darfur and humanitarian law: the protection of civilians

Journal of Conflict & Security Law C© Oxford University Press 2009; all rights reserved.For permissions, please e-mail: [email protected]:10.1093/jcsl/krp016

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Darfur and Humanitarian Law: The Protectionof Civilians and Civilian Objects

Zeray Yihdego∗

Abstract

The Darfur armed conflict, which is still ongoing between Sudanese armed forces,their affiliated militia and various rebels (some of whom receive external support),has inflicted unspeakable consequences upon civilians, their villages, towns, homesand other civilian objects—in particular relief assistance. The international com-munity, including Sudan, has made, and is still making, albeit slowly, various ef-forts to secure peace and to stop violations of humanitarian principles in Darfur,including the controversial referral of some criminal cases to the ICC (which ledto the indictment of the president of Sudan and the first head of state to be so)and the deployment of peacekeepers/enforcers which constitute the main featuresof the responses. Scholarly focus has been on the criminal side of the issue. Thisarticle deals with international humanitarian law (IHL) rules relating to the pro-tection of civilians and civilian objects in the conflict. It examines the nature of theconflict, the applicable rules and compliance with those rules and the weaknessand strengths, if any, of the responses of the international community in providingphysical protection to civilians and their objects. It is argued that while the pri-mary responsibility to stop violating civilian immunity rests on the warring partiesthere, and the regional approach to prevent widespread IHL violations in Darfurmay have some obvious advantages, the erga omnes nature of the concerns at is-sue necessitates a concerted, adequate and timely global action to prevent furtheratrocities on the ground. The paper concludes with some suggestions which mayhelp further prevent/mitigate armed violence against civilians.

1. Introduction

The armed conflict in Darfur (Eastern Sudan) was started in April 2003 by theSudanese Liberation Movement/Army (SLM/A led by Mini Minawi) and theJustice and Equality Movement (JEM led by Khalil Ebrahim) claiming to rep-resent the black Darfurians on the one hand, and the Government of Sudan andthe Arab militia called the Janjaweed (under the command of Ali Koysheb),on the other.1 Later, the war spilled over into neighbouring provinces, in

* Lecturer in Law, Oxford Brookes University, PhD, Durham, LLM, Cambridge.E-mail: [email protected]. The author is grateful for the comments he receivedfrom Gen A.P.V. Rogers and Professor K.H. Kaikobad on an initial draft of the article.The author also thanks the anonymous referee for his/her invaluable comments. Theusual disclaimer applies.

1 For the causes such as political, economic, ethnic and natural factors see J. Flint andA. Waal, Darfur: A Short History of a Long War (African Arguments) (2008); see also

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38 Zeray Yihdego

particular, into Southern Kordofas. However, with the rising tension and claimsand counterclaims of interference by Sudan and Chad in each other’s domesticaffairs through supporting armed rebels and sending in their armed forces,2 theconflict may well have an inter-state (or regional) dimension too.

The consequences of this armed conflict for the people of Darfur are immense;hundreds of thousands of people are said to have lost their lives and while the Su-danese Government figures estimate the casualties to be around 10 000, millionshave been internally and externally displaced with the situation being particularlyharsh for women and children.3

The response of the international community (as represented by the UN, AU,the Arab League, etc.) to the crisis ranged from mediation and undertaking aninquiry, to deploying peacekeepers and the criminal indictment of individualson grounds of war crimes in Darfur. Most importantly (and perhaps most dis-turbingly to Sudan and its President), Pre-Trial Chamber I of the InternationalCriminal Court (ICC) issued an arrest warrant for President Omar Al-Bashir on4 March 2009 (the first incumbent head of state to be so), on grounds of bothcrimes against humanity and war crimes ‘allegedly committed during a five-yearcounter-insurgency campaign’4 in Darfur. The decision triggered (as anticipated)anger from Sudan, and opposition from other African and Arab countries, Chinaand Russia; their main concern (as reported in the media) being that ‘the warrantwill destabilise the whole region, bring even more conflict in Darfur’5 and in thecountry generally.6

T. Youngs, ‘Sudan: Conflict in Darfur’, House of Commons, Research Paper 04/51, 23June 2004, pp. 7–9.

2 ‘Sudan Rebels Reach Khartoum’, BBC News, 10 May 2008.3 ‘Sudan: Thousands at Risk as Darfur Violence Restricts Aid Deliveries’, IRIN, 12

September 2008; see also Save the Children, ‘Crisis in Darfur and Chad’, 25 June 2007at <http://www.savethechildren.org.uk/en/41 2406.htm>. It was said that ‘over 70 chil-dren under the age of five are still dying every day across Darfur’.

4 See ‘ICC Issues a Warrant of Arrest for Omar Al-Bashir, President of Sudan’ (PressRelease, ICC-CPI-20090304-PR394) 4 March 2009. The Court took an unprecedentedstance to state that ‘Omar Al-Bashir’s official capacity as a sitting Head of State doesnot exclude his criminal responsibility, nor does it grant him immunity against prose-cution before the ICC’.

5 Mike Corder, ‘Wanted for War Crimes in Darfur: Sudan’s President’ (Associated Press,5 March 2009); see also ‘Warrant Issued for Sudan’s Leader’, BBC News, 4 March 2009.

6 See ‘Kenya Protests at Bashir Warrant’, Daily Nation, 6 March 2009. But the reason forobjecting to the ICC’s move may well be beyond security concerns in Darfur/Sudan.The Sudanese Ambassador to Kenya, Mr. Majok Guandong, for example, warnedAfrican states that ‘if the ICC is left to indict President Bashir, no African head ofstate or government will be safe. “We don’t know who will be next”’. But, it must benoted that, while African countries may raise legitimate questions of sovereignty, im-munity, fear of unexpected arrests of their officials and questions of double standardsby the international criminal justice system, they must not ignore the need to ensurejustice and accountability in response to massive and systematic abuses against inno-cent civilians; this may be achieved at national, or regional, or global level(s).

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Darfur and Humanitarian Law: The Protection of Civilians and Civilian Objects 39

Countries such as the USA and UK,7 and human rights and pacifist groups,for example, Amnesty International,8 Human Rights Watch9 and the Interna-tional Crisis Group (ICG) welcome the decision. The ICG submitted that ‘forthe millions of Darfur victims of the conflict, this landmark decision providesindependent legal recognition of the massive crimes committed against them’.10

Moreover, the SLM-Minawi and JEM rebel groups (of Darfur) supported theindictment; the latter considered it as a ‘victory for international law’ and calledupon the President to resign; while the southern Sudan People Liberation Move-ment (SPLM) spoke ‘about the dangers posed by Bashir’s indictment to the sta-bility of the country’.11

The relevant legal implications of this development on the subject of this paperwill be considered further.

In spite of this recent phenomenon and the controversies it has triggered, themeasures and the attention given to Darfur have generally been criticized for thelack of commitment, delays and inadequacy. For instance, the SC’s first resolu-tion on Darfur was adopted in July 2004, that is one year after the war had begun,which was similar to that of the response of the SC to the Rwandan genocide.12

This paper examines the international humanitarian law (IHL), also called jusin bello, aspects of the Darfur problem, with the emphasis on the duty to respectand protect civilians and civilian objects (which embraces humanitarian aid), andwill ask: first, how and to what extent IHL applies to the situation? Second, whatare the main legal obligations of the parties to the conflict vis-a-vis the civilianpopulation? Third, how is compliance with such norms on the ground by bothgovernment and rebel forces? And finally, what is the response of the interna-tional community, which includes Sudan, in respect of providing physical protec-tion to civilians and their objects?

2. The Application of IHL to Darfur: Characterization andApplicable Rules

A. IHL in General

Jus in bello deals with the rules and customs of war, the details of which aremainly found in the four Geneva Conventions of 1949 and their Additional

7 For US’s support see Corder, op. cit., fn. 5; for UK’s Foreign Secretary’s open supportsee at <http://ukun.fco.gov.uk/en/newsroom/?view=News&id=14432058>.

8 See ibid., Corder.9 Human Rights Watch, ‘ICC: Bashir Warrant is warning to Abusive Leaders’, 4 March

2009, at <http://www.hrw.org/en/news/2009/03/04/icc-bashir-warrant-warning-abusive-leaders>.

10 ICG, ‘The Indictment of Bashir: A Turning point for Sudan?’, 5 March 2009, at<http://www.crisisgroup.org/home/index.cfm?id=5959&l=1>.

11 ‘SLM-Minnawi backs ICC move against Sudan President’, Sudan Tribune, 7 March2009; see also for JEM’s position ‘Warrant Issued for Sudan’s Leader’, BBC News, 5March 2009.

12 L. Melvern, ‘Rwanda and Darfur: The Media and the Security Council’ (2006) 20 In-ternational Relations 93–104.

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Protocols of 1977 and customary international law.13 Four core principles sum-marize the salient features of IHL. The first concerns the protection of civilians(alongside their civilian objects) during armed conflict, also called the rule of dis-tinction between combatants and civilians;14 civilians being protected subject tonot taking a direct part in hostilities.15 The nature and extent of the protectionhave been explained by Sandoz et al.:

The danger arising from military operations. This means that the obliga-tion does not consist only in abstaining from attacks, but also in avoid-ing, or in any case reducing to a minimum, incidental losses, and in takingsafety measures.16

Moreover, women and children, especially those who have been affected by war,have been given special protection; for example, warring parties are obliged notto recruit children under 15 years of age and to prevent them from taking part inhostility.17

The second principle underlines that the purpose of war is to defeat an ad-versary, with minimum human and resource losses, rather than total destructionand extermination.18 By so doing, IHL provides protection for combatants andcivilians and embodies the principles of proportionality and necessity in its am-bit. The third principle concerns the limitation on means and methods of warfare;weapons that cause unnecessary suffering or superfluous injury on human beingssuch as poison gases must not be used in warfare (this rule requires adherence tothe notion of humanity in armed conflict)19 and again, certain methods of warfare

13 See L. Green, The Contemporary Law of Armed Conflict (2008) 52–53; see alsoNicaragua, op. cit., fn. 51, para. 42.

14 See e.g. Geneva Protocol I (GP I), Art. 48; for an excellent account on the customarynature of this rule, see A.P.V. Rogers, infra, fn. 28, pp. 7–17.

15 GP II, Art. 13(3); see also A.P.V. Rogers, infra, fn. 28, p. 10; The UN Commission ofInquiry (infra, fn. 39, para. 292) stated that: ‘Although in certain instances victims ofattacks have willingly admitted having been armed, it is important to recall that mosttribes in Darfur possess weapons, which are often duly licensed, to defend their landand cattle. Even if it were the case that the civilians attacked possessed weapons, thiswould not necessarily be an indication that they were rebels, hence lawful targets ofattack, or otherwise taking active part in the hostilities’.

16 Y. Sandoz, C. Swinarski and B. Zimmermann (eds), Commentary on the Protocol Ad-ditional to the Geneva Conventions of 12 August 1949 (1987) 1448–49, paras 4761 and4770.

17 See e.g. GP I, Arts 76, 77(1), (2), (3); Convention on the Rights of the Child, 28 ILM(1989) 1448, Art. 38(2); see also S. Breau, infra, fn. 28, pp. 198–203.

18 1868 St Petersburg Declaration Renouncing the Use, in Times of War, of Explosive Pro-jectiles under 400 Grammes Weight, preamble, paras 2–4; Hague Convention IV 1907Respecting the Laws and Customs of War on Land (HC IV), preamble, paras 2 and 3;see also Z. Yihdego, The Arms Trade and International Law (2007) 196.

19 See e.g. 1925 Gas Protocol; 1972 Biological and Toxic Weapons Convention; the 1980Convention of Conventional Weapons have put restrictions on the use of mines, boobytraps and incendiaries.

