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The Fighting in Sudan is an Armed Conflict: Here’s What Law Applies

The power struggle between two Sudanese generals that erupted in fighting between their forces last Saturday is into its sixth day with little sign of abating. According to press reports a ceasefire brokered by the United States and other countries held for barely a few minutes last Tuesday, while a redoubled effort on Wednesday held only in some areas. There is little hope that either side is, for now, willing to compromise to end the fighting. Once again, civilians are caught up in the chaos, dying and suffering, while civilian objects such as health care facilities are being attacked and damaged. The delivery of humanitarian aid is proving impossible.

The hostilities pit the armed forces of Sudan, led by Sudanese President General Abdel Fattah al-Burhan, head of the country’s transitional governing Sovereign Council, against the Rapid Support Forces (RSF), a paramilitary formation led by Vice-President General Mohamed Hamdan Dagalo, also known as Hemedti, who is deputy head of the Council. Their personal and political history is complicated (as explained here). Suffice it to say that the RSF, created in 2013 by deposed former President Omar Hassan al-Bashir (who is sought by the International Criminal Court for genocide and other crimes), derives from the pro-government Janjaweed militia that wreaked havoc in Darfur in the early 2000s. Both generals were part of the military echelons who removed al-Bashir in 2019 and also worked to bring down a civilian-military government in 2021. Their uneasy relationship, of long-standing, has now erupted into a struggle for who will control Sudan. The immediate cause seems to have been disagreement about the schedule of integration of the RSF into the Sudanese armed forces and, unsurprisingly, which one of these commanders would be hierarchically superior. The clashes are taking place against the backdrop of a hoped-for return to civilian rule, which is inevitably receding.

The Unfolding Fighting is a Non-International Armed Conflict

The current fighting unfolding in Khartoum and, as reported, in other parts of the country, can be characterized as a non-international armed conflict (NIAC) under international humanitarian law (IHL or LOAC, the law of armed conflict). According to well accepted interpretations initially developed by the International Criminal Tribunal for the former Yugoslavia, two criteria must be met for a situation of violence to be classified as such: (1) a certain level of intensity of the violence; and (2) the existence of two parties to the conflict, meaning that any non-State armed group, in this case the RSF, must be sufficiently organized.

It would appear based on footage and news reporting coming from the country that both criteria are fulfilled. The violence between the factions is of a high intensity (with shelling, aerial bombardments and, civilian casualties reported) and has reached the level of hostilities. There likewise seems no doubt given its command structure and other requisite elements attesting to organization that the RSF constitutes a party to a NIAC as required by IHL.

What IHL Rules Apply?

Sudan is a party to the main IHL treaties, i.e. the four Geneva Conventions of 1949, each of which contains Common Article 3 dealing with NIACs in their text, and the 1977 Additional Protocol II to the Conventions (AP II), which “develops and supplements” Common Article 3 (AP II, art. 1, para. 1). Additional Protocol II has not achieved universal ratification like the Geneva Conventions, and must be ratified by a State involved in a NIAC in order to be binding as treaty law on the parties involved.

Additional Protocol II also has a higher threshold of application than Common Article 3.  Whereas Common Article 3 applies to any armed conflict “not of an international character occurring in the territory of one of the High Contracting Parties,” Additional Protocol II covers only non-international armed conflicts that involve the armed forces of the territorial State, on one side, and “dissident armed forces” or other armed groups that meet specified criteria, on the other. Specifically, the Protocol covers armed conflicts

“which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups [italics added] which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” (AP II, art. 1, para. 1).

One interesting factual question, then, is whether the RSF may be said to constitute a “dissident armed force” within the meaning of AP II. There is no IHL definition of “dissident armed forces” and the emergence of this type of party to a NIAC has been fairly rare in practice. In simple, descriptive terms dissident armed forces are part of a State’s armed forces that have turned – rebelled – against the government (AP II ICRC commentary, 1987, para 4460).

Based on available information, and despite the uneasy relationship between the Sudanese army and the RSF, and especially their commanders, it may be argued that the RSF is a dissident force. As already mentioned, Generals al-Burhan and Dagalo are, respectively, head and deputy head of the Sovereign Council, and are thus institutionally the holders of the two highest positions in the government. RSF integration into the Sudanese armed forces was contemplated, and even if it did not progress, the RSF had, for lack of a better term, been horizontally “pooled” with the regular armed forces of which Gen al-Burhan is the military commander. While not necessarily dispositive for a legal reading, al-Burhan has in fact characterized the situation as “an attempted coup and a rebellion against the state.” According to al-Burhan, the “RSF leader Dagalo had ‘mutinied’ against the state, and if captured, would be tried in a court of law.”

As regards the other elements of the AP II threshold of application (responsible command; control over part of the territory; the sustained character of military operations), they would also appear to be fulfilled based on reports on the ground. It should be noted that the last element is the ability to implement the Protocol. Based on the RSF’s organization and command structure this should be the case. The existence of political will to follow the law is all too often, tragically, another matter, in this context, as in others.

Even if it were argued that the RSF are not a dissident armed force, the applicable law would not change, as AP II also applies to “other organized armed groups” fulfilling the requisite criteria. Together with customary IHL, AP II provides a solid, if basic framework for the conduct of warring parties. It prohibits making the civilian population as well as individual civilians the object of attack, and proscribes acts or threats of violence primarily aimed at terrorizing the civilian population (AP II, art. 13, para. 2). The Protocol has fairly robust rules on, among other things, the treatment of persons detained or interned, on children, the wounded and sick, on the protection of medical and religious personnel, units and transports, on objects indispensable to the survival of the civilian population, forced movement of civilians, and protection of cultural objects.

It is well accepted that other IHL rules on the conduct of hostilities such as the obligation to distinguish between civilians and combatants/fighters, and civilian objects and military objectives, the prohibitions of indiscriminate or disproportionate attacks and the duty to take precautions in attacks apply in any type of NIAC as a matter of customary law. Last but not least, AP II and customary law regulate the activities of humanitarian organizations in a NIAC.

It should be noted that, apart from AP II and customary IHL, other relevant international law applicable to the current fighting in Sudan includes international weapons’ treaties to which Sudan may be a party that apply in situations of NIAC, as well as international human rights law.

IMAGE: Heavy smoke billows above buildings in the vicinity of the Khartoum airport on April 15, 2023, amid clashes in the Sudanese capital. (AFP via Getty Images)

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