V. Conflict and Human Rights Abuses in Darfur

During the rainy season from June to September 2009, there were fewer clashes between armed groups in Darfur. However, fighting has since resumed, suggesting it was premature for the departing head of the African Union-United Nations peacekeeping mission in Darfur (UNAMID) to conclude that the war “is over.”[20]

The fact is that 2.7 million people remain in displaced persons camps in Darfur and a further 200,000 in refugee camps in Chad, where they face low-level violence, harassment, and intimidation on a daily basis. This includes sexual violence. The UN secretary-general notes in his last two reports on Darfur that between April and June 2009 UNAMID documented 21 incidents of rape and sexual violence against 54 victims, 13 of whom were under 18, and most of whom described their attackers as wearing military uniforms.[21] Given the stigma attached to rape and geographic distances and other obstacles to reporting cases, it is likely this number represent a small fraction of all such cases.

Continuing Conflict

Commanders from the rebel Sudan Liberation Army-Abdel Wahed (SLA-AW) reported both to UNAMID and journalists that on September 18, 2009 Sudanese Armed Forces launched ground and air attacks on their positions in Korma, North Darfur. UNAMID received confirmation of the attack from non-rebel sources, and peacekeeping troops heard explosions coming from the area, but were not able to verify the reports as they did not have a presence in the area. On September 20, a spokesman for the Sudanese army told reporters at the state news agency SUNA that it had cleared several more areas of rebel control in North Darfur. To date, SAF has restricted UNAMID from accessing the area to assess consequences for civilians.

According to news accounts and reports, fighting and other violence in the first three months of 2009 killed more than 400 people[22] and displaced over 137,000.[23] Testimony from displaced persons and other witnesses suggest government forces violated humanitarian laws in the course of this and other fighting. In July Human Rights Watch interviewed more than 40 civilians in eastern Chad who had fled clashes and Sudanese government bombardment in North and South Darfur between January and May 2009.

Ulu Saleh, age 30, fled fighting in the town of Um Baru, North Darfur, which began on May 5 when the rebel Justice and Equality Movement (JEM) clashed with ex-rebel SLA-Minni Minnawi (SLA-MM) and Sudanese government forces.[24] On May 8 and 9, after SLA-MM and government forces ousted JEM forces from the town, government aircraft carried out a series of bombing raids on areas around Um Baru and nearby Furawiya.[25] 

Saleh told Human Rights Watch how he fled the fighting:

JEM came to attack the town. Some people ran towards the UNAMID base. Others came towards Chad, like me. After the fighting the Antonov [aircraft] came and bombed. They were dropping 12 bombs a day. They dropped in all the areas around the town. At least 30 people were killed, men and children.[26]

Witnesses told Human Rights Watch that the Antonovs bombed water points and other civilian objects in and around Um Baru and neighboring Farawiya. Maka Ibi Daoud, age 51, recounted how he fled Um Baru and Furawiya:

At first when the fighting happened we did not come to Chad, we ran to the mountain [near Farawiya] and hid there but we had to go back to Farawiya to get water. It was very dangerous… it was when people were at the waterhole that the army bombed. Animals were hurt and the people with them. I saw two people killed.[27]

Medical staff in Oure Cassoni, eastern Chad, treated 36 people, including three children, injured in at least five separate bombing incidents in Darfur in May and June. In one case, a five-year-old child lost his ear when he was hit by shrapnel from a bomb in Um Baru.[28]

In January and February 2009, JEM and government forces clashed at Muhajariya, South Darfur. Between February 6 and 17, UNAMID received reports of at least 20 government bombardments, including bombings at night, of actual and suspected JEM positions in the surrounding area. Fighting and government bombing continued until JEM retreated into Chad on February 25.[29]

In addition to killing and injuring civilians, the clashes at Muhajariya and ensuing bombardment displaced more than 40,000 people from Muhajariya. At least 36,000 fled to Zamzam camp for internally displaced persons in North Darfur, placing a significant strain on resources, particularly water and sanitation.[30] The situation was greatly exacerbated by the government’s March 4 expulsion of 13 aid organizations from Darfur, including those providing aid in Zamzam.

The government’s air attacks using ill-equipped Antonovs without capacity to aim with precision were indiscriminate and violated international humanitarian law. Where hostilities in Darfur rise to the level of an armed conflict, Common article 3 to the Geneva Conventions of 1949, the Second Additional Protocol to the Geneva Conventions (Protocol II),[31] and customary international humanitarian law[32] are applicable. Indiscriminate aerial bombing of civilians and civilian objects, such as water points, are violations of the laws of war.[33] Protocol II explicitly prohibits destruction or removal of objects “indispensable to the survival of the civilian population” such as livestock and water supplies.[34]

In addition, the government’s continued air attacks on both civilian objects and military targets is a violation of UN Security Council Resolution 1591 (2005), which bans offensive military overflights by the Sudanese government in Darfur.[35] The UN Sanctions Committee is empowered to impose targeted sanctions on any individual responsible for such offensive military overflights, as well as for violations of international humanitarian or human rights law,[36] but to date has only imposed sanctions on one member of the Sudanese Armed Forces.[37] The Sanctions Committee has not designated any individual to be subject to such sanctions for this or any other reason in relation to Darfur since April 2006.

No Peace or Justice in Darfur

While the AU-UN joint chief mediator, Djibril Bassole, has made some progress toward peace talks, such talks between JEM and the government were suspended on June 18, 2009. They are scheduled to resume in Qatar in October 2009, as are unification talks between rebel factions.[38]

The Sudanese government has repeatedly refused to cooperate with the ICC, and has long rejected the first two warrants issued by the court for former government minister Ahmed Haroun and militia leader Ali Kosheib.[39] This animosity towards the ICC solidified with the ICC’s issuance of a warrant for President al-Bashir himself. In response, far from cooperating with the court, Khartoum sought to divert attention from his alleged crimes in part through the expulsion of aid agencies.

