THE INTERNATIONAL CITIZENS’ TRIBUNAL FOR SUDAN

IN THE TRIAL CHAMBER

• JUDGMENT
• Judgment (Judge Michael Newton)
• Judgment (Judge Gloria White-Hammond)
• Judgment (Judge Obang O. Metho)
  
• Opening Statement for Prosecution Matas
  
• Opening Statement for Prosecution Kilgour
  
• Opening Statement for Defense
  
• Closing Statement for Prosecution
• Closing Statement for Defense

           Concurring Opinion of Judge Michael Newton
Vanderbilt University Law School

“Darfur” is a simple word that captures the deepest desire of the people around the world to live in peace with dignity and human rights.  For the purpose of this judgment, the word “Darfur” captures the core imperative of governments around the world.  Government exists as a human institution to protect the people entrusted to its sovereign authority, both from threats within its borders and from threats without.  The most basic and most essential purpose of government is to secure the liberty and safety of the citizens entrusted to its sovereign authority.  Government is not the most efficient guardian of social stability and personal welfare because it can never supplant the bonds of family and kin.  Government does bear an essential and irreplaceable role in securing a prosperity and overall welfare that cannot be achieved by tribes or families acting on their own.  Despite the proper role of government, we have heard testimony today of government forces celebrating with Janjaweed the supposed victories over innocent civilian villages.    

The Bench has heard testimony documenting a record of human suffering in the Darfur region that shocks the conscience and calls into question the very idea of civilized society.  The evidence establishes a coordinated series of military and para-military campaigns conducted against the non-Arab peoples beyond a reasonable doubt.  This pattern of criminality on the ground in Darfur marks one of the most concerted and tragic series of events in the history of human affairs.  The families of Darfur have endured nearly unendurable hardships.  Their suffering in the face of concerted attacks supported by the military structure of the state has moved people from around the world.  The organization and implementation of the attacks in Darfur demonstrate a criminal purpose on a sustained scale.  Testimony credibly established that refugees who survived to arrive in camps along the border reported the same tactical details in describing the attacks on their homes and villages.  The evidence establishes that these refugees could not have fabricated the same details because of their geographical dispersion and the timeframe in which their eyewitness accounts were collected.  The sustained series of attacks by Janjaweed supported by Sudanese military forces had to have been executed as part of planned and orchestrated course of conduct, particularly in light of the logistical coordination and command coordination needed to launch such attacks nearly simultaneously.

The crimes of genocide, crimes against humanity, and war crimes committed against the innocent families of Darfur transcend the bounds of civilized discourse because they were of such a savagery that they touch the lives of ordinary people around the world.  Family after family has been torn apart across the wide swath of Darfur as their homes have been bombed, their loved ones tortured or raped, and they have been denied the relief that the outside world has offered.  Widows grieved for their loved ones, then became themselves the victims of the unrelenting cruelty backed by the power of the defendant’s government.  These people were starved, raped, tortured and relocated precisely because of their ethnic identity.  The non-Arab tribes of the Darfur region are made distinct by their living patterns and community organization.  They are black Africans by race and have been told repeatedly by attackers that they are subject to attack on that basis as well. They are identifiable as a distinct ethnic group because they are a stable and permanent component of the population whose membership is determined by birth and they are united by language as well as custom, tribe, belief and traditional patterns of life. 

President Omar Hassan El-Bashir shared a common criminal purpose to eliminate the non-Arabic peoples of the Darfur region and has taken specific and deliberate official actions designed to further the criminal purpose of the group.  The government deliberately exploited the preexisting ethnic tensions in Darfur by arming and supporting the Janjaweed with the intent that they would assist him in achieving the elimination of the non-Arab segment of the population.  The defense quite properly points out that there might have been a range of personal motivations for the individuals who actively participated in such a range of criminality – greed, racism, ethnicism and the desire for resources were suggested.  The record should note that the intentional destruction of wells and other resources belies these motives in many attacks.  What is more relevant for the consideration of this body is to observe that none of the proffered motivations have any credibility whatsoever with regard to the official actions of the government of Sudan those citizens subject to its sovereign authority and control.  The Janjaweed were armed by the government and supported in their attacks by the presence of military assets.  Moreover, the stated goal of attackers to force black, non-Arab peoples off their lands and out of their homes warrants the conclusion that the attackers have been implementing a governmental policy.  There was no testimony of any use of Sudanese military forces to defend black non-Arab villages and people, and it is highly relevant to recall that the military forces who could have been expected to defend their citizens unless the government had a deliberate policy of attacking them.  The military forces that participated in these extensive attacks against black non-Arab civilians operated at all relevant times under the direct authority of the defendant as Commander-in-Chief.

