"We do not take our morality from the enemy, we create our own morality, a morality of liberation."

Samora Machel

INTRODUCTION

Liberation movements are predicated upon agendas based on social justice. The armed struggle was and remains only part of the social, ideological and political front. In such internal liberation struggles, like the one waged by the Sudanese opposition, popular support becomes a pre-requisite for revolutionary success. This seems to be at least the experience of African liberation struggles. Moreover, the belief that popular support is incompatible with coercive appeals by a revolutionary organisation appears in the writings of many revolutionary strategists.

Many studies of revolution, claim that the success of a revolutionary organisation in mobilising peasants during a revolution results in continuing close relationship between peasants and the liberation movement. This relationship benefits not only the party or state but also peasants.

The challenge to the Sudan opposition as a liberation movement is how to organise the civil population and find appropriate appeals to induce them to engage in collective action and win their popular support against the National Islamic Front regime. Chairman Mao, writing on guerrilla warfare, cautions against the use of force against the people. ‘The people must not be forced but inspired to co-operate voluntarily. We must not force them, because if we do, we will be ineffectual.’ He rejects the use of terror by the party against its comrades or the enemy. ‘No matter with whom you are dealing with, a false show of authority to instil authority is uncalled for.’ However, coercive aspect of mobilisation leads to coercive party relations or interactions.

Unfortunately, many liberation movements have used force and coercion in their drive to achieve victory over the enemy. The practical record of guerrilla movements of various political colours has shown that coercion and terror can work to maintain a guerrilla army. Examples include Renamo, Liberian and Sierra Leonean guerrilla armies, and various groups in the former Soviet Union. But building a new democratic political order based on such a record is something entirely different.

This paper argues that respect for human rights and humanitarian law, with emphasis on legal and administrative reforms, by Sudan’s opposition is essential. It is not only right in itself but a sound political strategy. It is not enough for the opposition to have good intentions and objectives, for it to command popular support.

After adopting Asmara Declaration as its political programme, the opposition is committed to putting into practice, simultaneously with the armed struggle, a programme of democratic social transformation of the Sudanese society in the liberated areas. The Sudanese opposition should build itself around the principle that national liberation and revolution— that the armed struggle, on the one hand, and political, social and economic struggle on the other— must complement each other and be carried on simultaneously, predicated on respect of human rights. As the liberation progresses the opposition need to reaffirm this commitment. It should therefore make its objective as not to replace one oppression by another but to destroy the oppression in all its forms.

The Sudanese citizens in the liberated areas will in the future be the witness of the opposition’s success or failure in articulating their human rights aspirations.

The conduct of government armies fighting an internal conflict against insurgent forces is governed by the rules of war, also called international humanitarian law, which comprise the four 1949 Geneva Conventions, the two 1977 Protocols to those Conventions, and the customary laws of war. The Sudan Government has acceded the Geneva Conventions (in fact it was the second sub-Saharan African state to do so, in 1957, after Liberia) but not the Additional Protocols. However, the main provisions of the Additional Protocols may be regarded as reflecting the development of customary international law.

The SPLA signed an agreement on humanitarian principles with UNICEF/Operation Lifeline Sudan in which it ‘expressed its support’ for the following humanitarian principles and conventions:

(a) Convention on the Rights of the Child, 1989;

(b) Geneva Conventions of 1949;

(c) Additional Protocols to the Geneva Conventions, 1977.

This amounts to a pledge to abide by these instruments of international humanitarian law. In addition, the OLS ‘Ground Rules’ lay specific obligations on the SPLA in terms of permitting humanitarian access and respecting humanitarian operations.

There has been no comparable negotiation between the UN and the Sudan Government to establish humanitarian principles for the war zone. Hence, though the agreements with the SPLA do not have the same legal force as the Sudan Government’s accession to the Geneva Conventions, the SPLA is in fact commited to a higher standard of humanitarian conduct than its adversary.

None of the military forces operating in Eastern Sudan, including SAF, has signed up to any statements of humanitarian principles, similar to those agreed between the SPLA and UNICEF. This is related to the absence of international relief organisations operating in the area.

The rules of war, whose basic provisions are not derogable (may not be suspended) are primarily intended to protect the victims of the armed conflicts, including civilians, prisoners of war, and the wounded and sick. They complement those standards of international law that are non-derogable and remain binding upon governments. They are also complemented by international treaties restricting or banning the use of certain weapons, notably poison gas (the 1925 Geneva Protocol) and anti-personnel land mines (the 1997 Ottowa Treaty, which entered into force in 1998 when it had been ratified by forty states).

