The Human Rights of Internally Displaced Persons in Sudan
by Curtis Doebbler Copyright 1999
1. THE HISTORY AND PROBLEMS OF IDPS
The problem of internally displaced persons is not unique to Sudan. There are large numbers of internally displaced persons in at least thirty countries around the world. Sometimes they are joined by refugees who have fled from their own country-as in Sudan where there are Ethiopian, Eritrean, Ugandan and other refugees. Neither is the problem of internally displaced persons a new problem. Indeed, internally displaced person have existed since states have existed. Nevertheless, it is just recently that internally displaced persons have been recognised as needing special protection above and beyond other citizens of a country. The best reflection of the special protections they need are the Guiding Principles on Internal Displacement that have been drafted by Dr. Francis Mading Deng, a Sudanese and the United Nations Secretary-General's Special Representative for Internally Displaced Persons. Dr. Deng has taken the principles of existing international human rights law and restate them with special reference to internally displaced people, similar to what has been done with refugees, women, migrant workers and children.
The Guiding Principles identify many human rights that internally displaced persons have under existing international law and provide a few new ones. Among the rights included are the rights to respect and dignity of person, life, food, health, recognition before the law, property, education, religion, thought, conscience, association, assembly and some rights that are protected under international humanitarian law. In addition to these rights, which are already protected under existing international instruments, the Guiding Principles include the "right to be protected against being arbitrarily displaced" from one's home or place of habitual residence (Principle 6). Principle 7 goes further by requiring the government to take measures to ensure that displacement is the only alternative and that it is done in a manner that has the least negative impact on the rights of the internally displaced persons. And Principle 9 calls forth "a particular obligation to protect against the displacement of indigenous peoples, minorities, peasants, pastoralists and other groups with a special dependency on and attachment to their lands."
Although the Guiding Principles have receive many complimentary reviews, they have also been criticised. The common complaints have been that they do not provide a mechanism for implementation-which relief workers and human rights monitors in the field claim is the greatest problem-and that they may even distract from the already legally bind international instruments that exist and that offer protection to internally displaced persons. While the Guiding Principles may not have been intended to create mechanisms of implementation, it is certainly true that they have repeated many existing human rights. It is relevant to review these rights.
Wherever one looks, some basic human rights reoccur and are particularly relevant to internally displaced persons. These are rights those that have been agreed to by almost all the countries of the world for more than fifty years. They include the rights to housing, food, clean water, clothing, children's education, adequate health care and the right to freedom of residence and movement, and perhaps of central importance to the achievement of all these rights the right to participate in the governance of one's country. These are all legal rights in Sudan. These are all human rights. These are all rights that should be respected. These are all legal and human rights of internally displaced persons in Sudan, just as they are of all Sudanese.
The issue of the human rights of internally displaced persons is especially relevant to individuals in Sudan because Sudan has the largest number of internally displaced persons in the world in recent times. There are almost twice as many internally displaced persons in Sudan as in the country with the next largest population of internally displaced persons. And it is politically relevant to note that Sudan has more than eight times as many internally displaced persons as has been caused by the conflict in Kosovo and the Sudanese have been displaced between fifteen and forty times longer than the Kosovo internally displaced persons.
Country: estimated IDPs at height of conflict 1. Sudan: 4.5 million 2. Mozambique*: 3.5 million 3. Afghanistan*: 2 million 4. Former Yugoslavia*: 1.5 million 5. Somalia: 1 million 6. Azerbaijan*: 700,000 7. Sri Lanka*: 600,000 8. Rwanda*: 500,000 8. Congo: 500,000 8. Tajikistan*: 500,000 8. El Salvador*: 500,000 12. Iraq*: 400,000-500,000
The above figures taken from different sources including the World Refugee Survey, IDP Global Survey 1998,UNHCR, UN & other sources.
*denotes that larger percentages of IDPs have returned to homes/residence.
Among the countries represented in the chart Sudan toddy has the largest current population of IDPs by almost four times, as in most other countries the internally displaced persons have now been able to return home or have become refugees thus entitling them to the protection of another state. In Khartoum state internally displaced persons form almost half the population of the state. This group of internally displaced Sudanese alone constitutes the largest single population of displaced person in the world-and they are only half of the total internally displaced persons in Sudan. Which ever one views the number of displaced persons in Sudan they constitute a lot of votes in a free and democratic election if you are a politician and their problems constitute a lot of work if you are a lawyer or human rights defender.
1.2 Focus on Sudan
The problems facing internally displaced persons is among the biggest human rights challenge facing the government of Sudan at the end of the 20th century. At the same time it is not a new problem. Since independence, Sudan has been plagued by internal conflict, natural disasters and government policies that have led to the displacement of millions of Sudanese. Equally, the situation of internally displaced persons in Sudan is not a problem that has gone unnoticed. It has been reported by leading academics, human rights groups, groups created to evaluate the humanitarian conditions in Sudan, the United Nations, and even the current government of Sudan. The United Nations Secretary-General's Representative on the Internally Displaced Persons has repeatedly indicated the severity of the problem both in his official reports and his academic writing. There can thus be no doubt that the problem is known and has been known for several years, but there is less agreement on what can be done about it.
The types of problems facing the displaced community in Sudan, especially the urban displaced in and around Khartoum, fall into three broad categories. The first are daily problems concerning education, health, utilities and public services, and transportation and communications. Second, are problems concerning demolitions, forced evictions or relocations. And third, are problems that form the root cause of displacement in the first instance. Each of these will be discussed in more detail below before looking at the applicable Sudanese and international law and suggesting practical activities towards a solution based on the law.
1.2.1 Daily Problems
Most displaced communities lack the resources to build schools and to adequately equip them. At the same time the federal and state governments do not provide adequate schools and teachers. Although in some areas the government has made an effort to provide schools, they are usually Islamic in nature and inadequately staffed (both in number and as concerns the quality of the teachers). As a result many displaced children go without adequate schooling or find themselves in the areas where there is a non-governmental organisation (NGO), usually a religious organisation, provide education without obligation. While NGOs finance or provide significant opportunities for education, these are not without problems. Many of these schools are run by Dawa Islamya, an Islamic organisation, that provides strongly religiously biased education and often refuses to accept non-Muslims who are not willing to convert. At the same time, schools run by Christian organisations face constant obstacles to their operation. In 1998, a local school in "Mayo City" that was being funded by an international NGO was closed, the teachers were fired and new teachers with a stronger Islamic orientation were hired. When the NGO refused to continue to finance the school because of the unilateral action that was taken without their knowledge or consent, the school closed.
The health sector is faced by the same types of problems. There are few adequately trained health workers in the displaced areas and functioning health clinics are usually dependent on the funds and supplies of NGOs. Where NGOs are accepting responsibility for the government's duty to provide health care, there are few signs that this responsibility is being transferred to the government or that the health centres are becoming increasing self-sufficient. In some communities, there are allegations of corruption and favouritism in the dispensing of health services. As a result, the overwhelming majority of the displaced communities in and around Khartoum are without minimally adequate health care. This situation is exacerbated by the unsanitary conditions in which most displaced persons live, the lack of adequate health education and the resulting practices, that significantly increase the opportunities for the contacting and spread of disease.
