civil
Code of the Russian Federation’ and Article 1202(3) of the Civil Code of the Russian
Federation” (5 May 2014), available at: http://base.garant.ru/70648870/.
191 Russian Federal Law “On Amending some legal acts of the Russian Federation” (23
May 2015) and Russian Federal Law “On Introducing Amendments to Certain Legislative
Acts of the Russian Federation Regarding the Regulation of Activities of Non-Commercial
Organizations Performing the Function of Foreign Agents” (20 July 2012).
192 This number includes “autonomous non-commercial organizations”, “national-cultural
autonomies” and “non-government organizations”. See http://unro.minjust.ru/NKOs.aspx.
193 http://rgo.informjust.ua/.
194 HRMMU interview, 3-4 September 2017
195 OHCHR report on the human rights situation in Ukraine, 18 August to 16 September
2014, paragraph 165.
196 Ibid.
197 See law “On special aspects of regulation of property and land matters in the Republic
of Crimea” (31 July 2014), Resolution of the ‘State Council of the Republic of Crimea’
“On aspects of administration of the property of the Republic of Crimea” (30 April 2014)
with subsequent amendments. Other legal acts seeking to facilitate the process of
nationalization include the law “On the administration and disposition of state-owned
property in the Republic of Crimea” (8 August 2014), and the Resolution of the ‘State
Council of the Republic of Crimea’ “On property nationalization of agricultural
companies, institutions and organizations in the Republic of Crimea” (26 March 2014).
198 This figure is based on information collected by OHCHR from open sources.
199 In the city of Sevastopol, nationalization was conducted in accordance with a Resolution
of the Sevastopol city government “On some aspects of the nationalization of property” (28
February 2015) with subsequent amendments.
200 See Resolutions of the Sevastopol city Government “On some aspects of the
nationalization of property” No. 118-ПП, 123-ПП, 662-ПП of 28 February 2015, 28
February 2015 and 8 July 2016 respectively.
201 Articles 46 and 56, 1907 Hague Regulations.
202 Ibid. Article 55.
203 See “The Integration of Formerly Deported People in Crimea, Ukraine”; Needs
Assessment of the OSCE High Commissioner on National Minorities, August 2013, pp. 9-
15.
204 Presidential Decree No. 615/2010 proposed taking “measures, in accordance with
established procedures, for facilitating the adoption of the Concept of the State ethnox
national policy and programmes for the period until 2015 for resettlement of Crimean
Tatars, other persons deported on the ground of ethnic origin, and their descendants who
have returned or are returning to Ukraine for permanent residence, their adaptation and
integration in Ukrainian society.”
205 On 10 May 2014, the Russian Federation Minister of Crimean Affairs stated at a press
conference that the Russian authorities would deal with cases of unauthorized acquisition
of land in Crimea "with full responsibility and caution”; see OHCHR report on the human
rights situation in Ukraine, 7 May to 7 June 2014, paragraph 320.
206 Law ‘On provision of land plots which are in state or municipal property and on certain
issues of land relations’ (15 January 2015), available at
http://crimea.gov.ru/textdoc/ru/7/act/66z.pdf.
207 Resolution No. 2206 “On the demolition of illegally constructed buildings in the
municipal district of Simferopol”, adopted on 23 September 2016.
208 See Article 11(1), International Covenant on Economic, Social and Cultural Rights;
Article 17(1), International Covenant on Civil and Political Rights; Article 1, European
Convention on Human Rights and Fundamental Freedoms; and UN Committee on
Economic, Social and Cultural Rights (CESCR); General Comment No. 7: The right to
adequate housing (Art. 11.1): forced evictions, 20 May 1997, E/1998/22
209 See Resolutions 1993/77 and 2004/28 of the United Nations Commission on Human
Rights.
210 OHCHR report on the human rights situation in Ukraine, 16 February to 15 May 2015,
paragraph 163.
211 See “Report of the Human Rights Assessment Mission on Crimea (6-18 July
2015)”,OSCE Office for Democratic Institutions and Human Rights and High
Commissioner for National Minorities, paragraph 258, 17 September 2015, available at:
http://www.osce.org/odihr/report-of-the-human-rights-assessment-mission-oncrimea?
download=true
212 See law No.1236/30-10 (4 April 2017), which regulates the use of official languages in
the spheres of education, legislation, public relations, official correspondence and daily life.
213 OHCHR report on the human rights situation in Ukraine, 15 May to 16 August 2016,
paragraphs 176-177.
214 OHCHR report on the human rights situation in Ukraine, 16 August to 15 November
2016, paragraphs 167 to 169.
215 See Application of the International Convention for the Suppression of the Financing of
Terrorism and of the International Convention on the Elimination of all forms of racial
discrimination (Ukraine v. Russian Federation); Request for the indication of provisional
measures, 19 April 2017, General List No. 166, paragraph 106.
216 Committee on the Elimination of Racial Discrimination, CERD/C/RUS/CO/23-24.
217 See Article 26, International Covenant on Civil and Political Rights; Articles 2 and 13,
International Covenant on Economic, Social and Cultural Rights; Article 29, Convention on
the Right of the Child; Article 5, Convention on the Elimination of All Forms of Racial
Discrimination; Article 10, Convention on the Elimination of Discrimination Against
Women ; Articles 1, 2 and 5, UNESCO Convention against Discrimination in Education;
Articles 26 and 29, International Labor Organization Convention concerning Indigenous
and Tribal Peoples in Independent Countries, No. 169.
218 See Committee on Economic, Social and Cultural Rights, General Comment No. 13,
(twenty-first session, 1999), the right to education (article 13 of the Covenant),
E/C.12/1999/10, 8 December 1999, paragraphs 51-52.
219 See Information on the Situation in the Republic of Crimea (Russian Federation) in the
Fields of UNESCO Competence, Received from Russian Competent Authorities (As of 10
October 2014); 195 EX/5.INF.5, Paris, 21 October 2014, p.14.
xi
220 See “Situation with Access to Education in the Native Language in Crimea”, Crimean
Human Rights Group, available at:
http://www.civicsolidarity.org/sites/default/files/detailed_report_education_crimea_a4_.pd
f.
221 The university was made a part of the Crimean Federal University (CFU) as the Taurida
Academy in Crimea. Following this, the Ukrainian authorities relocated the Vernadsky
Taurida National University to mainland Ukraine, and reopened it in Kyiv on 27 September
2016.
222 See Application of the International Convention for the Suppression of the Financing of
Terrorism and of the International Convention on the Elimination of all forms of racial
discrimination (Ukraine v. Russian Federation); Request for the indication of provisional
measures, 19 April 2017, General List No. 166, paragraph 106.
223 According to the Crimean Tatar NGO Maarifchi, among 1st grade children in September
2016, 825 out of approximately 20,000 were educated in the Crimean Tatar language.
224 See “Situation with Access to Education in the Native Language in Crimea”, Crimean
Human Rights Group, available at:
http://www.civicsolidarity.org/sites/default/files/detailed_report_education_crimea_a4_.pd
f.
225 https://www.15minut.org/news/172009-sevastopolskie-vrachi-uvolnyayutsya-iz-zanizkih-
zarplat-i-vysokih-cen-na-zhile.
226 HRMMU interview, 20 December 2016.
227 This information was mentioned by the Minister of Health of Crimea in November
2016. See http://podpricelom.com.ua/en/read/social-analitics-read/minister-medicalcenters-
crimea-staffed-doctors-one-third.html.
228 OHCHR report on the human rights situation in Ukraine, 16 May to 15 August 2015,
paragraph 186.
229 The Committee on Economic Social and Cultural Rights expressed its concern “about
the continued ban on the medical use of methadone and buprenorphine for treatment of
drug dependence” in the Russian Federation “and the fact that the Government does not
support opioid substitution therapy (OST) and needle and syringe programmes.” See fifth
periodic report of the Russian Federation (E/C.12/RUS/5), Concluding Observations, 1
June 2011, paragraph 29.
230 In Crimea, OST was legal since 2006.
231 See “Substitution maintenance treatment in Ukraine: Humanitarian and medical
mission 16-21 May 2014”, Expert report of the Pompidou Group, P-PG/ (2014) Misc. 1rev.
232 https://www.theguardian.com/world/2015/jan/20/ukrainian-drug-addicts-dying-due-totreatment-
ban-says-un.
233http://www.rferl.org/a/crimeas-methadone-ban-hitting-rehab-patientshard/
25429665.html.
234 http://podpricelom.com.ua/en/read/social-analitics-read/increase-hiv-incidencerecorded-
crimea.html.
235 See Article 11, International Covenant on Civil and Political Rights; Articles 24(2)(c)
and 27, Convention on the Right of the Child; and Article 28, CRPD; and Article 25,
Universal Declaration of Human Rights.
236 Article 54(2), Customary International Humanitarian Law.
237 OHCHR report on the human rights situation in Ukraine, 15 June 2014, paragraph 322.
238 http://tass.ru/en/economy/749184.
239 http://tass.ru/en/russia/790555.
240 Committee on Economic, Social and Cultural Rights, General Comment No 4, The Right
to Adequate Housing (Article 11(1) of the Covenant), 13 December 1991, paragraph 8(b),
E/1992/23, Annex 3.
xii
241 OHCHR report on the human rights situation in Ukraine, 16 May to 15 August 2016,
paragraph 200.
242 Committee on Economic, Social and Cultural Rights, General Comment No. 3: The
Nature of States Parties' Obligations (Art. 2, Para. 1, of the Covenant), 14 December 1990,
E/1991/23.
243 Under international human rights law, the Government remains obliged to ensure the
satisfaction of minimum essential levels of social and economic rights (e.g. primary health
care, essential food stuff, basic shelter and housing and most basic forms of education); see
Committee on Economic, Social and Cultural Rights, General Comment No. 3, ibid.
Annex 760
United Nations Human Rights Council, Report of the Special Rapporteur on Minority Issues on
Her Mission to Ukraine (7–14 April 2014), U.N. Doc. A/HRC/28/64/Add.1 (26 August 2014)

GE.15-01100 (E)
􀀍􀀔􀀘􀀓􀀔􀀔􀀓􀀓􀀍
Human Rights Council
Twenty-eighth session
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Special Rapporteur on minority issues,
Rita Izsák
Addendum
Mission to Ukraine* **
Summary
The overwhelming majority of the minority and other representatives consulted by
the Special Rapporteur on minority issues during her visit to Ukraine described a history of
harmonious inter-ethnic and interfaith relations and a legislative, policy and social
environment that was generally conducive to the protection of their rights, including
cultural and linguistic rights. Nevertheless, minority issues have become highly politicized
as the situation of political and social unrest has emerged in some regions since February
2014. That threatens to create and widen fractures along national, ethnic and linguistic lines
and undermine peaceful coexistence if not quickly resolved. An end to violence and
constructive consultations on minority rights must be primary objectives for all
stakeholders.
The overall human rights and minority rights situation and the civil and political,
economic, social and cultural conditions experienced by minorities cannot justify any
violent action or incitement and support of such action by any party, national or
international. While there are challenges relating to minority issues, some radical elements
are intent on promoting and inciting disunity. It is essential to establish a process of
national and regional dialogue with the objective of understanding the concerns and issues
* The summary of the present report is being issued in all official languages. The report itself,
contained in the annex to the summary, is being issued in the language of submission and Russian
only.
** Late submission.
United Nations A/HRC/28/64/Add.1
General Assembly Distr.: General
27 January 2015
Original: English
A/HRC/28/64/Add.1
2
of all minority communities and ensuring that they are addressed appropriately and rapidly
through democratic mechanisms and not through recourse to force or coercion. Moderate
voices must come to the fore. First and foremost, solutions to the current situation must
come from the citizens of Ukraine themselves.
A historical good governance deficit and widespread corruption have contributed to
a lack of trust in political institutions and actors and have significantly contributed to
instability. Measures are required to reinforce the minority rights infrastructure and to build
confidence that minority rights will be protected in law and in practice. Such measures
should include strengthening of legal protection, enhancing institutional attention to
minority issues, and instituting stronger and permanent consultation mechanisms. All
measures should be adequately funded and politically supported.
A/HRC/28/64/Add.1
3
Annex
[English and Russian only]
Report of the Special Rapporteur on minority issues
on her mission to Ukraine (7–14 April 2014)
Contents
Paragraphs Page
I. Introduction ............................................................................................................. 1–3 4
II. Methodology ........................................................................................................... 4–7 4
III. Minority rights: legal and institutional framework.................................................. 8–18 5
IV. Minority rights in the context of political and social unrest in 2014....................... 19–28 8
V. Issues of minority identity in Ukraine ..................................................................... 29–34 10
VI. Language and cultural rights of minorities.............................................................. 35–43 11
VII. Situation of internally displaced persons and Crimean Tatars ................................ 44–56 13
VIII. Situation of religious minorities ............................................................................. 57–62 16
IX. Situation of the Roma.............................................................................................. 63–67 17
X. Conclusions and recommendations ......................................................................... 68–97 18
A/HRC/28/64/Add.1
4
I. Introduction
1. The Special Rapporteur on minority issues, Rita Izsák, conducted an official visit to
Ukraine between 7 and 14 April 2014, at the invitation of the Government. She visited
Donetsk, Kyiv, Odesa and Uzhgorod. She consulted widely with hundreds of stakeholders,
including senior government officials from the Ministry of Foreign Affairs and the Ministry
of Culture, representatives of civil society and minority communities, religious leaders,
political actors, academics, journalists and internally displaced persons (IDPs), the
diplomatic community, United Nations bodies and other national and international actors.
She thanks the Government and all of those who consulted with her and provided
information.
2. Key objectives of her visit were to hear the voices of minorities and to understand
their issues and concerns, both long-standing and current. The Special Rapporteur met
representatives of communities including those who identified as ethnic Armenians,
Azerbaijanis, Bulgarians, Crimean Tatars, Gagauzis, Germans, Greeks, Hungarians,
Moldovans, Poles, Roma, Romanians, Russians, Ruthenians, Slovaks, Vietnamese and
members of Jewish communities. She also met ethnic Ukrainians to learn about their
situation as de facto minorities in some localities including the Autonomous Republic of
Crimea.
3. The most recent census was conducted in 2001. The main minority groups recorded
include Russians 8,334,100 (17.3 per cent), Belarusians 275,800 (0.6 per cent), Moldovans
258,600 (0.5 per cent), Crimean Tatars 248,200 (0.5 per cent) and Bulgarians 204,600 (0.4
per cent). There are smaller populations of Armenians, Hungarians, Jews, Poles,
Romanians and other nationalities.
II. Methodology
4. The Special Rapporteur’s evaluation is based on the provisions of the Declaration on
the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities
and other relevant international standards, from which she has identified four broad areas of
global concern: (a) the protection of a minority’s survival by combating violence against it
and preventing genocide; (b) the protection and promotion of the cultural identity of
minority groups, and their right to enjoy their collective identity and to reject forced
assimilation; (c) the guarantee of the rights to non-discrimination and to equality, including
ending structural or systemic discrimination and the promotion of affirmative action, when
required; and (d) the right to the effective participation of minorities in public life and in
decisions that affect them.
5. The Special Rapporteur focuses her work on minority groups whose generally nondominant
situations require measures to allow them to exercise all their rights, including
minority rights, to the fullest. Apart from the national dimensions, minority issues have
regional and local dimensions. A group that may constitute a dominant majority or a
significant proportion of the population nationally or in a particular region may be
numerically smaller and non-dominant in another region. Minority rights protection must
also be applied fully for those who find themselves in the situation of being de facto
minorities in the localities in which they live.
6. In view of the current political situation in the Autonomous Republic of Crimea and
eastern Ukraine, the Special Rapporteur notes that ethnic Ukrainians may constitute de
facto minorities in some regions where they live. Some communities, notably Crimean
Tatars, self-identify as indigenous peoples. Their engagement with her mandate on minority
A/HRC/28/64/Add.1
5
issues in no way undermines or is incompatible with their claims to indigenous status and
to enjoy the rights contained in the United Nations Declaration on the Rights of Indigenous
Peoples.
7. In its resolution 68/262 of 27 March 2014, the General Assembly upheld the
territorial integrity of Ukraine and underscored that the referendum held in the Autonomous
Republic of Crimea on 16 March 2014 had no legal validity. The visit and findings of the
Special Rapporteur are in full conformity with resolution 68/262 regarding recognition of
the continuing status of the Autonomous Republic of Crimea as the territory of Ukraine
under international law. The present report does not provide a comprehensive analysis or
chronology of events resulting in political and social unrest and conflict in 2014, but
summarizes developments relevant to minority issues. The report includes references to
events after the Special Rapporteur’s visit and has benefited from the reports of the Office
of the United Nations High Commissioner for Human Rights (OHCHR)1 and others.
III. Minority rights: legal and institutional framework
8. Ukraine is a party to several of the international human rights instruments that are
most relevant to minority rights, including: the International Covenant on Civil and
Political Rights, the International Covenant on Economic, Social and Cultural Rights, and
the International Convention on the Elimination of All Forms of Racial Discrimination.
Article 9 of the Constitution of Ukraine provides that ratified international treaties are part
of the national legislation. Ukraine is a member of the Council of Europe, and has been a
State party to the Convention for the Protection of Human Rights and Fundamental
Freedoms since 1997. It has signed and ratified the major European multilateral treaties for
the protection of national minorities: the Framework Convention for the Protection of
National Minorities, and the European Charter for Regional or Minority Languages, and
falls under their monitoring procedures.
9. The Constitution of Ukraine2 (art. 11) requires that the State “promotes the
consolidation and development of the Ukrainian nation, of its historical consciousness,
traditions and culture, and also the development of the ethnic, cultural, linguistic and
religious identity of all indigenous peoples and national minorities”. The right to equality
and non-discrimination is enshrined under article 24, which prohibits “privileges or
restrictions based on race, colour of skin, political, religious and other beliefs, sex, ethnic
and social origin, property status, place of residence, linguistic and other characteristics”.
10. Article 10 establishes that the State language is Ukrainian but that “the free
development, use and protection of Russian, and other languages of national minorities of
Ukraine, is guaranteed”. Article 53 recognizes the right to native-instruction: “Citizens who
belong to national minorities are guaranteed in accordance with the law the right to receive
instruction in their native language, or to study their native language in State and communal
educational establishments and through national cultural societies”.
11. On 25 June 1992, Law 2494–XII on National Minorities3 was adopted. It defines
national minorities as citizens who are not ethnic Ukrainian but hold feelings of a national
identification and affinity among themselves (art. 3). It established a consultative body, the
Council of Representatives for Public Associations of National Minorities, within the
1 Available from www.ohchr.org/en/countries/ENACARegion/Pages/UAIndex.aspx.
2 English version provided by Ukraine to the Venice Commission, available from
www.venice.coe.int/webforms/documents/?pdf=CDL-REF(2014)012-e.
3 Available from http://zakon2.rada.gov.ua/laws/anot/en/2494-12.
A/HRC/28/64/Add.1
6
former Ministry for Nationalities (art. 5). It guarantees cultural rights including, inter alia,
native-language instruction in State educational institutions, the celebration of national
holidays, the right to freedom of religion, and protection of historical and cultural heritage
(art. 6). Minority languages may also be used, alongside Ukrainian, in workplaces where
the majority of the population belongs to a minority (art. 8). The right to political
participation at all levels is guaranteed (art. 9). A specific State budget is established to
support “the development of national minorities” (art. 16). Article 19 provides that in case
of conflict between that norm and international law, the latter has primacy.
12. Since the Law on National Minorities was adopted, the institutional framework of
national minorities has undergone numerous changes and the Ministry for Nationalities has
been abolished. In 2010, Presidential decree No. 1085/2010 disbanded the State Committee
on Nationalities and Religions, which was the main body in charge of minority issues,
following institutional reform, and its competencies were assumed by the Ministry of
Culture. At the time of the Special Rapporteur’s visit, the Department of Organizations and
National Minorities had primary responsibility for minority issues within the Ministry of
Culture and had only six staff members.
13. In 2013, the Council of Europe Advisory Committee on the Framework Convention
for the Protection of National Minorities stated that the Law on National Minorities was
“outdated”, “too vague in its provisions” and “inconsistent”, resulting in “a gap in legal
certainty for persons belonging to national minorities with regard to the enjoyment of their
constitutionally guaranteed rights, such as in the areas of education, language or
representation in elected bodies”.4 The European Commission against Racism and
Intolerance of the Council of Europe has called for revisions to the Law to include
provisions prohibiting direct and indirect racial discrimination.5
14. Law 5029–VI on Principles of the State Language Policy6 was adopted on 3 June
2012, and constitutes, to date, the primary national legislation on national minorities’
linguistic rights, and the use of minority languages in public life. Recognition of the status
as “regional languages” is provided to 17 languages (Belorusian, Bulgarian, Crimean Tatar,
Gagauz, German, Hungarian, Karaim, Krymchak, Modern Greek, Moldovan, Polish,
Romani, Romanian, Russian, Rusyn, Slovak and Yiddish) in regions where the language is
spoken by at least 10 per cent of the population (art. 7). That allows minority languages to
be used in public administration, schools and courts alongside Ukrainian. Other provisions
include the right to use minority languages in Parliament, the publication of the acts of the
central State authorities, guarantees of freedom to receive media broadcasts from
neighbouring countries in regional or minority languages, and free circulation of
information in the written press in those languages. Despite moves to abolish the law in
February 2014, these were vetoed by the interim President and, at the time of writing, the
law remains in force while under review.
15. The 2001 Criminal Code of Ukraine criminalizes (art. 161) inciting national, racial
or religious enmity and hatred, humiliation of national honour and dignity, insulting
citizens’ feelings with respect to their religious convictions, and any direct or indirect
restriction of rights, or granting direct or indirect privileges to citizens based on race, colour
of skin, political, religious and other convictions, sex, ethnic and social origin, property
status, place of residence, linguistic or other characteristics. In 2009 amendments expanded
4 Available from
www.coe.int/t/dghl/monitoring/minorities/3_FCNMdocs/PDF_3rd_OP_Ukraine_en.pdf.
5 Available from www.coe.int/t/dghl/monitoring/ecri/country-by-country/ukraine/UKR-CbC-IV-2012-
006-ENG.pdf.
6 Available from http://zakon2.rada.gov.ua/laws/anot/en/5029-17.
A/HRC/28/64/Add.1
7
the scope of provisions and penalties for inciting racial, national and religious hatred,
intolerance and discrimination.7
16. The legislative framework for political representation and the electoral system
includes the Constitution, the Law on Political Parties (2001),8 and the Law on Election of
the People’s Deputies (2011).9 The 2012 Law on National Minorities (art. 9) contains a
general provision regarding the representation of minorities among candidates for elections,
which in principle guarantees minorities the right “to be elected or to be appointed to any
position in the legislative, executive, judicial bodies, in the bodies of local or regional selfgovernment”.
10 However, no specific measures are provided to ensure the political
participation of minorities. Some interviewees indicated that the current formulation of
electoral districts and restrictions on minority parties should be reconsidered in order to
improve the possibility for minority representatives to be elected to Parliament.
17. The Ukrainian Parliament Commissioner for Human Rights (the Ukrainian
Ombudsperson11) is a constitutional, independent body created in December 1997. The
Commissioner conducts legal proceedings and inspections and receives individual
complaints. A 2010 special report of the Ukrainian Parliament Commissioner for Human
Rights noted that a monitoring programme on the human rights status of national minorities
had been initiated by the Ombudsman’s office.12 The European Commission against
Racism and Intolerance recommended the establishment of a special representative of the
Ombudsman with competence to deal with minority issues and racial discrimination.13
18. The Ministry of Culture stated that processes were under way to strengthen and
expand institutional attention to minority issues, including proposals to establish new
independent bodies with responsibility for minorities and inter-ethnic affairs. At the time of
writing full details of those proposals were unavailable. The Special Rapporteur urges the
authorities to put in place fully inclusive and participatory processes to establish such
bodies and to provide assurances that they will be representative of minorities and have
appropriate budgets and powers. She noted a general lack of awareness of minority rights
amongst minorities and found that minorities mainly focused attention on intercommunal
relationships, but often seemed to have limited knowledge of government obligations to
protect and promote minority rights.
7 Available from www.coe.int/t/dghl/monitoring/ecri/country-by-country/ukraine/UKR-CbC-IV-2012-
006-ENG.pdf.
8 Available from http://zakon3.rada.gov.ua/laws/anot/2365-14.
9 Available from
www.epde.org/tl_files/EPDE/RESSOURCES/Electoral%20Legislation/Election%20Code%20of%20
Ukraine_EN.pdf.
10 Denys Kovryzhenko, Regulation of Political Parties in Ukraine: The Current State and Direction of
Reforms (Agency for Legislative Initiatives, OSCE/ODIHR, 2010), p. 86, available from
http://parlament.org.ua/upload/docs/Party%20Report%20Ukraine.pdf.
11 See www.ombudsman.gov.ua/en/index.php?view=article&catid=38%3A2010-12-15-09-15-
51&id=1145%3Alaw-of-ukraine-qon-the-ukrainian-parliament-commissioner-for-humanrightsq&
format=pdf&option=com_content&Itemid=25.
12 Available from www.ombudsman.gov.ua/en/images/stories/07022011/S_Dopovid_5_en.pdf, p.148.
13 Ibid., p. 147.
A/HRC/28/64/Add.1
8
IV. Minority rights in the context of political and social unrest
in 2014
19. The situation of political and social unrest in some regions since February 2014,
while having minority rights dimensions, is distinct from the general minority rights
situation in Ukraine. Evidence suggests that the concerns of minorities, primarily over
language and cultural rights, following the Euromaidan movement and the new
Government taking power in February 2014, have been unduly escalated to create a
situation of high tension and conflict. The presence and activities of far-right,
ultranationalist “self-defence” groups and unidentified illegal armed actors have created
anxiety and inflamed tensions in several locations. The Special Rapporteur does not
consider that they represent or speak for most persons belonging to minorities or the
majority of the Ukrainian people, and they should not be allowed to influence political,
social or economic decisions via force or coercion.
20. The role of informal, unofficial and sometimes illegally armed groups, including in
the events in the occupied Autonomous Republic of Crimea, and the unrest in eastern and
southern Ukraine leading to the takeover and occupation of some buildings and towns have
been prominent and highly destabilizing. It is essential to quickly re-establish the rule of
law and the role of legitimate law enforcement actors and for all non-official groups to be
disarmed and dispersed. Where any individuals involved in such groups are alleged to have
committed or incited crimes, they must be prosecuted according to the law.
21. Several interviewees complained about worsening economic conditions, corruption,
unemployment and the lack of good governance, which they considered to have contributed
to grievances, political instability and a general distrust of politicians and political
structures. It is essential to consider the wider economic and political dimension of the
current situation and to implement measures to guarantee equality, social and economic
rights and combat corruption and mismanagement of resources, as a means to increase trust
in political leadership. The reality or perception of inequality in access to resources or
distribution of resources, also involving geographical imbalances, as well as partisan
politics and political patronage serve to undermine stability and create ethnic, linguistic,
and geographic fault lines.
22. Ethnic Russians consulted in Donetsk, Kyiv and Odesa strongly expressed their
views that the Euromaidan movement represented an explicit anti-Russian agenda with
potential implications for their future rights and security. Some stated concern over the role
of far-right and Ukrainian nationalist groups including the All-Ukrainian Union “Svoboda”
(Freedom) and “Pravyi Sektor” (Right Sector), that have openly expressed anti-Russian and
anti-Semitic sentiments and have nationalist agendas. It is evident that dialogue between the
Government and ethnic-Russian groups in eastern and southern Ukraine is weak, while it is
essential to build confidence that minority rights guarantees will be put in place and
respected. The Special Rapporteur notes the poor election results of far-right and allegedly
anti-Russian parties in the May 2014 elections.14
23. The Special Rapporteur was not provided with evidence that anti-Russian sentiment
was widespread. There have been few incidents of discrimination, harassment or abuse of
individuals or groups on the basis of their Russian identity in Kyiv or other localities.
Russians and ethnic Ukrainians frequently stated that their relations remained good.
Incidents of intercommunal violence were extremely rare or non-existent in most localities
at the time of the Special Rapporteur’s visit. However, in the current situation of conflict in
14 Right Sector and Svoboda received just 0.9 per cent and 1.3 per cent of the vote, respectively.
A/HRC/28/64/Add.1
9
some regions, it is necessary for all relevant actors, including the United Nations human
rights monitoring team, to identify incidents or trends that indicate that violence or
intimidation on the grounds of ethnicity, language or religion are increasing.
24. In April and May 2014, unrest in southern and eastern Ukraine escalated
significantly with public buildings in localities including Donetsk, Kharkiv, Odesa and
Slovyansk falling under the occupation of pro-Russian activists and violent incidents as
Ukrainian authorities responded. Vaguely defined pro-Russian elements, including
organized and illegally armed groups, often emerged in previously peaceful locations,
sometimes with tragic consequences. Such incidents have the potential to further divide
communities along ethnic and linguistic lines and create the conditions for the escalation of
tensions.
25. On 11 May 2014, pro-Russian elements in separatist-controlled cities and towns in
Donetsk and Luhansk regions held “referendums” asking “Do you support the act of State
self-rule of the Donetsk/Luhansk People’s Republic?” The vote was condemned as illegal
by the Government and the international community and the Special Rapporteur supports
that opinion. Reports suggest that many pro-unity supporters boycotted the action while
pro-Russian supporters took part. The “referendums” lacked democratic legitimacy. They
provided a distorted and unreliable account of public opinion and have served to further
divide communities, increase tensions and destabilize the situation.