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such as perfidious attacks upon an enemy have been prohibited.20 Finally, whena gap in the law occurs relating to armed conflict, the principle of humanity andthe dictates of public conscience apply. This and similar rules have been widelyaccepted in conventions.21

The extent of application of these and other jus in bello norms in generaland their detailed regulation in particular varies according to the nature ofarmed conflicts. While a war between states ‘through the medium of their armedforces’22 is considered as an international armed conflict, a war within the terri-tory of a state ‘between its armed forces and dissident armed forces or other or-ganized armed groups’23 is deemed to be a non-international conflict. This meansthat, on the one hand, the whole regime of IHL, including the four Geneva Con-ventions and Geneva Protocol I, is applicable to international armed conflict (ofcourse to states parties to these treaties)24 and, on the other hand, Common Arti-cle 3 of the Conventions sets out the minimum IHL protections applicable duringnon-international armed conflict. The Article prohibits, inter alia, the followingacts:

20 HC IV, Annex, Hague Regulations, Art. 24; GP I, Art. 37(2); see also Z. Yihdego,op. cit., fn. 18, p. 197.

21 See e.g. HC IV, preamble, para. 7; see for commentaries T. Meron, ‘The MartensClause, Principles of Humanity, and Dictates of Public Conscience’, (2000) 94 AJIL78–89; see also R. Ticehurst, ‘The Martens Clause and the Laws of Armed Conflict’,(1997) 317 IRRC 125–34; see also T. Meron, ‘The Humanisation of Humanitarian Law’,(2000) 94 AJIL 239–278 and Z. Yihdego, ‘Irresponsible Arms Transfers and Humani-tarian Norms: The Principles of Humanity and Public Conscience Perspective’, (2006)2 (3) Journal of Human Security 42.

22 L. Green, op. cit., fn. 13, pp. 54–55; however, GP I, Art. 1, para. 4 extended the defini-tion of international armed conflict to wars of national liberation; for an excellent ac-count of characterising conflicts, see J. Pejic, ‘Status of Armed Conflicts’, in Wilmshurstet al. (eds) infra, fn. 30, pp. 77–100.

23 See GP II Art. 1(2); the difference between internal security problems (riots, distur-bances, etc.) and internal armed conflict is that the latter considers, inter alia, the fol-lowing indicators: (a) political motive (power), (b) control of territory, (c) completebreakdown of law and order (which takes into account intensity of military operations,use of heavy weapons, etc.), (d) recognition of belligerency, (e) UN involvement (inparticular the SC) and (f) the declaration or agreement by the parties to respect IHL.

24 This means that the notion of grave breaches and the universal obligation to prosecuteor extradite offenders of such crimes, prisoners of war and the wide-ranging protec-tions provided by the fourth Geneva Convention (also called the Civilian Convention)to civilians only apply to international armed conflicts. See GC I, Arts 49–50; GC II,Arts 50–51; GC III, Arts 129–30; GC IV, Arts 146–47; see also J. S. Pictet, ‘The GenevaConventions of 12 August 1949, Commentary (1952) 362–73 and the International Crim-inal Court Statute, 37 ILM (1998) 999–1019. Art. 8(2)(a) of the Statute makes a dis-tinction between war crimes arising from grave breaches of the GCs in the sense ofinternational armed conflicts, and as enshrined in sub (c), war crimes committed innon-international armed conflict, as ‘serious violations’ (and not grave breaches).

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(a) violence to life and person, in particular murder of all kinds, mutila-tion, cruel treatment and torture; (b) taking of hostages; (c) outrages uponpersonal dignity, in particular humiliating and degrading treatment.

Thus, civilians and other victims must be treated humanely, and acts such as tor-ture and murder are absolutely prohibited—the list of prohibited acts under thisarticle is not exhaustive. Geneva Protocol II (GP II) reinforces the notion of civil-ian protection. It is widely endorsed in the context of the second Protocol (whichdeals with non-international conflict) that ‘a civilian is anyone who is not a mem-ber of the armed forces or of an organized armed group’.25 Article 13(1), (2) and(3) of the Protocol provides civilian immunity (which includes a civilian person,property and honour as elaborated under Article 4 of the Protocol) to civiliansduring internal armed conflict. It is prohibited to kill civilians (Article 4). Delib-erate attacks on civilians and their objects are also war crimes. The ICC Statuteunder Article 8(2)(c), (d) and (e) stipulates that ‘serious violations of CommonArticle 3 of the GCs would amount to war crimes of the same severity as gravebreaches’.26

GP II has endorsed, even if ambiguously (compared with Article 58(c) ofGP I), that ‘the civilian population and individual civilians shall enjoy generalprotection against the dangers arising from military operations’ (Article 13(1)),and so reflects the duty of taking all available measures of precaution during in-ternal armed conflict.

Moreover, Article 14 of the Protocol proscribes launching attacks on ‘objectsindispensable to the survival of the civilian population such as food-stuffs, agri-cultural areas’; it is therefore unlawful to starve ‘civilians as a method of combat’.However, even if attacks are not meant to starve civilians, the requirements ofproportionality and measures of precaution must be undertaken. Article 18(2) ofthe Protocol provides that, ‘relief actions for the civilian population . . . shall beundertaken subject to the consent of the High Contracting Party concerned’.27

This duty must be read in the light of relevant SC resolutions and various agree-ments entered into by parties to a conflict, and so the consent element may not bea bar to its application. Finally, forced ‘displacement of civilians’ is forbidden asa result of armed conflict, unless justified by the security of civilians and militarynecessity (Article 17).

25 Jean-Markie Henckaerts and Louise Doswald-Beck, Customary International Law,vol. 1, Rules (2005) 19. The ICRC study affirmed that this broad definition wasendorsed by consensus ‘in Committee III of the Diplomatic Conference’; see alsoK. Hulme, infra, fn. 26.

26 K. Hulme, ‘Armed Conflict and the Displaced’, (2005) 17 International Journal ofRefugee Law 91; for a detailed account of war crimes, see A. Cassese, Intentional Crim-inal Law (2008) 81–97; see also Z. Yihdego, op. cit., fn. 18, p. 198.

27 See also Common Art. 3(2) and Agreement No. 2 on the Implementation of the Agree-ment of 22 May 1992 between the Parties to the Conflict in Bosnia and Herzegovina,para. 2(d).

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Later developments supported the application of customary IHL norms tonon-international armed conflict. The International Criminal Tribunal for theformer Yugoslavia (ICTY) in the Tadic case expounded that the basic rules ofIHL, including the rule of distinction (between combatants and civilians and mil-itary and non-military objectives) and the restriction on means and methods ofwar, apply to non-international armed conflict. Rogers agrees that ‘the basic cus-tomary law principles of military necessity, humanity, distinction and proportion-ality . . . provide guidelines’, and so bind all states whether or not they are partiesto the GCs or GP II.28

While Greenwood noted such developments in the law during the 1990s andtheir reflection in the ICC Statute, he emphasized that these claims are basedupon a ‘somewhat creative approach to the law and some of its conclusions [ofthe ICTY as discussed above] are not easy to justify’.29 There are some elementsof truth in this doubt as the application of some of the principles of IHL to in-ternal armed conflicts may be problematic (e.g. the combatant status of warringparties). Yet, though some criticize it as an ambitious project, the ICRC Study onCustomary Humanitarian Law seriously challenged the distinction under consid-eration and narrowed down the traditional difference between the two types ofarmed conflicts in terms of applying the basic rules to both situations.30

What seems to be certain, however, is that those states who are involved incivil wars must comply with the basic (treaty and customary) rules of IHL. Thenotions of combatant and prisoner-of-war (PoW) status may well be applicableif the warring parties to a conflict agree to do so. However, the biggest differ-ence between international and non-international armed conflict law is that inthe latter, combatant and PoW status is not provided for and states have beenvery reluctant to accept such provision. The main reason for this is that internalwars occur within a state’s territory, and domestic law regulates the behaviourof rebels—Article 3 of GP II, for example, refers to the non-intervention rule of

28 A. P. V. Rogers, Law on the Battlefield (2004) 222; see also Prosecutor v Tadic, ICTYTrial Chamber (II) (Judgment), 16 November 1998, IT-96–21-T, paras 202, 235. Whilethe ICTY in the former case stated that grave breaches only apply to internationalconflicts, the Trial Chamber of the same tribunal in the Delalic case explicitly said thatCommon Art. 3 violations must now be considered as ‘grave breaches’ of war. See alsoJ.-M. Henckaerts et al., op. cit., fn. 25, pp. 27–29. The ICRC Study generally strengthensthis position; see also S. Breau, ‘Protected Persons and Objects’ in Wilmshurst et al.(eds) infra, fn. 30, pp. 198–203. See also J. Pejic, op. cit., fn. 22, p. 77. She pointed outthat ‘the [ICRC] study showed and proved to be useful in the meantime, because itwas focused that the great majority of customary rules apply to both types of armedconflict, thereby rendering the issue of qualification less central’.

29 C. Greenwood, ‘The Law of War’, in Evans (2nd ed.) International Law (2006) 808(clarification added).

30 J.-M. Henckaerts et al., op. cit., fn. 25, pp. 3–68; for criticisms and comments on theStudy, see e.g. M. Schmitt, ‘The Law of Targeting’, in E. Wilmshurst and S. Breau(eds), Perspectives on the ICRC Study on Customary International Humanitarian Law(2007) 135. He noted that ‘the study (ICRC’s) ambitiously purports to capture bothinternational and non-international armed conflict norms’.

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international law;31 although this ought not serve as an excuse for contraveningcustomary and treaty-based humanitarian norms.

Similarly, the argument that ‘armed opposition groups are bound by the rulesgoverning internal armed conflict is beyond doubt’;32 this is subject to (a) a groupacting ‘under responsible command’, and (b), it exercising control ‘over a part ofits [a state’s] territory’, as stated in Article 1(1) of GP II. Their obligations can bederived from customary or treaty obligations. The latter may be the case whenthey expressly accept compliance with Common Article 3 and GP II.33 Finally,IHL is binding on everybody in his/her personal capacity.34

But the threshold for the application of Common Article 3 and AP II differs.While the latter does apply to ‘all conflicts’ except those ‘covered by Article 1’ ofAP I, it only governs conflicts ‘which take place in the territory of a High Con-tracting Party between its armed forces and dissident armed forces or other or-ganized armed groups’,35 subject to fulfilling the conditions mentioned earlier. Incontrast, the application of Common Article 3 is not restricted to conflicts whichinvolve a state’s armed forces, conflicts between (and among) different armedgroups within a state,36 for example, the conflict between the various war lords

31 Moreover, the ICC Statute under Art. 8(3), in the context of war crimes arising fromviolations of Common Art. 3 of the GCs, stipulates: ‘Nothing in paragraphs 2(c) and(d) shall affect the responsibility of a Government to maintain or re-establish law andorder in the State or to defend the unity and territorial integrity of the State, by alllegitimate means’.

32 S. Sivakumaran, ‘Binding Armed Opposition Groups’ (2006) 55 ICLQ 369. However,he claims: ‘Four reasons that are commonly put forward to explain the binding natureof the rules governing internal armed conflict on armed opposition groups—customaryinternational law; general principles; the rules governing the effect of treaties on thirdparties and the principle of succession—are not in fact capable of binding all types ofarmed opposition groups by all the rules of internal armed conflict. This is so even whenall four reasons are used in conjunction with one another. The legislative jurisdictionexplanation—the principle whereby the state binds all individuals within its territoryupon ratification of a treaty—is the only one that is capable of binding all types ofarmed opposition groups by all the rules that govern internal armed conflict’.

33 Ibid., p. 379. It was stated, for example, that ‘There has also been more widespreadacceptance of Additional Protocol II by armed opposition groups than is commonlythought. This was true of the Frente Farabundo Marti Para La Liberacion Nacional(FMLN) in El Salvador which stated in 1989 that ‘[t]he FMLN shall ensure that itscombat methods comply with the provisions of Common Article 3 of the Geneva Con-ventions and Additional Protocol II’. So too Filipino armed opposition groups in 1991,the RPF in Rwanda, which considered itself bound by international humanitarian law,the LTTE in Sri Lanka, which in February 1988, ‘announced that it will abide by theGeneva Conventions and their Additional Protocols’, and the National LiberationArmy (ELN) in Colombia, which ‘specifically declared that it considers itself to bebound by the 1949 Geneva Conventions and Protocol II’; see also C. Greenwood,op. cit., fn. 29, p. 807.