Health and education also suffer because of the lack of public utilities and services to most areas where internally displaced person are living. Although most rural areas in Sudan are not well-serviced, the situation is particularly striking in and around Khartoum because these services are available to most of the population and they could be extended to the displaced populations with reasonable investment by the government. In some areas-
The 'planned' IDP camps are areas where the government has provided sanitation services, water and electricity. In most areas, however, these services are not provided.
Equally problematic and complicating the other problems is the lack of adequate communications and transportation. Most displaced persons do not have access to a telephone and are forced to walk long distances and pay exorbitant prices to use a telephone. Many areas also lack adequate transportation because the transportation available to them is too expensive for displaced persons living on wages that already are insufficient for their daily survival. The government's policy of locating displaced persons outside the city centre and continuously re-locating them further away from the city centre has made it difficult for many to find adequate work. In turn, this has multiplied the lack of education and adequate health care and provided for a situation that can not be called an adequate or even minimum standard of living.
The government of Sudan has contributed to these problems cutting by ten percent the Budget of every government ministry in the 1999 annual national budget-with the exception of the Ministries of Interior and Defence which received unspecified increases.
1.2.2 Demolitions
The second category of problems facing displaced persons can be referred to as demolitions. Although there is evidence to suggest that the government's policy of demolishing areas housing displaced persons may be linked to its policy of not providing adequate health care, education, utilities and other essential services to these persons, this link needs further investigation.
No one inside or outside the government appears to know exactly why the demolition of IDP and squatter areas takes places. The distinction between these two types of areas will be explained below, here they can be considered together as the government's relevant international human rights obligations extend to both types of areas equally. The responsible government authorities suggest that they destroying areas because they need to re-plan and develop them. This is, however, controverted by the fact that some areas are destroyed without any further action being taken for years, or where road or building construction takes place, it does not appear essential or beneficial to the local community. The Khartoum State Minister of Housing and Engineering Affairs, has produced a web of elaborate development and relocation plans, decrees and orders to justify the government's action. Yet observers claim that while "[m]ost if not all of the actions taken in pursuit of the programme of relocation [and development] have been within the law-it is the law itself that is in contradiction with human rights."
The most critical observers believe that the government has a conscious policy of attempting to 'cleanse' Khartoum state of all displaced persons or at least those who do not possess the qualities-often but not always religious-that the government desires. To justify this claim they point to the statements and actions of the governments of General Abd el-Rahman Swar al Daha, Sadiq el Mahdi and the current regime. For example, Africa Rights states in its February 1995 report on displacement in Sudan that: [t]he call for the demolition of the squatters' settlements started in 1985, and by April 1987, the government of Sadiq al Mahdi was so concerned that it began to envisage far-reaching measures to get squatters and the displaced out of the capital, enacting laws to legalise action against them. The current government has taken this a stage further, passing more draconian legislation.
Whatever the conscious policy of the government, the result is the same for the displaced persons. Thus, the displaced communities in and around Khartoum live under constant fear that they will be given short notice before bulldozers arrive to demolish their homes and that they will be homeless without adequate alternative accommodations and without any action being taken to re-house them. The process of demolition itself raises questions about the government's good faith in upholding its international obligations towards the displaced persons. For example, the periods of notice have varied between several months and several hours, the demolitions crews often 'charge' the occupants a significant sum of money if they do not destroy their house themselves and it has to be bulldozed, the demolitions are often accompanied by violent and abusive language used by the demolition crews, and no alternative housing is often provided the displaced persons.
To date the government's response, to which the United Nations has shown much sympathy, has been that it does not have enough money to provide alternative housing. At the same time, the government claims that the economy grew by 5% and that it spends more than fifty percent of its budget fighting a civil war that has now been waged for more than ten years against the current government because of its undemocratic nature. The 1999 budget reflected this priority by cutting the funding to all government ministries, except the ministries of Interior and Defence whose budgets increased by unspecified amounts. Although these responses are inadequate defences to violations of international law, they have served as insulation from international criticism because they have split the international community as concerns what can and should be done. The United Nations has, for example concentrated is efforts on assisting the government with elaborate development schemes, while some members of the diplomatic community have concentrated on criticising the government for its violations of human rights. Others, such as NGOs have merely concentrated on dealing with the effects of government action violating the human rights of internally displaced person with little or at least ineffectual advocacy of these rights in the event of demolitions.
1.2.3 The Causes of Displacement
Finally, the third category of problems facing the displaced, are the causes of displacement. These causes range from the war and famine to economic migration. While there can be little doubt that providing adequate protection to internally displaced persons requires combating the root causes of their displacement, no international organisation or country has been willing to devote sufficient resources to resolving these problems outside their own country.
Action to address the cause of displacement requires co-operation between countries, international organisations and non-governmental organisations. It cannot be confined to a single government or organisation. The best example of failure to devote adequate resources to addressing a cause of displacement is the ongoing war in the Sudan. The failure of the government of Sudan, civil society in Sudan, the armed fractions of Sudanese fighting the government, and the international community-governments and international organisations-has been strikingly apparent. Conflict resolution in Sudan has become the domain of a few elite's who have little influence on the real decision-makers who are waging the war or who support war and with whom the general public has little contact. Both the government and the opposition forces negotiate largely in secrecy and according to agenda's that are not supported by the majority of their constituents. The sparse information that is circulated by each of the parties about the negotiations is often conflicting. Furthermore, journalists and other more impartial observers are not allow to attend and report on the process without restrictions. Neither the United Nations nor the international community have been willing to push for greater transparency in the process, instead they have preferred to leave the parties to years of unfruitful negotiations while civilians continue to die from the armed conflict. Both sides-the government of Sudan and the rebels-apparently believe that secrecy serves their ends. No one asks persons displaced by the conflict their views.
Equally, other causes of displacement, such as lack of economic development, are not on the national or international agenda because to raise them would mean criticising government policies and contributing substantial resources to assisting the vulnerable persons in Sudan. As is the case concerning the resolution of the armed conflict, few voices of the displaced can be heard. Instead, government policy makers claim that there is sufficient economic development in Sudan and continue to cut education, health and social development spending in favour of increasing the military budget. In response, the international community argues that because the government's action indicates a clear disregard for the human rights of it citizens, it will not promote this attitude by providing much needed development assistance.
As a result the vicious cycle of war, under-development and neglect by the international community, has become a permanent feature of the lives of more than four million internally displaced person in Sudan. These are problems that will have to be addressed by the government of Sudan and the international community in a more responsible manner. If they are not, no lasting solution is possible.
Although the root causes of displacement are perhaps the largest long-term problem facing internally displaced persons in Sudan, they are not the focus of this contribution. The reader is thus directed to other writers who deal with these problems in greater detail.