26. Some minority representatives emphasized their desire for greater political and
cultural autonomy for some regions. Some representatives of Russian ethnicity maintained
strongly nationalist feelings associated with their kin-State and historical claims over
certain territories. Those who proclaimed a “People’s Republic” in Donetsk and held
“referendums” on the status of those regions stated their objective as separation from
Ukraine. Regrettably, some have sought to achieve that by force.
27. The Special Rapporteur considers it important to monitor and robustly address any
hate speech and incitement to violence that may fuel tensions, particularly in the context of
the current crisis. The Organization for Security and Co-operation in Europe
(OSCE)/Office for Democratic Institutions and Human Rights (ODIHR) Human Rights
Assessment Mission in Ukraine found that “instances of hate speech towards ethnic and
religious groups have been widespread” including in the Autonomous Republic of Crimea.
It stated that “pro-Maidan activists have often been labelled ‘banderovtsy􀂶􀀏􀀃 􀂵􀀱􀁄􀁝􀁌􀁖􀞌􀀃 􀁄􀁑􀁇􀀃
‘fascists􀞌. Supporting the territorial integrity and unity of Ukraine has been depicted as a
sign of intolerance and nationalism”.15 The Mission report noted indications of growing
anti-Tatar sentiment in the Autonomous Republic of Crimea. The Special Rapporteur
concurs with the assessment of the Mission that there has been a trend that has seen
political orientation conflated with ethnic background in eastern and southern Ukraine,
where Ukrainian identity and symbols have been targeted for hate speech. Equally, any
anti-Russian sentiments must be closely monitored.
28. The Special Rapporteur received reports stating that some Russian language media
sources in Donetsk Oblast (region) and Ukrainian language media in the Autonomous
Republic of Crimea have faced closure or broadcasting restrictions. The violent takeover of
some broadcast media was reported in some localities under pro-Russian control.16
15 See www.osce.org/odihr/118476?download=true.
16 The June 2014 OHCHR report on the human rights situation in Ukraine states that “according to
NGOs, freedom of media in the Donetsk region is severely curtailed, with Ukrainian TV channels
switched off by the ‘Donetsk People’s Republic􀞌 and replaced by its own media programmes and
Russian TV” (para. 232). Available from
www.ohchr.org/Documents/Countries/UA/HRMMUReport15June2014.pdf.
A/HRC/28/64/Add.1
10
Freedom of expression and media freedom should be guaranteed within the framework of
the Constitution and international law, and respected in practice. All journalists should be
free to work in safety and without threat of detention or violence. Nevertheless, evidence
suggests that some media provided a distorted picture of events as they developed.
Journalists and those who control media content have a responsibility to convey
information accurately and objectively and to avoid propaganda or misinformation which
may incite unrest or violence.
V. Issues of minority identity in Ukraine
29. Given the historical, geopolitical and national/cultural contexts that have shaped
independent Ukraine, issues of identity are complex and emotive. Many of those consulted
self-identified primarily according to their national or ethnic origins in a kin-State, while
placing less emphasis on their Ukrainian identity and citizenship. Ukraine consequently has
numerous large minority groups with strong historical, ethnic, cultural and linguistic
connections to neighbouring countries and clear historical narratives regarding their
communities, and their “belonging” in Ukraine. The Special Rapporteur also interviewed
representatives of groups, including Ruthenians, who felt that they had not been recognized
as minorities or indigenous peoples, which is how they identified themselves.
30. Many representatives of minorities emphasized their strong and enduring relations
with their kin-States and the fact that no barriers existed to their establishing associations
and maintaining social and cultural ties with those countries. They maintained cultural
associations and events and minority media, as well as education in their mother tongue
languages, sometimes with the support of kin-States. It is evident that Ukraine substantively
upholds the right of minorities to establish their own associations and to maintain free and
peaceful contacts including across frontiers; some interviewees stated that additional State
support and funding were necessary.
31. Despite a strong feeling of minority identity, the majority of those consulted also
emphasized their Ukrainian citizenship and their satisfaction with their treatment as
minorities. Some interviewees suggested that stronger history and civic education
components could be incorporated in school curricula in order to foster stronger Ukrainian
national identity, mutual knowledge and understanding among different groups and to
promote national unity.
32. The long history of settlement in the territory of Ukraine by different peoples has
created overlapping and sometimes competitive identities. In the short time since
independence, it has proved difficult to unite such diverse population groups and forge a
sense of common Ukrainian identity.17 Measures to promote national identity, culture and
language, known as Ukrainianization, are legitimate and necessary to promote unity and
economic, geographic and social mobility in a country with such diverse population groups.
However, issues of cultural autonomy and the ability for minorities to influence decisions
that affect them and the regions where they live were particularly prominent in
consultations held and the Special Rapporteur encourages continued dialogue with
minorities on those important matters.
33. Russian minority representatives acknowledged that, prior to the unrest, they did not
face a repressive environment, widespread discrimination, exclusion, or violence based on
their identity. They commonly reflected their greatest concerns as being in the fields of
17 Minority Rights Group International, “Ukraine overview”, available from
www.minorityrights.org/5053/ukraine/ukraine-overview.html.
A/HRC/28/64/Add.1
11
language and education and expressed their perception that the Euromaidan movement and
pro-European Government would diminish the status of the Russian language and culture,
reinforced by attempts to abolish the 2012 language law. Some ethnic Russians viewed the
territory and people of Ukraine as historically and culturally Russian and strongly rejected
the label “minority” being applied to them.
34. A population census is overdue and is planned for 2016. In the absence of accurate
disaggregated data that reveal the ethnic, linguistic or religious composition of the
population, there is often dangerous speculation and manipulation relating to the size of
certain groups. An early and well-conducted census will provide reliable data on the ethnic
and linguistic diversity of Ukraine, help to identify problems facing particular population
groups, and enable the Government to understand and respond to the needs of different
minorities.
VI. Language and cultural rights of minorities
35. Consultations revealed that the use of minority languages was highly important and
emotive for many communities and an essential aspect of individual and community
identity. National minorities clearly expressed their desire to maintain and protect their
language rights and their ability to use their languages freely in private and public without
discrimination. Most communities broadly expressed satisfaction that their children had the
opportunity to learn and, in many cases, be taught in their mother-tongue language.
Minority schools have been established and can function freely according to national law.
36. Calls to upgrade the status of Russian as a second official State language have been
the subject of fierce disagreement between pro-Russians and those who advocate the
primacy of Ukrainian. The Government considers that widespread knowledge and use of
Ukrainian as the State language are important to Ukrainian national identity and unity and
allow economic, geographical and social mobility while ensuring that those belonging to
any ethnic or linguistic minority can participate fully in all aspects of society, including
political life. Minority representatives frequently mentioned that the use of minority
languages was a significant and valued feature of Ukrainian society and was not
incompatible with the teaching and use of Ukrainian.
37. Reliable data concerning the number of users of minority languages and their
geographic distribution are important to ensure that they comply fully with international
standards for protection of the linguistic rights of minorities. The 2001 census revealed that,
while 67.5 per cent described their native language as Ukrainian, 29.6 per cent recorded
their native language as Russian.18 Russian is widely spoken in the south, the east and the
Autonomous Republic of Crimea, particularly the regions of Crimea (77.0 per cent),
Donetsk (74.9 per cent), Luhansk (68.8 per cent), Zaporizhia (48.2 per cent) and Kharkiv
(44.3 per cent), while in some other regions there is reportedly extensive bilingualism.
38. The passing of Law 5029–VI on the Principles of the State Language Policy in 2012
provided relatively extensive language rights and a low threshold of 10 per cent for
recognition of regional language status, benefiting several minority language communities.
However, it also raised concerns, including with regard to the promotion of the Ukrainian
language, despite its status as the sole State language. The Law was criticized, including by
the European Commission for Democracy through Law (Venice Commission), as being
overly focused on the promotion of the status of the Russian language, potentially at the
18 Available from http://2001.ukrcensus.gov.ua/d/mono_eng.pdf.
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12
expense of Ukrainian.19 While the Law remains in effect, the Government has announced
that new language legislation is being drafted and will be subject to review by the
Commission before being passed into law.
39. Nevertheless, steps in February 2014 to abolish the 2012 Law on the Principles of
the State Language Policy, although vetoed in practice, created anxiety as minorities were
concerned that new amendments would weaken their linguistic rights. Ethnic Russians
spoke passionately about the decline in use of Russian in education, and their desire to see
enhanced protection measures put in place. Some pointed out that there were relatively few
Russian language schools in relation to the number of Russians who considered it their first
language and described a gradual decline of the Russian language and cultural institutions.
40. Some ethnic Russians voiced their concerns regarding assimilation and the gradual
erosion of elements of Russian culture and language. One representative stated: “There is
not a repressive environment, but there is an attempt to push out the Russian culture part of
me.” Although according to Ministry of Education and Science statistics, in 2012/2013
Russian was the language of instruction and study in 1,256 schools providing general
education, with 694,331 pupils being taught in Russian, ethnic Russian representatives
noted a decline in education in the Russian language, notably in higher education, and that
some Russian cultural centres had closed.
41. In practice, Russian remains widely used and understood. The Government states
that 40 per cent of all printed media nationally are in Russian and up to 74 per cent of
media broadcasts are in Russian in some regions. Government objectives of promoting
Ukrainian as the national language may impact on the extent of Russian language use over
time. Although according to the Government over 100 public associations represent the
Russian minority, some ethnic Russians stated that civil society organizations and activities
to promote Russian language and culture and to raise their issues and concerns were
relatively weak.
42. The January 2014 report of the Committee of Experts on the European Charter for
Regional or Minority Languages,20 while noting some challenges for smaller linguistic
minorities, stated: “In regard of Hungarian, Romanian and Russian the situation is by and
large satisfactory and the right of speakers to receive education in these languages is more
or less secured. The traditional models of teaching in Hungarian, Romanian and Russian
have been preserved, although there seems to be a certain decline in the number of pupils
enrolled.” Concern was expressed that the “phasing out of higher education in Russian will
constitute an obstacle to full access of Russian speakers to higher education”. The report
referred to an unmet demand from users of minority languages for support to establish and
sustain cultural centres and a lack of long-term financing for such centres.
43. Civil society groups emphasized that any revised language law must fully conform
with international standards and should not weaken the existing protection of the linguistic
rights of minorities. Some expressed concern that a new language law might increase the
threshold of 10 per cent for recognition of minority languages as “regional languages”,
restrict language rights in fields such as the media and education, and provide weak
language rights protection for smaller and dispersed minority groups. Importantly, some
minorities stated that they had not been consulted about the process of drafting a revised
19 The Commission recommended the implementation of balanced policies in order to preserve
Ukrainian as an integrative tool within society. See
www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2011)047-e.
20 Available from
www.coe.int/t/dg4/education/minlang/Report/EvaluationReports/UkraineECRML2_en.pdf.
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law and were unaware of its status. Ethnic Russians expressed concern that allegedly anti-
Russian officials of Svoboda would have a substantive role in formulating the new law.
VII. Situation of internally displaced persons and Crimean Tatars
44. The Special Rapporteur attempted to gain access to the Autonomous Republic of
Crimea to assess the situation of minorities and to consult with the de facto authorities and
minority and other community actors. Regrettably, she did not receive the required
assurances to enable her to travel. The general human and minority rights situation in the
Republic is of concern as administrative authority over the region has been illegally
assumed by the Russian Federation following a disputed referendum on 16 March 2014.21
On 27 March, the General Assembly underscored in its resolution 68/262 that that
referendum had “no validity” and upheld the territorial integrity of Ukraine, including the
Autonomous Republic of Crimea.
45. The 2001 census revealed that ethnic Russians made up 58.3 per cent of the total
population in Crimea (1,180,400 people, although that percentage has declined from
65.6 per cent in 1989). Ukrainians accounted for 492,200 people or 24.3 per cent (a decline
from 26.7 per cent in 1989), and 243,400 were Crimean Tatars (reflecting an increase from
1.9 per cent in 1989 to 12 per cent in 2001 owing to the significant return of Tatars to the
peninsular). The number of returning Crimean Tatars reportedly peaked at 41,400 in 1991,
and has been rapidly falling since.22
46. The Special Rapporteur interviewed several people who had left the Autonomous
Republic of Crimea. Some mentioned uncertainty, social and political pressure and fear for
their security and rights as the reasons for their decision to leave. They reported a tense and
threatening environment, including via social media, against those who opposed or
criticized the events surrounding the “referendum” and some stated that they knew about
incidents of physical and verbal abuse. Some interviewees stressed their desire to remain
Ukrainian and not to live in the Russian Federation. Some stated that Ukrainian language
media in Crimea had been “switched off”. In the current political circumstances, the human
rights situation of ethnic Ukrainians who remain in the Autonomous Republic of Crimea as
a de facto minority requires close monitoring; some reports suggest that there has been
intimidation of those who openly oppose Russian control of the region or use the Ukrainian
language in public.
47. Some individuals stated that concerns over maintaining Ukrainian citizenship and
passports had been a contributing factor in their decision to leave. They expressed fears that
those who wished to remain Ukrainian in the Autonomous Republic of Crimea would face
discrimination as “foreigners” with implications for their economic, social and cultural
rights and their right to participate in political life. Crimean residents were given one
month, until 18 April 2014, to submit applications declaring that they did not wish to
become Russian citizens. Some reported procedural difficulties that apparently made it
difficult to meet the necessary requirements to keep their Ukrainian passports, including a
shortage of registration offices, and suggested that those were deliberate barriers.
48. Concern exists regarding the implications of not accepting Russian citizenship and
passports, including loss of property, restrictions on freedom of movement, provision of
21 Pro-Russian authorities claimed that 97 per cent of voters supported the proposal to join the Russian
Federation, a figure that was disputed by the Ukrainian authorities.
22 Minority Rights Group International, “Ukraine overview”, available from
www.minorityrights.org/5053/ukraine/ukraine-overview.html.
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14
State pensions, and the possible loss of government jobs. Civil servants and law
enforcement officials are required under Russian law to formally relinquish their Ukrainian
passports since those who occupy government jobs cannot hold dual citizenship.23 Some
expressed concern that Ukrainian citizens would feel compelled not to refuse Russian
citizenship owing to the potential impact on their human rights. Equally, expectations of a
hostile climate towards those with pro-Ukrainian views and those who wished to remain
Ukrainian might encourage more people to leave.
49. The Special Rapporteur consulted leaders of the Crimean Tatar Mejlis (the selfgoverning
body of Tatars). The return of Tatars, who are the indigenous inhabitants of the
Autonomous Republic of Crimea, following their mass deportation in 1944, resulted in
reported friction with the significant Russian population. Repatriation programmes were
reportedly insufficiently funded and many returnees lacked adequate support. Issues of
concern included high unemployment among Tatars and competition for land, despite their
claims to land rights as indigenous people. There was no compensation provided for the
properties that Tatars had lost and many, lacking access to land, occupied public lands.
Consequently incidents of confrontation with other communities and the police have been
recorded.
50. It is of great concern that many Crimean Tatars will refuse to accept Russian
citizenship or authority which may render them even more vulnerable. Most Crimean
Tatars boycotted the March 2014 referendum.24 Sergey Aksyonov, who at the time was
“governor” in the Autonomous Republic of Crimea, reportedly stated publically that
Crimean Tatars should “leave if they don’t like it”. Some Crimean Tatar leaders who
travelled out of the Republic have faced restrictions on re-entering, including the former
head of the Mejlis, Mustafa Dzhemilev, who called for a boycott of the “referendum”. On
22 April, he was banned from travelling to the Republic for five years, leading to protests
and subsequently a warning from the de facto authorities that the Mejlis could be dissolved
if it supported “extremist activities”. On 5 July, a ban on entry was imposed on the current
head of the Mejlis, Refat Chubarov, reportedly for “extremist statements”. Charges were
reportedly brought against 30 protestors and fines imposed. The authorities imposed a
temporary ban on public protests in advance of the seventieth anniversary of the deportation
of Crimean Tatars.
51. Some incidents have heightened anxiety within Tatar communities. On 3 March
2014 a Tatar labourer, Reshat Ametov, disappeared after reportedly being led away from a
protest in Simferopol by unknown men in camouflage. His body was found days later in the
mixed ethnic community of Belogorsk. Prior to the referendum of 16 March, Tatar
communities reportedly had crosses marked on the walls or gates of their homes, which
allegedly heightened anxiety regarding potential targeting. OHCHR stated that some Tatar
representatives had mentioned concerns over unidentified uniformed men claiming rights
on Tatar properties and land and reports of plans to relocate some communities .25
52. At the time of drafting, the Office of the United Nations High Commissioner for
Refugees (UNHCR) reported over 10,000 verified IDPs in 24 regions as of 20 May 2014,
the majority having left the Autonomous Republic of Crimea, with numbers continuing to
23 EUDO Observatory on Citizenship, “The aftermath of annexation: Russia and Ukraine adopt
conflicting rules for changing citizenship of Crimean residents” (11 April 2014), available from
http://eudo-citizenship.eu/news/citizenship-news/1113-the-aftermath-of-annexation-russia-andukraine-
adopt-conflicting-rules-for-changing-citizenship-of-crimean-residents.
24 OHCHR was informed by representatives of Crimean Tatars that no more than 1,000 out of a
population of 290,000–300,000 participated in the 16 March referendum.
25 June 2014 OHCHR report on the human rights situation in Ukraine (see note 16 above).
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15
rise.26 The Government has no registration system for IDPs on national or ethnic lines that
would allow for a full breakdown according to identity. Estimates suggest that many are
Crimean Tatar (80 per cent in western Ukraine; 20 per cent in the Kyiv region); however
there are reports of an increased registration of ethnic Ukrainians, ethnically mixed
families, ethnic Russians, refugees, asylum seekers and foreigners married to Ukrainian
citizens.27 The true number may exceed that provided, given that many people may have
found accommodation with relatives and communities without registering with
organizations that provide support. According to UNHCR, factors triggering movement
include increased security concerns and personal threats.
53. Efforts to address the needs of IDPs and protect the rights of those who remain in
the Autonomous Republic of Crimea and prevent further displacement should conform with
the Guiding Principles on Internal Displacement. UNHCR reported the priority concerns of
IDPs as: maintaining contacts in the Autonomous Republic of Crimea; freedom to move
and communicate between the Republic and the mainland; assistance with shelter and
employment; simplified procedures for obtaining identity and residence documents to enjoy
social and economic rights on the mainland; continuity of social payments; and assistance
with property sales, transfer of funds and personal belongings. The Special Rapporteur
welcomed efforts to support IDPs and witnessed solidarity across various communities
manifested in voluntary services and contributions. However, some reports suggested that
IDPs had experienced difficulties gaining access to financial support from the State.
54. Some Crimean Tatar representatives indicated that, historically, their rights had not
been fully recognized and protected by any authority in the Autonomous Republic of
Crimea. The Government mentioned that, following the events in the Republic resulting in
the “referendum”, in March 2014 the Verkhovna Rada had passed a resolution guaranteeing
the rights of the Crimean Tatar people as a part of the State of Ukraine (No. 1140–VII of 20
March). According to the resolution, Ukraine guarantees to preserve and develop “the
ethnic, cultural, linguistic and religious uniqueness of the Crimean Tatar people, as
indigenous people and of all national minorities of Ukraine”. It acknowledges the Mejlis of
the Crimean Tatar people as a competent authority and requires urgent submission of draft
laws and regulatory legal acts confirming the status of the Crimean Tatar people as
indigenous people.
55. According to General Assembly resolution 68/262 on the territorial integrity of
Ukraine, the Russian Federation has no legal jurisdiction over the Autonomous Republic of
Crimea or its populations. Nevertheless, it is to be noted that on 21 April 2014, following
its occupation of the Republic, the Russian Federation published a decree on measures to
rehabilitate Armenian, Bulgarian, Greek, Crimean Tatar and German populations and State
support for their revival and development. The Special Rapporteur notes that the full
spectrum of human rights of minorities must be respected, protected and promoted without
discrimination by the de facto authorities even in situations of territorial dispute or
occupation.
56. In view of recent political and social change and the activities of armed militias, the
Special Rapporteur recommends that the United Nations human rights monitoring mission
should be allowed unfettered access to the Autonomous Republic of Crimea at the earliest
opportunity. It should engage with both the de facto authorities and diverse civil society and
community actors to ensure that human rights standards, including minority rights, are
upheld in practice.
26 See http://unhcr.org.ua/attachments/article/971/IDP.pdf and www.unhcr.org/537b24536.html.
27 From mid-April 2014, UNHCR noticed movement of people away from eastern Ukraine as tensions
increased in the regions.
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16
VIII. Situation of religious minorities
57. Ukraine has a wide range of religions, belief groups and religious freedoms and the
rights of religious minorities are protected in practice. Nevertheless, given the climate of
political and social unease, it is particularly necessary for the authorities to guard against
any human rights violations, including acts of violence, intimidation, threat or abuse
targeted at individuals or groups based on their religion. Some incidents of concern have
been reported in the context of the tense social and political environment since February
2014.
58. Jewish representatives reflected that they were well integrated, enjoyed their rights
as a religious minority and that anti-Semitism, discrimination and violent incidents were
rare. They generally expressed satisfaction at the extent of their minority rights protection.
However, some incidents were reported in the context of the unrest that had put Jewish
communities on alert. In February, the Giymat Rosa Synagogue in Zaporizhia, near Kyiv
was firebombed. In early April 2014, a Holocaust memorial in Odesa was vandalized with
Nazi graffiti. On 19 April, the Nikolayev Synagogue was firebombed causing minor
damage. Representatives expressed concern about adequate protection measures. One
leader stated: “No proper police are in place; ordinary people are carrying arms.” Some
anti-Semitic graffiti was also reported in the Autonomous Republic of Crimea.
59. Of concern to the Jewish community was the distribution in Donetsk by men
wearing balaclavas of leaflets calling on Jews to register with the pro-Russians, pay a tax,
or leave. The leaflets bore a stamp reportedly of the self-proclaimed “People’s Republic of
Donetsk”, although it declared the leaflets to be a hoax. It remains unclear who was behind
the leaflet. One leader of the Jewish community mentioned an incident in which neo-Nazi
graffiti, allegedly signed by the Right Sector, had been painted on the walls of a synagogue
in Odesa. Right Sector representatives denied involvement and reportedly helped remove
the graffiti. A Jewish leader stated: “Politicians are playing the ‘Jewish card’” and that the
incidents were intended to inflame tensions and concerns amongst Jewish communities for
political ends.
60. While incidents remain rare, they nevertheless indicate a potential rise in
manifestations of anti-Semitism, which must be monitored closely. The lack of
implementation of the rule of law in some localities provides an environment in which farright
groups have undoubtedly increased their activities and such anti-Semitic incidents
may become more pronounced. Such incidents have created anxiety and should be
investigated as crimes aggravated by hatred. Anti-Semitism must be acknowledged by the
Government and measures should be taken to prosecute according to the law any person or
group alleged to have committed or incited anti-Semitic acts.
61. Senior representatives of the Ukrainian Orthodox Church (Moscow Patriarchate)
expressed concerns over alleged reports from church members of rising animosity against
them, searching of properties, and the questioning of a church leader. They stated that there
had been calls for Russian churches to be destroyed and Russian priests to be killed. They
mentioned calls for the two most important monasteries to be transferred to the Kyiv
Patriarchate and threats, allegedly by the Right Sector, to take over the cathedral unless it
was transferred to the Kyiv Patriarchate. They reported cases of intimidation and
persecution, including the case of a priest who had fled to Luhansk after having been
interrogated by the authorities.
62. In the Autonomous Republic of Crimea, there have been news reports of
representatives of the Ukrainian Orthodox Church claiming that Russian priests with armed
supporters had threatened to confiscate churches. Some representatives of the Ukrainian
Catholic Church reportedly left Crimea following alleged threats of arrest or property
A/HRC/28/64/Add.1
17
seizure and intimidation. One priest was allegedly detained and beaten in March 2014 and a
number of priests and parishioners have reportedly left for areas under Ukrainian control.
Some Tatar representatives expressed concern, as members of the Muslim minority, over
the extent to which their rights to freedom of religion, expression and assembly would be
protected. According to UNHCR, some observant Muslims (mainly Tatar) and evangelical
Christians mentioned fear of religious persecution as a reason for leaving the Autonomous
Republic of Crimea.
IX. Situation of the Roma
63. The Special Rapporteur was made aware of ongoing concerns with regard to the
situation of Roma communities in Ukraine. She visited a Roma settlement and consulted
widely with Roma representatives. Economic and social marginalization, as well as
problems with registration and identity documents, were widely reported by Roma
representatives. The Government’s Strategy on the Protection and Integration of Roma in
Ukraine until 2020 as well as the National Action Plan on Roma Inclusion are welcomed
and have been drafted with the participation of some Roma organizations. However Roma
representatives expressed their concern over their lack of participation in the formulation
and monitoring of the Strategy and stated that policies were often inadequately funded and
poorly implemented in practice.
64. In the context of the tense political situation in March and April 2014, there have
been reports of attacks on some Roma communities by armed perpetrators. Despite
comments from some Roma that they had previously had good relations in the locality,
such incidents were clearly causing anxiety in Roma communities. The European Roma
Rights Centre stated that: “It is evident in the current ongoing political instability in
Ukraine that some elements are attempting to target Roma, or to mark Roma as
scapegoats”.28 In the current context of tension and with the reported presence of a number
of far-right and extreme nationalist groups in different localities, threats and attacks against
Roma communities must be taken extremely seriously, prevented and perpetrators
prosecuted where any such acts take place.
65. On Friday 18 April 2014, there was an attack on a Roma settlement in the city of
Slovyansk, which was largely under the control of pro-Russian illegally armed groups.
According to residents, at about 10 p.m. a group of around 20 masked armed people burst
into Roma houses, beat residents, including women and children, demanded gold and
money and took possessions. The attackers were armed with automatic weapons and fired
shots into some homes. On the same day, a Roma family house was reportedly set on fire in
Cherkassy following tensions between Roma and non-Roma in the town.29 The Special
Rapporteur also received unconfirmed information about alleged threats against Roma by
separatists in Donetsk and Luhansk at the end of May, which had reportedly resulted in 60
Roma families leaving to seek refuge with families in Lviv and in the Russian Federation.
Such incidents should be immediately investigated.
66. One Roma resident of Slovyansk is reported as stating: “They say they are going to
evict the Roma from here. And we don’t sleep in our houses, because we are afraid
someone will come.”30 On 29 April 2014, a Roma man was shot and seriously injured in
Slovyansk while reportedly trying to defend his home from attackers. Roma representatives
28 See www.errc.org/article/joint-statement-on-violence-against-roma-in-ukraine/4278.
29 Ibid.
30 See www.upi.com/Top_News/World-News/2014/04/22/Ukrainian-Roma-attacked-androbbed/
5231398172543/.
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stated that they had alerted authorities about such incidents and called for heightened
security, including police patrols of Roma settlements, to protect Roma from further
attacks. They urged the affected Roma communities to file complaints about violence or
threats although they indicated that the Roma were fearful of doing so given the lack of
trust in police forces in some locations.
67. The Special Rapporteur visited a Roma community on the outskirts of Kyiv. Over
100 people, including more than 60 children, were living on a rubbish tip in basic shelters
of wood and tarpaulin. The community scavenged scrap from the site which they sold to
local merchants. Community members described their situation, which included a shortage
of food and drinking water, and poor sanitation, health and access to health care. None of
the children were in school and they were clearly inadequately dressed for the low
temperatures. The community members stated that they had travelled from Uzhgorod
owing to the lack of work or income-generating opportunities there and in the hope of
finding a better situation. The community needs urgent intervention to improve living
conditions and ensure the health, well-being and access to education for their children.
X. Conclusions and recommendations
General comments
68. Many persons belonging to minorities in Ukraine have strong, distinct
historical, ethnic, religious and linguistic identities that they wish to maintain and
express, as well as strong cultural, economic, social or linguistic connections with kin-
States. Their historical and group narratives are frequently heavily influenced by
those ties. Despite previous periods of political and social upheaval since
independence, harmonious relations have endured between different population
groups and equal treatment was described in most areas of life. Many minority
representatives emphasized their minority status while asserting their desire to build
their futures as equal citizens of Ukraine.
69. Ukraine is a relatively new independent State, following a long period of
historical Russian linguistic and cultural hegemony. In the current context it should
be recognized that a gradual decline in the influence and extent of a formerly
dominant minority language and culture does not automatically indicate evidence of
discrimination or human rights violations. However, while it is legitimate for the
Government to foster Ukrainian national identity and language, that must be
conducted in a manner which respects, protects and promotes the rights of minorities.
Sensitivity must be exercised to ensure that no law, policy or programme has
discriminatory intent or effect.
70. Ukraine has a legislative and policy framework and environment that are
generally consistent with the provisions of the Declaration on the Rights of Persons
Belonging to National or Ethnic, Religious and Linguistic Minorities and that are
generally conducive to the protection of minority rights, including their civil and
political and economic, social and cultural rights.
71. As in many States, the infrastructure for minority rights protection requires
strengthening and development and complaints by minorities must be addressed
appropriately. That should be achieved in full consultation with minorities. It is
essential that any revisions to existing legislation and policy, as well as newly adopted
laws, including relating to the status and use of minority languages, fully conform
with international standards relating to equality, non-discrimination and minority
rights.
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19
72. Any revised language law must be carefully considered and sensitively
addressed to ensure that it fully conforms with international standards for the
protection of the linguistic rights of minorities, while equally not undermining the
knowledge and use of Ukrainian. It should not weaken standards previously
established in the 2012 Law on the Principles of the State Language Policy. Steps must
be taken to ensure wide and meaningful consultation, so that the law meets, to the
fullest extent, the rights and expectations of the highly diverse and distinct linguistic
communities of Ukraine.