34 Ibid., p. 371; see also Rogers, op. cit., fn. 28, pp. 217–8.35 AP II, Art. 1; see also Green op. cit., fn. 13, at pp. 348–349. See also the Darfur Com-

mission of Inquiry Report, infra, fn. 39, para. 74. It noted that ‘Additional Protocol II . . .

seems to narrow the scope of Common Art. 3 of the Geneva Conventions’.36 See also Rogers, op. cit., fn. 28, at 221 and Green, ibid., at 346–348.

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and clans of Somalia,37 assuming that there was an armed conflict among thedifferent clan factions/militias. In this sense, hence, AP II conflicts are differentfrom Common Article 3 conflicts. But there are situations where both regimesconcurrently apply. Rogers explains that:

there may be . . . armed conflicts governed by both instruments (Com-mon Article 3 and AP II), for example, where there are sustained andconcerted military operations between government forces and organizedarmed groups.38

What is certain, however, is that when the specific rules enshrined in the treatiesat issue attain a customary status (including some of the provisions of AP II), thediscussion on the differences between the types of internal conflicts becomes lessimportant. These and other legal issues can only be properly understood withreference to specific situations and facts, which the next section endeavours todo. I shall also turn to some of these issues.

B. Applicability to Darfur

The implication of these issues (and ultimately the rules) to Darfur first and fore-most relies on determining whether or not there is an armed conflict in Darfur.The ICTY in Tadic defined the existence of an armed conflict and the applicationof IHL as follows:

An armed conflict exists whenever there is a resort to armed force betweenStates or protracted armed violence between government authorities andorganized armed groups within a state . . . international humanitarian lawapplies from the initiation of such armed conflict and extends beyond thecessation of hostilities until a general conclusion of peace is reached . . .

IHL continues to apply . . . in the whole territory under the control of aparty, whether or not actual combat takes place there. (para. 70)

The relevance of this to Darfur can be discussed in the light of the responsesof various international actors to the situation. SC Res. 1556 of 2004 on Darfur

37 Ken Menkhaus, ‘Somalia, a situation Analysis’, 30 November 2000 at <http://www.reliefweb.int/rw/rwb.nsf/AllDocsByUNID/b320c6bd7fada7de852569fa00515929>.He noted that ‘in the years since the UNOSOM departure [1995], Somalia has re-mained vulnerable to chronic armed clashes . . . and lawlessness. The once relativelycohesive factions have splintered into quarrelling sub-clan militias, so that most armedconflict since 1995 has been within, rather than between, major clans. This has meantthat the country is less vulnerable to major armed clashes, but more prone to smaller,localized, and less predictable armed hostilities in neighbourhoods and towns’.

38 Rogers, op. cit., fn. 28, at 221; see also the UK Manual of the Law of Armed Conflict(2004), para. 3.5.

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determined the situation as ‘a threat to international peace and security and tostability in the region’ in general, the implications of which often serve as an en-dorsement of the existence of an armed conflict by the Council. While the Coun-cil’s resolutions do not decisively determine the existence and nature of an armedconflict and the applicability of IHL, they may be of vital importance as evidenceof those phenomena.

The UN Commission of Inquiry on Darfur specifically examined the ques-tion of determining the existence of an armed conflict in Darfur. The Com-mission, outlining the legal requirements for an armed conflict as discussed(Section 2(A)), focused on the nature and intensity of the conflict and the stand-ing of the parties to the conflict. It noted that both the JEM and SLM/A, themain rebel groups, organized themselves to fight the Government of Sudan and‘spoke on behalf of all Darfurians, and mainly directed their attacks at govern-ment installations’.39 While the initial military attacks targeted police stationsand the like, ‘the scale of rebel attacks increased noticeably in February 2003’(para. 75). It also noted that ‘the rebels exercise de facto control over some areasof Darfur’ (para. 75). The SLM/A was, and still is, active in north-west and southDarfur, while the JEM is mainly active in northern Darfur (paras 127, 133). Inone instance, for example, the military operations of the rebels went as far asKhartoum and its outskirts.

Likewise, the government responded by involving its regular armed forcesincluding the Sudanese air force, the Janjaweed militia and the PDF who hadbeen ‘recruited’, ‘organized’, ‘financed’ and directed by the government (paras98–115). These operations involved intensive aerial bombardment, complete de-struction of villages and towns, and fierce fighting against rebel stronghold po-sitions. For these and similar reasons, the Commission was rather explicit andstated that:

the conflict . . . does not merely amount to a situation of internal dis-turbances and tensions, riots, or isolated and sporadic acts of violence.Rather, the requirements of (i) existence of organized armed groups fight-ing against the central authorities, (ii) control by rebels over part of theterritory and (iii) protracted fighting, in order for this situation to be con-sidered an internal armed conflict under Common Article 3 of the GenevaConventions are met. (para. 75)

This may be challenged on two grounds: firstly, from the beginning, as indicatedby the Commission (para. 55), the black movements and the Arab tribes werein conflict over resources—including land, grass, etc., and thus such sporadic at-tacks between Darfur tribes may be characterized as internal disturbance andviolence which existed for some time in the region. This argument was enter-tained by the Government of Sudan, as we shall later see (para. 201). Secondly,

39 Report of the International Commission of Inquiry on Darfur to the United NationsSecretary-General, Geneva, 25 January 2005, para. 62.

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later developments witnessed the fragmentation of rebel groups, the creation ofnew movements and widespread banditry in Darfur. It may well be argued thusthat the government is taking law enforcement measures to control these factionsand criminal elements (para. 78).

Despite the motives and purposes of the warring parties and the criminal activ-ities there, however, the facts that the main rebel groups have been engaged in or-ganized, planned and targeted military operations (including against air force andother military bases and government infrastructure), that their measures weremainly connected to each other, and that the government and its militia havebeen engaged in an intensive and prolonged military crackdown which led tocolossal destruction of villages and towns and to the deaths and displacement ofhundreds of thousands of people affirm the high intensity of the armed conflict—and so does the validity of the Commission’s conclusion on the issue. It has to besaid that it is not necessary for the whole of Darfur (or for that matter Sudan)to be used as a field of military operations in order to establish an armed conflictand the application of IHL to the situation. For example, the ICTR in Prosecutorv. Akayesu underlined that in case of a non-international armed conflict, Com-mon Article 3 to the GCs applies ‘in the whole territory of the State engaged inthe conflict’.40 This is valid to Darfur/Sudan, although the most important rulesapplicable to hostilities are in areas of military engagement.

In a nutshell, the factual evidence (as related to the legal requirements) re-garding the ongoing armed conflict in Darfur and in the region since 2003 (asendorsed by the international community and the parties to the conflict, as weshall discuss later), affirms the existence of an armed conflict and, thus, IHL ap-plies to the conflict. The ICC’s arrest warrant for the President of Sudan assumesthis. Yet the search for answers to questions relating to the extent of the appli-cation of IHL to Darfur does not seem to be straightforward. Solutions may befound in examining the characteristics of the conflict.

A threefold argument can be put forward here: The first is that the Darfurconflict is an international armed conflict. There are two dimensions to this ques-tion. The first is whether or not there was/is a direct armed hostility betweenChad and Sudan. Common Article 2 to the GCs provides that the Conventions‘shall apply to all cases of declared war or of any other armed conflict whichmay arise between two or more High Contracting Parties, even if the state ofwar is not recognized by one of them’.41 In the present case, international organ-isations, publicists and media reports have highlighted the regional dimensionof the conflict. The Secretary-General’s report of February 2008 submitted that

40 Prosecutor v Akayesu (Trial judgment) ICTR-96-4-T (2 September 1998) para. 635;the tribunal has also noted that the application of all rules may not be the same in allparts of a territory; see also Prosecutor v Tadic (decision on the Defence Motion forInterlocutory Appeal on Jurisdiction) IT-49-1AR 27 (2 October 1995), para. 68.

41 Art. 2 of the Convention, first paragraph. For an excellent account on the issue, seeY. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict(2004) 15–16.

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‘Chadian regular armed forces and the JEM launched several attacks inside Su-danese territory’.42 Moreover, ‘both countries accused each other of using rebelsto launch proxy attacks on their capitals last year’.43 Both countries deny theseallegations including the allegation made by the UN.

It may well be that the incursion of Chadian armed forces into Darfur and theirsubsequent engagement in military operations met the requirements of CommonArticle 2 of the GCs. It must be mentioned that the Chadian air force also con-ducted air raids in Darfur. Dinstein, for example, submitted that IHL ‘is broughtto bear upon the conduct of hostilities between sovereign States, even if [the]hostilities fall short of war, namely, constitute a mere incident’.44 While the in-volvement of Chadian troops seems to be more than an incident, the fact thattheir main target was Chadian rebels45 and that there appears no evidence thatthey fought against the Sudanese armed or irregular forces there doesundermine the argument in favour of the existence of an international armedconflict between the two countries. There was no plan (or an agenda) of occupa-tion either. Even if there was such an armed conflict for a brief period betweenDecember 2007 and early January 2008 (as can be inferred from the UN Reportof February 2008) involving Chadian troops in the territory of the Sudan, it maybe said that it had ceased when the troops withdrew from the Darfur region.

The second dimension leads one to raise (irrespective of the direct engagementof Chadian troops in Darfur) the question of whether Chad is in overall controlof any of the militias, which may thus constitute an armed conflict between Chadand Sudan. The UN Under-Secretary General for Peacekeeping Operations Mr.Jean-Marie Guehenno, in his February 2008 report to the SC, said as follows:46

The potentially destabilizing regional implications of the crisis have beenhighlighted by numerous media reports of Chadian rebel movements re-ceiving support in the Sudan, on the one hand, and Sudanese rebel move-ments that have acted in support of the Chadian Government, on the otherhand. Continuing accusations by both Governments of their support forrebel movements on each side of the border increase the climate of mis-trust, fuel tensions between the two countries and once again demonstratethe potential for a conflict of international dimension in the area.

42 Report of the Secretary-General on the Deployment of the African Union–United Na-tions Hybrid Operation in Darfur, UN doc: S/2008/98, 14 February 2008, para. 2. It wasalso noted that ‘74 vehicles carrying Chadian regular armed forces entered WesternDarfur during December 2007 and linked up with JEM elements’ there (para. 3).

43 Andrew Heavens, ‘Sudan accuses Chad of supplying Darfur rebels’, Reuters, 29 Jan-uary 2009, at <http://www.alertnet.org/thenews/newsdesk/LT235095.htm>.

44 Dinstein, op. cit., fn. 41, at 17–18; see also R. Kolb and R. Hyde, An Introduction to theInternational Law of Armed Conflict (2008) 80.

45 Report of the Secretary-General, 14 February 2008, op. cit., fn. 42.46 Report of the Secretary-General on the Sudan, 8 February 2008, UN doc S/PV/5832,

p. 5.

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SC resolutions47 and reports of the UN Secretary-General48 have reiteratedthe concerns of the UN over the Sudan–Chad tension and their militaryconfrontation.

More specifically, Darfur rebels, the JEM in particular, have been receivinglogistical, financial and similar support from the Government of President Debyof Chad (who is a Zaghawan tribe member, the same as the JEM leaders/rebels).JEM leaders were also operating from N’Djamena and their forces, accompa-nied by Chadian military forces, were deployed.49 However, the help and extentof support to the rebels has varied due to the ups and downs of the peace agree-ments and diplomatic relations between the two countries. As a result, for ex-ample, in 2007 ‘many Darfur rebels left Chad’ and some of them were ‘brieflyarrested’ in N’Djamena.50 With such uncertainty, it is difficult to establish ‘effec-tive control’ (a test set out in the Nicaragua case) of Chad over the rebels andtheir operations.

