Editor's Note: What are the international legal ramifications for the Sudanese government's recent assault on its people in Southern Kordofan and Blue Nile, and across the new international boundary in South Sudan? Lawyer and rights activist James Bair writes about the numerous ways Khartoum is violating the Geneva Conventions — to alarmingly little effect from the international community.
Earlier this month, Sudan launched assaults against unarmed civilians in Upper Nile state and at the Yida refugee camp in South Sudan. In addition to condemning Bashir’s ruthlessness, it is useful to remember that these attacks are not merely immoral – they are illegal. The world has a duty to ensure that the perpetrators are held to account.
Legal protection for war victims begins with the Geneva Conventions and their two Additional Protocols. South Sudan, which is not even five months old, has yet to adopt this “Geneva Law.” Sudan, on the other hand, signed the Conventions in 1957 and the Protocols in 2006. These are binding commitments regardless of South Sudan’s status. Geneva Law does not rest “on a basis of reciprocity.” Rather, it is a “unilateral engagement solemnly contracted before the world.”
Geneva Law was born after World War II, the horrors of which created consensus about the limits of international military action. Yet, when it came to internal conflicts, countries were reluctant to tie their own hands. Thus, the scope of Geneva Law varies greatly depending on whether a conflict is entirely internal or is an “armed conflict of an international character.” Victims of their own government, such as in South Kordofan, must look to common Article 3 and its companion, the Second Protocol, which offer bare-bones safeguards. Scant as they are, these are so widely accepted that they have become customary international law, meaning that they are binding on all nations even if they have not adopted Geneva Law. Therefore, whether the conflict is internal or international:
The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. (First Protocol, Article 51(2); Second Protocol, Article 13(2)
Khartoum’s assaults, which include dropping bombs near a primary school are precisely the type of outrages that Geneva Law intends to prevent.
Of course, South Sudan’s independence changes the legal analysis and makes the attacks on Yida and Upper Nile an “international armed conflict.” This triggers the enhanced protections of the Fourth Geneva Convention, which apply when a country uses force, even if it is not labeled as war. The First Optional Protocol expands civilian protections, which Khartoum has consistently and deliberately disregarded.
The First Protocol dictates that: “[T]he Parties to the conflict shall at all times distinguish between the civilian population and combatants,” adding that the only legitimate operations are those directed at military targets (Protocol II, Article 48). Attacks on civilians, including refugees, or on “civilian articles”—such as the dwellings and the school that were targeted in Yida—are explicitly forbidden. “Indiscriminate attacks,” including assaults on “non-defended localities” are illegal. The North has made no such distinctions. In fact, it is abundantly clear that the “primary purpose” of these attacks “is to spread terror among the civilian population.”
But what are the options for enforcing international law?
There are several mechanisms for holding Sudan accountable. The first is the International Criminal Court, which classifies “grave breaches” of the Geneva Conventions as a war crime. Although the ICC indicted Bashir and others, it currently has authority only over Darfur – attacks elsewhere in Sudan or South Sudan have not been investigated. Because the South is not a member of the ICC, it cannot make a direct referral to the Court. The United States should use its influence in the U.N. Security Council to call for a fresh referral that covers the full scope of Bashir’s criminality and extends the ICC’s deterrence as widely as possible.
As a signatory to Geneva Law, Sudan is obliged to repress breaches of its provisions. This includes “the search for perpetrators . . . and the obligation… to bring them before the courts.” Although Geneva Law predates the establishment of the ICC, this could be read as demanding that Sudan extradite its war criminals to The Hague. Geneva Law also obliges Sudan to pay money for its destruction in the South. Such compensation is typically negotiated as part of a peace settlement, which will be needed before the two Sudans can live side by side.
Finally, the Responsibility to Protect, or R2P, requires that the international community step in. Adopted in 2005, R2P calls on nations to look beyond the veil of sovereignty and intervene—militarily, if necessary—to prevent mass atrocities wherever they occur. As the Red Cross wrote in 1949, Geneva Law “demands in fact that the Contracting Parties should not be content merely to apply its provisions to themselves, but should do everything in their power to ensure that the humanitarian principles underlying the Conventions are applied universally.” Sudan’s violations of Geneva Law are painfully obvious, and the international community has a legal obligation to hold it accountable.
James Bair is a graduate of Northeastern University School of Law in Boston, MA. He helped establish the Victims Unit at the Extraordinary Chambers in the Courts of Cambodia and has published on the rights of victims under international criminal law.