Minority rights in the context of political and social unrest since
February 2014
73. While recognizing the concerns of minorities, the Special Rapporteur considers
that the current human and minority rights situation and the civil and political,
economic, social and cultural conditions experienced by minorities cannot justify any
violent actions or incitement and support of those actions by any party, national or
international. The majority of the population of Ukraine, irrespective of national
origin, ethnicity or language, wishes for a peaceful and united Ukraine, rich in its
ethnic and linguistic diversity and confident in its future security and stability.
74. Developments in early 2014 have created an environment of uncertainty and
distrust that may create fractures along national, ethnic and linguistic lines and which
threaten peaceful coexistence if not quickly resolved. In some localities, tension has
spilled over into conflict. Such tensions must be diffused as a matter of urgency. The
radical nationalist objectives of a limited number of individuals or groups should not
be allowed to dictate the future of Ukraine. Protection of human rights and minorities
relies on the rule of law, which must be quickly re-established and upheld in all
locations.
75. Good and inclusive governance is essential for the effective management of
diversity. The current crisis, although framed by some as an inter-ethnic dispute
between pro-Ukrainian and pro-Russian factions, has been partially caused by wider
political and economic factors that must be recognized and addressed in order to
avoid further ethnic, regional and political polarization. A historic good governance
deficit, widespread corruption and mismanagement of resources have contributed to a
lack of trust in political institutions and actors and significantly contributed to
instability.
76. The situation of minority communities in the Autonomous Republic of Crimea,
including Crimean Tatars, ethnic Ukrainians and other potentially vulnerable groups,
should be monitored closely. The United Nations human rights monitoring mission
and other international monitors should be allowed unfettered access to the Republic
at the earliest opportunity. They should engage with both de facto authorities and
diverse civil society and community actors to assess the extent to which human rights
standards, including minority rights, are being upheld in practice.
77. The Special Rapporteur notes that, even in situations of territorial dispute or
occupation, the full spectrum of human rights of minorities must be respected,
protected and promoted without discrimination by the de facto authorities.
78. Those displaced from the Autonomous Republic of Crimea and other locations
should be provided with all necessary short, medium and long-term support.
Mechanisms of possible return to their homes, compensation for loss of property, or
restitution of property and land should be considered. All relevant authorities must
take measures to reduce or prevent further displacement, including through
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20
implementation of human and minority rights standards. The possibility for IDPs to
return voluntarily to their places of origin with assurances for their security should
remain a key objective.
79. It is essential to begin a process of national dialogue with the objective of
understanding the concerns and issues of all communities and ensuring that they are
addressed appropriately and rapidly. Moderate voices must come to the fore. First
and foremost, solutions to the current situation must come from the Ukrainian people
themselves. That must be achieved through decision-making processes that are
inclusive and which respect diversity and political structures that ensure the
participation of all, including minorities.
80. Hate speech and incitement to hatred, hostility or violence targeted at any
person or group must not be tolerated. Political and community leaders should be the
first to condemn any such statements and to send a clear message that they will be
treated as criminal acts, punishable by law. Those elements on any side engaging in or
inciting violence or hatred must be prosecuted. They should have no role in shaping
the future of Ukraine, nor should they be allowed to impose their will through the use
of violence or force. All non-official and illegally armed groups should be disarmed
and disbanded.
81. Freedom of expression, assembly and the right to protest peacefully must be
protected even in times of political unrest and must only be restricted under
exceptional circumstances. All relevant authorities must uphold those rights for all.
Violent protest, the forced or armed occupation of public buildings or territories, the
formation of armed militia groups and activities to intimidate, threaten or coerce are
not legitimate in a democratic society and should be addressed according to the law
and international standards.
82. The Special Rapporteur notes that all journalists should be free to conduct
their work in safety and without threat of detention or violence and that the freedom
of the media must be protected. Censorship of media should be used only as a last
resort and any restrictions on the media and freedom of expression must be
legitimate, proportionate and in conformity with international standards.
Nevertheless, the Special Rapporteur is deeply concerned over media coverage that
was frequently cited as misrepresenting the situation and serving to fuel tensions.
Governments and media outlets have a responsibility to convey information
accurately and objectively and to avoid any propaganda or misinformation which
may incite unrest or violence.
83. The rights of religious minorities are protected in practice. However, given the
climate of political and social unease, it is particularly necessary for the authorities to
guard against any human rights violations, including against Crimean Tatars and
members of Jewish communities. Acts of anti-Semitism, hate speech, violence,
intimidation, threat or abuse targeted at individuals or groups based on their religion
or belief must not be tolerated. All relevant authorities have an obligation to act
swiftly to protect all religious groups in all localities, their places of worship,
monuments and burial sites, particularly during periods of heightened tension, and to
prosecute the perpetrators of violations against them.
84. The Special Rapporteur was struck by the many actors who have demonstrated
national unity, solidarity and dialogue across different population groups to ensure a
peaceful resolution to the crisis. Different faith and community groups have reached
across religious and ethnic divides to offer support and assistance to those affected by
the current situation, including those who have been displaced, and some of those with
different political views have sought reconciliation. Political, religious and community
A/HRC/28/64/Add.1
21
leaders are urged to use their influence to promote dialogue and encourage peaceful
solutions to tensions.
Strengthening minority rights protection
85. The Special Rapporteur considers that additional measures are required to
strengthen minority rights protection. Considering the great diversity of population
groups and the sensitivity of minority issues in the independent, post-Soviet era,
institutional attention to minority issues is currently insufficient and has been
downgraded in recent years. Mechanisms to register complaints and seek solutions are
currently insufficient. At the time of the Special Rapporteur’s visit, there were only six
staff members within the Ministry of Culture with direct responsibility for minority
issues. The Government must recognize the wider scope of minority rights that
includes but goes beyond cultural issues, and ensure appropriate ministerial-level
attention to minority issues.
86. The Special Rapporteur welcomes Government assurances that measures to
strengthen institutional attention to minority issues are being developed. She
recommends the establishment of a consultative and advisory body on minority issues
with frequent and regular sessions, empowered to consider a wide range of matters of
relevance to minorities, including problems of minority languages and education,
religious affairs, and measures to address practically and prevent ethnic tensions from
emerging. A dedicated Ombudsperson or similar structure mandated to address
minority issues and receive complaints from minorities should also be considered.
87. A key pillar of minority rights is full and equal participation in public life,
including political participation at the national, regional and local levels. Full access to
democratic structures is critical for minorities to voice their concerns and to achieve
meaningful solutions to their issues. Measures are necessary to strengthen the political
participation of minorities and guarantee their full involvement in decision-making
bodies.
88. Policies to guarantee representation of minorities in Parliament include
reserved seats or the redrawing of electoral districts to allow compact minority
communities to elect their own representatives, and should be considered. Measures to
increase political and cultural autonomy for some localities with large minority
populations may be considered, where appropriate and in full consultation with all
communities affected. The Special Rapporteur urges consideration of the
recommendations of the Forum on Minority Issues which addressed minorities and
effective political participation during its second session.31
89. In many countries, autonomous arrangements have been established and are
appropriate taking into account specific circumstances, including where a national
minority forms a high percentage of the population in a region. However, the nature
and extent of that autonomy should be established in conformity with national law
and international standards and through democratic, legal and consultative
mechanisms and constructive dialogue which takes fully into account the views of
minorities and all affected communities, including ethnic Ukrainians who might
constitute a minority in affected regions.
90. Political parties and actors have a responsibility to all citizens and are
accountable to all, irrespective of their national, ethnic, religious and linguistic
31 Available from www.ohchr.org/EN/HRBodies/HRC/Minority/Pages/Session2.aspx.
A/HRC/28/64/Add.1
22
identity. The Government and all political parties must uphold the highest standards
with regard to the banning of statements and political platforms that promote racism,
xenophobia or hate speech, or which are intended to incite ethnic, religious or other
forms of hatred or intolerance. Any such actions should be prosecuted according to
the law. As a confidence-building measure, all political parties should clearly state
their commitment to minority rights protection and the Declaration on the Rights of
Persons Belonging to National or Ethnic, Religious and Linguistic Minorities.
91. Educational curricula should reflect the diversity of Ukraine and enable
students to learn about their own origins, cultures and religions, but also those of
others, in a positive way that recognizes the contributions of all groups to society.
Minority and mother-tongue schools, while legitimately maintaining minority
languages and cultures, should also be required to provide education on the wider
ethnic, national, social and religious make-up of society. The national curriculum
should include education on active citizenship.
92. The Government should take additional measures, including providing
financial and institutional support, for minorities to establish cultural and advocacy
associations and maintain and enhance their activities. While there are now an
increasing number of civil society organizations, further strengthening of civil society
is needed so that minorities can enhance cultural activities as well as jointly formulate
and convey important messages and establish and maintain dialogue with various
authorities.
93. The Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities (art. 5) calls for programmes of cooperation and
assistance among States with due regard for the legitimate interests of minorities.
Article 6 requires States to cooperate on questions relating to minorities in order to
promote mutual understanding and confidence. Under article 7, States should
cooperate to promote respect for the rights set forth in the Declaration. States with
large diaspora communities are urged to take all possible steps to promote
reconciliation and to defuse tensions where they exist. They must avoid actions that
undermine confidence or incite, fuel or support violent or separatist movements on
the part of minorities.
94. There has been an apparent escalation of anti-Roma sentiment and of incidents
of violence and intimidation directed towards Roma in the context of the 2014 political
unrest. All relevant authorities should ensure adequate protection of Roma
communities and that any incidents of violence and intimidation are fully and speedily
investigated and perpetrators prosecuted. Authorities should ensure that current and
ongoing political instability is not used by any party as an opportunity to attack or
intimidate Roma or forcefully remove them.
95. In the medium to long term, more robust responses from the Government are
required to address Roma exclusion, marginalization and poverty. Measures should
include an institutional, policy and programme framework, created with the full
participation of Roma, that is adequately financed and politically supported to tackle
the long-term challenges that many Roma experience.
96. The most recent census was conducted in 2001. The absence of accurate
demographic and socioeconomic data constitutes a serious challenge to ensuring
protection of minority rights. Accurate data will reveal the current picture of national,
ethnic, religious and linguistic groups and provide key socioeconomic information,
including in relation to such issues as language and identity. Such data, including
reliable data on the number of users of minority languages and their geographic
A/HRC/28/64/Add.1
23
distribution, should facilitate development of policy and programme measures to
improve the situation of minorities.
97. Census questions should allow open and multiple responses that enable
respondents to self-identify according to their national, ethnic, religious and linguistic
affiliation, including multiple identities. Ensuring accurate data for the most
marginalized groups, such as Roma, is essential and should be facilitated through
outreach and information for communities and training of census collection staff.

Annex 761
Intentionally Omitted

Annex 762
OHCHR, Report on the Human Rights Situation in Ukraine (15 April 2014)

Office of the United Nations
High Commissioner for Human Rights
Report on the human rights situation in
Ukraine
15 April 2014
2
TABLE OF CONTENTS
Page
I. EXECUTIVE SUMMARY …………………………………………………. 3
I. INTRODUCTION ……………………………………………………. 6
A. Context
B. Universal and regional human rights instruments ratified by Ukraine
C. UN human rights response
D. Methodology
III. UNDERLYING HUMAN RIGHTS VIOLATIONS ………………………… 10
A. Corruption and violations of economic and social rights
B. Lack of accountability for human rights violations and weak rule of
law institutions
IV. HUMAN RIGHTS VIOLATIONS RELATED TO THE
MAIDAN PROTESTS ……………………………………………………… 13
A. Violations of the right to freedom of assembly
B. Excessive use of force, killings, disappearances, torture and ill-treatment
C. Accountability and national investigations
V. CURRENT OVERALL HUMAN RIGHTS CHALLENGES ……………… 15
A. Protection of minority rights
B. Freedom of expression, peaceful assembly and the right to information
C. Incitement to hatred, discrimination or violence
D. Lustration, judicial and security sector reforms
VI. SPECIFIC HUMAN RIGHTS CHALLENGES IN CRIMEA …………….. 20
VII. CONCLUSIONS AND RECOMMENDATIONS ………………………….. 22
A. Conclusions
B. Recommendations for immediate action
C. Long-term recommendations
Annex I: Concept Note for the deployment of the UN human rights monitoring mission in
Ukraine
3
I. EXECUTIVE SUMMARY
1. During March 2014 ASG Ivan 􀃢􀁌􀁐􀁒􀁑􀁒􀁙􀁌􀃼 visited Ukraine twice, and travelled to
Bakhchisaray, Kyiv, Kharkiv, Lviv, Sevastopol and Simferopol, where he met with national
and local authorities, Ombudspersons, civil society and other representatives, and victims of
alleged human rights abuses. This report is based on his findings, also drawing on the work of
the newly established United Nations Human Rights Monitoring Mission in Ukraine
(HRMMU).
2. Underlying human rights violations, including lack of accountability for past human
rights violations committed by security forces, the lack of independence of the judiciary and a
perceived denial of equal rights and protection, including though mismanagement of resources
and through corruption, lack of a system of checks and balances and the lack of free elections,
were among the root causes of the popular protests that took place throughout Ukraine, and in
particular on Independence Square (Maidan) from November 2013 to February 2014. While
the protests were initially triggered by the Yanukovych Government’s refusal to sign an
Association Agreement with the European Union, the excessive use of force by the Berkut
special police and other security forces at the end of November initially against largely
peaceful protestors on the Maidan led to a significant radicalisation of the protest movement.
The violence on 30 November transformed the protests, from demonstrations in favour of
signing the EU Association Agreement, to include demands to reform the system of authority
and punish those responsible. Serious human rights violations were committed including
during the Maidan protests, which resulted in the death of 121 individuals (this number
includes 101 Maidan protesters, 17 officers of the internal affairs/police, 2 were members of
NGO “Oplot” that attacked the Maidan in Kharkiv and a Crimean Tatar found dead). There
have been also numerous reports of torture and ill-treatment of protesters. The Maidan protest
movement1 also revealed historical, but still relevant divisions within Ukrainian society and
long-standing grievances with respect to the lack of good governance and the rule of law of
previous Governments.
3. Since the Government took power at the end of February 2014, tensions have
decreased, along with the allegations of human rights violations. However, some
developments could have a detrimental impact if not promptly addressed, especially in light of
the presidential elections scheduled for 25 May.
4. For instance, the advocacy of national, racial or religious hatred by some political
parties, groups and individuals, that constitutes incitement to discrimination, hostility or
violence and nationalistic rhetoric witnessed during the Maidan protests may have an adverse
impact on the situation in Ukraine. An attempt by the new ruling coalition in Parliament on 23
February 2014, to repeal the Law on the Principles of State Language Policy, and thus make
Ukrainian the sole State language at all levels, was seen as a hostile move against the Russianspeaking
minority. Acting President Turchynov however declined to sign and approve the
Parliament’s decision to repeal the law, on 2 March 2014. The drafting of new language
legislation must not be hurried and must include the active involvement of representatives of
minorities at the very outset.
1 The Maidan protest movement refers to the various groups that participated in demonstrations and centred on
Independence (Maidan) square in the centre of the Kyiv. This initially included persons demonstrating for
Ukraine to enter the Association Agreement with the European Union, hence the fact that there is often a
reference made to “Euro-Maidan”. However, over time the movement included a number of other elements,
including anti-Government, anti-corruption, far right wing groups and others, some of whom did not necessarily
share the same pro-European aspirations.
4
5. Similarly, in a bid to break away from the past, the Parliament has taken initial steps to
adopt legislation regarding a lustration policy that would apply to some public officials
affiliated to the previous Government. There are concerns that this law, if adopted, could be
used to vet out large numbers of officials. It is essential that any new legislation and policies
be adopted through an approach based on the rule of law and human rights, without any spirit
of revenge. It is crucial to ensure that human rights violations are not dealt with any form of
human rights violations.
6. In Crimea, a number of concerns relating to human rights could be observed before
and during the 16 March referendum. On 27 March, the General Assembly in paragraph 5 of
resolution 68/262 concluded that the referendum “had no validity”. In addition to this, the
presence of paramilitary and so called self-defence groups as well as soldiers in uniform
without insignia, widely believed to be from the Russian Federation, was not conducive to an
environment in which voters could freely exercise their right to hold opinions and the right to
freedom of expression. There have also been credible allegations of harassment, arbitrary
arrest, and torture targeting activists and journalists who did not support the referendum.
Furthermore, seven persons were reported as missing; the HRMMU is verifying their
whereabouts. The situation of the Tatar community is also one that remains somewhat
ambiguous following the referendum. While the Tatar community was promised numerous
concessions, including Government positions as well as the recognized status as indigenous
peoples, the majority of the members of the community chose to boycott the referendum.2
Statements from authorities in Crimea and officials in the Russian Federation indicate plans to
relocate or resettle within Crimea some of those Crimean Tatars who in protest against the
slow progress of the restitution of land lost following forced relocation of their land, have
occupied land illegally in recent years.
7. In eastern Ukraine, where a large ethnic Russian minority resides, the situation remains
particularly tense with ethnic Russians fearing that the central Government does not represent
their interests. Although there were some attacks against the ethnic Russian community, these
were neither systematic nor widespread. There are also numerous allegations that some
participants in the protests and in the clashes of the politically opposing groups, which have
already taken at least four lives, are not from the region and that some have come from the
Russian Federation.
8. Irrespective of the fact that systemic shortcomings may be only remedied in the longerterm,
it will be important to immediately take initial measures to build confidence between the
Government and the people, and among the various communities, and reassure all people
throughout Ukraine that their main concerns will be addressed.
9. In addition to combatting speech that advocates national, racial or religious hatred that
constitutes incitement to discrimination, hostility or violence and introducing impartial
reporting on the on-going human rights situation, it will be critical to counter the deepening
divide in the country by ensuring inclusivity and equal participation of all in public affairs,
including political life. In this respect, legislation on minorities, in particular on linguistic
rights, should be adopted following full consultation with all those concerned and according to
relevant international and regional human rights standards.
2 OHCHR was informed by representatives of Crimean Tatars that no more than 1000, out of a population of
290,000-300,000, participated in the 16 March referendum.
5
10. While the situation requires attention in particular in eastern Ukraine and in Crimea,
there are positive changes underway or under reflection. There are, for example, indications of
a willingness to ensure a break with past injustices and to elaborate a new vision for Ukraine’s
future. Strengthening the rule of law, democracy and human rights will be key to any lasting
change. Legislative and institutional reforms should be carried out in a comprehensive,
transparent and consultative way, and therefore not be rushed. Furthermore, they should be
sustained through consistent and accountable implementation.
11. The international community, including the United Nations, can play a role in
supporting an environment where the human rights of all, including minorities and indigenous
peoples, may be best promoted and protected. In particular, it will be important to ensure that
the 25 May elections take place in an environment conducive to free and fair elections.
Without an independent, objective and impartial establishment of the facts and circumstances
surrounding alleged human rights violations, there is a serious risk of competing narratives
being manipulated for political ends, leading to divisiveness and incitement to hatred.
12. Among other means to address these challenges and at the request of the Government
of Ukraine, OHCHR established the UN Human Rights Monitoring Mission in Ukraine
(HRMMU). This mission became operational on 15 March and will consist of 34 staff,
including national staff, deployed in Lviv, Kharkhiv, Odesa and Donetsk, and seeks also the
presence of a sub-office in Simferopol. In the meantime, HRMMU continues to monitor the
situation in Crimea, in accordance with the General Assembly resolution 68/262 of 27 March
on the Territorial Integrity of Ukraine.
13. In addition to monitoring the human rights situation, the Office of the United Nations
High Commissioner for Human Rights stands ready to provide technical assistance for
legislative and other reforms.
6
II. INTRODUCTION
A. Context
14. The Office of the United Nations High Commissioner for Human Rights (OHCHR)
has been closely following the human rights situation in Ukraine since November 2013, when
mass protests started in Kyiv further to the Government’s announcement that it would not sign
the Association Agreement with the European Union (EU). These protests subsequently
spread to other parts of the country, and by mid-February had escalated into violent clashes
between riot police and other security forces and protesters.
15. The excessive use of force by the Berkut special police and other security forces was
met with impunity and led to a significant radicalisation of the protest movement. Over time,
protest called for the resignation of President Yanukovych and his government, and for overall
change. Violence escalated after 16 January 2014, following the adoption of a set of more
stringent anti-protest laws. Anti-government demonstrators occupied several government
buildings, including the Justice Ministry and the Kyiv City Hall, and demonstrations spread
across the western and central parts of Ukraine. The violent clashes that occurred between
security forces and protesters from 18 to 20 February, including the actions of snipers, resulted
in the death of 121, mostly protesters, but also law enforcement officials. Hundreds of people
were injured and had to be hospitalised, and some of them remain in critical condition.
According to the General Prosecutor’s Office of Ukraine, more than 100 persons remain
unaccounted for as at 2 April.
16. On 21 February, President Yanukovych and opposition leaders signed a compromise
agreement setting out elections by the end of the year and a return to the 2004 Constitution.
On the same day, the Ukrainian Parliament reinstated the 2004 Constitution. After President
Yanukovych’s departure from Kyiv, on 22 February, the Parliament decided that he had
“withdrawn from performing constitutional authorities” and decided to hold presidential
elections on 25 May3. In the meantime, Parliament elected Mr Oleksandr Turchynov as
Speaker and thus acting President of Ukraine. A new Government was formed on 26 February.
17. While a number of domestic and international initiatives were undertaken during the
Maidan events, they did not manage to prevent conflict escalation and bloodshed. The
departure of former President Yanukovych put an end to the deadly confrontations, but
daunting new challenges emerged.
Events in Crimea
18. Following the dismissal of President Yanukovych at the end of February, unidentified
armed men began taking over strategic infrastructures in Crimea. Ukrainian Authorities
alleged that the armed men were Russian armed forces and/or allied local paramilitary groups.
3 After long discussions mediated by EU foreign representatives, President Yanukovych stated on 21 February
that he had reached a deal with the opposition which would “settle the crisis”. On 22 February 2014, 328 of 447
members of the Ukrainian parliament (MPs) voted to "remove Viktor Yanukovych from the post of president of
Ukraine" on the grounds that he was unable to fulfill his duties] and to hold early presidential elections on 25
May. The vote came an hour after Mr. Yanukovych stated in a televised address that he would not resign. He
subsequently declared himself as "the legitimate head of the Ukrainian state elected through a free vote by
Ukrainian citizens. However, later that day he fled the capital for Kharkiv, then travelled to Crimea, and
eventually to southern Russia.
7
The Russian Government insisted that the forces did not include Russian troops, but only local
self-defence groups. As Russia refused to recognize the new Government of Ukraine, but
instead recognized the legitimacy of former President Victor Yanukovych, his request for
intervention was taken into consideration by the Russian authorities.
19. On 27 February 2014, in a contested situation including the presence of armed persons
around its building, the Parliament of the Autonomous Republic of Crimea dismissed the
former local government and appointed Mr Sergey Aksyonov as “prime minister”. The same
day, it also decided to hold a referendum on 25 May 2014, on the future status of Crimea. The
Ukrainian Central Electoral Committee declared this decision as contrary to the Ukrainian
Constitution. On 14 March the Constitutional Court of Ukraine ruled that the decision to hold
a referendum was unconstitutional. On 15 March the Ukrainian Parliament terminated the
powers of the Verkhovna Rada. The date of the referendum was brought forward first to 30
March, and finally to 16 March. At the referendum, voters were asked to choose between two
options: firstly, “Do you support the reunification of Crimea with Russia with all the rights of
the subject of the Russian Federation?”; or, secondly, “Do you support the restoration of the
1992 Constitution of the Republic of Crimea and the status of the Crimea as part of Ukraine?”.
On 11 March, the Supreme Council of Crimea voted to secede from Ukraine.
20. On 1 March, the Federation Council of the Russian Federation (upper chamber of the
Russian Parliament) approved a request from President Vladimir Putin permitting the usage of
Russian armed forces to protect the Russian speaking population. According to reports, the
Russian Federation also started boosting its military presence in Crimea. Unidentified armed
men, without military insignias, took control of the administrative border between Crimea and
the rest of Ukraine and blocked several Ukrainian military bases. Ukrainian Authorities
alleged that the armed men were Russian armed forces and/or allied local paramilitary groups.
The Russian Government justified its involvement to be in response to the will of the local
population and as an effort to protect ethnic Russians and Russian-speakers in the region.
21. On 5 March 2014, the Shevchenko district court of Kyiv issued arrest warrants for Mr.
Sergey Aksyonov and the Chair of the Supreme Council (Crimean Parliament), Vladimir
Konstantinov. The Security Service of Ukraine was requested to bring them to court.
Ukraine’s new Government also warned the Crimean Parliament that it faced dissolution
unless it cancelled the referendum. In response, the authorities in Crimea stated that the new
Government in Kyiv came to power illegitimately through a coup d’état. On 11 March, they
also closed the airspace over Crimea for flights from the rest of Ukraine. On 15 March, the
Ukrainian Parliament took the decision to dissolve the Supreme Council of Crimea.
22. On 16 March, the Supreme Council of Crimea voted to secede from Ukraine, and held
a referendum on whether Crimea should join the Russian Federation or remain part of Ukraine
with the degree of autonomy it had in 1992. The referendum resulted in a reported turnout of
over 81%, where based on reports over 96% of voters supported Crimea joining the Russian
Federation. However, the OHCHR delegation received many reports of vote rigging. Ukraine
refused to recognize the results of the Crimean referendum, claiming that it was in violation of
its Constitution.
23. On 27 March, the UN General Assembly adopted resolution 68/262 upholding the
territorial integrity of Ukraine and underscored that the referendum held on 16 March 2014
had no validity. In addition, the resolution’s operative paragraph 4 welcomed the UN and
OSCE assistance to Ukraine in protecting the rights of all persons, including minorities.
8
B. Universal and regional human rights instruments ratified by Ukraine
24. Ukraine is a party to most core international human rights instruments, including: the
International Covenant on Civil and Political Rights; the International Covenant on Economic;
Social and Cultural Rights; the Convention on the Elimination of all Forms of Racial
Discrimination; the Convention on the Elimination of all Forms of Discrimination against
Women; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment; the Convention on the Rights of the Child; and the Convention on the Rights of
Persons with Disabilities.
25. Ukraine is a party to a number of regional European treaties, including: the European
Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR); Protocol
No. 6 to the ECHR concerning the abolition of the death penalty in times of peace; Protocol
No. 12 to the ECHR concerning the general prohibition of discrimination; Protocol No. 13 to
the ECHR concerning the abolition of the death penalty in all circumstances; Framework
Convention on the Protection of National Minorities; the European Charter for Regional and
Minority Languages; the European Convention for the Prevention of Torture and Inhuman and
Degrading Treatment or Punishment; the Council of Europe Convention on Action against
Trafficking in Human Beings.
26. It has not yet become a party to the following instruments: the International
Convention for the Protection of All Persons from Enforced Disappearance; the international
Convention on the Protection of the Rights of All Migrant Workers and Members of their
families; the Optional Protocol to the International Covenant on Economic, Social and
Cultural Rights; the third optional Protocol to the Convention on the Rights of the Child; the
Rome Statute of the International Criminal Court; the 1954 Convention relating to the Status
of Stateless Persons; and the 1961 Convention on the Reduction of Statelessness.
27. Ukraine has not availed itself of the right of derogation under article 4 of the
International Covenant on Civil and Political Rights, and therefore the rights contained therein
are fully applicable.
C. UN human rights response
28. In light of the deteriorating situation, it was assessed that the UN can play an important
role in deescalating tensions, including through human rights monitoring. Assistant Secretary-
General (ASG) Ivan 􀃢􀁌􀁐􀁒􀁑􀁒􀁙􀁌􀃼, planned to undertake a mission to Ukraine in March, which
was requested by the Secretary-General to be moved forward due to the rapid deterioration of
the situation. Several high-level UN visits took place from mid-February to mid-March,
including respectively, Senior Adviser Robert Serry; Deputy Secretary-General, Jan Eliasson;
and Under-Secretary-General for Political Affairs Jeffrey Feltman and the Secretary-General,
Ban Ki-Moon. The latter two visits took place at the same time as that of ASG Šimono􀁙􀁌􀃼.
29. The UN offers a neutral platform and professional expertise which can add significant
value to the efforts to ensure that human rights are respected and protected in Ukraine.
Independent monitoring and analysis of the human rights situation will outline technical, legal
or other assistance needs, which will complement recommendations received by Ukraine from
UN human rights mechanisms, and may contribute to addressing the root causes of the
violence. These endeavours can and should be undertaken in cooperation with regional
organizations, including the OSCE and the Council of Europe.
9
30. ASG 􀃢􀁌􀁐􀁒􀁑􀁒􀁙􀁌􀃼 mission to Ukraine had the following overall objectives: to assess the
human rights situation; to raise the issue of accountability and bring visibility to human rights
violations and concerns; to make strong calls for the protection of human rights (including
those of minorities); and to place human rights promotion and protection as a critical factor in
deterring pre-electoral, electoral and post-electoral violence and possible further violations.