Khartoum has paid lip-service to improving domestic accountability for war crimes and crimes against humanity, but to date it has investigated only a handful of low-ranking individuals, largely for ordinary crimes.[40] The Sudanese courts have yet to prosecute a single high-level official in relation to past crimes in Darfur, and has made no move even to investigate, let alone bring prosecutions, in relation to ongoing attacks and violence against civilians this year. The Sudanese criminal code still does not allow for liability on the basis of command responsibility and contains immunities for military forces and other provisions, for example evidentiary requirements in rape cases, that could preclude meaningful prosecution of war crimes and crimes against humanity.[41]

UNAMID’s Weak Protection of Civilians

The United Nations-African Union hybrid peacekeeping force in Darfur (UNAMID) has a mandate under Security Council Resolution 1769 to use “all necessary means” to protect civilians in Darfur, but the mission is not yet fulfilling this essential component of its mandate. A fully deployed UNAMID would consist of 26,000 troops and a significant budget: US$1.6 billion for July 1, 2009 through June 30, 2010.[42] However, more than two years after its authorization, UNAMID is just 70 percent deployed and still lacks critical equipment, including tactical helicopters and other essential transport. The UN department of peacekeeping operations (DPKO) has been seeking this equipment since mid 2007, yet to date no government has provided a single tactical helicopter.

Despite having made repeated commitments to facilitate UNAMID since its authorization in July 2007, Sudanese authorities continue to hamper deployment and effective operation of the force. The Sudanese government has delayed approval of over 300 visa applications for UNAMID personnel, the vast majority of which are for staff from western countries; delayed customs clearance and permission for UN contracted vessels to disembark at Port Sudan for weeks or months, slowing the movement of critical equipment into Darfur; and refused to authorize UNAMID to import equipment that would give their aircraft night vision capabilities, meaning that aircraft cannot fly at night.[43] The “tripartite mechanism” made up of the Sudanese government, the United Nations, and the African Union meets approximately monthly in Khartoum to discuss these and other outstanding issues in relation to deployment. However despite reaching agreement on key issues in those meetings, this mechanism has not effectively resolved many of these issues on the ground. At the local level, Sudanese authorities restrict the movement of UNAMID, including incidents of security forces preventing patrols from passing government checkpoints. On April 11, 2009, government authorities arrested and detained two UNAMID staff for three and four days respectively.[44] It appears both were beaten while in custody.

The mission has taken some steps to protect civilians, for example through preventive patrolling. In August 2009, it introduced 24 hour/seven days a week patrolling in 15 new locations. It has also provided refuge to civilians fleeing fighting. At Um Baru, for example, it gave 350 civilians shelter following clashes. However, it could and should do more to operationalize its protection mandate, including rolling out 24/7 patrols across Darfur, and responding immediately and effectively to threats against civilians, including through strong advocacy with government authorities, military, and rebels. UNAMID also should develop strategies and procedures on how military, police, and civilian components of the mission work together to ensure civilian protection.

Aid Operation under Attack

The Sudanese government’s decision on March 4, 2009 to shut down organizations providing over 40 percent of the aid to North Sudan has severely undermined the entire operation. The UN and remaining NGOs used emergency measures, such as one-off distributions of food, to avert an immediate catastrophe. However these measures are not sustainable or far reaching, and do not include civilian protection and sexual violence prevention programs that were previously provided by expelled organizations.[45]

Following the March expulsions, Sudanese security forces arrested and detained and otherwise harassed national staff of the closed national NGOs and of the expelled international NGOs.[46] Sudanese National Intelligence and Security Services (NISS) arrested at least two INGO staff, six UN staff, and 12 national NGO staff between April and June 2009.[47] Many of those arrested, including two staff members of UNAMID, report being beaten and otherwise mistreated while in detention.[48]

In May the government agreed to allow some organizations to return to Darfur under different names, yet six months after the expulsions none is yet operational. The UN secretary-general reported that as of June 30, 2009 the number of international and national aid workers in Darfur had dropped from 17,700 to 12,658. Experienced humanitarian staff warn that the loss of capacity, expertise, institutional memory, and relationships with communities in Darfur will continue to impact on the operation for years.[49]

Suppression of Information

The full impact of the expulsions on those relying on aid in Darfur is not known, in large part because the expulsions created an information vacuum about Darfur. The agencies expelled included those with the most extensive and well-established presence in Darfur, as well as those who played key roles in NGO coordination fora, such as the Interagency Standing Committee in Khartoum. Their absence has reduced information collection and dissemination about conditions in Darfur. Combined with the government’s closure of Sudanese organizations, and its ongoing repression of human rights activists and journalists, this means that the government now controls much of the information, not only about humanitarian needs but about the situation in Darfur, human rights abuses, and civilian protection concerns. This suppression of information severely hampers the ability of concerned governments and the UN to monitor and respond to humanitarian needs or human rights abuses.

A joint Sudanese government-UN assessment on March 11-19 in selected locations in Darfur identified immediate critical gaps in core sectors, including water, sanitation, and health, but did not assess human rights and protection gaps.[50] On June 15 another joint committee[51] visited Darfur to “examine efforts that had been undertaken at the state-level to facilitate humanitarian assistance though visits to the IDP camps, and meetings with local officials and UNAMID.”[52]

However, there has been no independent comprehensive assessment of the impact of expulsions, either by the United Nations, or via a survey of all NGOs still operating.[53] Such an assessment should include human rights and protection needs and cover geographical areas that organizations already struggled to serve because of insecurity.[54] UNAMID should also report publicly and systematically on protection of civilians and human rights abuses.