By Oriola O. Oyewole
This analysis posits a dual thesis. First, the fragmentation of regimes within international law generates systematic protection gaps by entrenching institutional mandate silos. Second, belligerent states exploit these lacunae as a deliberate strategy to evade accountability. The armed conflict that unfolded in Sudan between 2023 and 2024 substantiates this theoretical framework. Sivakumaran, a leading scholar on the law of armed conflict, identifies the “detention gap” as an unintended consequence of the legal framework [1]. Türk and Eyster document ‘mandate silos’ creating protection asymmetries [2].
Sivakumaran’s analysis demonstrates that the absence of explicit detention authority in non-international armed conflict (NIAC) is not a deliberate omission but a structural lacuna arising from the historical evolution of international humanitarian Law [3] (IHL). His examination of Common Article 3 and Additional Protocol II to the 1949 Geneva Conventions reveals that states’ reluctance to regulate internal conflicts, rooted in sovereignty concerns, has produced a normative framework that tacitly presumes detention will occur while providing no substantive legal framework to govern it [3]. This “detention gap” exemplifies how regime design failures create protection vacuums that, although unintended, become susceptible to strategic exploitation by parties to a conflict. According to Sivakumaran, the detention gap is an unintended structural flaw. This analysis synthesises these insights to demonstrate intentional state exploitation.
Sudan’s systematic invocation of jurisdictional boundaries reveals that regime fragmentation operates not merely as a technical oversight but as a strategically exploitable terrain. In Sudan,the two warring parties’ selective engagement with international justice mechanisms, rejecting International Criminal Court jurisdiction through complementarity arguments while simultaneously pursuing International Court of Justice (ICJ) remedies on territorial disputes [4], exemplifies what Koskenniemi identifies as “forum-shopping” based on strategic calculations about which regime will yield favourable outcomes [5].This pattern demonstrates the deliberate weaponisation of structural gaps: Sudan’s non-ratification of the Kampala Convention creates a protection vacuum for internally displaced persons (IDPs), while UN Security Council referral mechanisms, lacking enforcement infrastructure, enable impunity despite formal jurisdiction [6].As Benvenisti and Downs argue, such fragmentation is not accidental but reflects states’ calculated efforts to evade accountability within a deliberately incoherent legal architecture [7].
The subsequent sections critically deconstruct three core structural vulnerabilities: the jurisdictional lacuna between IHL and international human rights law (IHRL); the refugee/IDP protection asymmetry; and the accountability, protection contradiction, examining how each gap emerges from institutional design and how Sudan has converted legal ambiguity into operational impunity.
The Shell Game Mechanism: Forum Shopping Through Framework
How Lex Specialis Creates Institutional Blind Spots
According to Abdullahi, the lex specialis principle operates as an international law mechanism for resolving conflicts: when multiple legal regimes govern the same situation, the more specific framework (IHL in armed conflict) displaces the general (IHRL). [8] This doctrinal solution, however, generates an institutional paradox. IHL and IHRL vest monitoring authority in different actors with non-overlapping mandates. When lex specialis shifts applicable law from IHRL to IHL, it simultaneously transfers institutional jurisdiction from human rights bodies to humanitarian actors, yet these institutions possess fundamentally incompatible authorities and operational capacities.
The ICJ’s 1996 Nuclear Weapons Advisory Opinion arose from a UN General Assembly request asking whether the use of nuclear weapons was permitted under international law. At paragraph 25, the Court articulated the lex specialis doctrineThe ICJ rejected absolute lex specialis displacement in its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, holding that human rights obligations “do not cease in case of armed conflict [9]”. The Court did not find that IHRL is wholly displaced; rather, it affirmed its continued applicability while clarifying that IHL serves as the lex specialis in determining what constitutes an “arbitrary” deprivation of life during armed conflict. This reflects the complementarity model rather than the displacement one, the latter of which the ICJ rejects. Instead, the Court applies the complementarity principle: both frameworks operate simultaneously, with IHL providing specific rules where overlap exists. This contradicts states’ jurisdictional shell-game strategy of invoking IHL to escape IHRL monitoring entirely. While the ICJ articulates a framework of normative complementarity, it remains deficient in enforcement mechanisms, notably lacking a procedure for individual complaints. In practice, states may disregard the ICJ’s interpretive guidance due to the persistent fragmentation of institutional jurisdiction among bodies with distinct, non-overlapping mandates.
