UPDATE: The Crisis in Darfur – Researching the Legal Issues

By Andrew Dorchak

Andrew Dorchak is Head of Reference and Foreign/International Law Specialist at The Judge Ben C. Green Law Library at Case Western Reserve University's School of Law, University in Cleveland, Ohio. He has assisted law students researching international criminal law topics since 2002.

Published July/August 2023

(Previously updated by Amy Burchfield in October 2011, May/June 2014, and March 2018)

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1. Introduction

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.

2. Recent Events

May 2023

President Biden signs an Executive Order authorizing possible future U.S. sanction on Sudan (May 4).

Executive Order on Imposing Sanctions on Certain Persons Destabilizing Sudan and Undermining the Goal of a Democratic Transition | The White House

April 2023

Unfortunately, the fighting from April 15-24, 2023, has resulted in hundreds of deaths and thousands of injuries. The UN Secretary General Antonio Guterres strongly advocates for protection of civilian areas, humanitarian aid operations, and civilians’ rights to food, water, and safety while evacuating dangerous areas. See the Secretary-General’s press statement and address to the Security Council.

The U.S. State Department created a special taskforce to deal with the Sudan situation in April 2023.

After an attack on the prison where al-Bashir was held, he was moved to an army hospital. See Jailed strongman’s whereabouts unknown amid Sudan chaos | AP

(April 25); Ousted Sudanese President Omar al-Bashir held at Army Hospital | Al Jazeera (April 26).

December 2022

Political framework agreement proposed (Dec. 7). Civilian and military leaders sign the agreement to work to restore a civilian-led government, with a final agreement to be signed in April 2023

Text of the framework agreement

October 2022

Military coup dissolved the power-sharing government and declared a state of emergency.

The military has taken over in Sudan. Here’s what happened | CNN

August 2021

Sudan says it will hand over al-Bashir to the International Criminal Court but gives no time frame. The ICC charged al-Bashir with genocide, war crimes, and crimes against humanity over a decade earlier (see Section 6, ICC.)

Sudan says will ‘hand over’ al-Bashir to ICC for war crimes trial | Al Jazeera

October 2020 The Juba Agreement for Peace in Sudan (Oct. 3)
December 2019

Al-Bashir was convicted of corruption in the Sudanese court and sentenced to two years in a reform center, in the resolution of the first of many court cases against him.

Sudan’s Omar al-Bashir sentenced to two years for corruption | Al Jazeera

August 2019

Transitional Military Council and civilian opposition agree to share power under a Constitutional Declaration.

Sudan Transitional Military Council and opposition forces agree to a final Constitutional Declaration | CNN

April 2019

Military coup ousts al-Bashir after 30 years of ruling Sudan.

Sudan’s Omar al-Bashir forced out in coup | CNN

February 2017 UN Security Council resolution 2340 (2017) acknowledged improved conditions, while still expressing concerns about access to Darfur by Expert Panel members; violence against civilians; and recruitment of child soldiers. (Feb. 8)
June 2011

Framework agreement (June 28)

Sudan’s difficult path to democratic transition | DW

May 2006 Darfur Peace Agreement, one of several failed attempts to resolve the conflict. (May 6)


Selected Scholarship

3. The Question of Genocide

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). 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 October 2009, President Barack Obama released a statement on Sudan strategy in which he referred to the crisis in Darfur as genocide: “The genocide in Darfur has claimed the lives of hundreds of thousands of people and left millions more displaced.... Our conscience and our interests in peace and security call upon the United States and the international community to act with a sense of urgency and purpose.” Commentators have noted that in recent years, President Obama was largely silent on the issue of Darfur, until he signed Executive Order 13761 on Jan. 13, 2017, which would lead to the removal of sanctions against Sudan by the following July if conditions were met. (After an additional review period, the Trump Administration formally removed the sanctions in October 2017.)

Pursuant to UN 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 Feb., 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 (ICC).

Since the publication of the 2005 Commission of Inquiry Report, several 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. In Saviors and Survivors, 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.” (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.

Selected Scholarship

4. Treaties Implicated

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.

5. International Criminal Court

On March 31, 2005, UN 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:

On July 12, 2010, the ICC issued a second arrest warrant for al-Bashir, charging him with three counts of genocide in violation of the Rome Statute:

The ICC provides a Q&A on the 2019 Appeals Chamber’s Judgment in the Jordan Referral, about Jordan’s obligation to arrest Al-Bashir and surrender him to the ICC. The ICC maintains information about the situation in Darfur, Sudan. The ICC does not try people in absentia, and there is no police force of its own to apprehend suspects.

Ali Muhammad Ali Abd-Al-Rahman, “Ali Kushayb,” alleged leader of the Janjaweed was charged with 22 counts of crimes against humanity and 28 counts of war crimes. Charges were confirmed on July 9, 2021 (. He voluntarily surrendered in 2020 and his trial commenced on April 5, 2022.

Ahmad Harun, former Minister of State for the Interior, was charged with 20 counts of crimes against humanity and 22 counts of war crimes. He is still at large.

