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SUMMARY OF FACTS
1. The first Communication, the Sudan Human Rights Organisation et al/The
Sudan (the SHRO Case) is submitted by the Sudan Human Rights Organisation
(London), the Sudan Human Rights Organisation (Canada), the Darfur Diaspora
Association, the Sudanese Women Union in Canada and the Massaleit Diaspora
Association (hereinafter called the Complainants).
2. The Complainants allege gross, massive and systematic violations of human
rights by the Republic of Sudan (herein after called Respondent State)
against the indigenous Black African tribes in the Darfur region (Western
Sudan); in particular, members of the Fur, Marsalit and Zaghawa tribes.
3. The Complainants allege that violations being committed in the Darfur
region include large-scale killings, the forced displacement of populations,
the destruction of public facilities, properties and disruption of life
through bombing by military fighter jets in densely populated areas.
4. The Complainants allege that the Darfur region has been under a state of
emergency since the government of General Omar Al-Bashir seized power in
1989. They allege further that this situation has given security and
paramilitary forces a free hand to arrest, detain, torture and carry out
extra-judicial executions of suspected insurgents.
5. The Complainants also allege that nomadic tribal gangs of Arab origin,
alleged to be members of the militias known as the Murhaleen and the
Janjaweed are supported by the Respondent State.
6. The Complainants allege further that an armed group known as the Sudan
Liberation Movement/Army issued a political declaration on 13 March 2003 and
clashed with Respondent State's Armed Forces. The Respondent State launched
a succession of human rights violations against suspected insurgents, using
methods such as extra-judicial executions, torture, rape of women and girls,
arbitrary arrests and detentions.
7. The Complainants also contend that hundreds of people from the
aforementioned indigenous African tribes have been summarily executed by the
Respondent State's security forces and by allied militia, adding that
detainees are usually tried by special military courts with little regard to
international standards or legal protection.
8. The Complainants allege that the abovesaid actions of the Respondent
State violate Articles 2, 3, 4, 5, 6, 7 (1), 9, 12 (1, 2 and 3), and 13 (1
and 2) of the African Charter on Human and Peoples' Rights.
9. The second Communication, Centre for Housing Rights and Evictions/The
Sudan (the COHRE Case), is submitted by an NGO based in Washington D.C. (the
Complainant) against the Republic of Sudan (the Respondent State). The
Communication is based on almost similar allegations as in the SHRO Case.
10. The Complainant states that Darfur is the largest region in the
Respondent State, divided into south, west and north administrative zones
and covers an area of about 256,000 square kilometers in size and has an
estimated population of five million (5,000,000) persons. That in February
2003 fighting intensified in the Darfur region following the emergence of
two armed groups, the Sudan Liberation Army (SLA) and the Justice Equality
Movement (JEM), which come primarily from the Fur, Zaghawa and Masaalit
tribes. The two armed groups' political demand essentially is for the
Respondent State to address the marginalisation and underdevelopment of the
region.
11. The Complainant alleges that in response to the emergence of these
groups and the armed rebellion, the Respondent State formed, armed and
sponsored an Arab militia force known as the Janjaweed to help suppress the
rebellion.
12. The Complainant alleges further that the Respondent State is involved at
the highest level in the recruitment, arming and sponsoring of the Janjaweed
militia. The Complainant cites a Directive dated 13 February 2004, from the
office of the Sub-locality in North Darfur directing all Security units
within the locality to allow the activities of the Janjaweed under the
command of Sheikh Musa Hilal to secure its "vital needs." The Complainant
also claims that military helicopters from the Respondent State provide arms
and supplies of food to the Janjaweed.
13. The Complainant alleges that in addition to attacking rebel targets, the
Respondent State's campaign has targeted the civilian population, adding
that villages, markets, and water wells have been raided and bombed by
helicopter gunships and Antonov airplanes.
14. The Complainant claims that residents of hundreds of villages have been
forcibly evicted, their homes and other structures totally or partially
burned and destroyed. That thousands of civilians in Darfur have been killed
in deliberate and indiscriminate attacks and more than a million people have
been displaced.
COMPLAINT AND PRAYERS
15. The Complainant in the COHRE Case alleges that the Respondent State has
violated Articles 4, 5, 6, 7, 12 (1), 14, 16, 18 (1) and 22 of the African
Charter. It requests the African Commission to hold the Respondent State
liable for the human rights violations in the Darfur region.
16. The Complainant also urges the African Commission to place the
violations described in the Communication, before the Assembly of Heads of
State and Government of the African Union for consideration under Article 58
of the African Charter; that the African Commission, should undertake an
in-depth study of the situation in Darfur and make a factual report with
findings and recommendations as mandated in Article 58 (2) of the African
Charter; and that the African Commission should adopt Provisional Measures
in view of the urgency required in this Communication.
PROCEDURE
17. The SHRO Case was received by post at the Secretariat of the African
Commission (the Secretariat) on 18 September 2003.
18. On 10 October 2003, the Secretariat acknowledged receipt of the
Complaint and indicated that it would be considered on seizure by the
African Commission during its 34th Ordinary Session held from 6 - 20 November 2003, in Banjul, The Gambia.
19. During its 34th Ordinary Session, the African Commission examined the
Communication and decided to be seized of it.
20. On 2 December 2003, the Secretariat notified the Respondent State of
this decision, sent a copy of the complaint, and requested it to send its
arguments on admissibility within three months.
21. This decision was also conveyed to the Complainants by letter dated 02
December 2003.
22. On 29 March 2004, the Respondent State informed the Secretariat that due
to various reasons, it would not be able to present its submissions on
admissibility and promised to send the said observations at the earliest
time possible.
23. During its 35th Ordinary Session which was held in Banjul, The Gambia in
May/June 2004, the African Commission deferred consideration on the
admissibility of the Communication to its 36th Ordinary Session at the
Respondent State's request.
24. In the meantime, during the 35th Ordinary Session the Complainants
delivered to the Secretariat documents containing supplementary information
relevant to the complaint.
25. On 6 July 2004, the Secretariat informed both parties about its decision
to defer the Communication and reminded the Respondent State to submit its
arguments on admissibility. At the same time, the Secretariat conveyed the
Complainants' supplementary submissions to the Respondent State, and also
notified the Complainants about the Respondent State's request for a
deferral of consideration on the admissibility.
26. Seizing the opportunity of a Commission's fact finding mission to the
Respondent State, the Secretariat sent another set of the Communication
documents to the Respondent State.
27. During its 36th Ordinary Session, held from 23 November to 7 December
2004 in Dakar, Senegal, the African Commission considered the Complaint and
decided to defer its decision on admissibility to its 37th Ordinary Session.
The Respondent State had submitted its arguments on admissibility during the
said Session.
28. On 2 December 2004, the Secretariat of the African Commission
acknowledged receipt of the Respondent State's submissions.
29. On 23 December 2004, the Secretariat informed the parties about the
African Commission's decision.
30. During its 37th Ordinary Session, which took place from 27 April to 11
May 2005 in Banjul, The Gambia, the African Commission considered the
complaint and, upon request from the Complainants, deferred its decision on
admissibility to its 38th Ordinary Session.
31. During the 38th Ordinary Session held from 21 November to 5 December
2006, the African Commission considered the case and decided to postpone its
consideration to the 39th Ordinary Session.
32. On 16 December 2005, the Secretariat of the African Commission notified
this decision to the parties. The Complainants were requested to submit
their rejoinder to the Respondent State's arguments.
33. During its 39th Ordinary Session held from 11 - 25 May 2006, in Banjul,
The Gambia, the Commission considered the Communication and declared it
admissible. It further decided to consolidate the Communication with the
COHRE Case.
34. By Note Verbale of 14 July 2006 and by letter of the same date, both
parties were notified of the Commission's decision and requested to submit
their arguments on the merits within two months.
35. The COHRE Case was received at the Secretariat of the African Commission
by e-mail on 6 January 2005.
36. On 11 January 2005, the Secretariat wrote to the Complainant
acknowledging receipt of the complaint and informing it that it will be
considered on seizure at the Commission's 37th Ordinary Session.
37. At its 37th Ordinary Session held in Banjul, The Gambia from 27 April to
11 May 2005, the African Commission considered the Communication and decided
to be seized thereof.
38. On 24 May 2005, the Secretariat sent a copy of the Communication to the
Respondent State, notified it of the decision of the Commission, and
requested it to send its arguments on admissibility within three months of
the notification. By letter of the same date, the Complainant was notified
of the decision and asked to submit its arguments on admissibility within
three months of notification.
39. By letter of 15 June 2005, the Complainant submitted its arguments on
admissibility.
40. On 7 July 2005, the Secretariat acknowledged receipt of the
Complainant's submission on admissibility and transmitted them to the
Respondent State and requested the latter to submit its arguments before 24
August 2005.
41. By Note Verbale dated 2 September 2005, the Respondent State was
reminded to send its arguments on admissibility.
42. On 9 November 2005, the Secretariat received a Note Verbale from the
Respondent State submitting its argument on admissibility.
43. By Note Verbale of 11 November, 2005, the Secretariat acknowledged
receipt of the Respondent State's submission.
44. At its 38th Ordinary Session held from 21 November to 5 December 2005,
the African Commission deferred consideration on the admissibility of the
Communication to its 39th Ordinary Session.
45. By Note Verbale of 15 December 2005 and by letter of the same date, the
Secretariat notified both parties of the African Commission's decision.
46. By letter of 9 March 2006, the Secretariat forwarded the arguments on
admissibility of the State to the Complainant.
47. On 20 March 2006, the Secretariat received a supplementary submission on
admissibility from the Complainant in response to the State's submission.
48. By letter of 27 March 2006, the Secretariat acknowledged receipt of the
Complainant's supplementary submissions on admissibility.
49. By Note Verbale of 27 March 2006, the Secretariat transmitted the
Complainant's supplementary submission on admissibility to the Respondent
State and requested the latter to respond before 15 April 2006.
50. At its 39th Ordinary Session held from 11 - 25 May 2006, the African
Commission considered the Communication and declared it admissible. The
Commission decided to consolidate the Communication with the SHRO Case.
51. By Note Verbale dated 29 May 2006 and by letter of the same date, both
parties were notified of the Commission's decision and requested to make
submissions on the merits before 29 August 2006.
52. On 23 August 2006, the Secretariat received the Complainant's
submissions on the merits of the Communication. On 1 October 2006, the
Secretariat acknowledged receipt of the Complainant's submissions.
53. On 8 October 2006, the Secretariat forwarded the Complainant's
submissions to the Respondent State and reminded the latter to make its
submissions on the merits before 31 October 2006.
54. At its 40th Ordinary Session held in Banjul, The Gambia, from 15 - 29 November 2006, the African Commission considered the Communication and
deferred it to its 41st Ordinary Session pending the Respondent State's
response.
55. By Note Verbale of 4 January 2007 and by letter of the same date, both
parties were notified of the Commission's decision.
