The Crisis in Darfur: Researching the Legal Issues

Amy Burchfield is the Access and Faculty Services Librarian at the Cleveland-Marshall College of Law Library. She previously worked as an International and Foreign Law Reference Librarian at the John Wolff International & Comparative Law Library at the Georgetown University Law Center.  Ms. Burchfield earned her JD from The Ohio State University Moritz College of Law and an MLIS and MA in German translation from Kent State University. She is the author of International Sports Law and International Criminal Courts for the Former Yugoslavia, Rwanda and Sierra Leone.

1. Introduction

“ . . . [W]hen you see entire villages raped and killed, wells poisoned and then filled with the bodies of its villagers, then all complexities disappear and it comes down to simply right and wrong. It’s not getting better. It’s getting much, much worse. And it is only the international community that can help us.”

— George Clooney, actor and director, in Sept. 14, 2006 address to United Nations Security Council

Mr. Clooney’s 2006 plea to the international community for help in the violence-stricken Darfur region of Sudan does not appear to have fallen on deaf ears. Arguably, the International Criminal Court’s investigation of the situation in Darfur, and subsequent arrest warrant for Sudanese President Oman Hassan Ahmad al-Bashir, is a clear indication that the international community is responding to the crisis in Darfur.

The aim of this brief essay is to direct researchers to key online and print resources discussing the legal aspects of the Darfur crisis. Each section of this essay summarizes key issues and links to the important documents, reports, treaties, and resolutions impacting these issues. The “examples of scholarship” subsections point researchers toward recent analysis and criticism. It is not the intent of this essay to produce a comprehensive bibliography.

2. The Crisis

For all but 11 years since independence in 1956, Sudan has been racked with civil conflict. Noted expert on African history and politics, Mahmood Mamdani, explains that what began as a “localized civil war” in the late 1980s developed into “a rebellion” in 2003.[1] On the one side of the conflict were two rebel groups, the Sudan Liberation Movement/Army (SLM/A) and the Justice and Equality Movement (JEM). The other side comprised Sudanese government militia and the “Janjaweed,” black African Muslims of Arab descent.[2] There have been several failed attempts, such as the Darfur Peace Agreement, to bring peace to the region.

As of August 2007, the United Nations estimates that over 200,000 people have died in the Darfur crisis and at least 2 million people have been displaced from their homes. Other sources state that the number of displaced persons has reached at least 4.9 million.

A notable recent development in the conflict is the International Criminal Court’s issuance of an arrest warrant for Sudanese President Oman Hassan Ahmad al-Bashir.

3. The Question of Genocide

The question of whether or not the violence in Darfur is rightly called genocide has been debated. The United States has declared that it is genocide. On June 24, 2004, the U.S. House of Representatives stated that “the atrocities unfolding in Darfur, Sudan, are genocide” and urged the Bush administration “to call the atrocities being committed in Darfur, Sudan, by its rightful name: ‘genocide.’[3] Secretary of State Colin Powell echoed this stance, declaring, “Genocide has been committed in Darfur, and … the Government of Sudan and the Janjaweed bear responsibility.”[4] “Yet the violence in Darfur region is clearly genocide,” President Bush declared on June 30, 2005, “The human cost is beyond calculation.”

Pursuant to United Nations Security Council resolution 1564 (2004), the International Commission of Inquiry on Darfur was tasked with determining whether or not genocide had occurred in Darfur. The Commission of Inquiry issued a Report in January 2005 in which it concluded that “the Government of Sudan has not pursued a policy of genocide.” However, the Commission did conclude that “the Government of the Sudan and the Janjaweed are responsible for serious violations of international human rights and humanitarian law amounting to crimes under international law” and recommended that the situation be referred to the International Criminal Court (ICC).

Since the publication of the 2005 Commission of Inquiry Report, a number of scholars have agreed that the term ‘genocide’ should be avoided in relation to the situation in Darfur. One such scholar is Mahmood Mamdani from Columbia University. Mamdani cautions about the consequences of calling the violence in Darfur genocide:

“… [T]he description of the violence as genocide—racial killing—has served to further racialize the conflict and give legitimacy to those who seek to punish rather than to reconcile. Thus, the movement to save Darfur, which initially had the salutary effect of directing world attention to the horrendous violence in Darfur in 2003-4, must now bear some of the blame for delaying reconciliation by focusing on a single-minded pursuit of revenge as punishment.”[5]