The current armed conflict in Sudan between the government and the opposition forces is an internal (non-international) armed conflict, despite any external assistance received by both parties from various countries. As an internal armed conflict, government and Sudanese opposition forces conduct is governed by Common Article 3 of the Geneva Conventions and customary international law. Common Article 3 applies when a situation of internal armed conflict objectively exist in the territory of a state party; it expressly binds all parties to the internal conflict, including insurgents although they do not have the legal capacity to sign the Geneva conventions. In addition the 1977 Additional Protocol II to the Geneva Conventions contains rules providing authoritative guidance on the conduct of hostilities by the warring parties in the case of internal conflicts.

However, Additional Protocol I to the Geneva Conventions, primarily concerned with inter-state conflict, is also intended to apply to ‘armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination’ (Article 1.4). Many Southern Sudanese will argue that this precisely fits their case. It is arguable that because all parties to the conflict, including the Sudan Government, have accepted the right of self-determination for Southern Sudan, then they have implicitly acknowledged that the war is a struggle against colonial domination. In this case, the stronger provisions of Additional Protocol I will apply. This is particularly significant in the case of PoWs, who then need to be treated on a par with prisoners taken in an inter-state war.

THE RULES OF WAR

Customary and conventional (treaty based) international law prohibits primarily the following kind of practices, orders, or actions during wars

1. Orders that there shall be no survivors, such threats to combatants, or orders to conduct hostilities on these basis.
2. Attacks against combatants who are captured, surrendered, or are placed hors de combat.
3. Torture, any form of corporal punishment, or other cruel treatment of persons under any circumstances. The infliction of humiliating or degrading treatment on civilians or combatants who are captured, have surrendered, or are hors de combat. Captured combatants and detained civilians are also entitled to a fair trial.
4. Hostage taking, shielding, or using the presence of the civilian population to immunise areas from military operations, or to favour or impede military operations. In addition, the parties may not direct the movement of civilians in order to attempt to shield legitimate military objectives from attack, or to favour military operations.
5. Pillage: this includes looting or taking booty or spoils of war. This provision is designed to spare people the suffering resulting from the destruction of their real and personal property: houses, furniture, clothing, provisions, tools, and etc. Pillage includes organised acts as well as individual acts without the consent of the military authorities. The ordering or authorisation of pillage is forbidden, and the parties are obliged to prevent or, if it has commenced, to stop pillage. All types of property, whether private, communal, state or otherwise are protected, although the military authorities retain the right to requisition goods under certain conditions.
6. Destruction of property not absolutely necessary on account of military operations. This includes a prohibition on using starvation as a weapon of war against civilian populations, or destroying civilian objects including foodstuffs, agricultural land, etc in such a way as to cause undue suffering to the civilian population.
7. Slavery and the slave trade in all their forms. Provision on slavery is one of the (hard core) fundamental guarantees, universally accepted.
8. The use of banned weapons, especially chemical weapons and anti-personnel land mines.

It is these norms that we would like the Sudanese opposition to adhere to in its struggle against the National Islamic government, as well as the government to respect in its conduct of the war. This paper shall explore the record of the Sudanese opposition in relation to some of these human rights issues during the current armed struggle.

One of the contentious issues in the current armed conflict in Sudan is the issue of the prisoners of war.

Primarily, the law governing internal armed conflict does not recognise the combatant’s privilege. It therefore does not provide any special status for combatants, even when captured. Thus, under the law, the Sudan government is not obliged to grant captured members of the opposition forces prisoner of war status. Similarly, government army or militia combatant who are captured by the opposition forces need not be accorded this status.

However, if the war in Southern Sudan is regarded as a war of national liberation against colonial domination, then prisoners of war should be given the same status and protection as in an international armed conflict. The treatment of PoWs by the Eritrean People’s Liberation Front is a precedent for this. The status of the war in the north is more controversial. In any case, either can agree to treat its captives as prisoners of war, and, the Committee believes, should do so.

If the Sudan Government decides not to consider the opposition forces are not privileged combatants, they may be tried and punished by the Sudan government for treason, sedition, and the commission of other crimes under the Sudanese law. They are not to be tortured, held in secret destinations, disappeared, or summarily executed. To take these actions is forbidden by common Article 3 and international human rights law.

Several Sudanese opposition groups are holding PoWs captured from the government. The SPLA has kept prisoners of war since its inception 1983 and permitted the ICRC to visit its prisoners. It released some prisoners in Yei recently (in April/May 1998). The Sudanese government in turn has refused access to the ICRC and has never reciprocated, however. The government army has, with one exception, denied taking any combatants prisoner during the fourteen years of civil war. This confirms allegations that summary executions are committed in the field. The attitude of the Sudan government towards killing prisoners has raised concern among the Sudanese opposition. Some hard-line fighters are contemplating meting the same treatment to the captured Sudan army’s combatants.