56. By Note Verbale of 11 April 2007, the Secretariat reminded the
Respondent State to submit its arguments on the merits.
57. On 25 May 2007, during the 41st Ordinary Session, the Secretariat
received the State's submissions on the merits.
58. At its 41st Ordinary Session held in Accra, Ghana, the Commission
considered the Communication and deferred it to its 42nd Ordinary Session to
allow the Secretariat to translate the submissions and prepare a draft
decision.
59. By Note Verbale of 10 July 2007 and letter of the same date both parties
were notified of the Commission's decision.
60. At its 42nd Ordinary Session held from 15 - 28 November 2007, in
Brazzaville, Congo, the Commission considered the Communication and deferred
it to its 43rd Ordinary Session because the Respondent State made additional
submissions on the matter during the Session.
61. At its 43rd Ordinary Session held in Ezulwini, the Kingdom of Swaziland,
the Commission deferred the Communication to its 44th Ordinary Session to
allow the Secretariat to prepare a draft decision
62. At its 44th Ordinary Session Abuja, Nigeria, the Commission considered
the Communication and deferred further consideration to the 45th Ordinary
Session due to time constraints.
SUBMISSIONS ON ADMISSIBILITY
THE SHRO CASE
COMPLAINANTS' SUBMISSIONS ON ADMISSIBILITY
63. The Complainants submit that acts of violence were committed in a
discriminatory manner against populations of Black African origin, in the
Darfur region, namely the Fur, Massaleit and Zaggawa tribes.
64. They add that the Respondent State is "governed by a military regime,
which does not attach the required importance to normal procedures under the
Rule of law or respect for the country's institutions," hence citizens,
groups and organizations cannot bring issues of human rights violations
before independent and impartial Courts, because of the "inevitable
harassment, threats, intimidations and disruption of normal life by State
security agents".
65. The Complainants submit that the Respondent State continues to hold Mr.
Hassan El Turabi, leader of the political party National Popular Congress,
in detention, in spite of the rulings by the Constitutional Court which gave
instructions for his release. That the Darfur region has been placed under a
state of emergency since the 1989 coup d'état, and that the situation is
deteriorating very rapidly and in a highly dangerous manner in a country
which is multi-denominational, multi-cultural and multi-ethnic.
THE COHRE CASE
66. The Complainant avers that the Respondent State has committed serious
and massive violation of human rights. The Complainant argues that the
violations are ongoing since 2003. It argues that the Communication has been
submitted to the African Commission within a reasonable period of time.
67. The Complainant argues further that the victims of forced evictions and
other accompanying human rights violations in the Darfur Region cannot avail
themselves of local remedies due to several reasons, including the fact that
(i) the victims are increasingly being displaced into remote regions or
across international frontiers (ii) the Respondent State has not created a
climate of safety necessary for victims to avail themselves of local
remedies, and (iii) the Respondent State is well aware of the series of
serious and massive human rights violations occurring in Darfur and has
taken little or no steps to remedy those violations. Consequently, these
impediments render local remedies unavailable to the victims.
68. The Complainant therefore urges that the Communication be declared
admissible because domestic remedies are not available.
RESPONDENT STATE'S SUBMISSIONS ON ADMISSIBILITY
69. The Respondent State denies all the allegations advanced by the
Complainants in the SHRO Case. The Respondent State submits that the
conflict in the Darfur region is a result of its geographical location. It
argues that the instability in neighbouring countries has negative
repercussions on the Respondent State.
70. The Respondent State admits that the conflict in Southern Sudan, which
lasted for years had affected all the regions of the country at varying
degrees. It states that South Darfur, which borders Southern Sudan, has been
affected by armed operations and the massive exodus of the population
running away from the fighting. That the three Darfur regions have also been
affected by the situation in Chad, Central African Republic and the
Democratic Republic of Congo through the introduction of arms from these
countries and the influx of hundreds of tribes with kinship links in the
Respondent State.
71. The Respondent State submits that armed conflicts in neighbouring States
have contributed to the emergence of armed rebel groups which carry out
plunder and theft. The Respondent State submits further that it has taken
measures to restore stability, bring criminals to courts in accordance with
the law and returned stolen property.
72. The Respondent State argues further that the Complainants have not
exhausted local remedies. It states that there hasn't been any
report/complaint to the police, the Courts, or the National Council or to
the Human Rights Consultative Council. It submits further that the complaint
does not conform to Articles 56(2) and (4) of the African Charter, because
it is based on erroneous or imaginary facts which have nothing to do with
the Respondent State.
73. The Respondent State claims that the Communication has been overtaken by
events since several of the claims were addressed by the President of the
Respondent State on 9 March 2004, when he granted general amnesty to those
who surrendered their arms. That the Respondent State signed peace
agreements at Abeche and N'djamena; launched the reconstruction of
infrastructure destroyed by the rebels; allowed international aid
organizations to intervene on the ground; and allowed the return of
internally displaced persons. It created an independent Commission of
Inquiry on the human rights violations, and convened a meeting for all
Darfurians to discuss the restoration of peace in the region. In the light
of the foregoing, the Respondent State denies all the allegations and
declares them �false and against the spirit of Article 56 of the African
Charter'.
74. With respect to the COHRE Case, the Respondent State advances two main
arguments: first, that local remedies have not been exhausted and secondly,
that the Communication has been settled by other international mechanisms.
75. The Respondent State argues that the Complainant failed to resort to
existing legal, judicial or administrative means within the Respondent State
to address the allegations. It argues further that under its law, the
protection of human rights is regulated by three main legislative norms: (a)
International and regional human rights as ratified by the Respondent State
(considered to be an integral part of the Constitution), (b) the
Constitution, and (c) State Legislation.
76. It submits that the Constitutional Court was established in 1998 and has
jurisdiction to hear cases relating to the protection of human rights,
guaranteed in the Constitution and other international instruments ratified.
The Supreme Court, the Courts of Appeal, the General Courts and the
Tribunals of 1st, 2nd and 3rd Appeals all have jurisdictions, depending on
the location, to deal with specific issues. That the President of the
Supreme Court can establish specialized courts to deal with specific
situations and to hear cases on human rights violations in the three regions
of Darfur.
77. The Respondent State argues that it had introduced legal and judicial
procedures to punish perpetrators of alleged human rights abuses in Darfur.
These mechanisms include: the National Commission of Enquiry on the
violation of Human Rights in Darfur under the Chairmanship of the former
Vice-President of the Supreme Court, comprised of human rights lawyers and
activists. It adds further that the National Commission submitted its report
to the President of the Republic in January 2005. Three Committees were
established based on the recommendations of the report: namely, the
Judiciary Committee of Enquiry to investigate violations, Committee for
Compensation and Committee for the Settlement of priority cases of property
ownership.
78. Therefore, the Respondent State submits that the Communication does not
comply with Article 56 (5) of the African Charter.
79. The Respondent State submits further that the Communication was
submitted after being settled by UN Mechanisms. It argues that the United
Nations and the UN Security Council adopted resolutions 1590, 1591 and 1592
concerning the situation in Darfur, which are currently being implemented.
In April 2005 the Commission on Human Rights of the UN Economic, Social and
Cultural Council, also adopted a resolution concerning the human rights
violations in Sudan. As a result, the Respondent State submits that a
Special Rapporteur was assigned to look into the human rights situation. She
recently visited Sudan, specifically the Darfur region.
80. The Respondent State agues therefore that, the Communication is
inadmissible under Article 56 (7) of the African Charter.
COMPLAINANT'S SUPPLEMENTARY SUBMISSION IN RESPONSE TO RESPONDENT STATE'S
SUBMISSION ON ADMISSIBILITY
81. In a supplementary brief on admissibility the Complainant submits that,
taken together, the forced evictions and accompanying human rights
violations amount to serious and massive violations of human rights
protected by the African Charter.
82. Complainant cites a 2006 Report by the UN Special Rapporteur on the
human rights situation in Sudan which found that "the human rights situation
worsened from July 2005...and a comprehensive strategy responding to
transitional justice has yet to be developed in the Sudan." The report adds
that the cases prosecuted before the Special Criminal Court on the events in
Darfur "did not reflect the major crimes committed during the height of the
Darfur crisis" and "only one of the cases involved charges brought against a
high-ranking official, and he was acquitted."
83. Consequently, the Complainant argues that, the domestic remedies, cited
by the Respondent State, are not effective, nor sufficient, since they offer
little prospect of success. They are incapable of redressing the complaints.
84. The Complainant submit that the Special Criminal Tribunals "may just be
a tactic by the Sudanese government to avoid prosecution by the
International Criminal Court." That such tribunals are "doomed to failure" because they lack
"serious legal reforms ensuring independence of the
judiciary." Hence, the Complainant submit, the Respondent State has failed
to bring "...an end to the current climate of intimidation," thereby casting
doubts about the effectiveness of domestic remedies.
85. It submits that even though the peace talks are likely to result in what
could be considered injunctive relief by halting further human rights
violations, they do not provide adequate remedies for the human rights
violations.
86. The Complainant adds that the UN Human Rights Commission, in its
resolution 2005/82, found that these domestic remedies are ineffective and
insufficient in preventing, halting or remedying the forced evictions and
accompanying human rights violations in Darfur.
87. Consequently, it cannot be said that these claims have "been settled" as
required by Article 56(7) of the African Charter.
88. The Complainant concludes that the present Communication satisfies the
requirements of Article 56 of the African Charter.
AFRICAN COMMISSION'S DECISION ON ADMISSIBILITY
89. Admissibility of Communications under the African Charter is governed by
the conditions set out in Article 56. The Complainants argue that the
Communication complies with all the requirements under Article 56 of the
Charter. The Respondent State argues that the Communications be declared
inadmissible for not meeting the requirements of Article 56 (2), (4), (5)
and (7) of the African Charter.
90. Article 56(2) requires Communications to be compatible with the
Constitutive Act or the African Charter. The Respondent State did not
explain how the Communication is incompatible with either instrument. The
mere submission of a Communication by a Complainant cannot be deemed an
incompatibility under Article 56(2) of the African Charter.
91. Bringing Communications against State Parties to the African Charter is
a means of protecting human and peoples' rights. States Parties to the
African Charter are duty bound to respect their obligations under both the
Constitutive Act and the African Charter. Article 3(h) of the Constitutive
Act enjoins African States to promote and protect human and peoples' rights
in accordance with the African Charter. The African Commission does not
consider the filing of complaints before it, an incompatibility with the
Constitutive Act or the African Charter. It therefore finds that Article
56(2) has been complied with.
92. Article 56(4) stipulates that Communications should not be based
exclusively on news disseminated through the mass media. The present
Communications are supported by UN Reports as well as reports and Press
releases of international human rights organizations. These Communications
are not based exclusively on mass media reports. The Darfur crisis has
attracted wide international media attention. It would be impractical to
separate allegations contained in the Communications from the media reports
on the conflict and the alleged violations.
