As active fighting in Sudan’s capital, Khartoum, nears the two-month mark, the African Union’s Peace and Security Council (AUPSC) finally found time to meet at the level of heads of State and government on May 27. Emerging from the meeting, the leaders acknowledged that the armed conflict between the Sudanese Armed Forces (SAF) and the rebranded Janjaweed, now known as the Rapid Support Forces (RSF), has resulted in “gross violations of international humanitarian and human rights law.” They transmitted six demands to the belligerents, including unconditional cessation of hostilities, unhindered humanitarian access, and resumption of the political process, which formed the foundation for their six-point plan for resolving the crisis. This is only a modest update of the AU’s penultimate statement on the conflict.
But the AUPSC communique offers no credible proposals for addressing the problem of forced displacement in Sudan’s latest crisis, other than an appeal for solidarity on the refugee question addressed to nebulous “members of the international community, including the immediate neighbours of Sudan.” Demonstrating a disconcerting lack of interest in the subject, the AUPSC communique managed to confuse the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa with the African Union’s Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention) adopted in 2009, mistaking the latter for the former.
As the AUPSC convened for its summit, the United Nations High Commissioner for Refugees, UNHCR, reported that the fighting in Khartoum had displaced some 1.4 million, of whom at least 345,000 had crossed international borders. One week later, by June 4, this number had risen 385,371 refugees and over 1.2 million internally displaced persons (IDPs), according to UNHCR. In effect, this fighting has already displaced over 25 percent of the population of metropolitan Khartoum.
At the start of these hostilities, Sudan hosted over 1.13 million refugees – the second largest refugee population in Africa after Uganda and the seventh largest in the world. Of these, 800,000 were from South Sudan, 134,000 from Eritrea, and another 58,000 from Ethiopia. Many of these are among the number now also displaced by the conflict.
The latest conflict in Khartoum has become a crisis not just of forced displacement but also for the global system of governing forced displacement, together with its regional complement in Africa. In a neighborhood long defined by chronic and large-scale refugee flows, the Sudan crisis endangers existing refugees, produces an exodus of its own, and could easily have lasting consequences for refugee protection everywhere, especially in Africa. Even as they seem unable to immediately address the underlying causes of the current crisis in Sudan, the African Union and the United Nations can demonstrate their relevance by finding solutions to its most urgent consequences. Few among these consequences seem as pressing or as potentially profound as the fate of the global refugee protection system and its complement in Africa.
Events Seriously Disturbing Public Order
To provide some brief context, Article 12(3) of the African Charter on Human and Peoples’ Rights – the African Union’s own founding human rights instrument – guarantees for everyone a right, when persecuted, to seek and obtain asylum “in accordance with the laws” of the host country and with international conventions. The pattern of abuses by both parties clearly indicates that the fighting in Khartoum has rendered national laws and the systems for their administration practically ineffective. Refugees seeking protection – both those within Sudan and those fleeing from it – must rely on international and regional legal frameworks.
The global refugee protection system established in 1951 initially provided only for European refugees and was applicable only to persons seeking asylum as individuals. By the time the focus on Europe shifted in 1967, Africa was already at the beginning of a post-colonial refugee crisis. In 1969, the Organization of African Unity (OAU) – as Africa’s regional cooperation institution was then called – adopted a continental Convention Governing the Specific Aspects of Refugee Problems in Africa, which departed from the global refugee system in significant ways. Two of these departures are relevant to the present crisis: the Convention defined the refugee problem in Africa simultaneously as a humanitarian, political, and security challenge; and provided for mass influx arising from “events seriously disturbing public order in either part or the whole” of the country, a category that easily fits the unfolding situation in Sudan.
Four Crises in One
This conflict in Khartoum transforms the international landscape for the protection of refugees in at least four ways. It creates an exodus of its own into countries, most of which are both unprepared and unsuitable; displaces large populations of refugees already granted status in Sudan creating a real threat of involuntary return of refugees to countries where they face persecution – known as refoulement – which is prohibited under international law; raises a spectre of large-scale denial of status at border crossings; and appears to have created an unprecedented possibility of denial of proof of citizenship or of de facto statelessness. Each of these on its own would be a major challenge for refugee protection. Together, they amount to an existential crisis for the international regimes for the protection of refugees.
Khartoum’s implosion has created a new wave of forced displacement across Sudan’s borders into its neighbors. According to UNHCR, at the beginning of June, the distribution of the newly displaced from the fighting in Khartoum included 100,000 to Chad; 94,471 to South Sudan; 169,565 to Egypt; 13,824 to Central African Republic, and 7,511 to Ethiopia. The Sudan Emergency Supplementary Appeal, which UNHCR published in mid-May, estimates that the current crisis could displace over one million into refugees status: including 640,000 refugees, 204,000 returnees, 166,500 migrant returnees, and 51,500 third country nationals. In a region populated by porous borders, many refugees are likely to be undocumented.
While all of them have ratified the OAU Refugee Convention, most of Sudan’s neighbors appear unprepared or reluctant to host a mass influx from the present crisis. On Sudan’s northern borders, for example, Egypt initially required those fleeing into its territory from Sudan, many of whom had neither cash nor travel documents, to pay for and process a visa at the border. To Sudan’s western borders, Chad’s initial response was to close its 1,403 km-long border with Darfur, forcing many people to resort to undocumented borders. These steps violate the explicit obligation assumed by State parties in Article II(3) of the OAU Refugee Convention to refrain from measures such as rejection at the frontier, return or expulsion, or others which could compel a refugee “to return to or remain in a territory where his (or her) life, physical integrity or liberty would be threatened.”
