Skip to main content | Skip to navigation


October 14, 2005 -- Vol.10, No.1

Report of the International Commission of Inquiry on Darfur: A critical analysis (Part II)
by Eric Reeves

This article was originally published on February 6, 2005 at
Reprinted in IDEA with the Author's permission.

The report of the International Commission of Inquiry on Darfur, delivered to UN Secretary-General Kofi Annan on January 25, 2005 (the date of record for the document), has apparently served as catalyst for several important public pronouncements by UN officials and other international actors, including a potentially highly significant statement by NATO Secretary-General Jaap de Hoop Scheffer:

“NATO Secretary-General Jaap de Hoop Scheffer on Thursday suggested the alliance could play a supporting role in the Sudanese region of Darfur, but stressed that neither the African Union nor the United Nations had asked it to do so.” (AP, February 4, 2005)

While such potential commitment must be welcomed, and may conceivably represent a turning point in international response to ongoing genocide in Darfur, it has the overwhelming quality of belatedness. So, too, the Report of the Commission of Inquiry Report on Darfur: despite the authority and fullness with which it establishes a clear pattern of massive, state-sponsored criminal violations of international law in Darfur on the part of the Khartoum regime and its Janjaweed allies, we are finally told very little that we did not already know from other human rights reporting going back almost two years. For all the usefulness of the Commission’s ability to render unambiguously the lines of military, security, and political authority leading from the vast human destruction in Darfur directly into the highest levels of the National Islamic Front, this is not so much new as consolidated information.

This belatedness is all the more dismaying in light of the tendentious and badly argued conclusion offered by the Commission authors in their brief section (Paragraphs 489-522) concerning a genocide determination for Darfur (see Part I of this analysis [February 2, 2005] at: Indeed, despite the overwhelming evidence of genocide already clearly in hand, the Commission authors engage in a perverse exercise of specious legal reasoning that puts political considerations over the importance of describing in accurate international legal terms the ghastly realities of Darfur.

Attempting to finesse the controversial issue of genocide by arguing that there is insufficient evidence of “genocidal intent” on the part of the Khartoum regime (though some “may entertain a genocidal intent” [Para. 520]), the Commission authors find themselves caught in various forms of egregious logical self-contradiction. They are also guilty of evidently deliberate omissions of relevant evidence and reports, and do not pursue important lines of forensic investigation---particularly of widely reported mass executions of targeted African populations.

Of particular note is the Report’s corrosively self-destructive confusion over the difference between “motive” and “intent” with respect to the crime of genocide as defined by the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide. Here the Commission authors have, in conspicuous fashion, confused the essential distinction with which they have themselves appropriately begun their discussion of genocide:

“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 group [as defined by the terms of the 1948 Genocide Convention].” (Para. 493)

Thus it must be re-emphasized that it matters not whether we decide that the Commission authors are correct in arguing that Khartoum’s primary “motive” in orchestrating ethnically-targeted civilian destruction is “counter-insurgency warfare”---or is rather, as many would argue, an effort to reshape the demographic and political realities of Darfur, favoring specific Arab tribal populations as a means of consolidating central political power. The issue is not, as the authors themselves explicitly state, Khartoum’s “motive,” but whether there is “intent to destroy a group”--- whatever the motive.


Whence such tendentious and illogical thinking?

As suggested in Part I of the present analysis, there is very considerable evidence that this relatively brief section (only 9 of 176 pages, and inefficiently developed) was deeply constrained by political considerations irrelevant to a determination of genocide or “genocidal intent.” Indeed, the political context for this determination was so extensive, and in the event so clearly defining, that it bears some detailed rehearsal. Here we encounter terribly familiar echoes of international failure to speak honestly about the nature of the Rwandan genocide of 1994.

Perhaps the largest political consideration within the Commission was a crude anti-Americanism, based on the (erroneous) perception that the many voices that have argued for a finding of genocide in Darfur are somehow peculiarly American in origin or inflection. This is simply not true. The Parliament of the European Union declared in September 2004, by a vote of 566 to 6, that the realities in Darfur were “tantamount to genocide.” The Defense Minister of the Government of Germany declared, speaking as an official of the government, that the realities in Darfur are “genocide.” Yad Vashem in Jerusalem has declared that the vast, ethnically-targeted human destruction in Darfur is genocide. So, too, have Justice Africa (UK) and Africa Confidential (UK), General Romeo Dallaire of Canada (UN peacekeeping force commander in Rwanda), and a great many international genocide scholars.

