Introduction

This analysis provides the legal basis for assessing the burning of ten shelters in El Geneina, and the associated displacement and killings, described in this report. We identify and provide a brief definition of each crime as outlined in international criminal or international humanitarian law, including the Rome Statute, Geneva Conventions, or other applicable law. In particular, we assess international law relevant to the burning and destruction of these ten shelters between April 24 to April 27, 2023, investigated by Sudanese Archive, where investigators found evidence of potential international crimes. Of the ten shelters, five were located in the grounds of government buildings, four within schools, and one in a public square. This analysis is not a comprehensive list of crimes and possible human rights violations in El Geneina or greater Sudan. It was drafted by the Northwestern Pritzker School of Law International Human Rights Clinic, as part of a collaboration with Sudanese Archive.

The Sudan Conflict is between the Rapid Support Forces (RSF), a Sudanese militia group; the Sudan Armed Forces (SAF), the formal military arm of the State; and smaller armed groups within Sudan. The UN Fact Finding Mission to Sudan has categorized the conflict as a non-international armed conflict (NIAC).[1] Within the context of a NIAC, we identify actions or patterns that may meet the thresholds of war crimes, crimes against humanity, and genocide.

1. Geneva Conventions and International Humanitarian Law (IHL)

Also known as the laws of war, the Geneva Conventions set limits on conduct during armed conflicts, aiming to protect civilians, non-combatants, and minimize suffering. In the context of non-international conflicts, the applicable laws are found in Common Article 3 of the Geneva Conventions, the 1977 Additional Protocol II, and customary IHL.

Based on IHL, parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed at combatants, not civilians. However, residents of El Geneina reported frequent attacks involving explosive weapons in densely populated civilian areas, increasing the risk of civilian casualties. Evidence that Sudanese Archive collected for this report indicates that the ten civilian shelters were systematically destroyed.

Deliberate attacks on civilians or indiscriminate and disproportionate attacks are strictly prohibited. The use of mortars, rockets, and heavy artillery in populated areas raises serious concerns about unlawful targeting. According to the doctrine of command responsibility, commanders and individuals who knew or should have known these indiscriminate attacks and took insufficient measures to prevent them may be prosecuted for war crimes.

2. War Crimes

A war crime is any “grave” breach of protections afforded to certain peoples by the Geneva Conventions.[2] Grave breaches include willful or indiscriminate attacks on civilians, sexual crimes, and the destruction and pillaging of civilian property and places of worship.[3]

2.1. Destruction of Property

Intentionally attacking civilian property is also a war crime under Article 8 of the Rome Statute.[4] Civilian property is any object not being used for a military objective.[5] Destruction of civilian property includes the burning or pillaging (theft of property) of schools, hospitals, places of worship, homes, and other civilian structures. To be considered a war crime, the attack must be carried out as part of the armed conflict.

Sudanese Archive found that armed actors systematically burned ten centers for internally displaced persons (IDPs) in El Geneina, between April 25 and April 27, 2024. Based on the short time frame of the burnings, and the close proximity of the shelters targeted, it appears that these forces deliberately and systematically destroyed these civilian shelters. For a war crime to be established, evidence must show that the burning was not justified by military necessity, including that the structures were not used for military purposes, and that any destruction caused was necessary to meet legitimate military objectives.[6] Sudanese Archive was not able to conclusively identify the forces responsible for burning these shelters. Other independent groups investigating violence in El Geneina during this period, notably Human Rights Watch and the UN Fact Finding Mission, reported that RSF and allied militias were responsible for pillage, burning, and other destruction in Masalit neighborhoods.[7]

Sudanese Archive found evidence that some individuals with light arms and in some cases with a heavy vehicle-mounted weapon, who evidence indicates were part of Masalit local groups, were in the general vicinity of shelters (between 70-220 meters away, in videos the Archive geolocated). Sudanese Archive did not find evidence these individuals were in close proximity to the shelters at the time of their destruction. Moreover, the extent of burning and destruction of the shelters suggests these structures were deliberately destroyed, and not damaged by weapons fire. Finally, attackers would be required to consider that large numbers of civilians lived in these shelters, and ensure that any attack on them was both necessary and proportional. Wholescale destruction of civilian shelters does not appear to meet this standard.