Examples of Scholarship

• John Hagan and Wenona Rymond-Richmond, Darfur and the Crime of Genocide (Cambridge University Press 2009)
• Andrew B. Loewenstein and Stephen A. Kostas, “The Darfur Commission of Inquiry and the ICJ’s Judgment in the Genocide Case” 5 Journal of International Criminal Justice 839 (2007)
• Jennifer Trahan, “Why the Killing in Darfur is Genocide” 31 Fordham International Law Journal 990 (2008)
• Alex de Waal, “Reflections on the Difficulties of Defining Darfur’s Crisis as Genocide” 20 Harvard Human Rights Journal 25 (2007)

4. Treaties Implicated

Sudan is a state party to several international human rights treaties. The Sudanese government has the legal obligation to uphold the provisions of the treaties to which it is a party. The Sudanese government’s support of the Janjaweed’s alleged massacre, rape, forced displacement, and torture of thousands of Sudanese citizens may amount to violations of several key international human rights treaties. Especially implicated is the prohibition on torture or other forms of cruel, inhuman or degrading treatment or punishment, which is embodied in:

• The International Convention on Civil and Political Rights (ICCPR) Article 7;
• The Convention on the Rights of the Child (CRC) Article 37; and,
• The African Charter on Human and People’s Rights (Banjul Charter) Article 5.

Other potential treaty provisions implicated by the situation in Darfur include:

• Articles 20-24 on the welfare of refugees from the Convention relating to the Status of Refugees (Refugee Convention);
• Article 34 of the Convention on the Rights of the Child, protecting children from all forms of sexual exploitation and sexual abuse;
• Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), providing for the enjoyment of the highest attainable standard of physical and mental health; and,
• Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), ensuring the right to security of the person against violence or bodily harm.

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) would certainly apply, but Sudan has no legal obligations under this treaty, since it is not a state party.

Finally, discussion of the Geneva Conventions and their Commentaries is featured prominently in the legal literature on Darfur. These materials can be found on the International Committee of the Red Cross (ICRC) website.

5. International Criminal Court

On March 31, 2005, the United Nations, in Security Council resolution 1593, referred the situation in Darfur to the prosecutor of the International Criminal Court (ICC), stating that “the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with . . . the Court and the Prosecutor pursuant to this resolution. . .” Following the referral, the ICC decided to open investigations into the situation in Darfur. ICC Prosecutor Luis Moreno-Ocampo said: “[The investigation] will form part of a collective effort, complementing African Union and other initiatives to end the violence in Darfur and to promote justice. Traditional African mechanisms can be an important tool to complement these efforts and achieve local reconciliation.”

The pre-trial chamber of the ICC issued an arrest warrant on March 4, 2009 for Oman Hassan Ahmad al-Bashir, the current president of Sudan. Al-Bashir was charged with five counts of crimes against humanity in violation of the Rome Statute:

• Murder in violation of Article 7 (1) (a)
• Extermination in violation of Article 7 (1) (b)
• Forcible transfer in violation of Article 7 (1) (d)
• Torture in violation of Article 7 (1) (f)
• Rape in violation of Article 7 (1) (g)

Al-Bashir was also charged with two counts of war crimes in violation of the Rome Statute:

• Intentionally directing attacks against a civilian population in violation of Article 8 (2) (e) (i) ; and
• Pillaging in violation of Article 8 (2) (e) (v).

Notably, Al-Bashir was not charged with genocide. As of this time, al-Bashir remains at large. Updates to the case are regularly posted by the ICC.

The ICC has issued two additional arrest warrants in the Darfur investigation: one against Ahmad Muhammad Harun “Ahmad Harun”, the former Minister of State for the Interior, and one against Ali Muhammad Ali Abd-Al-Rahman “Ali Kushayb,” the alleged leader of the Janjaweed. Ahmad Harun and Ali Kushayb were both charged with 51 counts each of war crimes and crimes against humanity in violation of the Rome Statute. Updates to this case are regularly posted by the ICC. Ahmad Harun and Ali Kushayb remain at large.

Examples of Scholarship

• Matthew Happold, “Darfur, the Security Council, and the International Criminal Court” 55 The International and Comparative Law Quarterly 226 (2006)
• Corrina Heyder, “The U.N. Security Council’s Referral of the Crimes in Darfur to the International Criminal Court in Light of U.S. Opposition to the Court: Implications for the International Criminal Court’s Functions and Status” 24 Berkeley Journal of International Law 650 (2006)
• Philipp Kastner, “The ICC in Darfur—Savior or Spoiler?” 14 ILSA Journal of International & Comparative Law 145 (Fall 2007)
• Jamie A. Mathew, “The Darfur Debate: Whether the ICC Should Determine that the Atrocities in Darfur Constitute Genocide” 18 Florida Journal of International Law 517 (2006)

6. Violence against Women

The U.N. International Commission of Inquiry in Darfur 2005 report made the following factual finding on violence against women in Darfur:

“Various sources reported widespread rape and other serious forms of violence committed against women and girls in all three states of Darfur. According to these sources, the rape of individual victims was often multiple, carried out by more than one man, and accompanied by other severe forms of violence, including beating and whipping. In some cases, women were reportedly raped in public, and in some incidents, the women were further berated and called ‘slaves’.”