1.2.4 Conclusions about the Situation of IDPs in Sudan
We must not forget who these persons are who are internally displaced. First, we must note that internally displaced persons are Sudanese, just like most of us. Second, that they have not left their homes voluntarily, but have been forced from their home by war, famine or the necessity of survival. Because they have been forced to flee and relocate themselves internally displaced persons are living in an environment that is alien to them, with which they are not familiar, in which they have few long-time friends or an extended family. All these vulnerabilities relate to things that most of us take for granted. More importantly our familiarity with our surroundings and our enjoyment of the things just mentioned are elements of one's very survival. In other words, they are things which we all need to survive. We all know how hard it is currently to survive with the help of our friends, family and long time acquaintances, just stop and think to yourself how you could survive if all these things were stripped away from you.
The problem of securing housing, food, clean water, clothes, children's education, adequate health care and the right to a stable place to live are especially acute problems for internally displaced persons. They are also the problems that the government of Sudan must resolve. It is the responsibility of the government of Sudan to do so. These matters are the problem of the government for several reasons. First, because every government exists to provide for its citizens. Second, these are matters of Sudanese law. The new Constitution of Sudan must be interpreted to require the government to protect all the basic rights that have been already enumerated. Third, even if the Constitution does not explicitly protect a particular right it must be interpreted to protect every one of the above stated human rights because these are all protected by international human rights instruments which the government of Sudan had ratified and the government of Sudan is thus legally bound to respect and implement the rights. In other words, international human rights law provides legal rights for individuals in Sudan and when Sudan violates the human rights of its people each and every one of us-whether we represent a government, and international organisation or a non-governmental organisation-are entitled by legal right to take steps to ensure respect for the human rights of internally displaced persons in Sudan.
2. THE LEGAL STATUS OF IDPS UNDER SUDANESE AND INTERNATIONAL LAW
2.1 National Law
In principle, the legal status of internally displaced persons under Sudanese law is the same as that of any other Sudanese national. In practice this is not true. Because of the vulnerable circumstances in which internally displaced persons find themselves, the laws often have a disproportionately adverse effect on displaced persons. The 'disproportionate adverse affect' of a law is an element of discrimination that well-known to international human rights lawyers. Disproportionate affect, however, appears to be a concept alien to Sudanese lawyers who have been educated not to question the laws duly passed by their legislature. This is the first question that needs to be addressed when discussing the legal status of internally displaced persons under Sudanese law. Thus, it is valuable to start by charting a hierarchy of Sudanese law.
This can be done at two levels. First, there is theoretical level and second there is the practical level. Both levels are important because Sudanese law itself does not provide a clear indication of the proper hierarchy. According to the Constitution and judicial practice it is clear that laws governing internally displaced persons may be made by local authorities, state authorities and national authorities, but which laws prevail over each other is not clear. One view is that according to the Constitution, the individual rights in the Constitution may be deemed superior to other laws because the Constitutional Court can ensure them (artt. 34 and 105). This view is also in accordance with the practice of most states that have written constitution. The consequence would be that the individual rights in the Constitution are superior to national, state and local laws. If this is true, a hierarchy of law in Sudan should place international human rights law and theindividual rights as protected by the Constitution at the top of the order.
Unfortunately, to date the Sudanese judiciary has not seen fit to respect such an hierarchy of law. The most striking example has been the Case of Abdelrahman Nugdallah, et al, 7/98 of 13 August 1998, in which the seven judge Constitutional Division of the High Court of Sudan19 decided that the National Security Act of 1994 takes precedence over the Constitution of 1998. The Court argued that while the right to be free from arbitrary arrest and detention is enshrined in article 30 of the Constitution, the fact that it is expressly made subject to law allows them to apply the National Security Act as the law to which the constitutional right is subject. This construction effectively annulled the human rights in the Constitution and established an unfortunate precedent. There is, however, some hope that the new established Constitutional Court and the new Chief Justice of the High Court will ensure that the Constitution is given greater respect and that the hierarchy above prevails. If this is not the case then the arbitrariness that characterized the Case of Abdelrahman Nugdallah threatens to undermine the Rule of Law.
Alternatively, there is the practice. The best indication of the practice is the already cited Case of Abdelrahman Nugdallah, but the Constitution also states that laws that have been duly passed by the National Assembly and signed by the President cannot be questioned by any other authority (art. 96). If this is the case, then the hierarchy of law in Sudan may look quite different and the relationship between ministerial decrees and the Constitution may be very unclear. It could be, for example, that all power lies with the discretion of the executive.
As a result of the failure of the Sudanese courts to adequately ensure the individual rights in the constitution, the laws of Sudan continue to have disproportionately adverse effect on internally displaced persons. The provisions of the Criminal Act 1991 that are especially relevant in this regard include the prohibition of drinking (art. 78) and "dealing in" alcohol (art. 79); the law prohibiting indecent and immoral acts (art. 152); the law prohibiting prostitution (art. 154) and adultery (art. 145-146). As the brewing, drinking and selling of alcohol is often a part of the culture and social life of non-Muslim displaced persons from the south, but not of northerners who are predominately Muslim, the displaced are more frequently affected by the law. Similarly as indigenous marriages are not always recognised by the authorities because they do not follow the procedures prescribed by law and instead adhere to customary practices and as a result, couples are charged with adultery and indecent behaviour or the women with prostitution, although they are in reality joined in a family bond as wife and husband.
The planning and land laws also disproportionately adversely affect displaced persons. Foremost among these laws is Decree 941 from 20 May 1990 that states in paragraph 2(d) that the government "shall immediately destroy" temporary housing that has been built on land not owned by the people inhabiting it. This decree is supported by article 7 of the Civil Transaction Act 1983 that states that all matters of land registration are to be dealt with by the government through 'special laws'.
An amendment of 10 October 1990 to the Civil Transaction Act 1983 states in article 1 that all non-registered land is government land and then goes on to provide that no legal action may be taken concerning government land. As a result even long-term displaced persons who should have otherwise gained title to land by the common land means of prescription-the acquisition of land by peaceful and unchallenged occupation of the land for at least ten years-are henceforth disenfranchised without a means of obtaining compensation. Even before the 1990 amendment, the Unregistered Land Act 1970 had decreed that all unregistered land was henceforth deemed to be government land and could not be registered by private owners, although at the same time the Land Settlement and Registration Act 1925 continues to provide that ownership must be proven by registration. The consequence is that the government is the discretionary owner of all land and that persons who inhabited land after 1970 will not be able to acquire ownership and/or prove their ownership of the land. Attempts to prove that a right to use the land exists will also be unsuccessful against the government after the 1970 Act because in article 7 it prohibits any action concerning government land.
Many of the above changes in the law were attempts to mitigate the value of land in causing tribal conflict. Nevertheless, although these laws may on their face appear neutral, they have given rise to current government policies that have a greatly disproportionately adverse effect on internally displaced persons in Sudan. Much of the disproportionate affect of the law is due to the selective application of the law.