To be sure, many of the most prominent voices declaring Darfur’s realities to be genocide are indeed American: the Committee on Conscience of the US Holocaust Memorial Museum; Physicians for Human Rights; Africa Action; the US Committee for Refugees; the US Congress (in a unanimous, bipartisan, bicameral resolution of July 2004); the Bush administration (both President Bush and former Secretary of State Colin Powell). Other powerful American voices declaring genocide in Darfur include William Schultz, Executive Director of Amnesty International/USA (John F. Kennedy Library [Boston], December 9, 2005) and Sudan expert John Prendergast of the International Crisis Group.

But this is not an “American” determination, despite the politics at the UN and in other quarters that have made it out to be such. Here some humanitarian and international organizations are especially culpable in working to create this impression, and none more so than Doctors Without Borders/Medecins Sans Frontieres-France, which despite heroic work in Darfur’s humanitarian theater has been guilty of a series of scandalously ill-informed and intellectually shoddy comments, including from the head of MSF-France, Jean-Hevre Bradol.

But comments by people such as Bradol are finally much less consequential than the political reluctance of the African Union to declare what all evidence suggests is the case: genocide is again occurring in Africa, and African nations are unwilling to stop it, at least in part out of deference to an assertion (in this case by Khartoum) of national sovereignty. This excessive deference to claims of national sovereignty reflects some of the most discouraging features of Africa’s inability to function effectively as a continental organization of countries.

Tragically, this inability is also reflected in the painfully slow and uninspired deployment of African Union monitors/protection forces to Darfur. The most recent deployment (this past week) still leaves the contingent on the ground at approximately 1,400---far short of the planned 3,500 to 4,000 personnel, a deployment that has now taken several months despite the overwhelming urgency of Darfur’s crisis. Western countries bear some financial responsibility for this shameful belatedness, but with every passing day the burden shifts more fully to the AU. There is simply no evident will to deploy rapidly and forcefully.

Other political determinants governing the genocide determination in the Report include the vehement refusal of the Arab League to accept even the possibility that genocide is being committed by an Arab government. Egypt has been particularly effective behind the scenes in working to forestall such a judgment, but has had significant help from both Algeria and Libya. Indeed, Libya orchestrated a summit in mid-October 2004 that brought together the heads of Chad, Nigeria, Libya, Egypt and Khartoum’s National Islamic Front. At the conclusion of this diplomatically expedient summit, President IDeby of Chad, Libyan President Ghaddafi, Egyptian President Mubarak, and Nigerian president (and AU Chairman) Obasanjo closed ranks on Darfur:

“In a joint statement issued after the overnight meeting the regional leaders stressed their ‘rejection of all foreign intervention in this purely African question.’” (Agence France-Presse, October 18, 2004)

If we wish to understand the belatedness of AU deployment to Darfur, we can do no better than to consider the terrifying implications of this joint statement---“rejecting all foreign intervention in this purely African question”---issued almost a third of a year ago.

Particularly disappointing has been Obasanjo’s bowing to intense pressure from various quarters within the Arab League, issuing ultimately in his judgment that what has occurred in Darfur is not distinct from other “African problems” (Nigeria of course has a very large and increasingly radical Islamic population). Obasanjo’s expedient comments on the meaning of the term “genocide” in international law and its relevance for the realities of Darfur have been consistently crude, even thuggish.

South Africa has also failed badly in demonstrating leadership in speaking honestly to the Khartoum regime: President Thabo Mbeki, during a recent address to the NIF parliament, spent his time excoriating the actions of Winston Churchill a century ago, and none holding accountable the genocidaires before him.

There are other significant features of the political context for the UN-appointed Commission’s manifest failure to address in perspicuous or even coherent fashion the issue of genocide. We should certainly recall that Secretary-General Kofi Annan declared very publicly on June 17, 2004 (“based on reports that I have received”): “I am not ready to describe [Darfur] as genocide or ethnic cleansing yet” (Voice of America, June 17, 2004; The Globe and Mail [Canada], June 19, 2004).