93. In its decision declaring Sir Dawda Jawara v The Gambia (the Jawara
Case)[FN128] admissible, the Commission stated that "[w]hile it would be
dangerous to rely exclusively on news disseminated from the mass media, it
would be equally damaging if the Commission were to reject a communication
because some aspects of it are based on news disseminated through the mass
media. .................There is no doubt that the media remains the most important,
if not the only source of information. It is common knowledge that
information on human rights violation is always gotten from the media.....The
issue therefore should not be whether the information was gotten from the
media, but whether the information is correct...." The African Commission
therefore finds further that the Communications comply with Article 56(4).
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[FN128] See Communication 147/96, 13th Annual Activity Report, 1999-2000
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94. With respect to Article 56 (5), the Respondent State argues that no
attempt was made to approach various internal remedies. The Complainants, on
the other hand, argue that Article 56(5) does not apply to the
Communications due to the �serious, massive and systematic� nature of the
alleged violations by the Respondent State. They submit that such violations
are incapable of being remedied by domestic remedies.
95. Article 56 (5) of the African Charter provides that Communications
relating to human and peoples' rights referred to in Article 55 received by
the African Commission shall be considered if they "are sent after the
exhaustion of local remedies, if any, unless it is obvious that this
procedure is unduly prolonged".
96. The issue to be resolved is whether the local remedies were capable of
addressing the violations alleged by the Complainants.
97. The African Commission has previously decided on the question of
remedies with respect to cases of serious or massive violations of human
rights. In the Free Legal Assistance Group, Lawyers Committee for Human
Rights, Union Interafricaine des Droits de l'Homme, Les Témoins de Jehovah/
Zaire, the Commission stated that: �[i]n the light of its duty to ensure the
protection of human and peoples' rights...the Commission cannot hold the
requirement of exhaustion of local remedies to apply literally in cases
where it is impractical or undesirable for the complaint [s] to seize the
domestic courts in the case of each individual complaint. This is the case
where there are a large number of individual victims. Due to the seriousness
of the human rights situation as well as the great number of people
involved, such remedies as might theoretically exist in the domestic courts
are as a practical matter unavailable '.[FN129]
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[FN129] Communications 25/89, 47/90, 56/91 100/93, (4 International Human
Rights Law Report 89, 92), (1997).
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98. The Respondent State argues that the remedies were not only available,
but effective and sufficient, and that the Complainant didn't bother to
access them to seek justice for the victims. The Complainants cite several
reports which indicate various cases of intimidation, displacement,
harassment, sexual and other kinds of violence, which according to the
Complainant may not be dealt with appropriately through local remedies.
99. The African Commission has often stated that a local remedy must be
available, effective and sufficient. All three criteria must be present for
the local remedy envisaged in Article 56 (5) to be considered worthy of
pursuing. In the Jawara Case [FN130] the African Commission held that a
remedy is considered available if the petitioner can pursue it without
impediment. It is deemed effective if it offers a prospect of success. It is
found sufficient if it is capable of redressing the complaint.
--------------------------------------------------------------------------------
[FN130] See Footnote 2 above for reference
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100. In the present Communication, the scale and nature of the alleged
abuses, the number of persons involved ipso facto make local remedies
unavailable, ineffective and insufficient. This Commission has held in
Malawi African Association and Others v. Mauritania[FN131] that it "does not
believe that the condition that internal remedies must have been exhausted
can be applied literally to those cases in which it is neither practicable
nor desirable for the Complainants or the victims to pursue such internal
channels of remedy in every case of violation of human rights. Such is the
case where there are many victims. Due to the seriousness of the human
rights situation and the large number of people involved, such remedies as
might theoretically exist in the domestic courts are as a practical matter
unavailable ..."[FN132].
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[FN131] Communications 54/91, 61/91, 98/93, 164/97 to 196/97 and 210/98,
(2000).
[FN132] See also Free Legal Assistance Group, Lawyers' Committee for Human
Rights, Union Interafricaine des Droits de l'Homme, Les Témoins de Jehovah /
Zaire, African Comm. Hum. & Peoples' Rights. Communication No. 25/89, 47/90,
56/91, 100/93 cited above.
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101. Such is the case with the situation in the Darfur region, where tens of
thousands of people have allegedly been forcibly evicted and their
properties destroyed. It is impracticable and undesirable to expect these
victims to exhaust the remedies claimed by the State to be available.
102. The African Commission, considering that the alleged violations prima
facie constitute "serious and massive violations," finds that under the
prevailing situation in the Darfur, it would be impractical to expect the
complainants to avail themselves of domestic remedies, which, are in any
event, ineffective. Had the domestic remedies been available and effective,
the Respondent State would have prosecuted and punished the perpetrators of
the alleged violations, which it has not done. The Commission finds that
there were no remedies and therefore the criteria under Article 56(5) does
not apply to the complainants.
103. The Respondent State argued that the violations have been settled by
other international mechanisms and cites Article 56(7) of the Charter.
104. The African Commission wishes to state that a matter shall be
considered settled within the context of Article 56 (7) of the African
Charter, if it was settled by any of the UN human rights treaty bodies or
any other international adjudication mechanism, with a human rights mandate.
The Respondent State must demonstrate to the Commission the nature of
remedies or relief granted by the international mechanism, such as to render
the complaints res judicata, and the African Commission's intervention
unnecessary.
105. The African Commission, while recognizing the important role played by
the United Nations Security Council, the Human Rights Council, (and its
predecessor, the Commission on Human Rights,) and other UN organs and
agencies on the Darfur crisis, is of the firm view that these organs are not
the mechanisms envisaged under Article 56(7). The mechanisms envisaged under
Article 56(7) of the Charter must be capable of granting declaratory or
compensatory relief to victims, not mere political resolutions and
declarations.
106. In the opinion of this Commission, the content of the current
complaints were not submitted to any such bodies, by the Complainants, or
any other individual or institution.
107. For these reasons, the African Commission declares both Communications
admissible.
SUBMISSIONS ON THE MERITS
108. It should be noted that in spite of several reminders, neither the
Complainants nor the Respondent State submitted in respect of the SHRO Case.
109. The other Complainant, COHRE, and the Respondent State made submissions
on the merits with respect to the COHRE Case. The Commission will consider
their submissions. Rule 120 of the Rules of Procedure of the African
Commission states that "[i]f the communication is admissible, the Commission
shall consider it in the light of all the information that the individual
and the State Party concerned has submitted in writing; it shall make known
its observation on this issue..... "
COMPLAINANT'S SUBMISSIONS ON THE MERITS
110. The Complainant submits that since February 2003, following the
emergence of an armed conflict in the Darfur region, the Respondent State
has engaged in and continues to forcibly evict thousands of Black indigenous
tribes, inhabitants of the Darfur from their homes, communities and
villages. The alleged forced evictions and accompanying human rights abuses
recorded in this Communication constitute a violation of the rights
guaranteed under the African Charter to which the Respondent State is a
party.
111. It is submitted that the Respondent State failed to respect and protect
the human rights of the Darfur people. Regarding the obligation to respect,
it is submitted that government forces attacked villages, injuring and
killing civilians, raping women and girls, and destroying homes. The State
also failed to prevent the Janjaweed militiamen from killing, assaulting and
raping villagers, hence failing in its obligation to protect the civilian
population of Darfur. The Communication also alleges that at times the
Janjaweed and government forces conducted joint attacks on villages.
112. The Complainant argues further that attacks by militias prevented
Darfurians from farming land, collecting fireweed for cooking, and
collecting grass to feed livestock, which constitute a violation of their
right to adequate food.
113. The Complainant submits that the forced eviction and the accompanying
human rights abuses in the Darfur region tantamount to violations of the
right to life, and the right to security of the person respectively
protected under Articles 4 and 6 of the Charter, as thousands of people were
killed, injured, and raped.
114. The Complainant submits further that attacks carried out by the
Respondent State and the Janjaweed have forced thousands of people to flee
their homes and habitual places of residence. According to the Complainant,
those actions constitute a violation of the right to freedom of residence
under Article 12(1) of the Charter.
115. The Complainant states that the forced evictions and destruction of
housing and property in the Darfur region violated the right to property
enshrined in Article 14 of the Charter. It is the Complainant's view that
those attacks cannot be compared to a lawful dispossession as they have not
been carried out "in accordance with the provisions of appropriate law..." and
did not contribute to public need nor was it in the general interest of the
community.
116. The Communication recalls the decision of the Commission in the case of
Social and Economic Rights Action Centre and Centre for Economic and Social
Rights v Nigeria (the SERAC Case) [FN133] where the Commission found, inter
alia, that forced evictions by government forces and private security forces
is an infringement of Article 14 and the right to an adequate housing which
is implicitly guaranteed by Articles 14, 16 and 18(1) of the Charter.
--------------------------------------------------------------------------------
[FN133] Communication 155/1996.
--------------------------------------------------------------------------------
117. Regarding the right to adequate housing, the Complainant urges the
Commission to draw inspiration from other international human rights law
standards. It submits that the right to adequate housing is well-defined
under international human rights law, including the Universal Declaration of
Human Rights (Article 25(1)), and the International Covenant on Economic,
Social and Cultural Rights (Article 11(1)), and other international human
rights instruments.
118. The Complainant also submits that the Committee on Economic, Social and
Cultural Rights gave a precise content to the right to housing in its
General Comment No. 4 adopted on 12 December 1991, concerning the State's
obligation to respect, protect and fulfil security of tenure. In its General
Comment No. 7, the Committee defines and proscribes the practice of forced
evictions.
119. The Complainant recalls that in General Comment No. 4, the Committee on
Economic, Social Cultural Rights held that "many of the measures required to
promote the right to housing would only require the abstention by the
[Respondent State] from certain practices". Furthermore, in General Comment
No.7, it is affirmed that: "The State itself must refrain from forced
evictions and ensure that the law is enforced against its agents or third
parties who carry out forced evictions."
120. The Complainant further invites the Commission to find the State in
violation of Article 7 as it failed to "adequately investigate and
prosecute" the authors of the forced evictions and destruction of housing.
121. The Complainant submits that the African Commission relied on
international law to define the right to adequate housing implied by
Articles 14, 16 and 18(1) of the Charter, in its decision on the SERAC Case.
122. The Complainant also relies on the jurisprudence of the European Court
of Human Rights in Akdivar and Others v. Turkey[FN134], where, in a
situation similar to the one prevailing in the Darfur, that is, destruction
of housing in the context of a conflict between the government and rebel
forces, the European Court of Human Rights ruled that Turkey was responsible
for violations perpetrated by both its own forces and the rebel forces
because it has the duty to both respect and protect human rights.
--------------------------------------------------------------------------------
[FN134] No. 21893/93, 1996-IV, no. 15.
