Questions And Answers On Sudan And The Laws Of War?
On April 15, 2023, fighting broke out in Sudan’s capital, Khartoum, between the Sudan Armed Forces (SAF) and the Rapid Support Forces (RSF), both official military forces in the country at the time. The fighting rapidly spread to other cities and towns throughout the country, including to Darfur in Sudan’s western region and to eastern Sudan.
The SAF is led by Gen. Abdelfattah al-Burhan, and the RSF by Gen. Mohamed Hamdan Dagalo, known as “Hemedti.” The two men had jointly carried out a coup against the country’s short-lived transitional government, a military-civilian government, on October 25, 2021.
Both forces have a long history of serious violations of international humanitarian and human rights law, notably in the context of brutal counterinsurgency operations in Darfur, as well as during crackdowns against protesters in Khartoum and elsewhere over the last decade.
Beginning in 2003 in Darfur, the Sudanese government and allied militias known as the “Janjaweed” – which government forces armed, supported, and fought alongside – committed crimes against humanity and war crimes, including summary executions, sexual violence, and torture, as part of counterinsurgency operations. In 2011, in the states of Southern Kordofan and Blue Nile, the SAF conducted a campaign of indiscriminate aerial bombardments and ground attacks in which these forces deliberately killed and forcibly displaced civilians and destroyed civilian property.
The RSF, created in 2013 with many troops recruited from among the Janjaweed, committed grave abuses in Darfur, Blue Nile, and South Kordofan. Increasingly deployed to Khartoum from 2019 onwards, RSF forces led an attack on protesters in June 2019 that killed 120 protesters and injured 900.
Following the October 2021 coup, Sudan’s security forces clamped down on popular protests, killing at least 125 people while injuring and arbitrarily detaining hundreds.
Relations between Hemedti and Burhan deteriorated throughout 2022, and the United Nations reported significant recruitment in Darfur by both forces. In December, tensions rose following the signing of a new framework agreement between the Forces of Freedom and Change, the civilian component of the former transitional government; the military leadership; and other political parties.
The framework agreement laid out basic principles and government structures but deferred five key contentious issues, including transitional justice and security sector reform, to a second phase of talks. These issues were discussed in the first months of 2023. When the military initiated discussions around security sector reforms, tensions between Burhan and Hemedti escalated sharply over the timeframe of the integration of the RSF into the army and the leadership of this integrated force. Both sides began to stockpile weaponry at key locations, including Khartoum, in the days preceding the outbreak of fighting.
The following Questions and Answers (Q&A) addresses aspects of international humanitarian law (the laws of war) governing the armed conflict between the SAF and the RSF, as well as various non-state armed groups and militias. The aim is to summarize the main international humanitarian law, international human rights law, and international criminal law issues arising from the fighting. It focuses on the protection of civilians during armed conflict. The Q&A does not address the justifications or the legitimacy of resorting to armed force by any party.
1. How does international law categorize the fighting in Sudan?
International humanitarian law, or the laws of war, distinguishes between “international” and “non-international” armed conflicts. Under the Geneva Conventions of 1949, the laws concerning international conflicts apply to all cases of armed conflict between two or more states. Hostilities involving one or more non-state armed groups are considered to be non-international armed conflicts.
The Geneva Conventions themselves do not provide guidance as to what constitutes a “high contracting party,” that is, the government of the state. Because the SAF and the RSF cannot both be the government of the state of Sudan, the conflict between them is a non-international armed conflict.
Not all hostilities involving non-state armed groups, such as internal disturbances, tensions, riots, or isolated and sporadic acts of violence, amount to an armed conflict. It is widely acknowledged that armed violence rises to the level of a non-international armed conflict when the parties are sufficiently organized and the fighting reaches a certain intensity. Adequate organization typically requires a responsible command and a capacity to sustain military operations that meet the requirements of international humanitarian law (even if not done in practice). The requirement for intensity can be met by the use of military weapons in serious armed clashes.
In Sudan, the criteria for a non-international armed conflict was met after serious armed clashes broke out between the SAF and the RSF in Khartoum and other areas on April 15, 2023.
As a practical matter, international humanitarian law on the means and methods of warfare is largely the same whether an international or non-international armed conflict. A key difference is that during an international armed conflict, captured soldiers from national armed forces and associated militias must be given the full protections afforded prisoners-of-war. Prisoners of war may also not be prosecuted merely for participating in the armed conflict.