The ICJ in the Nicaragua case, while acknowledging the US’ provision of lo-gistics, finance and weapons to the Contra, concluded that this did not prove thatthe USA was directing, commanding and effectively controlling the operationsof the Contra.51 If one tries to compare the level of intervention of the USA inNicaragua with Chad’s intervention in Sudan, it seems difficult to see or claim‘effective control’ of Chad over the rebels. As mentioned earlier, the latter haveterritorial control over some parts of Darfur, they have their own leadership andthey appear to carry on their military business even when their relationship withChad deteriorates.

Although the details of this are not within the realms of this paper, however,the fact that foreign troops have been deployed as peace enforcers (with Chap-ter VII enforcement powers) may underpin the position that the conflict is notan internal armed conflict. These forces are bound by IHL norms in their con-duct of operations;52 although whether their presence in a civil war situation can

47 See e.g. Resolutions 1556/2004 and 1706/2006.48 The Secretary-General in his 14 February 2008 Report (op. cit., fn. 42) affirmed that:

‘Tension increased significantly along the Chad–Sudan border after approximately 74vehicles carrying Chadian regular forces entered Western Darfur during December2007 and linked up with JEM elements in the area of Jebel Moon (Western Darfur)late in December and early in January . . .. The Government of Sudan responded byreinforcing El Geneina with two additional battalions from Nyala and, by mid-January,started a ground and air military operation to push JEM north of El Geneina’.

49 ICG 26 November 2007 Report, op. cit., fn. 78, pp. 17–18.50 Ibid., p. 18.51 Nicaragua v. USA (Merits) ICJ Repts 1986, para. 115. However, the ICTY ruled (in

Prosecutor v Tadic [Appeal Judgment] IT-94-1-A, 15 July 1999, paras 99–145) thatmere ‘overall control’ is enough to establish the existence of an international armedconflict.

52 See e.g. C. Greenwood, op. cit., fn. 29, p. 786; see also S. Wills, ‘Military Interventionson behalf of Vulnerable Populations: The Legal Responsibilities of State and Inter-national Organisations Engaged in Peace Support Operations’, (2004) 9 JCSL 387;UNAMID officials often claim that they are not there to fight against anyone rather

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transform conflicts from internal to international is something difficult to claim.53

This will be specifically considered with reference to the UN mission(s) in Darfur.With this emphasis and reading of the situation and if one is content with the

argument that the main feature of the conflict is international (involving twostates, militaries and territories), then the entire IHL regime would be applicableto the conflict.

However, since Chad and Sudan do not seem (in spite of instances of accusa-tion and counter-accusation of aggression and intervention54) to be in a state of(declared or undeclared) armed conflict and the salient features of the Darfurconflict are of a civil war nature, it can persuasively be argued that it is not aninter-state war and so it is subject to Common Article 3 of the Conventions andGP II obligations (for Sudan’s treaty obligations, see Section 3). The UN treat-ment of the conflict by and large reflects this position.55 The UN Commission ofInquiry determined the conflict as an internal war by stating as follows:

The conflict in Darfur opposes the Government of the Sudan to at leasttwo organized armed groups of rebels . . . (SLM/A) and (JEM) . . . the firsttwo groups of insurgents took up arms against the central authorities . . ..The rebels exercise de facto control over some areas of Darfur. (para. 76)

It also emphasized that the requirements of Common Article 3, namely, or-ganized armed groups (fighting the government of Sudan), persistent and pro-tracted fighting, and the control of some parts of territory by the groups are met(para. 74).

What is interesting, however, is that the Commission considered not onlythe regular armed forces of Sudan but also the Janjaweed militia and others as

to restore peace and mediate the parties, while SC Res. 1769/ 2007 . . . empowers themission to take enforcement action in defence of civilians; see Pejic, op. cit., fn. 22, pp.94ff.

53 C. Greenwood (op. cit., fn. 29, p. 786) underlined that ‘it is still unclear to what extentthe United Nations force in such a case is to be treated as a party to hostilities andwhether the full body of the law of war applies to it. The picture is further compli-cated by the fact that the Convention on the Safety of United Nations and AssociatedPersonnel, 1994, which prohibits acts of violence against United Nations peacekeepers,applies only if the law of war is not applicable’. Pejic (op. cit., fn. 22, p. 94) suggests thatwhen UN forces intervene against a state the conflict becomes international, ‘wherethey intervene against non-state-actors, the rules of non-international armed conflictwould apply’.

54 See e.g. Letter from the Permanent Representative of Chad to the UN addressed to thePresident of the SC, S/2008/21, 15 January 2008; see also Letter from the PermanentRepresentative of the Sudan to the UN addressed to the President of the SC, S/2008/20, 14January 2008. Also, it is not certain whether Chad has direct control over Darfur rebels(over JEM in particular). See also Pejic (op. cit., fn. 22) pp. 89–92. She underlined that‘very few non-international armed conflicts are waged without any form of externalinvolvement’.

55 Almost all SC Resolutions (including 1556/2004, 1590/2005 and 1705/2006) basicallyrefer to the situation as a civil war.

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state forces (para. 111). The Commission also noted that the parties to the con-flict agree on the internal nature of the armed conflict (para. 76), although theSudanese Government consistently maintained the view that the ‘conflict istribal’ which must be resolved ‘through traditional reconciliation’ methods(para. 201), to which I will return.

Later SC resolutions focused on the internal aspects rather than external fac-tors. SC Res 1591 of 2005, for example, determined the situation as ‘a threatto international peace’ without a mention of ‘regional stability’, and acting underChapter VII, condemned both parties to the conflict, the Government and rebels,inter alia, for continuing military confrontation.56 The UN Secretary-General,Ban Ki-moon, after his recent return from Darfur, while touching upon the re-gional aspect of the problem, braced this approach, by stating as follows:57

We speak often and easily about Darfur. But what can we say with surety?By conventional shorthand, it is a society at war with itself. Rebels battlethe government; the government battles the rebels. Yet the reality is morecomplicated. Lately, the fighting often as not pits tribe against tribe, war-lord against warlord.

Therefore, unless one can clearly distinguish the Chad–Sudan conflict from thatof the internal conflict in Darfur similar to what the ICTY58 did in characterizingthe conflict in the former Yugoslavia, in terms of the timeline of the war, and asexpressly conceded by the UN Commission of Inquiry, the conflict is predom-inantly a civil war and so subject to the rules applicable to the internal armedconflict. Further evidence would be that Pre-Trial Chamber I of the ICC reliedon Article 8(2)(e) of the ICC Statute, which concerns ‘other serious violations ofthe laws and customs applicable in armed conflicts not of an international char-acter’, in issuing a warrant for Mr. Bashir’s arrest.59

56 The Council ‘Deplores strongly that the Government of Sudan and rebel forces and allother armed groups in Darfur have failed to comply fully with their commitments andthe demands of the Council referred to in resolutions 1556 . . ., and condemns the con-tinued violations of the . . . 2004 N’djamena Ceasefire . . ., including air strikes by theGovernment of Sudan in December 2004 and January 2005 and rebel attacks onDarfur villages in January 2005, and the failure of the Government to disarmsJanjaweed militiamen’.

57 Ban Ki-moon, ‘What I Saw in Darfur’, Washington Post, 14 September 2007. See alsoRogers op. cit., fn. 28, p. 221. He noted that a conflict between two or more armedgroups within a state is governed by Common Article 3 and not GP II.

58 The ICTY (in Tadic [op. cit., fn. 28], paras 74–77) determined the character of theYugoslavia war and said that the conflict was initially internal but after three states(including Slovenia and Croatia) declared independence in 1991 and got recognitionby other states turned into international conflict; see also T. Meron, ‘Classification ofArmed Conflict in the Former Yugoslavia: Nicaragua’s Fallout’ (1998) 92 AJIL 136–137.

59 ICC Press Release, op. cit., fn. 4.

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Again, this can be challenged by the Nicaragua approach. The ICJ, while gen-erally faced with a similar situation, ruled as follows:60

The conflict between the contras’ forces and those of the Government ofNicaragua is an armed conflict which is “not of an international character”.The acts of the contras towards the Nicaraguan Government are thereforegoverned by the law applicable to conflicts of that character; whereas theactions of the United States in and against Nicaragua fall under the legalrules relating to international conflicts. Because the minimum rules ap-plicable to international and to non-international conflicts are identical,there is no need to address the question whether those actions must belooked at in the context of the rules which operate for the one or for theother category of conflict. The relevant principles are to be looked for inthe provisions of Article 3 of each of the four Conventions of 12 August1949, the text of which, identical in each Convention, expressly refers toconflicts not having an international character. (para. 219)

The Court seemed to differentiate the war (and the applicable law) betweenNicaragua and the USA from that of the conflict between the Contra and theGovernment of Nicaragua. However, it emphasized the identical nature of theminimum IHL standards applicable to both types of conflicts—it can be said thatthe threshold which was referred to by the ICJ is valid for Darfur also. Yet, theNicaragua case seems to be different from Darfur in that a foreign state was di-rectly and indirectly involved as a main actor in the war (as clearly established bythe world Court). It is not clear whether Chad is the main actor/participant in theDarfur situation.

The following points recapitulate the debate: firstly, although the Darfur con-flict comprises elements of both types of conflicts, it is basically a civil warsituation. Common Article 3 of the Conventions, GP II, and appropriate cus-tomary rules apply,61 the specific and most relevant rules will be elaborated sub-sequently; secondly, in terms of applying the fundamentals of IHL (e.g. rules ofdistinction, humanity, proportionality and necessity) to an armed conflict, the dif-ference between the two types of conflicts arguably lacks real substance, althoughthere are differences on the extent of the protection and application of the rulesat issue; finally, even if the conflict is a mix of both, the interest here is to look atthe specific duties of the internal parties and their compliance therewith.

60 Op. cit., fn. 51, para. 219; however, the ICTY (in Tadic, op. cit., fn. 28) sharply differedfrom this approach—it made a distinction between the conflict up until 1992 as internaland afterwards as international; for detailed discussion on mixed conflicts, see Dinstein(op. cit., fn. 41, at 14–16); and Kolb et al. (op. cit., fn. 44, at 93–106).

61 R. A. Islam, ‘The Sudanese Darfur Crisis and Internally Displaced Persons in Inter-national Law: The Least Protection for the Most Vulnerable’ (2006) 18 InternationalJournal of Refugee Law 354.

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3. Specific Duties and Questions of Compliance

A. The Parties and Their Specific Duties

In order to comprehend properly the duties and compliance with them, a briefre-mention of the parties to the conflict is imperative. The parties can broadly becategorized into two: the Sudanese armed forces (including the Popular DefenceForces and the ‘Borders Intelligence’) and the Janjaweed militia,62 on the onehand, and the rebels, mainly the SLM, JEM (and the National Movement forReform and Development [NMRD]), on the other. All factions and ‘bandits’ ofDarfur63 may not necessarily qualify as parties to the conflict for purposes ofIHL, as they do not seem to satisfy the aforementioned requirements.

The forces in the first cluster must respect the laws and customs of war appli-cable to this internal armed conflict for the simple reason that Sudan has been aparty to the Geneva Conventions of 1949 since 1957 and to GP II since (7 July)2006. While the obligations of Common Article 3 are applicable to the conflict(both as a matter of treaty obligation and customary law) from day one, GP IIhas only been applicable (as a treaty obligation) to Darfur since 2006. GP II isalso binding on rebels and individuals from their entry into force for Sudan(Article 23).

However, the parties in both clusters (including the rebels and individuals)must respect the provisions of the Protocol and other duties which reflect custom-ary law. At least three relevant areas/obligations can be identified here: Firstly,indiscriminate attacks against Darfur civilians, bombardment of cities, towns, vil-lages ‘or other areas containing a similar concentration of civilians or civilianobjects’64 (as enshrined in Article 13(2)) are customary bans. Secondly, it is gen-erally accepted that attacking objects used for ‘humanitarian relief operations’and ‘humanitarian relief personnel’ are prohibited; the former is a ‘corollary ofthe prohibition of starvation’ as a deliberate method of war and the protectionof civilian objects. The personnel involved in such efforts are civilians and thusnot legitimate targets of military attack.65 And finally, peacekeepers (and notpeace enforcers) are not a party to a conflict and therefore enjoy the protection

62 For details on the forces, see the UN Commission on Darfur, op. cit., fn. 39, paras76–88, and on the link between the Janjaweed and the State, paras 111–116.