Sudanese Archive also references materials from Roots for Human Rights showing the burning and looting of other structures including homes, government property, international organizations, and mosques by the RSF.[8]

Human Rights Watch also found that the RSF and allied militias destroyed schools and government offices along the A5 road in El Geneina.[9] Witnesses described how these sites were looted and burned, depriving civilians of essential services.[10] Looting or pillage, and destruction for its own sake, are violations of international humanitarian law. While Sudanese Archive did find videos showing individuals with small arms and light weapons, as well as a truck-mounted automatic weapon, on the A5 road, any wholescale destruction of civilian property would need to be justified by military necessity.

The RSF and allied militias also looted long-established and newly formed IDP camps, school compounds, and government offices along the A5 road in El Geneina, according to Human Rights Watch.[11] Witnesses reported that these sites were ransacked and then destroyed.[12]

2.2. Forced displacement

International law prohibits forced displacement, which involves the unlawful transfer or expulsion of civilians from their homes during armed conflict, under the Rome Statute.[13]Burning of shelters could also indicate the crime of forced displacement.

In its investigation, Sudanese Archive found evidence of forced displacement. For example, the RSF forcibly removed a woman and her son from their home, telling them they would never return.[14] Witnesses reported widespread displacement as civilians were driven from their communities under threat of violence.[15]

2.3. Attacks against a Civilian Population

International law prohibits attacks against a civilian population, including acts of violence directed at civilians during armed conflict, under the Rome Statute[16] as well as the Geneva Conventions.[17]

The RSF and allied militias reportedly killed displaced refugees as they fled.[18] The World Health Organization (WHO) reported that as of July 23, 2,357 injured Sudanese refugees had arrived in eastern Chad from Darfur, 78 percent suffering from gunshot wounds. Of the overall Sudanese refugees registered, 21% were children under 5.[19]Between April 24 and June 14, doctors interviewed by Human Rights Watch reported recording 4,215 people killed and 9,275 injured. It was not clear whether all died or were injured as a direct result of the violence, or what proportion of those killed were fighters.[20]

2.4. Violence to life and person

International law prohibits directed attacks, killings, and other cruel treatment against civilians.[21] It also prohibits violence against former combatants that are wounded, arrested, or have laid down their arms.[22]

In a video published by the Ayin Network on September 13, 2023, a man says that RSF forces searched house to house in Ardamata, killing Masalit civilians.[23] The man adds that on the refugee route to Chad, he saw RSF checkpoints with dead bodies along the road.[24] In a second video from the Ayin Network, dated September 4, 2023, a fifteen-year-old boy says that he watched RSF forces bring out the men amongst a group of refugees he traveled with and shoot them in a line.[25]

3. Crimes Against Humanity

A crime against humanity is a grave offense that includes acts committed as part of a widespread or systematic attack against a civilian population. These crimes, such as extermination and persecution, are so severe that they endanger the international community or shock the conscience of mankind. Under the Rome Statute, the perpetrator must participate in and be aware of the attack.

The RSF and allied forces reportedly committed significant violations of international human rights against civilians in El Geneina and its vicinity, both in numbers of people harmed and areas impacted. If they are indeed responsible for these violations, the scale of abuses appears to constitute the context element of “widespread” which is part of the definition of crimes against humanity.[26] These violations included the destruction of schools, hospitals, and places of worship, as well as forced displacement and targeted killings of civilians. According to these sources, the RSF appears to have committed systematic and widespread crimes against civilians, fulfilling the contextual elements of crimes against humanity under Article 7 of the Rome Statute.

3.1 Persecution

Persecution is a grave crime prohibited under international law, defined as the severe deprivation or discrimination that denies or infringes upon the fundamental rights of an identifiable group or collectivity.[27] This discrimination is based on political, racial, national, ethnic, cultural, religious, gender, or other grounds universally recognized as impermissible under international law. It is considered a serious violation under the Rome Statute.