2. Who is bound by international humanitarian law?
All parties to an armed conflict, both states and non-state armed groups, are responsible for complying with the requirements of international humanitarian law, also known as the laws of war. Each party must respect and ensure respect for the laws of war by its armed forces and other persons or groups acting on its orders or under its direction or control. This obligation does not depend on reciprocity – parties to a conflict must respect the requirements whether or not the opposing side abides by it. It also does not depend on the reason for which the respective parties go to war, whether by a state or an armed group. And all parties to an armed conflict are held to the same standards, regardless of any disparity in the harm caused by opposing forces.
While thus far, the fighting has been confined to the SAF and RSF, other non-state armed groups could join the warring parties. For instance, former rebel groups that signed the 2020 Juba Peace Agreement continue to have an armed presence in Darfur and Khartoum, as do armed Arab militias that have repeatedly attacked civilians and civilian infrastructure in West Darfur since 2019.
3. What law applies to the fighting in Sudan?
As noted above, the fighting in Sudan amounts to a non-international (internal) armed conflict under international law. The applicable law includes Common Article 3 to the four Geneva Conventions of 1949, which sets forth minimum standards for the proper treatment of persons under a warring party's control, namely civilians and wounded and captured combatants; Protocol II to the Geneva Conventions on non-international armed conflicts; and customary laws of war, primarily concerning the methods and means of warfare. Other applicable laws include the 1997 Mine Ban Treaty and the Rome Statute of the International Criminal Court.
4. Does international human rights law still apply in Sudan?
International human rights law is applicable at all times during armed conflict situations in which the laws of war apply. Sudan is a party to a number of human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. These treaties outline guarantees for fundamental rights, many of which correspond to the protections to which civilians are entitled under international humanitarian law (e.g., the prohibition on torture, inhuman and degrading treatment, nondiscrimination, right to a fair trial).
While the ICCPR permits some restrictions on certain rights during an officially proclaimed public emergency that “threatens the life of the nation,” any derogation of rights during a public emergency must be of an exceptional and temporary nature, and must be “limited to the extent strictly required by the exigencies of the situation.” Certain fundamental rights – such as the right to life and the right to be secure from torture and other ill-treatment, the prohibition on unacknowledged detention, the duty to ensure judicial review of the lawfulness of detention, and rights to a fair trial – must always be respected, even during a public emergency.
5. What are the basic principles of the laws of war?
The laws of war seek to minimize unnecessary pain and suffering during wartime, particularly by protecting civilians and other noncombatants from the hazards of armed conflict. They address the conduct of hostilities – the means and methods of warfare – by all sides to a conflict. A fundamental principle is that parties must distinguish between combatants and civilians at all times. Civilians and civilian objects may never be the deliberate object of attacks. Warring parties are required to take all feasible precautions to minimize harm to civilians and civilian objects, and may not conduct attacks that would disproportionately harm civilians or fail to discriminate between combatants and civilians.
International humanitarian law also provides a number of fundamental protections for noncombatants, such as civilians, captured or surrendered combatants, and those who are unable to fight because of wounds or illness. It prohibits violence against such persons – particularly murder, cruel treatment, and torture – as well as outrages against their personal dignity and degrading or humiliating treatment.
6. What are lawful targets of military attack?
The laws of war limit attacks to “military objectives.” Military objectives are personnel and objects that are making an effective contribution to military action and their destruction, capture, or neutralization offers a definite military advantage. This would include enemy fighters, weapons and ammunition, and objects being used for military purposes, such as houses and stores in which soldiers are deployed. While humanitarian law recognizes that some civilian casualties are inevitable during armed conflict, it imposes a duty on warring parties to distinguish between combatants and civilians at all times, and to target only combatants and other military objectives. Civilians lose their immunity from attack during the time they are “directly participating in the hostilities.”
The laws of war also protect civilian objects, which are defined as anything not considered a military objective. Prohibited are direct attacks against civilian objects, such as hospitals, schools, houses and apartments, businesses, places of worship, and cultural monuments – unless they are being used for military purposes and thus become military objectives. This would include the deployment of military forces in what are normally civilian objects. Where there is doubt about the nature of an object, it must be presumed to be civilian.
7. What kinds of attacks are prohibited?
Deliberate attacks on civilians and civilian objects, as discussed above, are prohibited.