--------------------------------------------------------------------------------
123. The Complainant submits that forced evictions and destruction of
housing constitute cruel or inhuman treatment prohibited by Article 5 of the
Charter, which is consistent with international human rights standards. It
quotes the Concluding Observations on Israel in 2001 where the Committee
Against Torture (CAT) found that forced evictions and destruction of housing
cause "indescribable suffering to the population". Regarding forced
evictions and destruction of housing carried out by non-state actors, the
Communication relies on the jurisprudence of the CAT in Hijrizi v.
Yugoslavia [FN135] where the Committee ruled that the State is responsible
for failing to protect the victims from such a violation of their human
rights not to be subject to cruel, inhuman and degrading treatment or
punishment under Article 16 of the Convention Against Torture.
--------------------------------------------------------------------------------
[FN135] Communication No. 161/2000: UN Doc. CAT/C/29/D/161/2000 (2 December
2002).
--------------------------------------------------------------------------------
124. The Complainant also submits that forced evictions and accompanying
human rights violations constitute violations by the Respondent State of the
right to adequate food and the right to water implicitly guaranteed under
Articles 4, 16 and 22 of the Charter as informed by standards and principles
of international human rights law.
125. The Complainant relies on the Committee on Economic, Social and
Cultural Rights General Comment No. 12 of 1999, which obligates States to
respect, protect and fulfil the right to adequate food, and General Comment
No. 15 of 2003, where the Committee declares that "the human rights to water
entitles everyone to sufficient, safe, acceptable, physically accessible and
affordable water for personal domestic uses".
126. The Complainant invites the Commission to develop further its reasoning
in the SERAC Case by holding that the right to water is also guaranteed by
reading together Articles 4, 16, and 22, of the African Charter. It urges
the Commission to find that the Respondent State has violated that right by
"being complicit in looting and destroying foodstuffs, crops and livestock
as well as poisoning wells and denying access to water sources in the Darfur
region.
RESPONDENT STATE'S SUBMISSIONS ON THE MERITS
127. The Respondent State avers that it is addressing the alleged human
rights violations through the framework of implementation of the Darfur
Peace Agreement (DPA) adopted on 5 May 2006, containing a number of remedies
on the situation in Darfur, including addressing the content of the present
Communication. As a result of the Agreement, the Respondent State indicates
that, it has taken a number of measures to implement the DPA and at the same
time deal with the issues raised by the Complainant.
128. The Respondent State submits that following the signing of the Peace
Agreement with the Major Armed Movements in Darfur, the signatory partners
began to implement all the components of the Agreement (that is, power
sharing, wealth sharing, the security arrangements, and the Darfur/Darfur
Dialogue). Consequently, Presidential and States decrees and decisions to
establish Commissions, development funds, appointing their heads and
members, were issued in accordance with the provisions of the Darfur Peace
Agreement.
129. The Respondent State submits further that , all the major organs
stipulated in the Agreement were duly established, notably the Darfur
Interim Authority. These organs have since begun to discharge their duties,
since April 2007. In addition, the Respondent State argues that the official
positions allocated to Darfurians in all the Organs, Commissions and
Committees to a large extent have been occupied by them. The State added
that a total of 87 posts have been filled and 16 posts, at lower levels, are
yet to be filled.
130. The Respondent State further indicates that with regard to the core
aspect of wealth sharing, specialized mechanisms and committees, such as the
Darfur Fund for Re-construction and Development and the Compensation Fund
for the War Victims, as well as the Rehabilitation Commission have been
formed.
131. Regarding the establishment of the Darfur Joint Assessment Mission
(DJAM) responsible for defining the development needs and services in
Darfur, comprising the Government and the Movements representatives', donors
and specialized International Agencies), the State submits that Committees
have conducted land surveys in Darfur with a view to defining the needs,
adding that the process of data analysis and statistics in preparation for
the anticipated International Conference on Development and Re-construction
of Darfur sponsored by Holland, is also being undertaken.
132. With respect to the security and military arrangements, the Respondent
State submits that work was underway in earnest involving the Government and
the Movements, as well as the AU Mission to consolidate the cease fire to
which the concerned parties are committed, as well as to make the other
security arrangements, notably the specification of military positions,
re-integration and demobilization work. The Respondent State added that it
has presented disarmament plan regarding the Janjaweed/Militias to the
African Union in July 2006. The Respondent State added that a Joint
Committee formed by the African Union and the Government was assigned to
look into the implementation of the plan in accordance with the provision of
the Darfur Peace Agreement.
133. The Respondent State submits further that the commitment of the parties
to the Darfur Peace and Cease-fire Agreement has brought about a
considerable improvement in the security situation, adding that the State of
insecurity has now been confined to some pockets of North Darfur (only 6
localities in North Darfur out of a total of 34 localities which make up the
three States of Darfur).
134. The Respondent State argues that it has improved the humanitarian
situation and facilitated the flow of relief aid to internally displaced
persons. Its fast track policy adopted in 2004, aims at removing all the
administrative and procedural restrictions to the flow of relief. As such
the level of coverage of relief supplies is 98% access by the needy leaving
a balance of (2%) which was not covered due to insecurity in certain
localities of North Darfur.
135. With respect to the voluntary repatriation of the refugees, the
Respondent State indicates that it has embarked on the rehabilitation of a
great number of the villages in Darfur by providing basic services such as
water, health, education and housing, aimed at encouraging the return of
internally displaced persons , (hereinafter, IDPs) and refugees to their
villages and cities. Such efforts have resulted in the return of more than
100,000 IDPs and refugees to their villages in the 3 States of Darfur. The
number includes returnees to 70 villages, in West Darfur, 22 villages in
South Darfur and 10 villages in North Darfur, The State adds that, a number
of major roads have been re-opened in order to facilitate the return of the
refugees and the IDPs, including the Nyala-Quraidha-Bram Road, the
Nyala-Labdu Road, the Nyala-Mohajiria Road, the Nyala-Dhuain Road and the
Kalbas-Eljinaina Road.
136. The Respondent State submits that, following the signing of the Peace
Agreement, a great number of the IDPs have begun to exercise pasturing and
farming activities. In this regard, the Respondent State notes that, it has
assisted in distributing agricultural inputs to the IDPs and those affected
by the war. In the same context the efforts of social reconciliation have
contributed to confidence building which, in turn, helped in the return of a
high percentage of IDPs and the refugees to their villages.
137. The State avers that it has made contributions to humanitarian
programmes in Darfur in 2006, to the tune of ($110,889,000 US Dollars) as
follows:
US Dollars
1) Food 42, 409, 000
2) Water 23, 015, 000
3) Health 36, 465, 000
4) Shelter 9, 000, 000
Total: 110, 889, 000
138. The Respondent State believes that
".....the implementation of the Darfur Peace Agreement ...........could indeed help
in addressing all the humanitarian issues regarding the situation in Darfur,
including the Communication under reference. As stated in our previous
memorandum..., the Sudanese government shall not be held responsible for the
subject of the Communication but it will bear its consequences by virtue of
the responsibility it has towards its citizens. The Sudanese Government
shall in this regard, be enlightening the esteemed African Commission on all
the developments regarding the Communication under reference".
AFRICAN COMMISSION'S DECISION ON THE MERITS
139. The Respondent State made a general denial of the allegations and
stated that due to its geographical location, the security situation in the
surrounding countries had a destablilising influence on the domestic
situation in the country.
140. The Respondent State submits that further consideration of this
Communication is no longer relevant. It argues that several issues raised
have been addressed by the President of the Republic. The State notes that
on 9 March 2004, a general amnesty was granted to combatants who surrendered
their arms, that the signing of the first peace agreement at Abeche and
N'djamena, and the Abuja May 2006 Agreement, the launching of the
reconstruction of infrastructure destroyed by the rebels to allow
international aid organizations' assistance, the return of internally
displaced persons, the creation of an independent Commission of Inquiry on
the human rights violations, and the convening of a meeting for all
Darfurians to discuss the restoration of peace, have all contributed to
addressing the crisis in the Darfur.
141. The State notes that the commitment of the parties to the Darfur Peace
and Cease-fire Agreement has brought about a considerable improvement in the
security situation, adding that the State of insecurity has now been
confined to some pockets of North Darfur.
142. From the above submissions, the Respondent State doesn't seem to be
contesting the allegations made by the Complainants. Rather the State notes
that following the signing of the Darfur Peace Agreement, measures have been
put in place by the parties to the Agreement to ensure a resolution of the
crisis in Darfur, and consequently address the grievances raised in the
present Communication.
143. Could it be said that by not contesting the allegations, the State has
conceded to violating the provisions cited by the Complainants, that is,
Articles 4, 5, 6, 7, 9, 12 (1), 14, 16, 18 (1) and 22?
144. It must be noted that the Respondent State has not conceded to the
violations either. It simply informs the Commission that the grievances
highlighted in the Communications will be addressed by the political
developments initiated, in particular, the Signing of the Darfur Peace
Agreement. The African Commission will therefore have to address each and
every allegation made by the Complainants to ascertain their veracity.
ALLEGED VIOLATION OF ARTICLES 4 AND 5
145. With respect to allegations of violation of Articles 4 and 5 of the
African Charter, the Complainants allege large-scale and indiscriminate
killings, torture, poisoning of wells, rape, forced evictions and
displacement, destruction of property, etc.
146. Article 4 of the Charter protects the right to life and provides that
"Human beings are inviolable. Every human being shall be entitled to respect
for his life and the integrity of his person. No one may be arbitrarily
deprived of his right". The right to life is the supreme right of the human
being. It is basic to all human rights and without it all other rights are
without meaning. The term �life' itself has been given a relatively broad
interpretation by courts internationally, to include the right to dignity
and the right to livelihood.
147. It is the duty of the State to protect human life against unwarranted
or arbitrary actions by public authorities as well as by private persons.
The duty of the State to protect the right to life has been interpreted
broadly to include prohibition of arbitrary killing by agents of the State
and to strictly control and limit the circumstances in which a person may be
deprived of life by state authorities. These include the necessity to
conduct effective official investigations when individuals have been killed
as a result of the use of force by agents of the State, to secure the right
to life by making effective provisions in criminal law to deter the
commission of offences against the person, to establish law-enforcement
machinery for the prevention, suppression, investigation and penalisation of
breaches of criminal law. In addition to the foregoing, the State is duty
bound to take preventive operational measures to protect an individual whose
life is at risk from the criminal acts of another individual.[FN136] In
Article 19 v Eritrea[FN137] this Commission noted that �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...'.
--------------------------------------------------------------------------------
[FN136] See European Court judgments in McCann v. United Kingdom (1995) 21
EHRR 97 and Tanrikulu v. Turkey (1999) 30 EHRR 950.
[FN137] Communication 275/2003.