But many lessons could be learned from African liberation struggles, including Frelimo, EPLF and EPRDF on the treatment of prisoners of war. In the ranks of Frelimo, the question of how to treat captured Portuguese soldiers had cropped up as a very pertinent issue right at the beginning of the liberation war, and one group inside the front said, ‘they are white oppressors as they have come to shoot us and kill us and torture us and massacre us, and we will kill them.’ It was an issue that divided Frelimo at that stage. But Samora Machel and other comrades representing the revolutionary and humanist trend insisted on keeping PoWs. They were victorious and every single captured Portuguese soldier was alive at the end of the war and was handed over, though not a single captured Mozambican liberation fighter survived— they were all killed, usually after torture. The line articulated by Samora Machel was: ‘We do not take our morality from the enemy, we create our own morality, a morality of liberation.’

In Ethiopia, the PoWs released by the EPRDF became their ‘ambassadors’. The former Ethiopian government propaganda insisted that all soldirs captured by the rebels would be tortured and killed. The reality was that PoWs were well-treated: they were given food, shelter and medical care, and after a few months in captivity, during which time they were told about the aims and objectives of the EPRDF, they were given three options: joining the EPRDF, going to Sudan as a refugee, or returning home. The majority chose to return home, and when in government-controlled areas, and even when re-conscripted to the national army, they told their friends, families and colleagues that there was little to fear from capture by the EPRDF. This encouraged more Ethiopian soldiers to surrender or defect.

It is heartening that the Umma Army (military wing of the Umma Party) and Sudan Alliance Forces have recently followed the example of the SPLA, and announced that they are holding PoWs and requested the ICRC to visit them. This trend should be encouraged and consolidated by human rights groups. Human rights education and awareness among opposition’s rank and file could help keep the human rights momentum during the liberation.

Respect for the Geneva Conventions apart, the opposition has its own political and revolutionary obligation to re-educate the PoWs in the aims and objectives of the National Democratic Alliance. The opposition should not lose sight of the fact that many fighters sent to the front line by the National Islamic government are themselves unwilling or ill-informed conscripts, endangering their lives for a cause that is not theirs: they too are victims of the government’s abuses of human rights.

The Sudan armed forces’ violation of the Geneva Conventions have become widely known and will not be detailed here. All the organisations represented in the Committee have published extensive information on these violations. All the basic rules of international humanitarian law, enumerated above, have been repeatedly violated in many different locations, in the South, the Nuba Mountains and in the East. The violators have included the Sudan People’s Armed Forces, the air force, the Popular Defence Forces, military intelligence and security organs, and various militia groups and former Southern rebel groups armed and supported by the Sudan government.

Unfortunately, the armed Sudanese opposition groups in the South also have a history of human rights and humanitarian law abuses. Because the subject of this paper is how to increase respect for humanitarian law by the opposition, the nature of these abuses must be briefly outlined.

Among the violations of rules of war committed by the SPLA factions (including those portions of the SPLA that are or have been aligned with the government at some time) are indiscriminate attacks on civilians living in the territory of the other SPLA faction, summary executions and disappearances, torture, holding prisoners in harsh conditions , pillage of citizens assets, cattle and grain and the destruction of civilian property (the burning of houses) of the opposing factions territory, taking food from civilians by force, capturing civilians, principally women and children, from the territory of the other faction, and denying unaccompanied minors the opportunities to be voluntarily reunited with their families. Although several opposition forces have declared that they will abide by the Ottowa Declaration prohibiting the use of anti-personnel land mines, there are indications that this has not always been respected. The question of child soldiers is also a concern.

The total impact of these abusive practices had been to rip apart the economic ‘safety net’ of southern Sudanese society, utilised as a protection from hunger in times of scarcity. Where assets have plundered, and migration is impossible because of renewal tribal animosity or useless because the place of migration has been raided as well, the civilian victims of military attacks must look to other sources of food. The Sudanese opposition armed groups in the South have been accused by international relief agencies of taking advantage of their armed might to compel civilians to part with their meagre rations and not infrequently block relief deliveries with reckless disregard for civilian welfare. Thus pockets of hunger have persisted and hundreds of thousands have died of food scarcity and disease as a direct result of the belligerent forces’ brutality and disregard for the rules of war and the civilians those rules would protect. Though the government must take the largest portion of blame, the opposition fighters in the South cannot escape culpability. It is hoped that the Sudanese opposition in the east will respect the rules of war and the civilian population and avoid these errors.

The Sudanese opposition has been accused of human rights violations by the Sudan government and some leading opposition personalities. Most of these accusations are centred on the treatment of recruits and dissidents, where violations are alleged to have taken place in training centres. The allegations among other things include torture, mistreatment, beating and disappearances.

There had been unconfirmed reports of excesses in military discipline within some opposition forces in eastern Sudan. An anonymous document or ‘black book’ circulated among opposition parties details the alleged excesses. The document claims that disobedient soldiers are tortured under the pretext of military disciplinary measures in the training camps. Methods of torture used by the Sudanese security forces in ghost houses are allegedly used. These include tying up persons in an eagle shape and forcing detainees to act as though they are an aeroplane taking off (‘tayaara gaamat’). Unfortunately, despite the persistent demands by several human rights activists that these allegations should be substantiated and the evidence made public, the authors of the report declined to do so. Hence these allegations have not officially been brought to light either by the alleged victims themselves or concerned parties, and it is impossible to come to an informed judgement about the reality.

