Helena Jost
Legal Intern
In the age of social media, fake news, and artificially generated content, framing a narrative has never been easier. In conflicts like Sudan’s, false narratives are weaponized to label entire communities as RSF “social incubators”, subjecting them to deprivation, displacement, and violence, imposed not for what someone did, but for who they are perceived to support.
The US 2024 Country Report on Human Rights Practices observed that the SAF increasingly targeted individuals suspected of supporting the RSF, going as far as detaining them without access to a fair trial or even killing them. This is collective punishment: penalizing a group for an assumed allegiance rather than an individual act.
The prohibition on this is not a grey area of international law. It is codified under Article 33 of the Forth Geneva Convention in international armed conflicts and, in the case of Sudan, under Rule 103 of the ICRC’s Customary Law Study for non-international conflicts, binding all parties regardless of how the conflict is classified.
PULL QUOTE: “[O]ne of the requirements for prosecution is proof of punitive intent directed at a group…[t]his evidentiary hurdle creates a structural obstacle to holding the perpetrators of collective punishment accountable.”
And yet, despite this near-universal condemnation, prosecutions for collective punishments remain vanishingly rare. But why does a rule so clearly established so rarely make it into a courtroom?
Why is collective punishment rarely ever charged?
As collective punishment is based on group membership rather than individual guilt, one of the requirements for prosecution is proof of punitive intent directed at a group as such. This constitutes a subjective element that is notoriously difficult to establish. This evidentiary hurdle creates a structural obstacle to holding the perpetrators of collective punishment accountable.
This prosecution gap is further amplified by the omission of collective punishment as a standalone war crime in the Rome Statute of the International Criminal Court (ICC). As a result, it cannot be charged directly before the ICC. Instead, prosecutors must reach for adjacent crimes, such as crimes against humanity or attacks against civilians, to capture the same underlying conduct. In the case of Sudan, there is the added difficulty of jurisdictional limits. Sudan has not ratified the Rome Statute leaving much of the current violence outside the Court’s reach.
Why are documenting actors so important?
Together, these evidentiary and jurisdictional barriers mean that even well-documented instances of collective punishment risk going unpunished. This underscores why the documentation work of organisations like Just Access is vital to closing this gap. In many instances, state authorities are either the perpetrators themselves or unable to investigate the crimes committed, giving NGOs an important role in filling accountability gaps by gathering testimonies, medical records, and digital materials. In doing so, the destruction of vital data, which frequently happens in active conflicts, can be prevented.
PULL QUOTE: “Every testimony gathered and every record preserved by non-governmental human rights organisations build the evidentiary foundation that future prosecutions will depend on.”
Furthermore, this work helps to secure proof that satisfies legal and evidentiary standards, sparing witnesses repeated interviews and the risk of exploitation. Such documentation is essential to demonstrating that sanctions and retaliation measures were intentionally directed against entire communities, rather than justified individual enforcement of law, thereby establishing patterns of abuse.
Even though the prohibition of collective punishment is unambiguous under international law, structural and jurisdictional obstacles hinder accountability. Because punitive intent remains difficult to prove and the Rome Statute leaves collective punishment without a direct charge, the communities targeted are reliant on the work of documenting actors like Just Access.
Every testimony gathered and every record preserved by non-governmental human rights organisations build the evidentiary foundation that future prosecutions will depend on. Until then, the narratives driving the Sudan conflict will keep shaping who is targeted, and documentation remains one of the few tools capable of ensuring that collective punishment will not go unanswered.
PULL OUT QUOTES:
- This is collective punishment: penalizing a group for an assumed allegiance rather than an individual act.
- [O]ne of the requirements for prosecution is proof of punitive intent directed at a group…[t]his evidentiary hurdle creates a structural obstacle to holding the perpetrators of collective punishment accountable.
- Every testimony gathered and every record preserved by non-governmental human rights organisations build the evidentiary foundation that future prosecutions will depend on.
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