The laws of war also prohibit indiscriminate attacks. Indiscriminate attacks are of a nature to strike military objectives and civilians or civilian objects without distinction. Examples of indiscriminate attacks are those that are not directed at a specific military objective or that use weapons that cannot be directed at a specific military objective. Prohibited indiscriminate attacks include area bombardment, which are attacks by artillery or other means that treat as a single military objective a number of clearly separated and distinct military objectives located in an area containing a concentration of civilians and civilian objects.
Military commanders must choose the means of attack that can be directed at military targets and will minimize incidental harm to civilians. If the weapons used are so inaccurate that they cannot be directed at military targets without imposing a substantial risk of civilian harm, then they should not be deployed.
Also prohibited are attacks that violate the principle of proportionality. Disproportionate attacks are those that may be expected to cause incidental loss of civilian life or damage to civilian objects that would be excessive in relation to the concrete and direct military advantage anticipated from the attack.
Anti-personnel landmines are prohibited by the 1997 Mine Ban Treaty, to which Sudan is a party, and should never be used because of their inherently indiscriminate nature.
8. What are the obligations of warring parties regarding fighting in populated areas?
International humanitarian law does not prohibit fighting in urban areas, although the presence of many civilians places greater obligations on warring parties to take steps to minimize harm to civilians.
The laws of war require that the parties to a conflict take constant care during military operations to spare the civilian population and to “take all feasible precautions” to avoid or minimize the incidental loss of civilian life and damage to civilian objects. These precautions include doing everything feasible to verify that the objects of attack are military objectives and not civilians or civilian objects, and giving “effective advance warning” of attacks when circumstances permit.
Forces deployed in populated areas must avoid locating military objectives near densely populated areas, and endeavor to remove civilians from the vicinity of military objectives. They are prohibited from using civilians to shield military objectives or operations from attack. “Shielding” refers to purposefully using the presence of civilians to render military forces or areas immune from attack.
At the same time, the attacking party is not relieved from its obligation to take the risk to civilians into account simply because it considers the defending party responsible for having located legitimate military targets within or near populated areas.
The use of heavy artillery and unspotted indirect-fire weapons against military objectives in populated areas raises especial concerns about indiscriminate and disproportionate attacks.
9. What restrictions exist on explosive weapons in populated areas?
The use of explosive weapons in populated areas heightens concerns of unlawful indiscriminate and disproportionate attacks. Heavy artillery and aerial bombs (weapons with a wide blast radius) and other indirect-fire artillery without adequate spotting (weapons for which the target is wholly unseen) against military objectives in populated areas are among the gravest threats to civilians in contemporary armed conflict.
The bombing and shelling of cities, towns, and villages kill and injure large numbers of civilians and inflict psychological harm. Reverberating, or long-term, effects include damage to civilian buildings and critical infrastructure, including electricity and water infrastructure, interference with services such as health care and education, and displacement of the local population. The humanitarian risks are exacerbated when explosive weapons have wide area effects due to inaccuracy, a large blast radius, or the delivery of multiple munitions at the same time. Human Rights Watch has called for parties to armed conflict to avoid the use of explosive weapons with wide area effects in populated areas.
10. What are the legal protections for hospitals, medical personnel, and ambulances?
Medical units are civilian objects that have special protections under the laws of war. They include hospitals, clinics, medical centers, and similar facilities, whether military or civilian. While other presumptively civilian structures become military objectives if they are being used for a military purpose, hospitals lose their protection from attack only if they are being used, outside their humanitarian function, to commit “acts harmful to the enemy.”
Several types of acts do not constitute “acts harmful to the enemy,” such as the presence of armed guards, or when small arms from the wounded are found in a hospital. Even if military forces misuse a hospital to store weapons or shelter able-bodied combatants, the attacking force must issue a warning to cease this misuse, setting a reasonable time limit for it to end, and attacking only after such a warning has gone unheeded.
Under the laws of war, doctors, nurses, and other medical personnel must be permitted to do their work and be protected in all circumstances. They lose their protection only if they commit, outside their humanitarian function, acts harmful to the enemy, such as initiating military attacks against opposing forces.
Likewise, ambulances and other medical transportation must be allowed to function and be protected in all circumstances. They lose their protection only if they are being used to commit acts harmful to the enemy, such as transporting ammunition or healthy fighters.