Just as some provisions of national law can be used to violate the rights of internally displaced persons, many more provisions can be used to sustain those rights. The constitution provides for fifteen articles protecting individual rights. These rights include: -the right to life (art. 20), -the prohibition of torture and humiliation (art. 20), -the right to be free from slavery (art. 20), -the right to equality before the law (art. 21), -the right to nationality (art. 22), -the right to freedom of movement and residence (art. 23), -the right to freedom of conscience and religion (art. 24), -the right to thought and expression (art. 25), -the right to association and organisation (art. 26), -the right to enjoy one's culture, language and religion (art. 27), -the right to earnings and property, including compensation for a taking of property (art. 28), -the right to privacy and inviolability of communications (art. 29), -the prohibition of arbitrary detention (art. 30), -the right to bring a civil suit or to have access to a court in a criminal or civil action (art. 31), -the right to be assumed innocent until proven guilt in a criminal case (art. 32), -the right to a fair trial (art. 32), -the prohibition of the application of ex post facto laws (art. 32), -the limitation of the application of the death penalty (art. 33), and -the right to raise a case of violations of one's rights before the Constitutional Court after having exhausted all executive and administrative remedies (art. 34).
Although some of these rights are vague and therefore open to restrictive interpretation, and although several rights that Sudan is obliged to protect under international law are not included in Constitution, there are still many rights that could be used to protect the human dignity of internally displaced persons to a much greater extent than is currently the case. Both internally displaced persons and their legal representatives need to use these rights in their petitions to executive and administrative authorities and ultimately to the courts. To date, there have been few cases brought that try to use these rights to protect internally displaced persons. Most lawyers in Khartoum are not sympathetic to the plight of internally displaced persons, and some either do not know or trust the laws. As a consequence the legal means that exist are rarely used.
Another relevant instrument of Sudanese law is Decree 941, which is the above-mentioned authority for the government's policy of demolishing the houses of internally displaced persons. This decree also provides that demolitions should only take place after the displaced persons have been given alternative accommodations that have adequate services and after appropriate notice has been given to the persons whose houses are being destroyed so as to allow them to move to their new residence. Although it appears that these rights are at best irregularly respected, it is more striking that may internally displaced persons do not even know of the existence of these rights or do not invoke them against the government. Despite the numerous relocations or forced evictions that took place in 1998 and 1999, almost no Sudanese lawyer raised these rights before the Sudanese courts.
The above instruments are valuable citations that should be included in any petition to the executive and administrative authorities on behalf of internally displaced persons. The first recipient of such a petition will usually be the popular or local council. Although it is wise to approach this authority here a good relationship exists, it is not necessary under the law. According to the article 20 of the Civil Transaction Act of 1983, an individual exhausts his or her avenues of executive and administrative petition by petitioning the Wali-the governor of his or her state. Thus, it is possible merely to write to the Wali of one's state and then to take legal action for a judicial review of the decision or the lack of a decision. Some reasons why this procedure might not be advisable, is that lower ranking state or local officials might have more concern for local problems and thus be able to solve them without enlisting the time and expense of a lawyer. It is nevertheless important to note that a petition directly to Wali is both ultimately, and most probably, the only means of petition required by law.
Having exhausted executive and administrative procedures, it is relevant to consider what legal procedures are available for protecting the rights of the displaced. The first caveat that should be noted about these procedures, however, is that they undoubtedly require the involvement of a lawyer to have the slightest chance of success. In this regard, it should also be noted that unless the Sudanese courts change their posture and allow the rule of law to prevail most of these suggestions will lead to futile legal action despite the involvement of the best lawyers and most watertight legal arguments. Nevertheless, even establishing a clear and consistent pattern of 'futile action' has its legal advantages for the protection of international human rights, as will be shown below in the section on international human rights law. With these proviso's in mind one can identify at least four procedural routes to instituting a legal action on behalf of internally displaced persons whose rights have been violated.
The first is to raise a criminal case. Where an individual has had her or his property destroyed or she or he is ill-treated a criminal case may be opened against the person committing these actions. According to provisions of the Criminal Procedure Act 1991, anyone may initiate a criminal complaint by bringing the facts of a criminal offence to the attention of the Department of the Public Prosecutor in the Ministry of Justice or his or her local representative, or by bringing such information to the attention of the police (art. 34). An example, might be a case of a violation of article 166 of the Criminal Act 1991 that prohibits violations of an individuals' right to privacy. The right to bring information to the attention of the authorities should not, however, be confused with the right of 'private prosecution' that exists, for example, under English law. Under Sudanese law, while anyone may provide information, only the prosecutor's office or the police may 'open' a criminal case (art. 33). The decision to open a case is one that is very much within the unfettered discretion of the relevant official. There are even more restrictions concerning criminal actions against government employees. For example, article 24 of the National Security Act 1994, as amended in 1996, prohibits action against security personnel unless the consent of the Director of the concerned security branch has agreed to lift the immunity of the security officer. It is hard to find ono case where such a lifting of immunity has been granted, but there are many where it has been denied. As a result, a criminal action will usually not be of much assistance to most internally displaced persons.
Second, one can institute a civil suit against the government in accordance with article 33 of the Civil Procedure Act 1983. Although the government cannot avoid a suit, the plaintiff must inform the Attorney-General, who is also the Minister of Justice, of his or her intentions and then wait two months for the Attorney-General to reach a friendly settlement. If no settlement is reached than a suit may be instituted, for example, for damages for malicious destruction of property or injury to person.
A third, means of bringing an action is under article 4 of the Constitutional and Administrative Law Act 1996. According to this article anyone may institute a suit against the government when his or her constitutional rights have been violated or will be violated. This article may be invoked by a person facing an imminent demolition or by a person who has been the victim of such an act. Among the articles in the constitution that might be relevant to such an action are the right to a fair procedure in determination of one's rights (art. 31), the right to choose one's residence (art. 23), the right to humane treatment (art. 20) and the right to just compensation for a taking of property (art. 28). On the basis of these articles as action directly to the Constitutional Division of the High Court is possible. Such an action, however, requires that the petitioner has exhausted all executive and administrative remedies.
A fourth procedure, also based on a constitutional right is the new procedure proscribed under article 34 (and 105) of the Constitution and the Constitution Court Act 1998. It is almost identical in nature and its requirements as that in article 4 of the Constitutional and Administrative Law Act 1996, except that the petition is made to the Constitutional Court that was officially formed on 1 January 1999, but which had not yet begun functioning as of the end of February 1999.
In principle, one should be able to argue the relevance of international human rights law in any of the procedures above, with the exception of the criminal procedure. In practice, although such arguments will probably rejected based on the precedent set in the Case of Abdelrahaman Nugdallah, such arguments are vital at least for raising a case before the African Commission on Human and Peoples' Rights as they fulfil the requirement of the exhaustion of domestic remedies. 2.2 International Law
Internally displaced person (IDP) is a term used to describe an individual who has been forced to relocate within his or her own country due to war, violence, natural disaster, government action or government toleration of action contrary to her or his human rights. In the legal literature one will find many different definitions of IDPs. Even within the United Nations there are varying definitions. What is clear is that the designation of an individual or group of individuals as IDPs is not a derogatory designation, nor does it automatically point the finger at any government or group of people as the violators of human rights. In fact, it is a designation of vulnerability, and thus a recognition of the necessity of assisting these people.