--------------------------------------------------------------------------------
148. States as well as non-state actors, have been known to violate the
right to life, but the State has duo legal obligations, to respect the right
to life, by not violating that right itself, as well as to protect the right
to life, by protecting persons within its jurisdiction from non-state
actors. In Zimbabwe Human Rights NGO Forum/Zimbabwe[FN138], the Commission
noted that an act by a private individual or [non-state actor] and therefore
not directly imputable to a State, can generate responsibility of the State,
not because of the act itself, but because of the lack of due diligence on
the part of the State to prevent the violation or for not taking the
necessary steps to provide the victims with reparation.[FN139]
--------------------------------------------------------------------------------
[FN138] Communication 245/2002.
[FN139] In human rights jurisprudence this standard was first articulated by
a regional court, the Inter- American Court of Human Rights, in looking at
the obligations of the State of Honduras under the American Convention on
Human Rights - Velasquez-Rodriguez, ser. C.,No.4, 9 Hum. Rts.l.J. 212
(1988). The standard of due diligence has been explicitly incorporated into
United Nations standards, such as the Declaration on the Elimination of
Violence against Women which says that states should 'exercise due diligence
to prevent, investigate and, in accordance with national legislation, punish
acts of violence against women, whether those acts are perpetrated by the
state or by private persons'. Increasingly, UN mechanisms monitoring the
implementation of human rights treaties, the UN independent experts, and the
Court systems at the national and regional level are using this concept of
due diligence as their measure of review, particularly for assessing the
compliance of states with their obligations to protect bodily integrity.
--------------------------------------------------------------------------------
149. In the present Communication, the State claims it has investigated some
of the allegations of extra-judicial and summary executions. The Complainant
submits that no effective official investigations were carried out to
address cases of extra-judicial or summary executions.
150. To effectively discharge itself from responsibility, it is not enough
to investigate. In Amnesty International, Comite Loosli Bacheland, Lawyers
Committee for Human Rights, Association of Members of the Episcopal
Conference of East Africa/Sudan [FN140] the African Commission held that
"investigations into extra-judicial executions must be carried out by
entirely independent individuals, provided with the necessary resources, and
their findings must be made public and prosecutions initiated in accordance
with the information uncovered. In Jordan v United Kingdom [FN141] the
European Court of Human Rights held that, "an effective official
investigation must be carried out with promptness and reasonable expedition.
The investigation must be carried out for the purpose of securing the
effective implementation of domestic laws, which protect the right to life.
The investigation or the result thereof must be open to public scrutiny in
order to secure accountability. For an investigation into a summary
execution carried out by a State agent to be effective, it may generally be
regarded as necessary for the person responsible for the carrying out of the
investigation to be independent from those implicated in the events. This
means not only a lack of hierarchical or institutional connection but also a
practical independence".
In the present Communication, the State claims to have investigated the
alleged abuses, put in place mechanisms to prevent further abuses and to
provide remedies to victims. The question is - were all these initiatives
done in accordance with international standards? Did they meet the test of
effective official investigations under international human rights law?
--------------------------------------------------------------------------------
[FN140] Communications 48/90, 50/91, 52/91, 89/93.
[FN141] Application no. 24746/94 ((2003) 37 EHRR 2), Judgment of 4/8/2001.
--------------------------------------------------------------------------------
151. The Fact-finding Report of the African Commission to the Darfur Region
of Sudan [FN142] states that some women IDPs who were interviewed during the
mission stated that ".....their villages were attacked by government forces,
supported by men riding horses and camels. The attacks resulted in several
deaths and injury of people. Some of these women who sustained injuries,
showed their wounds to the Commission. The women furthermore stated that
during the attacks, a number of cases of rape were committed, some of the
raped women became pregnant. Complaints were lodged at the police but were
yet to be investigated. They declared that the attackers came back at night
to intimidate the villagers who had not fled, accusing them of supporting
the opposition. Everyone had to run away from the villages.
The women indicated that they were traumatized by the violent nature of the
attacks and said that they would not want to return to the villages as long
as their security is not assured. They lamented lack of water and a school
in the camp. The mission visited the police station to verify complaints and
the level of progress made on the reported cases of rape and other offences,
but the mission was unable to have access to the files as the officer in
charge of the said cases was absent at the time. At one of its meetings in
El Geneina, the mission was informed by the authorities of West Darfur State
that even though cases of rapes were reported to the police, investigations
could not be conducted because the victims could not identify their
attackers. Therefore the files were closed for lack of identification of the
perpetrators."
--------------------------------------------------------------------------------
[FN142] The African Commission conducted a Fact Finding Mission to the
Darfur Region of Sudan between 8-18 July 2004. The Report of the Mission was
adopted by the African Commission during the 3rd Extraordinary Session, held
in Pretoria, South Africa, and was published in its Activity Report
presented to the AU Executive Council. See paras 86, 87, and 88, at page 20
EX.CL/364(XI)Annex III.
--------------------------------------------------------------------------------
152. UN and Reports of International Human Rights Organisations attest to
the fact that the Respondent State has fallen short of its responsibility.
For instance, in her 2006 Report, the UN Special Rapporteur on the human
rights situation in The Sudan noted that, "the human rights situation
worsened from July 2005...and a comprehensive strategy responding to
transitional justice has yet to be developed in the Sudan." She added that
the cases prosecuted before the Special Criminal Court on the events in
Darfur "did not reflect the major crimes committed during the height of the
crisis in Darfur"........ "only one of the cases involved charges brought
against a high-ranking official, and he was acquitted."
153. The Special Rapporteur also found that "the Government has taken other
justice initiatives, but they too have fallen short of producing
accountability"[FN143] noting that "national laws ... effectively protect
Sudanese law enforcement officials from criminal prosecution [and that these
laws] contribute to a climate of impunity in the Sudan." The fact that the
abuses have persisted and are ongoing since the submission of the
Communications clearly demonstrates a weakness in the judicial system and
lack of effectiveness to guarantee effective investigations and suppression
of the said violations. In the opinion of the African Commission, lack of
effective investigations in cases of arbitrary killings and extra-judicial
executions amount to a violation of Article 4 of the African Charter.
--------------------------------------------------------------------------------
[FN143] Id. para 48.
--------------------------------------------------------------------------------
154. Regarding the allegation of Article 5, the Complainants simply make a
generalized allegation of human rights violations, adding that �methods used
included extra-judicial executions, torture, rape of women and girls and
arbitrary arrests and detentions, evictions and burning of houses and
property, etc. Article 5 of the Charter provides that �[e]very individual
shall have the right to the respect of the dignity inherent in a human being
and to the recognition of his legal status. All forms of exploitation and
degradation of man, particularly slavery, slave trade, torture, cruel,
inhuman or degrading punishment and treatment shall be prohibited'.
155. Article 5 of the African Charter is aimed at the protection of both the
dignity of the human person, and the physical and mental integrity of the
individual. The African Charter does not define the meaning of the words, or
the phrase "torture or degrading treatment or punishment.." However, Article
1 of the United Nations Convention Against Torture[FN144] defines, the term
'torture' to mean "....any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person for such purposes
as obtaining from him or a third person information or a confession,
punishing him for an act he or a third person has committed or is suspected
of having committed, or intimidating or coercing him or a third person for
any reason based on discrimination of any kind, when such pain or suffering
is inflicted by or at the instigation of or with the consent or acquiescence
of a public official or other person acting in an official capacity."
--------------------------------------------------------------------------------
[FN144] Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, G.A. res. 39/46, [annex, 39 U.N. GAOR Supp. (No.
51) at 197, U.N. Doc. A/39/51 (1984)], entered into force June 26, 1987.
--------------------------------------------------------------------------------
156. Torture thus constitutes the intentional and systematic infliction of
physical or psychological pain and suffering in order to punish, intimidate
or gather information. It is a tool for discriminatory treatment of persons
or groups of person who are subjected to the torture by the State or
non-state actors at the time of exercising control over such person or
persons. The purpose of torture is to control populations by destroying
individuals, their leaders and frightening entire communities.
157. The Complainant has submitted that the various incidences of armed
attacks by the military forces of the Respondent State, using military
helicopters and the Janjawid militia, on the civilian population, forced
eviction of the population from their homes and villages, destruction of
their properties, houses, water wells, food crops and livestock, and social
infrastructure, the rape of women and girls and displacement internally and
outside national borders of the Respondent State, constitute violation of
the various cited articles of the African Charter, one of which is Article
5. The totality of the aforesaid violations amount to both psychological and
physical torture, degrading and inhuman treatment, involving intimidation,
coercion and violence.
158. In Media Rights Agenda v Nigeria [FN145], the Commission stated that
the term �cruel, inhuman and degrading punishment or treatment' is to be
interpreted so as to extend the widest possible protection against abuse,
whether physical or mental. In John Modise v Botswana [FN146], the
Commission elaborated further and noted that �exposing victims to personal
sufferings and indignity violates the right to human dignity. It went on to
state that �personal suffering and indignity can take many forms, and will
depend on the particular circumstances of each Communication brought before
the African Commission'.
--------------------------------------------------------------------------------
[FN145] Communication 2245/1998.
[FN146] Communication 97/1993.
--------------------------------------------------------------------------------
159. Based on the above reasoning, the African Commission agrees with the UN
Committee Against Torture in Hijrizi v. Yugoslavia [FN147] that forced
evictions and destruction of housing carried out by non-state actors amounts
to cruel, inhuman and degrading treatment or punishment, if the State fails
to protect the victims from such a violation of their human rights. Hijrizi
v. Yugoslavia involved the forced eviction and destruction of the Bozova
Glavica settlement in the city of Danilovgrad by private residents who lived
nearby. The settlement was destroyed by non-Roman residents under the
watchful eye of the Police Department, which failed to provide protection to
the Romani and their property, resulting in the entire settlement being
leveled and all properties belonging to its Roma residents completely
destroyed. Several days later the debris of Bozova Glavica was completely
cleared away by municipal construction equipment, leaving no trace of the
community.
--------------------------------------------------------------------------------
[FN147] Communication No. 161/2000: UN Doc. CAT/C/29/D/161/2000 (2 December
2002).
--------------------------------------------------------------------------------
160. The Committee Against Torture found that the Police Department did not
take any appropriate steps to protect the residents of Bazova Glavica, thus
implying acquiescence and that the burning and destruction of their homes
constituted acts of cruel, inhuman or degrading treatment or punishment
within the meaning of Article 16 of the Convention Against Torture or other
Cruel, Inhuman Degrading Treatment or Punishment.[FN148] Consequently, the
Committee held that the Government of Serbia and Montenegro had violated
Article 16 of CAT by not protecting the rights of the residents of Bozova
Glavica.
--------------------------------------------------------------------------------
[FN148] Article 16 of the Convention Against Torture states in part that
"...Each State Party shall undertake to prevent in any territory under its
jurisdiction other acts of cruel, inhuman or degrading treatment or
punishment which do not amount to torture as defined in Article 1, when such
acts are committed by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official
capacity."
