Legal Categorisation of the Sudanese Armed Conflict – Indian Blog of International Law

Abebew Sisay & Abrham Mamo

Introduction

To date, numerous armed conflicts have happened between actors of international law, particularly between states, as well as between state and non-state actors. These armed conflicts have caused severe devastation to civilians and civilian objects. The ongoing armed conflict in Sudan is one of the most devastating contemporary civil wars, being fought between the Rapid Support Forces (RSF), led by Mohamed Hamdan Dagalo, and the Sudanese Armed Forces (SAF), led by General Abdel Fattah al-Burhan. Sudan has been plagued by repeated armed conflicts and severe political instability since gaining independence. The downfall of the Al-Bashir regime in 2019 eventually resulted in a fragile, temporary transitional administration. This administration was dominated by a military coalition between the SAF, led by General Abdel Fattah al-Burhan and the RSF, a powerful paramilitary group led by Mohamed Hamdan Dagalo, commonly known as Hemedti. The RSF had originally been established by the Al-Bashir regime to suppress rebel forces across the country. While these two military leaders initially permitted a civilian-led government under Prime Minister Abdalla Hamdok, they later removed him in a coup. The current conflict was ultimately triggered by a breakdown in negotiations over the proposed integration of the RSF into the regular army (SAF), compounded by a rivalry for supreme political power.

The civil war officially erupted on April 15, 2023, when the RSF launched coordinated attacks against SAF military installations. When the hostilities began, the conflict was classified as a purely Non-International Armed Conflict (NIAC) under International Humanitarian Law (IHL), as it was fought entirely between state armed forces and a parallel, non-state organized armed group. Over time, however, both factions have accused several foreign states of intervening and providing military support to their opponents. Several reports demonstrate that states like Egypt, the UAE, Russia, Turkey, Iran, Eritrea,  and Uganda have provided military support to factions aligned with their national interests. Moreover, states like South Sudan and the Central African Republic are suspected of serving as grounds for UAE’s military support to the RSF.

Under IHL, a domestic armed conflict can transition into an International Armed Conflict (IAC) under certain circumstances, like when support is provided by a foreign state to the non-state party to the NIAC. This blog post examines the scale of intervention by some foreign powers and its subsequent consequences on the legal classification of the situation in Sudan. Ultimately, this post argues that the mere involvement of external sovereign powers in a NIAC does not automatically transform it into an IAC. As a result, this post argues that the ongoing Sudanese armed conflict remains a non-international armed conflict.

Legal status of Armed conflict under International Humanitarian Law

There are two distinct categories of armed conflict under IHL. IACs and NIACs.  An IAC occurs when hostilities are conducted between two or more sovereign states. For a situation to be classified as an IAC, neither a formal declaration of war nor the recognition of a state of war by a belligerent party is required. This threshold is clearly stipulated under Common Article 2(1) of the 1949 Geneva Conventions. Instead, the determining factor is simply whether hostilities have occurred between sovereign state actors.

Conversely, a NIAC is characterized by hostilities conducted either between a sovereign state armed forces and one or more organized non-state armed groups, or strictly between such groups themselves.  Crucially, not every domestic clash between government forces and other actors rises to the level of a NIAC. Low-intensity situations such as riots, isolated and sporadic acts of violence, or internal disturbances and tensions do not qualify as armed conflicts under IHL. Instead, these situations fall below the threshold of armed conflict and remain strictly governed by domestic law and International Human Rights Law.

Classifying the Ongoing Sudanese Armed Conflict under International Humanitarian Law

A NIAC can transition into an IAC under two specific circumstances. First, through direct military intervention against the host state. This occurs when an intervening state directly deploys its own military forces via air, sea, or land within the state where the NIAC is occurring, without the consent of the territorial sovereign. Crucially, direct military intervention on the side of the host states government against an insurgent group does not internationalize the domestic conflict. For instance, the military involvement of Eritrea in the war between the Federal Government of Ethiopia and the Tigray Peoples Liberation Front (TPLF) did not transform that domestic conflict into an IAC. Therefore, the specific party on whose behalf a foreign state intervenes is of paramount legal significance. In the case of the ongoing Sudanese armed conflict, there is no evidence demonstrating direct intervention by the allies of either warring actor in Sudan.