Of course if was also Annan who had invoked Darfur explicitly on the grim tenth anniversary of the Rwandan genocide (April 7, 2004), and who had solemnly declared the need to be “serious about preventing genocide.” Annan had gone so far as to warn of the need for military intervention in Darfur, evidently as part of this professed “seriousness.” But two months later, Annan would declare that he had seen nothing that allowed for a determination of genocide or even the euphemistic “ethnic cleansing.” This was so despite the dramatic public statements of senior UN officials working directly on the Darfur crisis.

Jan Egeland, UN Under-Secretary for Humanitarian Affairs, had repeatedly and emphatically referred to the catastrophe in Darfur as “ethnic cleansing.” Indeed, three weeks prior to Annan’s saying he had seen nothing that would suggest genocide or “ethnic cleansing,” Egeland referred to a “scorched-earth campaign” of “ethnic cleansing” in Darfur (Reuters, May 27, 2004). Egeland had first referred to the actions of Khartoum and its Janjaweed allies as “ethnic cleansing” almost two months earlier (Reuters, April 4, 2004). We must wonder whether Secretary-General Annan and Under-Secretary for Humanitarian Affairs Egeland were reading the same “reports,” or were assessing the same evidence---and we must certainly wonder to what extent the Commission authors are protecting Annan from his own previous public statements.

Also of significance here are the professional assessments of Darfur offered in March 2004 by the UN humanitarian coordinator for Sudan, Mukesh Kapila. Again the Rwandan genocide emerges as an inevitable part of the context for Kapila’s searing honesty. For we are obliged to bear in mind Annan’s shameful performance as head of UN peacekeeping operations during the Rwandan genocide, and his appalling failure to respond to the many warnings of impending genocide that had come in a steady stream since February 1994, warnings which became a cascade beginning on April 6, 2004 with the downing of the plane carrying Rwandan President Juvenal Habyarimana:

“[Kapila] said the violence, which he described as 'ethnic cleansing', was mostly carried out by Arab militias known as Janjaweed who were supported by government forces. ‘Under those circumstances one can only conclude that [the ethnically-targeted violence] is state-sanctioned.’” (Reuters [Khartoum], March 26, 2004)

Kapila, who was nearing the end of his tenure as humanitarian coordinator for Sudan at the time, had felt free to issue a series of remarkably unconstrained statements about the state-sanctioned, ethnically-targeted human destruction in Darfur; his statement to Reuters of March 26, 2004 was in part a response to the regime’s characterizing his previous remarks concerning Darfur as “a heap of lies” (BBC, March 23, 2004). In these remarks Kapila had likened the deliberate human destruction in the region to the Rwandan genocide he himself had witnessed:

"‘The only difference between Rwanda and Darfur now is the numbers involved’ [said Kapila]. ‘[The slaughter in Darfur] is more than just a conflict, it is an organised attempt to do away with a group of people.’” (UN Integrated Regional Information Networks [IRIN], March 22, 2004)

And most tellingly, Kapila declared:

“The pattern of organised attacks on civilians and villages, abductions, killings and organised rapes by militias is getting worse by the day and could deteriorate even further. ‘One can see how the situation might develop without prompt [action]...all the warning signs are there.’" (UN IRIN, March 22, 2004)

Of course there was no “prompt action”; indeed, almost a year later, there is still no international response that begins to correspond to the vast human need and desperate insecurity in Darfur. This has all been while Annan was either offering what is now transparently empty rhetoric about “preventing genocide” (April 7, 2004) or effectively denying the highly informed, public declarations by his Under-Secretary for Humanitarian Affairs and the UN’s humanitarian coordinator for Sudan (June 17, 2004).

There is an instinct among many within the UN, and those to whom the UN political organization most naturally reaches out, to protect Mr. Annan. Some of this is institutional loyalty; some is a perceived need to protect the UN head in time of crisis (the oil-for-food scandal, the heavy-handed intervention by Annan in a UN proceeding involving sexual harassment charges against a close and long-time aid, and increasing US criticism over failure to lead the Security Council in effective fashion on Darfur). This “instinct of protection” might very reasonably be understood as constraining a determination with the potential to complicate Annan’s political situation at the UN. For a finding of genocide in the Report would have created extraordinary difficulties, given obligations stipulated in the 1948 Genocide Convention (in particular, Articles 8 and 9).