The protection deficit is most acute in NIAC detention regimes. Common Article 3 permits security detention but prescribes no procedural safeguards: no habeas corpus, no family notification and no judicial review. Pejic argues that Common Article 3’s silence indicates the absence of inherent detention authority, requiring IHRL safeguards to fill the gap [10]. These protections exist exclusively within IHRL frameworks, specifically Article 9 of the International Covenant on Civil and Political Rights (ICCPR), which guarantees judicial review [11] of the legality of detention. Yet the application of lex specialis during armed conflict renders Article 9 “displaced”, leaving civilian detainees in a normative vacuum. Sivakumaran terms this the “detention gap”, whereby NIAC detainees receive demonstrably inferior legal protection compared to prisoners of war (POWs) in international armed conflicts (IACs), not because of different substantive rights, but because lex specialis activates different institutional monitoring regimes with asymmetric capacities.
This institutional asymmetry operates through the specificity of mandates. The International Committee of the Red Cross (ICRC) holds binding authority under Article 126 of Geneva Convention III to access POWs in international conflicts, with states legally obligated to facilitate visits. In NIACs, by contrast, ICRC access depends entirely on state consent under Common Article 3’s permissive language, which merely provides that the ICRC “ may offer its services” to the parties.
Geneva Convention III, Articles 99–108 and 126, provide procedural safeguards for POWs and mandate ICRC access. By contrast, Common Article 3 is silent on detention procedures and monitoring. The ICRC posits that internment in NIAC is dependent on state consent [11]. Sassoli argues that these discrepancies lead to institutional asymmetry. Hence, it can be argued that while it appears that individuals detained in NIACs are not afforded robust legal protection in comparison to their POWs counterpart in IACs, this disparity does not arise from divergent substantive rights. Rather, it is a consequence of the operation of the lex specialis, which triggers distinct institutional monitoring mechanisms characterised by unequal capacities [12].
Simultaneously, UN human rights bodies— including the Office of the High Commissioner for Human Rights (OHCHR), the Human Rights Committee and special rapporteurs—derive their monitoring authority from IHRL treaties. However, when states invoke lex specialis displacement, these bodies lose their jurisdictional basis for intervention. The doctrinal principle thus creates an institutional no-man’s land: the ICRC lacks binding access authority while the OHCHR faces jurisdictional exclusion. For instance, UN human rights monitoring is divided between treaty bodies and Charter-based mechanisms, both of which are structurally incapable of binding enforcement.
The Human Rights Committee operates under Articles 28 and 40 of the ICCPR, issuing non-binding “views” on individual complaints only where states have ratified the Optional Protocol, excluding major powers such as the United States. Charter-based bodies such as the OHCHR and special rapporteurs, established by General Assembly resolutions, possess even weaker authority and are entirely dependent on state consent. When states invoke lex specialis during armed conflict, treaty bodies lose jurisdiction as human rights law is considered displaced, while Charter mechanisms lack compulsory powers to maintain oversight. By contrast, the European Court of Human Rights issues binding judgments under Article 46 of the European Convention on Human Rights and maintains enforcement monitoring through the Committee of Ministers, demonstrating that effective protection requires adjudicatory institutions with remedial powers, not advisory bodies producing unenforceable recommendations.