--------------------------------------------------------------------------------
161. In a similar case dealing with allegations that the applicants'
property had been destroyed by Turkish security forces, the European Court
of Human Rights arrived at the same conclusion, that the destruction of
homes and property was cruel and inhuman treatment. In Selçuk and Asker v
Turkey [FN149], the complainants were both Turkish citizens of Kurdish
origin living in the village of Islamköy. In the morning of 16 June 1993, a
large force of gendarmes arrived in Islamköy and set fire to the houses and
other properties of the said complainants.
--------------------------------------------------------------------------------
[FN149] European Court of Human Rights, Case of Selçuk and Asker v. Turkey,
Judgment of 24 April 1998, Reports 1998-II, p. 900, paras. 27-30.
--------------------------------------------------------------------------------
162. The Court held that "even in the most difficult of circumstances, such
as the fight against organised terrorism and crime, the Convention prohibits
in absolute terms torture or inhuman or degrading treatment or punishment."
The Court concluded that the treatment suffered by the applicants in this
case was so severe as to constitute a violation of Article 3[FN150], adding
that �...bearing in mind in particular the manner in which the applicants'
homes were destroyed ... and their personal circumstances, it is clear that
they must have been caused suffering of sufficient severity for the acts of
the security forces to be categorised as inhuman treatment within the
meaning of Article 3."
--------------------------------------------------------------------------------
[FN150] Article 3 of the European Convention provides that �No one shall be
subjected to torture or to inhuman or degrading treatment or punishment'.
--------------------------------------------------------------------------------
163. Human dignity is an inherent basic right to which all human beings,
regardless of their mental capabilities or disabilities are entitled to
without discrimination. It is an inherent right which every State is obliged
to respect and protect by all means possible.[FN151]
--------------------------------------------------------------------------------
[FN151] See Purohit & Moore v The Gambia, Communication 241/2001.
--------------------------------------------------------------------------------
164. In the present Communication, the Respondent State and its agents, the
Janjawid militia, actively participated in the forced eviction of the
civilian population from their homes and villages. It failed to protect the
victims against the said violations. The Respondent State, while fighting
the armed groups, targeted the civilian population, as part of its counter
insurgence strategy. In the opinion of the Commission this kind of treatment
was cruel and inhuman and threatened the very essence of human dignity.
165. The African Commission wishes to remind States Parties to the African
Charter to respect human and peoples' rights at all times including in times
of armed conflict. This was emphasised in Constitutional Rights Project, et
al/Nigeria in which this Commission stated that:
"[I]n contrast to other international human rights instruments, the African
Charter does not contain a derogation clause. Therefore limitation on the
rights and freedoms enshrined in the Charter cannot be justified by
emergencies or special circumstances. The only legitimate reasons for
limitation of the rights and freedoms of the African Charter are found in
Article 27(2), that is, that the rights of the Charter "shall be exercised
with due regard to the rights of others, collective security, morality and
common interest."
166. The forced eviction of the civilian population cannot be considered
permissible under Article 27(2) of the African Charter. Could the Respondent
State legitimately argue that it forcefully evicted the Darfur civilian
population from their homes, villages and other places of habitual
residence, on grounds of collective security, or any other such grounds or
justification, if any? For such reasons to be justifiable, the Darfurian
population should have benefited from the collective security envisage under
Article 27(2). To the contrary, the complaint has demonstrated that after
eviction, the security of the IDP camps was not guaranteed. The deployment
of peacekeeping forces from outside the country is proof that the Respondent
State failed in its obligation to guarantee security to the IDPs and the
civilian population in Darfur.
167. In its decision in the Commission Nationale des Droits de l'Hommme et
Libertes/Chad[FN152], the Commission reiterated its position that; "[t]he
African Charter , unlike other human rights instruments does not allow for
states to derogate from their treaty obligations during emergency
situations. Thus, even with a civil war in Chad [derogation] cannot be used
as an excuse by the State violating or permitting violations of rights in
the African Charter."
--------------------------------------------------------------------------------
[FN152] Communication No 74/92, 9th Annual Activity Report, 1995-1996 at
paragraph 21.
--------------------------------------------------------------------------------
168. In view of the above, the African Commission finds that the Respondent
State did not act diligently to protect the civilian population in Darfur
against the violations perpetrated by its forces, or by third parties. It
failed in its duty to provide immediate remedies to victims. The Commission
therefore finds that the Respondent State violated Articles 4 and 5 of the
African Charter.
ALLEGED VIOLATION OF ARTICLES 6 AND 7
169. The Complainant alleges arbitrary arrests and detentions of hundreds of
Darfurians. It argues that the Respondent State has legal obligations
pursuant to Article 6 of the African Charter to respect the right to liberty
as well as to protect the right to security of the person, by protecting
persons within its jurisdiction from non-state actors such as the Janjaweed
militia.
170. Article 6 of the African Charter provides that "every individual shall
have the right to liberty and to the security of his person. No one may be
deprived of his freedom except for reasons and conditions previously laid
down by law. In particular, no one may be arbitrarily arrested or detained".
Article 6 of the Charter has two arms - the right to liberty and the right
to security of the person.
171. The Complainant alleges that Article 6 has been violated. This
presupposes that the victims of the Darfur conflict, have through the
actions and omissions of the Respondent State, been subjected to among other
violations, the loss of their right to liberty, arbitrary arrest and
detention. Personal liberty is a fundamental condition, which everyone
should generally enjoy. Its deprivation is something that is likely to have
a direct and adverse effect on the enjoyment of other rights, ranging from
the right to family and private life, through the right to freedom of
assembly, association and expression, to the right to freedom of movement.
172. A simple understanding of the right to liberty is to define it as the
right to be free. Liberty thus denotes freedom from restraint - the ability
to do as one pleases, provided it is done in accordance with established
law. In the Purohit and Moore/The Gambia Case,[FN153] the Commission held
that prohibition against arbitrariness requires that deprivation of liberty
�shall be under the authority and supervision of persons procedurally and
substantively competent to certify it'.
--------------------------------------------------------------------------------
[FN153] Communication 241/01 published in the 16th Activity Report.
--------------------------------------------------------------------------------
173. The second arm of Article 6 deals with the right to security of the
person. This second arm, even though closely associated with the first arm,
the right to liberty, is different from the latter.
174. Security of the person can be seen as an expansion of rights based on
prohibitions of torture and cruel and unusual punishment. The right to
security of person guards against less lethal conduct, and can be used in
regard to prisoners' rights.[FN154] The right to security of the person
includes, inter alia, national and individual security. National security
examines how the State protects the physical integrity of its citizens from
external threats, such as invasion, terrorism, and bio-security risks to
human health.
--------------------------------------------------------------------------------
[FN154] Rhona K.M. Smith, Textbook on International Human Rights, second
edition, Oxford University Press, 2005, p. 245.
--------------------------------------------------------------------------------
175. Individual security on the other hand can be looked at in two angles -
public and private security. By public security, the law examines how the
State protects the physical integrity of its citizens from abuse by official
authorities, and by private security, the law examines how the State
protects the physical integrity of its citizens from abuse by other citizens
(third parties or non-state actors).
176. The Complainant submits with respect to the present Communication that
the forced eviction, destruction of housing and property and accompanying
human rights abuses amounted to a violation of Article 6 of the African
Charter. The majority of the thousands of displaced civilians who were
forcibly evicted from their homes and villages have not returned, in spite
of the measures taken by the Respondent State.
By its own account, the Respondent State admitted that only 100,000 IDPs
[FN155] have returned to their villages. It submitted further that
insecurity prevails in only 6 of the 34 Darfur localities. The numbers of
needy IDPs camped in various relief centres remains high, notwithstanding
the said improvements.
--------------------------------------------------------------------------------
[FN155] The figures given by UN and Non Governmental Humanitarian agencies
operating in Darfur indicate that the number of IDPs have for the most part
during the Darfur conflict ranged between 1,500,000 and 2,500,000.
--------------------------------------------------------------------------------
177. The Commission observes that IDPs and refugees can only return when
security and safety is guaranteed and the Respondent State provides the
protection in the areas of return. Voluntary return under situation of
forced displacement must be in safety and dignity. The Commission believes
that the right to liberty complements the right to freedom of movement under
Article 12. If the IDPs or the refugees are not able to move freely to their
homes, because of insecurity, or because their homes have been destroyed,
then their liberty and freedom is proscribed. Life in an IDP or refugee camp
cannot be synonymous with the liberty enjoyed by a free person in normal
society. The 2004 Mission of the African Commission to Darfur found that
male IDPs could not venture outside the camps for fear of being killed.
Women and girls who ventured outside the camps to fetch water and firewood
were raped by the Janjawid militia.
178. Cases of sexual and gender based violence against women and girls in
and outside IDP camps have been a common feature of the Darfur conflict. The
right to liberty and the security of the person, for women and girls, and
other victims of the Darfur conflict has remained an illusion. The
deployment of the African Union Mission in Sudan (AMIS) forces, could not
guarantee the implementation of the Abuja Darfur Peace Agreement. The United
Nations had to supplement the AU with the United Nations/African Union
Mission to Darfur hybrid forces, (UNAMID) to provide protection to the
civilian population.
179. In the present Communication, the Respondent State, in spite all the
information regarding the physical abuse the victims were enduring, has not
demonstrated that it took appropriate measures to protect the physical
integrity of its citizens from abuse either by official authorities or other
citizens/third parties. By failing to take steps to protect the victims, the
Respondent State violated Article 6 of the African Charter.
180. The Complainant argues that the victims' right guaranteed under Article
7 (1) of the African Charter has been violated due to the failure by the
Respondent State to investigate and prosecute its agents and the third
parties responsible for the abuses. Article 7 (1) of the Charter provides
that �Every individual shall have the right to have his cause heard. This
comprises a) The right to an appeal to competent national organs against
acts of violating his fundamental rights as recognised and guaranteed by
conventions, laws, regulations and customs in force; b) The right to be
presumed innocent until proved guilty by a competent court or tribunal; c)
The right to defence, including the right to be defended by counsel of his
choice; and d) The right to be tried within a reasonable time by an
impartial court or tribunal'.
181. The right to be heard requires that the complainants have unfettered
access to a tribunal of competent jurisdiction to hear their case. A
tribunal is competent having been given that power by law, it has
jurisdiction over the subject matter and the person, and the trial is being
conducted within any applicable time limit prescribed by law. Where the
competent authorities put obstacles on the way which prevent victims from
accessing the competent tribunals, they would be held liable.
182. Given the generalized fear perpetrated by constant bombing, violence,
burning of houses and evictions, victims were forced to leave their normal
places of residence. Under these circumstances, it would be an affront to
common sense and justice to expect the victims to bring their plights to the
courts of the Respondent State.
183. In Recontre Africaine pour la Defense des Droits de l'Homme/Republic of
Zambia, [FN156] the African Commission held that the mass expulsions,
particularly following arrest and subsequent detentions, deny victims the
opportunity to establish the legality of these actions in the courts.