Although the government of Sudan has sometimes been hesitant to recognise individuals as IDPs within Sudan, the international community has recognised, by overwhelming consensus, that Sudan has the largest population of IDPs in the world, an estimated 4 million, 2 million of whom are in Khartoum state. Most of these people are individuals displaced by the fighting in different parts of Sudan, some are displaced by the several famines that have hit the country and a minority are displaced for economic or social or other reasons.
There is no specific international convention protecting IDPs as there is for children, women and refugees. Instead, general international human rights law applies to IDPs in Sudan because these persons are Sudanese citizens. Some of the most important provisions of this law emanate from the African Charter of Human and Peoples' Rights that Sudan has ratified. This treaty also allows Sudanese to bring claims to the African Commission on Human and Peoples' Rights in Banjul, the Gambia.
The government of Sudan's actions raise serious questions about the violation of numerous international legal obligations that the government has undertaken to respect and which are principles and purposes of the United Nations. For example, the right to life is violated by the displacement of people into situations without the basic necessities of life (art. 2 of the International Covenant of Civil and Political Rights (ICCPR) and art. 4 of the African Charter of Human and Peoples' Rights (AHPR)) and the right to choose one's place of residence (art. 12(1) ICCPR and art. 12(1) ACHPR). Such displacements are also, undoubtedly, cruel, inhuman, and degrading treatment (art. 7 ICCPR and 4 ACHPR) and often violate the right to property because they result in the damage or destruction of personal property without adequate compensation to the persons with an interest in that property (art. 14 ACHPR (this right is also expressly protect under Sudanese law in article 28(1) of the Constitution). In addition, the conditions into which families are thrust by the action attributable to the government of Sudan also deprives these families of numerous rights that are protected by the International Covenant of Economic, Social and Cultural Rights, including a minimum standard of living (art. 11), the right to adequate health care (art. 12), the right to educational opportunities (artt. 13 and 14) and the right to adequate housing (art. 11). All these rights will be considered by the respective treaty bodies when they consider the state reports of the government of Sudan, but only the African Commission on Human and Peoples' Rights accepts communication from individuals concerning a violation of human rights. Such communications must be made in accordance with articles 55 through 59 of the ACHPR. Article 56 requires that domestic remedies be exhausted, not available, useless, or that government has been aware of the mass violations and has acted insufficiently to end them.
In addition to these legally binding articles of international law, there are a set of 'Guiding Principles' that have been proffered by Dr. Francis Deng, the UN Secretary-General's Special Representative on IDPs, and adopted by the United Nations in 1998. The 'Guiding Principles' echo existing international human rights law with special reference to IDPs, but they are not themselves binding legal obligations. The government of Sudan, although agreeing to the 'Guiding Principles' in the UN Commission on Human Rights does not abide by them. All the violations of international law described above are contrary to the 'Guiding Principles'.
Finally, a government policy that is directed against an identifiable population and aimed at destroying this group of people provides circumstantial evidence of the crime of genocide.
3. WHO CAN PROTECT IDPS RIGHTS AND HOW?
3.1 The Government of Sudan
The central responsibility for human rights rests upon the government of Sudan.It is the government of Sudan that has voluntarily entered into and remains a party to international human rights treaties creating legal obligations for itself. Although the government can withdraw from a treaty at anytime, while it remains party to a treaty it must respect the obligations it has according to that treaty. Thus, whenever there is a violation of human rights in Sudan it is the government that is primarily responsible.
It is also important to remember that the government's responsibility is incurred by whoever acts on behalf of the government. This is to say, that international attributes to a government the acts of any of its agents: ministers, police, soldiers, or any other government employee or representative. All that is necessary to prove is that the individual involved acted with apparent authority. Furthermore, the government may be held responsible for tolerating actions even if it had nothing to do with the action, except that it knew or should have known about it and did not stop it. Obviously, if the government is expressly informed about a violation of human rights and does not do everything within its power to prevent the violation, it will be responsible for the violation.
To fulfill this responsibility the government of Sudan has created some government bodies to address complaints. Some of these bodies are closely linked to the government, while other are-at least in theory-independent.One of the government bodies is the Advisory Council on Human Rights (ACHR) which is chaired by the Minister of Justice and under the daily supervision of the Rapporteur and Solicitor General for Public Law. This often may receive complaints concerning human rights in Sudan from any individual. Often the ACHR will try to reach an amicable settlement whereby the complaint is resolved. Other times, the ACHR will be constraint by the government's policy or by the law and will not be able to assist.In any event, the ACHR is always a useful body to consider approaching together with other bodies, particularly international human rights bodies.
There is also a division of the ministry of Justice that is responsible for women's human rights.This as started in 1999 and appears much less active then the ACHR, but is nevertheless a body that may assist in cases specifically concerning women's rights.Like the ACHR this body is often constraint by policy, especially the government's avowed policy of promoting only the limited role for women in society that is prescribed by Islamic beliefs as the government interprets them to be. There is also a Women's Union, but again this a government body that was established after the well-established women's union was forcibly disbanded in the early 1990's by the government.For children, there is the National Council of Child Welfare (NCCW), that cooperates particular with UNICEF and NGOs, such as Radda Barna, in the area of children rights.Between at least 1997 and 1999 this body took few if any steps on its own to promote the protection of children's rights and often contributed to the lack of children's rights. For example, as of mid-1999, Sudan's report to the Committee on the Rights of the Child has been not been forthcoming even though it was due in September 1997. More disturbingly, the draft of the report that was made public in late 1997 did not include input by independent NGOs who were expressly excluded from the drafting process and stated in every area of children's rights that there were no problems but lack of international funding.Such a statement was made a mockery out of the NCCW because the desperate conditions of children in Sudan had been well-publicized by the NGOs and IGOs working in Sudan and it-if it is the tone of the final report-could prevent the Committee on the Rights of the Child from suggesting specific means of cooperation for improving the situation of children when it comments on the report.
The bodies that are theoretically independent from the government are known as judiciary.All the courts should be independent form the government. This is a fundamental feature of any government that respects the rule of law. The courts do not include administrative bodies established by a particular executive organ. For example, the Khartoum State Ministry of Housing and Engineering has created 'administrative courts' to decide upon disputes over land claims.These 'courts' are merely an extension of the concerned ministry itself, thus they are not independent. Local courts, customary courts, the appellate courts and all other high courts, including the Supreme Court and the Constitutional Court are theoretically independent.Unfortunately, in practice these courts either explicitly or implicitly resort to advice from government or powerful political officials and will follow this advice even if it contradicts their better legal judgment.In other words, there are serious problems of judicial independence in Sudan. If these are overcome, then the judiciary should become at least an independent government body with the ability to uphold human rights.