31. ASG 􀃢􀁌􀁐􀁒􀁑􀁒􀁙􀁌􀃼􀀃􀁄􀁕􀁕􀁌􀁙􀁈􀁇􀀃􀁌􀁑􀀃􀀮􀁜􀁌􀁙􀀃􀁒􀁑􀀃􀀙􀀃􀀰􀁄􀁕􀁆􀁋􀀃􀁄􀁑􀁇􀀃left on 18 March. The delegation led
by the ASG visited Kyiv, Kharkiv, and Lviv. It sought access to Crimea, but was not able to
go, as the authorities informed the delegation that they would neither receive the mission nor
ensure its security. On 14 March, a second request for access to Crimea was sent to the
authorities. They then confirmed their readiness to meet with ASG 􀃢􀁌􀁐􀁒􀁑􀁒􀁙􀁌􀃼􀀏􀀃􀁚􀁌􀁗􀁋􀀃􀁄􀀃􀁙􀁌􀁈􀁚􀀃􀁗􀁒􀀃
discussing measures for human rights protection, which could lead to the de-escalation of
tension. In all locations, the ASG and his delegation met with stakeholders from across the
cultural, ethnic, linguistic and political spectrum - high-level officials, the Ombudsperson,
civil society organizations representing various communities, representatives of regional
organizations and the diplomatic community. Information from these meetings as well as
documents gathered form the basis for this report. The delegation met and heard accounts
from victims of human rights violations committed during the demonstrations in Kyiv and
elsewhere. The delegation also met with the UN Country Team (UNCT). On Friday 14 March,
ASG 􀃢􀁌􀁐􀁒􀁑􀁒􀁙􀁌􀃼􀀃held a press conference in Kyiv and another through VTC in New York. The
same day, he also briefed representatives of the Kyiv diplomatic community on the
preliminary findings of his mission. On 19 March 2014, ASG 􀃢􀁌􀁐􀁒􀁑􀁒􀁙􀁌􀃼 briefed the Security
Council on his mission.
32. ASG 􀃢􀁌􀁐􀁒􀁑􀁒􀁙􀁌􀃼􀀃􀁘􀁑􀁇􀁈􀁕􀁗􀁒􀁒􀁎􀀃􀁄􀀃􀁖􀁈􀁆􀁒􀁑􀁇􀀃􀁐􀁌􀁖􀁖􀁌􀁒􀁑􀀃􀁗􀁒􀀃􀁙􀁌􀁖􀁌􀁗􀀃􀀦􀁕􀁌􀁐􀁈􀁄􀀃􀁉􀁕􀁒􀁐􀀃􀀕􀀔􀀃􀁗􀁒􀀃􀀕􀀕􀀃􀀰􀁄􀁕􀁆􀁋.
33. In the meantime, OHCHR deployed a Human Rights Monitoring Mission in Ukraine
(HRMMU) as of 14 March, upon the invitation of the Government of Ukraine. The objectives
of the HRMMU are to: monitor the human rights situation in the country and provide regular,
accurate and public reports by the High Commissioner on the human rights situation and
emerging concerns and risks; recommend concrete follow-up actions to relevant authorities,
the UN and the international community on action to address the human rights concerns,
prevent human rights violations and mitigate emerging risks; establish facts and circumstances
and conduct a mapping of alleged human rights violations committed in the course of the
demonstrations and ensuing violence between November 2013 and February 2014 and to
establish facts and circumstances related to potential violations of human rights committed
during the course of the deployment.
34. Mr. Armen Harutyunyan was appointed to lead the mission. Nine international staff
members are deployed in Ukraine as of early April 2014. The entire team, once fully
operational will comprise 34 staff, including national professional staff and 12 drivers.
HRMMU is currently deployed in Lviv, Kharkhiv, Odesa and Donetsk and it seeks also the
presence of a sub-office in Simferopol. In the meantime, HRMMU continues to monitor the
situation in Crimea, in a manner consistent with the General Assembly resolution 68/262 of 27
March 2014, on the Territorial Integrity of Ukraine.
D. Methodology
35. The present report contains preliminary findings on the human rights situation in
Ukraine up to 2 April 2014. It is based on the two missions of ASG Ivan 􀃢􀁌􀁐􀁒􀁑􀁒􀁙􀁌􀃼􀀃 􀁗􀁒􀀃
Ukraine (from 6 to 18 March and from 21 to 22 March to Crimea) and on the first weeks of
10
operation of HRMMU. Although information continues to be gathered and verified, the
present report with its preliminary findings is being publicly released already now with a view
to contributing towards establishing the facts and defusing tensions. Impartial reporting on the
human rights situation can help not only to trigger accountability for human rights violations,
but it also aims at the prevention of manipulation of information, which serves to create a
climate of fear and insecurity and may fuel violence. This is especially important with regard
to eastern Ukraine.
36. In accordance with its objectives, HRMMU is gathering and verifying information
with regards to particular cases of human rights violations and, more broadly, the overall
human rights situation. Information is then assessed and analysed, thus contributing to
accountability and reinforcing State responsibility to protect human rights. HRMMU is
providing reports on the basis of information verified as credible and from reliable sources,
and is advocating for measures to be taken by respective state institutions with a view to
providing appropriate remedies. HRMMU is also undertaken in line with the Secretary-
General’s Rights Up Front Plan of Action, to ensure that the UN is aware of the human rights
context and that OHCHR regularly provides analysis of main human rights concerns and risks
of violations, and that a UN strategy is developed as necessary to address the situation at
country, regional and global levels. The present report, in line with the UN General Assembly
resolution on the ”Territorial Integrity of Ukraine”, underscores also the obligation of
authorities in Crimea to ensure the protection of all the rights to which individuals there are
entitled within the context of Ukraine’s ratified universal and regional human rights
instruments.
III. UNDERLYING HUMAN RIGHTS VIOLATIONS
A. Corruption and violations of economic and social rights
37. Corruption remains one of the most serious problems in Ukraine and has affected all
human rights, whether civil, political, economic or social, exacerbated inequalities, eroded
public trust in state institutions including the justice system, led to impunity and undermined
the rule of law. It may be noted that in 2013, Transparency International ranked Ukraine 144th
out of 176 countries (the country being ranked first is considered the least corrupt).
38. There has been only patchy implementation of international commitments to tackle
corruption made under the UN Convention against Corruption, which entered into force in
December 2005 and was ratified by Ukraine four years later. A National Anti-Corruption
Strategy for 2012 – 2015 was adopted by presidential decree in October 2011, but there is
currently no comprehensive anti-corruption law in Ukraine. The Ministry of Justice informed
the OHCHR delegation that a draft law containing provisions applicable to corruption in both
the public and private sectors would be presented by the end of March.
39. Corruption has disproportionately affected the poor and the most vulnerable. It impacts
negatively on the enjoyment by all of economic and social rights, including the right to health
services. Health service allocations make up 3.5% of the country’s GDP, which falls well
short of the minimum recommended by the WHO (7%). The poorest segment of the
population cannot afford costly treatment in a situation where the country has no medical
insurance system.
40. The Ministry of Health supports reform of management of medical services to move
away from a centralized medical system and enable greater medical self-governance.
11
Insufficient salaries for employees in the health service have led to emigration of qualified
staff. It has also affected professional competency and fed corruption practices, thus leading to
inequalities in access to health care.
41. More generally, the socio-economic situation in Ukraine is of concern and constitutes
one of the causes of recent events. In its 2008 review of the implementation of the
International Covenant on Economic, Social and Cultural Rights in Ukraine, the Committee
on Economic, Social and Cultural Rights expressed a number of concerns. In particular, it
referred to a finding that 28 per cent of the population reportedly lived below the official
poverty line, that the minimum wage does not provide an adequate standard of living, and that
unemployment benefits amount to 50 per cent of the minimum subsistence level. It also
expressed concern at the inadequate level of social assistance, and that several hundreds of
thousands of children below the age of 15 were working in the informal and illegal economy
and several thousands of children living in the street.
42. These concerns should constitute priorities for any new Government in Ukraine in the
coming months and years. The Ukrainian Authorities must, as a matter of priority, put in place
measures to eradicate corruption, while ensuring good governance and the rule of law. In
addition, efforts should be made to redress disparities in standards of living and ensure equal
access to, and quality of, health, education, employment and social support structures for all,
including marginalised communities throughout the country.
B. Lack of accountability for human rights violations and rule of law institutions
43. The justice system in Ukraine has traditionally been marred by systemic deficiencies,
including corruption, lack of independence and a lack of equality of arms between prosecution
and defence in criminal proceedings. Other major concerns relate to the excessive use and
length of pre-trial detention, numerous reports of cases of torture and ill-treatment, a
significant reliance on suspects’ confessions during criminal proceedings, insufficient or
inadequate legal reasoning in indictments and overall underfunding of the justice system.
44. A new Code of Criminal Procedure (CCP) entered into force in November 2012. The
new code responds to some of the major concerns expressed by UN human rights mechanisms
(e.g. the UN Human Rights Council, Universal Periodic Review, or the UN Human Rights
Committee). It introduces an adversarial system; supports the presumption of innocence,
including the need to specify the circumstances suggesting reasonable suspicion that would
justify a deprivation of liberty; and provides increased safeguards for timely access of
detainees to a lawyer and a doctor. Alternative measures to deprivation of liberty are also
provided.
45. A round-table discussion organized in November 2013 by the Ombudsperson’s office
on the occasion of the first anniversary of the entry into force of the new CCP identified the
substantial decrease in the number of pre-trial detentions as a clear achievement since the
entry into force of the new code. However, dozens of people who participated in the Maidan
demonstrations were arrested and held in police custody and lengthy pre-trial detention,
subjected to torture and ill-treatment, and deprived of their right to a fair trial and due process,
in violations of the new CCP.
46. Other challenges remain. The provisions of the new CCP are not applied to all cases.
Those opened before November 2012 are still processed under the former Code. The lack of
12
effective implementation of the new CCP provisions and examples of political interference in
legal proceedings (“new provisions, old instructions”) also constitute a challenge.
47. According to the current provisions of the Constitution, judges are appointed for an
initial period of five years by the President, upon recommendation of the High Council of
Justice, based on a proposal from the High Qualifications Commission for Justice. After this
five-year probation period, they become eligible for life tenure by Parliament, upon proposal
of the High Qualifications Commission. This system opens the possibility for undue influence
on the decision-making of judges during their probation period. The role and composition of
the High Council of Justice and High Qualifications Commission as currently provided for in
the Constitution are also a cause for concern. The Minister of Justice is represented on the
High Qualifications Commission and can exercise considerable influence on the appointment
of, as well as on disciplinary procedures against, judges. The High Council of Justice is
composed of 20 members, the majority of whom have institutional links to the executive
branch.
48. It should be noted that the CCP in place until 2012, conferred considerable discretion
to the Prosecutor throughout criminal proceedings, including with regard to decisions on pretrial
detention. In addition, the public prosecutor’s multiplicity of roles is also a cause of
concern raised by many international human rights mechanisms. Aside from his responsibility
to conduct criminal investigations and prosecute persons formally accused, s/he oversees the
legality and human rights compliance of those investigations.
49. Complaints and allegations of torture or ill-treatment are examined by the Public
Prosecutor’s office which is reluctant to pursue complaints and, through its work on criminal
investigations, has very close links with police forces. Article 216 of the new CCP provides
for the creation within five years (as of 2012) of a State Bureau of Investigation to investigate
allegations of human rights violations committed by judges, law enforcement officers and
high-ranking officials. However, no progress has yet been made towards its creation.
50. In March 2014, the Ukrainian Parliament prioritized the adoption of legislation related
to prosecution, anti-corruption and law enforcement reform.
51. The prevalence of impunity for human rights violations perpetrated by law
enforcement forces has been an issue for a long time in Ukraine. An overall reform of the
security sector needs to be undertaken. In this context, law enforcement officers should
receive adequate training with regard to international human rights norms and standards. All
acts of torture or ill-treatment should be investigated while also condemned firmly and
publicly by the Ukrainian Authorities.
52. There has been a culture of effective impunity in Ukraine for the high level of criminal
misconduct, including torture and extortion, often committed by the police in the course of
their work. Structural shortcomings, widespread corruption, close functional and other links
between prosecutors and police, non-existent or flawed investigations into criminal acts
committed by the police, harassment and intimidation of complainants, and the subsequent
low level of prosecutions all fuel this lack of accountability for human rights violations. There
is a large number of detentions, many of which are not registered. Allegations of torture may
not be investigated effectively and promptly and complaints of such violations were generally
ignored or dismissed for alleged lack of evidence.
13
IV. HUMAN RIGHTS VIOLATIONS RELATED TO THE MAIDAN PROTESTS
A. Violations of the right to freedom of assembly
53. There have been notable failures to respect the right to freedom of peaceful assembly
in line with international human rights standards since protests started in November 2013. In
some cases, local authorities sought to ban or restrict public gatherings through court
decisions. On 22 November, the Kyiv district administrative court banned the use of
“temporary structures such as tents, kiosks and barriers” from 22 November to 7 January.
Local authorities in Odesa applied to a court to ban a demonstration that had attracted several
hundred people on 23 November. On 24 November, the court endorsed the ban and the
remaining demonstrators were violently dispersed by the police.
54. The Ukrainian Authorities attempted to disperse the demonstration in Kyiv twice, on
30 November and on 11 December, respectively. On 30 November, the Authorities justified
the decision to disperse the demonstration by claiming that a New Year tree needed to be
erected in the square. On 11 December, the Minister of Interior stated that the decision to
remove barricades from the roads surrounding the Maidan was in response to citizens’
complaints that the demonstration was blocking traffic. There have also been reports of
individuals having been prevented from attending demonstrations or who were harassed for
having done so.
55. While article 39 of the Ukrainian Constitution guarantees freedom of assembly, no
post-independence laws regulate it. In the absence of such a law, courts have referred to local
authority regulations or to the Decree of the Presidium of the Supreme Soviet of the USSR of
28 July 1988 on the procedure for organizing and holding meetings, rallies, street marches and
demonstrations in the USSR.
B. Excessive use of force, killings, disappearances, torture and ill-treatment
56. The first instance of excessive use of force against demonstrators took place in the
early hours of 30 November 2013, when 290 riot police officers (known as ‘Berkut’) dispersed
Maidan protesters, mainly students and youths. Witness testimony and footage of the incident
shows that the riot police used excessive force to clear demonstrators, forced assessed as both
indiscriminate and disproportionate, including through chasing and beating demonstrators who
ran away. The violence escalated on 1 and 2 December and there were serious clashes in
nearby streets between demonstrators and riot police, and an attempt to storm the presidential
administration building. At least 50 riot police and hundreds of protestors were injured, and
twelve persons detained on charges of “organizing mass disorder”. A third instance of
excessive use of force and violent clashes occurred on 10 and 11 December 2013, when the
riot police attempted to remove barricades, and left 36 persons hospitalized, including 13
policemen. Violent clashes resumed on 19 January 2014, following the adoption of
controversial new laws on 16 January limiting the ability to conduct unsanctioned public
demonstrations. Demonstrators, many of whom were linked to the far right wing “Right
sector” group, attacked governmental buildings, throwing stones, firecrackers and Molotov
cocktails at the police. The response of the police included the use of water cannons, in subzero
temperatures and live fire, as a result of which five demonstrators were killed.
57. The violence in Kyiv reached its peak between 18 and 20 February 2014, when mass
violent clashes took place mainly on Institutskaya Street. During these three days around 90
people were killed, mostly from sniper shots allegedly from rooftops. The new Minister of
14
Health, Mr. Oleg Musii, indicated to OHCHR that, as chief of the medical services on Maidan,
he saw law enforcement officers removing the bodies of individuals who are still unaccounted
for. He noted that snipers were aiming to kill (targeting the head and vital organs of the
victims) and also depicted cases of police brutality, including beatings of medical staff and
preventing medical personnel from attending the wounded. According to information gathered
so far, in the period from December 2013 to February 2014, in total 121 people were killed,
either as a result of severe beating or gunshots. This number includes 101 Maidan protesters,
17 officers of the internal affairs/police, 2 members of NGO “Oplot” that attacked Maidan in
Kharkiv and a Crimean Tatar found dead.
58. Most acts of severe beatings, torture, and other cruel, inhuman or degrading treatment
were attributed to the ‘Berkut’ riot police. For example, one demonstrator was stripped naked,
roughly pushed around and forced to stand still on the snow in freezing temperatures while a
police officer filmed him with a mobile phone. At the same time, there were a number of
examples of members of the broad Maidan protest movement around the country taking
control of local state administrations and forcing regional governors to sign their applications
for resignation letters, while in parallel protesters took over Regional Administration
buildings. One example of such actions was from the Right Sector activist Alexander
Muzychko, who filmed himself intimidating and physically assaulting the prosecutor of Rivne
district on 27 February 2014.4
C. Accountability and national investigations
59. The Ukrainian Authorities have committed to shedding light on all cases of excessive
use of force and arbitrary killings, including from unidentified snipers, torture, disappearances
and other human rights violations that occurred during the Maidan events. There were also
cases of abductions by unidentified individuals in or outside hospitals, and persons were later
found dead.
60. The newly appointed Prosecutor-General launched investigations into the killings of
protesters, including regarding the responsibility of high-ranking officials. An investigation by
the Interior Ministry is looking into the fate of persons who disappeared during the protests
and cases of abuse of power by law enforcement officials. The OHCHR delegation was
informed that a group of 75 victims are included in one single criminal investigation targeting
responsibility of former senior officials, including the former President, former Interior
Minister and several other officials, while there are also 65 separate cases filed against police
for the abuse of power and brutality.
61. While OHCHR was provided with general information about the cases launched by the
Office of the Prosecutor-General, it also heard from civil society representatives that some of
the victims have not yet been contacted by relevant authorities for investigation purposes.
According to NGO sources, there are also concerns regarding the collection and preservation
of evidence and forensic examinations which may not have been systematically carried out
regarding cases of those killed during recent events. Such examinations would have been
essential to help determine criminal responsibility, including with regard to the so-called
snipers whose identity and affiliation remains to be clarified. Involvement of international
experts can be helpful both in terms of capacity as well as impartiality and credibility.
Concerns have been raised by local interlocutors in relation to the fact that the investigation is
4 Mr Muzychko died in a police raid in Rivne on 24 March. The exact circumstances will require further
investigation.
15
concentrating exclusively on the issue of persons killed by snipers on 20 February, and that it
is not looking into issues related to responsibility for excessive force used on other occasions
during the course of demonstrations between November 2013 and January 2014.
V. CURRENT OVERALL HUMAN RIGHTS CHALLENGES
A. Protection of minority rights
62. According to the 2001 census, ethnic Ukrainians constitute about 78 per cent of
Ukraine’s population, ethnic Russians constitute around 17 per cent, and around 5 per cent
belongs to other ethnic groups. While 67 per cent of the population declared Ukrainian as their
native language, well over one-third of the population (including many ethnic Ukrainians)
speaks Russian in their daily life. Russian is the predominant language of communication in
eastern and southern regions of the country, as well as in central Ukraine, including capital
Kyiv. As a result, Ukraine is largely a bilingual society, as was confirmed by stakeholders met
by the delegation throughout Ukraine. Consequently, nationalistic rhetoric and hate speech
may turn the ethno-linguistic diversity into a divide and may have the potential for human
rights violations.
63. The diversity of Ukrainian society – as in any society is enriching – and needs to be
promoted and protected as a positive factor rather than a divisive one. According to a law
adopted in August 2012, any local language spoken by at least a 10% minority could be
declared official within the relevant area (oblast, rayon or municipality). Russian was within
weeks declared an official language in several southern and eastern oblasts and cities. The
2012 Law also recognised 17 other languages as regional languages.
64. As already noted, Ukraine is a party to the Council of Europe’s Framework
Convention for the Protection of National Minorities and to the European Charter for Regional
or Minority Languages. Both the Advisory Committee on the Framework Convention and the
Committee of Experts on the European Charter, while acknowledging progress, have found
that there was great scope for improvement regarding the protection of the rights of minorities
in Ukraine.
65. In its third opinion released in 2012, for example, the Advisory Committee on the
Framework Convention recalled its previous observations on the need to remove legal
obstacles to wider representation of national minorities and more effective participation of
persons belonging to national minorities in elected bodies. It regretted that the numerous
recommendations made by international bodies for the introduction of a regional proportional
system based on open lists and multiple regional constituencies, to allow for stronger regional,
including minority, representation, had not been taken into account.
66. The OHCHR delegation met with some interlocutors who conveyed a perception that
the right of minorities to participate in political life is not fully taken into account. While the
Batkivshchyna and Svoboda parties, currently part of the new majority coalition, are largely
affiliated with western Ukraine, the Party of Regions is seen as prevailingly being supported
by the population of eastern regions. The composition of the current Cabinet is perceived by
some people in eastern and southern Ukraine as not being inclusive, as most of its members
come from western Ukraine. According to various reports, a number of high level officials –
governors, mayors, and senior police officers – have been replaced by supporters of the new
coalition parties, many coming from western Ukraine.
16
67. A motion of the new ruling coalition in Parliament on 23 February 2014, attempted to
repeal the Law on the Principles of State Language Policy, adopted on 3 July 2012, and make
Ukrainian the sole State language at all levels. On 2 March, Oleksandr Turchynov, acting
President and Chair of the Parliament, declined to sign and approve the Parliament’s decision
to repeal the law. The 2012 law continues to apply for the time being, but a new law is being
prepared. The motion, though never enacted, raised concerns among Russian speakers and
other minorities in Ukraine, and was largely considered a mistake. Despite deepening divides
between some social groups, there are also civil society actions against it, emphasising the
need for tolerance, mutual respect and solidarity. In Lviv, the delegation was heartened by its
meeting with Mr. Volodimir Beglov, who had launched a campaign for people across Ukraine
to speak Russian for a day in protest against the repeal of the Law on Languages, and in
solidarity with Ukraine’s Russian-speaking minorities. This individual initiative shows that
there is a way forward and that transcending ethnic and linguistic differences is possible in
Ukraine.
B. The right to freedom of expression, peaceful assembly and the right to
information
68. Demonstrations have continued to take place since early March, in particular in eastern
Ukraine. At least four persons were killed as a result of violence that broke out between antigovernment
protestors and supporters of the Government, who allegedly travelled to Donetsk
and Kharkiv from western and central regions of Ukraine. The OHCHR delegation was told
by several interlocutors about allegations according to which people were brought in buses
and paid to take part in protests and conduct them according to specific scenarios, including
causing violent incidents. Some protesters allegedly come from the Russian Federation,
according to information received from local authorities and confirmed by the central
authorities.
69. Reports have been made of arrests during demonstrations that have taken place during
the week starting on 10 March in Donetsk and in Kharkiv5. Police moved to clear protests
sites and arrested the leader of protests in Donetsk6. Since the start of the Maidan protests, and
particularly after the beginning of the Crimea crisis, the human right to information needs to
be carefully monitored. While the distorted anti-Maidan discourse of the media controlled by
the supporters of former President Viktor Yanukovych ended with the latter’s dismissal in the
end of February, new concerns emerged whereby pro-Maidan politicians or activists would
exert pressure on the media to air or voice ‘patriotic’ discourse. For example, on 18 March
2014, the representative of Svoboda political party MP Igor Myroshnichenko and other
Svoboda party members arrived to the National Television Company of Ukraine and
intimidated and assaulted its Head Mr Olexander Panteleimonov, forcing him to sign a
resignation letter. The Acting Prosecutor General committed to investigating the attack, which
was also condemned by the Authorities.
70. The OHCHR delegation was provided with various accounts of events that have been
perceived by some interlocutors as indicating attempts to limit freedom of expression. While
cases under previous Governments were numerous, recent ones include:
5 http://rus.ozodi.org/archive/news/20140201/11266/11266.html?id=25287436
6 http://obs.in.ua/index.php?option=com_content&view=article&id=4859:ukr-world&catid=3:regnews&
Itemid=11
17
- On 13 March, the Pechorski District Court of Kiev placed Mr. Hennady Kernes, Mayor
of Kharkiv, under house arrest under three articles of the Criminal Code. However, Mr.
Kernes believes that he is a victim of selective justice due to his political views;
- On 10 March, the police arrested Mr. Mikhail Dobkin, former Governor of Kharkiv,
allegedly on suspicion of a crime under article 110 (2) of the Criminal Code of Ukraine
(“Offence against the territorial integrity and the inviolability of borders of Ukraine,
committed by an individual in his capacity as a State official”).
71. The delegation was unable to obtain further clarification on the aforementioned cases,
although Mr. M. Dobkin was eventually released. Irrespective of the actual facts of these
specific examples, it will be important, in particular in the preparation of the 25 May elections,
to ensure free communication of information and ideas about public and political issues
between citizens, candidates and elected representatives. This implies a free press and other
media able to comment on public issues without censorship or restraint and to inform public
opinion.
72. New restrictions on free access to information came with the beginning of the Crimea
crisis. Media monitors indicated a significant raise of propaganda on the television of the
Russian Federation, which was building up in parallel to developments in and around Crimea.
Cases of hate propaganda were also reported. Dmitri Kiselev, Russian journalist and recentlyappointed
Deputy General Director of the Russian State Television and Radio Broadcasting
Company, while leading news on the TV Channel “Rossiya” has portrayed Ukraine as a
“country overrun by violent fascists”, disguising information about Kyiv events, claimed that
the Russians in Ukraine are seriously threatened and put in physical danger, thus justifying
Crimea's “return” to the Russian Federation. On 6 March, analogue broadcasts of Ukrainian
television channels (notably Ukraine's First National Channel, Inter, 1+1, Channel Five etc.)
were shut off in Crimea, and the vacated frequencies started broadcasting Russian TV
channels. On 12 March, Ukrainian broadcasters blocked three leading television channels –
the 1 Channel, NTV and Rossia TV - in Kyiv and other locations in Ukraine. As a result, there
are serious concerns that people – both in Russia and Ukraine and especially in Crimea – may
be subject to propaganda and misinformation, through widespread misuse of the media,
leading to a distortion of the facts. OHCHR shall analyse the recent decision of the Kyiv
District Administrative Court to suspend broadcasting by First Channel, Worldwide Network,
RTR Planeta, Rossiya 24 and NTV Mir, in line with applicable provisions against advocacy of
national, racial or religious hatred that constitutes incitement to discrimination, hostility or
violence. During the month of March 2014, in several regions, the authorities have reacted to
anti-Government protests and attempts to forcefully take over administrative buildings by
detaining perpetrators. In some cases, persons were charged under the Criminal Code article
sanctioning offences against the territorial integrity and inviolability of the borders of Ukraine
(articles 110). There is concern that this article may sometimes have been used to restrict
freedom of speech. On 22 March the local police in Donetsk arrested Mikhail Chumachenko,
described as the leader of the "Popular Militia of the Donbas". Material is reported to have
been seized demonstrating Chumachenko’s intention to take over the regional administration
building and proclaim himself the ‘people’s governor’. In addition to being charged for
attempting to forcefully overthrow the authorities and/or the constitutional order (article 109
of the Criminal Code), he was also charged under article 110.
C. Incitement to hatred, discrimination or violence
18
73. During its mission, the OHCHR delegation was informed that there had been some
cases where members of the Russian minority have been harassed or even attacked, such as in
the case of the attack against a member of Parliament. While it seems that these violations are
neither widespread nor systemic, the delegation endeavoured to collect information on cases
of incitement to intolerance or hatred and related violence against all minorities. It noted the
following instances:
- Ukrainian businessman and politician who on 4 March was reportedly detained and
beaten by the Crimean police and who allegedly called on the crowds in Independence Square,
to “shoot at the heads of Russian citizens who are in Crimea… using snipers”;
- On 10 March, in Luhansk, Mr Oleh Lyashko, Leader of the Radical Party of Ukraine
and a member of the Ukrainian Parliament, who is supportive of the new coalition
Government, together with a group of armed men, allegedly detained Mr Arsen Klinchaev,
member of the Luhansk Regional Council and activist of the Young Guard believed to be a
pro-Russian organization. The detention was allegedly accompanied with violence and
threats7;
- In another alleged incident in early March, Mr. Dmytro Yarosh, leader of the Right
Sector8, who declared his intention to run for presidency during the upcoming elections on 25
May, posted a call on a Russian-language social network vkontakte.com. He allegedly wrote:
“Ukrainians have always supported the liberation struggle of the Chechen and other Caucasian
peoples. Now it’s the time for you to support Ukraine… As the Right Sector leader, I urge you
to step up the fight. Russia is not as strong as it seems”. The Right Sector later denied that its
leader made such statements, explaining that his website had been hacked. According to other
reports, Mr. Yarosh also allegedly stated that “non-Ukrainians” should be treated according to
principles set forth by Ukrainian nationalist leader Stepan Bandera, although such statements
were publicly refuted by Mr Yarosh himself.
74. Only isolated anti-Semitic incidents have been reported before and after the recent
period of unrest. In February 2014, a Molotov cocktail was thrown at the synagogue in
Zaporizhzhya (central Ukraine)9. On 13 March, a Jewish rabbi was attacked by two
unidentified young men in the Podol neighbourhood of Kyiv10. Another attack was reported
in the same neighbourhood in Kyiv on the following day against a Jewish couple11. However,
when interviewed by an impartial and reliable source representative of the various Jewish
communities in Ukraine, it appears that these communities do not feel threatened, as
confirmed also by the Association of Jewish Organisations and Communities of Ukraine,
publicly in a letter to the President of the Russian Federation on 5 March 2014.
75. On 1 March, OHCHR received information about alleged attacks against Roma in the
Kyiv Oblast. On 27 February, a young Roma was beaten up in Pereslav-Khmelnitsk. His
attackers accused him of being ‘apolitical and indifferent to the country’s political life’.
According to reports, around 15 masked and armed persons raided Roma houses in Korostena,
7 http://news.meta.ua/cluster:35037395-Liashko-v-Luganske-zaderzhal-lidera-prorossiiskoi-organizatsii/
8 Right Sector (Ukrainian: Pravyi Sektor) is a Ukrainian nationalist paramilitary collective of several
organizations, described as having far right views. The group's membership has been growing and has been
estimated to be about 5,000. The group first emerged at the end of November 2013 at the Euromaidan protests in
Kiev, as an alliance of far-right Ukrainian nationalist groups.