Similarly, in Zimbabwe Human Rights NGO Forum/Zimbabwe[FN157], the African
Commission noted that the protection afforded by Article 7 is not limited to
the protection of the rights of arrested and detained persons but
encompasses the right of every individual to access the relevant judicial
bodies competent to have their causes heard and be granted adequate relief.
The Commission added that "If there appears to be any possibility of an
alleged victim succeeding at a hearing, the applicant should be given the
benefit of the doubt and allowed to have their matter heard."
--------------------------------------------------------------------------------
[FN156] Communication 71/1992. Communication 245/2002.
[FN157] American Declaration of the Rights and Duties of Man, O.A.S. Res.
XXX, adopted by the Ninth International Conference of American States
(1948), reprinted in Basic Documents Pertaining to Human Rights in the
Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 17 (1992).
--------------------------------------------------------------------------------
184. To borrow from the Inter-American human rights system, the American
Declaration of the Rights and Duties of Man158 provides in Article XVIII
that every person has the right to "resort to the courts to ensure respect
for [their] legal rights," and to have access to a "simple, brief procedure
whereby the courts" will protect him or her "from acts of the authority that
... violate any fundamental constitutional rights....".
185. In the present Communication, the forced evictions, burning of houses,
bombardments and violence perpetrated against the victims made access to
competent national organs illusory and impractical. To this extent, the
Respondent State is found to have violated Article 7 of the African Charter.
ALLEGED VIOLATION OF ARTICLE 12 (1)
186. The Complainant alleges that the forced evictions constitute a
violation of the right to freedom of movement and residence as guaranteed in
Article 12 (1) of the African Charter on Human and Peoples' Rights. The
Complainant argues that the forceful displacement of thousands upon
thousands of persons from their chosen and established places of residence
clearly contravenes the right to residence.
187. Freedom of movement is a fundamental human right to all individuals
within States. Freedom of movement is a right which is stipulated in
international human rights instruments, and the constitutions of numerous
States. It asserts that a citizen of a State, generally has the right to
leave that State, and return at any time. Also (of equal or greater
importance in this context) to travel to, reside in, and/or work in, any
part of the State the citizen wishes, without interference from the State.
Free movement is crucial for the protection and promotion of human rights
and fundamental freedoms.
188. Freedom of movement and residence are two sides of the same coin.
States therefore have a duty to ensure that the exercise of these rights is
not subjected to arbitrary restrictions. Restrictions on the enjoyment of
these rights should be proportionate and necessary to respond to a specific
public need or pursue a legitimate aim.
Under international law, it is the duty of States to take all measures to
avoid conditions which might lead to displacement and thus impact the
enjoyment of freedom of movement and residence. Principle 5 of the Guiding
Principles on Internal Displacement [FN159] requires States to adhere to
international law so as to prevent or avoid situations that might lead to
displacement.
--------------------------------------------------------------------------------
[FN159] OCHA/Brookings Institution on Internal Displacement, 1999 and
Implementing the Collaborative Response to Situations of Internal
Displacement, IASC, 2004.
--------------------------------------------------------------------------------
189. The right to protection from displacement is derived from the right to
freedom of movement and choice of residence contemplated in the African
Charter and other international instruments. Displacement by force, and
without legitimate or legal basis, as is the case in the present
Communication, is a denial of the right to freedom of movement and choice of
residence.
190. The Complainant submitted that thousands of civilian were forcibly
evicted from their homes to make-shift camps for internally displaced
persons or fled to neighbouring countries as refugees. People in the Darfur
region cannot move freely for fear of being killed by gunmen allegedly
supported by the Respondent State. The Respondent State failed to prevent
forced evictions or to take urgent steps to ensure displaced persons return
to their homes. The Commission therefore finds that the Respondent State has
violated Article 12 (1) of the African Charter.
ALLEGED VIOLATION OF ARTICLE 14
191. The Complainants also alleged violation of Article 14 of the Charter
which provides that �[t]he right to property shall be guaranteed. It may
only be encroached upon in the interest of public need or in the general
interest of the community and in accordance with the provisions of
appropriate laws'.
192. The right to property is a traditional fundamental right in democratic
and liberal societies. It is guaranteed in international human rights
instruments as well as national constitutions, and has been established by
the jurisprudence of the African Commission. [FN160] The role of the State
is to respect and protect this right against any form of encroachment, and
to regulate the exercise of this right in order for it to be accessible to
everyone, taking public interest into due consideration.
--------------------------------------------------------------------------------
[FN160] See Communications 71/92 - Rencontre Africaine pour la Défense des
Droits de l'Homme/Zambia, Communication 292/2004 - Institute for Human
Rights and Development in Africa/Republic of Angola, and Communication
159/1996 - Union Inter Africaine des Droits de l'Homme, Fédération
Internationale des Ligues des Droits de l'Homme and Others v. Angola.
--------------------------------------------------------------------------------
193. The right to property encompasses two main principles. The first one is
of a general nature. It provides for the principle of ownership and peaceful
enjoyment of property. The second principle provides for the possibility,
and conditions of deprivation of the right to property. Article 14 of the
Charter recognises that States are in certain circumstances entitled, among
other things, to control the use of property in accordance with the public
or general interest, by enforcing such laws as they deem necessary for the
purpose.
194. However, in the situation described by the present Communication, the
State has not taken and does not want to take possession of the victims'
property. The property has been destroyed by its military forces and armed
groups, acting on their own, or believed to be supported by the Respondent
State. Could it be said that the victims have been deprived of their right
to property? The answer to this is yes, and this is supported by
international jurisprudence.
195. In Dogan and others v Turkey[FN161],the applicants allege that State
security forces forcibly evicted them from their village, given the
disturbances in the region at that time, and also destroyed their property.
--------------------------------------------------------------------------------
[FN161] Applications nos. 8803-8811/02, 8813/02 and 8815-8819/02) 29 June
2004.
--------------------------------------------------------------------------------
196. The applicants complained to the European Court of Human Rights about
their forced eviction from their homes and the Turkish authorities' refusal
to allow them to return. They relied on among other provisions, Article 1
(obligation to respect human rights), Article 6 (right to a fair hearing),
Article 8 (right to respect for family life and home), and, Article 1 of
Protocol No. 1 (protection of property).
197. The Court also recalled that the state of emergency at the time of the
events complained of was characterised by violent confrontations between the
security forces and members of the PKK which forced many people to flee
their homes. The Turkish authorities had also evicted the inhabitants of a
number of settlements to ensure the safety of the population in the region.
In numerous similar cases the Court had found that security forces had
deliberately destroyed the homes and property of applicants, depriving them
of their livelihoods and forcing them to leave their villages.
198. The Court recognised that armed clashes, generalised violence and human
rights violations, specifically within the context of the PKK insurgency,
compelled the authorities to take extraordinary measures to maintain
security in the state of emergency region. Those measures involved, among
others, the restriction of access to several villages, including Boydaş, as
well as the evacuation of some villages.
199. The Court noted that the applicants all lived in Boydaş village until
1994. Although they did not have registered property, they either had their
own houses constructed on the lands of their ancestors or lived in houses
owned by their fathers and cultivated their fathers' land. They also had
unchallenged rights over the common lands in the village and earned their
living from breeding livestock and tree-felling. Those economic resources
and the revenue the applicants derived from them, according to the Court,
qualified as "possessions" for the purposes of Article 1 of Protocol No. 1.
200. The Court found that the applicants had had to bear an individual and
excessive burden which had upset the fair balance which should be struck
between the requirements of the general interest and the protection of the
right to the peaceful enjoyment of one's possessions. The Court made a
finding that Article 1 of Protocol No. 1 had been violated.[FN162]
--------------------------------------------------------------------------------
[FN162] Protocol to t he Convention (European) for the Protection of Human
Rights and Fundamental Freedoms, UNTS, Vol 213 No I-2889. No. 21893/93,
--------------------------------------------------------------------------------
201. The victims in the present Communication, have been forced out of their
normal places of residence by government military forces and militia forces
believed to be supported by the Respondent State. Their homes and other
possessions destroyed. The African Commission recognises that the Darfur
Region has been engulfed in armed conflict and there has been widespread
violence resulting in serious human rights violations. It is the primary
duty and responsibility of the Respondent State to establish conditions, as
well as provide the means, to ensure the protection of both life and
property, during peace time and in times of disturbances and armed
conflicts. The Respondent State also has the responsibility to ensure that
persons who are in harms way, as it seems the victims were, are resettled in
safety and with dignity in another part of the country.
202. In Akdivar and Others v. Turkey case [FN163], a situation similar to
the one prevailing in the Darfur, involving the destruction of housing in
the context of a conflict between the government and rebel forces, the
European Court of Human Rights held that the State is responsible for
violations perpetrated by both its own forces and the rebel forces because
it has the duty to respect and protect human rights.
--------------------------------------------------------------------------------
[FN163] 1996-IV, no. 15.
--------------------------------------------------------------------------------
203. The United Nations Sub-Commission on the Promotion and Protection of
Human Rights on 11 August 2005 endorsed a set of guidelines, known as the
Pinhero Principles, and recommended them to UN agencies, the international
community, including States and civil society, as a guide to address the
legal and technical issues concerning housing, and property restitution when
the rights thereof are violated. Principle 5 addresses the right to
protection from displacement. Paragraphs 5.3 and 5.4 of the Principles state
the following;
" States shall prohibit forced eviction, demolition of houses and
destruction of agricultural areas and the arbitrary confiscation or
expropriation of lands as a punitive measure or as a means or methods of
war."
" States shall take steps to ensure that no one is subjected to displacement
by either State or non State actors. States shall also ensure that
individuals, corporations, and other entities within their legal
jurisdiction or effective control refrain from carrying out or otherwise
participating in displacement
204. The African Commission is aware that the Pinhero Principles are
guidelines and do not have any force of law. They however reflect the
emerging principles in international human rights jurisprudence. When these
principles are read together with decisions of regional bodies, such as the
cited European Court decisions, the African Commission finds great
persuasive value in the said principles, albeit as a guide to interpret the
right to property under Article 14 of the African Charter.
205. In the present Communication, the Respondent State has failed to show
that it refrained from the eviction, or demolition of victims' houses and
other property. It did not take steps to protect the victims from the
constant attacks and bombings, and the rampaging attacks by the Janjaweed
militia. It doesn't matter whether they had legal titles to the land, the
fact that the victims cannot derive their livelihood from what they
possessed for generations means they have been deprived of the use of their
property under conditions which are not permitted by Article 14. The
Commission therefore finds the Respondent State in violation of Article 14.
ALLEGED VIOLATION OF ARTICLE 16
206. The Complainant also alleges violation of Article 16 of the African
Charter. Article 16 provides that, �[e]very individual shall have the right
to enjoy the best attainable state of physical and mental health... States
Parties to the present Charter shall take the necessary measures to protect
the health of their people and to ensure that they receive medical attention
when they are sick'.
207. The Complainant submits that the Respondent State was complicit in
looting and destroying foodstuffs, crops and livestock as well as poisoning
wells and denying access to water sources in the Darfur region.
