Sudan v UAE: Where Legal Categories could have met Fluid Identities

Sudan v. United Arab Emirates is no more before the International Court of Justice. Not only did the Court reject Sudan’s request for provisional measures against the UAE due to a lack of prima facie jurisdiction; it controversially – nine judges voted in favour; seven against – removed the case from its general list, arguing that there was a ‘manifest’ lack of jurisdiction and therefore no reason to let the parties develop their arguments on jurisdiction. The (partly) dissenting opinions and declaration show that some judges were willing to reconsider the ICJ case-law on whether reservations to the dispute-settlement clause in the Genocide Convention are compatible with the Convention’s object and purpose. Judge Simma concluded that ‘the Court has missed a significant opportunity to give the Genocide Convention the judicial attention it so rightfully, and urgently, deserves’.

Without going into the question how ‘real’ this opportunity was from a jurisdictional perspective, this blogpost focuses on another aspect of the Genocide Convention that deserved the ICJ’s full attention, especially at the merits stage: how to apply the Convention’s categories of protected groups to the fluid identities of social groups in Sudan. When analysing violence in Sudan through the categories of the Genocide Convention, several other official bodies have showed how not to do so: in the pursuit of justice, they applied the terms for groups protected by the Genocide Convention to categorize Darfur’s fluid social groups in a way that entrenched processes of racialization (I). The case before the ICJ (II) could have provided an occasion to do it differently (III). A more sophisticated discussion of Sudan’s history and society could, instead of solidifying the consequences of racism, have made processes of racialization the very object of legal condemnation. We hope that this could-have-been analysis will prove useful in the search for alternative ways and venues to address the crimes committed in Sudan.

I Problematic previous categorizations of Darfur’s groups into the categories protected by the Genocide Convention

At least four official bodies have analysed the violence in Darfur of the early 2000s through the lens of the Genocide Convention: the US State Department, the UN Security Council’s International Commission of Inquiry on Darfur (ICID), a Sudanese Commission of Inquiry and the Prosecutor of the International Criminal Court. As part of their assessment as to whether genocide had taken place, they determined whether the victims belonged to any of the four categories protected by the Genocide Convention: national, ethnical, racial and religious groups. As one of us has shown in a chapter forthcoming in a book co-edited by the other of us, all four bodies focused on whether the Sudanese groups were ‘ethnic’ or ‘tribal’ groups. The category of religious groups was deemed irrelevant because attackers and victims were both overwhelmingly Muslim. The category of national groups was considered inapplicable – maybe because all sides were Sudanese. (On the eve of colonial conquest, however, the present-day territory of Darfur had been home to states with their own armies and languages, and very often multinational populations.) The official bodies also all refrained from labeling the groups as ‘racial’: ICID described the concept as ‘outmoded or even fallacious’. It nonetheless considered it possible to use the category for ‘individuals sharing some hereditary physical traits or characteristics’ (para 494). But it apparently did not deem this a useful ground on which to differentiate among victims and perpetrators in the context of Darfur.  

However, while avoiding the category of race, these official bodies reintroduced race through the back door. The bodies struggled to fit African social formations into the categories of the English-text of the Genocide Convention. Many of them described the social groups of Darfur as ethnic groups. Some described those social groups as ‘tribes’ – pointing implicitly or explicitly to the fact that ‘tribes’ are not protected by the Genocide Convention. By using the term ‘tribe’, the official bodies relegated people to a past of instinctive loyalty rather than recognizing current political complexity. Colonialists had used the concept ‘tribe’ to extend control over diverse social groups. But this was not the only way in which these official bodies garbled social formations; they also invoked a race marker: all the ethnic groups and all the tribes were routinely categorized as either ‘African’ or ‘Arab’. All the official bodies invoked the racialized binary of ‘African/Arab’, which British rulers of Sudan had introduced over the course of the twentieth century, even though all Sudanese are African, and nearly all speak Arabic.

The binary served to justify and mystify new social inequalities which the colonialists fostered as part of their colonial project. By resorting to the language of tribalism and in some instances drawing on archaic European sources on tribes, the official bodies investigating twenty-first century genocide brought in racialized thinking in their discussion of ‘ethnic groups’. In doing so, they reinforced processes of racialization underway in Sudan. 

