Sudan - Applicable international law
 
 
 
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Applicable international law
 

The conflict with South Sudan: intenational armed conflict

Sudan is engaged in an international armed conflict with South Sudan. The conflict is regulated by the Geneva Conventions and applicable customary international law (see pdf below). There is also an ongoing non-international armed conflict with the South Sudan People's Army-North (SPLA-N), particularly in South Kordofan.

Applicable international humanitarian law of international armed conflict

The basic principles of international humanitarian law applicable to the conduct of warfare an international armed conflict are set out in the 1949 Geneva Conventions and their 1977 Additional Protocols. The basis of international humanitarian law is the principle of distinction. This principle obliges “parties to a conflict” (i.e. the warring parties, in this case Sudan and South Sudan) to target only military objectives and not the civilian population or individual civilians or civilian objects (e.g. homes, schools, and hospitals). Failing to make this distinction in military operations represents an indiscriminate attack and is a war crime.

Although it is understood that it is not possible always to avoid civilian casualties, international law also requires that parties to a conflict take precautions in any attack to minimise civilian deaths and injuries. Attacks likely to cause deaths or injuries among the civilian population or damage to civilian objects which would be "excessive" compared to the expected military advantage must be cancelled. In providing assistance to the civilian population, women and children are to be granted preferential treatment.

In addition, among many provisions, parties to the conflict must respect combatants who are hors de combat, including the sick or wounded. Captured combatants are to be accorded the status of prisoner of war, with the associated rights and obligations.

 

The conflict in Darfur: non international armed conflict

The conflict in Darfur opposes the Government of the Sudan to a number of non-state armed groups, including the Sudan Liberation Movement/Army (SLM/A) and the Justice and Equality Movement (JEM) who first took up arms against the central authorities in or around 2002. However, the scale of attacks by these armed groups increased noticeably in February 2003. The extent and sustained nature of armed violence, and the level of organization of the non-state armed groups fighting mean that the situation has reached the threshold of an armed conflict. As Sudan is fighting against a non-state armed group, the armed conflict is qualified as being of a non-international character.

Applicable law

International humanitarian law

Applicable to all parties to the conflict, state and non-state actors:

Common Article 3 to the 1949 Geneva Conventions;

Customary international humanitarian law applicable to a NIAC.

International human rights law

Sudan is bound by both applicable treaty and customary human rights law (see the RULAC papers on the interaction between international humanitarian and human rights law in armed conflict; and Derogation from human rights treaties in situations of emergency).

  • Non-state actors

There is increasing acceptance that armed non-state actors are also bound by at least customary norms of international human rights law. Thus, the UN Assistance Mission in Afghanistan stated in February 2012 that:

While non-State actors in Afghanistan, including non-State armed groups, cannot formally become parties to international human rights treaties, international human rights law increasingly recognizes that where non-State actors, such as the Taliban, exercise de facto control over territory, they are bound by international human rights obligations. (See UN Assistance Mission in Afghanistan (UNAMA), Annual report, February 2012 at p. iv.)

International criminal law

Sudan is not party to the Rome Statute, however its situation was deferred to the ICC by the UN security council (See international legal decisions section).

Core legal obligations applicable in a non-international armed conflict

It is prohibited to attack any civilian taking no active part in hostilities, or any soldier who has laid down his arms or who is hors de combat because of sickness, wounds, detention, or any other cause. Children must not be recruited into armed forces or armed groups or allowed to take part in hostilities. It is prohibited to attack any civilian objects. Civilian objects are any buildings or areas that are not lawful military objectives. Indiscriminate attacks, which do not distinguish between military objectives and civilians and/or civilian objects, are prohibited. The use of indiscriminate weapons is prohibited.

Military personnel may not be attacked with weapons that are of a nature to cause superfluous injury or unnecessary suffering. Attacks against lawful military objectives (personnel or equipment) are prohibited if they may be expected to cause excessive harm to either civilians or civilian objects, or a combination of both, in relation to the concrete and direct military advantage anticipated. All feasible precautions must be taken to avoid, and in any event to minimise, incidental loss of civilian life, injury to civilians and damage to civilian objects.

Enforced disappearances are prohibited. Hostages shall not be taken. Arbitrary deprivation of liberty is prohibited. Anyone detained by a party to an armed conflict must be treated humanely and in accordance with their sex, age, and religious beliefs. Murder, torture, rape, bodily injury, or other cruel, humiliating or degrading treatment, are all prohibited. Summary or arbitrary executions are prohibited. No one may be convicted or sentenced, except pursuant to a fair trial affording all essential judicial guarantees. This includes a defendant’s right to know the charges against him/her; to understand the court proceedings; to have the opportunity to conduct a genuine defence; and to be able to appeal against both conviction and sentence. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

For other provisions of international humanitarian law applicable in a non-international armed conflict, see the summary of customary rules identified by the ICRC (pdf below). Derogations from other human rights in accordance with the International Covenant on Civil and Political Rights may only occur in “time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed.” Any derogation must be only “to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”

Last updated: 18 July 2012

   
The International Committee of the Red Cross study of customary international humanitarian law.
Summary of the rules applicable in armed conflicts of a non-international character
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Tuesday, 23 September 2014
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