It is clear, however, that several of the different armed opposition groups have embarked on drawing up and enacting military internal disciplinary codes or laws to guard them in instilling discipline upon their armies in and out of combat. Without dwelling much on their motives this is a commendable step and a positive move that enhances the human rights awareness during the current liberation struggle. Again, the SPLA took the lead in this process as the oldest armed Sudanese opposition group.

This Act, passed as part of the renewal of the SPLM/SPLA in the mid-1990s, deals with the military wing of the movement. Section 4 of the Act stipulates offences of military nature punishable under this law. The offences ranges from mutiny to smoking of hashish and opium. Officers and men of the SPLA are tried under Section 22 of the SPLA ACT 1994. Section 22(2) states that the trial is by special military tribunals set up by the Commander-in-Chief (C-in-C) within the provisions of Section 12 of the New Sudan Penal Code, 1994 or any other Military Law. The section goes further to stipulate that all offences under the New Sudan Penal Code, 1994 committed by member of the SPLA, shall be investigated and inquired by into by the police under the provisions of the New Sudan Penal Code 1994. This takes place only when the commander of the person’s accused unit had given permission (Section 22(1)).

The Act, however, does not provide mechanisms or detailed procedures regarding its implementation, and instead leaves the process to the chief justice (Section 24 ). The Act also does not embody the principles and spirit of the Geneva Conventions and its Additional Protocols.

A preferred approach would have been for the SPLA legislators to have made the New Sudan Criminal Code of Procedure 1994 and New Sudan Penal Code 1994 apply to the arrest, release and bail, trial and punishment of any person accused or suspected of any offence against any such order or regulations. This has been the procedure in Sudan.

The SPLA and other opposition forces could benefit greatly from study of the Sudan Armed Forces Act 1957. The opposition will certainly find some sections useful and avoid the shortcomings of that Act or parts that are irrelevant to the liberation struggle. One of the useful sections is Section 59 which establishes four kinds of courts-martial, namely:

(1) general court-martial;

(2) district court-martial;

(3) summary general court-martial; and

(4) summary court-martial

The Act further states the powers and composition of each and every court-martial. It is to be noted that in accordance to this Act the criminal court has the power to require delivery of offender (S.73) as the trial by court-martial is no bar to subsequent trial by criminal court (S.74). The Judge-Advocate is appointed by the Attorney General or by the convening officer and advocates chosen by the accused.

After the Sudan Alliance Forces consultative meeting held in the liberated areas of eastern Sudan in November/December 1997, the organisation drafted a military code known as ‘SAF Military Code.’ The Code has not yet been made public as it needs some institutional approval within SAF before it is formally in force as law, but it is claimed to have dealt intensively with questions of internal military discipline within the Sudan Alliance Forces.

The Committee for the Transition has observed that many commanders of the armed opposition are in process of finalising their military disciplinary codes that will embody human rights principles and the rule of law. However, the challenge to the armed opposition is to enact a ‘Liberation Forces Law’ with the sole purpose of stating the rules governing the discipline of the forces and military-civilian relationships. The law should in particular make rules of procedure concerning the offences and punishments thereof both summary and by court-martial. The rules should provide specifically for the following:

1. the amount of fines to be imposed under the law.
1. the specification of the punishments which may be awarded as field punishments;
1. the assembly and procedure of courts of inquiry, and the administration of oaths and affirmations by such courts;
1. the convening and constitutions of courts-martial;
1. the adjournment, dissolution and sittings of courts-martial;
1. the procedure to be observed in trials by courts-martial;
1. the confirmation and revision of the findings and sentences of courts-martial;
1. the carrying into effect sentences of courts-martial;
1. the forms of orders to be made under the provision of the armed opposition’s Act relating to courts-martial, or imprisonment, and
1. any matter in the Act required to be prescribed and relating to offences or their punishment.

The Sudanese opposition has committed itself to respect all human rights conventions. The Asmara Declaration clearly specified the intention and obligation to respect human rights norms and principles in any future constitution. Article 1(b)of the Asmara Declaration reads: ‘1) All human rights norms and principles enshrined in regional and international human rights instruments and covenants shall be an integral part of the constitution of the Sudan, and any law, decree, executive order or policy measure contrary thereto shall be considered null and void and unconstitutional.’

This paper argues that respect for human rights instruments and conventions should begin now during the liberation struggle. The acid test for the Sudanese opposition that it will deliver its human rights promise stipulated in both Nairobi and Asmara Declarations is its respect for human rights at the present time.