Sudan’s Strategic Invocation of Jurisdictional Boundaries
The armed conflict between the Sudanese Armed Forces (SAF) and the Rapid Support Forces (RSF) erupted in April 2023, and constitutes a NIAC under Common Article 3. It also exposes the institutional deficit inherent in lex specialis application. Both parties to the conflict are implicated in the systematic and arbitrary detention of civilians, as evidenced by credible reports indicating that tens of thousands of people have been detained without formal charges, held incommunicado and subjected to torture in facilities operated by both the SAF and RSF since the onset of hostilities [13]. In 2023, the OHCHR confirmed that “both the SAF and RSF arbitrarily arrested thousands of civilians in Khartoum, Darfur and the Two Areas, detaining them in official and “unofficial detention centres [14]”.
Although the OHCHR and the UN Fact-Finding Mission for Sudan have documented extensive violations of both IHL and IHRL [15], their monitoring authority depends entirely on state cooperation. Sudan systematically denied the fact-finding mission,access to the country, forcing investigators to conduct remote investigations from neighbouring states [16]. The ICRC, meanwhile, operates under ad hoc access agreements rather than the binding treaty obligations that are applicable only in IACs [11]. The result mirrors the jurisdictional “shell game” pattern: detainees lose access to both IHL monitoring (due to the lack of binding ICRC access in NIACs) and IHRL judicial remedies (as domestic courts are non-functional and international mechanisms lack enforcement power).
On 11 May 2023, Sudan became a signatory to the Jeddah Declaration, undertaking a binding commitment to abstain from practices constituting enforced disappearance and the arbitrary detention of civilians. Nevertheless, documented violations persisted without interruption, illustrating that voluntary commitments, when unaccompanied by institutional enforcement mechanisms, fail to produce substantive accountability.
In its September 2024 report, the fact-finding mission determined that both the SAF and the RSF committed acts constituting war crimes, including arbitrary detention, acts of torture and sexual violence [16]. The situation in Sudan illustrates how classifying a conflict as a NIAC facilitates systematic evasion of accountability: states can invoke the existence of an armed conflict to circumvent domestic human rights oversight, while the absence of mandatory international monitoring mechanisms in NIACs perpetuates an accountability gap.
This outcome demonstrates the fundamental limitations of Charter-based mechanisms, which lack enforcement power. Without mechanisms to enforce legal consequences, states are free to refuse cooperation, undermining the effectiveness of such charters. Therefore, relying on Charter-based systems is inherently problematic, as their authority depends on states’ voluntary compliance.
The Asymmetry of Refugee and IDP Protection: The Function of Borders Catalysts for Institutional Engagement
The legal framework governing international protection conceptualises borders not merely as neutral geographic demarcations, but as institutional mechanisms that function as regulatory thresholds, enabling or restricting access to protection regimes. Hathaway explicitly calls this the “territorial trigger”, while B.S. Chimni terms it the “apartheid of protection”. The international legal system creates two classes of forcibly displaced persons based solely on whether they have crossed a border [17]. Thus, the border functions as an institutional switch: crossing it activates an entirely different legal regime.
The 1951 Refugee Convention operationalises an extensive array of protection mechanisms, including the conferral of legal status [17], issuance of documentation [18], guarantees of non-refoulement [18], socio-economic rights [18] and oversight by the UN refugee agency (UNHCR), all contingent upon crossing an international border. However, the Convention omits several essential protections, a matter of significant concern within international refugee law. For example, it does not guarantee automatic refugee status determination or an enforcement mechanism.
IDPs fleeing identical persecution receive no equivalent treaty-based protection. The UN Guiding Principles on Internal Displacement remain non-binding, lack enforcement mechanisms, confer no legal status and vest no monitoring authority in international institutions [19]. The UNHCR’s mandate for IDPs operates only with host state consent, which is routinely denied by the very governments perpetrating displacement [20]. The implication is institutional apartheid: for example, Syrian refugees in Turkey benefit from binding Convention protections and automatic UNHCR intervention, while 7 million Syrian IDPs inside the country remain subject to government barrel bombings with no effective international legal remedy [21].