11. Are warring parties permitted to target infrastructure such as airports, roads, and bridges?
Civil airports, roads, and bridges are civilian objects that become military objectives subject to attack if they are actually used for military purposes or military objectives are located on or within them. Even then, the rule of proportionality applies, requiring the parties to the conflict to weigh the short and long-term harm on civilians against the military advantage served; they must consider all ways of minimizing the impact on civilians; and they should not undertake attacks if the expected civilian harm outweighs the definite military advantage.
12. What obligations do warring parties have to property, against pillaging?
During armed conflicts, parties are prohibited from destroying or confiscating private or public property unless absolutely necessary for military operations. In areas they control, a party may requisition property to cover the immediate needs of its forces by paying for it. However, in non-international armed conflicts, property including food, relief, and medical supplies cannot be requisitioned if it would deprive the population of goods and objects needed for their survival. International law does not prohibit parties in non-international armed conflicts from seizing military weapons and equipment belonging to the adversary.
Pillage – the looting, plunder, or theft of property for either personal or a warring party’s benefit – is prohibited and amounts to a war crime under the Rome Statute of the International Criminal Court and customary international law. Both civilians and combatants can be held liable for carrying out pillage. Deliberate attacks on cultural property, including historical monuments and buildings dedicated to art and religion, are also war crimes, unless being used for military purposes.
13. What obligations do warring parties have to populations in need?
Under international humanitarian law, parties to a conflict must allow and facilitate the rapid and unimpeded passage of impartially distributed humanitarian aid to the population in need. The belligerent parties must consent to allowing relief operations to take place and may not refuse such consent on arbitrary grounds. They can take steps to control the content and delivery of humanitarian aid, such as to ensure that consignments do not include weapons. However, deliberately impeding relief supplies is prohibited.
In addition, international humanitarian law requires that belligerent parties ensure the freedom of movement of humanitarian relief personnel essential to the exercise of their functions. This movement can be restricted only temporarily for reasons of imperative military necessity.
14. Are internet and phone shutdowns in conflict areas lawful?
Shutting down the internet during an armed conflict, including mobile data, which is regularly used for both civilian and military purposes, would need to take into account the basic principles of the laws of war, including of necessity and proportionality. The principle of necessity permits measures that accomplish a legitimate military objective that are not otherwise prohibited by international humanitarian law. Shutting down the internet may serve a legitimate military purpose, such as denying belligerent forces a means of communicating with one another and carrying out attacks. However, the principle of proportionality prohibits actions in which the expected civilian harm is excessive in relation to the anticipated military advantage.
Internet and phone shutdowns can cause considerable harm to the civilian population, including leading to possible injury and death by preventing civilians from communicating with each other about safety considerations, access to medical facilities, and sources of food and shelter. They also hinder the work of journalists and human rights monitors who can provide information on the situation on the ground, including the reporting of possible laws-of-war violations. Importantly, the restrictions hamper the ability of humanitarian agencies to assess and provide assistance to populations at risk. The lack of information regarding the conditions and circumstances facing the affected population may also increase the likelihood of injury and death.
A complete shutdown of internet and phone communications to large areas would cause various degrees of harm to the population affected. This could amount to a form of collective punishment by imposing penalties on people without a clear lawful basis.
Similarly, under international human rights law, governments have an obligation to ensure that internet-based restrictions are provided by law and are a necessary and proportionate response to a specific security concern. General shutdowns violate multiple rights, including the rights to freedom of expression and information, and hinder others, including the right to free assembly. In their 2015 Joint Declaration on Freedom of Expression and Responses to Conflict Situations, United Nations experts and rapporteurs declared that, even in times of conflict, “using communications ‘kill switches’ (i.e. shutting down entire parts of communications systems) can never be justified under human rights law.”
15. How must persons in custody be treated under international law?
Common Article 3 to the four Geneva Conventions of 1949, applicable during non-international armed conflicts, requires that all persons in custody, including captured combatants and civilians, be protected against “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment.” No sentences may be handed down except by a “regularly constituted court” meeting international fair trial standards.
The ban against torture and other ill-treatment is one of the most fundamental prohibitions in international human rights law. No exceptional circumstances can justify torture. Sudan is a party to key international treaties that ban torture under all circumstances, even during recognized states of emergency, and require investigation and prosecution of those responsible for torture.
All persons deprived of their liberty must be provided with adequate food, water, clothing, shelter, and medical attention. Women detained must be held in quarters separate from those of men. Children deprived of their liberty, unless with their families, must have quarters separate from adults.