In particular, President Bashir not only approved and orchestrated a general state policy that contained a criminal dimension, but knew of its successful implementation.  President Bashir has been put on full notice of the ongoing pattern of criminality, yet has refused to curb the power of the Janjaweed and has continued to use the military power of the state to facilitate their campaign against the targeted group.  The attacks carried out indiscriminately against civilian non-Arabs were a coordinated component of the larger policy to eradicate them as a distinct ethnic unit along with their villages from a whole swath of Sudan.  In fact, there was no intent to attack military forces opposing the state because the evidence is clear that the reports back to these defendants revealed the attacks against the civilians, as well as the murder and torture and rape of innocents made the name “Darfur” synonymous with civilian suffering.  Any ostensible military purpose cannot be legitimately linked to the repeated bombings of entire villages and the displacement of their populations or the poisoning of wells to deprive them of the means of survival.   The President, as the central authority figure of the State, has been personally involved in supporting and implementing the overall operational concepts for eliminating non-Arab peoples from Darfur.  His government has concentrated the array of its military and intelligence and official power against these people and these campaigns could not have been conducted unless they originated from his personal and political authority.  The government, operating under the defendant’s authority has magnified the effects of the military attacks by deliberately obstructing efforts to ameliorate the suffering of the civilians and to prevent the deaths of victims.

With regard to the commission of crimes against humanity, the President has harnessed the official power of Sudanese military and subordinate political officials to develop and implement the plans for implementing the policy of targeted eradications. The policy to attack the civilian population has been implemented on a coordinated and systematic and widespread basis.  When the Janjaweed lacked the weapons needed to conduct the systematic attacks, the state provided those weapons, money, and ammunition and subsequently supplemented the military operations with coordinated military operations using helicopter gunships or fixed wing bombers.  In addition, the deliberate policy of attacking non-Arab peoples was implemented on the most widespread basis possible.  The civilians subjected to these widespread and concerted attacks have suffered crimes of sexual violence, forcible displacement, murder, and cruelty at hands of Sudanese military forces and those acting on their behalf.  The deliberate attacks have been conducted across against the targeted group of civilians across every inch of the wide area under the control of President Bashir’s regime.   

President Bashir has committed war crimes by supporting the intentional attacks against civilians and there is no evidence adduced to show efforts to address the criminality perpetrated by members of the armed forces.  The overarching policy of indiscriminate attacks against civilians created an environment in which soldiers felt free to loot, rape, and torture when they wanted.  Rather than focus military efforts against any military opponents of the state, President Bashir has ordered and supported repeated and deliberate attacks against civilians accompanied by the destruction of their villages.  The practice of poisoning civilian water supplies documented during testimony here has been justifiably illegal as a matter of practice since the Middle Ages.  The Defendant has been informed repeatedly in official correspondence and in the voice and vote of the United Nations about the conduct of war crimes, crimes against humanity, and genocide.  The attacks against civilians were repeated and widespread, and actually evolved over time as the military refined its tactics and its cruelty towards civilians.  The forcible relocation of civilians combined with their rape and torture produce a record of war crimes that is lengthy and well documented.  All of the acts conducted pursuant to these campaigns flowed from the legal authority of the President, whose rule has been characterized as authoritative and oppressive.

The evidence has shown a deliberate policy to attack the non-Arab people of Darfur, as a specific group, and that this defendant had a specific intent to implement that policy.  The regime did have a lawful right to respond to military attacks directed against its infrastructure and personnel.  However, the evidence is clear that the forces of President Bashir have used those military attacks as a pretext for implementing a deliberate and intensive campaign plan to destroy the non-Arab people of the Darfur region.  President Bashir cannot escape liability by pointing to an ostensible legitimate purpose for the operations because the purported rationale has long since been overcome by the direct evidence from the ground as reported around the world.  President Bashir has used the power of the state to implement the policy goal of eradicating the non-Arab population of Darfur by attacking their villages, and destroying their way of life. He has deliberately inflicted conditions of life designed to cause the physical destruction of all or part of the targeted group, and bears supervisory responsibility in addition to his personal accountability for his role as the Commander in Chief of the armed forces. 

Evidence of the specific intent of Sudanese officials can be found in the simple and supportable conclusion based on the evidence that the non-Arab peoples of Darfur would not have been attacked had they shared the ethnic identity of the Janjaweed Arabs.  The resulting destruction of large portions of the targeted group is more than just a reasonably foreseeable result of the campaigns.  The President’s desire to continue and support the attacks motivated by the ethnic identity of the victims is inarguable on the face of the evidence and the reasonable inferences to be drawn from the testimony.

The actions of President Bashir can only be rationally explained by the inference that he shared the specific intent to eliminate the targeted group by reason of its ethnic identity.  Regardless of other possible motives or collateral benefits that the regime might have perceived, the policy of the regime, when stripped to its essentials is chillingly clear  President Bashir supported attacks directed at the civilian population on a widespread and systematic basis and the evidence shows that his overarching policy was intended to eliminate non-Arab population of Darfur in whole or in part.   The concerted use of governmental power to destroy all or part of the targeted group is a fundamental abdication of the central purpose of government itself.  Hence, President Bashir is criminally liable for genocide, war crimes, and crimes against humanity on both a moral and legal basis.