Border crossing does not change the nature of persecution. Rather, it changes which institutional framework responds. The same individual is transformed from a domestic subject beyond the reach of international protection into a person of international concern endowed with enforceable rights. The 1951 Refugee Convention and its 1967 Protocol impose binding obligations on all 149 state parties, including a requirement to cooperate with UNHCR in refugee status determination (RSD) under Article 35 of the Convention. This obligation is not aspirational but enforceable treaty law [18]. UNHCR’s mandate clarification confirms that states must facilitate refugee documentation and camp administration— not merely “consider” cooperation, but actively enable it.
While the 1951 Convention established global obligations, the 1969 OAU Convention demonstrated that binding refugee law can adapt to regional contexts. African states expanded the traditional refugee definition through treaty amendment rather than soft law guidelines, per Article 2 of the OAU Convention. It is noted that no equivalent binding IDP treaty existed globally until 2009, and even then only the Kampala Convention covers Africa [22], leaving most IDPs governed by the non-binding Guiding Principles [23]. On that point, Hathawaydiscusses mandatory and discretionary state obligations [24]. States cannot opt out of RSD procedures they find inconvenient. As Hathaway notes, cooperation duties under Article 35 are non-derogable, even during national emergencies [24]. In M.S.S. v. Belgium and Greece, the European Court held that Greece’s failure to maintain adequate RSD procedures violated binding legal obligations, resulting in financial penalties and mandated reforms. No equivalent enforcement exists for IDP protection failures, demonstrating that binding obligations are enforceable.
As Kälin observes, refugee law operates through “hard obligations with institutional oversight”, while IDP protection relies on soft paraenesis devoid of an enforcement framework [25]. Beyani’s comparative analysis confirms that this is not a technicality, but a fundamental structural choice with life-or-death consequences [26]. A state that refuses UNHCR access to refugee camps violates treaty law and faces international legal consequences. A state that denies humanitarian access to IDPs violates only good-practice guidelines.
This difference reveals the sovereignty paradox within IRL: a state’s territorial jurisdiction simultaneously creates and extinguishes legal obligations depending on whether displaced persons cross an international border. The critical distinction is not about the needs of the displaced, as a refugee and an IDP may face identical threats, but where they are geographically located when seeking protection. Crossing a border activates binding treaty obligations; staying within borders denotes protection to aspirational guidelines. Refugee law has teeth, while soft laws for IDPs rely on diplomatic pressure and discretion. Hence, a Syrian fleeing to Turkey is afforded protection under the 1951 Refugee Convention, but a Syrian fleeing to Damascus from Aleppo gets nothing enforceable. Same conflict and persecution but a different legal universe.
Sudan as a Case Study
This section examines how the structural distinction between refugees and IDPs in international law produces a differential in protection that is exploited in the Sudanese context.
As of 2025, Sudan constitutes the world’s largest displacement crisis, with more than 11.5 million IDPs and 3.5 million individuals recognised as refugees who have crossed an international border [27]. This analysis demonstrates that the 1951 Refugee Convention’s requirement of international border crossing to obtain refugee status systematically disadvantages IDPs. Despite experiencing comparable or identical persecution, IDPs receive only non-binding guidance through the UN Guiding Principles [15]. Schimmel characterises this phenomenon as the “sovereignty trap”, whereby IDPs remain under the authority of states that may have played a causal role in their displacement, while concurrently facing constrained avenues for international intervention or protection [28]. It is posited that the resulting “morally arbitrary distinction” is predicated exclusively upon geographical location rather than humanitarian need [28].