RSF reportedly searched house-to-house in Ardamata for Masalit civilians, executing some of them, specifically infringing the right to life of the Masalit.[28] RSF and its allies destroyed shelters, hospitals, clinics, and water points. An interviewee reported RSF forces blocking the entrance of a clinic in early June, saying “No Black people will get medicine here.”[29] RSF’s widespread looting and burning of shops also caused many Masalit families to have nowhere to buy food from the very first days of the fighting, infringing their right to an adequate standard of living.[30] The RSF’s targeting of the Masalit people through killings, forced displacement, and destruction of their homes appears to constitute persecution under Article 7(1)(h) of the Rome Statute. The discriminatory intent, evidenced by selective attacks on Masalit communities, supports the classification of these acts as persecution.

4. Genocide

The crime of genocide is a grave offense prohibited under international law, defined by the specific intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.[31] This destruction can be carried out through means such as killing, causing serious bodily or mental harm, or inflicting conditions of life calculated to bring about the group’s physical destruction.[32] Genocide differs from other crimes due to its specific requirement for perpetrators to demonstrate a deliberate and specific aim to physically destroy the group in question. Specific intent is a constitutive element. Evidence including written orders or statements from leaders help establish this element. Finally, it must be established that the group harmed was a protected group, using the above grounds.

RSF fighters reportedly deterred non-Masalit residents from hosting the Masalit, and targeted Masalit people for violence. In one video Sudanese Archive located, a witness described how RSF fighters searched house by house looking for Masalit people and killed individuals they found, saying “we don't want any Masalit in the city.”[33] This statement is one piece of evidence suggesting intent, but more evidence of a systematic approach and intent to destroy its group is needed.

[1] U.N. Human Rights Council, Report of the United Nations High Commissioner for Human Rights: Situation of Human Rights in the Sudan, U.N. Doc. A/HRC/57/CRP.6 (Sept. 28, 2024).

[2] Rome Statute of the International Criminal Court art. 8, July 17, 1998, 2187 U.N.T.S. 90.

[3] Rome Statute of the International Criminal Court art. 8(2)(e), July 17, 1998, 2187 U.N.T.S. 90.

[4] Rome Statute of the International Criminal Court art. 8(2)(a)(iv), July 17, 1998, 2187 U.N.T.S. 90.

[5] Rome Statute of the International Criminal Court art. 8(2)(e)(iv), July 17, 1998, 2187 U.N.T.S. 90.

[6] Rome Statute of the International Criminal Court art. 8(2)(e), July 17, 1998, 2187 U.N.T.S. 90.

[7] Human Rights Watch, “The Massalit Will Not Come Home”: Ethnic Cleansing and Crimes Against Humanity in El Geneina, West Darfur (Jan. 25, 2024), https://www.hrw.org/report/2024/01/25/Massalit-will-not-come-home/ethnic-cleansing-and-crimes-against-humanity-el; U.N. Human Rights Council, Report of the Independent International Fact-Finding Mission for the Sudan, U.N. Doc. A/HRC/57/23 (Sept. 5, 2024).

[8] https://www.facebook.com/rfhromv/posts/pfbid02Kva4rvr5mdAzxF1hvxeQdg9wWaT3Gur9FjvGY5sCQJz44wMtovnfUFZfHRuhbZinl.

[9] Human Rights Watch, “The Massalit Will Not Come Home”: Ethnic Cleansing and Crimes Against Humanity in El Geneina, West Darfur (Jan. 25, 2024), https://www.hrw.org/report/2024/01/25/Massalit-will-not-come-home/ethnic-cleansing-and-crimes-against-humanity-el.

[10] Id.

[11] Id.

[12] Id.

[13] Rome Statute of the International Criminal Court art. 8(2)(e)(viii), July 17, 1998, 2187 U.N.T.S. 90.

[14] https://www.facebook.com/3ayin/videos/877831463943516.

[15] Human Rights Watch, “The Massalit Will Not Come Home”: Ethnic Cleansing and Crimes Against Humanity in El Geneina, West Darfur (Jan. 25, 2024), https://www.hrw.org/report/2024/01/25/Massalit-will-not-come-home/ethnic-cleansing-and-crimes-against-humanity-el.