The Commission of Inquiry report further described incidents of abduction, sexual slavery, and the particular dangers faced by girls and internally displaced persons (IDPs). For additional information, see the section on refugees and IDPs below.

The U.S. State Department’s Country Reports on Human Rights Practices for Sudan likewise documents the prevalence of rape and other forms of violence against women in the Darfur region. The 2008 Human Rights Report for Sudan mentions “systematic rape in Darfur” and documents the lack of access to justice for women. The 2008 Report states that women do not often report rape to the authorities for fear of being punished for “illegal pregnancy” or adultery. Country Reports on Sudan are available online from the U.S. State Department for 1999-2008.

A 2008 Human Rights Watch report, Five Years On: No Justice for Sexual Violence in Darfur, discusses the lack of meaningful response to the problem of sexual violence in the area. Older reports from Amnesty International address the issue of rape as a weapon of war, and rape among displaced Darfurian women in eastern Chad.

Examples of Scholarship

• Fiona de Londras, “Telling Stories and Hearing Truths: Providing an Effective Remedy to Genocidal Sexual Violence Against Women” in The Criminal Law of Genocide: International Comparative and Contextual Aspects (Ashgate, 2007)
• Mary Deutsch Schneider, “About Women, War and Darfur: The Continuing Quest for Gender Violence Justice” 83 North Dakota Law Review 915 (2007)
• Samuel Totten, “The Darfur Genocide: The Mass Rape of Black African Girls and Women” in Plight and Fate of Women During and Following Genocide (Transaction Publishers, 2009)

7. Refugees and Internally Displaced Persons

According to the UNHCR’s 2007 Global Trends, repatriation efforts have lowered the number of Sudanese refugees globally to 523,000. Amnesty International’s 2008 report, Displaced in Darfur: A Generation of Anger, states that 240,000 of these refugees are living in 12 refugee camps in neighboring Chad.

In addition to the refugee crisis, Sudan must support a huge population of internally displaced persons (IDPs). The UN Guiding Principles on Internal Displacement defines IDPs as “persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized state border.” The Internal Displacement Monitoring Centre (iDMC) gives 4.9 million as the current statistic on the number of IDPs in Sudan.

Refugees and IDPs face horrific violence at the hands of government forces and militias as part of a campaign of “ethnic cleansing.” Rape and sexual violence have been used as a method to terrorize the women and girls in this vulnerable population. A 2005 Human Rights Watch Briefing Paper on sexual violence in Darfur notes that internally displaced women are at particular risk for rape when collecting firewood or fetching water. The practices of public rape, gang rape, beatings and whippings, and sexual mutilation as documented by the 2005 International Commission of Inquiry report are echoed in this Human Rights Watch paper.

Examples of Scholarship

• David Lanz, “Involving IDPs in the Darfur Peace Process” 30 Forced Migration Review 71 (2008)
• Mark F. Massoud, “Rights in a Failed State: Internally Displaced Women in Sudan and Their Lawyers” 21 Berkeley Journal of Gender Law and Justice 2 (2006)

8. Interventions and Peacekeeping Forces

An overarching concept in the area of humanitarian intervention is the “responsibility to protect” or R2P. The International Commission on Intervention and State Sovereignty conducted a thorough study of this issue and reported its findings in a 2001 report, The Responsibility to Protect. This document invokes the precautionary principle and states that “prevention is the single most important dimension of the responsibility to protect: prevention options should always be exhausted before intervention is contemplated…”

The African Union and the United Nations have been involved in overlapping peacekeeping operations in Darfur for over five years. AMIS, the African Union Mission in the Sudan, operated in the area from 2004-2007. AMIS merged into UNAMID, as dictated by Security Council resolution 1706 (2006). On July 31, 2007, pursuant to Security Council resolution 1769 (2007), UNAMID, the African Union – United Nations Hybrid Operation in Darfur, was established. With the adoption of Security Council resolution 1828 (2008) UNAMID’s mandate was extended in Darfur until July 31, 2009. UNAMID’s website links to their mandate, background information, key documents, and the Darfur Peace Agreement.