This paper proceeds in discussing the relationship between the Sudanese armed opposition and the civil society on the basis that the opposition is a movement for national liberation. It is therefore assumed that the opposition from its inception has built itself around the principle that national liberation and revolution— that armed struggle, on the one hand, and political, social and economic struggle on the other— must complement each other and be carried on simultaneously. As the liberation progresses the opposition needs to reaffirm this commitment and implement practical measures to make it a reality.

It is essential that after every military liberation of an area from the National Islamic government is completed the Sudanese opposition organises grass-roots branches of the National Democratic Alliance to carry out the political, social and economic programme of liberation. This ultimately necessitates the building of a civil society in the liberated areas. It is therefore of utmost importance to have civil institutions established and functioning, especially judiciary and representative institutions.

The importance of civil institutions and the role of civil society during liberation needs to be emphasised. As the armed struggle complements the political, social and economic struggle, the need for these institutions becomes paramount.

In April-May 1996 the SPLA/M convened a conference on Civil Authority and Civil Society. Again, the SPLA/M deserves a compliment for taking the lead in addressing this important aspect of the liberation struggle. The conference resolved among other things the importance of the civil society during the liberation and the need to create an conducive atmosphere to its growth. Before the civil society conference the SPLA/M convention was held in 1994 in Chukudum. The Convention created the institutions of the Movement, namely National Liberation Council, National Executive Committee and SPLM Secretary-General. In the SPLA/M held areas of the Nuba Mountains the Advisory council (the Regional Parliament) is functioning well and it is the clearest indication that democracy can work during the liberation struggle given the political will.

All other armed opposition groups have political components, although some of these political components do not exist as functioning institutions in the liberated areas of Sudan where they ought to be present. The importance of external political offices outside Sudan is acknowledged but it is in the liberated areas where they should vigorously be struggling for the minds and the hearts of the civilian population. The paradox of the present Sudanese armed opposition is that the groups that have active political parties has less active military forces.

The role of the unarmed civilian population in the liberation should be determined by the civilians themselves. The civilian population should be allowed a degree of freedom of organisation, association, and religion. In general, civilians also should be permitted freedom of movement and the right to join different wings of the opposition. The armed opposition should create a conducive environment for the civil society to grow in confidence that it has a stake in liberation. It is strong and sustainable civil society that will preserve the gains of the liberation. When the civil society is ignored or intimidated by the liberation army then liberation turns to occupation. The war is therefore either lost or won at a high cost in human rights violations and the humanitarian credentials of the liberators become suspect.

It is encouraging that many opposition forces acknowledge the importance of establishing grass-roots institutionalised political parties based on democracy. The Umma Party and Sudan Alliance Forces concluded successful conferences lately. Difficulties inherent in building civil institutions and creating viable civil society during the struggle must not be underestimated. It is certainly a tremendous task and a challenge. Dr. John Garang’s description of the magnitude of organising the civil society at the 1996 conference in New Kush is accurate: ‘Our biggest challenge is how to organise civil society. That is much harder than capturing Pochalla, we did that in a few days.’

The NDA has asserted its commitment to a range of civil and political rights, which it intends to enshrine in any future constitution in Sudan. These include freedom of association, freedom of conscience, freedom of movement and residence, freedom of speech and information, the right to democratic political representation, the right to a fair trial, etc. During the liberation struggle, the situation is more complicated. These rights remain important, and some of them are vitally so (notably the right to a fair trial). However, it is normal for states that accede to the UN Convention on Civil and Political Rights to retain the right to suspend many of these rights in times of national emergency. During a state of emergency, it is permissable to place certain restrictions on these rights.

The armed struggle of the Sudanese opposition is akin to a state of emergency in the liberated areas. For obvious reasons it is unlikely that liberation movements will allow citizens in the liberated areas to form political parties or move with complete freedom from the liberated areas to government-controlled areas.

The appropriate course of action is therefore for the NDA and its constituent parties, including the SPLA, to consider that they have acceded to the UN Convention on Civil and Political Rights, but to suspend certain of those rights at the necessary times, citing a ‘state of emergency.’ Some of these rights— such as the right to a fair trial and freedom of religious belief— should not be considered for suspension under any circumstances. Others may be suspended when circumstances dictate. These include freedom of movement and freedom of association. However, any suspension should always be limited in time and area, and justified at regular intervals. Other rights, such as the right to political representation, should be considered very carefully and respected to the extent possible. Multi-party elections may not be feasible during the armed struggle, but some form of representative and consultative institutions can play an important role. Any suspension of civil and political rights should be presented to such assemblies for discussion and ratification. The Nuba Mountains General Assembly is an example of what can be achieved in this regard. At a lower level, local government institutions can also be set up on the basis of representative democracy. This will prove an important exercise, not just in preserving the rights of people during the struggle and providing avenues for them to represent their interests, but in laying a solid foundation for a democratic Sudan in the future.