Under fundamental human rights law that applies even during a publicly declared emergency, detainees are entitled to judicial review of the legality of their detention, and to all the rights to a fair trial, including that only a court of law can try and convict them for a criminal offense. Secret or unacknowledged detention is prohibited at all times.
16. Are radio and television stations prohibited targets?
Attacks on broadcast facilities used for military communications are legitimate targets under the laws of war. Civilian television and radio stations are legitimate targets only if they meet the criteria for a legitimate military objective; that is, if they are used in a way that makes an “effective contribution to military action” and their destruction in the circumstances ruling at the time offers “a definite military advantage.” Specifically, Sudan government broadcast facilities could become military targets if, for example, they are used to send military orders or otherwise concretely used to advance Sudanese military operations. However, civilian broadcasting facilities are not rendered legitimate military targets simply because they broadcast pro-government propaganda. It is unlawful to attack facilities that solely shape public opinion – it does not directly contribute to military operations.
Should stations become legitimate military objectives because of their use to transmit military communications, the principle of proportionality in attack must still be respected. This means that attacking forces should always verify that the risks to the civilian population in undertaking any such attack do not outweigh the anticipated military benefit. They should take special precautions in relation to buildings located in urban areas, including giving advance warning of an attack whenever possible.
17. Who can be held responsible for violations of international humanitarian law?
Serious violations of international humanitarian law that are committed with criminal intent – that is, deliberately or recklessly – are war crimes. War crimes, listed in the “grave breaches” provisions of the Geneva Conventions and as customary law in the International Criminal Court (ICC) statute and other sources, include a wide array of offenses, including deliberate, indiscriminate, and disproportionate attacks harming civilians, hostage taking, using human shields, and imposing collective punishments, among others. Individuals also may be held criminally liable for attempting to commit a war crime, as well as assisting in, facilitating, aiding, or abetting a war crime.
Responsibility also may fall on persons planning or instigating the commission of a war crime. Commanders and civilian leaders may be prosecuted for war crimes as a matter of command responsibility when they knew or should have known about the commission of war crimes and took insufficient measures to prevent them or punish those responsible.
18. Can war crimes and crimes against humanity committed in Sudan be tried before the International Criminal Court?
The ICC is a permanent international court with a mandate to investigate, charge, and try persons suspected of war crimes, crimes against humanity, and genocide committed after July 1, 2002. However, it can only exercise jurisdiction over these crimes if:
The crimes occurred in the territory of a state that is a party to the ICC treaty;
The person accused of the crimes is a citizen of a state that is a party to the ICC treaty;
A state that is not a party to the ICC treaty accepts the court’s authority for the crimes in question by submitting a formal declaration to the court; or
The United Nations Security Council refers the situation to the ICC prosecutor.
The ICC opened an investigation into crimes committed in Darfur in 2005, after the UN Security Council referred the situation to the ICC under Resolution 1593. Five Sudanese individuals face ICC charges for war crimes, crimes against humanity, or genocide in Darfur, including former president Omar al-Bashir. Three of these individuals, including al-Bashir, have been in Sudanese government custody since around the time of al-Bashir’s ouster in 2019. One of the five, a Janjaweed militia leader, Ali Kosheib, or Kushayb, is currently on trial at the ICC, charged with war crimes and crimes against humanity.
ICC judges have previously held that the extent to which an existing mandate applies to crimes committed as part of particular incidents or hostilities depends on whether they are “sufficiently linked to the situation of crisis which was ongoing at the time of the referral.” Many of the same individuals involved earlier in Darfur are now taking part in the current hostilities, and some of the fighting is unfolding in the Darfur region. Notably, domestic authorities retain primary responsibility for ensuring that grave crimes in violation of international law are investigated and appropriately prosecuted.
19. Can judicial authorities in other countries investigate and prosecute international crimes committed in Sudan?
Certain categories of grave crimes in violation of international law, such as war crimes and torture, are subject to “universal jurisdiction,” which refers to the ability of the domestic judicial system of a state to investigate and prosecute certain crimes, even if they were not committed on its territory, by one of its nationals, or against one of its nationals. Certain treaties, such as the Geneva Conventions and the Convention against Torture, obligate states to extradite or prosecute suspected offenders who are within that state’s territory or otherwise under its jurisdiction. Under customary international law, it is also generally agreed that states are allowed to try those responsible for other crimes, such as genocide or crimes against humanity, wherever these crimes took place.