UNMIS, the United Nations Mission in the Sudan, was established by Security Council resolution 1590 (2005). Security Council resolution 1812 currently authorizes UNMIS until April 30, 2009.

Scholars, human rights groups, and others have criticized the conduct of peacekeeping missions, especially with regard to the security of civilian populations. In its 2007 report, Chaos by Design, Human Rights Watch notes the peacekeeping challenges for AMIS and UNAMID and makes a series of recommendations for improvement.

Examples of Scholarship

• Klinton W. Alexander, “Ignoring the Lessons of the Past: The Crisis in Darfur and the Case for Humanitarian Intervention” 15 Journal of Transnational Law & Policy 1 (Fall 2005)
• Gareth Evans, “From Humanitarian Intervention to the Responsibility to Protect” 24 Wisconsin International Law Journal 703 (2006)
• Samuel Vincent Jones, “Darfur, The Authority of Law, and Unilateral Humanitarian Invention” 39 University of Toledo Law Review 97 (Fall 2007)
• J.J. Welling, “Non-Governmental Organizations, Prevention, and Intervention in Internal Conflict: Through the Lens of Darfur” 14 Indiana Journal of Global Legal Studies 147 (2007)

9. General Background Information and Human Rights Reports

Researchers can find geographical, population, government, economic, and general information from the CIA World Factbook, and a legal overview of the country in the GlobaLex guide by Sharanjeet Parmar. The Foreign Law Guide, a pay subscription database available in academic and other libraries, is another source for legal information on Sudan. Foreign Law Guide lists the primary sources of Sudanese law, as well as references to topic-specific laws. AllAfrica.com posts up-to-date news stories from Sudan and other African countries. Current content on AllAfrica.com is free, but access to older materials requires a subscription. For a chronological overview, Amnesty International USA has posted a Darfur History that describes the major events in the region from 2003 to 2008.

Human rights reports survey the legal, humanitarian, and civil rights landscape of a country on an annual basis. These reports are often written by government entities or non-governmental organizations (NGOs). Three well-respected sources for human rights reports are the U.S. Department of State (2008 Sudan report), Amnesty International (2008 Sudan report) and Human Rights Watch (2008 Sudan report). Human rights reports make both generalizations about the human rights climate of a particular country, as well as document specific human rights abuses. Human rights reports are widely cited in the legal literature and can be rich sources for country research.

Examples of Scholarship

• Mustafa A. Abdelwahid, The Rise of the Islamic Movement in Sudan (Edwin Mellen Press, 2008)
• Robert O. Collins, A History of Modern Sudan (Cambridge University Press, 2008)
• Robert O. Collins, The Southern Sudan in Historical Perspective (Transaction Publishers, 2006)
• Jok Madut Jok, Sudan: Race, Religion and Violence (Oneworld, 2007)
• Abdel Salam Sidahmed and Alsir Sidahmed, Sudan (Routledge, 2005)

10. Activism and Aid Organizations

Days after the al-Bashir arrest warrant was issued by the ICC, news agencies reported that the Sudanese president expelled at least 13 aid organizations from Sudan, including Oxfam, Doctors Without Borders, the International Rescue Committee, and others.

Such organizations often issue reports and provide other types of background information. For example, Human Rights Watch collects a large number of documents on Sudan.

Amnesty International has news and publications as well as reports from 2007 and 2008.

Doctors Without Borders reports on the health and humanitarian aid situation in the region.

Examples of Scholarship

• Dwight D. Murphey, ““Do Something About Darfur”: A Review of the Complexities” 33 Journal of Social, Political and Economic Studies 299 (2008)
• Colin Thomas-Jensen and Julia Spiegel, “Activism and Darfur: Slowly Driving Policy Change” 31 Fordham International Law Journal 843 (2008)

11. Conclusion

The crisis in Darfur is an ongoing tragedy. The response of the international community to this crisis will be closely monitored by governments, international organizations, and scholars worldwide. This brief guide aims to assist researchers in finding online and print resources addressing the legal aspects of this conflict.

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[1] Mamdani, Saviors and Survivors, Pantheon Books, 2009, p. 4.

[2] U.S. Dept. of State, Background Note: Sudan.

[3] H.Con.Res.467 from the 108th Congress, three versions from Thomas.

[4] .S. Hrg. 108-866 of Sept. 9, 2004.

[5] Mamdani, Saviors and Survivors, 7-8.