9 http://www.vaadua.org/news/neizvestnyy-kinul-kokteyl-molotova-v-zdanie-sinagogi-vzaporozhe#
sthash.45DHa1qx.dpuf
10 http://112.ua/kriminal/v-podolskom-rayone-kieva-napali-na-ravvina-34122.html
11 http://112.ua/obshchestvo/v-kieve-soversheno-esche-odno-napadenie-na-evreev-34609.html
19
on 28 February, allegedly with the same motivation. Roma victims stated that they had called
the police for protection, to no avail. Several Roma families have reportedly left town after
receiving threats.
76. Recent developments in the eastern part of Ukraine and in Crimea are likely to have an
impact on radical groups with possible signs of nationalistic sentiments and rhetoric and
therefore need to be closely monitored. The OHCHR delegation heard from various sides
about concerns with regard to the “Right Sector”, a right-wing group that expresses
paramilitary ambitions and is known for statements which could be considered extremist.
Their active participation in the defence of Maidan and suggested increasing popularity are
causing concerns for the Russian-speaking minority. While there has been no confirmed
evidence of attacks by the “Right Sector”, including any physical harassment, against
minorities, there were numerous reports of their violent acts against political opponents,
representatives of the former ruling party and their elected officials. The role of the group
during the Maidan protests was prominent; they were often in the first line of defence or
allegedly leading the attacks against the law enforcement units. Their alleged involvement in
violence and killings of some of the law enforcement members should be also investigated.
However, according to all accounts heard by the OHCHR delegation, the fear against the
“Right Sector” is disproportionate, although parallels have been drawn by some between this
group and past right wing nationalistic movements at the time of the Second World War. On 1
April, the Ukrainian Parliament adopted a decision by which all armed groups, including the
Right Sector, must disarm.
D. Lustration, judicial and security sector reforms
77. In a bid to break away from the past, the new Government has taken initial steps to
implement a lustration policy that would apply to all public officials. A lustration committee
under the Cabinet of Ministers was established in February 2014 but is not yet functioning.
The committee in its current form is composed of representatives of civil society and lawyers.
The head of the Committee, Mr. Yegor Sobolev, emphasized that a “special act” on the
judiciary would be prepared as a priority, with the assistance of Council of Europe experts.
The draft law should determine the status of the lustration committee and include provisions to
ensure its effective functioning.
78. During discussions with the Vice-Speaker of the Verkhovna Rada, Mr. Ruslan
Koshulinskii, he expressed the view that the draft lustration law may also refer to other senior
officials, including officials who worked closely with the administration of Mr. Yanukovych,
held senior positions in the former Soviet Union and its former Communist Party, and former
KGB officials. The Deputy Minister of Justice mentioned during a meeting that the notion of
lustration was “too generic” and that specific language would be used to address vetting needs
for different categories of state services.
79. All reforms and new policy measures must be taken through an approach based on the
rule of law and human rights, without any spirit of revenge. It is crucial to ensure that human
rights violations are not addressed with any form of human rights violations. In particular, any
lustration measure must be taken fully respecting human rights. This should include: an
individualized review process, and that employees subject to a review should be granted a fair
hearing, with the burden of proof falling on the reviewing body to establish that a public
employee is not suitable to hold office.
20
VI. SPECIFIC HUMAN RIGHTS CHALLENGES IN CRIMEA
80. ASG 􀃢􀁌􀁐􀁒􀁑􀁒􀁙􀁌􀃼 visited Crimea on 21 and 22 March and travelled to Bakhchisaray,
Sevastopol and Simferopol. The main objectives of the visit, were to: discuss the presence
and operation of the UN Human Rights Monitoring Mission’s sub-office in Simferopol and, in
this context, present Mr. Harutyunyan as the Head of the UNHRMM in Ukraine who will be
based in Kyiv; discuss the human rights concerns and allegations collected so far, and inquire
about actions undertaken by the authorities to address them; and finally, to discuss measures
pertaining to human rights which would contribute to addressing urgent protection concerns
and thus also alleviating tensions and leading to the de-escalation of situation in and around
Crimea.
81. ASG Šimono􀁙􀁌􀃼 collected first-hand information through meetings with the authorities
in Crimea, leaders and members of the Crimean Tatar community, other representatives of
civil society and journalists, and Ukrainian military officers and officers without insignia.
Additional information has been gathered from a variety of reliable sources, including some
through extensive telephone and Skype discussions.
82. The political aspects of recent developments in Crimea are beyond the scope of the
assessment of this report. At the same time, however, these developments have a direct impact
on the enjoyment of human rights by all people in Crimea. The delegation met with sources,
who claimed that there had been alleged cases of non-Ukrainian citizens participating in the
referendum, as well as individuals voting numerous times in different locations.
83. Preliminary findings, based on publicly available information as well as reports from
civil society representatives in Crimea, suggest that the referendum of 16 March raised a
number of concerns in terms of respect for human rights standards. Such concerns relate to
the free communication of information and ideas about public and political issues. This
implies a free press and other media are able to comment on public issues without censorship
or restraint and to inform public opinion. A local Ukrainian journalist reportedly received
threats through posters, which were disseminated near his place of residence. According to
other reports, people in Crimea had limited access to information during the week prior to the
referendum. According to some reports, Ukrainian TV channels were blocked since 10 March.
84. For the full enjoyment and respect for the rights guaranteed in articles 19, 21 and 22 of
the International Covenant on Civil and Political Rights, it is necessary to ensure, inter alia,
freedom to debate public affairs, to hold peaceful demonstrations and meetings, to criticize
and oppose, to publish political material, to campaign and to advertise political ideas. Bloggers
and local civil society representatives reported cases of human rights violations regarding
journalists and civil society representatives who were perceived to be against the referendum.
85. Reports included a number of cases of abduction, unlawful arrest and detention by
unidentified armed groups, harassment, and violence against peaceful demonstrators. Some
activists and journalists were arbitrarily detained or disappeared. According to information
provided by civil society groups, seven persons were known to have gone missing. Some
previously considered missing were later released but found to have been subjected to torture
or other ill-treatment. Some victims were kept in the Military Drafting Center (Voenkomat)
in Simferopol. For example, on 9 March, two persons – Mr. Andrei Schekun and Mr. Kovalski
– were allegedly kidnapped and later released on the administrative border with Kherson
Oblast – with signs of ill-treatment or torture. However, the media reported soon after the
referendum about the disappearance of a Crimean Tatar, Mr Reshat Ametov, who had been
21
missing for several days. Reportedly, he was taken away by uniformed men. Mr. Ametov’s
body was found on 16 March in the village of Zemlyanichne, in the Belogoski district of
Crimea, with alleged signs of torture, hand-cuffed and with adhesive tape over his mouth. The
HRMMU is verifying the whereabouts of all those who went missing.
86. The presence of paramilitary and so called self-defence groups as well as soldiers
without insignia, widely believed to be from the Russian Federation, was also not conducive
to an environment in which the will of the voters could be exercised freely. According to
reports, some individuals had their documents/ passports taken away before the poll by
unidentified militias, and searches and identity checks were conducted by unauthorised or
unidentified people, in the presence of regular police forces12.
87. The ASG was assured that the authorities in Crimea will conduct thorough
investigations of all human rights violations. These investigations should also cover crimes
and human rights abuses allegedly committed by members of self-defence units. All cases of
abductions and forced disappearances, arbitrary detentions, torture and ill-treatment,
reportedly by so-called self-defense militia and disbanded Berkut, should be fully and
impartially investigated and the results of these investigations made public. The authorities in
Crimea should react promptly to any similar violations that may occur in future and decisively
condemn them.
88. The protection of the rights of Crimean Tatars regarding restitution of property,
including land or compensation for its loss related to their deportation from Crimea during
times of USSR has been a concern since their return after the independence of Ukraine. Recent
events have led to a renewed sense of uncertainty among Tatar representatives. According to
Mr. Refat Chubarov, chairman of the Mejlis of Crimean Tatars, and other civil society actors
in Crimea, there are reports of unidentified uniformed men claiming rights on properties and
land. Several statements from the authorities in Crimea and officials in the Russian Federation,
indicate plans to relocate or resettle within Crimea some of those Crimean Tatars who have
occupied land illegally in recent years while waiting for their land to be returned. The
authorities in Crimea have assured the Crimean Tatars that their rights would be protected,
including through positive measures such as quotas in the executive and legislative organs.
However, Crimean Tatar representatives have expressed reservations regarding the reality of
these assurances. In addition to land squatting issues, concerns were also raised with regard to
recent statements by some authorities that certain land segments will be alienated for public
purposes.
89. It is widely assessed that Russian-speakers have not been subject to threats in Crimea.
Concerns regarding discrimination and violence were expressed by some ethnic Ukrainians
members of minorities, and especially Tatars, as indigenous peoples. In a meeting with
authorities in Crimea these concerns regarding inter-ethnic tensions were dismissed, assuring
that ethnic Russians, ethnic Ukrainians and Crimean Tatars and other minorities receive
sufficient protection, with their three languages recognized as official languages. Despite this,
Tatars largely boycotted the referendum and remain very concerned about their future
treatment and prospects. Although there was no evidence of harassment or attacks on ethnic
Russians ahead of the referendum, there was widespread fear for their physical security.
Photographs of the Maidan protests, greatly exaggerated stories of harassment of ethnic
Russians by Ukrainian nationalist extremists, and misinformed reports of them coming armed
12 There are numerous reports about the searches by the self-defense groups (sometimes in the presence of uniformed police)
of the personal belongings of people arriving by train to Simferopol or by car travelling from the mainland.
22
to persecute ethnic Russians in Crimea, were systematically used to create a climate of fear
and insecurity that reflected on support to integration of Crimea into the Russian Federation.
90. During the ASG’s visit to Crimea, the situation of the remaining Ukrainian military
personnel in Sevastopol and Bakhchisaray was discussed. The authorities in Crimea confirmed
that although there were some complaints of the previous period, the blocked garrisons had
sufficient food and access to healthcare, though some experienced shortages in drinking water.
The reported pressure on them and their families had allegedly decreased. Some officers and
soldiers with whom the delegation was able to meet stressed their fear of being accused of
defection or desertion and being criminally prosecuted upon return to mainland Ukraine.
91. Notwithstanding the adoption of General Assembly resolution 68/262 on the
Territorial Integrity of Ukraine, there are a number of measures taken in Crimea that are
deeply concerning in terms of human rights. For example, measures such as the introduction
of Russian citizenship, making it difficult for those who opt to maintain their Ukrainian
citizenship to stay in Crimea, give rise to issues of legal residency and loss of related social
and economic rights, including the right to work. The current situation also raises concerns
with regard to land and property ownership, wages and pensions, health service, labour rights,
education and access to justice. In particular, civil society representatives have drawn attention
to the difficulties arising from the location of the central property register in Kyiv and the
severing of communication between the local administration and the administration based in
Kyiv. The authorities in Crimea indicated during discussions that human rights will be fully
respected, including those pertaining to citizenship and property rights.
92. The overall climate of uncertainty, including human rights and protection concerns,
has led some people, predominantly Tatars and ethnic Ukrainians, to leave Crimea. For
example, in the Lviv region alone, the local authorities and private citizens have already
accommodated some 639 Crimeans, among them a majority being Crimean Tatars who have
left and gone to the Lviv region; others have left for Turkey. The number of Crimean Tatars
currently displaced is estimated to have reached 3000.
VII. CONCLUSIONS AND RECOMMENDATIONS
A. Conclusions
93. There is an urgent need to ensure full respect for the rule of law and human rights in
Ukraine in order to guarantee the enjoyment of human rights for all, including minorities,
while also contributing to de-escalate tensions in eastern Ukraine and Crimea. In doing so, it is
proposed that immediate recommendations on overcoming human rights challenges be
implemented as a matter of priority. However, underlying human rights violations that are
among the root causes of the protests and continue to negatively impact on the situation must
also be addressed in the long-term. It is important that the Government demonstrates
commitment and pursues a public and inclusive debate on necessary legal and policy reforms,
and where possible, takes concrete steps towards the implementation of some of the long-term
recommendations, as outlined in this report.
94. As a matter of priority for the Government during this crucial period, is to immediately
address possible instances of speech that advocates national, racial or religious hatred that
constitutes incitement to discrimination, hostility or violence in order to de-escalate tensions
and ensure an environment that is conducive to the holding of free and fair elections. Political
leaders should be encouraged to send messages of inclusiveness and counter hate speech and
23
other manifestations of extremisms. That will play an important role in promoting a culture of
tolerance and respect. Any public statements that incite national, racial or religious hatred
should be unequivocally condemned, promptly investigated and adequately sanctioned, to
ensure that such discourse is not condoned in society.
95. During this sensitive period for the country, the protection of minority rights is clearly
both a human rights imperative and key to conflict prevention. In the current context, the
adoption of measures to reassure all members of minorities regarding respect for their right to
equal participation in public affairs and public life is urgently needed. The conduct of public
affairs covers all aspects of public administration, as well as the formulation and
implementation of policy at international, national, regional and local levels. Therefore, a
mechanism should be put in place to ensure full consultation of minorities, including
numerically smaller minorities, in decision-making processes at the central, regional, and local
levels,
96. Violations related to the Maidan protests should be investigated and addressed in order
to ensure accountability of perpetrators. In light of numerous attacks against journalists during
the Maidan demonstrations, and ahead of the referendum in Crimea, measures should be taken
to ensure that their right to security of the person, as well as freedom of expression are
protected and promoted. The Government should send out a strong public message in this
regard. It should clearly inform that all acts of aggression, threats and intimidation against
journalists and other media professionals, as well as human rights defenders, will be
immediately investigated, prosecuted and punished. Journalists and human rights defenders,
who are victims of such acts, should be provided with adequate remedies.
97. With respect to Crimea, it will be important for the authorities in Crimea to both
publicly condemn all attacks or harassment against human rights defenders, journalists or any
members of the political opposition; and ensure full accountability for such acts, including
arbitrary arrests and detentions, killings, torture and ill-treatment, through prompt, impartial
and effective investigations and prosecutions. It is crucial that the cases of missing persons are
resolved, and that access to places of detention is granted, including the Military Drafting
Center (Voenkomat) in Simferopol, to all international organisations requesting it. The
protection of the rights of all minorities and indigenous peoples in Crimea, in particular
Crimean Tatars, must be assured.
98. The actions carried out by members of paramilitary groups in Crimea, raise serious
concerns. The rule of law should be urgently restored in Crimea and security of all individuals
and public order ensured. Permitting unregulated forces to carry out abusive security
operations violates that obligation and basic respect for human rights. The authorities in
Crimea should immediately disarm and disband all paramilitary units operating outside of the
law, protect people from their illegal actions, and ensure that all law enforcement activities are
carried out by the police. The authorities should ensure that any self-defence units that are
created operate in accordance with the law and that the public is aware of the units’ chain of
command structure and accountability mechanisms. The authorities in Crimea confirmed their
intention to disarm and disband all armed groups (including self-defense groups).
99. Independent and impartial monitoring and reporting of the human rights situation in
Crimea would deter violations, stimulate accountability and prevent the spreading of rumours
and political manipulations. Mr. Rustam Timirgaliev was informed on the structure and the
mandate of the envisaged UN Human Rights Monitoring presence and had promised to revert.
However, in the meantime, the Russian Federation communicated through diplomatic
24
channels that any UN human rights presence should be discussed with it and that it does not
support the deployment of human rights monitors in Crimea. Nonetheless, UN HRMMU will
continue to seek the presence of a sub-office in Crimea, in consultation with the Government
of Ukraine and various interlocutors in Crimea, and continue to monitor the human rights
situation from outside the Autonomous Republic of Crimea.
100. There is also serious concern about violations of the civil and political rights of the
inhabitants of Crimea, in particular with regard to those who oppose recent events. Recent
events also create major concerns of effective statelessness, as well as concerns of the loss of
rights of those who wish to be considered citizens of Ukraine.
101. Underlying human rights violations by previous Governments were among the root
causes of the popular demonstrations that took place throughout Ukraine and in particular in
the centre of Kyiv on Maidan from November 2013 to February 2014. There are now clear
indications of a willingness by the present Government to ensure a break with past injustices
and to elaborate a new vision for Ukraine’s future. Strengthening the rule of law, democracy
and human rights will be key to any lasting change and to avoid any spirit of revenge.
Legislative and institutional reforms should be carried out in a comprehensive, transparent and
consultative way, and therefore not be rushed. Furthermore, they should be sustained through
consistent and accountable implementation.
102. A number of priority human rights concerns and corresponding reforms need to be
addressed in the short, medium and long term. Irrespective of the fact that systemic
shortcomings may be only remedied in the medium and long-term, it will be important to pave
the way immediately through a series of initial measures that will build confidence and
reassure all people, including minorities, that their concerns will be addressed.
103. The international community and the UN in particular, can and should play a role in
supporting an environment where the human rights of all, including minorities and indigenous
peoples, can be best promoted and protected. Without an independent and objective
establishment of the facts and circumstances surrounding alleged human rights violations,
there is a serious risk of competing narratives being manipulated for political ends and leading
to divisiveness and incitement to hatred.
104. In this context, OHCHR engagement and provision of information and analysis of the
human rights situation through the UN Human Rights Monitoring Mission on the ground will
allow the UN to undertake further steps to respond to the situation in Ukraine in line with the
Secretary-General’s Rights Up Front approach. In providing an impartial and authoritative
human rights assessments, it can contribute to establishing the facts, de-escalating tensions,
and paving the way for an environment that is conducive to the holding of free and fair
elections. OHCHR is ready to assist in the implementation of the recommendations contained
in this report.
25
B. Recommendations
To the Government of Ukraine:
(i) Recommendations for immediate action
Accountability and the rule of law
1. Ensure accountability for all human rights violations committed during the period of
unrest, through securing of evidence and thorough, independent, effective and
impartial investigations, prosecutions and adequate sanctions of all those responsible
for these violations; ensure remedies and adequate reparations for victims.
2. Ensure that any lustration initiatives are pursued in full compliance with fundamental
human rights of persons concerned, including right to individual review and right of
appeal.
Inclusivity, equal political participation and rights of minorities
3. Ensure inclusivity and equal participation of all in public affairs and political life,
including members of all minorities and indigenous peoples and establish a mechanism
to facilitate their participation.
4. Ensure that legislation on minorities, in particular on linguistic rights, is adopted
following full consultation of all minorities concerned and according to relevant
international and regional human rights standards.
Freedom of expression and peaceful assembly
5. Ensure the full enjoyment and respect for the rights guaranteed in articles 19, 21 and
22 of the International Covenant on Civil and Political Rights. A conducive
environment to the forthcoming elections will also require the Freedom of expression,
assembly and association, which are essential conditions for the effective exercise of
the right to vote and must be fully protected. This includes: freedom to engage in
political activity individually or through political parties and other organizations;
freedom to debate public affairs; to hold peaceful demonstrations and meetings; to
criticize and oppose; to publish political material; to campaign for election; and to
advertise political ideas.
6. Ensure freedom of expression for all and take all measures that will ensure the safety
of journalists, media professionals and human rights defenders so that they are able to
play their full role in the run-up to elections, in shaping the future of their country.
7. Adopt legislation and other measures needed to ensure the right to peaceful assembly
in compliance with the requirements of article 21 of the International Covenant on
Civil and Political Rights. In particular, ensure that the principles of necessity,
proportionality, non-discrimination and accountability underpin any use of force for
the management of peaceful assemblies.
8. Prevent media manipulation by ensuring the dissemination of timely and accurate
information. Take action against deliberate manipulation of information, in compliance
26
with international standards of freedom of expression and in full respect of due process
guarantees.
Combatting hate speech
9. Combat intolerance and extremism and take all measures needed to prevent advocacy
of national, racial or religious hatred that constitutes incitement to discrimination,
hostility or violence and punish such incitement or acts of violence, which is of
fundamental importance. A careful balancing act must however be maintained, with
fully respecting the right to freedom of expression.
10. Take resolute steps to prevent negative stereotyping of minority communities in the
media, while fully respecting the freedom of the press. Efforts to train media
professionals must be increased, including by further promoting the visibility and
effectiveness of the work of the national union of journalists in this regard.
Corruption
11. Put in place, as a matter of priority, all legislative and policy measures needed to
effectively eradicate corruption.
Cooperation with HRMMU
12. Closely cooperate with the HRMMU and act upon its recommendations and steps
needed to provide protection for persons at risk.
To the authorities in Crimea:
13. Publicly condemn all attacks or harassment against human rights defenders, journalists
or any members of the political opposition; and ensure full accountability for such acts,
including arbitrary arrests and detentions, killings, torture and ill-treatment, through
prompt, impartial and effective investigations and prosecutions.
14. Actively resolve cases of missing persons, and grant access to places of detention,
including the military facilities and offices in Simferopol and Sevastopol, to all
international organisations requesting it.
15. Act to re-establish the rule of law, including by the effective disbandment of any and
all ‘self-defence forces’ and/or para-military groups.
16. Take all measures to ensure that the human rights of Ukrainian soldiers based in
Crimea are also fully respected.
17. Take all needed measures to protect the rights of persons affected by the changing
institutional and legal framework, including on issues related to access to citizenship,
right of residence, labour rights, property and land rights, access to health and
education.
27
18. Investigate all allegations of hate speech and media manipulation, and take appropriate
measures to prevent them and take appropriate sanctions while fully ensuring and
strengthening freedom of expression.
19. Ensure the protection of the rights of all minorities and indigenous peoples in Crimea,
in particular Crimean Tatars.
20. Grant access to independent and impartial human rights monitors, including by
OHCHR.
(ii) Long-term recommendations:
Engagement with the international human rights system
21.. Enhance cooperation with the UN human rights system, including collaboration with
OHCHR, in particular through the recently deployed United Nations HRMMU.
22. Ratify international human rights instruments to which Ukraine is not yet party.
These include, the International Convention for the Protection of All Persons from
Enforced Disappearance; the international Convention on the Protection of the
Rights of All Migrant Workers and Members of their families; the Optional Protocol
to the International Covenant on Economic, Social and Cultural Rights; the third
optional Protocol to the Convention on the Rights of the Child; the Rome Statute of
the International Criminal Court; the 1954 Convention relating to the Status of
Stateless Persons; and the 1961 Convention on the Reduction of Statelessness.
23. Implement recommendations of international human rights mechanisms. The
recommendations and concerns expressed in the past few years by several human
rights mechanisms continue to be of relevance and should be taken into account by
the authorities when considering various reforms that will greatly impact on the
protection of human rights for all people in Ukraine:
a. In particular, the UN Human Rights Committee issued several important
recommendations in July 2013 when it considered the latest periodic report of
Ukraine on the implementation of the International Covenant on Civil and
Political Rights;
b. The recommendations adopted by the UN Human Rights Council following the
Universal Periodic Review of the human rights situation in Ukraine in October
2012 should also be taken into consideration.
c. The report of the UN Sub-Committee on the Prevention of Torture following its
visit to Ukraine in 2011 should be made public immediately and taken into
consideration by the authorities when considering issues related to torture, illtreatment,
and detention related matters.
d. Ukraine has issued a standing invitation to special procedures. It should
accommodate requests for such visits.
e. Encourage the development of a national human rights action plan, with clear
timelines and benchmarks, addressing every recommendation resulting from the
international and regional HR systems to be implemented within a certain timeframe
- with the support of the international community, regional and bilateral
actors, and the UN system.
28
Legislative and policy reforms:
24. Reform the administration of justice system so that it functions independently,
impartially and effectively; reform the security sector so as to ensure that it functions
in full respect of international norms and standards; provide for full accountability
for human rights violations.
25. Strengthen rule of law institutions so that they fully comply with relevant
international and regional human rights norms and recommendations of human
rights mechanisms.
26. Review legislation and policies applicable to the management of peaceful
assemblies, and if necessary, modify them to ensure their compliance with human
rights standards. In particular, these should specify that the principles of necessity,
proportionality, non-discrimination and accountability underpin any use of force for
the management. In this regard, particular attention should be paid to the 1990 Basic
Principles on the Use of Force and Firearms by Law Enforcement Officials.
27. Ensure that such policies, practices and instructions are observed through rigorous
training for the personnel involved. In particular, effective internal oversight
mechanisms must be put in place in order to review all incidents of injury or loss of
life resulting from the use of force by law enforcement personnel as well as all cases of
use of firearms during duty.
28. Ensure the institutional independence of the State Bureau of Investigation, under
Article 216 of the new CCP, which provides for its creation within five years (as of
2012) to enable it to investigate allegations of human rights violations committed by
judges, law enforcement officers and high-ranking officials. It will be very important
to ensure that this new body is independent from the Prosecutor’s Office. Public
accountability and sufficient resourcing is essential to enable it to function effectively,
promptly, independently and impartially.
Economic and social rights:
29. Take concrete steps to redress disparities in standards of living and equal access to
and quality of health, education, employment, and social support structures for all,
including marginalised communities throughout the country.
**************
Annex 763
OHCHR, Report on the Human Rights Situation in Ukraine (15 May 2014)

1
Office of the United Nations High Commissioner
for Human Rights
Report on the human rights situation in Ukraine
15 May 2014
2
TABLE OF CONTENTS
I. EXECUTIVE SUMMARY .............................................................................. 3
II. METHODOLOGY ............................................................................................ 5
III. INVESTIGATIONS INTO HUMAN RIGHTS VIOLATIONS
RELATED TO THE MAIDAN PROTESTS .................................................. 6
IV. HUMAN RIGHTS CHALLENGES ................................................................. 8
A. Rule of law .............................................................................................. 8
B. Law enforcement sector reform ............................................................ 10
C. Freedom of peaceful assembly ............................................................. 11
D. Freedom of expression .......................................................................... 13
E. Right to life, liberty and security .......................................................... 14
F. Political rights ...................................................................................... 16
G. Minority rights ...................................................................................... 18
V. PARTICULAR HUMAN RIGHTS CHALLENGES IN THE EAST ......... 21
A. The right to life, liberty and security ..................................................... 21
B. Freedom of expression ........................................................................... 24
C. Investigations related to events in the east ............................................ 25
D. Economic and social rights .................................................................... 26
VI. PARTICULAR HUMAN RIGHTS CHALLENGES IN CRIMEA ............ 26
A. Internally displaced persons from Crimea ............................................. 27
B. Rights of Crimean residents ................................................................... 27
C. Rights of indigenous peoples ................................................................. 31
VII. CONCLUSIONS AND RECOMMENDATIONS ......................................... 32
VIII. ANNEX ............................................................................................................. 35
3
I. EXECUTIVE SUMMARY
1. The present report is based on the findings of the United Nations (UN) Human Rights
Monitoring Mission in Ukraine (HRMMU)1 covering the period of 2 April - 6 May 2014. It
follows the first report on the human rights situation in Ukraine released by the Office of the
UN High Commissioner for Human Rights (OHCHR) on 15 April 2014.
2. Since the issuance of the first report, the HRMMU has noted the following steps
undertaken by the Government of Ukraine to implement some of the recommendations from
the report. These include: the drafting of legislation on peaceful assembly; and the
development of a policy to prevent the negative stereotyping of minority communities in the
media.
3. The HRMMU also notes the ongoing investigation by the Office of the General
Prosecutor into the gross human rights violations that were committed during the violent
Maidan clashes between November 2013 and February 2014 that resulted in the killing of
protesters and police, as well as allegations of torture and reports of missing persons. These
investigations need to be completed in a timely, independent, effective and impartial manner
to ensure accountability and justice for all, both victims and alleged perpetrators; the process
and the results of these investigations must be transparent.
4. OHCHR appreciates that the Government of Ukraine has welcomed the HRMMU,
offering open and constructive cooperation. It has been forthright in providing information
and discussing with the HRMMU human rights concerns: right to life, liberty and security of
person, the freedoms of movement, peaceful assembly, expression and association, as well as
right to fair trial and equal access to justice without discrimination and the protection of the
rights of all minorities.
5. The main findings and conclusions for the period covered by this report are:
i. The Government of Ukraine is taking steps to implement the provisions of the Geneva
Agreement concluded on 17 April 2014.2 On the same day, the Cabinet of Ministers
of Ukraine issued an Order "On the organization of the discussion of amendments to
the provisions of the Constitution of Ukraine on decentralization of State power”. On
18 April, a parliamentary coalition suggested to all political parties represented in the
parliament to sign a memorandum of understanding regarding ways to resolve the
situation in eastern Ukraine. According to acting President and Speaker of Parliament
Turchynov, the initiative was not supported by members of the opposition. On 22
1 Concept note on the HRMMU is attached.
2 The Geneva meeting took place on 17 April 2014. As the result of the negotiations between the representatives
of Ukraine, EU, USA and Russian Federation in Geneva on 17 April 2014, an agreement was reached on initial
concrete steps to de-escalate tensions and restore security for all: (1) All sides must refrain from any violence,
intimidation or provocative actions; (2) All illegal armed groups must be disarmed; all illegally seized buildings
must be returned to legitimate owners; all illegally occupied public offices must be vacated; (3) Amnesty
granted to the protestors who left seized buildings and surrendered weapons, with the exception of those found
guilty of capital crimes; and (4) The announced constitutional process will be inclusive, transparent and
accountable carried out through a broad national dialogue.