The second way of NIAC to IAC transition is through indirect intervention that meets the threshold of state attribution. Although the states do not directly deploy their military force in the host state in which the war is taking place, the NIAC can be changed to IAC when a certain threshold recognized by the precedent of the international tribunals and/or International Court of Justice (ICJ) are fulfilled. The International Criminal Tribunal for the former Yugoslavia (ICTY) pointed out that when the intervention of an external sovereign power takes the form of military or financial support, the conflict transitions into an IAC only if that foreign state exercises sufficient control over the non-state forces. ICTY ruled that:

control by a State over subordinate armed forces or militias or paramilitary units may be of an overall character (and must comprise more than the mere provision of financial assistance or military equipment or training). This requirement, however, does not go so far as to include the issuing of specific orders by the State, or its direction of each individual operation.

The ICJ has established a much higher legal threshold for state attribution. In the landmark Nicaragua case (Military and Paramilitary Activities in and against Nicaragua), the ICJ pointed out that the mere supply of funds, weapons, logistics, and organizational support is insufficient to internationalize a domestic conflict. Instead, the conflict transitions into an IAC only if the intervening state exercises effective control over the non-state force. The ICJ ruled that for the conduct of a non-state group to be attributed to a State, it must be proved that the State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed. This requirement demands that the State must have issued specific instructions or directed the precise tactical operations of the group, rather than providing general assistance or overall guidance.

Applying the authoritative frameworks of state attribution established by the ICJ and the ICTY it becomes clear that the extensive external involvement in Sudan has not legally transformed the conflict into an IAC. Under the ICJ’s landmark ruling in the Nicaragua case, the threshold for attributing the conduct of a non-state armed group to an external state is exceptionally high. The ICJ determined that providing financial aid, weapons, logistics, and training is insufficient to internationalize a conflict. Instead, the intervening state must exercise effective control over the non-state actor, meaning it must issue specific operational instructions or directly command the precise military actions during which international humanitarian law violations occur.

In the Sudanese context, nations like the UAE, Russia, Turkey, Iran, and Egypt have been supplying advanced weaponry, such as combat drones, along with logistical pipelines and financial backing. Yet, there is no evidence that any of these foreign backers are directing the day-to-day tactical decisions or issuing operational commands to either the SAF or the RSF in the field. Consequently, under the strict Nicaragua standard, this external involvement fails to meet the threshold of effective control required for internationalization. Even when applying the more flexible overall control test established by the ICTY Appeals Chamber in the Tadić case, the legal character of the Sudanese conflict remains unchanged. The ICTY recognized that a state may exert overall control over subordinate armed forces or militias if it goes beyond the mere provision of financial assistance or military equipment and actively participates in organizing, coordinating, or planning the groups military activities.

However, the relationships between the external backers and the warring factions in Sudan do not cross this legal line. Although the RSF receives significant material and logistical support from external actors, and the SAF benefits from military hardware supplied by regional allies, neither faction operates as a subordinate proxy whose grand military strategy is organized or planned by a foreign power. Both the SAF and the RSF maintain complete organizational and strategic autonomy, prosecuting a domestic war driven entirely by their own localized leadership and political ambitions.

Conclusion

Ultimately, while the geopolitical interference of regional and global powers including Egypt, the UAE, Russia, Turkey, Iran, Eritrea, and Uganda have severely prolonged the hostilities and worsened the humanitarian crisis, it remains legally confined to indirect assistance. Because this external backing does not satisfy the effective control test of the ICJ or the overall control test of the ICTY, and because no foreign state has directly deployed its own regular forces to wage war against the Sudanese state without its consent, the threshold of internationalization is not met. The ongoing war in Sudan therefore remains classified strictly as a NIAC under IHL.

(This is a Guest-Post by Abebew Sisay and Abrham Mamo. Abebew Sisay is a Federal Prosecutor at the FDRE Ministry of Justice. His areas of interest include international human rights law, international humanitarian law, and public international law. Abrham Mamo is a Federal Public Prosecutor at the Policy Research Directorate of the FDRE Ministry of Justice. His professional and academic interests include International Human Rights Law, International Humanitarian Law, and Transitional Justice. He is particularly interested in legal research and policy development related to human rights, justice, accountability, and peace.)