[16] Rome Statute of the International Criminal Court art. 8(2)(b)(i), July 17, 1998, 2187 U.N.T.S. 90.

[17] Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 27, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.

[18] Philip Kleinfeld, ‘Every Checkpoint Could Be Your Last’: The Perilous Road to Safety for Darfuri Refugees, The New Humanitarian (Aug. 15, 2023), https://www.thenewhumanitarian.org/news-feature/2023/08/15/every-checkpoint-could-be-your-last-perilous-road-safety-darfuri-refugees.

[19] World Health Organization, Analysis of the humanitarian and health crisis in eastern Chad linked to the influx of refugees and returnees following the armed conflict in Sudan (July 27, 2023), https://reliefweb.int/attachments/40c920a7-d73c-4ca4-a3d4-2b8e3034d76a/WR%20CHAD%20PRESENTATION%20EASTERN%20CHAD%20HEALTH%20AND%20HUMANITARIAN%20REFUGEE%20SITUATION%20%20July%2027%202023%20Fiinal%20JO%20%20ENGLISH%20VERSION.pdf.

[20] Human Rights Watch, “The Massalit Will Not Come Home”: Ethnic Cleansing and Crimes Against Humanity in El Geneina, West Darfur (Jan. 25, 2024), https://www.hrw.org/report/2024/01/25/Massalit-will-not-come-home/ethnic-cleansing-and-crimes-against-humanity-el.

[21] Geneva Conventions of 12 August 1949, Common art. 3, 6 U.S.T. 3114, 75 U.N.T.S. 31.

[22] Rome Statute of the International Criminal Court art. 8, July 17, 1998, 2187 U.N.T.S. 90.

[23] https://www.facebook.com/watch/?v=1136181177345083.

[24] https://www.facebook.com/watch/?v=1136181177345083.

[25] شبكة عاين - Ayin network, سلسلة حلقات: أصوات من هوامش المجزرة - الحلقة الثانية/ صبري محمد ووالدته , FACEBOOK (Sep 4, 2023), https://www.facebook.com/watch/?v=877831463943516.

[26] Human Rights Watch, “The Massalit Will Not Come Home”: Ethnic Cleansing and Crimes Against Humanity in El Geneina, West Darfur (Jan. 25, 2024), https://www.hrw.org/report/2024/01/25/Massalit-will-not-come-home/ethnic-cleansing-and-crimes-against-humanity-el; U.N. Human Rights Council, Report of the Independent International Fact-Finding Mission for the Sudan, U.N. Doc. A/HRC/57/23 (Sept. 5, 2024).

[27] Rome Statute of the International Criminal Court art. 7(2)(b), July 17, 1998, 2187 U.N.T.S. 90.

[28] شبكة عاين - Ayin network, سلسلة حلقات: أصوات من هوامش المجزرة - الحلقة الثالثة/ عبد العزيز خاطر بشير, FACEBOOK (Sep 13, 2023), https://www.facebook.com/watch/?v=1136181177345083.

[29] Interview with Eman, government employee, Human Rights Watch (Chad, July 23, 2023).

[30] Interview with Arnani, Human Rights Watch (Chad, June 4, 2023); Mustafa, former civil servant, Human Rights Watch (Chad, July 30, 2023); Amina, government employee, Human Rights Watch (Chad, July 23, 2023); and Ismat, Human Rights Watch (Chad, July 26, 2023).

[31] Rome Statute of the International Criminal Court art. 6, July 17, 1998, 2187 U.N.T.S. 90.

[32] Rome Statute of the International Criminal Court art. 6, July 17, 1998, 2187 U.N.T.S. 90.

[33] https://www.facebook.com/3ayin/videos/1136181177345083.

.css-68jq5d{padding-bottom:1.45rem;color:#ffffff;-webkit-transition:0.25s;transition:0.25s;}.css-68jq5d:hover{-webkit-text-decoration:underline;text-decoration:underline;}INVESTIGATIONS

Legal Analysis of the Burning of Displaced Persons' Shelter Centers in El Geneina

Table Of Contents

INVESTIGATIONS