4
April, the draft law “On prevention of harassment and punishment of persons in
relation to the events that took place during mass actions of civil resistance that began
on 22 February 2014" was registered in Parliament.
ii. Armed groups continue to illegally seize and occupy public and administrative
buildings in cities and towns of the eastern regions and proclaim “self-declared
regions”. Leaders and members of these armed groups commit an increasing number
of human rights abuses, such as abductions, harassment, unlawful detentions, in
particular of journalists. This is leading to a breakdown in law and order and a climate
of intimidation and harassment.
iii. In the aftermath of the 16 March unlawful “referendum”3 in the Autonomous
Republic of Crimea, Ukraine, there are increasing reports of residents being affected
by the changing institutional and legal framework. Human rights concerns relate to
citizenship, property and labour rights, access to health and education. Of concern to
the HRMMU, are the increasing reports of on-going harassment towards Crimean
Tatars, and other residents who did not support the “referendum”. The reported cases
of Crimean Tatars facing obstruction to their freedom of movement, as well as the
recent attack on the building of the parliament of the Crimean Tatar people are
worrying developments. Legislation of the Russian Federation is now being enforced
in Crimea, in contradiction with UN General Assembly resolution 68/262, entitled
“Territorial integrity of Ukraine”. In addition, its differences with Ukrainian laws will
have a significant impact on human rights, posing in particular limitations on the
freedoms of expression, peaceful assembly, association and religion.
iv. The Government of Ukraine needs to carry out a prompt, transparent and
comprehensive investigation into the violent events in Odesa and ensure that the
perpetrators are brought to justice in a timely and impartial manner. The impact of the
2 May violence in Odesa has hardened the resolve of many, and strengthened the
rhetoric of hatred. In its aftermath, a call was made for mobilisation to join local
armed groups in the eastern regions of Donetsk and Luhansk. Referenda on the
“recognition” of the so-called “Donetsk People’s Republic and “Luhansk People’s
Republic” were planned in both regions for 11 May.
v. Many peaceful demonstrations have been observed by the HRMMU in the country. A
tendency has been observed for a peaceful protest to suddenly turn into a violent
confrontation. Increasingly the result of such violent acts and confrontation leads to
numerous deaths and injuries. All too often, the police appear unable to guarantee the
security of participants, and ensure law and order. Peaceful assemblies must be
permitted, both as a matter of international law and as a way for people to express
their opinion. Policing should facilitate such assemblies, ensuring the protection of
participants, irrespective of their political views.
3 UN General Assembly Resolution 68/262 on the territorial integrity of Ukraine, OP 5: “Underscores that the
referendum held in the Autonomous Republic of Crimea and the city of Sevastopol on 16 March 2014, having
no validity, cannot form the basis for any alteration of the status of the Autonomous Republic of Crimea or of
the city of Sevastopol”.
5
vi. In eastern Ukraine, freedom of expression is under particular attack through the
harassment of, and threats to, journalists and media outlets. The increasing prevalence
of hate speech is further fuelling tensions. Both these factors are deepening divisions
between communities and exacerbating the crisis. All parties must take immediate
steps to avoid incitement and radicalisation.
vii. Campaigning for the 25 May Presidential elections is well underway. Some
candidates report arbitrary restrictions, conflicts and incidents, which impacts and
curtails their ability to campaign with voters. Transparent, fair and democratic
Presidential elections on 25 May are an important factor in contributing towards the
de-escalation of tensions and restoration of law and order.
II. METHODOLOGY
6. The report on the human rights situation in Ukraine was prepared by the HRMMU
and covers the period from 2 April to 6 May 2014.
7. This report is prepared pursuant to the objectives of the HRMMU as set out in the
concept note (see annex), and in line with UN General Assembly Resolution 68/262, entitled
“Territorial integrity of Ukraine”, as adopted on 27 March 2014.
8. During the reporting period, the HRMMU has continued to operate from a main office
in Kyiv, with sub-offices in Donetsk, Kharkiv, Lviv and Odesa (which also covers Crimea)
with the same staff capacity (34).
9. The HRMMU coordinates and cooperates with various partners in Ukraine, in
particular the UN Country Team (UNCT) and the OSCE Special Monitoring Mission (SMM)
to Ukraine.
10. The HRMMU monitors reports of human rights violations by conducting on-site visits
(where access and security allow), carrying out interviews, gathering and analysing all
relevant information. The HRMMU exercises due diligence to corroborate and cross-check
information from as wide a range of sources as possible, including accounts of victims and
witnesses of human rights violations, state actors, the regional authorities, local communities,
representatives of groups with diverse political views, the Ombudsman Institution, civil
society organisations, human rights defenders, regional organisations, UN agencies and the
diplomatic community. The HRMMU also collects information through secondary sources,
such as media reports and information gathered by third parties. Wherever possible, the
HRMMU ensure that its analysis is based on the primary accounts of victims and/or
witnesses of the incident and on-site visits. On some occasions, primarily due to securityrelated
constraints affecting access, this is not possible. In such instances, the HRMMU relies
on information gathered through reliable networks, again through as wide a range of sources
as possible that are evaluated for credibility and reliability.
11. Where the HRMMU is not satisfied with the corroboration of information concerning
an incident, it will not be reported. Where information is unclear, the HRMMU will not
report on the incident and conclusions will not be drawn until the information obtained has
been verified.
6
12. The cases presented in the report do not constitute an exhaustive list of all cases being
monitored by the HRMMU but are rather considered emblematic of current human rights
concerns, pointing to existing or emerging trends and patterns of human rights violations. The
HRMMU works through an electronic database to support its analysis of cases and reporting.
III. INVESTIGATIONS INTO HUMAN RIGHTS VIOLATIONS RELATED
TO THE MAIDAN PROTESTS
Amnesty for those responsible for ordering the violent crackdown on Maidan protesters on
29 - 30 November 2013 to be reviewed
13. On 2 April, the Kyiv City Appeal Court cancelled, and sent back for further review,
the decision of the Pecherskyi District Court on the amnesty for persons, responsible for
ordering the violent crackdown and dispersal of demonstrators by the riot police “Berkut”4 on
the night of 30 November 2013. This was the first instance of excessive use of force against
peaceful demonstrators during the Maidan demonstrations. At least 90 persons were injured;
35 protesters were detained and later released. This violent incident is widely viewed as
triggering further Maidan protests. A new hearing is scheduled at the Pecherskyi District
Court on 14 May.
Criminal proceedings into the killings of 19-21 January and 18-20 February 2014
14. Following the violent clashes on 1-2 December and 10-11 December 2013, and the
clashes and killings of demonstrators that took place on 19-21 January, violence in Kyiv
reached its peak 18 and 20 February. More than 120 people (three of them women) were
killed and hundreds were injured – demonstrators and police officers. Some died later in
hospital from their injuries.
15. The HRMMU has been following the two separate criminal proceedings opened by
the Office of the General Prosecutor: one for the killing of demonstrators and one for the
killing of police officers.5
16. The Office of the General Prosecutor has opened a criminal investigation based on
Articles 115 (Murder), 121 (Intended grievous bodily injury) and 194 (Wilful destruction or
damage of property) of the Criminal Code. This is looking at the killing of protesters (75
persons) and injuries caused by the use of firearms between 19 January to 20 February on
Hrushevskoho and Instytutska streets.
17. According to the preliminary investigation, the Berkut special unit killed 46 persons
during the protests. As of 24 April 2014, three Berkut officers were arrested and officially
charged with murder (article 115). Information received by the HRMMU from the Office of
the Prosecutor General suggests that additional Berkut officers are under investigation.
18. The Investigative Department of the Office of the General Prosecutor continues to
investigate the excessive use of force and degrading treatment by law enforcement officials
4 The "Berkut" unit was the Special Forces within the Ministry of Interior. On 25 February 2014, Minister of
Interior Arsen Avakov signed a decree dissolving the unit.
5 As of 6 May, criminal proceedings were underway, with no further details available.
7
against Maidan activist Mr. Havryliuk, who was stripped naked, roughly pushed around and
forced to stand still in the snow in freezing temperatures while a police officer filmed him
with a mobile phone. In this case, a serviceman of the internal troops of the Ministry of
Interior is under suspicion based on article 365 (Excess of authority or official powers) of the
Criminal Code.
19. The Office of the General Prosecutor informed the HRMMU that it is verifying
claims that foreigners participated in the above-mentioned crimes, particularly in the targeted
killings in February. In January-February, a number of attacks, abductions, severe beatings
and killings of Maidan activists, as well as arson of cars belonging to the Auto-Maidan were
committed by the so-called “titushky”, also referred to as an “Anti-Maidan” group. This
includes the attack against the journalist Viacheslav Veremiy, who was beaten and shot on
the night of 18 February and died in hospital on 19 February. In this case, three suspects are
wanted by the Office of the General Prosecutor in the context of an investigation into the
activities of the criminal group – one is arrested, while two remained at large.
Request to the International Criminal Court to investigate the Maidan violence
20. On 9 April, the Government of Ukraine submitted a request to the International
Criminal Court (ICC) to investigate the events that occurred on Maidan from 21 November
2013 to 22 February 2014. The Registrar of the ICC received a declaration lodged by Ukraine
accepting the ICC jurisdiction with respect to alleged crimes committed on its territory during
the above mentioned period. The declaration was lodged under article 12(3) of the Rome
Statute, which enables a non-party to the Statute to accept the exercise of jurisdiction of the
Court. The Prosecutor of the ICC has decided to open a preliminary examination into the
situation in Ukraine in order to establish whether the Rome Statute criteria for opening an
investigation are met. On 15 April, the Minister of Justice officially stated that there was
unanimous support within the Government for the ratification of the Rome Statute, which
Ukraine signed in 2000 but not yet ratified.
Missing persons
21. According to the NGO EuroMaidan SOS, which has maintained a list of missing
persons since the early days of Maidan, as of 5 May 2014, 83 persons (including four
women) still remained unaccounted for. There is no official information from the Ministry of
Interior or the Office of the General Prosecutor on the number of people still missing relating
to Maidan, as investigations were on-going.
22. Initially in the aftermath of the Maidan, 314 persons were registered as missing,
according to the Office of the General Prosecutor. A large number have since been found
alive; some were recognised as killed or dead. It is critical to identify the whereabouts and
fate of those who remain missing from Maidan.
23. An International Advisory Panel6 has been initiated by the Secretary-General of the
Council of Europe, Thorbjorn Jagland, to oversee the judicial investigations into the violent
clashes during the Maidan events from 30 November 2013 to 21 February 2014. Information
has been requested by the Panel into violent acts committed by any person during three
6 The members of the panel are: Sir Nicolas Bratza, Chairman, a former President of the European Court of
Human Rights; Mr. Volodymyr Butkevych, a former Judge of the European Court of Human Rights; and Mr.
Oleg Anpilogov, a member of Kharkiv Regional Council.
8
periods: the night of 30 November/1 December 2013; 1 December 2013; and 18-21 February
2014. The Panel will hold its first meetings in Kyiv at the end of June 2014.
IV. HUMAN RIGHTS CHALLENGES
A. Rule of law
24. During the reporting period, the HRMMU monitored a number of measures within the
sphere of the rule of law. These included: the introduction of amendments to the Constitution;
Criminal Code amendments to toughen sanctions regarding violations of territorial integrity;
legislation on the restoration of the credibility of the judiciary; laws providing for amnesties,
as well as the law on occupation in the aftermath of the 16 March unlawful referendum in
Crimea.
Constitutional reform
25. On 17 April, the Cabinet of Ministers issued an Order “On the organization of the
discussion of amendments to the provisions of the Constitution of Ukraine on the
decentralization of State power”. By 1 October 2014, senior government officials, the
regional administrations and the Kyiv city administration are to organise debates on the
planned constitutional amendments7 that would propose the decentralization of power. This
Order accelerates the implementation of the Concept on reforming local government and
territorial organization of power in Ukraine, which was adopted on 1 April 2014.
26. Public parliamentary hearings were held on amendments to the Constitution of
Ukraine on 29 April, with the main areas of reform aiming to empower local governments,
strike a balance between all branches of State power, ensure the independence of the
judiciary, and oversight of the work of public authorities. Political parties agreed that by 25
May proposals on constitutional amendments will be finalised, with a Parliamentary session
on constitutional reform to be held after this date. Further steps towards the delegation of
broad powers to the local authorities are being made. On 23 April, the Government approved
the first draft law “On cooperation of the territorial communities” that envisages five forms of
possible cooperation within communities, based on an earlier Concept on the Reform of
Local Self-Government and Territorial Organisation of Powers in Ukraine, approved on 1
April by the Cabinet of Ministers.
27. On 5 May, Prime Minister Arseniy Yatseniuk, submitted to the Parliament a draft law
“On a national survey”, to be conducted on 25 May, the same day as the Presidential
elections, on issues of concern for all Ukrainians: national unity, territorial integrity of the
7 According to the Parliamentary Interim Commission on Constitutional Reform, the main areas of the
Constitutional reform are: extension of powers of local self-government, to achieve a balance between all
branches of power; the development of an independent judicial branch; oversight of public authorities. Under a
new Constitution regional and district state administrations will be dissolved. Local territorial communities
would elect regional and district councils (local parliaments) and their heads. The executive committees of local
councils would serve as local governments. State power and authority, as well as the functions of setting the
local budget would be delegated to such structures. At the same time, state representative bodies would be
created and located at the territorial level. They will maintain control over the adherence to legislation in a
certain territory but would have no financial or economic influence in the region.
9
country and the decentralisation of power.8 On 6 May, Parliament decided not to adopt the
initiative.
Criminal Code amendments toughen sanctions for violations of territorial integrity
28. On 16 April, the acting President of Ukraine signed the Law "On amendments to the
Criminal Code of Ukraine", which entered into force on 19 April. It includes provisions that
increase penalties related to the encroachment and inviolability of the territorial integrity of
Ukraine, as well as for high treason and the undermining of national security (Sabotage and
espionage).
Law on Lustration
29. On 7 April, approximately 150 activists of Maidan self-defence unit, the Right Sector
and Auto-Maidan picketed, blocked and stormed the Supreme Court building, at the time of
the scheduling of an extraordinary session of the Congress of Judges. The protesters along
with Yegor Sobolev, head of the Lustration Public Committee of Maidan, demanded the
lustration of judges and appointment of new ones. On 8 April, the Right Sector and Auto-
Maidan activists blocked the Parliament calling on its members to speed up the adoption of
the lustration legislation.
30. On 8 April, the Parliament passed the Law “On the restoration of the credibility of the
judiciary in Ukraine” (the Law on lustration of judges) with 234 votes9 and it entered into
force on 10 May (while the proposed law on lustration for public servants was taken off the
Parliamentary agenda). Its purpose is to strengthen the rule of law, to restore confidence in
the judiciary, and to combat corruption in the courts through the dismissal of judges whose
gross violations of professional and ethical standards have discredited the judiciary. The Law
also determines the legal and organisational framework by which judges are to be vetted. It
sets out the aim, objectives and timelines for the vetting of judges, as well as the bodies
authorised to conduct these procedures, the content of the vetting, and the measures to be
taken following the results of the vetting. According to the Law, the process of lustration is to
be carried out by an Interim Special Commission. It is foreseen to consist of 15 members;
five candidates from each of the following institutions: the Supreme Court, the Parliament
and the Governmental Commissioner on the Issues of the Anti-Corruption Policy.
31. The HRMMU is concerned that immediate dismissal of judges may put in jeopardy
the administration of justice. The implementation of the Law can lead to the unjustified and
non-motivated dismissals of judges. The Law does not follow some generally recognized
requirements in the area of judicial proceedings: it implements retrospective liability for
actions which were not considered punishable before the Law’s adoption; the adopted court
decisions mentioned in the Law are to be scrutinized by the Interim Special Commission.
Also, the text of the Law uses the term “political prisoner”, which is not defined in current
Ukrainian legislation. The HRMMU reiterates its earlier recommendation that any lustration
initiatives be pursued in full compliance with fundamental human rights of persons
concerned, including right to individual review and right of appeal.10
8 The idea to conduct such survey was announced by Mr. Yatseniuk on 30 April during the opening of a session
of the Government. He stated that, “in framework of the decentralisation of power, Ukrainian authorities are
ready for the additional guarantees on the respective territory for the Russian-speaking population and other
national minorities".
9 In total, there are 450 members of Parliament.
10 OHCHR report on the human rights situation in Ukraine,15 April 2014, p. 25 (available online at
http://www.ohchr.org/Documents/Countries/UA/Ukraine_Report_15April2014.doc).
10
Amnesties
32. The annual legislation “On Amnesty in 2014” entered into force on 19 April.
Administered by the courts, it applies to minors, pregnant women, persons having children
under 18 or children with disabilities, persons with disabilities and persons infected with
tuberculosis or with an oncological disease, persons having reached the age of retirement,
war veterans, combatants and invalids of war, liquidators of the accident at the Chernobyl
nuclear power plant, persons having parents over 70 or with disabilities. In addition some
military personnel imprisoned for committing medium gravity offences will be released.
Persons who have committed grave criminal offences will not be eligible for such an
amnesty. The Parliamentary Committee on Legislative Support of Law Enforcement
estimates that between 23,000 – 25,000 convicts could be eligible for an amnesty.
33. From 9 to 23 April, five drafts laws on ‘amnesty’ for the activists who have
participated in the protests after 22 February were submitted to the Parliament by different
political parties.11 While the proposed drafts varied all seek amnesty legislation that covers:
actions to overthrow legal government (article 109); organisation of riots (article 294);
seizure of administrative and public buildings (article 341). The majority of the proposals
considered that cases of “separatism”, as violations against the territorial integrity of Ukraine
(article 110), should fall within the scope of an adopted amnesty law.
34. All drafts aim to ease tensions and resolve the crisis in Ukraine, particularly in the
east and south of the country, and for the most part give a date of 22 February from where
acts as provided for should be applicable. The Committee on Legislative Support of Law
Enforcement is now responsible for preparing the draft legislation.
Law on Occupation
35. The Law “On guaranteeing citizens’ rights and freedoms and legal regime in the
temporarily occupied territory of Ukraine” was adopted on 15 April. Its provisions and
implications are analysed in section VI on “Particular Human Rights Challenges in Crimea”.
B. Law enforcement sector reform
36. The ongoing events and violence in various parts of the country have resulted in an
increasing erosion of law and order. The most recent example is the tragic events that took
place in Odesa during the afternoon and evening of 2 May, where 46 people were killed in
violent clashes, and a fire in the Trade Union building where many people had taken refuge.12
37. In order to develop a concept for the reform of the law enforcement bodies, an Expert
Council “on the issues of human rights and reformation” was established in the Ministry of
Interior on 4 April. It has a membership of 14 people, of which four are women, and includes
human rights defenders. It will submit to the Government a concept of the reform of law
enforcement bodies by November 2014. The reform package should reinforce the rule of law;
de-politicise, de-militarise, de-centralise and strengthen the structure of the law enforcement
bodies through accountability, transparency, and closer cooperation with the public and local
11 9 April Draft Nr. 4667(Party of Regions); 10 April Draft Nr. 4667-2 (non-affiliated MP Rudkovsky); 18 April
Draft Nr. 4667-3 (Cabinet of Ministers); 22 April Draft Nr. 4667-4 (Party of Regions); 23 April Draft Nr. 4667-
5 (Communist Party).
12 Official death toll as of 4 May 2014.
11
communities; and professionalise the staff. The HRMMU has been included into the Council
with an observer status.
38. On 23 April, the Ministry of Justice suspended, pending the investigation of
allegations of torture that occurred in 2013, the heads of a number of penitentiary facilities,
including those of the Dnipropetrovsk pre-trial detention facility and Penitentiary Colony No.
3 in Krivii Rig, Dnipropetrovsk region. On 24 April, the head of the pre-trial detention
facility in Odesa was dismissed. The Government ordered the establishment of a special
commission under the Ministry of Justice, which should focus on improving the legislative
framework for torture prevention. This will support the work of the National Preventive
Mechanism, established under the Ombudsman Institution.
39. Experts and human rights defenders continue to stress that conditions in places of the
deprivation of liberty do not meet international norms and standards. The use of torture and
ill-treatment in pre-trial detention facilities is often attributed to the fact that police officers
are still evaluated on quantitative indicators.
C. Freedom of peaceful assembly
40. In April and early May, rallies and peaceful demonstrations have continued to take
place. While many are peaceful – some gathering in large numbers, some consisting of a few
picketers – a tendency can be observed in some urban areas of simultaneous rallies of
opposing groups ending in violent confrontations.
41. The continuation of protests reflects a variety of demands, some supporting the unity
of Ukraine, some opposing the Government of Ukraine, and some seeking decentralisation or
federalism, with others looking at separatism.
42. The HRMMU has observed various rallies in support of Ukraine, its unity and
territorial integrity that took place between 17-21 April in various towns, including Kyiv,
Donetsk, Luhansk, Poltava, Dnipropetrovsk, Sumy, Khartsyzsk (Kharkiv region) and Odesa.
Each peacefully gathered approximately 300 - 2,000 people. Further examples of peaceful
protest took place on 28 and 29 April in Chernivtsi and Uzhgorod (western Ukraine) against
the deployment of military and riot police to the south-east regions of Ukraine.
43. The HRMMU observed other rallies that aimed to: promote social and economic
rights; demand an increase to social benefits and salaries; an end to corruption; and the
improvement in governance. On 9 April, a peaceful protest of some 200 representatives of
small businesses took place in Zaporizhzhya (south Ukraine) seeking an end to illegal
markets and corruption. On 1 May in Kyiv, a peaceful rally took place demanding political
change, constitutional reform, early Parliamentary elections, an increase of salaries and social
benefits.
44. A number of peaceful assemblies supporting “federalism” have been observed by the
HRMMU in Donetsk, Kharkiv, Luhansk and Odesa.
45. At the same time there were a number of examples when such peaceful rallies turned
violent. The HRMMU is concerned with repeated acts of violence against peaceful
participants of rallies, mainly those in support of Ukraine’s unity and against the lawlessness
12
in the cities and villages in eastern Ukraine. In most cases, local police did nothing to prevent
violence, while in some cases it openly cooperated with the attackers. For example, on 6
April, 1,000 pro-Russian activists attacked an improvised gathering by several dozen
supporters of Ukraine’s unity in Severodonetsk in Luhansk Region. Six of the pro-Ukrainian
activists sought medical assistance.
46. On 13 April, pro-Russian activists attacked a peaceful rally in support of Ukraine’s
unity in front of Mariupol City Police Department. Nineteen participants of the rally were
taken to the hospital with injuries of varying severity.
47. On 13 April, the HRMMU observed pro-Russian and pro-Ukrainian rallies being held
at the same time in close proximity in Kharkiv. While the presence of the police had for most
of the time managed to keep the two sets of supporters apart, the situation broke down
towards the end of both events. As many of the pro-Ukrainian activists were leaving their
rally, they were attacked by the pro-Russian activists who broke through the police chain.
Some people who did not manage to escape, were surrounded and then beaten severely. At
least 16 persons were wounded; with some admitted to hospital. The police initiated criminal
proceedings on the grounds of hooliganism that led to people being injured, under Part 4 of
article 296 of the Criminal Code.
48. On 27 April in Donetsk, approximately 500 protesters demanded a referendum on the
status of the Donetsk Region and to release those detained by the Ukrainian authorities,
including Pavel Gubarev (former self-proclaimed Governor of the Donetsk region). It was
from this demonstration that protesters then moved to the building of the State TV-Radio
company “Donbass”. Having been joined by a group from the movement “Oplot”, the
protesters stormed the building demanding the re-launch of the broadcasting of Russian TV
channels.
49. On 27 April, in Kharkiv opposing activists organised meetings in nearby squares. On
the main square, 500-600 protesters gathered, while at the same time another group
supporting the unity of Ukraine rallied in a slightly larger number on a neighbouring square.
Two groups of football fans from Kharkiv and Dnipropetrovsk joined the pro-Ukrainian
gathering. As the latter marched towards the football stadium, clashes erupted despite the
efforts of the police to separate the two groups. As a result, 14 people were injured, including
two police officers. Protesters in the main square tried to build a tent settlement on the main
square (Freedom square) in Kharkiv but were prevented from doing so by the police.
Criminal proceedings were started under article 294 (Riots). As of 5 May, no one was
charged or detained.
50. On 28 April, participants of a peaceful rally in support of Ukraine’s unity in Donetsk
were attacked and violently beaten by the supporters of the self-proclaimed “Donetsk
People’s Republic”, who were armed with metal sticks, noise grenades, baseball bats and
pistols, while the police was reluctant to prevent the clash. As a result, two persons were
hospitalised, dozens wounded, and five participants of the rally (reportedly students) were
abducted and held in the local office of the Party of the Regions; they were released the next
day.
13
51. The most tragic of all incidents occurred in Odesa on 2 May where what was initially
a rally spiralled into violent clashes and a fire, which claimed 46 lives.13
52. While article 64 of the Constitution provides for the freedom of peaceful assembly,
there is no law that regulates the conduct of such assemblies.14 The HRRMU has observed
that this gap in the legislative framework creates confusion, irregularities and an ad hoc
approach to policies and practices that regularize and manage peaceful assemblies. These
include: the organisation/preparation of a peaceful assembly; cooperation with the police
during a peaceful assembly; the terms of notification for a peaceful assembly; the appeal
procedure when an assembly is rule to be prohibited.
53. The HRMMU has observed that in some cases the local authorities turned to
administrative courts to decide on the prohibition of assemblies.15 Such decisions are
motivated by an inability to ensure the safety of participants, the lack of police staff.
However, such practices lead to the violation of the human right to peaceful assembly.
54. Legislation on peaceful assembly, in line with international norms and standards
needs to be adopted. Police should then be trained in policing regulations for such events, so
as to facilitate peaceful assemblies, protect the security of participants, and provide space for
such events in a manner that is non-discriminatory and participatory.
D. Freedom of expression
55. The HRMMU is concerned about the curtailment of freedom of expression,
harassment and threats to security incurred by journalists working in Ukraine, especially in
the east. Below are some cases that the HRMMU is following, illustrating the pressure,
intimidation and danger that journalists and media outlets are coming under in the struggle
for control of the media, and what information the general public can access and obtain. For
more cases, particularly in the Donetsk region see section V on “Particular Human Rights
Challenges in the east”:16
a) On 9 April, journalists in Kharkiv protested against violations of press freedom after the
local TV channel ATN was attacked by a group of armed persons who beat up and
threatened Oleg Uht, the TV director of ATN. A suspect has been arrested in the
investigation of this case.
b) On 15 April, a newspaper editor was severely beaten by unidentified persons in Sumy. He
suffered severe injuries to the head and an open fracture of his arm.
13 See below under section IV. E.
14 According to Article 39 of the Constitution of Ukraine citizens have the right to assemble peacefully without
arms and to hold meetings, rallies, processions and demonstrations, upon notifying in advance the bodies of
executive power or bodies of local self-government. This provision is the only legislation in Ukraine that
governs the exercise of the right to peaceful assembly. A draft law on peaceful assembly is currently included on
the Parliamentary agenda.
15 The court in Zaporizhzhya has prohibited conducting any rallies and assemblies from 25 April till 18 May,
allegedly to avoid possible scuffles. The decision was also announced on 27 April during the rally on Lenin
square.
16 See section V.
14
c) On 16 April, the TV station “Center” in Horlivka (Donetsk region) reportedly terminated
broadcasting its programs due to an increased number of attacks against its journalists.
Journalists have reported to the HRMMU that they feel increasingly threatened each time
they showed their Ukrainian ID.
d) On 23 April, unknown assailants reportedly threw Molotov cocktails at the premises of
the local newspaper “Province” in the town of Konstantinovka, Donetsk region. The
newsroom was burned down. Prior to the incident, staff of the newspaper had faced
certain threats and intimidation. On 18 April, the front door of the paper was reportedly
painted with the words “Enough lying!” and “Here you can sign up for membership in the
Right Sector”.
e) On 25 April, a Russian journalist and cameraman were deported from Ukraine on the
basis that their activities were “harming the security and territorial integrity of the
country”.
f) On 4 May, in Odesa, a Channel 5 journalist was attacked by pro-federalism activists,
while reporting on events in the city. The Office of the Regional Prosecutor initiated a
criminal investigation under article 171 (prevention to the legal journalists’ activity).
56. Incitement to hatred continues to fuel tensions. This is particularly prominent in the
eastern regions of the country.
57. Acting President Oleksandr Turchynov, issued a Presidential decree 28 April “On
measures to improve the formation and realisation of State policy in the sphere of
informational safety of Ukraine”.17 It foresees the development of further laws and policies to
regulate the media environment and activity of journalists, particularly of foreign media
outlets.
E. Right to life, liberty and security
58. The breakdown in law and order, and the surge in violence are leading to more deaths
and a deteriorating situation in Ukraine. Armed groups have increasingly committed human
rights abuses, including abductions, torture/ill-treatment, unlawful detentions and killings as
well as the seizing and occupying of public buildings.
59. On 5 May, the head the police in Cherkasy region, announced that suspects had been
identified in the investigation of the murder of Vasily Sergiyenko. He was abducted from his
home on 4 April by three unknown persons in Korsun-Shevchenkivskyi, Cherkasy region. On
5 April, his body was found in a forest about 150 kilometres outside Kyiv, with reported
signs of stab wounds and torture.
60. On 15 April, a NGO activist was assaulted in Drohobych (Lviv region) by unknown
perpetrators and consequently hospitalised. The attack is thought to be linked to the work of
the activist on abuse of power by officials. The case was reported to the police by the medical
staff in the hospital.
