Legal Protection for the Displaced People of Darfur and Chad

Roberta Cohen
Roberta Cohen Former Brookings Expert, Co-Chair Emeritus - Committee for Human Rights in North Korea

March 15, 2007

I have been asked to comment on the differences in legal protection for the near 300,000 Darfurian refugees in Chad and the more than 2 million internally displaced persons in Darfur and the impact of that legal protection on their conditions on the ground. I also have been asked to comment on the influence of the Guiding Principles on Internal Displacement internationally and the extent to which they have impact in Sudan. Finally I will comment on the role of the African Union and the Darfur Peace Agreement in providing protection for IDPs in Darfur.

Refugees and internally displaced persons are often uprooted for the same reasons – conflict, persecution and human rights violations – but because they are on different sides of the border, they are subject to different legal regimes. The 1951 Refugee Convention, which is a legally binding instrument, provides people who flee across the border with international protection because their country of origin, in this case Sudan, cannot or will not protect them. The Convention obliges governments receiving the refugees, in this case the government of Chad, not to forcibly return the refugees to their country of origin. Although Chad’s government initially made some threats against the refugees, to date, it has honored its obligation – Darfur’s refugees have not been turned back. The refugees are also supposed to receive life sustaining food, medicine and shelter. Again the government of Chad has allowed entry to the UN High Commissioner for Refugees as well as to the World Food Program, and other international organizations and NGOs to provide food, shelter and basic supplies, although the amounts provided have not always been sufficient, and access has often been difficult. Access is difficult because the government of Chad is fighting an insurgency partially supported by the government of Sudan. Most of Chad’s military is deployed to protect the capital and other parts of the country under attack but not the border areas where the refugees are located. With the border largely unprotected, Sudanese Arab militias — the Janjaweed – are able to cross over, sometimes joined by Arab militias in Chad, and attack the UN-administered refugee camps. They do so to rob and to continue to persecute Darfur’s African tribes. Sudanese African rebel groups who receive backing from the government of Chad, also prey upon the camps to recruit fighters for their ranks. The main advocate for the refugees is UNHCR but if the violence accelerates, its staff may have to relocate. Although the UN has been considering sending an international force to the border, little progress has been made to date. The Darfurian refugees in Chad thus face serious protection and assistance problems.

Chadian citizens who are internally displaced as a result of the Chad insurgency and numbering more than 100, 000 are in an equally and at times even more precarious situation than the refugees. For much of 2006, the government basically ignored them and some local authorities even told international agencies not to help them, although today some efforts are being made, in particular by international organizations, to reach them. In fact, many IDPs have settled by the refugee camps to access aid from UNHCR and NGOs. It should be noted that although IDPs have the same rights and legal protections as all other citizens in their country, their governments under whose jurisdiction they reside often are unable or unwilling to help them. It should also be noted that there is no organization comparable to UNHCR to advocate for and assume responsibility for the IDPs, and there is no international legal convention applicable to them.

In Darfur, the Sudanese government and its Janjaweed proxies deliberately caused the internal displacement of the Fur, Masselit and Zaghawa African tribes. Government forces and the Janjaweed burned down 75 percent of African villages and engaged in systematic rape and killings. Last month, the International Criminal Court announced that it would start proceedings against Sudan’s State Minister for Humanitarian Affairs who formerly was the State Minister of Interior as well as against a Janjaweed commander for having committed war crimes and crimes against humanity against Darfur’s African tribes. One of the crimes cited by the Court was forced displacement.

Can the Guiding Principles on Internal Displacement, a non-binding document, be used to help IDPs? As Dr. Kalin noted, the Guiding Principles bring together in one place all the provisions in human rights and humanitarian law relevant to the displaced. Although not a binding treaty, the Principles are based on binding international law and they have acquired a great deal of standing and authority over the past nine years. UN resolutions regularly refer to them as a standard and important tool and in 2005 more than 100 heads of state, including Sudan and Chad, recognized them as an important international framework for the protection of IDPs. All of Africa’s regional organizations have acknowledged them and some use them as a benchmark for evaluating conditions in member states. In addition, a small but growing number of governments worldwide have begun to develop policies and laws based on the Principles, and in some instances there have been concrete results. In Colombia, South America, for example, the Constitutional Court based three of its judgments on the Guiding Principles and advised the government to increase the amount of funds given to IDPs. In the South Caucasus, in Georgia, the government announced that it would bring its laws into line with the Guiding Principles and did revise its laws to enhance IDP voting rights. In Turkey, the government adopted a law to compensate IDPs uprooted by the country’s internal conflict.

Sudan, however, is not a government that will readily comply with the Guiding Principles. Following their introduction into the UN in 1998, Sudan spent a number of years trying to obstruct them at UN meetings. In 2000, for example, it teamed up with Egypt and Algeria at the UN’s Economic and Social Council to prevent that body from taking action on them. It also successfully blocked references to the Principles in international documents on aging and children.

