The Darfur catastrophe commenced in 2003 and unfortunately, has till date not been resolved. Darfur, the western region of Sudan was home to the two rebel groups which protested against the Government of Sudan. The two rebel groups namely Sudan Liberation Movement/Army[1]and Justice and Equality Movement[2]joined hands to take up arms against the Government of Sudan[3].

The conflict can be attributed to multi-fold factors which are not only complex but have their roots in the history of Darfur[4]. On one hand the conflict can be said to be an ethnic one while on the other, it could be said that the major driving force behind the conflict was economic and political marginalization of Darfur.

There are diverse interpretations that can be looked at to understand the intricate causal factors that led to this ongoing tragedy. But the fact of the matter which remains unhinged is that no matter what the cause is for this insurgency, Darfur crisis has been defined as one of the worst humanitarian crisis in the world.

Introduction
To understand the humanitarian angle of the war and subsequent International laws that come into play in any armed conflict situation, it is inevitable to take a glance at how the crisis began in the first place. The 2003 crisis started with a blow-off on Government property by the two rebel groups. To deal with the situation of this type, the Government of Sudan, in turn, joined hands and aided a militia group, who were popularly recognized as Janjaweed [5].

This group went a step ahead and demonstrated all types of violence which later were even recognized as crimes against humanity. Crimes like theft, robbery, rape and murder were being committed on daily basis. Not to forget that amidst all this, women were the worst victims of all as they were being sexually assaulted and later brutally killed.

The strategies carried out by this militia group killed thousands of civilians and became the prime reason for displacement of civilians. The displacement, both internal and external, continues to happen even today as the attacks on civilians were frequent and sometimes even direct. This created a sense of fear in the minds of the civilians who were forced to move and eventually ended up being refugees in other countries.

Even though a peace agreement was signed between the Government of Sudan and JEM in 2009, in Doha, the tragedy of Darfur still exists in some form or the other. The hope to achieve peace by signing the agreement is still unfulfilled as what was set out in paper has not been executed practically.

There is a lot that has been done by the International bodies, Conventions, Courts and various countries, there is a lot more that could have been done and there is a lot more that can still be done, in order to restore peace in this country which is shackled in the internal armed conflict and is unable to resolve the matter which started even before 2003.

Legal Issue: Mere mass killing or Genocide

The definition of genocide finds its place under the Convention on the Prevention and Punishment of the Crime of Genocide, 1948[6]. Genocide as defined in the Convention, in a nutshell means extermination of the mass population with an intention to destroy. Now, whether the crimes committed in Darfur amounts to genocide or not is a question which is unanswered and at the same time has been answered differently by different actors leading to contradicting views.

There have been several reports which provide the evidence of involvement of Sudanese Government with the Janjaweed militia group. The Sudanese government's failure to protect the non-Arab population and several tribes of the Darfur region aggravated the whole conflict. Population of the villages were wiped out, tribes associated with the 2 rebel groups were the main target and crimes like rape or murder were being committed on a large scale.

By 2004, it was estimated that more than 30,000 civilians lost their lives and 1.4 million people were internally displaced[7]. The numbers kept on increasing with each passing day. It was in 2004 that US and European Parliament termed the conflict in Darfur as Genocide. But the African Union chose not to use the term Genocide, however they also were of the view that mass suffering is taking place in Darfur.

United Nations Security Council Resolution, 2004 handed over the responsibility of determining whether the conflict taking place tantamount to Genocide or not to the International Commission of Inquiry on Darfur. In 2005, they issued a report stating that even though the crimes being committed cannot be termed as genocide but at the same time it cannot be denied that the crimes taking place were against humanitarian law and war crimes which will attract the provisions of International humanitarian law and the same should be referred to the International Criminal Court.

International Humanitarian law and its Principles

This law comes into the picture whenever there is an armed conflict happening. There are some rudimentary principles enshrined in this law which are universally applicable.

The three principles are:

1. Principle of Distinction:
   In the situation of an armed conflict, there are some rules that each party to the war has to follow. It is foremost important to distinguish between the military and civilians for the purpose of war. Civilians should and can never be the target of the party to the war.
    
2. Principle of Proportionality:
   It is utmost important to weigh the consequences of the war with the benefits being achieved by it. If the harm is greater than the benefit, then the war should be discarded. The objective of the war should be crystal clear and in no way should the harm being inflicted by it exceed the advantage coming out of it.
    
3. Precautionary steps:
   The most obvious principle that is solely designed to protect the civilians who get caught up in the armed conflict, states that it is not only the duty but also the obligation of the parties to war to ensure that the lives of civilians are protected at any cost. There should be no unnecessary damage either to the civilians or to their property.

In addition to these principles, Article-3 of the Geneva Convention, 1949[8]is also attracted because of the fact that the Article provides for the safety of the civilians, in case of armed conflicts. International Covenant on Civil and Political Rights,1966 , especially Article-7[9], is also applicable during situations of war. Any violation of these principles, will always attract the jurisdiction of the International Criminal Court (ICC).

The situation in Darfur prima facie invites the jurisdiction of the ICC as the Sudanese Government has evidently breached all the central principles of humanitarian law and has failed to protect its civilians. The matter of Darfur was referred to the ICC in 2005 and subsequently the decision came in 2007. Even after the issuance of warrants against Al-Bashir, who was then the President of Sudan, it was found that there was a grave non-compliance with the decision of the ICC by the Sudanese Government.