63 Crisis Group Report, infra, fn. 54, pp. 14–15; see also Commission of Inquiry Report,op. cit., fn. 39, paras 172–174. The problem of fragmentation and proliferation of rebelgroups in Darfur will be discussed later in the same section.

64 Henckaerts et al., op. cit., fn. 25, p. 43, see also pp. 40–44; for a critical support ofthis position, see Breau, op. cit., fn. 28, p. 187–189; see also Amended Protocol II tothe Convention on Certain Conventional Weapons 1980, Art. 3(9) and ICTY Statute,Art. 3. Attacking undefended towns, villages, dwellings, or buildings is contrary to thelaws and customs of war; however, a ban on indiscriminate attacks is not in the ICCStatute, Art. 8(2)(e).

65 Henckaerts et al., op. cit., fn. 25, pp. 105–111; see also Breau, op. cit., fn. 28, pp. 177–180.She agrees that the prohibition on attacking relief assistance and personnel is a cus-tomary ban ‘provided that there is a clause inserted in each Rule about the necessity

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provided for civilians. It is well established that killing a peacekeeper is a warcrime even in internal armed conflict.66

It is interesting to note that ‘in 2004 the two rebel groups and the Governmentof the Sudan entered into a number of international agreements, inter se, in whichthey invoke or rely upon the Geneva Conventions’.67 In particular, the Protocolon the Establishment of Humanitarian Assistance in Darfur, signed on 8 April2004 by the Government of the Sudan with the SLA and JEM, referred to thecommitment of the parties to the provision of humanitarian assistance in Darfurin accordance with international rules, including GP II(2).

It can also be said (though not the main issue here) that both sides to the con-flict in Darfur, unlike the South–North divide in Sudan, are Muslims and, there-fore, subject to Islamic rules of warfare. Al-Zuhili, underlining the legitimacy,inter alia, of wars of ‘self-defence’ and ‘assistance for the victims of injustice’ inIslam, has referred to the decree (of 632–634) of the first Caliph of Islam, AbuBakr, issued to his commander:68

I prescribe ten commandments to you: do not kill a woman, a child, or anold man, do not cut down fruitful trees, do not destroy inhabited areas, donot slaughter any sheep, cow or camel except for food, do not burn datepalms, nor inundate them, do not embezzle (commit ghulul), not be guiltyof cowardliness.

This reference may be useful in terms of preventing violations of humanitariannorms in the region; reference to rules of Islam may well be more easily under-stood and received than IHL (or human rights) treaties which may be perceivedas ‘inventions’ of, and ‘impositions’ from, western civilization.

Because of these treaty and customary law-based duties, as endorsed by theparties, government forces, their affiliated militia, the rebels (who satisfy theaforesaid conditions) and individuals in Darfur must, as a minimum, respect andprotect the basic rules and customs of war.

of obtaining permission of the party in whose territory the relief action will be con-ducted’.

66 Henckaerts, ibid., pp. 112–114; see also ICC Statute, Art. 8(2)(b); Statute of the SpecialCourt for Sierra Leone, Art. 4(b); see also Breau, op. cit., fn. 28, p. 183. While she agreesthat peacekeepers enjoy protection the same as civilians, she thinks that customary lawhas not yet crystallized to protect peacekeepers.

67 UN Commission of Inquiry, op. cit., fn. 39, para. 76; see also the Humanitarian CeasefireAgreement on the Conflict in Darfur, of 8 April 2004; the Protocol on the Establishmentof Humanitarian Assistance in Darfur, of 8 April 2004 and the Protocol on the Improve-ment of the Humanitarian Situation in Darfur, of 9 November 2004.

68 Sheikh W. Al-Zuhili, ‘Islam and International Law’ (2005) 87 (858) IRRC 282. How-ever, the Commission of Inquiry noted (op. cit., fn. 39, at 5) that: ‘Sudanese criminallaws do not adequately proscribe war crimes and crimes against humanity, such asthose carried out in Darfur, and the Criminal Procedure Code contains provisions thatprevent the effective prosecution of these acts’.

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B. Questions of Compliance

Breaches of IHL rules are regrettably widespread in Darfur, the details of whichcan be traced from various credible sources and reports. While denouncing thealleged genocide by the Government of Sudan in Darfur during the initial yearsof the conflict (2002–2004), the UN Commission of Inquiry:

finds that in many instances Government forces and militias under theircontrol attacked civilians and destroyed and burned down villages in Dar-fur contrary to the relevant principles and rules of international humani-tarian law . . .. In addition, it appears that such attacks were also intendedto spread terror among civilians so as to compel them to flee the villages.(para. 631)

The Sudanese Government denied this, and other similar assertions of system-atic breaches of humanitarian law for several reasons: First, the atrocities werecommitted by the rebels, and not by government forces as a result of the tribalconflict there. And second, the armed forces reacted to maintain law and orderand their targets were the rebels and not civilians (paras 205, 249). However, theevidence obtained by the UN Commission and the findings of the National Com-mission of Inquiry established by the Government of Sudan (as referred to by theUN Commission) uncovered breaches of Common Article 3 by both governmentand rebel forces.69

While the [UN] Commission did not find a systematic or a widespreadpattern to violations committed by rebels, it nevertheless found credibleevidence that members of the SLA and JEM are responsible for serious vi-olations of . . . humanitarian law . . .. In particular, these violations includecases of murder of civilians and pillage. (para. 693)

The rebels denied these allegations and blamed the government and the Jan-jaweed for the violations; for instance, JEM affirmed to the Commission that ‘itsinternal regulation contained strong commitment’ to IHL and the protection ofcivilians (paras 218–19). The Report is much more critical of the governmentthan the rebels on the issue of deliberate attacks against the civilian population;however, the killing of humanitarian workers as civilians was generally attributedto the rebels, to the new rebel movement called NMRD in particular (paras 289–90).

Moreover, other crucial violations which are alleged to have been perpetratedmainly by government forces and the Janjaweed militia included: the failure totake precautionary measures in military engagement when civilians and civiliantargets are at risk (paras 262–66), forcible transfer of civilians and abuses in IDP

69 Commission of Inquiry, op. cit., fn. 39, paras 456–59.

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(internally displaced person) camps,70 widespread rape and other forms of sex-ual violence against women and girls (paras 333–36), the destruction of objectsimportant to the survival of the people71 and the targeting of African tribes, suchas ‘members of the Zaghawa, Fur and Masaalit tribes’ (para. 193). The salientfeatures of acts ‘committed’ by the Janjaweed seemed to focus on widespreadrapes, pillages, burning villages and civilian objects, etc., while indiscriminate airbombardment and the likes ‘featured’ the actions of the regular armed forces ofSudan.

The credibility of these findings can be inferred not only from the legal, foren-sic, military and investigative expertise of members of the team, but also fromthe extensive investigation conducted on the ground and the diverse sources ofinformation gathered in the process.

During its presence in the Sudan, the Commission held extensive meet-ings with representatives of the Government, the Governors of the DarfurStates and other senior officials in the capital and at provincial and locallevels, members of the armed forces and police, leaders of rebel forces,tribal leaders, internally displaced persons, victims and witnesses of vio-lations, NGOs and United Nations representatives. (Executive Summary,para. 4)

Given the scale of violations and the complexity of the situation, the time, budgetand expertise constraints of the Commission (it was only mandated for threemonths and its budget was not enough to hire more than 13 experts [para. 18]),it has to be underlined, as stated in the Report, that ‘the Commission has beenable to take a first step towards accountability’ (para. 19).

Be that as it may, the findings (in respect of breaches) have been endorsed bythe UN72 and others, which led to the referral73 of the case by the SC to the ICC

70 Ibid., paras 322–31; for the obligations relating to IDPs, see K. Hulm, op. cit., fn. 26,p. 91.

71 The Commission (op. cit., fn. 39, para. 305) found that ‘many of the villages were re-portedly completely destroyed by deliberate demolition of structures and more fre-quently by burning down the whole village. Straw roofs of the traditional circularhouses were torched, as well as all other inflammable material, and vegetation insideand in the immediate vicinity of the village was destroyed by burning. Some of thesevillages had hundreds of homes that were torched and burnt to the ground. Duringthe attacks Janjaweed are reported to have destroyed utensils, equipment for process-ing food, water containers and other household items essential for the survival of theinhabitants’.

72 UN SC Res 1593/2005; for an excellent account of the violations and the referral, seeM. Happold, Darfur, the Security Council, and the International Criminal Court’(2006) 55 ICLQ 226; R. A. Islam, op. cit., fn. 61, p. 354.

73 For a detailed account on the arrest warrant process against the President of Sudan, seeS. Williams and L. Sherif, ‘The Arrest Warrant for President Al-Bashir: Immunities ofIncumbent Heads of State and the International Criminal Court’, in this issue (work-ing paper, presented at Legal Developments in Darfur, Symposium, Oxford Brookes

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in accordance with the recommendation of the Commission (para. 569). Indeed,serious violations occurred in the first two- to three-year period of the conflict bygovernment forces, the Janjaweed and the rebels, the details of which have beenwell articulated by the Inquiry Commission.

Contrary to what some hoped for,74 however, the Commission’s work and sub-sequent referral of cases to the ICC do not seem to have stopped or even mit-igated the violence against civilians. For instance, the February 2008 Report ofthe UN Secretary-General to the SC expressed serious concern over the hostil-ities between Government forces and JEM-Khalil Ibrahim rebels, and stronglycondemned:75

The attacks on 8 February [2008] on civilians on the Western Darfurtowns of Abu Suruj, Sirba and Seleia, which have caused an estimated 200causalities and have led over 10 000 civilians to flee their homes and seekrefuge across the border in Chad. Such brutal attacks on civilian towns, in-cluding aerial bombardments, represent grave violations of internationalhumanitarian law.

The Government claimed that the operations were aimed at rooting out the JEMforces from the area, while the latter alleged that the actions of Government tar-geted civilians.76 The ICC prosecutor told the SC in June 2008 that ‘the entireDarfur region is a crime scene’, and ‘evidence shows an organized campaign bySudanese officials to attack civilians’. While Libya thought that such labelling ofSudanese officials is mainly based on ‘media and political reports’, other mem-bers of the Council have basically agreed with the Prosecutor. China’s represen-tative ‘reaffirmed his Government’s condemnation of crimes against civilians’.77

Those civilians who sought refuge in IDP camps are not safe from violenceeither. The November 2007 Report of the International Crisis Group explainedthe situation in the camps around Zalingei stating that ‘twenty assassinations orattempted assassinations (pitting suspected rebel sympathizers against suspectedgovernment sympathizers) were reported; an IDP suspected of working for thenational security agency was shot; guns have been fired at; the deputy sheikh was

University, 17 December 2008) See also ICC Press Release, op. cit., fn. 4; for prelimi-nary scholarly responses and analysis, see J. P. Pham, ‘ICC arrest warrant for Sudan’sAl-Bashir has both humanitarian and strategic consequences’,Jurist, 7 March 2009 at<http://jurist.org/hotline/#1015208254783684593>; and ‘Scholars Slam Arrest WarrantAgainst Bashir’, Gulf Times, 9 March 2009.

74 P. Alston, ‘The Darfur Commission as a Model for Future Responses to Crisis Situa-tions’, (2005) 3 Journal of International Criminal Justice 600.

75 Report of the Secretary-General, op. cit., fn. 42, para. 44; see also SC Res 1769/2007,p. 2.

76 ‘Hundreds of Children Missing after Darfur Attack’, IRIN, 14 February 2008; see also‘UN Heads into Razed Darfur Town’, BBC News, 23 March 2008. The town Haskanita,which had been home to 7000 people, had been destroyed allegedly by governmentforces and their militia.

