The International Commission of Inquiry on Darfur and the Application of International Humanitarian Norms

Abstract

Although the UN International Commission of Inquiry on Darfur found copious violations of human rights law and humanitarian law in the Sudan, it determined that there had been no specific intent to commit genocide. This chapter analyzes several related facets of the Commission’s findings, both on their own merits and in comparison to the case law of the International Court of Justice, the International Criminal Court, and ad hoc criminal tribunals. These include the use of subjective criteria to classify victims as a protected people under the Genocide Convention, the relationship between considerations of motive and the dolus specialis, the attribution of paramilitary activities to the State in the absence of a clear governmental policy of genocide, and the value of distinctions between genocide and other atrocities such as ethnic cleansing. The authors ultimately connect inconsistent aspects of the Commission’s reasoning on the genocide question to its stipulation that it is “not a judicial body,” a very restrictive understanding of its role that limited cohesion with the standards of other legal bodies involved in the ongoing crisis.