Both the SAF and RSF have exploited the protection gaps affecting internally displaced populations, systematically denying humanitarian access through bureaucratic barriers [27] while weaponising starvation in violation of customary IHL [29]. UN agencies have identified deliberate constraints on humanitarian access in Sudan’s most affected regions, Darfur, Khartoum and Kordofan, where administrative impediments and the absence of security guarantees from belligerent parties have obstructed the delivery of life-sustaining assistance to displaced populations [30]. Famine conditions were formally confirmed in August 2024 at Zamzam camp, one of Sudan’s largest IDP settlements. Within months, the RSF launched a direct assault on the camp, forcibly displacing 400,000 individuals who were already acutely vulnerable due to food insecurity [31].
The structural inadequacy of the IDP protection framework is exposed by Sudan’s non-ratification of the Kampala Convention, the sole binding regional instrument that imposes obligations on state and non-state actors to prevent arbitrary displacement, protect IDPs and support durable solutions [32]. As the LSE Africa Blog observes, the two states generating the largest IDP populations in 2024, Sudan and the Democratic Republic of Congo, remain outside the Convention’s framework [33]. This ratification gap produces a perverse outcome: more than 11 million Sudanese IDPs are denied legally enforceable protections, while those who reach Chad, Egypt or South Sudan acquire immediate access to the international refugee regime. The determinative factor is not the nature of persecution suffered, but the fortuity of border crossing, a distinction that, as Schimmel argues, is morally arbitrary and legally indefensible [34].
Conclusion
The crisis in Sudan exemplifies how discrepancies in border-based protection mechanisms create systemic gaps that can be exploited by both state and non-state actors. While individuals who cross borders may access refugee protection and established mechanisms, IDPs remain subject to the sovereignty of their states. In the absence of Sudan’s ratification of the Kampala Convention, IDPs lack legal recourse, as their states are under no binding obligation to extend the protections enshrined therein. This situation reveals a fundamental deficiency within the international legal framework: the dichotomy between cross-border refugees and IDPs, who are more vulnerable to manipulation by states and armed groups, resulting in significant consequences for the latter. Sudan’s non-ratification of the Kampala Convention exacerbates this protection gap. Consequently, there is an urgent need to strengthen the enforcement of existing regional instruments and to critically reevaluate the necessity of the border-crossing requirement in refugee law.
[1] Sandesh Sivakumaran, The Law of Non-International Armed Conflict (Oxford University Press, 2012), pp. 485–509; Sandesh Sivakumaran, “Re-envisaging the International Law of Internal Armed Conflict,” (2011) 22(1) European Journal of International Law, pp. 219–264.
[2] Volker Türk and Elizabeth Eyster, “Strengthening Accountability in UNHCR,” (2010) 22(2) International Journal of Refugee Law, pp. 159–172.
[3] Sandesh Sivakumaran, “Re-envisaging the International Law of Internal Armed Conflict,” European Journal of International Law, Vol. 22, No. 1 (2011), pp. 219–264.
[4] United Nations Security Council, Press Release SC/15354 (2023).
[5] Anne Peters, “The Refinement of International Law: From Fragmentation to Regime Interaction and Politicization,” International Journal of Constitutional Law, Vol. 15, No. 3 (2017), pp. 671–704; Martti Koskenniemi & Päivi Leino, Fragmentation of International Law? Postmodern Anxieties (2002) 15 (3) Leiden Journal of International Law 553.
[6] Megan Bradley and Mike Asplet, “Strengthened Protection for Internally Displaced Persons in Africa: The Kampala Convention Comes into Force,” ASIL Insights, Vol. 16, No. 36 (2012); UNHCR, “Sudan Situation Regional Refugee Response Plan” (Jan. 2024)
[7] Eyal Benvenisti and George W. Downs, “The Empire’s New Clothes: Political Economy and the Fragmentation of International Law,” Stanford Law Review, Vol. 60 (2007), pp. 595–631.
[8] Ibrahim Abdullahi I, Cases and Materials in International Humanitarian Law (Malthouse Press Limited, 2018).
[9] International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports (1996); International Court of Justice, Armed Activities on the Territory of the Congo (DRC v. Uganda), ICJ Reports (2005).
