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914 Although figures for internally displaced in Bahr El Ghazal are available and include Nuer displaced, most have not been disaggregated, as far as we know, in a manner that would enable identification of the numbers of displaced Nuer or Dinka who arrived from Western Upper Nile/Unity State in 2000.
915 Email, Judy Kimaru, World Food Program, to Diane DeGuzman, OLS, Lokichokkio, Kenya, February 22, 2001.
916 Lindsey Davis, WFP, email to Human Rights Watch, July 19, 2001.
This very conservative estimate of newly displaced in/from Western Upper Nile/Unity State for January 2000-February 2001 is 134,000.
2001-March 2002 As of March 2002, the number of internally displaced individuals from Western Upper Nile was estimated to be 174,200,917 according to a summary report of that date by WFP and OLS. This number of displaced individuals is directly attributable to the conflicts in the oilfields.
This is a very conservative estimate as well. It does not include some 57,000 persons displaced in Upper Nile by what was called “inter-clan fighting.”918 This phenomenon cannot be so clearly disaggregated from the overall conflict because the arms supply comes almost entirely from the two main parties.
Furthermore, the number of 174,200 is low because it only incorporates those in the Lakes (in Bahr El Ghazal) and Upper Nile regions, though many displaced persons have gone as far as Khartoum and other parts of Bahr El Ghazal.
The WFP/OLS report attributed the displacement in the 2001-March 2002 period to the “Government of Sudan forces and militias offensives on the Sudan Peoples Liberation Army/Movement (SPLM/A) and the Sudan Peoples Defence Forces/Movement (SPDF/M) rebel areas and fighting among the rebel factions themselves.”919 Further, the report notes that “[d]ue to the conflict around the oilfields...
.Upper Nile has the highest number of IDPs [of all regions in Sudan].”920 917 WFP/OLS, “IDPs Southern Sudan Briefing,” March 2002, p. 2. The number of 174,200 displaced individuals is calculated from 55,200 in the Lakes district plus 70 percent (119,000) of the 170,000 in Upper Nile. The report attributed 30 percent of the displaced individuals in Upper Nile to “inter-clan fighting” and 70 percent to “oil mining related fighting,” although that is a distinction without a difference.
918 Ibid., p. 2.
920 Ibid., p. 1.
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These figures are the most reliable available, though even they are only rough estimates. The numbers were “collated from internal WFP filed reports (assessments and food distribution reports), OLS joint assessment missions, OLS Security team, NGO and counterpart reports.”921 Even with the proviso that the figures provided are only rough, however, the extraordinary extent of continued displacement from the oilfields is abundantly clear.
The Illegality of Forced Displacement under International Humanitarian Law Displacement in Sudan’s oilfields is conducted by military means with the use of the armed forces, militias, airpower, and heavy weaponry to drive civilians out of their homes without notice, a hearing, compensation, or any of the trappings of fair trial that accompany displacement conducted pursuant to law for the purpose of legitimate economic development. The objective of the displacement is a military and economic one: to capture and hold valuable oilfields and to eliminate “enemy” threats to take back the territory.
Displacement of civilians for war-related reasons is forbidden under article 17 of Protocol II of 1977, to the 1949 Geneva Conventions.922 Under international humanitarian law, there are only two exceptions to the prohibition on displacement of civilians during internal armed conflicts: their security or imperative
military reasons. Article 17 of Protocol II states:
922 The government of Sudan has not acceded to Protocol II, which applies to internal armed conflicts. We look to Protocol I, which as of April 2001 had been ratified or acceded to by 150 states, for authoritative guidance to customary international humanitarian law. The Sudanese government has ratified the four Geneva Conventions of 1949, whose common article 3 applies to internal armed conflicts.
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1. The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand. Should such displacements have to be carried out, all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition.
The term “imperative military reasons” usually refers to evacuation because of imminent military operations. Such evacuation assumes proper procedures for notification and evacuation, and proper means of transport to a safe place. It does not include a military attack on a civilian population, which is not a legitimate military objective under international law.923 Nor does it include pillage, a breach of wellestablished international law.
The provisional measure of evacuation is appropriate if an area is in danger as a result of military operations or is liable to be subjected to intense bombing. Evacuation may also be permitted when the presence of protected persons in an area hampers military operations. The prompt return of the evacuees to their homes is required as soon as hostilities in the area have ceased. The evacuating authority bears the burden of proving that its forcible relocation conforms to these conditions.
Displacement or capture of civilians solely to deny a social base to the enemy has nothing to do with the security of the civilians. Nor is it justified by “imperative military reasons,” which require “the most meticulous assessment of the circumstances”924 because such reasons are so capable of abuse. One
923 United Nations General Assembly Resolution 2444, adopted by unanimous vote on December 19, 1969, expressly recognized the customary law principle of civilian immunity and its complementary principle requiring the warring parties to distinguish civilians from combatants at all times. U.N. General Assembly, Respect for Human Rights in Armed Conflicts, United Nations Resolution 2444, G.A. Res. 2444, 23 U.N. GAOR Supp. (No. 18), p. 164, U.N. Doc. A/7433 (New York: U.N., 1968).
924 Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), art. 52 ((2); International Committee of the Red Cross (ICRC), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: Martinus Nijhoff Publishers, 1987), p. 1472.
