UPDATE: The Crisis in Darfur: Researching the Legal Issues
By Amy Burchfield
Amy Burchfield is the Head of Access and Faculty Services at the Cleveland-Marshall College of Law Library. She previously worked as an International and Foreign Law Reference Librarian at the John Wolff International & Comparative Law Library at the Georgetown University Law Center. Ms. Burchfield earned her JD from The Ohio State University Moritz College of Law and an MLIS and MA in German translation from Kent State University. She is the author of International Sports Law and International Criminal Courts for the Former Yugoslavia, Rwanda and Sierra Leone.
Published October 2011
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Table of Contents
2. The Crisis
“ . . . [W]hen you see entire villages raped and killed, wells poisoned and then filled with the bodies of its villagers, then all complexities disappear and it comes down to simply right and wrong. It’s not getting better. It’s getting much, much worse. And it is only the international community that can help us.”
-- George Clooney, actor and director, in Sept. 14, 2006 address to United Nations Security Council
Mr. Clooney’s 2006 plea to the international community for help in the violence-stricken Darfur region of Sudan does not appear to have fallen on deaf ears. Arguably, the International Criminal Court’s investigation of the situation in Darfur, and subsequent arrest warrants for Sudanese President Oman Hassan Ahmad al-Bashir is a clear indication that the international community is responding to the crisis in Darfur.
The aim of this brief essay is to direct researchers to key online and print resources discussing the legal aspects of the Darfur crisis. Each section of this essay summarizes key issues, and links to the important documents, reports, treaties, and resolutions impacting these issues. The “examples of scholarship” subsections point researchers toward recent analysis and criticism. It is not the intent of this essay to produce a comprehensive bibliography.
For all but 11 years since independence in 1956, Sudan has been racked with civil conflict. Noted expert on African history and politics, Mahmood Mamdani, explains that what began as a “localized civil war” in the late 1980s developed into “a rebellion” in 2003. (Mamdani, Saviors and Survivors, Pantheon Books, 2009, p. 4) On the one side of the conflict were two rebel groups, the Sudan Liberation Movement/Army (SLM/A) and the Justice and Equality Movement (JEM). The other side comprised Sudanese government militia and the “Janjaweed,” black African Muslims of Arab descent. (U.S. Dept. of State, Background Note: Sudan). Several failed attempts, such as the Darfur Peace Agreement, have sought to bring peace to the region.
As of September 2010, the United Nations estimates that 300,000 people have died in the Darfur crisis since 2003. The Internal Displacement Monitoring Center estimates that between 4.5 and 5.2 million people have been displaced from their homes.
A notable recent development in the conflict is the International Criminal Court’s issuance of a second arrest warrant in July 2010 for Sudanese President Oman Hassan Ahmad al-Bashir, indicting him for genocide.
The question of whether or not the violence in Darfur is rightly called genocide has been debated. The United States has declared that it is genocide. On June 24, 2004, the U.S. House stated that “the atrocities unfolding in Darfur, Sudan, are genocide” and urged the Bush administration “to call the atrocities being committed in Darfur, Sudan, by its rightful name: ‘genocide.’ (H.Con.Res.467 from the 108th Congress, three versions from Thomas) Secretary of State Colin Powell echoed this stance, declaring, “genocide has been committed in Darfur, and…the Government of Sudan and the janjaweed bear responsibility.” (S. Hrg. 108-866 of Sept. 9, 2004) “Yet the violence in Darfur region is clearly genocide,” President Bush declared on June 30, 2005, “The human cost is beyond calculation.” In a July 2009 speech before the parliament in Ghana, President Obama also characterized the crisis in Darfur as genocide.
to United Nations Security Council resolution 1564 (2004), the International
Commission of Inquiry on Darfur was tasked with determining whether or not
genocide had occurred in Darfur. The Commission of Inquiry issued a Report in January 2005 in which it
concluded that “the Government of Sudan has not pursued a policy of genocide.”
However, the Commission did conclude that “the Government of the Sudan and the
Janjaweed are responsible for serious violations of international human rights
and humanitarian law amounting to crimes under international law” and
recommended that the situation be referred to the International Criminal Court
Since the publication of the 2005 Commission of Inquiry Report, a number of scholars have agreed that the term ‘genocide’ should be avoided in relation to the situation in Darfur. One such scholar is Mahmood Mamdani from Columbia University. Mamdani cautions about the consequences of calling the violence in Darfur genocide:
“… [T]he description of the violence as genocide—racial killing—has served to further racialize the conflict and give legitimacy to those who seek to punish rather than to reconcile. Thus, the movement to save Darfur, which initially had the salutary effect of directing world attention to the horrendous violence in Darfur in 2003-4, must now bear some of the blame for delaying reconciliation by focusing on a single-minded pursuit of revenge as punishment.” (Mamdani, Saviors and Survivors, 7-8)
In July 2010, the International Criminal Court issued a second arrest warrant for Sudanese president al-Bashir that indicted him on three counts of genocide. See section five of this guide for more information.