Finally, the political context for a genocide determination includes the potent threat of a Chinese veto in the Security Council. Given the explicit obligations of the UN under the terms of the 1948 Genocide Convention, and China’s clearly expressed determination to protect the Khartoum regime (its indispensable partner in strategically important oil production and development in southern Sudan), the Commission undoubtedly felt political pressure not to find genocide in Darfur. For this would allow “any contracting party [to] call upon the competent organs of the UN to take such action under the Charter of the UN as they consider appropriate for the prevention and suppression of acts of genocide” (Article 8 of the 1948 Genocide Convention).

In short, the Commission had a clear political motive to reach “only” to the threshold of “crimes against humanity,” and to export the actual prosecution of these crimes to the International Criminal Court by means of Security Council referral. To be sure, such referral may be vetoed by China (or the US or Russia). But this leaves the UN without the ongoing task of responding to a genocide determination, and without any need for prolonged consideration of “action appropriate for the prevention and suppression of acts of genocide.”


Though not directly related to the question of what political context defines the Commission’s Report, there are a number of serious omissions and errors of fact that have been brought to the attention of this writer in recent days by Darfuris, by human rights officials and workers, and others troubled with the final language of the Report. These are in addition to the significant omissions and errors of fact discussed in Part I of this analysis (February 2, 2004 at

For example, the anthropological understanding informing the Report is particularly weak and facile. A Darfuri with an extensive UN human rights background offers this pointed critique of the Report, here edited very slightly for clarity (it should be emphasized that we hear far too little from such informed Darfuri voices in the 176 pages of the Report).

“In Paragraph 508 the Report states:

‘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.’ (Para. 508)

“I don’t think that any serious-minded person could issue such an ignorant statement. First, according to the most basic anthropology texts written by Sudanists and Sudanese, these tribes belong to ethnic groups different from the so-called Arab tribes of Darfur. Second, anyone who has spent a few days in Darfur would know that if you have a person's name and the area he or she comes from, you can tell which tribe that person belongs to. Third, any Darfurian can tell whether another Darfurian comes from an Arab tribe or not. The degree of accuracy is almost 100%.”

“Fourth, it is not true that all the Fur, Masalit and Zaghawa speak Arabic. These three tribes have their own languages (volumes have been written about these languages by Sudanese and non-Sudanese scholars). The percentage of Fur, Zaghawa and Masalit who speak Arabic is the same as that of Southern Sudanese. It is only the urbanized members of these tribes who speak Arabic. Even among these, their accent tells which tribe they come from. Finally, Islam as espoused by these African tribes is highly Africanized and is very distinct from the Islam espoused by Arabized Sudanese.” (received by this writer via email, February 3, 2005)

No doubt there are issues of controversy among anthropologists, linguists, and other academic students of Darfur. But these views of a highly-educated native Darfuri comport extremely well with numerous others reports coming to this writer over the past fifteen months. And it must be reiterated that Darfuri voices are deeply inadequately represented in this Report.


It is important that readers of the Report understand that despite commentary on mass executions (Para. 274-75, 277, 293-95), there has been a serious failure to investigate such executions on the part of the Commission. This writer has received from numerous Darfuri sources consistent intelligence that strongly suggests the Commission was able to investigate sites of mass graves only after Khartoum had declared these areas “secure.” And of course, “security” is simply a function of Khartoum’s having fully sanitized the grave-sites.

The US government (the State Department, the Defense Department, and the Agency for International Development), as well as other international actors, have long possessed highly authoritative intelligence making unambiguously clear Khartoum’s devotion of substantial ground and aerial transport assets to body-removal and the obliteration of evidence of atrocities. Some of this intelligence has been gathered by means of satellite reconnaissance. None of this is discussed by the Commission authors, though it is very well known within diplomatic and international political circles.

Moreover, the Commission authors have little to provide in the way of authoritative new forensic evidence, despite the nominal access claimed in the Report. As an extremely knowledgeable Darfuri has reported to this writer:

“The Commission’s investigators visited suspected mass grave sites only after the government declared those areas secure. The government did not give security clearances until it removed all the mass graves, took the bodies to the desert, and destroyed them. Some of the security documents obtained by local human rights groups indicate the names of security officers who were involved in the removal of the mass graves and the destruction of the bodies.”