208. In recent years, there have been considerable developments in
international law with respect to the normative definition of the right to
health, which includes both health care and healthy conditions. The right to
health has been enshrined in numerous international and regional human
rights instruments, including the African Charter.
209. In its General Comment No. 14 on the right to health adopted in 2000,
the UN Committee on Economic, Social and Cultural Rights sets out that, �the
right to health extends not only to timely and appropriate health care but
also to the underlying determinants of health, such as, access to safe and
portable water, an adequate supply of safe food, nutrition, and housing...'.
In terms of the General Comment, the right to health contains four elements:
availability, accessibility, acceptability and quality, and impose three
types of obligations on States - to respect, fulfil and protect the right.
In terms of the duty to protect, the State must ensure that third parties
(non-state actors) do not infringe upon the enjoyment of the right to
health.
210. Violations of the right to health can occur through the direct action
of States or other entities insufficiently regulated by States. According to
General Comment 14, �states should also refrain from unlawfully polluting
air, water and soil, ... during armed conflicts in violation of international
humanitarian law... States should also ensure that third parties do not limit
people's access to health-related information and services, and the failure
to enact or enforce laws to prevent the pollution of water...[violates the
right to health]'.
211. In its decision on Free Legal Assistance Group and Others v.
Zaire[FN164] the Commission held that the failure of the Government to
provide basic services such as safe drinking water and electricity and the
shortage of medicine ... constitutes a violation of Article 16.
--------------------------------------------------------------------------------
[FN164] Communications 25/89, 47/90, 56/91 and 100/93.
--------------------------------------------------------------------------------
212. In the present Communication, the destruction of homes, livestock and
farms as well as the poisoning of water sources, such as wells exposed the
victims to serious health risks and amounts to a violation of Article 16 of
the Charter.
ALLEGED VIOLATION OF ARTICLE 18 (1)
213. With respect to the alleged violation of Article 18 (1), the
Complainants argue that the destruction of homes and evictions of the
victims constituted a violation of this sub-paragraph of Article 18. Article
18 (1) recognizes that �[t]he family shall be the natural unit and basis of
society'. It goes further to place a positive obligation on States, stating
that �[t]he family shall be protected by the State which shall take care of
its physical health and moral'. This provision thus establishes a
prohibition on arbitrary or unlawful interference with the family.
214. In its General Comment No. 19, the Human Rights Committee stated that
�ensuring the protection provided for under article 23 of the Covenant
requires that States parties should adopt legislative, administrative or
other measures...'. Ensuring protection of the family also requires that
States refrain from any action that will affect the family unit, including
arbitrary separation of family members and involuntary displacement of
families. In the Dogan case, the European Court of Human Rights also held
that the refusal of access to the applicants' homes and livelihood
constituted a serious and unjustified interference with the right to respect
for family life and home. The Court concluded that there had been a
violation of Article 8 of the European Convention, which protects the right
to family, similar to Article 18 (1) of the African Charter.
215. In Union Inter Africaine des Droits de l'Homme, Federation
Internationale des Ligues des Droits de l'Homme and Others v. Angola
[FN165], the Commission found that massive forced expulsion [ whether in
peace time or war time] of population has a negative effect on the enjoyment
of the right to family. In that Communication, it was alleged that between
April and September 1996, the Angolan government rounded up and expelled
West African nationals from its territory. These expulsions were preceded by
acts of brutality committed against Senegalese, Malian, Gambian, Mauritanian
and other nationals. The victims lost their belongings, and in some cases,
families were separated. The African Commission held that mass expulsions of
any category of persons, whether on the basis of nationality, religion,
ethnic, racial or other considerations "constitute a special violation of
human rights". The Commission added that �by deporting the victims, thus
separating some of them from their families, the Defendant State had
violated and violates Article [18 (1) of the Charter].
--------------------------------------------------------------------------------
[FN165] Communications 159/1996.
--------------------------------------------------------------------------------
216. The Respondent State and its agents, the Janjaweed militia forcefully
evicted the victims from their homes, some family members were killed,
others fled to different places, inside and outside the territory of the
Respondent State. This kind of scenario threatens the very foundation of the
family and renders the enjoyment of the right to family life difficult. By
not ensuring protection to the victims, thus allowing its forces or third
parties to infringe on the rights of the victims, the Respondent State is
held to have violated Article 18 (1) of the African Charter.
ALLEGED VIOLATION OF ARTICLE 22
217. The Complainant alleges violation of Article 22 (1) of the Charter.
Article 22 (1) provides that �[a]ll peoples shall have the right to their
economic, social and cultural development with due regard to their freedom
and identity and in the equal enjoyment of the common heritage of mankind.
(2). States shall have the duty, individually or collectively, to ensure the
exercise of the right to development."
218. The right to economic, social and cultural development envisaged in
Article 22 is a collective right endowed on a people. To determine violation
under this article, the Commission will first have to determine whether the
victims constitute a "people" within the context of the African Charter.
219. The population in the Darfur Region, alleges the Complainant, is made
up of three major tribes, namely the Zaghawa, the Fur, and the Marsalit.
These tribes are described as being "people of black African origin". The
Respondent State is the largest state in Africa. Part of its population is
of Arab stock. A common feature shared between the people of Darfur and the
population of the other parts of the Respondent State, except for Southern
Sudan, is that they predominantly subscribe to the Islam religion and
culture.
220. By attempting to interpret the content of a "peoples' right," the
Commission is conscious that jurisprudence in that area is still very fluid.
It believes, however, that in defining the content of the peoples' right, or
the definition of "a people," it is making a contribution to Africa's
acceptance of its diversity. An important aspect of this process of defining
"a people" is the characteristics, which a particular people may use to
identify themselves, through the principle of self identification, or be
used by other people to identify them. These characteristics, include the
language, religion, culture, the territory they occupy in a state, common
history, ethno - anthropological factors, to mention but a few. In States
with mixed racial composition, race becomes a determinant of groups of
"peoples", just as ethnic identity can also be a factor. In some cases
groups of "a people" might be a majority or a minority in a particular
State. Such criteria should only help to identify such groups or sub groups
in the larger context of a States' wholesome population.
221. It is unfortunate that Africa tends to deny the existence of the
concept of a "people" because of its tragic history of racial and ethnic
bigotry by the dominant racial groups during the colonial and apartheid
rule. The Commission believes that racial and ethnic diversity on the
continent contributes to the rich cultural diversity which is a cause for
celebration. Diversity should not be seen as a source of conflict. It is in
that regard that the Commission was able to articulate the rights of
indigenous people and communities in Africa. Article 19 of the African
Charter recognizes the right of all people to equality, to enjoy same
rights, and that nothing shall justify a domination of a people by another.
222. There is a school of thought, however, which believes that the "right
of a people" in Africa can be asserted only vis-à-vis external aggression,
oppression or colonization. The Commission holds a different view, that the
African Charter was enacted by African States to protect human and peoples'
rights of the African peoples against both external and internal abuse.
223. In this regard it protects the rights of every individual and peoples
of every race, ethnicity, religion and other social origins. Articles 2 and
19 of the Charter are very explicit on that score. In addressing the
violations committed against the people of Darfur, the Commission finds that
the people of Darfur in their collective are "a people," as described under
Article 19. They do not deserve to be dominated by a people of another race
in the same state. Their claim for equal treatment arose from the alleged
underdevelopment and marginalization. The response by the Respondent State,
while fighting the armed conflict, targeted the civilian population, instead
of the combatants. This in a way was a form of collective punishment, which
is prohibited by international law. It is in that respect that the
Commission views the alleged violation of Article 22.
224. The Complainant alleged that the violations were committed by
government forces, and by an Arab militia, the Janjaweed, against victims of
black African tribes. The attacks and forced displacement of Darfurian
people denied them the opportunity to engage in economic, social and
cultural activities. The displacement interfered with the right to education
for their children and pursuit of other activities. Instead of deploying its
resources to address the marginalisation in the Darfur, which was the main
cause of the conflict, the Respondent State instead unleashed a punitive
military campaign which constituted a massive violation of not only the
economic social and cultural rights, but other individual rights of the
Darfurian people. Based on the analysis hereinabove, concerning the nature
and magnitude of the violations, the Commission finds that the Respondent
State is in violation of Article 22 of the Africa Charter.
225. In Conclusion, the Commission would like to address the Complainant's
prayer that the Commission draws the attention of the Assembly of the Africa
Union to the serious and massive violations of human and peoples' rights in
the Darfur, so that the Assembly may request an in-depth study of the
situation. The Commission wishes to state that it undertook a fact finding
mission to the Darfur suo motu, in July 2004. Its findings and
recommendations were sent to the Respondent State and the African Union. The
Commission has continued to monitor the human rights situation in the Darfur
through its country and thematic rapportuers and has presented reports on
the same to each Ordinary Session of the Commission, which are in turn
presented to the Assembly of the African Union.
226. The African Union has deployed its peacekeepers together with the
United Nations under the UNAMID hybrid force. In the Commission view, these
measures constitute what would most likely ensue, if an in-depth study were
undertaken under Article 58. The request by the Complainant would have been
appropriate had no action been taken by the African Commission or the organs
of the African Union.
227. The African Commission concludes further that Article 1 of the African
Charter imposes a general obligation on all States parties to recognise the
rights enshrined therein and requires them to adopt measures to give effect
to those rights. As such any finding of violation of those rights
constitutes violation of Article 1.
228. Based on the above reasoning, the African Commission holds that the
Respondent State, the Republic of The Sudan, has violated Articles 1, 4, 5,
6, 7(1), 12(1) and (2), 14, 16, 18(1) and 22 of the African Charter.
229. The African Commission recommends that the Respondent State should take
all necessary and urgent measures to ensure protection of victims of human
rights violations in the Darfur Region, including to:
a. conduct effective official investigations into the abuses, committed by
members of military forces, i.e. ground and air forces, armed groups and the
Janjaweed militia for their role in the Darfur;
b. undertake major reforms of its legislative and judicial framework in
order to handle cases of serious and massive human rights violations;
c. take steps to prosecute those responsible for the human rights
violations, including murder, rape, arson and destruction of property;
d. take measures to ensure that the victims of human rights abuses are given
effective remedies, including restitution and compensation;
e. rehabilitate economic and social infrastructure, such as education,
health, water, and agricultural services, in the Darfur provinces in order
to provide conditions for return in safety and dignity for the IDPs and
Refugees;
f. establish a National Reconciliation Forum to address the long-term
sources of conflict, equitable allocation of national resources to the
various provinces, including affirmative action for Darfur, resolve issues
of land, grazing and water rights, including destocking of livestock;
g. desist from adopting amnesty laws for perpetrators of human rights
abuses; and
h. consolidate and finalise pending Peace Agreements.
Adopted during the 45th Ordinary Session, held between 13 and 27 May 2009,
Banjul, The Gambia. |
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