The Sudan Government has acceded to the Convention on the Rights of the Child (which its forces routinely violate) and the SPLA has agreed to respect it in the OLS Ground Rules. There are serious concerns however about the use of under-age soldiers in the SPLA. The northern opposition parties have yet to make a statement on their position: they should declare their readiness to respect the Convention.

The core provisions of the Convention on the Rights of the Child, which include the prohibition on child soldiers, should be considered non-derogable. The right to an education may have to be suspended in some circumstances but this should be a temporary and exceptional measure only.

The SPLA has signed an extensive agreement on humanitarian principles, known as ‘Ground Rules’, with UNICEF. This is largely concerned with ensuring the safety and neutrality of international relief supplies, personnel and operations. This agreement should be considered to augment and reinforce international humanitarian law (the Geneva Conventions and Additional Protocols) and not contradict it.

Principle one includes, ‘The right to receive humanitarian assistance and to offer it is a fundamental humanitarian principle.’ This should be interpreted to mean that the SPLA (and by extension other opposition forces) should, to the extent possible, facilitate relief supplies. Any offer of relief should be interpreted as a friendly gesture. However, this does not award a right of operationality to international agencies. It is quite appropriate for the opposition forces to place restrictions on international agencies, to regulate their activities, insist on accountability, or insist on partnership with local organisations. An arrangement whereby international donors provide resources to local agencies is quite acceptable, provided the indigenous agencies are able to implement the necessary programmes. However, the forces should also recognise the international agencies’ requirements of impartial needs assessment, monitoring of supplies and impact, and financial accountability. The opposition forces are also entitled to reject assistance if it is offered by organisations with incompatible agendas (for example some religious organisations) or whose professionalism or code of behaviour is incompatible with the needs of the people.

The Ground Rules for Southern Sudan are not wholly applicable in their present form to eastern Sudan, where no UN agencies or international NGOs have an operational presence. They can however be suitably adapted and serve as a guide for action and policy by the indigenous agencies operational in these areas, notably the Sudan Future Care ‘Amal’ Trust and the Beja Relief Organisation.

The Federation of Red Cross and Red Crescent Societies has recently proposed an independent ombudsman to receive complaints and adjudicate on complaints concerning emergency humanitarian relief. The parties to the NDA should consider cooperating with such a proposal.

The 1948 Convention on the Prevention and Punishment of the Crime of Genocide is one of the simplest and most widely-ratified of all international conventions. Genocide, taken to include all extreme acts of violence directed at a certain ethnic, national or religious group, is the worst of all human crimes. Some of the actions and policies of the Sudan Government and its forces in the war zones of the South and the Nuba Mountains have bordered on the genocidal.

It should go without saying that the Sudanese opposition forces should be bound by the Genocide Convention. Unfortunately, however, there have been acts of inter-ethnic violence in Sudan during the war that imply that more is needed to ensure that the Genocide Convention is fully understood and complied with.

The major belligerent forces within the NDA— the SPLA, SAF and the Beja Congress— have all expressed their readiness to comply with the 1997 Ottowa Treaty banning the production, transfer, stockpiling and use of anti-personnel land mines. The Sudan Government has signed the Treaty, though it has yet to ratify it, and there is strong evidence that it is regularly violating it.

The Sudanese opposition forces should consider the following steps in order to comply with the terms of the Ottowa Treaty:

1. Destruction of all existing stocks of anti-personnel land mines;
2. immediate destruction of all stocks captured from the Sudan Government or lifted from the ground;
3. Undertaking programmes of community mines awareness, land mines survey, demarcation and mine clearance, including where appropriate cooperation with humanitarian mine clearance organisations;
4. Cooperation with the international campaign to ban landmines, specifically providing access to representatives of the campaign in order to inspect ammunition stores and to survey mined areas to determine whether the opposition forces and the Sudan Government have been complying with the ban on use of anti-personnel land mines.

The administration of justice and the rule of law in the liberated areas is one of the indicators of the place of law in future Sudan in which the SPLM and NDA play a major role. In addition, the right to a fair trial is an essential human right that cannot be suspended under any circumstances. The record of the opposition has given some cause for concern, but there are current reasons for optimism.

Before the war, judicial system in the south operated according to customary law, administered by chief's courts, and the provisions of the Sudan Penal Code, administered by a system of District and High courts run by legally qualified judges. The SPLA has retained the system and distinction between types of courts.

The SPLA first published its own legal code in 1983. This is a hybrid between a military code of discipline and a penal code for civilians. The SPLA used this legal code until 1994. In addition, the provisions of the pre-1983 Sudan Penal Code are apparently invoked when they do not contradict the SPLA Code.

The criminal justice system operating in SPLA-controlled areas until 1994 failed to satisfy minimum international standards of fairness in almost every respect. The courts were not independent or impartial, it was not clear what law was applied, there was no right of appeal in death penalty cases and the right to seek pardon or commutation of a death sentence was rarely honoured in practice.