“These documents are widely available even to exiles like myself. The investigators never visited any location that the government did not grant them the permission to visit. Certain areas such as Wadi Saleh, where some of the most gruesome atrocities took place, have not been visited by the commission or any of its investigators.” (email received by this writer, February 4, 2005)

The reference to “security documents” is far from hyperbolic. Other Darfuris in exile, including former governor of Darfur Eltigani Ateem Seisi, have provided to this writer what gives all appearance of being an extraordinary internal document confirming the efforts at obliterating evidence of mass graves. A translation of the document reads:

[“Intelligence Report Number 310, to the Director of Intelligence and Security Department”]

“Based on your message that was coded ‘very secret’ [or ‘highly confidential’] issued on August 6, 2004 concerning removal of nine mass graves located in the states of Darfur, and killing everybody suspected of releasing the information [about mass-grave removal] or becoming a witness for the committees that are sent by the UN, European Union or African Union to investigate the mass graves, I would like to inform you that, with the exception of only one mass grave located in Wadi Saleh in West Darfur, which could not be reached, the other eight mass graves were completely removed, [the bodies] transported and burnt by the two committees of the [government] security and Al-Tajjamu’ Al-‘Arabi [Arab Alliance]. The secretary-general [of the Arab Alliance] is under the strong guard of our forces, which do not know impossibilities under the sun.”

“Finally, I would like you to contact the administration of the cabinet of military operations to send a plane for transporting the above-mentioned mass grave which contains 1,200 bodies from Wadi [Saleh].” (Received by email from multiple Darfuri sources, January 2005; an electronically scanned version of the Arabic original is available upon request in PDF format)

Absent more knowledge about the provenance of this document, caution must be exercised in assessing its implications for the Report and what it tells us about the failures of investigation on the part of the Commission. But we nonetheless know a great deal about the Wadi Saleh massacres (West Darfur, south of Zalingei), especially from the reports of Human Rights Watch and Amnesty International. (See especially from Human Rights Watch: “Darfur Destroyed: Ethnic Cleansing by Government and Militia Forces in Western Sudan,” May 2004 Vol. 16, No. 6 [“Mass Executions of captured Fur men in Wadi Salih,” page 21 ff.,]).

Moreover, with the assistance of Darfuris in exile, this writer was able to speak by telephone (April 25, 2004) with the key surviving witness of the Wadi Saleh massacre reported by Human Rights Watch. This telephone communication occurred while the witness in question was physically present in Nyala (South Darfur), attempting to enter the security ambit of the UN compound. Though this occurred at precisely the time that a UN human rights investigating team had finally secured access to Darfur (having encountered weeks of intransigent refusal from Khartoum), and though the team was provided with contact information by this writer (information conveyed from Washington, DC to the US embassy in Khartoum to UN personnel in Nyala, which in turn secured the safe entrance into the UN compound of the Wadi Saleh witness), the UN human rights team did not investigate at Wadi Saleh, despite the witness’s life-risking efforts.

That the more recent UN Commission of Inquiry also failed during its time in Darfur to investigate Wadi Saleh, or was content to visit only sanitized sites---despite abundant evidence of a specific, geographically identifiable mass atrocity---suggests a deeply troubling willingness to be guided by Khartoum’s security assessment in gathering critical forensic evidence. Though the Commission authors assert that “generally speaking the attitudes of the Government [of Sudan] authorities towards the Commission has been cooperative” (Para. 29-36), this claim is simply not credible given the failure to investigate Wadi Saleh.

For while the Commission instances several specific examples of Khartoum’s failure to cooperate, it makes no mention of denied access to Wadi Saleh or other sites of reported mass executions and atrocities. Given the overwhelming relevance of evidence that might be gathered from unfettered forensic access to sites such as Wadi Saleh, we must be deeply concerned about the integrity of the Commission’s methodology and commitment to finding all evidence of genocide in the form of state-sponsored, ethnically-targeted mass executions. Surely this has the most consequential bearing on a determination of whether there is indeed “genocidal intent” on the part of members of Khartoum’s National Islamic Front regime.