In recognition of the danger posed by these measures, UNHCR belatedly urged neighboring countries to keep their borders open for those fleeing Sudan. But these countries are unlikely to heed the appeal without credible assurances regarding how to share the resulting humanitarian and security burdens.
Second, Sudan is in a neighborhood where conflict and fragmentation have both been sources of chronic cycles of exodus and forced displacement. It shares borders with Chad, Central African Republic, Eritrea, Ethiopia, Libya, and South Sudan, all States which are themselves countries of origin for considerable refugee populations. Large numbers of refugees from neighboring countries who were in Sudan before the onset of this conflict now face the threat of involuntary return. By June 4, UNHCR reported that 88,598 refugees from South Sudan; 3,456 from Central African Republic; and 55 from Ethiopia had been forced to return from Sudan to their respective countries.
According to UNHCR, many refugees from neighboring countries are being forced by the intolerable conditions created by the fighting to return home “in adverse conditions.” Over eight years ago, the U.N. protested the refoulement by Sudan and Egypt of refugees to Eritrea, clearly indicating the unsuitability of the country for refugee return. Nothing suggests that the situation has improved. If anything, the situation in Eritrea has deteriorated since then as is evident from the steady rise in the number of refugees leaving the country, especially into or across Sudan. Yet, in recent weeks, it was reported that up to 3,500 Eritrean refugees in Sudan have been forcibly returned to their country and at least 95 of them have been herded back into prison, including known opposition activists. The threat of further displacement from the violence in Khartoum or forced or involuntary return in these circumstances, endangers the prohibition against refoulement which is the foundation of refugee protection in international law.
Third, many of Sudan’s neighboring States have heightened security concerns arising from the influx of refugees from Sudan. As one report explains, poorly policed borders have encouraged cross-border movement of “armed groups and militias in the region. Fighters move freely between countries and evade authorities, carrying out cross-border attacks and other crimes.” Yet, in the circumstances of the current displacements, it is unlikely that Sudan’s neighbors will have the capacity to reliably screen many of the individuals crossing their borders. These countries have the benefit of legal cover in Article I(5) of the OAU Refugee Convention, which excludes from refugee protection persons suspected of involvement in international crimes or crimes against the objects and purposes of the African Union and in Article III of the same Convention which prohibits “subversion” or “subversive activities” by refugees. Neither the AU nor UNHCR have offered Sudan’s neighbors or host States any plausible options to manage the new arrivals or ensure compliance with the Convention’s provisions.
Fourth, many States have responded to the situation in Sudan in ways that could expose victims of the crisis to de facto statelessness, if not worse. As the fighting erupted in Sudan’s capital, several foreign countries evacuated their diplomatic staff (as was their right) without returning the passports in their possession of African nationals who had sought visas or consular services. The Dutch Embassy in Khartoum, for instance, admitted that “a number of Sudanese passports were left behind” in the Dutch embassy from those seeking a visa to the Netherlands. And France and the United States have not denied reports that their missions in Khartoum shredded the passports of Sudanese and other African nationals as their personnel evacuated. Without passports or access to their documents, the affected individuals could encounter insuperable difficulties in proving their nationality, their entitlement to protection from their countries of origin, or in espousing credible claims against governments outside of Sudan. Unable in this situation to prove their nationality, many of these people would have benefited from the willingness of the AU to raise this issue for international attention. Instead, the AU has reponded with silence.
Before the Guns Fall Silent
The AU’s favorite formulations of “humanitarian access” and “civilian protection” do not address any of these issues, and its slow response fails to acknowledge the seriousness of the situation and inspires little hope that its continental refugee system will remain relevant. Welcome as it is, UNHCR’s own emergency plan for the situation omits any credible plans for addressing the most serious issues likely to frustrate its successful implementation. Nearly two months after the onset of this crisis, evidence of effective coordination between the AU and UNHCR is sparse at best. A range of measures could be easily implemented to strengthen refugee protection in the face of the scale of the Sudan crisis and address this coordination failure.
First, given the chronic and interconnected nature of the regional refugee crisis not just in Sudan but its neighboring countries, the AU could move quickly to designate a continental High Representative for Refugees and Internally Displaced Persons with a mandate to act and assist in mobilizing resources, liaise with UNHCR, and advocate for both host countries and victims of forced displacement, beginning with the current crisis in Sudan.
Second, in the interim the AU could establish an internal joint coordination capacity between its Commissioners for Peace and Security and for Health, Humanitarian Affairs and Social Development to liaise with Sudan’s neighbors, UNHCR, and the African Commission on Human and Peoples’ Rights on the issue of screening new arrivals. In particular, the AU could act as interlocutor on behalf of all African nationals deprived of their travel and identity documents when foreign governments evacuated Khartoum.
Third, allegations of forced return of refugees to States of origin, especially the reports concerning the probable refoulement of significant numbers of refugees back to Eritrea, endanger the very foundations of international refugee law and protection and call for urgent attention. The AU, UNHCR, the U.N. High Commissioner for Human Rights and the African Commission for Human and Peoples’ Rights have a joint and collective responsibility to quickly investigate these allegations and ensure effective responsibility for any violations.
Finally, the African Commission on Human and Peoples’ Rights, which has treaty responsibility under the African Charter on Human and Peoples’ Rights, to ensure effective access to the human right to asylum missed the opportunity to place this issue under Article 19 of the AUPSC Protocol on the agenda of the last AUPSC summit meeting. It is not too late for the Commission to do so.
These issues are likely to persist beyond the current conflict in Khartoum. The multiple crises for displacement created by this conflict are likely to persist beyond the active life of this war. Whenever Sudan’s generals do lower their guns, displaced people will still require attention. The African Union and the United Nations refugee protection systems can take active steps to address the problem now and reduce the likelihood of both contagion and spillovers.