77 UN doc SC/9349, 5 June 2008, pp. 1, 7.

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killed’.78 These occurred over a period of six months or so. In addition, an IDPfrom Zamzam camp reported in October 2008 that ‘four vehicles entered thecamp filled with men wearing police khaki uniforms . . . and started shooting . . ..They shot me in the back before I got the chance to escape’.79 Government forces(in particular the Janjaweed) are often blamed for such actions,80 although therebels are also implicated in similar violations. The SLM/A (mostly from the Furand Massaleit tribes), for instance, ‘committed so many atrocities that it becameknown locally as the “Janjaweed” II’; and this continued in 2007.81

As reported by the UN SC Monitoring Panel on Sudan, moreover, ‘the in-creased attacks against humanitarian personnel and vehicles have frustrated de-livery of humanitarian assistance’.82 This may well constitute a breach of IHLfor three main reasons. First, such military attacks are contrary to the prohibi-tion of targeting civilians and civilian objects; and second, starvation of the civil-ian population (by obstructing relief assistance) appears to be prohibited if theyare intentionally used as a method of warfare; and third, if such objects are at-tacked contrary to the requirements of proportionality and precautionary mea-sures, they would be in violation of IHL duties, regardless of whether they arepurported to starve civilians or not. The UN spokesperson, Michele Montas, ex-pressed concern in September over ‘military bombardments and attacks on aidworkers’ and added that ‘the cut in aid compromises the health and well-beingof numerous towns and villages and affects up to 450 000 people’.83 In the earlyyears of the conflict such acts were said to have been committed by rebels;84 how-ever, the ICG’s Report of 2007 stated that ‘violence against them (humanitarian

78 International Crisis Group, ‘Darfur’s New Security Reality’, African Report No 134, 26November 2007, pp. 6–7.

79 Adam, ‘They shot me in the back’, IRIN, 22 October 2008; see also the Secretary-General’s Report, op. cit., fn. 42, para. 7. He referred to ‘harassment and intimidationby armed militia’ in the camps, and the pressure the government puts on IDPs to returnto their homes while ‘the security situation has not improved’. For an excellent accountof the expectations and failures to protect IDPs in Darfur, see Islam, op. cit., fn. 61,p. 354.

80 Associated Press, 2 May 2008.81 ICG, 2007, op. cit., fn. 78, p. 11.82 Report of the Panel of Experts, UN doc S/2007/584, 3 October 2007, para. 26.83 ‘Sudan: Thousands at Risk as Darfur Violence Restricts Aid Deliveries’, IRIN, 12

September 2008; see also ‘Worsening Banditry Threatens Humanitarian Efforts inDarfur’, IRIN, 27 March 2008. The WFP-Sudan told IRIN that there has been ‘veryalarming rates of banditry’ directed at WFP convoys’. It was also stated that ‘threehumanitarian workers and one contract truck driver have been killed and nearly 90people working on behalf of the humanitarian operation abducted . . . since the be-ginning of 2008. There have been 23 break-ins and armed assaults at humanitarian andUN compounds’. See also the UN Secretary-General’s Report, 14 February 2008, para.8. He pointed out that ‘During 2007, 154 vehicles of international organisations weretaken, a trend continued in 2008 with 30 vehicle hijackings including, as at 24 January,23 full-loaded food trucks or the WFP. . . . On 13 January . . . a WFP driver was shotand killed in an attempted carjacking in El Geneina’.

84 The UN Commission blamed rebels for killing humanitarian workers, op. cit., fn. 39,paras 289–90.

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workers and objects) comes from all sides: government militias, non-signatoryrebels, SLA/MM forces’,85 the implications of which raise serious questions ofcompliance of the parties with the rules at issue. However, it is not clear whetherthis is done deliberately for starvation purposes or whether people are just help-ing themselves to these supplies. It is also not clear whether the parties engagedin such attacks have complied with the proportionality and precautionary ruleseither.

Peacekeepers (and peace enforcers) and their convoys have also been sub-jected to military attacks by the parties to the conflict. Attacks against the per-sonnel of the African Union Mission in the Sudan (AMIS) ‘have been numerousand deadly in 2007’; 21 soldiers have been killed, others have been woundedand vehicles, weapons and ammunition have been taken. It seems that these aremainly acts of rebels (both the signatories to the peace process such as SLA andJEM and other groups), although the Mission does not normally determine re-sponsibility. Some think that the reason for such attacks is related to frustrationand mistrust of AMIS on the part of the various rebels.86 Similarly, ‘on 7 Jan-uary [2008], a UNAMID [AU/UN Hybrid operation in Darfur] resupply convoywas shot at by Sudanese armed forces two kilometres outside of Tine [WesternDarfur]. A Sudanese driver was injured while a diesel tanker and an armouredpersonnel carrier were severely damaged’.87

This situation raises a twofold legal problem. The first one concerns the pro-tection provided for peacekeepers vis-a-vis peace enforcement personnel. UnderIHL, attacks on AMIS88 personnel amount to attacks on civilians, while attacks

85 Op. cit., fn. 78, p. 1; see also the executive summary of the Report, para. 3. It has beensaid that ‘the Sudan Liberation Army faction of Minni Minawi (SLA/MM) have beenresponsible for attacks on civilians, humanitarians, the AU Mission (AMIS) and someof the violence in the internally displaced person (IDP) camps. Their leaders have beengiven Government jobs and land’.

86 ICG Report, op. cit., fn. 78, p. 22. ‘On the ground, AMIS troops have become increas-ingly equated with the forces of the government or of the DPA signatories’. See alsoMonitoring Panel Report, S/2007/584, para. 13 and ‘Attacks on Peacekeeping Forcesin Darfur’, UK FCO Press Release, 30 September 2007—David Miliband ‘utterly con-demns yesterday’s murder of African Union Peacekeepers in Darfur’.

87 Secretary-General’s Report, op. cit., fn. 42, para. 9.88 For peacekeeping mandates and powers of AMIS, see at <http://www.amis-

sudan.org/>; see also L. Green, op. cit., fn. 13, pp. 381–385. In addition to IHL protec-tions of peacekeepers, he pointed out that the 1946 Convention on the Privileges andImmunities of the United Nations offers additional legal protections for peacekeepers;see also the 1994 Convention on the Safety of the United Nations and Associated Per-sonnel (New York, 9 December 1994); O. Engdahl, ‘Protection of Personnel in PeaceOperations: The Role of the Safety Convention against the Background of GeneralInternational Law’, 5 (4) Journal of International Criminal Justice (2007) 1031–1032;A. Bouvier, ‘“Convention on the Safety of United Nations and Associated Person-nel”: Presentation and Analysis’, (1995) 309 IRRC 638–666; M. Bourloyannis-Vrailas,‘The Convention on the Safety of United Nations and Associated Personnel’, (1995)44 ICLQ 560–590.

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against UNAMID89 personnel may not necessarily be so as the latter is specif-ically mandated with enforcement powers and so may be a legitimate target ofcombat, and entitled to ‘rights of a belligerent’.90 It has to be noted (though thedetails are not within the scope of this work) that any action against (or for thatmatter by) UNAMID personnel must be in compliance with the rules of IHL91

(in particular, the rules of necessity, humanity and proportionality) the contra-ventions of which may constitute war crimes.

Moreover, the 1994 Convention on the Safety of the United Nations and As-sociated Personnel provides protections for UN peacekeepers including thosedeployed under Chapter VII such as UNAMID (to a civil war situation), unlessthey ‘are engaged as combatants against organized armed forces and to which thelaw of international armed conflict applies’.92 Article 7(1), for example, imposesa duty upon states (the host state in particular) to ensure that ‘United Nationsand associated personnel, and their equipment and premises shall not be madethe object of attack or of any action that prevents them from discharging theirmandate’. In principle, hence, UNAMID personnel (that embraces military, po-lice and civilian units) must enjoy these and similar protections, as they are notin any sense engaged in combat with organized military forces there. But Sudanis not a party to the 1994 Convention, despite the fact that it signed ‘the Statusof Forces Agreement’ with the UN/AU for the deployment of UNAMID on 10February 2008.93

The second and probably the most serious challenge is that the assaults againstaid workers, aid convoys, peacekeepers and even civilians in IDP camps byrebel groups and bandits have increased. Determining the identities of the at-tackers has become difficult due to the proliferation and fragmentation of themovements there. The SLA-Mini Minawi has splintered into nearly five group-ings, while JEM has suffered perhaps fewer but, nevertheless, similar splinters.94

89 See SC Res 1769/2007. Under para. 15 and on the basis of Chapter VII of the UN Char-ter, UNAMID ‘is authorized to take the necessary action, in the areas of deploymentof its forces and as it deems within its capabilities in order to: (i) protect its personnel,facilities . . . and humanitarian workers, (ii) support . . . effective implementation ofthe Darfur Peace Agreement, prevent the disruption of its implementation and armedattacks, and protect civilians . . .’; by the same token, the United Nations Mission inSudan’s (UNMIS) mandate was extended to Darfur by SC Resolution 2706/2006—itwas a Chapter VII mandate and therefore not merely a peacekeeping operation.

90 See Green, op. cit., fn. 13, p. 381; see also B. Flappe, ‘International Peace Operations’in Dieter Fleck (2nd ed.), The Handbook of International Humanitarian Law (2008)p. 647, para. 1308. This paragraph underlined that: ‘when peace operations includeelements of peace enforcement, international humanitarian law must be applied’.

91 Green, ibid., p. 385; for some endeavours to extend the protections to some specialoperations, see Optional Protocol to the Convention on the Safety of the United NationsPersonnel (New York, 8 December 2005).

92 Art. 2(2); see also M. Bourloyannis-Vrailas, op. cit., fn. 88, at 560–590.93 See at <http://unamid.unmissions.org/Default.aspx?tabid=898&currentpage=21>.94 According to the ICG Report (op. cit., fn. 78, pp. 13–14), SLA (Mini Minawi) has been

splintered into five: SLA/Unity, the Ahmed Abdelshaafie group, the Abdel Wahid

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Several new rebel groups have also emerged during the past few years or so.95

The Special Envoy of the Secretary-General for Darfur, Mr. Jan Eliasson, under-lining this challenge to the peace process, submitted that, ‘the movements havecoalesced around five groupings’.96 That is why the requirement for combatantsto distinguish themselves from civilians is so important.

This challenge (and the developments therein) obviously affects the efforts toprotect humanitarian norms in Darfur. The proliferation and fragmentation ofrebel groups and their respective leadership would mean that determining com-mand and hierarchy (in effect the application of IHL to their operations) withineach rebel group becomes blurred. Another aspect of this problem is that it wouldbe difficult to identify who does what in their own respective localities and areasof movement. It may be assumed that the signatories to the Darfur Peace Agree-ment (as recognized by Sudan, the UN, AU and other regional actors) as partiesto the conflict have expressed commitment to abide by IHL (including not to at-tack aid workers, peacekeepers and civilians) and, therefore, the crimes are com-mitted by non-signatory rebels or bandits. However, some reports in fact indicatethe commission of grave violations by DPA signatories. The SLA/M factions ofMini Minawi rebels ‘have been responsible for attacks on civilians, humanitar-ians, the AU mission [AMIS] and some of the violence in the . . . IDP camps’(ICG, 2007, i).

In short, the Sudanese Government and Darfur rebels have unambiguous du-ties to protect the civilian population and civilian objects, including aid work-ers, peacekeepers and humanitarian aid during the conflict. The latter has anaspect on the prohibition of starvation of a population during the conflict. Inspite of denials and accusation and counter-accusation from both sides, the vio-lations are apparent and are of a serious nature. Breaches by the governmentarmed forces involved indiscriminately attacking villages and towns,97 mostlyduring military engagement. The ICC, in the Al-Bashir case referred, for exam-ple, to ‘two counts of war crimes: intentionally directing attacks against a civilian

group, and the Khamees Abdallah (later formed National Redemption Front Coali-tion in Asmara) group; similarly, the Darfur Independent Front, JEM-Eastern Com-mand, JEM-Collective Leadership, the Shahama Movement, etc., emerged from JEMin defiance of Khalil Ebrahim’s leadership.