The SPLA Code 1983 was theoretically administered through a three-tier system of courts-martial convened on an ad hoc basis. The highest court martial acted as an appeal court for the two lower courts and as a trial court for capital offences. Personnel serving in the courts were appointed by local commanders, with the exception of the highest court whose officers were appointed by the SPLA Chairman. According to the Code, death sentences ‘ought to be’ confirmed by the Chairman except when ‘communication with the headquarters are difficult because of enemy action or if moral or discipline dictates (when) a sentence of death may be confirmed by a Battalion Commander.’ When a sentence is being submitted for approval, a written copy of the investigation as well as the summary of the legal proceedings should be submitted to the confirming authority. This is an inadequate right of appeal as it contains significant clauses allowing the authorities not to uphold it. Additionally, in certain circumstances the death penalty can be carried out without approval of the Chairman of the SPLA/M.

Justice was hindered by lack of a code of procedure. There were no procedural guidelines for applying the SPLA Code, there was no limit on the length of time a suspect could be held for investigation or any requirement for accused to be brought to trial within a specified period. Investigations leading to prosecution in a court-martial were carried out by any officer on the orders of battalion deputy commander. There were no guidelines governing systems of investigation.

The administration of justice through courts-martial has been arbitrary and chaotic within the SPLA. There is confusion between the status of the legal code as a system of internal military discipline in times of war and its role as a regulator of civilian conduct. The court system is characterised by an inadequate separation of powers between executive and judiciary; in a situation where the military is totally dominant it is easily abused. The legal code has been applied on the whim of local commanders. Court rulings have been ignored or overruled. SPLA is hampered by a shortage of legal personnel, with only about twenty qualified judges. In June 1994 former SPLA officer who was involved in the administration of justice told Amnesty International:

The Code is next-to-useless. You just have to use your experience. The system that has been created in the end relies upon principles which are more appropriate for customary law. This involves negotiating a settlement to a dispute. So if the aggrieved party is a senior official or if the demand for action comes from the leadership you know what you have to do for those at the top, regulation of justice is more to do with the keeping of balance between political forces. There is no real judicial system.

In many cases the SPLA’s legal process was simply overruled or ignored. None of the political detainees arrested between 1984 and 1993 are known to have received anything resembling a fair trial. Some cases were investigated— although most frequently investigations appeared to have focused on extracting information rather than building a legal case.

Few death sentences were referred to the Chairman of the SPLA/M, as required by the SPLA Code. A local SPLA commander interviewed by Amnesty International in 1994 indicated that information about death sentences was often passed from his area, several hundred miles from SPLA headquarters in eastern Equatoria, by radio. The practical realities of communications in war-torn Sudan , combined with the speed with which death sentences are carried out, makes it unlikely that written records reached the Chairman.

However, the situation has considerably changed with the enactment of the Laws of New Sudan in 1994. The new laws repealed the SPLA Disciplinary Code 1983 and are considered a landmark in SPLM’s endeavour to establish the rule of law in areas under its control both in Southern Sudan, southern Blue Nile and the Nuba Mountains.

The 1994 SPLM Penal Code is a considerable improvement on its predecessor, though some gaps remain. It is largely based on the 1973 Sudan Penal Code (the best penal code in Sudan’s history). Similarly the codes for civil and criminal procedure are largely based on previous Sudanese legislation.

The main challenge to the administration of justice is training sufficient judges and other legal personnel and ensuring that SPLA commanders respect the provisions of the law and the rulings of the courts. Four years after the promulgation of the new Penal Code, which coincided with other measures to strengthen the civil administration of SPLA-controlled areas, there has been some progress in these areas. But the establishment of a full functioning judicial hierarchy and a de facto rule of law in SPLA-held Southern Sudan is still far from being achieved.

The judicial hierarchy is complete in the Nuba Mountains areas under SPLM administration. At present there is a regional court of appeal of three members headed by president, county courts (administered by first and second class judges), people’s local courts and village courts.

As in emergencies and war situations, the administration of justice and the protection of civil rights in the liberated areas have been characterised by frequent confrontation between the military and the civilian specially when the case involves the former. The Nuba Mountains is not an exception in this regard. The military tend to regard themselves above the civilian courts, if not above the law, even when cases in which they are involved are purely criminal and civil.

The SPLM administration in the Nuba Mountains has moved swiftly against this trend. The governor of south Kordofan, commander Yousef Kuwa Mekki, on behalf of the Advisory Council (the regional parliament) issued a provisional order regulating the arrest of the military personnel by the civilian judges in criminal cases. This provisional order issued on 24 December 1997 specifies the arrest procedures as follows:

1. When a party to criminal case is SPLA non-commissioned officer the judge of first or second class may issue warrant of search or arrest against him and place him in police custody. The judge shall subsequently inform in writing the commander of the person accused’s unit regarding legal and judicial action taken against him (Art. 20).
2. When a party to criminal case is an officer of SPLA the judge of first class may issue warrant of search or arrest after obtaining prior written permission from the commander of the person accused’s unit. The judge requesting permission to search or arrest an officer should inform the unit commander of the legal and judicial action intended to taken against the person accused officer (Art.21).
3. Once the permission to prosecute have been granted it cannot be revoked or retracted by the military command (Art.22).

