UPDATE: The Crisis in Darfur – Researching the Legal Issues

By Amy Burchfield

Update 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 March 2018

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

See the Archive Version

1. Introduction

“ ... [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 did 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 was an 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.

2. The Crisis

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. Several failed attempts, such as the Darfur Peace Agreement, have sought to bring peace to the region.

In January 2010, the researchers from the Center for Research on the Epidemiology of Disasters authored an article published in The Lancet that estimated the number of deaths in the Darfur conflict at 298,271. In its global overview for 2014, the Internal Displacement Monitoring Center estimated that at least 2,426,700 people have been displaced from their homes.

Although the crisis in Darfur has for the most part disappeared from media coverage and the public conscience, the conflict is still ongoing. The U.S. State Department’s Sudan 2013 Human Rights Report states that armed conflict continues in the area between government forces, militias, and rebel groups. In 2013, 4,282 persons were killed in the conflict in Darfur. The report also notes ongoing human rights violations, including torture, rape, and the use of child soldiers.

3. The Question of 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 Congress.gov) 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 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 (ICC).

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.

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, 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:

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:

Updates to the case would be posted by the ICC. However, the ICC does not try people in absentia, and it has no police force of its own to apprehend suspects.

The ICC has issued three additional arrest warrants in the Darfur investigation: against Ahmad Muhammad Harun “Ahmad Harun”, the former Minister of State for the Interior, Ali Muhammad Ali Abd-Al-Rahman “Ali Kushayb,” the alleged leader of the Janjaweed, and Adbel Raheem Muhammad Hussein, the former Minister of the Interior.

Ahmad Harun was charged with twenty counts of crimes against humanity and twenty-two counts of war crimes. Ali Kushayb was charged with twenty-two counts of crimes against humanity and twenty-eight counts of war crimes. Ahmad Harun and Ali Kushayb both remain at large. Updates to this case would be posted by the ICC.

Hussein was charged with seven counts of crimes against humanity and six counts of war crimes. The execution of his arrest warrant is pending. Updates to this case are regularly posted by the ICC. Two individuals associated with the United Resistance Front have also been under investigation by the ICC.

Although these individuals are listed as “at large” on the ICC’s website, the ICC’s chief prosecutor, Fatou Bensouda, announced she was suspending the investigation into war crimes in Darfur on Friday, Dec. 12, 2014. ICC defense counsel Nick Kaufman said the move was meant to put pressure on the U.N. Security Council to carry out the initial arrest warrants the prosecutor had issued. President Bashir had been traveling to other countries in Africa, including some member nations of the ICC. While visiting Kartoum on Dec. 22, 2017, Rwandan President Paul Kagame offered his support in confronting the ICC about its bias against African leaders. Neither Rwanda nor Sudan are member nations of the ICC, though Rwanda has obligations as a member nation of the United Nations.

In April, 2015, al-Bashir was re-elected president of Sudan with 94% of the vote, in April, 2015. Opposition parties boycotted the election, which had a 46% voter turnout, according to the BBC.

Selected Scholarship

6. Violence Against Women

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 or Sudan likewise documents the prevalence of rape and other forms of violence against women in the Darfur region. The 2013 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 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 a 2017 UNHCR appeal for funding, as March 31, 2017, there were over 850,000 South Sudanese refugees in Uganda; almost 380,000 in Sudan; over 366,000 in Ethiopia, over 95,000 in Kenya, and over 74,000 in the Democratic Republic of the Congo. (p. 3)

Of the 7.5 milli0n in South Sudan who are in dire need of humanitarian assistance, 1.9 million are 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.”

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 2013 Amnesty International report, 10 Years On: Violations Remain Widespread in Darfur notes that internally displaced people in camps continue to face severe human rights violations. In a July 28, 2017 news release, Amnesty International repeated the need for U.N. peacekeepers to boost civilian protections at South Sudanese IDP camps, while also referencing its report on sexual violence on a massive scale.

Selected Scholarship

8. Interventions and Peacekeeping Forces

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 (2011) stressed the need of UNAMID to protect civilians.

Security Council resolution 2113 (2013) extended UNAMID’s mandate through August 31, 2014.

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. 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. Sharanjeet Parmar’s GlobaLex guide provides a legal overview of Sudan. Also see Paul Mertenskoetter & Dong Samuel Luak, 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 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 (annual country-specific reports), Amnesty International (as of 2017, 124 reports on Sudan and 20 reports on South Sudan:), and Human Rights Watch (reports on Sudan and South Sudan). 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.

Other activist groups, such as Save Darfur, focus on raising public awareness and mobilizing a response to the tragedy.

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. Recent Events

Effective Oct. 12, 2017, the United States revoked its economic sanctions on Sudan, based on the Government of Sudan’s positive efforts to maintain a cease fire, improve access to humanitarian aid, and maintain cooperation with the United States in addressing regional conflicts and the threat of terrorism. The United States reserved its right to use additional tools to pressure Sudan if it regressed such matters.

The United Nations has acknowledged improvement in almost all areas of Darfur, except Jebel Marra (as of 2016), while continuing the Panel of Experts’ mandate to monitor sanctions in Darfur through March 12, 2018, per Security Council resolution 2340 (2017). The Security Council encouraged Sudan to investigate and prosecute crimes against civilians and peacekeeping force. The Security Council also is concerned about armed Darfuri groups going into neighboring countries, such as Libya (and Chad) and trafficking arms and possibly committing other crimes.

Human Rights Watch collects a large number of documents on Sudan. Amnesty International notes that 300,000 people have been killed in Darfur since the fighting started, and that 171 villages were destroyed or damaged in Jebel Marra in 2016. It also documented the likely use of chemical weapons. Doctors Without Borders provides reports on the health and humanitarian aid situation in the region, such as thousands in South Sudan being at risk due to malnutrition and cholera as of June, 2017.

13. Selected Books

14. Selected Articles and Book Chapters

15. Conclusion

The crisis in Darfur is an ongoing tragedy. The response of the international community to this crisis has been closely monitored by governments, international organizations, and scholars worldwide, with mixed results. While the geographic scope of the remaining crisis in Darfur may be focused on one area, Jebel Marra, there were still allegations of serious crimes against civilians and peacekeepers as of 2016, including sexual violence and the possible use of chemical weapons. The United Nations currently is monitoring possible criminal activity, such as arms trafficking, by Darfur fighter who have gone into neighboring countries. Due to the Government of Sudan’s unilateral cease fire, suspension of aerial bombings of civilian areas, and increased access for humanitarian aid providers, the United States has removed its economic sanctions against Sudan, while still noting areas for improvement and warning again any possible backsliding. Such diplomacy may encourage further improvements in the situation; there also may be some realpolitik at play. The United Nations adopted Security Council resolution 2340 (2017) on Feb. 8, 2017, which acknowledged the aforementioned improvements in the situation, while also noting ongoing concerns, such as access to Darfur by the Expert panel members; violence against civilians, especially internally displaced persons; and the recruitment of child soldiers. While beyond the scope of this guide aside from brief mentions in the sections on internally displaced persons and crimes against civilians, The Enough project notes rival ethnic factions, famine, and the inability to exploit its oil resources as major factors contributing to a civil war which arose in South Sudan, within a couple years of its declaration of independence from Sudan on July 9, 2011. Both the United States and the United Nations have imposed sanctions on South Sudan for the atrocities committed during the ongoing armed conflict, which obviously has compounded the humanitarian crisis in both Sudan and South Sudan.