Clearly, imperative military reasons cannot be justified by political motives. For example, it would be prohibited to move a population in order to exercise more effective control over a dissident ethnic group.925 Mass relocation or displacement of civilians for the purpose of removing an ethnic group deemed friendly to rebels is prohibited since it is a political motive as described above. Certainly, permanent displacement of an ethnic group from its place of origin in order to ensure security for oil operations from rebels who might someday move through the area to attack oil infrastructure is illegal under the rules of war. Such permanent relocation is not for the safety of the civilians, nor for “imperative” military operations, which by their nature are temporary.
Even if the government were to show that the displacement were necessary, it still has the independent obligation to take “all possible measures” to receive the civilian population “under satisfactory conditions of shelter, hygiene, health, safety, and nutrition.” The Sudanese government has singularly failed to meet its obligation to care for displaced persons, and, furthermore, actively obstructs others who would do so. This has been the government’s pattern and practice for almost two decades, as amply documented in several academic studies of relief operations in Sudan and in assessments for donors.926
Contractually-Incurred Obligations Forbidding Forced Displacement
926 See, for example, J. Millard Burr and Robert O. Collins, Requiem for the Sudan: War, Drought, and Disaster Relief on the Nile (Boulder, Colorado: Westview Press, 1995); Keen, Benefits of Famine; Ataul Karim, Mark Duffield, et al., OLS, Operation Lifeline
Sudan: A Review (Nairobi: OLS, July 1996); African Rights, Food and Power in Sudan: A Critique of Humanitariansm (London:
African Rights, May 1997).
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In additional to the provisions of international humanitarian law, the parties are bound by the agreements they have signed regarding forcible relocation of residents. On December 15, 1999, representatives of the warring parties (Elijah Malok Aleng for the SPLM/A and James Mabor Gatkuoth for the Sudanese government), along with the U.N. (Ross Mountain), signed a tripartite agreement on
the implementation of assistance to war affected civilians. Item 5 specifically provided:
Beneficiaries have the right to protection from forcible relocation from their legal or recognized place of residence The Parties to the Conflict agree and guarantee that no beneficiary will be forcibly relocated from his or her legal or recognized place of residence.... When communities may be relocated they will be consulted on an individual and community basis on alternatives to relocation. Where communities are to be relocated, they are guaranteed individual and community participation in the relocation process, particularly prior to relocation, and will be given a reasonable period of notice prior to relocation.
Communities will only be relocated to suitable sites with basic services and proper accommodation in place prior to relocation. Communities will only be relocated in a manner that preserves the right to life, dignity, liberty and security.927 These provisions have been totally ignored by the government, especially in the oilfields. The government and SPLM/A in March 2002 signed an agreement not to attack civilians or civilian objects in the war, at the behest of the U.S., but fighting after that date was carried on without regard to that agreement, particularly in Western Upper Nile/Unity State.
Oil Operations as a Military Objective
927 Government of Sudan, Sudan Peoples’ Liberation Movement, and U.N. OLS, “Agreement on the Implementation of Principles Governing the Protection and Provision of Humanitarian Assistance to War Affected Civilian Populations,” Geneva, December 15,
1999. This forum for this agreement is the Technical Committee on Humanitarian Assistance (TCHA) in Rome.
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Oil operations would in many circumstances qualify as a legitimate military objective. To constitute a legitimate military objective, the object or target, selected by its nature, location, purpose, or use, must contribute effectively to the enemy’s military capability or activity, and its total or partial destruction or neutralization must offer a definite military advantage in the circumstances prevailing at the time.928 Oil revenues contribute effectively to the Sudanese government’s military capability and activity, and the destruction of oil infrastructure therefore offers a definite military advantage in the circumstances. 929 The targeting of valuable export commodities has been considered legitimate since the U.S. Civil War of the 1860s. Then, the destruction of raw cotton, the chief export of the Confederate states, was deemed—as Art. 52 (2) of Protocol I requires, “in the circumstances prevailing at the time”—to make an effective contribution to military action since it was the ultimate source of funding for Confederate weapons and military supplies.930 There are nevertheless limits on the rights of the parties to a conflict in selecting targets. For one, Protocol I, article 55 would apply, for instance, to targeting oilrigs in the Nile or other waterway where a spill might result in damage to the environment. The article states that the attacker may not use methods or means of warfare “which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.” 928 Protocol I, art. 52 (2).
929 While capture of oilfields might be a legitimate military objective if the purpose is to deny fuel for military vehicles or revenue to the enemy, that rationale is scarcely applicable for attacks on these rebels. The SPLA is in no position to make use of any of the oil production in Upper Nile, lacking refinery and transport facilities; oil is a natural resource demanding a much larger investment to be of economic utility than diamonds, for instance. The SPLA itself remains a legitimate military target, of course, whether it occupies oil infrastructure or not.
930 David Carnahan, Protecting Civilians under the Draft Geneva Protocol: A Preliminary Inquiry, 18 Air Force Law Review 1976, pp.
47-48, citing Report of the U.S. Agent, 6 Papers relating to the Treaty of Washington, 1874, pp. 52-57; see Bothe, Michael, Karl Josef Partsch, and Waldemar A. Solf, New Rules for Victims of Armed Conflicts (Geneva: Martinus Nijhoff Publishers: 1982), p. 324, fn. 15.
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Of course, civilians, including oilfield workers, are never a legitimate military target. Should they bear arms, it would be different, but those are not the facts in Western Upper Nile/Unity State as of the writing of this report. Any targeting of oil company or subcontractor employees who are not engaged in hostilities would be a violation of the rules of war.