The fact that the government has the primary responsibility for ensuring respect for human rights does not mean that there are no other relevant actors.Indeed, other actors have a rights and often a responsibility to continuous encourage the government towards respect for human rights and to criticize it when ever it does not respect human rights.
3.2 Sudanese at large
Action by Sudanese nationals against government decisions is unusual as it may lead to the arrest or have worse consequences for those taking such action. In each of the above described cases the Mahlia's (local officials), who are paid by the government, took no noticeable or effective action on behalf of the people they were meant to represent. At the beginning of January 1999, several private law offices did, however, obtain power of representation for individuals in the 'Mayo City', 'Angola' and 'Carton Kassala' areas and a letter was sent Dr.Bannaga seeking an immediate halt to forced displacements, compensation for individual whose property had been destroyed and a guarantee of adequate housing alternatives. Earlier a detailed report of these incidents was communicated to Francis Deng (the UN Secretary-General's Special Representative for Internally Displaced Persons), Sergio Viera de Mello (UN Emergency Relief Coordinator) and Leonardo Franco (UN Special Rapporteur on the Situation of Human Rights in Sudan) and numerous missions to the United Nations in New York and Geneva. In addition to these political actions several legal actions have been outlined above in the sections on the applicable national and international law. These legal steps are open to all Sudanese and can be taken by any lawyer having received permission to act on behalf of a client.In other words, no written power of attorney is necessary. Despite the accessibility of these actions, their use is extremely infrequent. Greater use of these legal procedures would either improve respect for the rule of law or drive home the inadequacies of the current form of government. As of mid-1999, few law offices have begun legal actions aimed at seeking injunctions against demolitions or to ensure adequate relocation conditions for internally displaced persons threatened with forced eviction.
3.3 The International Community
Although the main responsibility for ensuring the protection of human rights in Sudan lies upon the government of Sudan, every government in the international community has a right to express concern about violations of human rights anywhere in the world and to take lawful action to end such violations. This legal statement was given substantial support by the International Court of Justice in paragraph 33 of its opinion in the Barcelona Traction, Light and Power Case (Belgium v.Spain), I.C.J.Reports 3 (1970) where the court stated that where the rights at stake are essential to the international community as a whole "all States can be held to have a legal interest in their protection; they are obligations erga omnes." Such an interest may not be accompanied by the jurisdiction of a particular fora, but it certainly entails the right of a state to publicly criticize another state, to begin a legal procedure where jurisdiction exists, and to take lawful retorsions against the violating state.Unfortunately, this points only to a right of states, but not to an obligation.
This situation may be mitigated by article 56 of the Charter of the United Nations, which may require states to take minimal steps to ensure the protection of human rights.Article 56, read together with article 55 of the Charter, imposes a general obligation on states to cooperate with each other to achieve social and economic development and to encourage respect for human rights.
The obligation of the all United Nations agencies and bodies, including UNHCU, UNHCR, UNICEF and WFP, is to promote and encourage universal respect for, and observance of, respect for human rights. This obligation is unequivocally established in the Charter of the United Nations in articles 1 and 55. Article 55 makes the obligation of contributing to development and the promotion of human rights explicit for the United Nations. This article echoes the obligation already stated in article 1, paragraph 3 of the Charter, which states that the organization has a specific obligation to "achieve international cooperation ...in promoting and encouraging respect for human rights and for fundamental freedoms without distinction as to race, sex, language, or religion ...". Although this obligation remains somewhat vague, it clearly is a right of the United Nations to take some sort of action to protect human rights. This has been proven by practice where the United Nations has intervened in many situations by complaining about the violations of human rights. The Special Rapporteurs of the Commission on Human Rights are perhaps the best examples when they send individual or joint 'letters of concern' to a government against whom a serious violation of human rights has been alleged.While Sudan has received numerous such communications, it is very rare that Sudan receives any communications concerning the human rights of internally displaced persons and even rarer that the United Nations representatives in Khartoum criticize the government of Sudan when there are serious and widespread violations of human rights. What is clear is that the United Nations can do more to advocate for the protection of internally displaced persons rights. There is no legal bar to such activities. Article 56 requires states to cooperate with the United Nations to this end.
Some United Nations bodies even have more explicit mandates for dealing with the protection of internally displaced persons. For example, UNHCR has already once been mandated to deal with displaced person in Sudan by the Economic and Social Council21 and the General Assembly.22 In addition, the Executive Committee of UNHCR in Conclusion No.75 (1994) and a memorandum by the High Commissioner23 indicate that UNHCR has a role to play in this area.The opinion that UNHCR should be involved in protecting and assisting internally displaced persons in Sudan also appears to be the view of the current Special Rapporteur on the Situation of Human Rights in Sudan, Leonardo Franco, who was formerly UNHCR's Director of Legal Protection when the organisation expressed the view that [t]he protection needs of the displaced population in Sudan are evident. Also evident is the fact that the OLS has not been well positioned to provide them the needed protection, notwithstanding the efforts of ICRC. Apart from the protection problems of the internally displaced, one major event should have triggered UNHCR's legitimate interest for insisting on unhindered access to the conflict area, that is the return of 225,000 Southern Sudanese refugees who UNHCR had been assisting for some time in the Gambella region of Ethiopia until they were forced out by the uncontrollable ethnic violence that erupted in that region in mid-1991. Although this group, which had been under UNHCR's care, was forcibly repatriated and was living in a clearly refugee like situation in the Nasir and Kapoeta areas in the Sobat river basin, UNHCR decided not to get directly involved in providing assistance or protection.24
The publication concludes that "[t]he need to avoid any possible negative reaction from the Sudanese Government was one of the major considerations in deciding against [an] active UNHCR role in Southern Sudan.
The memorandum of the High Commissioner cited above states that UNHCR can become involved in the assistance and protection of internally displaced persons when four conditions are met.First, there must be a specific request for involvement by one of the principal organs of the United Nations. Second, UNHCR's experience and expertise must be relevant.Third, the concerned state should consent.And fourth, UNHCR's limits must remain within its resources. Each of these criteria are relevant to Sudan. First, in 1972 UNHCR did receive an explicit request. Since then repeated requests have been made to the Secretary-General, both directly and through his Special Envoy for Africa and his Special Representative for Internally Displaced Persons, but no further specific request has been forthcoming from a principal organ of the United Nations.Thus, as of mid-1999, the Secretary-General had failed to re-request UNHCR to become involved with even the legal protection or advocacy of internally displaced persons rights in Sudan.Second, UNHCR in 1998 had as many as five legal protection officers on hand-individuals trained in international law, including human rights law-far more than any other United Nations or NGO body in Sudan.These individuals constituted unique expertise very specific to protection activities needed by internally displaced persons.Third, the government of Sudan has never stated that it would refuse UNHCR permission and such a refusal would be almost impossible given the government's reliance on UNHCR for providing humanitarian assistance to internally displaced persons.Finally, fourth, the condition that UNHCR's activities must remain within its resources is obvious.In fact, several governments have generally been enthusiastic about funding protection activities that include advocacy for human rights in Sudan.Because of UNHCR's unique expertise and experience, it appears to be the best placed United Nations body for the task, but it has refused to accept the mantel and refugees and their lawyers have repeatedly been told that UNHCR cannot help internally displaced persons or deal with their problems.