The armed opposition in eastern Sudan has only recently begun to capture areas previously under Sudan government control. Large number of the population in the areas where the opposition dislodged the government forces opted to remain and the opposition took responsibility for administering these areas. The opposition are currently controlling areas of Southern Blue Nile (south and north of the river) and Beja areas in eastern Sudan.

The SPLA/M administration in southern Blue Nile under the command of commander Malik Agaar has established people’s local courts to handle the cases arising in areas under their control. These courts are presided over by chiefs who command the respect of their population. For instance chief Talib el Fil of Chali el Fil has been the chief of Uduk people since the 1960s and still commands the respect of his people. Currently he is the president of Chali el Fil people’s local court. The SPLM administration in Southern Blue Nile is making efforts to establish a viable judicial system that will guarantee the human rights of the population under their control. The administration is frustrated by lack of persons with judicial experience or training. This in turn impedes the formation of a judicial system competent to face the legal challenges created by liberation of more areas previously occupied by Sudan government.

In areas of Basonga and Menza under the administration of Sudan Alliance Forces (SAF), the organisation of a judiciary is in process. SAF have retained the people’ courts system that prevailed in the area before liberation. Again, the same problem of lack of judicial experience or legal knowledge among the population is an obstacle to realising effective administration of justice in this area of Blue Nile. The SAF civil administration is in the process of training para-legals, court clerks and police to form the nucleus of judicial system in the areas of Basonga and Menza. The first stage of this training has started in March/April 1998 and still continuing.

For the Beja areas in eastern Sudan the process of establishing the machinery for the administration of justice has barely started. Since January 1997 the area was placed under joint administration of the NDA. At present the area is being administered by the Beja Congress and it has drafted a code for civil and judicial administration. The code is awaiting the approval of NDA Leadership Council. The draft code stipulates retaining the traditional court system that existed in the area before liberation. That system consisted of Peoples Local Courts administered by chiefs and district courts administered by persons with legal background.

Cases among the civilian population are currently being handled by a professional judge. So far no complaints of human rights abuses by the armed Sudanese opposition have been reported. It is too early to assess how the courts after being established will respond to civilian complaints on human rights abuses in eastern Sudan.

One of the main indications of the opposition’s practical respect for human rights is the extent to which it is ready to take proper judicial action against those in its own ranks who are allegedly responsible for violations of human rights. To date, the record on this score has been disappointing. The SPLA command is not known to have taken action against human rights abusers within its ranks, or to provide redress for the victims of abuses. It has remained silent on this issue. SAF and the Beja Congress have denied allegations made against them of human rights abuses, but have so far not made public any cases of internal action taken against violators.

The SPLA has an office of an Attorney General and there are existing human rights units within the humanitarian organisations associated with the opposition (Beja Relief Organisation and Amal Trust). These offices should seek ways of enlisting the cooperation of other Sudanese and international human rights organisations in investigating allegations of abuse, so that appropriate action can be taken.

Despite the state of emergency created by the war in the liberated areas of Sudan, the experience so far proved that respect of human rights and humanitarian law is possible and desirable during the armed struggle. To enhance the Sudanese opposition’s adherence to these human rights principles we present the following recommendations:

All the opposition parties should respect international humanitarian law without reservations, especially measures for the protection of civilians, wounded and prisoners of war (whom they should treat in accordance with the stronger provisions of Additional Protocol I). They should adhere to the following:

a) Geneva Conventions of 1949;

b) Additional Protocols of 1977;

c) Convention on the Rights of the Child, 1989;

d) Ottawa Treaty prohibiting anti-personnel landmines of 1997.

Due to the de facto ‘state of emergency’ in liberated areas of Sudan it may be necessary to suspend some of the human rights provisions that would normally apply. But some human rights requirements should not be violable. Under all circumstances the following should be prohibited

a) arbitrary execution;

b) torture;

c) rape;

d) violations of the Rights of the Child;

e) violations of basic due process in carrying out trials and punishments.

It goes without saying that the 1948 Genocide Convention should also be respected. Under no circumstances should there be any targetting of people for abuses especially execution on the basis of their membership of a racial, ethnic or religious group.

It is difficult for all civil and political liberties to be met in full due to the de facto ‘state of emergency’ in non-government held areas of Sudan. But, for both principled and practical reasons, support to democratic and participatory processes should be an integral part of the liberation struggle. Special importance should be given to the judiciary, the civilian police, representative structures, and freedom of religion.

The enactment and enforcement of a military (disciplinary) act will tackle excesses of any armed opposition group against its soldiers and civilians in the liberated areas.

5. Humanitarian Principles