II The case thrown out by the ICJ

In the case that the ICJ has just removed from its general list (read: thrown out), Sudan had accused the UAE of complicity in genocide committed by the Rapid Support Forces (RSF) against the Masalit in Darfur. Compared to what is happening in Sudan generally and Darfur specifically, the claim was a narrow one: RSF attacks have made victims belonging to multiple groups, not just Masalit. But the violence against Masalit in 2023-2024 stands out as particularly targeted. It may be that the Sudanese government, or the lawyers bringing the case on its behalf, learnt from the challenges that commissions of inquiry and the International Criminal Court faced when assessing whether SAF and militia attacks against a diverse set of communities in the early 2000s could be labeled as genocide. Paradoxically, limiting the category of victims to those belonging to one group may have been expected to enhance the chances of a finding of genocide.

But in standing up for the Masalit, the Sudanese government invoked the same racialized African/Arab binary that characterized the discussions of the previous official bodies. In the application, it spoke of ‘members of the Masalit group [being] Black African persons who speak dialects of the Masalit group’ (para 7). In its pleadings, Sudan labeled the Masalit as a ‘non-Arab ethnic group’, and the RSF as a ‘militia composed of Arab Darfuris’ (CR 2025/1 p. 17).

Some may argue that this labeling is just inherent in applying the Genocide Convention’s seemingly rigid categories to the blurry, malleable and ever-changing social reality. And that we should therefore not treat genocide as the crime of crimes and recognize that crimes against humanity and war crimes should also be condemned, which is true. But our argument is more ambitious: a sophisticated legal interpretation of the controversial category ‘racial’ in the prohibition of genocide could recognize processes of racialization and, as a result, protect more people under the Genocide Convention. Sudan provides an example.  

III Racialized rather than racial groups: the need for a richer historical and ethnographic engagement

A historical and linguistic study shows how group formation in Sudan generally and Darfur specifically has been shaped by the area’s integration into transnational commercial markets, first during the Ottoman Empire, then under colonialism and post-independence. The Arab/African binary, and subcategorization into ‘tribes’, were tools of British colonialists to organize, structure and divide the society they governed. While after independence some Sudanese governments tried to move away from administrative tribalism, the Al-Bashir government intensified it to govern the periphery, also militarily: young male elements of some of these ‘tribes’ were recruited as militias, which for their part attacked ‘tribes’ with whom they competed over increasingly scarce land and water. The Al-Bashir government, for which the current government served as a military wing, thus reworked the Arab/African binary to identify allies and adversaries in Darfur, depending primarily on Arabic-speaking camel pastoralists for land seizures and extermination of landed ‘African’ groups associated with armed opposition groups seeking greater representation and resource allocations from the central state.

Sudan’s racialized binary is being reworked again now the ‘Arab Darfuri’ militias have turned against the Sudanese army. As we are writing, the ‘Arab Darfuri’ RSF is besieging Al-Fasher, the capital of North Darfur, and the Sudanese army is defending it with the help of militias that were once its adversaries, racialized as ‘African’. At the same time, the Sudanese army has expelled the RSF from the national capital Khartoum and nearby cities – the cultural heartland of Sudanese Arabness. There, the army’s allied militias stand accused of engaging in targeted killings of Sudanese whom they apparently viewed as ‘Africans’ (the army issued a rare condemnation of ‘individual violations that have recently occurred’).  These people are poor and culturally different, and as the RSF swept through the cultural heartland of the state, their poverty and cultural difference made their neighbours suspect them of support for the RSF. The current war is thus metastasizing Sudanese processes of racialization that Sudanese governments have used since the nineteenth century.

IV Conclusion

The Genocide Convention protects only four kinds of groups. But rather than amounting to explanations for violence, these groups themselves are often co-constituted by violence and racism. A sophisticated application of the Genocide Convention must involve a sophisticated analysis of such processes. The fluidity of social groups is thus not a reason to diminish the protection under the Genocide Convention; it requires lawyers to recognize social processes that are central to the crimes that the law condemns.