Examples of Scholarship
Sudan is a state party to several international human rights treaties. The Sudanese government has the legal obligation to uphold the provisions of the treaties to which it is a party. The Sudanese government’s support of the Janjaweed’s alleged massacre, rape, forced displacement, and torture of thousands of Sudanese citizens may amount to violations of several key international human rights treaties. Especially implicated is the prohibition on torture or other forms of cruel, inhuman or degrading treatment or punishment, which is embodied in:
Other potential treaty provisions implicated by the situation in Darfur include:
The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) would certainly apply, but Sudan has no legal obligations under this treaty, since it is not a state party. However, certain provisions of this treaty could be considered customary international law.
Finally, discussion of the Geneva Conventions and their Commentaries is featured prominently in the legal literature on Darfur. These materials can be found on the International Committee of the Red Cross (ICRC) website.
On March 31, 2005, the United Nations in Security Council resolution 1593 referred the situation in Darfur to the prosecutor of the International Criminal Court (ICC), stating that “the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with . . . the Court and the Prosecutor pursuant to this resolution. . .” Following the referral, the ICC decided to open investigations into the situation in Darfur. ICC Prosecutor Luis Moreno-Ocampo said: “[The investigation] will form part of a collective effort, complementing African Union and other initiatives to end the violence in Darfur and to promote justice. Traditional African mechanisms can be an important tool to complement these efforts and achieve local reconciliation.”
The pre-trial chamber of the ICC issued an arrest warrant on March 4, 2009 for Oman Hassan Ahmad al-Bashir, the current president of Sudan. Al-Bashir was charged with five counts of crimes against humanity in violation of the Rome Statute:
Al-Bashir was also charged with two counts of war crimes in violation of the Rome Statute:
1. Genocide by killing in violation of article 6 (a)
2. Genocide by causing serious bodily or mental harm in violation of article 6 (b); and
3. Genocide by deliberately inflicting conditions of life calculated to bring about physical destruction in violation of article 6 (c).
As of this time, al-Bashir remains at large. Updates to the case are regularly posted by the ICC.
The ICC has issued two additional arrest warrants in the Darfur investigation: one against Ahmad Muhammad Harun “Ahmad Harun”, the former Minister of State for the Interior, and one against Ali Muhammad Ali Abd-Al-Rahman “Ali Kushayb,” the alleged leader of the Janjaweed. Ahmad Harun and Ali Kushayb were both charged with 51 counts each of war crimes and crimes against humanity in violation of the Rome Statute. Updates to this case are regularly posted by the ICC. Ahmad Harun and Ali Kushayb remain at large.
Three individuals associated with the United Resistance Front have also been under investigation by the ICC.
Examples of Scholarship
The U.N. International Commission of Inquiry in Darfur 2005 report made the following factual finding on violence against women in Darfur:
“Various sources reported widespread rape and other serious forms of violence committed against women and girls in all three states of Darfur. According to these sources, the rape of individual victims was often multiple, carried out by more than one man, and accompanied by other severe forms of violence, including beating and whipping. In some cases, women were reportedly raped in public, and in some incidents, the women were further berated and called “slaves….”
The Commission of Inquiry report further described incidents of abduction, sexual slavery, and the particular dangers faced by girls and internally displaced persons (IDPs). For additional information, see the section on refugees and IDPs below.
The U.S. State Department’s Country Reports on Human Rights Practices for Sudan likewise documents the prevalence of rape and other forms of violence against women in the Darfur region. The 2010 Human Rights Report for Sudan documents gender-based violence, citing that women in Darfur were “assaulted, raped, threatened, shot, beat, and robbed.” The report also discusses access to justice problems for women facing gender-based violence. Country Reports on Sudan are available online from the U.S. State Department for 1999-2010.
International organizations have reported findings similar to those documented by the United Nations and the U.S. State Department. A 2004 report from Amnesty International, Sudan: Darfur: Rape as a Weapon of War: Sexual Violence and Its Consequences, gives detailed information on the prevalence of rape in Darfur, the problems of stigma and ostracism, and the international legal standards that address the issue.
A 2008 Human Rights Watch report, Five Years On: No Justice for Sexual Violence in Darfur, discusses the lack of meaningful response to the problem of sexual violence in the area.