Sudan, however, did not succeed in diminishing the Guiding Principles because too many other G77 governments found the Principles of value and voted in favor of resolutions and documents calling for their wide dissemination and application. Consequently, Sudan stopped trying to block consensus documents on the Guiding Principles at the UN although it kept reminding states that the Guiding Principles are not binding. At the same time, in 2003, when chair of the Intergovernmental Authority on Development (IGAD), an African regional organization, Sudan hosted a regional conference on internal displacement, which called the Guiding Principles “a useful tool” for building national policies. Sudan also has a national policy on IDPs, which was revised in 200 and is based on the Guiding Principles, although it obviously has yet to be implemented.

This ambiguous if not cynical position is reflected on the ground. Sudan has allowed more than 14,000 humanitarian staff (about 1,000 are foreign) to work in the Darfur area assisting IDPs. It has also allowed in 7,200 African Union troops and police to monitor the cease-fire between the government and the rebels and provide a modicum of protection to IDPs. In 2006, Sudan signed the Darfur Peace Agreement that conforms with international humanitarian and human rights standards. Indeed, the DPA gives a special protection role to African Union forces, which are supposed to create buffer zones around IDP camps and also accompany displaced persons to areas of return or resettlement and help create safety in such areas. Indeed, the agreement provides that the Sudanese government “with the assistance of the African Union and the international community shall assure proper protection and dignified treatment of displaced persons during the process of voluntary return and reintegration or voluntary resettlement at another place of their choice.” The DPA also provides for the creation of a Darfur Rehabilitation and Resettlement Commission to consult with IDPs and returning refugees and ensure that their rights and needs are met.

But the Darfur Peace Agreement like Sudan’s national IDP policy on IDPs is not in force. When in fact Darfurians have tried to return from IDP camps, or even just farm their lands, some succeed but there also have been reports of killings and beatings. Moreover, fear exists that the government will suddenly force IDPs back to their home areas without providing protection or sustainability as called for in the DPA. There also is fear that the government might try to take some of the land of the African tribes in order to change the demography of Darfur.

Over the past year, the government has been seriously obstructing humanitarian workers in Darfur and has thwarted the African Union forces, which are the only troops on the ground trying to protect IDPs. The government of Sudan has interfered with AU patrols, limited their flight time, barred them from staying over in the camps, delayed delivery of equipment to them, and even stole their helicopter fuel. During 2004 and a good portion of 2005, despite a weak protection mandate and insufficient troops, the AU did provide some security to IDPs in Darfur. Their patrols often deterred violence, protected IDP women searching outside the camps for firewood so they didn’t get raped, and ensured that relief convoys arrived without incident. AU police patrols inside camps in some cases led to violations being reported and acted upon.

Today, however, due to the deteriorating violence — from the security forces and Janjaweed, from rebel groups fighting amongst themselves and from general banditry — the AU has curtailed its patrols and halted even the minimal protection it offered earlier. It should be mentioned as well that 11 AU soldiers have been killed. Although in early 2006 the AU acknowledged its weakness and requested to be replaced by a UN force, Sudan has refused international troops, as requested by the Security Council last August. As a result, IDPs are living in a country whose government fails to provide security, and they have little else than to fall back on local authorities and a justice system that does not work effectively for them. The UN has documented that in cases of sexual violence, police stations often refuse to register and investigate complaints or when they do, rarely bring perpetrators in the military or police to justice. This notwithstanding a National Action Plan to End Violence against Women in Darfur.

The government has created at least five judicial and quasi-judicial bodies to establish accountability for crimes in Darfur but the UN reports few if any results. Effective legal and political structures that could help IDPs and other civilians do not really exist. As for the AU, it clearly needs more troops, logistical support and a stronger protection mandate to be effective. Even so, newly displaced IDPs in their desperation continue to build shelters near AU compounds in the hope that some security can be provided. Unfortunately, a political solution between the government, the rebels and the people of Darfur is not near achievement. One of the provisions in the DPA, signed by the government and one of the rebel groups, which IDPs would like to amend is the amount of compensation provided for damages and losses. Considering that there are more than 2 million IDPs and 300,000 refugees, many of whose homes were burned down, their land torched, their wells poisoned and family members killed, raped or injured, the $30 million total offered by the government for these people as well as other war-affected has been estimated by Refugees International to be the equivalent of $7.89 per person. The government has publicly announced that it will increase the amount although negotiations have not moved forward. Other provisions that Darfurians would like to strengthen have to do with the disarming of the Janjaweed and political power sharing with the government. Reopening and amending the agreement is one of the most important ways out of the current impasse. So too is the deployment of an AU-international force to monitor the process. International political pressure is needed but unfortunately the Security Council is divided on the extent to which pressure should be exerted on Sudan. I regret having to end gloomily but as we enter the 21st century, only fledging international structures can be said to exist for ensuring protection for people inside their own countries in line with the Guiding Principles. I therefore challenge this generation to take us forward in dealing with Darfur-like situations.