17 Presidential Decree No. 449/2014
15
61. On 28 April, Hennadiy Kernes, the Mayor of Kharkiv, a well-known pro-unity
supporter, was shot as he was cycling near his home by unknown persons and severely
injured and, flown to Israel for treatment on 29 April. To enable his medical evacuation, the
Pecherskyi District Court in Kyiv had to lift his house arrest, which he had been under since
13 March. He is charged under articles 127 (Torture), 129 (Death threats) and 146 (Unlawful
arrest) of the Criminal Code for beating a Maidan activist.
62. The current deteriorating economic situation and unemployment level, with the ongoing
crisis, could see a rise in the number of cases of violence against women, domestic
violence and trafficking in humans, as vulnerabilities become much more acute. This requires
particular attention and support in eastern Ukraine, where historically there has been less
active participation and involvement by NGOs to date. For example, in Donetsk the only
shelter for victims of trafficking and domestic violence is run by the authorities, with space
for 13 individuals.
Odesa violence
63. On 2 May, a national unity rally gathered around 1,500 people, including many fans
from the football clubs of Chornomorets Odesa and Metalist Kharkiv18, as well as city
residents. Among the crowd there were reportedly also some radical members of the Right
Sector and Maidan self-defence unit armed with bats and metal sticks. Shortly after the rally
began, the latter were provoked by approximately 300 well-organized and armed profederalism
activists; the rally turning into a mass disorder, which lasted for several hours. As
a result, four protesters in support of Ukraine were killed by gunshots (a fifth died later in the
hospital from his injuries). Many were injured during the afternoon (mostly protesters
supporting federalism). During the evening, violent clashes between the two sides continued
on the main square (Kulikove polje), which ended in a fire a at the Trade Union building
where protesters supporting federalism had taken refuge. As a result of the events, 46 people
died of whom 30 (including 6 women) were trapped and unable to leave the burning building
and 8 (including one woman) died from jumping out of the windows. In total, 38 died at the
scene of the fire. At least 230 were injured.19 As of 5 May, 65 remained in hospital, including
two minors. Nine were in critical condition, including one policeman.
64. The list of missing persons, initially 13 persons, is now maintained by a special
hotline organised by the Mayor’s office. On 5 May, it contained 45 names, but the figure
constantly changes due to numerous mistaken reports or initial calls from worried parents and
subsequently solved cases of missing children.
65. The Office of the General Prosecutor has opened an investigation into the events of 2
May in Odesa. The same day, 114 persons were taken by police from the location of the
incident, reportedly for their own protection. The police investigation department informed
the HRMMU that only 11 have been officially detained under part 2 of article 294 (Riots
leading to death).
18 Joint marches among fans are a regular tradition before all football matches.
19 According to the Odesa City Council Health Department, 230 persons requested medical aid, out of them 214
were delivered to hospitals in ambulances.
16
66. In the context of the events in Odesa, the role of the police and the lack of
preparedness and protection were highly questionable.20 The Office of the Prosecutor has
opened criminal proceedings against the police officers under article 367 (Neglect of official
duty). On 3 May, the head of the regional police, Mr Lutsiuk, was dismissed.
67. On 5 May, Arsen Avakov, the Minister of Interior, announced that a special unit of
the National Guard (400 persons) arrived in Odesa to protect the integrity of the region and
restore public order. It will be under supervision of the head of Odesa Regional
Administration. The unit comprises armed volunteers, which is of concern given their lack of
training in handling mass protests.
F. Political rights
Human rights in the electoral process
68. On 4 April, the Central Election Commission (CEC) confirmed the registration21 of
23 candidates (20 men and 3 women) for the Presidential elections scheduled on 25 May.22
69. Several candidates have reported facing arbitrary restrictions, hate speech,
intimidation and violent attacks during their election campaigning. Some examples of such
cases are listed below.
a) On 10 April, Oleg Tsariov (non-affiliated candidate from eastern Ukraine) following a
press conference in Odesa was reportedly prevented from leaving the location by “Right
Sector” activists. Scuffles broke out between the latter and supporters of Mr. Tsariov. The
police managed to transfer Mr. Tsariov out of the hotel.
b) On 14 April, Mykhailo Dobkin (Party of Regions) and Oleg Tsariov were attacked in
Kyiv at the ICTV (national TV channel) media building. Both are known for their pro-
Russian stance and for supporting federalism.
c) On 11 April in Rivne, there were reports of “Right Sector” activists who picketed, burned
documents and then sealed the office of the Communist Party. They demanded activities
of the party be banned for as long as Petro Symonenko, Head of the Communist Party,
supported separatist activities in south-east Ukraine.
d) On 22-23 April in Krasnodon and Alchevsk (Luhansk region) unknown persons attacked
campaigning tents of Anatoliy Hrytsenko (Civic Position party). On 30 April, in
Mykolaiv his campaigners were verbally harassed with demands to remove the campaign
tents by unknown persons.
20 The preparedness of the State Emergency Service of Ukraine and its ability to deal with arson is also
questionable. Whereas the medical help (first aid provided by ambulance and medical help in the hospitals) was
assessed as highly effective.
21 CEC denied registration to 17 candidates as they did not comply with the procedural norms. There were no
claims of unlawful refusal in registration.
22 On 25 May there will be elections of mayors in some of the towns (namely Kyiv, Cherkasy, Chernivtsi,
Odesa, Kherson, Mykolaiv, Sumy and a number of smaller towns throughout Ukraine. During the presidency of
Viktor Yanukovych, the results of the mayors’ elections in these towns were illegitimate, but the early elections
were blocked through the administrative pressure. The towns were governed by the secretaries of the city halls.
17
e) On 28 April in the village Perehrestivka (Romensky district, Sumy region), the pro-unity
campaign team of Oleh Liashko (Radical Party) was threatened and their property
destroyed. He cancelled his campaigning activities in the area.
f) Also on 28 April, Mykhailo Dobkin, was prevented from leaving the plane at Kherson
airport by some 250 pro-unity activists. The police claimed they were prohibited from
accessing the runway, and could not provide security to the Presidential candidate. A
criminal case has been opened against the aforementioned activists (still being identified)
under article 279 (Blocking transport communications by placing obstacles preventing
normal functioning of transport or creating danger to human life or the onset of other
serious consequences) of the Criminal Code.
70. The HRMMU has concerns about the security of the candidates and space for their
pre-election activities, as well as how voters are able to access comprehensive information
about the presidential candidates.
71. The NGO “Opora” has highlighted that the Presidential election campaign is often
accompanied by intolerance, which could lead to more social tension and outbursts of
violence. The HRMMU is concerned at the reports of billboards being posted by Oleh
Liashko with the slogan “Death to occupants”. They have been sighted in in the regions of
Chernivtsi, Ivano-Frankivsk, Rivne, and Ternopil.
72. On 1 May, Oleg Tsariov and Natalia Korolevska officially withdrew as candidates
from the Presidential elections.23 On 16 April, two criminal proceedings were initiated
against Oleg Tsariov based on articles 109 (Actions to overthrow a government) and 110
(Separatism). As of 5 May, 21 candidates (19 men and 2 women) were confirmed as running
for the Presidential post.
73. On 26 April, the CEC announced that in order to vote in the Presidential elections,
Ukrainian citizens living in Crimea would have to register in person at any polling station on
mainland Ukraine no later than five days prior to the election day, i.e. 19 May. This implies
that residents of Crimea will have to travel to another region twice (to register and to vote) or
to spend one week there. This is the only option provided to ensure their participation. The
procedure for registration was simplified for the residents of Crimea, compared to other
citizens of Ukraine who want to vote in another location. The citizens in Crimea do not have
to provide any additional supporting documentation. As of 5 May, approximately 727
residents of Crimea have registered to vote on mainland Ukraine. The over 7,000 IDPs from
Crimea will be able to vote where they are now settled.
74. On 30 April, Andriy Mahera, Deputy Chair of the CEC, announced that Presidential
elections would be conducted whatever the circumstances and their outcome would be legally
binding. Furthermore, in order to prevent the disruption of the electoral process, as well as to
hinder any possible unlawful referendums in support of the various self-proclaimed
"people's" republics (e.g. Donetsk People’s Republic) the decision had been made to block
the access to the State Voter Register in several towns in Donetsk and Luhansk regions.24
23 Oleg Tsariov claimed that elections were not possible at a time of “civil war” in the country. Natalia
Korolevska gave the reason for her decision as being that the elections were dividing the country.
24 The access to the State Voter’s Registry in 7 towns of Donetsk region was blocked on 24 April and in 7 towns
of Luhansk region on 30 April. The access to the registry in Crimea remains blocked since 6 March.
18
Women’s participation
75. Women represent 54 % of the Ukrainian population, but they are underrepresented in
politics as leaders. Ukraine is falling short of fulfilling its 2015 Millennium Development
Goal commitment of having 30% of top leadership positions filled by women Of the 21
Presidential candidates, only two are women. Only 10% of the members of Parliament are
women. The current Cabinet of 18 Ministers includes only two women, although its
composition was completely revisited in February. Women are better represented in local
government: 12% of regional councillors; 23% of district councillors; and 28% of city
councillors; and in village councils women making up 50% of the councillors.
76. The HRMMU has not noted any discriminatory language towards women either
during the campaigns for the presidential or Kyiv mayor elections. At the same time, there
were no systematic efforts to promote women in campaigning positions, as election
commission members or as election observers. NGOs report that the election campaign has
not sought to promote women and have expressed concern that the issue of gender equality is
becoming lost amid the enormous reform agenda.
Political parties
77. On 21 April, Viacheslav Ponomariov, the self-proclaimed Mayor of Slovyansk,
reportedly banned the election campaigning activities of the (pro-Maidan) political parties,
such as “Udar”, “Svoboda” and “Batkivshchyna” in Slovyansk.
78. On 30 April, the District Administrative Court of Kyiv issued a decision to terminate
the activities of the political party “Russian Unity”.25 The Ministry of Justice provided
evidence that the leader of the party, Sergey Aksionov (current “governor” in the
Autonomous Republic of Crimea), had conducted an anti-State policy, aimed at the violation
of the territorial integrity and independence of the country. The court hearing on the “Russian
Block” is to resume on 12 May.
G. Minority rights
79. The UN Special Rapporteur on Minority Issues, Rita Izsák, conducted a mission to
Ukraine on 7-14 April 2014, visiting Kyiv, Uzhgorod, Odesa and Donetsk (she was unable to
access Crimea). In her press statement at the conclusion of the visit, she noted that interethnic
and inter-faith relations were harmonious; and that the legislative and policy
environment was conducive to the protection of minority rights, including cultural rights.
However, she also observed that considering the great diversity of population groups in
Ukraine, the institutional attention to minority issues was currently insufficient and had
declined or been downgraded in recent years. She further noted that the recent developments
in Ukraine had created an environment of uncertainty and distrust that may create fractures
along national, ethnic and linguistic lines and threaten peaceful coexistence if not resolved.
She warned that in some localities the level of tension had reached dangerous levels and must
be diffused as a matter of urgency.26
25 On 15 April, the Ministry of Justice filed a lawsuit prohibiting the activities of the political parties Russian
Bloc and Russian Unity in Ukraine. Allegedly the leadership of the political parties was seeking to change the
constitutional order by force, to undertake activities violating the sovereignty and territorial integrity of Ukraine,
to illegally seize State power, to undertake war propaganda, violence, and incitement to ethnic, racial or
religious hatred – all of which are contrary to Article 5 of the law "On Political Parties in Ukraine".
26 Press statement of 16 April 2014, by the Special Rapporteur on minority issues, available online at
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14518&LangID=E.
19
80. The HRMMU has received credible reports that Crimean Tatars are experiencing
significant pressure, examples of which are provided in section VI on “Particular Human
Rights Challenges in Crimea”.
81. The importance of using one’s mother tongue freely in private and public without
discrimination is of high importance. Generally communities expressed satisfaction that
minority schools or specialized classes have been established and function freely according to
national law. They frequently noted that the use of minority languages is a significant and
valued feature of Ukrainian society and is in no way incompatible with the teaching and use
of Ukrainian as the state language. However, the Special Rapporteur on Minority Issues
referred to the concerns voiced by ethnic Russians that there were relatively few Russian
schools in relation to their numbers. On 11 April, while in eastern Ukraine, acting Prime
Minister Yatseniuk emphasised that the law “On the Basics of State Language Policy” so
called “Kolisnechenko-Kivalov law”, remained in force. However, this remains a contentious
issue in eastern Ukraine, with many not grasping that the use of languages is to be considered
by region.
82. There have been individual cases of hostility and anti-minority acts reported to the
HRMMU. These remain isolated incidents, but which can contribute to an atmosphere of
mistrust and fear, which in turn can generate discrimination and violence, and potentially hate
crimes.
83. The HRMMU has observed a number of cases motivated by hatred against minorities:
a) In Odesa on 7 April, an incident when graffiti with swastikas was painted on Jewish
tombs, the Holocaust memorial and on houses next to the Synagogue was monitored by
the HRMMU. The signature of the Right Sector allegedly appeared next to the graffiti.
On 8 April, the leaders of Right Sector from Kyiv and of the Ukrainian National
Assembly personally met with the Chief Rabbi, Avraam Volf, to assure him that these
organisations had not participated in these acts. Together with the municipal service and
pro-unity activists, they washed off the graffiti from the tombs. The Jewish community
believes these acts were a provocation and not part of a broader threat. On 8 April, the
police opened a criminal investigation into the case based on article 296 of the Criminal
Code (Hooliganism).27
b) On 15 April, in Donetsk, anti-Semitic leaflets28 with the stamp of the “Donetsk People’s
Republic” were circulated near the local synagogue. The self-proclaimed leaders of the
“Donetsk People’s Republic” denied their involvement in the incident; its self-proclaimed
Governor, Serhiy Pushylin, called it a provocation. On 18 April, the Security Service of
Ukraine announced that the materials of this case were added to the on-going criminal
proceedings under articles 110 (Trespass against territorial integrity and inviolability of
Ukraine) and 294 (Riots).
27 Criminal Code also foresees accountability for such criminal offences as: violation of graves (article 297),
illegal desecration of religious sanctities (article 179), and violation of citizens’ equality based on their race,
nationality or religious preferences (article 161).
28 The text of the leaflet obliged all Jews of Donetsk region to pass registration by 3 May, which costs 30 USD.
If not passed, they will be deprived of citizenship and deported from the Donetsk People’s Republic with the
confiscation of their property.
20
84. The HRMMU in Odesa, Kyiv, Donetsk and Lviv met with representatives of the
Jewish communities (the World Jewish Congress, Rabbis, and cultural centres). In all
locations, it was informed that, apart from a few anti-Semitic incidents over recent years, they
had not experienced significant violations or threats. However, one of them expressed
concerns that the political party –“Svoboda” – which made anti-Semitic statements in the past
- was now represented in the Parliament and the Government.
85. The HRMMU visited the Zakarpattya region, which is the most ethnically diverse
area in Ukraine. In meetings with national and ethnic communities no information was
received that suggested they were facing tension or hostilities. The largest national and ethnic
communities (Hungarians, Russians, Ruthenians, Poles and Slovaks) described positive interethnic
relations. However, the HRMMU received allegations from representatives of the
Roma community that they frequently face discrimination and stigmatisation, as well as
arbitrary arrest and ill-treatment from law enforcement officials in Zakarpattya. They do not
usually report such incidents due to their lack of trust in the law enforcement bodies and fear
of further persecution.
86. In Donetsk region, the HRMMU has been monitoring the situation of the Roma
community particularly following the attack during the night of 18 April on the Roma
community in Slovyansk (Donetsk region), reportedly by an armed group of persons. NGO
representatives reported to the HRMMU that seven households were attacked by armed men
demanding gold, money and other valuables. The Roma Council of Ukraine has claimed that
this was the most recent attack on the Roma community in the past months. One of the
families has registered a complaint with the police. Two later reports of attacks on Roma
communities received by the HRMMU could not be verified. Reports indicate that many
Roma families have apparently left Slovyansk for unspecified reasons; the situation for those
remaining in the town remains unverified.
87. The HRRMU has received credible reports of ongoing reports of hate speech,
harassment and hate-motivated violent attacks against LGBT persons, including organised
attacks by groups specifically targeting LGBT persons, and limited investigations into such
attacks by law enforcement officials or remedy for victims. The issue of the protection of the
rights of LGBT persons has repeatedly been misrepresented and used in a derogatory manner
by political actors to discredit opponents. The LGBT community is concerned that the
political programmes of the two right-wing parties – Svoboda and Right Sector (leaders of
both are running for the Presidency) – clearly state combating homosexuality as one of their
goals. Reportedly, the Communist Party of Ukraine has also made negative statements
regarding sexual orientation. The LGBT community in Kharkiv informed the HRMMU that
they have been receiving threats from both radical right-wing groups and pro-Russian
movements. Both sides are quite similar in their negative attitude towards LGBT and their
use of hate speech.
88. On 15 April, a draft law on the prohibition of propaganda of same-sex sexual relations
aimed at children, which has been condemned by the UN human rights mechanisms, as well
as the Council of Europe, was withdrawn from Parliament. However, another draft law (Nr.
0945), contemplating similar provisions, technically remains under consideration, despite a
motion for its withdrawal.
89. Acknowledging the need for confidence-building between various communities in
society, there have been some attempts by human rights NGOs in the Donetsk region to
21
organize discussions aimed at breaking the stereotypes that exist in the society about tensions
between different groups and to engage in dialogue. On 16 April in Lutsk (western Ukraine),
local civil society activists held a round table discussion on mutual understanding with
representatives of national minorities of the region. Representatives of the local chapter of the
Right Sector, Community Sector, Auto-Maidan, the Russian Cultural Centre and the Polish
Cultural Society took part in this event.
V. PARTICULAR HUMAN RIGHTS CHALLENGES IN THE EAST
A. The right to life, liberty and security
90. The HRMMU has received credible reports regarding the increasing numbers and
presence of well-organized armed persons in eastern Ukraine, particularly in the Donetsk
region, which in some towns are forming so-called “self-defence” units. These armed groups
are seizing and occupying more and more public and administrative buildings, including
those of the Donetsk regional administration, the Prosecutor, the Security Service of Ukraine,
as well as police departments in various towns, mostly in the northern part of the Donetsk
region and parts of Luhansk region. These illegal take-overs of administration buildings (such
as the Donetsk Regional State Administration and the Regional Department of the Security
Service of Ukraine in Luhansk) by both armed and unarmed persons were done so with
political demands for regionalisation, and at times reportedly separatism.
91. A number of regions self-proclaimed their “sovereignty”, for example on 7 April,
there was the announcement by those occupying the Regional Administration Building in
Donetsk of the establishment of the so-called “Donetsk People’s Republic”; on 27 April a
similar announcement was made in Luhansk concerning the establishment of the so-called
“Luhansk People’s Republic”.
92. The acquiescence of law enforcement bodies in the illegal seizure and occupation of
public and administrative buildings in the Donetsk and Luhansk regions has been observed,
raising questions regarding its implications for the administration of justice and the rule of
law, including the prompt and effective investigation into reported criminal acts. This raises
serious concerns regarding residents’ access to legal remedies, due process and overall
guarantees for human rights protection.
93. This has contributed to a situation where armed persons, now formed into illegal
groups, operate and run towns with impunity, for example in the town of Slovyansk located
in the northern part of the Donetsk region. There has been a noted shift of apparent ‘control’
from the ‘political base’ of the “Donetsk People’s Republic” in Donetsk, to the “armed
operations base” of the “Slovyansk self-defence unit” in Slovyansk.
94. The HRMMU is concerned with the undermining of human rights protection and
guarantees of fundamental freedoms for the population of the town where buildings are
occupied by armed persons, as well as the broader population of eastern Ukraine.
Specifically, the HRMMU is concerned about the rise in the number of reported cases of
intimidation, harassment and killings, as well as the wave of abductions and unlawful
detentions of journalists, activists, local politicians, representatives of international
organizations and members of the military.
Security and law enforcement operation
22
95. The Government first announced a “counter-terrorist” operation in eastern Ukraine,
namely Donetsk region, on 13 April. The ensuing security and law enforcement operation
was ceased by the authorities in observance of the Easter holidays and in the aftermath of the
Geneva meeting and statement.29 Following the discovery of the bodies (with alleged signs of
torture) of Volodymyr Rybak30, Horlivka city councillor, and Yuriy Popravko31, a student
and Maidan activist from Kyiv, in a river near Slovyansk on 19 April, acting President
Oleksandr Turchynov ordered the resumption of the “counter-terrorist” operation in eastern
Ukraine on 24 April.
96. On 28 April, the body of another student, Yuriy Dyakovskiy, was discovered in the
river near Slovyansk with similar signs of torture. He had arrived in Slovyansk on 16 April
with three other friends and was allegedly abducted on 17 April.
97. The security and law enforcement operation has since then particularly concentrated
on the town of Slovyansk, which serves as the “armed operations base” of the so-called
“Slovyansk self-defence unit”. According to the law enforcement bodies of Ukraine, these
armed groups are well organised and heavily armed, and have managed to down two
Ukrainian helicopters with shoulder-held missiles. On 28 April, the Ministry of Interior
reported that three checkpoints had been taken and that “five terrorists were destroyed” by
Ukrainian security forces as they attempted to gain control of Slovyansk. Such use of force
raises concerns as to whether other non-violent means could have been used, in line with
relevant international norms and standards. Furthermore, the HRMMU is also concerned
about information it has received regarding alleged cases of enforced disappearances in
eastern Ukraine reported to have been carried out by the Ukrainian army as part of these
operations. As security and law enforcement operations continue, increasing concerns are
raised regarding the protection of the local population.
98. In Kostyantynivka on 3 May, during the security and law enforcement operations the
Security Service of Ukraine reported wounded persons, not disclosing the exact number.
According to local sources in the hospital in Kostyantynivka, there were a number of
casualties as a result of those operations. The HRMMU is trying to further verify this
information.
99. In Kramatorsk according to the Department of Public Health of the Donetsk Regional
State Administration, six individuals among the local population were reportedly killed and
15 wounded in the course of a security and law enforcement operation that took place on 3
May.
100. On 16 April, during an attempt to take over a military unit in Mariupol by local pro-
Russian protesters, reportedly three persons were killed, 13 wounded and 63 were detained
by law enforcement officers. There are allegations that the protesters were armed. According
to relatives of those detained, the protesters were not armed, and they allege more were killed
by law enforcement bodies. The HRMMU is seeking to verify information in this case.
Unlawful detentions
29 See footnote 2.
30 Mr Rybak - a well-known supporter of the unity of Ukraine - was abducted by unknown persons on 17 April,
and his whereabouts since that time had remained unknown. On 23 April, the State Security Service opened an
investigation into the killing of Mr. Rybak.
31 Mr Popravko went missing on 18 April. Allegedly was tortured and drowned the same day.
23
101. Of grave concern, is the increased number of cases of abductions and unlawful
detentions in the eastern regions, with journalists appearing to be particularly targeted. The
illegal “Slovyansk self-defence unit” appears to be responsible for controlling these illegal
activities. Information on the unlawfully detained was from time to time confirmed by the
self-proclaimed mayor of Slovyansk, Viacheslav Ponomariov. The unlawful detention of a
group of OSCE military observers and their Ukrainian five counterparts came to an end with
their release on 3 May, after 10 days in captivity. One was released in the first 24 hours on
medical grounds. Despite such releases, the HRMMU remains deeply concerned that there is
little or no information on the reported cases of detentions, including of three officers from
the Security Service of Ukraine apparently still detained by the “Slovyansk self-defence
unit”. These acts are in violation of national laws and international standards. The HRMMU
continues to receive reports of cases of abductions and unlawful detention of individuals
whose whereabouts cannot be accounted for by relatives and colleagues. As of 5 May, the
HRMMU was aware of at least 17 persons who were still reportedly unlawfully detained in
the Donetsk region; however, the actual number of those unlawfully detained may be higher.
102. Some examples of cases which have and continue to be monitored by the HRMMU
include:
a) On 19 April, a railway police officer, left home in Slovyansk and has never returned.
Criminal proceedings have been opened under article 46 of the Criminal Code (Illegal
abduction or deprivation of liberty);
b) In Kramatorsk, on 21 April an armed group abducted a police officer; criminal
proceedings were initiated under article 349 of the Criminal Code (Capture of
representative of government law enforcement agency as a hostage);
c) On 29 April, a local activist, was allegedly abducted by unidentified persons, and is now
unlawfully detained by an armed group in the occupied building of the State Security
Service in Luhansk;
d) On 29 April, an armed group abducted a member of the Svoboda party and a local
election commission representative in the town of Konstantinovka. The next day, an
armed group abducted a second Svoboda party representative. Unofficial sources told
relatives that the two men are unlawfully detained in Slovyansk;
e) On 2 May in Donetsk an armed group abducted an activist and aide. He was unlawfully
detained, beaten and interrogated for three days. He was released on 5 May;
f) On 3 May, pro-unity activists were unlawfully detained, beaten and interrogated in
Luhansk. They were released on 4 May;
g) On 4 May, a group of armed men abducted six residents of Novogrodovka in Donetsk
region, including town councillors and trade union members. They were severely beaten
and tortured while unlawfully detained in the occupied building of the Regional State
Administration in Donetsk and some of them were released on 5 May.
Detentions and cases of alleged enforced disappearances
103. The HRMMU has received credible reports of the detention and transfer to Kyiv by
the Security Service of Ukraine of a number of persons. At times between their detention and
confirmation of whereabouts, a number of these individuals had been held in conditions
amounting to enforced disappearance. Examples of such cases are:
a) On 26 April, an activist from the Artyomivsk self-defence unit, was reportedly detained
by the Ukrainian military and transported by helicopter to Kramatorsk. He was
24
interrogated and released on 27 April after one day of enforced disappearance. The
HRMMU interviewed the activist in the Artyomivsk hospital where he has been
undergoing medical treatment for injuries sustained while in detention. According to him,
Ukrainian special military units (allegedly “Alfa”) searched him at a checkpoint, which
had been operated by an armed group. He was reportedly unarmed. His membership card
from the Ukrainian branch of the Don Cossacks organization was found. He was beaten,
blindfolded and taken to Kramatorsk where he was interrogated about his alleged
connections to the Russian Federation. The local police in Artyomivsk registered the case.
No criminal investigation has been opened, as he has refused to file an official complaint
for fear of retaliation;
b) An activist of the “Donetsk People’s Republic” was detained on 3 April by the Security
Service of Ukraine and transferred to the Security Service of Ukraine pre-trial detention
center in Kyiv. He has since been charged under article 294 (Civil unrest), and article 341
(Illegal occupation of government or public buildings and installations) of the Criminal
Code. His relatives were not informed about his detention and transfer to the SBU in Kyiv
for some time - HRMMU is verifying the timeframe. The National Preventive
Mechanism has confirmed to the HRMMU that his state of health is satisfactory and he
receives legal aid.
104. Pavel Gubarev, self-proclaimed “People’s Governor” of Donetsk region, was arrested
on 6 March by the Security Service of Ukraine. According to his lawyer, the manner in which
his detention took place presented a number of violations of the requirements of the Criminal
Procedure Code of Ukraine. However, the HRMMU also received information according to
which this would not be the case.
B. Freedom of expression
105. The struggle for control of the media outlets, and who is able to broadcast where,
continues inside Ukraine, particularly in the east. The latest incident was the seizure of a TV
centre in Donetsk on 27 April by pro-Russian protesters with the demand that it switches
back to broadcasting Russian TV, which followed an earlier decision by the Kyiv
administrative court to prevent such broadcasting and only permitting Ukrainian TV
channels.
106. The environment for journalists working in eastern Ukraine is deteriorating.
Journalists, bloggers and other media personnel either based in the region, or visiting, are
facing increasing threats and acts of intimidation, including abduction and unlawful detention
by armed groups. According to information received by the HRMMU, the so-called
“Slovyansk self-defence unit” has been unlawfully detaining journalists since 15 April. There
are reports that at the check-points of Slovyansk, there are lists of journalists and others that
the armed group is seeking, with photographs and personal data. Allegedly, in this way many
journalists have been detained. Most are accused by the armed groups who detain them of
working for the CIA, FBI, the Right Sector or of being one-sided about their reports from
Slovyansk.
107. The HRMMU is aware of at least 23 journalists, reporters, photographers (both
foreign and Ukrainian nationals) who have been abducted and unlawfully detained by armed
groups, primarily in Slovyansk. As of 5 May, 18 of them were known to have been released.
25
They have reported that those still kept in unlawful detention, including journalists, by the
“Slovyansk self-defence unit”, had been subjected to ill-treatment.
108. The exact number of the journalists still unlawfully detained remains unknown. As of
5 May, the HRMMU was following the cases of a number of journalists, including: 1)
journalist with the Open Dialogue Foundation who went missing on 16 April but was
released on 6 May; 2) staff member of the “Hidden Truth TV, went missing on 20 April.
Both were reportedly seen by a journalist who was then released32 in the basement of the
seized building in Slovyansk; 3) a journalist with the Lviv-based media outlet “ZIK” was
unlawfully detained by unknown persons on 25 April on the main square of Slovyansk; and
4) a journalist with the Lutsk-based “Volyn Post” newspaper, went missing on 26 April in
Slovyansk. The whereabouts of at least two of these journalists remains unknown.
109. On 2 May, several journalist crews were briefly abducted by unknown persons in the
Donetsk region: the production team of SkyNews and CBS as well a “Buzzfeed” news
website journalist and his interpreter. The HRMMU interviewed most of the victims after
their release and return to Donetsk. During their unlawful detention, the journalists and local
staff were blindfolded, held at gun point, interrogated, and threatened. One female journalist
was reportedly sexually harassed.
