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Editor’s Note: With the April 8 deadline fast approaching for Sudan to strip citizenship from “southerners,” concerns are mounting about how Khartoum will handle the more than half a million people who fall under this classification. Lawyer and guest writer James Bair considers the illegality of Khartoum’s move and offers suggestions about how an impending disaster might be averted.
Ahead of the January 2011 South Sudan self-determination referendum, Khartoum threatened that individuals who were eligible to vote in the referendum but who were living in the North would cease to “enjoy citizenship rights, jobs or benefits” if they voted for secession. The North would “not even give them a needle in the hospital.” Sudan has now begun to make good on these threats, in violation of several international laws. In the coming weeks, nearly 700,000 “southerners,” many of whom fled to the North to escape Sudan’s civil war, may be driven from their homes and forced to resettle in South Sudan—a country to which most have little more than ancestral ties. Like the expulsion of Jews from Nazi Germany, this is all being done in the name of law and order.
The referendum was intimately connected with ethnicity. Only those who were “born to parents . . . [from] the indigenous communities . . . [of] Southern Sudan . . . or whose ancestry is traceable to one of the ethnic communities in Southern Sudan” were eligible to vote. Khartoum made clear that if independence passed, it would strip Sudanese citizenship from anyone residing in the North who fit this description. To prevent these individuals from being left stateless upon South Sudan’s independence, Juba subsequently provided in its Nationality Act that a person “shall be considered” a southern citizen if her “parents, grandparents, or great-grandparents . . . were born in South Sudan,” or if she “belongs to one of the indigenous ethnic communities of South Sudan.” South Sudan therefore bestowed citizenship on all ethnic southerners, even if they have had no contact with the South for generations.
Khartoum, which had already fired all “southerners” from government jobs, responded on July 13 by amending its own law so that anyone who, either in fact or by operation of law, “has obtained . . . the nationality of South Sudan” would “automatically lose his Sudanese nationality.” Thus, gaining citizenship from the South meant automatically forfeiting it in Sudan, even if an individual has not affirmatively sought to become a citizen of South Sudan. Northern officials justified this because of the high percentage of “southerners” who voted for independence and the ongoing oil dispute between the two countries.
Last month, the two Sudans signed a problematic Memorandum of Understanding, or MOU, that operationalizes these laws. It states that the return of “Southerners . . . should take place on their own free will,” but gives the South primary responsibility for their safe return, even though Juba has no control over the lands across which they must travel. The MOU has no method for ascertaining whether an individual’s departure is truly voluntary. Even more worrisome, its terms—and thus the North’s obligation to respect the voluntariness of individuals’ returns to South Sudan—expire on April 8. Given Khartoum’s statements, many fear that the North will forcibly deport any ethnic “southerners” who are unwilling or unable to leave by April 8.
Adding to these concerns, the International Organization for Migration, or IOM, recently said that it is “totally impossible” to relocate all ethnic southerners living in the North by the MOU’s deadline. IOM further asserted that it was “absolutely critical that Sudan extend the deadline.” However, given the current political climate between Khartoum and Juba, the likelihood of an extension seems miniscule, leaving the safe, dignified, and voluntary return of hundreds of thousands of ethnic southerners hanging in the balance.
Some commentators see this as a question of statelessness, arguing that Khartoum has violated the universal guarantee to a nationality. This gets the principles right but the law wrong. Southerners in the North have not been left stateless. Rather, they legally gained southern citizenship through operation of South Sudan’s Nationality Act on July 9, 2011. Automatically conferring a nationality, rather than setting criteria and inviting people to apply for it, is rare, but it is not against international law. Indeed, America’s first Naturalization Act did this for children born overseas to U.S. parents. Even if the child was also a citizen of another country, U.S. law made her an American from birth, not from the time she asked for citizenship. Nor does it matter that South Sudan has yet to issue identification papers. Although a passport proves citizenship, it is the law, not the paperwork that makes someone a citizen.
But Khartoum has violated other international laws. The Universal Declaration of Human Rights states: “no one shall be arbitrarily deprived of his nationality.” Stripping citizenship from 700,000 people without due process is utterly arbitrary. The International Law Commission, which has proposed rules for cases of secession, urges that ethnic Southerners with longstanding ties to the North should have a “right of option” that allows them to choose which nationality they want.
The mass expulsions that are likely to follow from all this are also illegal. The African Charter on Human and People’s Rights states:
The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic, or religious groups.
In retaliation for secession, Khartoum aims to expel 700,000 people based solely on their nationality, which in turn rests on ethnicity. The African Human Rights Commission, which interprets the charter, has held that such politically motivated deportations are illegal and that “every individual . . . [must have] the right to appeal his deportation order.” This is also enshrined in the International Covenant on Civil and Political Rights, to which Sudan is a party.
Because it is based in the Gambia, the African Commission may be able to influence the two Sudans where the U.N., often seen as a Western institution, cannot. While the U.N. accepts petitions mainly from states, the commission permits individual complaints. Here, where the number of victims is huge, it permits NGOs to file a suit on their behalf. The commission also has the power to hear cases on an emergency basis and to take preliminary actions “to avoid irreparable damage being caused to the victim” while the case is being heard. Because this violation of the charter is so blatant, an emergency appeal may be able to stop or delay the expulsions. But as always with international law, having the correct legal argument will not be enough. Political will and public support will be needed to force compliance with any ruling. The case is strong, but time is short.
James Bair is a graduate of Northeastern University School of Law in Boston, MA. He helped establish the Victims Unit at the Extraordinary Chambers in the Courts of Cambodia and has published on the rights of victims under international criminal law.