[10] Jelena Pejic, Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations of Violence' (2005) 87 International Review of the Red Cross 375
[11] International Committee of the Red Cross, “Internment in Armed Conflict: Basic Rules and Challenges,” ICRC Opinion Paper (2014).
[12] Marco Sassòli, ‘The Role of Human Rights and International Humanitarian Law in New Types of Armed Conflicts’ in Orna Ben-Naftali (ed), International Humanitarian Law and International Human Rights Law (OUP 2011) 50-54.
[13] Human Rights Watch, “Questions and Answers: Sudan and Laws of War” (25 April 2023).
[14] U.S. Department of State, 2023 Country Reports on Human Rights Practices: Sudan (2024).
[15] Office of the High Commissioner for Human Rights, “Sudan: UN Fact-Finding Mission Outlines Extensive Human Rights Violations,” Press Release (September 2024).
[16] UN Human Rights Council, Independent International Fact-Finding Mission for the Sudan (2024).
[17] B.S. Chimni, “The Geopolitics of Refugee Studies: A View from the South,” Journal of Refugee Studies, Vol. 11, No. 4 (1998), pp. 350–374.
[18] UNHCR, Convention and Protocol Relating to the Status of Refugees (UNHCR, 2010).
[19] Guy S. Goodwin-Gill and Jane McAdam, The Refugee in International Law, 3rd edn (Oxford University Press, 2007).
[20] Francis M. Deng, Guiding Principles on Internal Displacement, UN Doc. E/CN.4/1998/53/Add.2 (1998).
[21] UNHCR, “Syria Emergency,” UNHCR Emergency Response (2024).
[22] Organisation of African Unity, Convention Governing the Specific Aspects of Refugee Problems in Africa, OAU Convention (1969).
[23] United Nations Commission on Human Rights, Guiding Principles on Internal Displacement, UN Doc. E/CN.4/1998/53/Add.2 (1998).
[24] James C. Hathaway, The Rights of Refugees under International Law (Cambridge University Press, 2005).
[25] Walter Kälin, “The Guiding Principles on Internal Displacement as International Minimum Standard and Protection Tool,” Refugee Survey Quarterly, Vol. 24, No. 3 (2005).
[26] Chaloka Beyani, “Recent Developments: The Elaboration of a Legal Framework for the Protection of Internally Displaced Persons in Africa,” Journal of African Law, Vol. 50, No. 2 (2006), pp. 187–197.
[27] European Commission, Directorate-General for European Civil Protection and Humanitarian Aid Operations, “Sudan” (2024).
[28] Noam Schimmel, TRAPPED BY SOVEREIGNTY: The Fate of Internally Displaced Persons and Their Lack of Equal Human Rights Protection under International Law World Affairs, 185(3), (2022) 500-529.
[29] Office of the High Commissioner for Human Rights, “Using Starvation as Weapon of War in Sudan Must Stop – UN Experts,” Press Release (June 2024).
[30] European Union Agency for Asylum, Country of Origin Information Report: Sudan – Security Situation (2025).
[31] Congressional Research Service, “Sudan: Crisis and International Response,” CRS In Focus IF12816 (2024).
[32] UNHCR, “IDP Definition,” UNHCR Emergency Handbook (2024).
[33] LSE Africa Blog, “Despite the Kampala Convention, Africa Is the Global Centre for Internally Displaced People” (13 September 2024).
[34] Noam Schimmel, TRAPPED BY SOVEREIGNTY: The Fate of Internally Displaced Persons and Their Lack of Equal Human Rights Protection under International Law World Affairs, 185(3), (2022) 500-529.
Oriola O. Oyewole is a research affiliate at the Refugee Law Initiative and a senior lecturer at Afe Babalola University in Nigeria. Her scholarly work encompasses international criminal law, international refugee law, human rights law, international humanitarian law, and feminist legal theory.
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.