Examples of Scholarship
According to the 2011 UNHCR country operations profile, there are 387,288 refugees originating from Sudan, and 262,900 of these refugees living in the neighboring country of Chad, which borders Darfur.
In addition to the refugee crisis, Sudan must support a huge population of internally displaced persons (IDPs). The UN Guiding Principles on Internal Displacement defines IDPs as “persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized state border.” The Internal Displacement Monitoring Centre (iDMC) gives between 4.5 and 5.2 million as the current statistic on the number of IDPs in Sudan. The UNHCR reports that there are 1,548,000 IDPs in Sudan and an additional 76,100 individuals in IDP-like situations.
Refugees and IPDs face horrific violence at the hands of government forces and militias as part of a campaign of “ethnic cleansing.” Rape and sexual violence have been used as a method to terrorize the women and girls in this vulnerable population. A 2005 Human Rights Watch Briefing Paper on sexual violence in Darfur notes that internally displaced women are at particular risk for rape when collecting firewood or fetching water. The practices of public rape, gang rape, beatings and whippings, and sexual mutilation as documented by the 2005 International Commission of Inquiry report are echoed in this Human Rights Watch paper.
Examples of Scholarship
An overarching concept in area of humanitarian intervention is the “responsibility to protect” or RtoP. The International Commission on Intervention and State Sovereignty conducted a thorough study of this issue and reported its findings in a 2001 report, The Responsibility to Protect. This document invokes the precautionary principle and states that “prevention is the single most important dimension of the responsibility to protect: prevention options should always be exhausted before intervention is contemplated…”
The African Union and the United Nations have been involved in overlapping peacekeeping operations in Darfur for over seven years. AMIS, the African Union Mission in the Sudan, operated in the area from 2004-2007. AMIS merged into UNAMID, as dictated by Security Council resolution 1706(2006). On July 31, 2007, pursuant to Security Council resolution 1769, UNAMID, the African Union – United Nations Hybrid Operation in Darfur, was established. UNAMID’s website links to their mandate, background information, key documents, and the Darfur Peace Agreement. Security Council Resolution 2003 of July 2011 stresses the need of UNAMID to protect civilians.
UNMIS, the United Nations Mission in the Sudan, was established by Security Council resolution 1590 (2005); the mission was assigned peacekeeping responsibilities in Darfur pursuant to the 2004 Security Council resolution 1556. The UNMIS operation was further authorized under Security Council resolution 1812 (2008). With the independence of South Sudan on July 9, 2011, the UNMIS operation concluded.
Scholars, human rights groups, and others have criticized the conduct of peacekeeping missions, especially with regard to the security of civilian populations. In its 2007 report, Chaos by Design, Human Rights Watch notes the peacekeeping challenges for AMIS and UNAMID and makes a series of recommendations for improvement.
Examples of Scholarship
Researchers can find geographical, population, government, economic, and general information on Sudan from the CIA World Factbook.
Sharanjeet Parmar’s GlobaLex guide provides a legal overview of Sudan. The Foreign Law Guide, a pay subscription database available in academic and other libraries, is another source for legal information on Sudan. Foreign Law Guide lists the primary sources of Sudanese law, as well as references to topic-specific laws. AllAfrica.com posts up-to-date news stories from Sudan and other African countries. Current content on AllAfrica.com is free, but access to older materials requires a subscription. For a chronological overview, BBC News has posted Timeline: Sudan, covering the area from the nineteenth century to the present.
Human rights reports survey the legal, humanitarian, and civil rights landscape of a country on an annual basis. These reports are often written by government entities or non-governmental organizations (NGOs). Three well-respected sources for human rights reports are the U.S. Department of State (2010 Sudan report), Amnesty International (2011 Sudan report) and Human Rights Watch (2011 world report). Human rights reports make both generalizations about the human rights climate of a particular country, as well as document specific human rights abuses. Human rights reports are widely cited in the legal literature and can be rich sources for country research.
Examples of Scholarship
Days after the first al-Bashir arrest warrant was issued by the ICC, news agencies reported that the Sudanese president expelled at least 13 aid organizations from Sudan, including Oxfam, Doctors Without Borders, the International Rescue Committee, and others.
Such organizations often issue reports and provide other types of background information. For example, Human Rights Watch collects a large number of documents on Sudan. Amnesty International has news and publications as well as recent reports. Doctors Without Borders reports on the health and humanitarian aid situation in the region.
Examples of Scholarship
The crisis in Darfur is an ongoing tragedy. The response of the international community to this crisis will be closely monitored by governments, international organizations, and scholars worldwide. This brief guide aims to assist researchers in finding online and print resources addressing the legal aspects of this conflict.