Adbel Raheem Muhammad Hussein, the former Minister of the Interior, was charged with seven counts of crimes against humanity and six counts of war crimes. He is still at large.

Abdulla Banda Abakaer Nourain appeared voluntarily before the Pre-Trial Chamber, which confirmed charges of war crimes in 2011. An arrest warrant was issued in 2014. He is at large. The related case against Saleh Mohammed Jerbo Jamus was terminated when he died in 2013.

The case against Bahar Idriss Abu Garda on three alleged war crimes was closed after charges were not confirmed on Feb. 8, 2010, and the Prosecutor’s subsequent appeal was rejected.

Selected Scholarship

6. Violence Against Women

The UN International Commission of Inquiry in Darfur report (2005) 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 or Sudan likewise documents the prevalence of rape and other forms of violence against women in the Darfur region. The 2013 Human Rights Report states for Sudan documents gender-based violence, citing that women in Darfur were “assaulted, raped, threatened, shot, beat, and robbed.” The report also discusses the fact that most victims of rape do not report the crimes. Country Reports on Sudan are available online from the U.S. State Department for 1999-2013.

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. In January 2016, a Human Rights Watch report stated that “[s]exual violence emerged as a major trend in Sudan in the last 18 months. In Darfur, the Rapid Support Forces … used sexual violence throughout 2015 in Jebel Mara, including “killing, beating, and raping scores of women” at a hospital in Golo.

Selected Scholarship

7. Refugees and Internally Displaced Persons

According to the UNHCR in 2023, as of March 31, 2017, there are over 1 million refugees, and asylum seekers; over 3.7 million internally displaced persons, and 2,060 refugee returnees.

As of 2022, approximately 8.9 million people needed humanitarian assistance, including over 2 million displaced people. In March 2022, the UN launched a $1.7 billion Humanitarian Response Plan. 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.”

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.

A 2021 Amnesty International report details the horrific attacks on displacement camps which show the need for UN peacekeepers.

Selected Scholarship

8. Interventions and Peacekeeping Forces

An overarching concept in area of humanitarian intervention is the “responsibility to protect” or R2P. The U.N. Secretary-General’s 2021 report on responsibility to protect emphasizes its operationalized R2P work: “prevention, early warning and response work.”

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. Resolution Security Council resolution 2003 (2011) stressed the need of UNAMID to protect civilians. Security Council resolution 2113 (2013) extended UNAMID’s mandate through August 31, 2014. UNAMID completed its mission on Dec. 31, 2021.

UNMIS, the United Nations Mission in the Sudan, was established by Security Council resolution Security Council resolution 1590 (2005) the mission was assigned peacekeeping responsibilities in Darfur pursuant to the Security Council resolution 1556 (2004). 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. A special report from April 2014 in Foreign Policy calls the UNAMID operation a “failure” and claims that U.N. peacekeepers “did nothing” to avert violence against and abduction of civilians in the area.

Selected Scholarship

9. General Background Information and Human Rights Reports

Researchers can find geographical, population, government, economic, and general information on Sudan from the CIA World Factbook. Mai Aman’s GlobaLex guide on Sudan provides a legal overview of the country. Also see Gabriel Mading Apacha and Garang Geng’s, An Overview of the Legal System and legal Research in the Republic of South Sudan on GlobaLex. 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 through 2016.

Human rights reports survey the legal, humanitarian, and civil rights landscape of a country on an annual basis. These reports are written by government entities or non-governmental organizations (NGOs). Three well-respected sources for human rights reports are the U.S. Department of State, Amnesty International, and Human Rights Watch. 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.

Selected Scholarship

10. Activism and Non-Governmental Organizations

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.

Selected Scholarship

11. Interdisciplinary Scholarship

Legal scholars and researchers can gain a deeper insight into the Darfur conflict by considering interdisciplinary studies. Economists, psychologists, computer analysts, and others have investigated the consequences of the conflict.

Selected Scholarship

12. Selected Books

13. Selected Articles and Book Chapters

14. Conclusion

The crisis in Sudan has been going on for decades. Ali Kushavb is at trial after voluntarily surrendering. ICC judges declined to confirm charges against Bahar Idriss Abu Garda, due to the lack of evidence. Negotiations on Sudan surrendering al-Bashir to the ICC had gone back and forth for years. In August 2023, Sudan agreed to surrender al-Bashir, but with no specific time frame. As mentioned, al-Bashir may have totally disappeared during the renewed violence in April 2023. Other countries to which al-Bashir had traveled after 2009 have been unwilling or unable to arrest him and transfer him to the ICC, resulting in much legal debate and scholarship that is beyond the scope of this guide. Al-Bashir was tried and convicted of corruption in Sudan. Al-Bashir was sentenced to two years of detention in a correction center, due to his age. Ahmad Harun, Adbel Raheem Muhammad Hussein, and Abdulla Banda Abakaer Nourain remain at large, as of April 2023.