95 Including the NMRD, the Revolutionary Democratic Front Forces (RDFF), UnitedRevolutionary Force Front, Sudan National Liberation Movement, United Front forLiberation and Democracy (ICG, 2007:14).

96 Report of the Secretary-General (S/PV5832), p. 3. The groups are: SLA-Unity, theUnited Resistance Front (URF), SLA-Abdul Shafi, SLA-Abdul Wahib and JEM-Khalil Ibrahim.

97 The Inquiry Report (op. cit., fn. 39, para. 283) stated: ‘Based on its investigations andthe pattern of air attacks which it has established, the Commission is of the view thatthe military bears responsibility for a very large number of indiscriminate air attackswhich resulted in the death of numerous civilians’. However, whether the nature oflater attacks and alleged violations (such as the 2008 operations in towns of Abu Suruj,Sirba and Seleia) can be characterized as indiscriminate attacks against military targetsor proportionality issues relating to military targets is not clear.

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population as such or against individual civilians not taking direct part inhostilities—Article 8(2)(e)(i); and pillaging—Article 8(2)(e)(v)’ (see Press Re-lease op cit); the President persistently denied the charges.98 The crimes of theJanjaweed centred on widespread abuses against civilians and civilian objects.Equally, the main actions of rebel movements can be characterized as crimescommitted against aid workers, peacekeepers and humanitarian assistance. Theacts of some factions or banditries may not be governed by the rules of IHL,yet their actions/omissions may entail personal criminal responsibility under IHL(and also under Sudanese law), depending on the nature of their acts and the linkbetween what they do and the Darfur civil war (Inquiry Commission, para. 296).How is then the international community (including Sudan) responding to theseextreme breaches?

4. Responses of the International Community

The parties to this conflict, in particular the Government of Sudan, have cer-tainly primary responsibility to respect and protect the civilian population inDarfur.99 This entails the duty to ensure that state forces (and associated militia)do obey the rules, and taking appropriate measures against violations by govern-ment forces and others. Sudan has been persistent in its claim that it is acting torestore law and order as a response to ‘the tribal conflict’ in Darfur.100 It alsoinsisted that there are no systematic and deliberate assaults against civilians byits regular and other armed groups operating under its control. However, it iswidely believed ‘that . . . Sudan has failed to protect the rights of its own peo-ple. The measures it has taken to counter the insurgency in Darfur have been inblatant violation of international law’.101

The government has undertaken some positive measures: The ICRC notedthat ‘Sudan’s ratification in 2006 of the 1977 Additional Protocols signifieda step forward in the protection of conflict victims’.102 The arrest of AliKushayb in Sudan, a Janjaweed militia leader who was implicated for war

98 Sarah El Deeb, ‘Sudan’s President: Arrest Warrant a Conspiracy’, Associated Press, 5March 2009. Al-Bashir told his cabinet that ‘the tribunal, the United Nations . . . were“tools of the new colonization”’.

99 See e.g. SC Res 1769/2007, para. 15; see also Inquiry Commission Report, op. cit., fn.39, para. 626; see generally Green, op. cit., fn. 13, ch. 17.

100 Inquiry Commission Report, op. cit., fn. 39, paras 419–19, 456. The country did establishNational Commission of Inquiry and Rape Commission to investigate the ‘alleged’crimes.

101 Ibid.; see also ICC Press Release op. cit., fn. 4. The ICC ‘alleged that this campaignstarted soon after the April 2003 attacks on El Fasher airport as a result of a commonplan agreed upon at the highest level of the Government of Sudan by Omar Al-Bashirand other high-ranking Sudanese political and military leaders. It lasted at least until14 July 2008, the date of the filling of the Prosecutor’s Application for the warrant ofarrest for Omar Al-Bashir’.

102 See <http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/sudan>.

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crimes,103 and ‘launching a campaign to disarm militias and restrict the useof weapons in Darfur—an apparent reference to the notorious Janjaweedand other government-aligned forces’104 must also be noted. While the UNSecretary-General rightly ‘welcomed the call for a ceasefire, saying the world ex-pects “concrete progress”’, the JEM rebel group considered it as ‘rhetoric andpropaganda’.105 Because of the fluidity of the situation, and the fact that therebels are also particularly involved in gross crimes against civilians, aid work-ers and humanitarian assistance, the international community’s crucial role (andduty) to respond collectively to prevent violence remains.

From a humanitarian law perspective, the ongoing, widespread and indiscrim-inate violence against the people of Darfur (and other civilians) is a breach ofan erga omnes character,106 which must be met with appropriate, timely andconcerted international response. So far, the international community has triedto help out in various ways, inter alia, facilitating specific settlement of theconflict,107 imposing arms embargo,108 carrying out an inquiry into violations, in-ter alia, of IHL, referrals of some criminal cases to the ICC,109 and deployingpeacekeeping and peace enforcement operations to Darfur. Taking into accountthe focus of academic endeavour, which is on the criminal and ICC aspects of theissue, the effectiveness and challenges of peacekeeping operations in Darfur andtheir implications for protecting civilians merit particular attention.

The UN SC, in its Res. 1556 of 2004110 (as a first Council action), strongly con-demned ‘violations of . . . humanitarian law by all parties to the crisis . . . including

103 ‘Darfur militia leader in custody’, BBC News, 13 October 2008 at <http://news.bbc.co.uk/2/hi/africa/7666921.stm>.

104 X. Rice, ‘Sudanese president calls ceasefire in Darfur’, The Guardian, 12 November2008 at <http://www.guardian.co.uk/world/2008/nov/12/sudan>.

105 ‘Bashir calls immediate Darfur ceasefire’, Agence France Presse, 13 Novem-ber 2008 at <http://www.capitalfm.co.ke/news/International/Bashir-calls-immediate-Darfur-ceasefire-2204.html>.

106 See Legal Consequences of the Construction of a Wall in the Occupied Palestine Ter-ritory Advisory Opinion, ICJ Repts, 2004, paras 157, 158; see also Yihdego, op. cit.,fn. 18, pp. 199–203.

107 For the efforts of the AU through its especial Envoy for Darfur, Dr. Salim AhmedSalim, see at <http://www.africa-union.org/DARFUR/homedar.htm>; see also Inter-national Crisis Group, ‘The EU/AU Partnership in Darfur: Not yet a Winning Com-bination’, African Report No 99, 25 October 2005. The EU has been a major financialcontributor as well.

108 SC Res. 1566/2004.109 See M. Happold, op. cit., fn. 72, p. 226. This has been both legally and politically con-

troversial, in particular the indictment of the Sudanese incumbent President as warcriminal in 2008. It is not yet clear whether this factor has helped or aggravated thehumanitarian crisis in Darfur. See further Williams et al., op. cit., fn. 73.

110 The measure was not unanimous. While countries such Russia, USA, and UK werein favour of this Resolution, China and Pakistan abstained. Some claim economicand other ties as reasons for such division; see Peter Goodman, ‘China Invests Heav-ily in Sudan’s Oil Industry: Beijing Supplies Arms Used on Villagers’ WashingtonPost, 23: 12:2004, p. A01 at <http://www.washingtonpost.com/wp-dyn/articles/A21143-2004Dec22.html>; for responses of the SC to violations of IHL in general, see

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indiscriminate attacks on civilians’, and acting under Chapter VII, endorsed‘the deployment of international monitors, including the protection force’ of theAfrican Union to Darfur ‘under the leadership’ of the AU. The Resolution em-phasized that the deployment of peacekeepers will be from African countries,while the international community was also urged to support the process (in ma-terial and financial terms). This led to the deployment of AMIS to Darfur, theinitial mandate of which was only to monitor the humanitarian ceasefire and theprotection of its monitors. This operation was terribly under-resourced in bothhuman and logistical terms and, therefore, was not able to protect AMIS person-nel let alone Darfur civilians from violent and indiscriminate attacks.111

This led to the Council taking further measures, and later in 2006, it expandedthe mandate of the United Nations Mission to Sudan (UNMIS) to Darfur, whichwas initially deployed in 2005, to oversee the North–South peace process.112 Un-like AMIS, UNMIS was empowered, inter alia, to facilitate humanitarian aid inDarfur; to support the AU mission; and most importantly to use force in de-fence of its personnel and ‘without prejudice to the responsibility of the SudaneseGovernment, to protect civilians under imminent threat of physical violence’.113

Again, UNMIS could not cope up with the dynamics of the conflict; not only wasit fully mandated to defend the civilian population but also it was not fully de-ployed due to human and logistical constraints and, thus, was not an effectivepeacekeeping operation114—in fact, the murders of AMIS personnel occurredwhile UNMIS was deployed in Darfur.

Consequently, the Council, ‘noting with strong concern ongoing attacks on thecivilian population and humanitarian workers’ (emphasis original), and the ob-stacles to humanitarian assistance, among other things, unanimously adoptedRes. 1769 of 2007 to deploy the AU/UN Hybrid Operation in Darfur (UN-AMID). Based on Chapter VII, the Mission was authorized (a) ‘to take the

R. Cryer, ‘The Security Council and International Humanitarian Law’, in S. Breau andA. Jachec-Neale (eds), Testing the Boundaries of International Law (2006) 246–275.

111 For the deployment of the Mission, see ‘The African Union Deploys More Troops inDarfur as Part of Its Efforts to Strengthen AMIS’, AU Press Release No 098/2004, 28October 2004; for a detailed account on AMIS, see C. Gray, ‘Peacekeeping and En-forcement Action in Africa: The Role of Europe and the Obligation of Multilateral-ism’, (2005) 31 Review of International Studies 213–215; for the controversy over citingChapter VII, see M. Zwanenburg, ‘Regional Organisations and the Maintenance ofInternational Peace and Security: Three Recent Regional African Peace Operations’,(2006) 11 JCSL 483.

112 The North–South problem is different from the Darfur situation—for further detailssee ICG Report 2008, infra, fn. 129.

113 The mandate enshrined in Res 1706/2006 was based on Chapter VII, but the detailsalso contain some enforcement measures. Sudan (and maybe the people) had strongobjections on this move; see e.g. ‘Darfur protesters condemn UN plan’, BBC News, 8March 2006 at <http://news.bbc.co.uk/2/hi/africa/4785066.stm>. It was decided to haveup to 10 000 military personnel and 715 civilian police personnel, but this was not prac-tical and so UNMIS was as ineffective as AMIS.

114 ‘UNMIS admits delay of Darfur Heavy Support Package’, Sudan Tribune, 29 June2007; see also ICG Report, op. cit., fn. 54.

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necessary action’ subject to its area of deployment and its capabilities, (b) ‘toensure the security and freedom of movement of . . . humanitarian workers, and(c) to ‘prevent the disruption’ of the peace process and ‘armed attacks, and pro-tect civilians’—the caveat ‘without prejudice to the responsibility of the SudaneseGovernment’ was also reiterated. This mandate is much broader than the pow-ers of UNMIS, and the Mission is now operational in around 55 locations ofdeployment in Darfur.115 UNAMID has been making efforts to protect civiliansand investigate military attacks against them.116 In the early months of the Mis-sion’s deployment, the UN Special Envoy for Darfur held that:117

The Mission is doing its utmost to adopt a more proactive a posturethrough increased presence, especially in internally displaced personscamps. To that end, the UNAMID Police Commissioner has dramaticallyincreased the number of police patrols, which now take place from 8 a.m.to 6 p.m., and is constructing a number of police posts in those areas witha view to maintaining a 24-hour presence. The Force Commander is alsoexploring options for increasing the presence of forces in key areas.

Despite the commendable effort and commitment of peacekeepers and troopsand other resources contributing countries, however, UNAMID is not yet effec-tive in providing civilian security. For example, a cattle-herder in October (2008)told reporters that ‘these peacekeepers . . . can’t stop the government or thosewho attack us’.118 It was also reported that: 119

In May (2008), when government police attacked the town of Tawila inNorth Darfur and its camp for the displaced—burning houses, looting themarket and beating people—UNAMID did not intervene militarily, opt-ing instead to try to pressure the government’s police commander to stopthe attack.