Another United Nations programme that has the potential mandate to contribute to providing protection to internally displaced persons is the United Nations Development Programme (UNDP). UNDP has even presented proposals to help the government provide for the basic need of displaced persons. However, most of this assistance as been used to displace already displaced persons again. For example, the government of Sudan has requested funding for projects known as Area Rehabilitation Schemes. When funding has been received, however, it has been used to provide less than a minimal of services to displaced persons who have been forcefully evicted and their houses destroyed by the government. When similar assistance has been withheld the government has sometimes decided not to forcibly evict families nor destroy their homes. In other words, the assistance provided by UNDP as been used to solidify an illegal situation that may not have taken place had it not been for the grant of assistance. Because of this it is questionable whether the minimal assistance provided by UNDP has and does assist internally displaced persons or causes them even greater hardship.25
The final United Nations body that could contribute to the protection of internally displaced persons is the United Nations Humanitarian Co-ordination Unit (UNHCU).The Secretary General's Special Representative for IDPs has argued that he believes that Resident Coordinator and UNHCU are responsible for protection.26 The UNHCU is under the responsibility of the resident Coordinator in Sudan and of the Under-Secretary General for Humanitarian Affairs, Mr.Sergio Vieira de Mello at United Nations Headquarters. While Mr.Vieira de Mello appears to have accepted a degree of responsibility for the protection of internally displaced persons, his office in Sudan has expressly disavowed such responsibility in repeated statements to relief workers, fellow United Nations employees and diplomatic personal in Sudan. Thus, while Dr.Deng and Mr.Vieira de Mello may believe that UNHCU has a role to play, UNHCU in Sudan does not believe that this is the case. Their reasons are unclear, but UNHCU in Sudan appears to be unwilling to accept this responsibility because, like UNHCR, it wishes to 'avoid any possible negative reaction from the Sudanese Government'.
Thus to date, the record of the United Nations in protecting internally displaced persons' rights in Sudan is not good. The United Nations offices in Khartoum have failed to take effective action to prevent the forced displacements or relocations of already displaced persons in and around Khartoum. Moreover, several United Nations offices have contributed to government's policies by obstructing the protection efforts of NGOs and governments to protest these policies. For example, information concerning human rights abuses is not always sent in a timely manner from United Nations bodies in Sudan to their headquarters and to other UN bodies dealing with human rights in Sudan. And sometimes false information has been circulated to mitigate the pressure that might be put on the governmnt for violating the rights of internally displaced persons.27
Because the United Nations has failed to designate any single body within it to be responsible for the protection of internally displaced persons in Sudan, despite relentless calls from international observers for the Secretary-General to designate UNHCR, UNDP or UNHCU as the body responsible for the protection of internally displaced persons, no United Nations body takes more than the most minimal action to protect the rights of internally displaced person in Sudan.
Among the diplomatic community, few governments have been willing to effectively speak out for the rights of displaced persons in Sudan. The ambassadors of Germany, France and Italy have even gone so far as to circulate a 'Report on Human Rights in Sudan by the European Union'28 that extols the significant improvements made in the field of human rights by Sudan-contrary to all credible evidence-and completely ignores the plight of internally displaced persons, who are the largest single group of vulnerable people in Sudan. The few government's, such as the Netherlands that have had the courage and integrity to openly raise issues concerning the human rights of internally displaced persons have been forced to devote most of their time to fighting other government's attempts to sweep these problems away from public view.
Finally, among NGOs, there is an increasing hesitance to speak out for the rights of IDPs.While CARE, SCF-UK, and ADRA, among others, have been willing to tolerate the government's action with little questioning, others like MSF-NL and MSF-FR, who initially spoke out forcefully against the government's policy have are now only at best begrudging advocates of the rights of the displaced. MSF, which previously employed an international lawyer versed in human rights law, consciously decided not to fill the position when the last post holder's term ended in early 1999.
The resulting situation leaves internally displaced persons in Sudan in n extremely vulnerable position. The protection of internally displaced persons in Sudan thus remains one of the chief human rights challengers for the country as it enters the new millennium.It is a challenge for the international community of diplomats, non-governmental organisations, the United Nations and its specialised programmes and agencies, but most of all a challenge to the people of Sudan to build a nation where all individuals have equal opportunities to share in the wealth and progress of the nation.
3.4 Conclusions and Recommendations
The vulnerability of internally displaced persons in Sudan mainly continues due to government polices that ignore basic human rights at the expense of commercial development and less than rational and grossly under-funded planning strategies. The internally displaced person themselves are rarely able to defend their rights and sometimes those among them who are seeking personal profit even collaborate with the government to implement unjust policies. To lawyers in and around Khartoum state where nearly half the country's internally displaced persons are located, the violations of these persons' rights is not a legal priority. To the United Nations it is a problem of the government that United Nations bodies, programmes, and specialised agencies are entitled to ignore or to deal with whenever it suits them.This has led to internally displaced persons being used as bargaining chips by the United Nations.In this role, internally displaced persons have been sacrificed by the United Nations in the name of maintaining good relations with the government of Sudan.
To the diplomatic community in Khartoum, internally displaced persons are an issue that is too hot to tackle alone and on which no government is willing to take the lead by taking too drastic action such as strongly and publicly criticising the government of Sudan. Similarly, to the non-governmental actors from abroad it is a problem that is just too complex to be tackled. As a result, the world's largest population of internally displaced persons remains with little legal protection and without a champion to ensure that the rights they have under international human rights law are respected.
Unless Sudanese lawyers, influential Sudanese abroad, and the international community, especially the United Nations, show the courage to protect the rights of internally displaced persons in Sudan the widespread and serious violation of the human rights of these more than four million persons is bound to continue.
As an attempt to break through this stalemate and provide internally displaced persons with minimal protections, it has been suggested that the government of Sudan enter into a treaty with the United Nations to ensure some basic necessities of life in return for funding for development projects in the areas where internally displaced persons are living.
A draft treaty has been circulated that tried to deal with the problem of demolitions or forced evictions, which is an especially acute problem for an estimated two million in Khartoum State. The draft treaty could serve as the basis for more extensive activities throughout Sudan and for dealing with different typed of problems. The essence of the draft treaty's approach is to provide a compromise that is stipulated in writing and whereby the main concerns of each party are met--i.e.the government's concern for more funding for development purposes and the international community's concern that the human rights of internally displaced persons are respected.