The Commission authors would have their readers believe that there are only jurisprudential reasons for their decision not to name those senior Khartoum officials who are clearly implicated in vast and numerous “crimes against humanity” identified in the report (Para. 523-563). This claim is belied by an excellent piece of investigative journalism from the Los Angeles Times: their UN correspondent was able to report, even prior to the public release of the Commission Report (and on the basis of evidently authoritative diplomatic contacts within the UN):

“The commission, headed by Antonio Cassese, an Italian judge, had to reconvene after the report was completed because of disagreements over whether to identify implicated government officials who may be in charge of implementing Sudan's new peace plan with its southern rebels, said diplomats familiar with the discussions.” (Los Angeles Times, January 29, 2005)

This writer identified in Part I of the present analysis two senior officials who are clearly implicated by virtue of the Commission’s account of chains-of-command within the NIF political, security, and military structures: Major General Saleh Gosh, director of the National Security and Intelligence Service, and Abdel Rahim Hussein, Minister of the Interior and Special Representative to Darfur for President Omer Beshir. The Los Angeles Times reporting strongly suggests that to this list of senior NIF officials subject to indictment for (at “least”) crimes against humanity we must add First Vice President Ali Oman Taha, and Minister of Federal Affairs (and special advisor to President Omer Beshir) Nafie Ali Nafie. Both men are extremely senior and powerful within the NIF, and both are slated to play central roles in “implementing Sudan's new peace plan with its southern rebels” (Los Angeles Times, January 29, 2005).

Moreover, all four of these NIF officials are named in an important US Congressional report (October 22, 2004) addressing responsibility for genocide in Darfur. And all four almost certainly appear on a list of Khartoum genocidaires prepared by the US State Department. This list has not been made public, despite the explicit demand in the Comprehensive Sudan Peace Act (signed into law in October 2004) that the US State Department should “identify the perpetrators of such violations with a view to ensuring that those responsible [for genocide in Darfur] are held accountable” (Section 12, subsection [a]). This list presently exists, but has not been publicly released by the State Department for fear of disrupting the north/south peace process.

Notably, if unsurprisingly, Vice President Taha yesterday declared that Khartoum would not allow trials abroad for any Sudanese citizens, including trials at the International Criminal Court urged by the Commission of Inquiry:

“Sudan will not allow any citizen to be tried abroad in connection with suspected crimes against humanity in the war-torn western region of Darfur, First Vice-President Ali Osman Taha was quoted by the press as saying. Taha, speaking at a meeting with officials in South Darfur state on Friday, was referring to an international discussion over whether Sudanese suspected of such crimes be tried by the International Criminal Court (ICC) or by a special tribunal. ‘The government is opposed to trying any Sudanese official or ordinary citizen involved in the Darfur incidents outside the Sudan,’ Taha was quoted as saying.” (Agence France-Presse, February 5, 2005)

Taha, who is slated to address the UN Security Council in New York this Tuesday (February 8, 2005), is all too predictably preparing the ground for resisting his own prosecution at the ICC. Given the brilliant and brutal suvivalism that has marked the NIF since its seized power in Sudan by military coup in June of 1989, no one should underestimate the willingness of Taha and his fellow genocidaires to flout any UN referral of Darfur atrocities to the ICC, as recommended by the Commission of Inquiry.

What all this should suggest is that political calculations about the behavior of the NIF are entirely inappropriate for a Commission of Inquiry into matters of genocide, crimes against humanity, and other egregious violations of international law. That this most obvious matter of jurisprudential integrity was ignored, according to the Los Angeles Times, is a matter deeply troubling in its own right and all too revealing of the nature of this Commission.


The Report of the International Commission of Inquiry on Darfur (Geneva, January 25, 2005) is a document fatally compromised in its moral and intellectual integrity. It addresses the essential question of genocide in Darfur with neither logical rigor nor adequate commitment to the evidence available. It emerges from a political context that has evidently motivated several extremely unwise decisions about both a genocide determination and the naming of Khartoum’s genocidaires.

The people of Darfur were owed much more---much, much more. The international community has shamefully devised yet another means of failing the victims of genocide.

Eric Reeves
Smith College
Northampton, MA 01063


Copyright © Eric Reeves