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Relevant International Law in Darfur

The conflict in Darfur is governed by the laws of armed conflict applicable to non-international (internal) conflicts even though it may have international ramifications and a significant number of the displaced have crossed the border into Chad. The main provision regulating the conduct of all parties (government, government-backed militias and the rebel movements) is Article 3 common to the Geneva Conventions and the relevant norms of customary international law.⁹⁸ The 1977 Protocol II to the Geneva Conventions may also provide authoritative guidance on the conduct of hostilities by the parties to the conflict. 

Common Article 3 prohibits attacks on those taking no part in hostilities including civilians.  Among the acts prohibited are (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

Among the acts that are absolutely prohibited and are described in this report are: a) murder, b) inflicting humiliating or degrading treatment on civilians or combatants who are captured, have surrendered, or have fallen hors de combat, c) rape and all forms of sexual abuse, and d) pillage and destruction of civilian property.

Rape and sexual abuse have become widespread in Darfur as documented by this report and others. Through its prohibition of “outrages upon personal dignity, in particular humiliating and degrading treatment,” Common Article 3 implicitly condemns sexual violence. Rape and sexual abuse constitute war crimes whether or not they take place or not on a massive scale. Acts of rape also constitute acts of torture or cruel and inhuman treatment. When these abuses take place in a systematic or as a matter of policy, this added dimension of the crime turns it into a crime against humanity.

Starvation of civilians is illegal both in Protocol II and under norms of customary law, and the repeated raiding and looting of civilians appears to be an attempt to starve and render them entirely destitute. Article 14 states:  “Starvation of civilians as a method of combat is prohibited. It is prohibited to attack, destroy, remove or render useless, for that purpose, objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works.”  This prohibition is aimed at preventing the use of starvation as a means to annihilate or weaken civilians. There are no exceptions to this rule. The protection against the destruction and stealing of “foodstuffs” and “livestock” has become particularly relevant in the context of the conflict in Darfur.

Involuntary or forced displacement violates principles of international humanitarian law and other standards found in the U.N. Guiding Principles on Internal Displacement.⁹⁹ Article 17 of Protocol II to the Geneva Conventions provides that “the displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand.”¹⁰⁰ “Imperative military reasons” generally refers to movement of civilians as a result of imminent military operations. The displacement of the civilian population for the sole purpose of denying a social base to the enemy is considered to be a politically motivated displacement and is therefore neither permissible nor legal.

In addition, Article 17 also notes “should such displacements have to be carried out, all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition.”

In the prevailing security conditions in most of the rural areas of Darfur, the forced return of civilians to their villages, which in many instances remain under the control of the Janjaweed militias who attacked them, cannot be justified by either concern for their safety in their current locations or by “imperative military reasons.”  With regard to the potential forced resettlement of civilians into “safe areas,” the government of Sudan bears the burden of proving that any such displacement is justified by real, and not simply pledges of improved security or military imperative. The U.N. and humanitarian agencies proposing to help facilitate any such resettlement should remain vigilant to the potential risks of manipulation of humanitarian aid in this context.