One of the major reasons as to why there was a non-compliance with the decision could be that the policies of the international law are usually not taken to be serious by the states[10]. The fact that even after several threats to the Sudanese Government and subsequent non-compliance, no proper action was taken by the ICC shows that it only threatens the state and in reality does little to help the civilians of the state involved in the armed conflict.

So many resolutions were passed by the UN, but the implementation of the same was so weak that it did nothing to make the situation of Darfur better. Another reason for the failure of International court could be that the situation and conflict in Darfur, instead of being viewed from the lens of humanity, was only seen from the political standpoint. There were political agendas of countries like US and China, that they wanted to accomplish by meddling in the internal armed conflict of Darfur.

In 2009, Bashir was found guilty of various crimes as Sudan was a party to the Rome Statute[11]. Article 7 (1) (a); (b); (d); (f) and (g) were violated by him. What's interesting to note here is that all these crimes are against humanity but even after committing atrocities on such a high level, he was not charged for Genocide at all.

Darfur is a classic example of how even after having an International law on the issue of humanitarian rights, the civilians are left unprotected during the situation of armed conflicts and how as a consequence of it they become either refugees or internally displaced persons who then continue to struggle for the rest of their lives.

Limitations of International Humanitarian law

Creating a mere statute or law for the said purpose is never enough unless the parties show willingness to co-operate and respect such law. International Humanitarian law in this sense is limited in its purpose as there is no concrete answer to the question that what if the parties to the conflict are not willing to co-operate and follow the law? Can they be forced or pressurized? And if yes, then to what extent can this be done in case of an internal armed conflict?

The failure to resolve Darfur crisis can be attributed to not only the International bodies but also to the Government and parties involved in it. There were reports and evidences which show that the Sudanese Government was not at all willing to allow agencies and NGOs to help the civilians with respect to humanitarian needs.

Due to the geographical limitations and restricted access to the areas, there was little that could have been done by the International bodies. While the Arab villages were getting all the aid that was required, the non-Arab villages were left to face all of this alone. Priority was given to the political agendas of the countries rather than the protection of civilians[12].

It was even contested that the Darfur crisis was being neglected as the International community did not want to hamper the peace treaty that was to be signed between the North and South Sudan. There were so many regions that caught attention of the International media and court but Darfur.

One key takeaway that can be taken from this crisis is that the political agendas should not be given supremacy over the rights of the civilians. Their protection and safety should always come first and be the sole focus of the International bodies and countries.

Conclusion
UNAMID, a peacekeeping force instituted in 2007[13]for the protection of refugees and internally-displaced persons , became a major ray of hope for these civilians. However, if truth be told, there was nothing that could be done by this task force. The problems faced by these civilians was much larger and bigger than what it seemed to be. Merely recruiting a peace force to control the situation of Darfur will do nothing. The problems have to be properly analysed, there needs to be judicial reforms including the structural reforms and only then one can think about improving the situation of Darfur and its civilians.

Various countries have labelled the conflict of Darfur as a process of "Ethnic cleansing" and now the challenge is to identify the real crisis, so that an amicable solution can be proposed and implemented. To start with the reformation of Darfur, the International bodies need to realize that the internally displaced persons are the ones which are suffering on a large scale.

Legally speaking, there is no law or statute that explicitly provides protection to these set of people who are residing in camps located in neighbouring countries and in huge numbers.
Work done by UNAMID and Red cross cannot be ignored and to a large extent might help the civilians too, but when compared to the damage and harm done by the armed conflict, it still stands at a level which is below the minimum standard. International Humanitarian law has achieved a lot, but there is a long road ahead in terms of stating that Darfur is now a peaceful region where life is getting better.

The International law needs to be more effective when it comes to implementation of the provisions that is has designed for the protection of civilians. Merely giving threats will do nothing and a follow-up is must when it comes to the situations like that of Darfur. Clearly, the lack of enforcement of these provisions and articles have led to this worsening crisis of Darfur and in the future also, there is no visibility of a positive light that can help the civilians.

The promotion of national interest over any private interest might help in solving the Darfur crisis. And this can be done only by the intervention of the International community and body which needs to ensure that political agendas need to be kept at the periphery and protection of civilians should be the end goal.

Along with all of this, UNAMID needs to work with other peace keeping forces as well and ceasefire needs to be signed and kept in force between the various parties involved in the conflicts as this is the only way to bring peace in a region which has burnt to ashes due to the internal armed conflict.

End-Notes:

1. Hereinafter referred to as SLM/A
2. Hereinafter referred to as JEM.
3. Hereinafter referred to as GOS.
4. Helen Young, Abdal Monim Osman, "Challenges to Peace and Recovery in Darfur", Feinstein International Center, 2006, Part 2, Page No.10; https://www.cmi.no/file/1891-Challenges-to-Peace-and-Recovery.pdf
5. Formed in 1980s, this group was involved in a civil war that occurred in the region of Chad
6. https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf
7. Global Centre for the Responsibility to Protect, "Conflict as Genocide", Para 2; http://www.responsibilitytoprotect.org/index.php/crises/crisis-in-darfur
8. http://www.worldlii.org/int/journals/ISILYBIHRL/2001/11.html
9. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
10. John Brosche, "Darfur- Dimensions and Dilemmas of a Complex Situation", Department of Peace and Conflict Research, Uppsala Universitet, Paper No.2, Page No.103; https://www.pcr.uu.se/digitalAssets/667/c_667482-l_1-k_darfur_080317.pdf.
11. https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf
12. https://reliefweb.int/report/sudan/sudan-ihl-resource-page-darfur
13. The African Union- United Nations Hybrid Operation; https://www.un.org/en/ccoi/unamid-darfur

Written By: Priyanshi Aggarwal