These and other similar occurrences are evidence of the helplessness of the Mis-sion to protect civilians in Darfur. However, it is equally difficult to blame UN-AMID for each occurrence of this sort. For example, it is not clear whether UN-AMID is supposed to use force to protect civilians in the Tawila incident as theaction involved policing rather than military action of the parties to the conflict.However, the Darfur (UN) Commission stated as follows:

115 For details and activities, see at <http://www.un.org/Depts/dpko/missions/unamid/>.It was authorized to have up to 26 000 military and police personnel (including civilianstaff).

116 For the overall activities of the Mission, see at <http://appablog.wordpress.com/2008/10/29/darfur-unamid-daily-media-brief-2008–10-29/>.

117 Report of the Secretary-General (8 February 2008), op. cit., fn. 46, p. 6.118 ‘Darfur Peacekeepers Offer no Protection – IDPs’, IRIN, 20 October 2008. The inter-

viewee added that ‘even UNAMID is scared’.119 Ibid.

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Normally, in an international armed conflict the civil police force doesnot formally take part in the hostilities and can, at least theoretically, beconsidered as a non-combatant benefiting from the safeguards and protec-tions against attack. However, in the particular case of the internal conflictin Darfur, the distinction between the police and the armed forces is oftenblurred. There are strong elements indicating occurrences of the policefighting alongside Government forces during attacks or abstaining frompreventing or investigating attacks on the civilian population committedby the Janjaweed. There are also widespread and confirmed allegationsthat some members of the Janjaweed have been incorporated into the po-lice. President Al-Bashir confirmed in an interview with international me-dia that in order to rein in the Janjaweed, they were incorporated in ‘otherareas’, such as the armed forces and the police. Therefore, the Commis-sion is of the opinion that the ‘civilian’ status of the police in the contextof the conflict in Darfur is questionable.120

It may well be that whenever the police forces take a direct part in armed hostilityin Darfur, they forfeit their civilian status, and that the prevention of such attacksrests within the mandate of the Mission.121

Clearly, UNAMID is essentially failing to meet its mandate (in particular, theprotection of civilians) for three main reasons at least. Firstly, human and logisti-cal constraints remain problems of the operation. The deployment of personnelis now only at a level of about 50% of the anticipated number. The mission suf-fers serious logistical hurdles including the absence of monitoring helicopters.122

Secondly, there have been incidents when the mission and its convoys have be-come targets of attack. While most attacks are believed to be from rebel groups,there was one openly reported incident involving government forces.123 Finally,while the troops are hailed for their ‘friendly’ and supportive attitude towards

120 The UN Commission of Inquiry (op. cit., fn. 39, para. 422); see also ICC Press Releaseop. cit. (fn. 4). The Court referred to the Sudanese police as participants of the Gov-ernment crackdown in Darfur It was, however, noted (by the Darfur Commission), asa claim of the Government, that: ‘between January 2003 and November 2004, 685 po-licemen were killed by rebels, 500 were injured, 62 were missing, and 1247 weaponswere looted from police stations’ (para. 421).

121 For the interaction between IHL and other legal regimes applicable to such situations,see e.g. S. Wills, ‘Military Interventions’, op. cit., fn. 52, at 387; see also ICC PressRelease, op. cit., fn. 4. The Court referred the Sudanese police as participants in thegovernment crackdown in Darfur.

122 As of 20 October 2008, it only secured to have 13 000 personnel—of that number,7200 are armed soldiers. There are also three police units. See ‘Darfur PeacekeepersOffer no Protection – IDPs’, IRIN, 20 October 2008; see also Report of the Secretary-General, op. cit., fn. 27, pp. 6–7.

123 Daniel Van Oudenaren, ‘UNAMID, IDPs and rebels attacked in North Darfurincidents’, Sudan Tribune, 15 September 2008) at <http://www.sudantribune.com/spip.php?article28601>; ‘UNAMID forces were ‘ambushed by up to 60 men armedwith AK-47s’, BBC, 23 May 2008.

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local people, there seems to be a growing sense of frustration and mistrust forfailing to provide security and protection. The UN Special Envoy for Darfur,in his call upon the international community to strengthen UNAMID, was hon-est in saying that ‘the Mission will not be able to meet the high expectation ofDarfur’s civilians . . . this is particularly worrying since we risk losing their con-fidence if we are not able to meet those expectations’.124 These are, and will be,failings of the international community indeed, although it is not too late to rec-tify them.

5. Conclusion

Many draw a parallel between the responses of the international community toDarfur and Rwanda and assert some identical failures including:125 ‘The issueof whether state sovereignty should deter international action, an emphasis onkeeping an existing peace process on track and not confronting human rightsabuses . . ., and a tardy and inadequate response to a crisis in Africa by the UnitedNations Security Council’. Clearly, actual and widespread attacks against civil-ians and their objects during armed conflict, as concerns of IHL, are beyond mat-ters of state sovereignty. They are, and must be, concerns of the internationalcommunity as a whole. This notion accommodates neither the exclusion of a statethat has direct entitlement and responsibility to do something about such chal-lenges nor the various excuses or disguises of third states not to discharge theirinternational obligations. The inability of Sudan to arrest the situation is clear, al-though the government may (or may not) deserve credit for its recent measures.However, the inability of the international community to respond adequatelyto this crisis, in the context of offering multilateral protection to civilians, canbe neither explained nor defended persuasively. The question to be asked hereshould certainly not be about bombing Sudan like the former Yugoslavia to endatrocities there. It must not be about unilateral humanitarian intervention either.Rather, why is UNAMID lacking the necessary human and logistical resources?How is the international community’s engagement with the parties in addressingIHL issues in Darfur?

124 Report of the S-G, op. cit., fn. 46, p. 6. It was also said that ‘[E]xperience in UnitedPeacekeeping has shown that the loss of the local population’s confidence can deal asevere blow to our efforts’ (clarification added).

125 L. Melvern noted (op. cit., fn. 12, p. 95) that ‘the similarities also extend to the failureof the western press to adequately report the scale and brutality of ongoing humanrights abuses and their underlying causes, and to supply timely information about howthe UN policy is arrived at within the Security Council’; see also S. Breau, ‘The Impactof Responsibility to Protect on Peacekeeping’, (2006) 11 (3) JCSL 443–444; see alsoJ. Maogoto and K. Kindiki, ‘A People Betrayed—The Darfur Crisis and InternationalLaw: Rethinking Westphalian Sovereignty in the 21st Century’, (2007) 19 Bond LawReview 102–123.

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68 Zeray Yihdego

There is perhaps a twofold explanation for this. The first explanation as statedin Res. 1769/2007 is that the Mission should be ‘predominantly African in Char-acter’. This appears to be a good idea for several reasons: firstly, Sudan (as a hoststate) favours this approach. Secondly, it is good to delegate powers of the SC andempower the AU to deal with the crises in the African continent. Thirdly, it maybe said that there are cultural and psychological benefits of such an approach.126

Aside from these advantages, however, ‘there are a number of reasons why abroader mix of troops is necessary. To obtain the required capabilities will ne-cessitate seeking troop and police contributors from non-African countries’.127

More importantly, in responding to Darfur (and similar calamities), the primaryissue must be how the civilian population can best be protected and not otherdifferences (or ties) of third states with Sudan. The UN (and its member states)must be fully engaged in addressing this global concern and making such mul-tilateral responses effective,128 of course without neglecting the crucial input ofthe AU (and its member states).

The second possible explanation concerns the need to focus on securing long-lasting peace in Darfur. Various actors (the UN, AU, individual states and keyplayers such as Egypt, Chad, Libya, Eritrea and the SPLM of southern Sudan)have been active in engaging the parties in the peace process. Despite problems,these endeavours must be commended as positive deeds. The effort to unite rebelgroups with the objective of bringing them into a negotiated agreement is partic-ularly necessary for securing a lasting peace in Darfur (and in Sudan at large).129

The success (or failure) of these efforts undoubtedly has an impact on safe-guarding civilian immunity in Darfur. In particular, uniting the various factionsof Darfur will mean clarity in command and accountability of the rebel groups.However, it is doubtful whether these endeavours include putting pressure on, oroffering help for, warring parties to comply with their IHL obligations.

By way of conclusion, the following points can be recommended or recalledfor the benefit of both the parties to the conflict and the international commu-nity. First, as stated earlier, the parties to the conflict must cease attacking un-armed civilians, including those who are trying to help, or face consequences oftheir actions/omissions. They have to cooperate with UNAMID to care for the

126 Zwanenburg, op. cit., fn. 111, pp. 493–495.127 Report of the S-G, op. cit., fn. 46, p. 7.128 See generally V. Roben, ‘Managing Risks to Global Stability: The UN Security Coun-

cil’s New-found Role Post Iraq’, in D. Konig et al. (eds), International Law Today: NewChallenges and the Need for Reform, (2008) p. 88. For critical appraisal on the reluc-tance of European and developed countries to participate in UN peacekeeping opera-tion, see C. Gray, op. cit., fn. 84, pp. 223–224; she questioned: ‘how far is it legitimatefor developed states to pay their peacekeeping contributions, to provide commandersand perhaps logistical support and transport, but not to provide significant numbers ofactual troops for UN operations?’ See also E. Wet, ‘The International ConstitutionalOrder’, (2006) 51 ICLQ 6–8.

129 For the efforts underway to secure a peace deal, see ICG, ‘Sudan’s ComprehensivePeace Agreement: Beyond the Crisis’, Policy Briefing 50, 13 March 2008; see also ICGReport, 2007, op. cit., fn. 78, pp. 16–20.

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civilian population there. The world community must have the same voice onthis. In this respect, the recent initiatives of the Government of Sudan shouldgenerally be encouraged (excluded is, of course, the general policy of expulingforeign relief and other socities from Darfur). Second, the international commu-nity in general and those third states who are overtly (or covertly) involved inthe dynamics of the (Darfur) conflict in particular, as the ICRC President JakobKellenberger pointed out, ‘are under an obligation both to respect the rules of . . .

[IHL] and to ensure that they are respected by others’.130 Specifically, those whoare either uniting, or helping create new, rebel groups in Darfur, seem to havespecial responsibility to do so, owing to their connection with, and ability to influ-ence, the rebels. The same is true for those states that are said to be good politicaland economic allies of Sudan—they ought to discharge their IHL duties (as statedin Common Article 1 of the CGs). Third, the community of states must dedicateand enhance their human, financial and logistical support to UNAMID with theaim of providing a better physical protection and relief assistance to Darfur andother civilians—especially to victims of the conflict (children, women and the dis-placed). Fourth, a concerted effort is needed to disseminate the rules (of IHL)and the consequences of their violations among Sudanese forces, the militia, therebels and the population in Darfur, through all available means. Fifth, the cri-sis and tension over the issuance of an arrest warrant for the President, and itsimplications on the Darfur problem (and civilian protection), must be managedwith calm and prudence, by both Sudan and the international community. WhileSudan (and other countries) may protest the ICC’s action and claim ‘sovereignimmunity’, this must not lead to further breaches of IHL and other duties. Fi-nally, while Sudan can lawfully regulate the operations of foreign humanitarianagencies working within its territory, this must not be abused at the expense ofthe survival of its people.131 These suggestions would be fruitful if combined withefforts to secure durable peace, and a better political and economic condition inDarfur (and in the country more generally).

130 F. Franco, ‘Darfur: Chronicle of a Death Foretold’, 12 June 2007 at <http://www.icrc.org/Web/Eng/siteeng0.nsf/html/sudan-press-article-120607>; for the various re-gional actors and others, see also ICG Report 2007, op. cit., fn. 54, pp. 16–20.

131 See Corder, op. cit. (fn. 5): The UN said ‘the humanitarian groups Sudan had or-dered expelled include Oxfam, Solidarities, Doctors Without Borders, Care and MercyCorps . . . The UN Secretary-General Ban Ki-Moon called the move a “serious setbackto lifesaving operations in Darfur”’.

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darfur and humanitarian law: the protection of civilians

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