The draft treaty has been circulated to the government of Sudan, the United Nations and to several key international actors.It calls upon the government of Sudan to establish a six-month moratorium on the demolition of houses on government land in areas where internally displaced persons live. It allows the government an exception for emergency situations, but in all cases requires prompt and just compensation after the six month moratorium on demolitions the government of Sudan agrees not demolish any house without fulfilling five conditions.These are: (1) providing the inhabitants at least one month's notice; (2) providing the IDP Monitoring Commission at least one month's notice; (3) providing the inhabitants an alternative house that has sufficient living space for the individual or family who were inhabiting the house that is to be destroyed and providing secure tenure in the house to which person are relocated; (4) taking into account the concerns of employment, health care and education of a displaced person and his or her family in making any decisions; and (5) ensuring access to facilities of sanitation, clean drinking water, health care, education, housing and means of employment in any house to which persons covered by this agreement are relocated.
Compliance with the five conditions is to be monitored by the IDP Monitoring Commission and Oversight Council whose creation is envisioned in the treaty. These two bodies will consist of representatives of government of Sudan, the United Nations and other donors.
The incentive offered the government of Sudan is the provision of a pre-determined amount of money for the resettlement of identified internally displaced persons.When the government of Sudan receives money without complying with its obligations-a determination that will be made by the IDP Monitoring Commission-the government will be obliged to return any money received with interest.
To avoid the inference that it replaces existing obligations, for example those under international human rights treaties to which the Sudan is a party, the draft treaty also states it shall be without prejudice to human rights obligations under existing international law.
The draft treaty exemplifies a practical approach that requires compromises on both sides. The government of Sudan is required to give up its hope of unconditional assistance for its re-planning programmes that displaced already internally displaced persons, while the international community, through the United Nations, is required to provide assistance to the government of Sudan to help it meet its development targets.In itself the treaty will not resolve the problems of internally displaced persons in Sudan, but it is a step in the right direction because it puts in writing, in legally binding form, with relative advantages for each party, the most basic demands of each party for the benefit of the Sudanese who have been displaced and face further disruption of their lives.
Most certainly the only 'real' assistance for the world's largest population of internally displaced person will only come when the world's longest continuously on-going and most deadly civil war is ended and when the northerners and southerners, Muslims and non-Muslims, agree to live in peace. This, however, will only come when both sides learn to compromise for the good of their own people. The suggested draft treaty could be an important first step in this process.
Endnotes
1 Some sources have placed the number of internally displaced persons in Sudan at as high as four million. 2 See Minear, L., Humanitarianism Under Siege: A Critical Review of Operation Lifeline Sudan 19 (1991). 3 See African Rights, Sudan's invisible Citizens: The Policy of Abuse Against Displaced People in the North (February 1995). 4 See The Review Team, OLS: Operation Lifeline Sudan: A Review 185-187, 192-194 (July 1996). 5 See UNHCR, UNHCR's Operations Experience With Internally Displaced Persons 50-52 (September 1994). 6 See Commission for Displaced, "Project A: Khartoum Metropolitan Area Camps for Displaced Citizens" 1 (1989) [pages unnumbered, but counted from first page of full text]. 7 Deng, F., Report of the Representative of the Secretary General on Internally Displaced Persons, paras.95-106, UN Doc.E/CN.4/1994/44 (1994). 8 See generally, Cohen, R., and Deng, F., Masses in Fight: The Global Crisis of Internal Displacement (1998). 9 Here the designation 'Khartoum' means the tri-city capital of Khartoum, North Khartoum and Omdurman. 10 The information in the following paragraphs is based on the author's on selected site research in the several areas where internally displaced persons are living in Khartoum. It is believed--based on comparison with data from other sources--that his information is representative of the situation of internally displaced persons in and around Khartoum. Between July 1997 and February 1999, the author has visited twenty different sites were IDPs or squatters were living. 11 Based on interviews in 'Mayo City' settlement of internally displaced persons in Khartoum in early 1999. 12 Under Sudanese law the government distinguishes between 'planned IDP camps' and unplanned camps. In the planned camp the government exercises strict control. In the unplanned camps the government provides little and relies on international and national NGOs for fulfil its responsibilities towards the displaced persons. 13 Also referred to as 'forced evictions' or 'further displacement' or 'involuntary relocation'. 14 If such a link is found to exist the government of Sudan could be guilty of the international crime of genocide that is prohibited by customary international law.Genocide is also prohibited by the Convention on the Prevention and Punishment of the Crime of Genocide, entered into force 12 January 1951, 1021 UNTS 78 (1951), but this convention had not been ratified by the government of Sudan as of 1 January 1998. 15 Africa Rights Report, supra note 2, at 26. 16 Id.. 17 See, for example, UNDP Project No.SUD/97/017/A/01/59 in which the United Nations agreed to provide the government of Sudan 2,178,300 USD in assistance-against a 58,200 USD contribution from the government, approximately a 2.6% matching contribution-for training, skills development and small investment project in areas where internally displaced persons live in and around Khartoum.The project proposal, however, did not include any mechanism for ensuring that internally displaced persons would be the beneficiary of the investments.During the late 1990's, with the increasingly adverse economic situation in Sudan, Northern businesspersons increasingly established businesses in areas where internally displaced persons live because they had substantial competitive advantages such a enough initial investment capital to undersell local business and thus put the local businesses run by internally displaced persons out of business and enable their business to then set higher prices. 18 See, generally, Cohen and Deng, supra note 8 and Deng, supra note 7 (for more on this matter). 19 Judges Mohammed Mahmoud Abu Gissiesa, El Tayeb Ahmed Mohammed, John Aounghy, Iman el Badri, Tagel Sir Mohammed, Abdallah el Awad, and Hashim Hamaza. 20 The points of contact of the Commission are: African Commission on Human & Peoples' Rights, Kairaba Avenue, P.O.Box 673, Banjul, The Gambia, telephone +220-392962, fax +220-390764, telex: 2346 OAU BJL GV and most recently, e-mail: legal_advisor@achpr.org. 21 ECOSOC Res.1705(LIII), 27 July 1972. 22 UNGA Res.2958(XXVII), 12 December 1972. 23 UNHCR Memorandum from The High Commission (on Refugees) to all of her staff on "UNHCR's Role with Internally Displaced Persons" dated 28 April 1993. 24 Division of Legal Protection, Office of the High Commissioner for Refugees, UNHCR's Operational Experience with Internally Displaced Persons (September 1994). 25 Also see supra at note 17, and accompanying text. 26 Deng, F., Report of the Representative of the Secretary General on Internally Displaced Persons, 48-50, UN Doc.E/CN.4/1994/50 (1995). 27 For example, United Nations staff working for UNHCU represented to the author that a representative of the government of Sudan, Mister of Housing and Engineering for Khartoum State, Dr.Sherif Eldin Bannaga, had signed an agreement to provide certain basic human rights to internally displaced persons when he had not done so and the persons making the representations knew this to be the case. 28 Although this report is confidential a copy of the report was leaked to the author by a member of the Green Party in Germany.