110. The impact of the developments in eastern Ukraine on the most vulnerable groups is
being closely monitored by the HRMMU. Attacks by an armed group on Roma communities
in Slovyansk that were reported, resulted in many Roma families leaving the area, with others
remaining in the city fearful to cross checkpoints.
C. Investigations related to events in the east
111. Information provided to the HRMMU by the Office of the General Prosecutor showed
that law enforcement agencies had registered 247 criminal proceedings concerning cases of
“separatism”. 17 of these are under investigation by the Regional Prosecutors of Donetsk,
Luhansk, Kherson and Dnepropetrovsk: eight concern violent acts to overthrow or change the
constitutional order as stipulated or to seize state power (article 109 of the Criminal Code), or
the infringement of Ukraine’s territorial integrity and inviolability (article 110 of the Criminal
Code), and one criminal proceeding for high treason (article 111 of the Criminal Code). The
remaining eight criminal proceedings concern excessive use of powers (article 365 of the
Criminal Code) by police officers in connection with allegedly supporting an act of
“separatism” (linked to either article 109 or 110 of the Criminal Code).
112. The HRMMU is following up on a number of cases where individuals were detained
under these criminal proceedings related to events in the east. On 30 April, the HRMMU
received information from the National Preventive Mechanism regarding ten detained
persons. It was stated that they are held in the pre-trial detention centre of the Security
Service of Ukraine based on respective court decisions, and, reportedly, are in satisfactory
health condition and receive legal aid.
113. In addition, the HRMMU verified allegations made by a Russian senator claiming that
Pavel Gubarev, the self-proclaimed governor of Donetsk, who was detained in Donetsk by
32 Journalist of the VICE News (USA) who was detained on 22 April and released on 24 April.
26
police on 6 March and transferred to Kyiv, had been tortured and was in a critical condition.
The HRMMU spoke with the lawyer of Pavel Gubarev and the head of the National
Prevention Mechanism; both denied the torture claim. On 30 April, the lawyers of Mr.
Gubarev announced that Shevchenkivskiy District Court in Kyiv had prolonged the detention
period of Mr. Gubarev until 28 June.
D. Economic and social rights
114. Public services are reported to be operating in most towns in the east, despite the
seizure of public and administrative buildings. The impact on the access to, and the quality
of, services provided by public institutions for residents in a non-discriminatory way
continues to be observed, including in those towns either already controlled by armed groups,
or with administrative buildings occupied by armed and unarmed opponents of the
Government. The presence of armed groups and their particular control of towns such as
Kramatorsk and Slovyansk is resulting in the disruption of many aspects of daily life. There
are reports that many shops are closed; public services are fully operational, including public
transport, schools and healthcare and medical facilities. Several major banks terminated
operations in various parts of eastern Ukraine due to numerous instances of attacks on their
offices.
115. The HRMMU heard of concerns regarding the on-going crisis from representatives of
Women’s NGO in both Kyiv and Donetsk. Their sense is that there is very little participation
and inclusion of women in efforts to resolve the current crisis in Ukraine, particularly in the
eastern regions. Their more active inclusion in such activities is viewed by many as critical to
the success of possible steps to secure good governance, respect for human rights and the rule
of law. Advocacy is necessary at all levels to ensure the inclusion of women into any
effective efforts at national reconciliation and dialogue.
116. One gap raised in particular in Donetsk, is the inclusion of Women’s NGOs in the
Donetsk region so that they are more connected both geographically, e.g. with NGOs in Kyiv
– the HRMMU has facilitated this connection. In Donetsk itself, the HRMMU has included a
representative of the women's NGO coalition in regular NGO meetings it has initiated with
members of the civil society in Donetsk to discuss human rights.
VI. PARTICULAR HUMAN RIGHTS CHALLENGES IN CRIMEA
117. In line with UN General Assembly Resolution 68/262, adopted on 27 March 2014,
entitled “Territorial integrity of Ukraine”, the HRMMU monitors the human rights situation
in the Autonomous Republic of Crimea. On 28 April, a law, adopted by Parliament on 15
April “On guaranteeing citizens' rights and freedoms and legal regime in the temporarily
occupied territory of Ukraine” entered into force (hereafter “Law on Occupied Territory”).
According to the Law, the Autonomous Republic of Crimea and the city of Sevastopol, the
airspace above them, domestic waters and territorial sea of Ukraine, including underwater
space, are all defined as a temporarily occupied territory. It foresees that the temporarily
occupied territory is an inalienable part of the soil of Ukraine where Ukrainian laws remain in
effect. The Law stipulates that the responsibility for the violations of human rights and the
destruction of cultural property lies with the Russian Federation as the occupying State
according to the norms and principles of international law.
27
118. The Ombudsman reported that since the unlawful “referendum” in the Autonomous
Republic of Crimea, the number of people seeking help has significantly increased. However,
as of 7 April, the regional office of the Ombudsman in Crimea was forced to stop working
and had to close, due to its eviction from its office and the overall obstruction faced by its
staff in their work. The representative of the Ombudsman Institution in Crimea continues to
receive information on Crimea through human rights defenders and NGOs. The HRMMU is
concerned about the gap in human rights protection as a result of the closure of the
Ombudsman regional representation.
A. Internally displaced persons from Crimea
119. UNHCR reports that as of 29 April there were 7,207 internally displaced persons
(IDPs) registered in all 24 regions of Ukraine. With no official centralised registration
process, there are concerns that this figure may not reflect the reality, with some IDPs not
registering with local authorities. Registration with a local authority is only required should
people wish to access state services, such as healthcare, or register for housing and
employment. Most of IDPs have settled in Kyiv (1968 persons) and Lviv region (1207
persons); 445 persons registered in Poltava, 386 in Vinnytsya, 374 in Kharkiv, 300 in
Dnipropetrovsk, 243 in Ivano-Frankivsk, 196 in Chernivtsi. The majority of IDPs are
Crimean Tatars; although there are reports of an increased registration of ethnic Ukrainians,
ethnically mixed families, and ethnic Russians. Most IDPs are women and children.
120. The local authorities of the regions where IDPs have settled have endeavoured to
provide essential needs and services, including accommodation, schooling, social benefits
and, in some cases, employment.
121. Common challenges that the IDPs face are: interruptions in the provision of, and
access to, social benefits, including pensions, maternity benefits, and child assistance
payments, difficulties in obtaining documents, e.g. university documents for students, and not
being able to access their bank accounts in branches based on mainland Ukraine.
122. The Law “On the rights and freedoms of citizens and the legal regime on the
temporarily occupied territory of Ukraine” refers to these people as the “citizens of Ukraine
who have resettled from the temporarily occupied territories”. The Law also addresses other
issues of concern to IDPs, such as how they can receive unemployment benefits, exercise
their right to vote, and replace their identity documents. In addition, various ministries have
adopted specific regulations and procedures to facilitate the access of persons from Crimea to
education (including higher education), medical care, and social benefits. Nevertheless, a
number of key issues, particularly residence registration and the related issue of business
registration, still need to be addressed through legislation/regulations.
123. The HRMMU has received reports that some IDPs are planning to apply for asylum in
Europe and Turkey; others plan to settle in their location; while others are looking to return to
Crimea.
B. Rights of Crimean residents
124. As the legislation of the Russian Federation is being enforced on the territory of
Crimea, at variance with the UN General Assembly resolution 68/262, this is creating
difficulties for Crimean residents, as there are many differences with Ukrainian laws. One
particular example concerns the treatment now available to HIV/AIDS patients in Crimea. In
28
Ukraine, people who use drugs have access to opioid substitution therapy (OST) as an
integral part of the widespread implementation of harm reduction programmes. These
programmes are an essential element in controlling HIV/AIDS and other infectious disease
among injecting drug users in Ukraine, as elsewhere in Eastern Europe. In 2013, the
Ukrainian State Service for drug control reported that approximately 8,000 people in Crimea
were infected with HIV/AIDS. As of 1 March, there were 806 people using OST in Crimea;
as of 6 May, the OST programmes in Crimea stopped. The majority of former OST patients
now face deterioration in their health condition due to the fact that this treatment has been
curtailed. This raises serious concerns for HIV/AIDS patients in particular, questioning how
they may now access and gain quality healthcare treatment.
Right to citizenship
125. Citizenship issues became more critical following the agreement between the Russian
Federation and the authorities in Crimea, which stipulates that the citizens of Ukraine and
stateless persons permanently residing in Crimea or in Sevastopol as of 18 March 2014 shall
be recognized as the citizens of the Russian Federation, with the exception of persons who
within one month thereafter declare a desire to maintain their or their minor children's active
citizenship or to remain stateless persons.
126. The deadline for Crimean residents to refuse Russian citizenship expired on 18 April,
after which applications for refusing Russian citizenship were no longer accepted.
127. The HRMMU was informed of constraints faced by Crimean residents who refuse to
acquire Russian citizenship: (1) the period granted for initiating the procedure of refusing
Russian citizenship (18 April) was too short; (2) instructions from the Russian Federal
Migration Service (FMS) on the refusal procedure were only available as of 1 April; (3)
information about FMS points was not available until 4 April; (4) from 4 - 9 April only two
FMS points were functioning - in Sevastopol and in Simferopol; (5) as of 10 April, 9 FMS
points were working: Sevastopol, Simferopol, Yalta, Bakhchisaray, Bilogorsk, Evpatoriya,
Saki, Kerch and Djankoy; (6) some requirements in the procedure of refusing Russian
citizenship evolved over time, such as the necessity to be make the application in person, and
that both parents were required for the application of a child. The HRMMU is concerned that
there may be problems with regard to the right to citizenship and will closely monitor any
related cases.
128. Article 5 of the adopted Law “On Occupied Territory” states that the forced automatic
acquirement of Russian citizenship by Ukrainian residents living in Crimea is not legally
accepted by Ukraine, and is not deemed as grounds for the withdrawal of Ukrainian
citizenship.
129. The HRMMU is concerned with reports that those who did not apply for Russian
citizenship are facing harassment and intimidation. It will be critical that they are ensured
their property and land rights, access to education and healthcare and face no curtailment to
the array of social benefits associated with citizenship. The transition period in Crimea will
end on January 2015. Allegedly, those who have refused to acquire Russian citizenship by
this time, will have to apply for residence permits; or else they could face deportation from
the territory of Crimea.
Freedom of movement
29
130. The “Law on Occupied Territory” has only minor restrictions to the freedom of
movement (foreigners and stateless persons will have to obtain a special permit to enter/leave
the occupied territory). Under article 10, freedom of movement between the Autonomous
Republic of Crimea and mainland Ukraine is allowed for Ukrainian citizens. On 14 April, the
authorities in Crimea announced that full access for Ukrainian citizens to Crimea will be
guaranteed as of 25 April.
131. In practical terms, there are long queues at the boundary line that now exists, with
signs that the latter is becoming fully-functioning. This impedes and complicates maintaining
family ties and places limitations on the freedom of movement. The existence of a boundary
line between Crimea and mainland Ukraine with checks performed at 27 check points was
announced on 25 April by the acting Head of the Federal Migration Service of Russia in
Crimea, Petro Yarosh.
132. On 29 April, the Ministry of Foreign Affairs of Ukraine sent a diplomatic note of
protest to the Russian Federation, stating that the establishment of a border was not in line
with the basic principles and norms of international law and contradicts UN General
Assembly Resolution 68/262.
133. On 22 April, 12 more names were added to the list of “Persons Engaged in Anti-
Crimean activity, whose stay is undesirable on the territory of the Autonomous Republic of
Crimea”, originally adopted by the “State Council of Crimea” on 27 March. It reportedly now
includes 344 names, one of which is Mustafa Jemilev, ex-chairman of the Parliament of the
Crimean Tatar people.
134. On 29 April, a group of Crimean Tatars reported that they were made to leave a train
by law enforcement officials in the town of Djankoi, having been informed that they were not
permitted to enter Crimea. Apparently at the time of the incident, no reason was given for this
decision (possibly, the absence of Russian passports). The HRMMU is seeking further
information on this incident to verify the situation, and why limitations were placed on the
freedom of movement for these individuals.
135. On 30 April, the Cabinet of Ministers of Ukraine issued an Order “On temporary
closure of crossing points across the border and checkpoints”,33 according to which 27 check
points are to be closed. The Order is not likely to have an impact on the freedom of
movement for Crimean residents, as the check points to be closed are at airports (all flights
connecting Crimea and continental Ukraine have been cancelled following the unlawful
“referendum”) or at coastal entry points. This, however, might have a negative effect in the
long run on trade, and thus economic rights.
Freedom of expression and access to information
136. In April, some Crimean media outlets moved their editorial offices to mainland
Ukraine due to fear for their personal safety and impediments they were facing in their work.
Examples of such moves are Internet portal “Blackseanews”, TV channel “Chornomorka”
and Internet portal “Events of Crimea”.
33 It is stated that the measure is required due to the deterioration of the situation in the Crimea and invasion of
the armed formations and persons with the extremist views to the territory of Ukraine and military aggression
from the side of the Russian Federation, blocking of the border check points, which prevents from conducting
the control foreseen by the legislation.
30
137. The broadcasting of the Ukrainian TV channels in Crimea has been disconnected
since early March, and is only available via satellite.
138. On 22 April, Lilia Muslimova, press-secretary of the Parliament of the Crimean Tatar
people, announced that broadcasting was no longer permitted for the Crimean Tatar people
on State TV and Radio Company “Krym” about Mustafa Jemilev and Refat Chubarov,
member of the Parliament of the Crimean Tatar people.
139. With the enforcement of legislation of the Russian Federation, Crimean media face
growing difficulties. All media outlets have to now re-register. A reported concern, that needs
to be verified, is that an unofficial requirement for re-registration will be for the editor-inchief
to be a citizen of the Russian Federation.
140. On 10 April, Ukrainian radio stations had to suspend their work in Crimea due to the
newly-occurred legal and technical difficulties in ensuring FM broadcasting on the territory
of the peninsula. These included the six stations belonging to the group “TavrMedia”
(Russian radio, Hit FM, Kiss FM, Radio Roks, Relax, Melodia), UMH Holding (AutoRadio,
Our radio, Europe Plus) and Business Radio Group (Radio Shanson and Favourite radio
Sharmanka).
Freedom of association
141. The HRMMU is concerned about NGOs based in Crimea who will now operate under
the law on foreign agents of the Russian Federation. This will potentially affect their
operations, as it places restrictions on the receipt of foreign funding. There is no such law in
Ukraine.
Freedom of religion
142. Worrisome developments have been reported to the HRMMU regarding freedom of
religion in Crimea after the 16 March unlawful “referendum”. Besides earlier reported attacks
on priests, the pressure on some religious communities seems to persist.
143. On 25 April, the Ukrainian Orthodox Church of Kyiv Patriarchate published an
official statement, expressing deep concern that the authorities in Crimea did not comply with
the written arrangements guaranteeing the safety of the Crimean diocese. In Sevastopol, the
Temple of Martyr Clement of Rome, located on the territory of the Training Unit of the
Ukrainian Navy, has practically been taken away from the Ukrainian Orthodox Church of
Kyiv Patriarchate. The Archimandrite Macarius (ethnic Russian) and the parishioners are not
allowed into church by the Russian military men that guard the territory. The attempts of the
Crimean diocese to meet with representatives of the current city authorities of Sevastopol on
this and other issues failed. Similar situation occurred with the Temple of the Intercession of
the Theotokos (Protection of Virgin Mary) in the village of Perevalny. The priest and
parishioners report harassment by representatives of the Ukrainian Orthodox Church of the
Moscow Patriarchate. For example, on 13 April, during the Palm Sunday celebrations, some
unidentified persons tried to prevent members of the congregation from entering the church,
and attempted to provoke a conflict.
144. Growing pressure on the Muslim communities has also been reported. For example,
the Islamic political group Hizb ut-Tahrir is banned in Crimea pursuant to Russian law,
which has declared the group to be an extremist organisation. Hizb ut-Tahrir had been
functioning in Crimea for over a decade, mainly being active in the spheres of education and
31
politics. Reportedly, most of its members have fled Crimea due to fear of prosecution by the
Russian Federation based on charges of terrorism. In addition, many Crimean Tatars, who
openly practice Islam reported their fears that the Russian authorities will consider them
members of this group and thus prosecute them.
145. On 22 April, the deputy head of the Jewish community “Hesed-Shahar”, Borys
Helman, reported that a memorial to the Holocaust victims in Sevastopol was desecrated by
unknown persons. The inscriptions on the memorial were painted red, with signs of the
“USSR” and Soviet symbols. The case was reported to the police, and is said to be under
investigation.
C. Rights of indigenous peoples
146. Reports from Crimea raise serious concerns about on-going harassment towards
Crimean Tatars.
147. The HRMMU has received reports from the “Standing Committee on inter-ethnic
relations” in Crimea that on 9 April the memorial of Akim Dzhemilev, a famous Crimean
Tatar choreographer, in the village Malorechenskoye (near Alushta) had been desecrated. The
“Chair of the State Council” of the Autonomous Republic of Crimea has instructed police to
respond to any reported acts of vandalism in Crimea.
148. On 19 April, Refat Chubarov, Chairman of the Parliament of the Crimean Tatar
people, and Mustafa Jemilev, leader of the Crimean Tatar People, alleged that representatives
of the ‘self-defence units’ stopped their car and harassed them on the highway Simferopol –
Bakhchisaray near the village Chistenkoe.
149. On 21 April, a group of unidentified men, describing themselves as members of the
‘self-defence unit’ broke into the building of the Parliament of the Crimean Tatar people and
removed the Ukrainian flag, harassing verbally and physically female employees.
150. On 22 April, the Presidium of the Parliament of the Crimean Tatar People issued an
official statement calling on the Crimean authorities to de-escalate the current lawlessness in
Crimea. According to the statement, the first step should be the dissolution of the so called
“Crimean self-defence”. This is seen as the main source of the reported lawlessness, with an
escalation of acts committed towards Crimean Tatars.
151. The same day, on his way back to Kyiv, Mustafa Jemilev was presented with
“Notification of non-permission to enter the Russian Federation until 2019”. Although
initially denied, this was later confirmed by Olha Kovitidi, “Senator” from Crimea in the
Council of Federation of the Russian Federation.
152. On 3 May, Mustafa Jemilev tried to enter Crimea from mainland Ukraine via the
crossing point Armiansk, after having been prevented from boarding the plane from Moscow
to Simferopol on 2 May. Traditionally, Crimean Tatars drive to greet their leader on his
return and entry to Crimea. This time they were met by a number of armed military personnel
without clear identification insignias how blocked them. Later on, some of the Crimean
Tatars crossed to mainland Ukraine. When the procession of people headed by Messrs.
Jemilev and Chubarov tried to cross the border again, they were stopped. Access to Mr.
Jemilev was once again forbidden and he returned to Kyiv. After several hours of waiting,
32
Crimean Tatars returned to Crimea, where they organised a peaceful flash-mob to draw
attention to the incident. On 5 May, the court decision was issued to two persons, who were
fined with 10,000 RUB each, for participating in the flash-mob. Reportedly, the court
hearings were conducted under the strict control of the “Office of the Prosecutor” of Crimea.
153. Furthermore, on 4 May, Refat Chubarov, chairman of Parliament of Crimean Tatar
people was urgently summoned to the “Office of the Prosecutor” of Crimea, Natalia
Poklonskaya. Mr. Chubarov was given notice regarding a “Notification of the unacceptability
of leading extremist activity” dated 3 May. The document reads that the actions of the
Crimean Tatars on 3 May at the crossing point violated Russian legislation. Since they were
coordinated by the Parliament of the Crimean Tatars People, its activity may be considered as
extremist. According to the Federal Law of the Russian Federation Nr.114 FZ due to this
extremist activity, the work of the Parliament of the Crimean Tatars People may be
announced illegal and terminated.
154. This is a deeply worrying development, especially considering other examples34 of
human rights violations regarding Crimean Tatars.
VII. CONCLUSIONS AND RECOMMENDATIONS
155. Based on the HRMMU monitoring conducted during the reporting period, OHCHR
recommends that the Government of Ukraine and the authorities in Crimea review and
implement fully the recommendations of the first report on the situation of human rights in
Ukraine, released on 15 April. In addition, OHCHR makes the following conclusions and
recommendations:
To the Government of Ukraine:
a) Welcome steps taken to support the establishment of the HRMMU and encourage
further cooperation in order to support the Government in addressing human rights
concerns. OHCHR assures the Government of its on-going support in its efforts to
address human rights concerns in line with international standards, and within the
framework of the UN General Assembly resolution 68/262 and the Geneva Agreement of
17 April 2014.
b) The deterioration in the east of Ukraine – the unlawful activities of the armed groups,
including the seizure and occupation of public and administrative buildings, and
numerous human rights abuses, inter alia, unlawful detentions, killings, torture/illtreatment
and harassment of people – remain the major factor in causing a worsening
situation for the protection of human rights. A prompt, impartial and comprehensive
investigation should be undertaken into the events and violence in the east.
c) All armed groups must disarm and their unlawful acts brought to an end, including the
immediate release all those unlawfully detained, and the vacation of occupied public and
administrative buildings, in line with the provisions of the 17 April Geneva Agreement.
Those found to be arming and inciting armed groups and transforming them into
paramilitary forces must be held accountable under national and international law.
34 HRMMU is verifying reports that Crimean Tatars working in law enforcement or holding important public
positions are being pressured to submit letters of resignation.
33
d) Security and law enforcement operations must be in line with international standards
and guarantee the protection of all individuals at all times. Law enforcement bodies must
ensure that all detainees are registered and afforded legal review of the grounds of their
detention.
e) The violent clashes in Odesa on 2 May resulted in the deaths of 46 people, with over
200 injured and 13 remaining missing. It appears to have hardened the resolve of those
opposing the Government, and deepened division between communities. There is a need
for an independent investigation into the violent events of that day. The perpetrators must
be brought to justice in a fair and non-selective manner.
f) Primarily as a result of the actions of organised armed groups, the continuation of the
rhetoric of hatred and propaganda fuels the escalation of the crisis in Ukraine, with a
potential of spiralling out of control. Acts of hate speech must be publicly condemned and
deterred. Political leaders should refrain from using messages of intolerance or
expressions which may incite violence, hostility or discrimination; but they also have a
crucial role to play in speaking out firmly and promptly against intolerance,
discriminatory stereotyping and instances of hate speech35.
g) There are increasing reports of harassment and intimidation of journalists. These
should be investigated and addressed in order to ensure accountability and protect
fundamental human rights and freedoms. Freedom of expression must be ensured
allowing journalists the space and security to carry out their work objectively.
h) There is an increasing tendency in some critical urban areas for rallies of opposing
groups to be held simultaneously, often leading to violent confrontations and clashes.
This trend can be reverted by replacing incitement to hatred with the culture of tolerance
and mutual respect for diverging views. Peaceful demonstrations must be permitted, as a
matter of international law, and also as a way for people to express their opinion. Law
enforcement agencies must facilitate peaceful assemblies, ensuring the protection of
participants, irrespective of their political views. In this context, law enforcement officers
must receive adequate training for handling rallies and protests in line with the
international human rights standards.
i) The law enforcement reform package should aim to reinforce the rule of law; to depoliticise,
de-militarise, de-centralise and strengthen the structure of the law enforcement
bodies through accountability, transparency, and closer cooperation with the public and
local communities, as well as professionalising the staff.
j) The Law “On the restoration of the credibility of the judiciary in Ukraine” must be
brought in line with international norms and standards.
k) The announced national consultations on the discussion of the amendments to the
Constitution of Ukraine on the decentralization of state powers should be advanced in
accordance with the principle of equal inclusion of all, including national minorities and
representatives of civil society, and ensuring equal role for women. A system of checks
35 See the Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that
constitutes incitement to discrimination, hostility or violence (A/HRC/22/17/Add.4, appendix, para. 36).
34
and balances should be fully provided. If conducted in a broad, consultative and inclusive
manner, this may be a positive step leading to the de-escalation of tensions and genuine
national reconciliation.
l) The adoption of measures, including making official public commitments on minority
protection and ensuring participatory and inclusive processes in public and political life -
reassuring all members of minorities regarding respect for their right to life, equality,
political participation in public affairs and public life, as well as their cultural and
linguistic rights would significantly ease tensions within the Ukrainian society.
m) The Central Election Commission of Ukraine has set out that the presidential elections
will be conducted whatever the circumstances and that the results will be legally binding.
OHCHR is concerned that the presidential election campaign is being accompanied by
intolerance from certain parties, with cases of hate speech being expressed and
presidential candidates being harassed and physically attacked, which could lead to more
social tension and violence. Free, fair and transparent presidential elections – in line with
relevant international standards - are an important factor contributing towards the deescalation
of tensions and the restoration of law and order to enable the peaceful
development of the country.
To the authorities in Crimea:
n) Reaffirming UN General Assembly resolution 68/262, entitled “Territorial integrity of
Ukraine”, measures must be taken to protect the rights of persons affected by the
changing institutional and legal framework, including on issues related to citizenship,
right of residence, labour rights, property and land rights, access to health and education.
o) At variance with UN General Assembly resolution 68/262, the legislation of the
Russian Federation is being enforced on the territory. In addition, its differences in
comparison with Ukrainian laws already have and will continue having serious
implications for the enjoyment of human rights and fundamental freedoms, including
freedom of expression and media as well as freedoms of peaceful assembly, association
and religion.
p) All acts of discrimination and harassment towards members of minorities and
indigenous peoples – in particular Crimean Tatars – and other residents who did not
support the “referendum” must come to an end, and all their human rights must be
guaranteed.
q) Agree to the deployment of independent and impartial human rights monitors,
including by the HRMMU.
35
VIII. ANNEX
Concept Note
UN human rights monitoring in Ukraine
Introduction
This concept note proposes the objectives and activities of enhanced OHCHR engagement in
Ukraine through the immediate deployment of a human rights team.
Rationale for OHCHR’s engagement
OHCHR has been closely following developments in the country with the High
Commissioner for Human Rights publicly voicing concerns regarding human rights
violations, including the restrictive legislation adopted by the Parliament on 16 January,
urging inclusive and sustainable dialogue, and calling for investigations into cases of killings,
disappearances and other violations. On 21 February, the Special Procedures of the UN
Human Rights Council also issued a press release condemning the excessive use of force and
calling for proper and impartial investigation into the reported incidents of human rights
violations. To date OHCHR’s engagement in Ukraine has been through its Human Rights
Adviser within the UN Resident Coordinator and UN Country Team, supported by its
geographical desk team in Geneva.
The deployment of an OHCHR team to Ukraine is fully consistent with, the requirements of
the Secretary-General’s Rights Up Front Plan of Action. The Plan of Action also aims to
ensure that UN Country Teams are provided with the support they require to respond to the
human rights context, including through the deployment of human rights expertise.
OHCHR’s engagement, and provision of information and analysis of the human rights
situation, will further allow the UN to undertake further steps to respond to an emerging crisis
in Ukraine as set out in the Plan of Action.
Objectives
􀁸 Monitor the human rights situation in the country and provide regular, accurate and
public reports by the High Commissioner on the human rights situation and emerging
concerns and risks;
􀁸 Recommend concrete follow-up actions to relevant authorities, the UN and the
international community on action to address the human rights concerns, prevent
human rights violations and mitigate emerging risks;
􀁸 Establish facts and circumstances and conduct a mapping of alleged human rights
violations committed in the course of the anti-government demonstrations and
ensuing violence between November 2013 and February 2014;
􀁸 Establish facts and circumstances related to potential violations of human rights
committed during the course of the deployment.
Activities
36
Monitoring, reporting and advocacy – The submission of regular updates and analysis to the
High Commissioner on the human rights situation and principal concerns, with a specific
focus on, and identification of, issues likely to have an impact on the overall security
situation in Ukraine. This shall include recommendations for action to be taken by the
relevant authorities, the international community and the UN in the country, and steps
necessary to provide protection for persons at risk.
Coordination and collaboration with other human rights monitoring activities – The team will
actively coordinate and collaborate with other human rights monitoring capacity within the
country and deployments by other international organisations (including OSCE-ODIHR,
CoE). More detailed working arrangements with these actors on the ground will have to be
further elaborated, especially with respect to public reporting.
Advisory role to the RC and UNCT – The team, with the support of the Human Rights
Advisor, will provide advice and recommendations to ensure the integration of a response to
the key human rights concerns within the strategy of the UNCT. This will include advice to
the Resident Coordinator (RC) on advocacy measures to be undertaken with key national
actors in relation to human rights concerns, and may undertake direct advocacy with specific
partners and stakeholders, in coordination with the RC and OHCHR. The team will also
provide guidance to relevant members of the UNCT, and input to UNCT meetings.
Composition and deployment of the mission
The mission will be conducted by a team of seven human rights officers, headed by one P5
team leader, and made up of six P4/P3 human rights officers, security and administrative
support staff, and supported by 25 national staff.
The head of the team will be based in Kiev and be responsible for the staff in five other
locations of the country: initial planning has identified Lviv, Odessa, Simferopol, Donetsk
and Kharkiv. OHCHR will aim to co-locate OHCHR team members within UN premises in
these locations, if available, or at the offices of other international organisations, including
OSCE-ODIHR.
Security
OHCHR Safety and Security Section will assist the team in coordinating its activity with UN
DSS and will provide advice on security related aspects. A security officer will be included as
a member of the team.
Dates of the mission
The suggested timeline for this mission is from mid-March, ensuring continuity of an
increased human rights presence after ASG Simonovic's departure, and for a period of up to
three months.
Funding
Funding will initially be provided from the Secretary-General’s unforeseen and extraordinary
expenses, with additional funding sources to be sought.
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Head Office Sub-Office Sub-Office
. + covering Crimea