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Still playing dice with lives: Darfur and security council resolution 1706

2007; Taylor & Francis; Volume: 28; Issue: 1 Linguagem: Inglês

10.1080/01436590601081906

1360-2241

Nsongurua J. Udombana,

International Law and Human Rights

Abstract This article examines the recent Security Council Resolution 1706 authorising UN peacekeeping in Sudan, in the context of the deteriorating humanitarian crisis in Darfur. It assesses the African Union Mission in Sudan and elaborates on the reasons for its current fatigue and failure. It interrogates the proposed mandate of the UN force, the organising principles and rules of engagement and, sadly, the Realpolitik that continues to derail efforts at ending the genocide. It urges the global community, in particular the Security Council permanent members, to unite their efforts and compel the government of Sudan to accept UN deployment in order to save the dying and end the tragedy in Darfur. Notes This Article is dedicated to the memory of victims of the Darfur genocide. 1 Tomo Krizner (a Slovenian writer and photographer, who was arrested while visiting Sudan as an official envoy of the Slovenian government), 'Sudan sees UN intervention as an invasion', Independent, 4 October 2006, p 29, available at 2006 WLNR 17139892. 2 Editorial: 'Escalating crisis in Darfur', Minnesota Daily, 23 October 2006, at http://www.mndaily.com/articles/2006/10/23/69526. 3 See Jay Nordlinger, 'About Sudan', National Review, 23 May 2005, p 42. 4 David B Kopel et al, 'Is resisting genocide a human right?, Notre Dame Law Review, 81, 2006, pp 1275, 1276. (He adds that the government of Sudan employs genocide as an instrument of state policy. Ibid, p 1279). 5 See Charter of the UN, San Francisco, 26 June 1945, entry into force 24 October 1945, Cmd 7015 (hereinafter UN Charter), Art 24. 6 Security Council Resolution 1706, adopted at its 5519th meeting, 31 August 2006, S/Res/1706 (2006) (hereinafter Resolution 1706) (referencing resolutions 1679 of 16 May 2006; 1665 of 29 March 2006; 1663 of 24 March 2006; 1593 of 31 March 2005; 1591 of 29 March 2005; 1590 of 24 March 2005; 1574 of 19 November 2004; 1564 of 18 September 2004; and 1556 of 30 July 2004). 7 Ibid. 8 Among the most recent are the Statement by the President of the Security Council, 5434th meeting, 9 May 2006, UN Doc. S/PRST/2006/21 (reacting to the Reports of the Secretary-General on the Sudan and, in particular, to the Darfur Peace Agreement); and the Statement by the President of the Security Council, 5425th meeting 25 April 2006, UN Doc. S/PRST/2006/19 (on the situation in Chad and the Sudan). 9 See International Commission of Inquiry on Darfur, Report of the International Commission of Inquiry on Darfur to the UN Secretary-General (25 January 2005), at http://www.un.org/News/dh/sudan/com_inq_darfur.pdf (hereinafter icid Report). See generally Nsongurua Udombana, 'An escape from reason: genocide and the International Commission of Inquiry on Darfur", International Lawyer, 40 2006, p 41 (refuting the conclusion of the Commission that the pogrom in Darfur is not genocide). 10 See, eg, Decision on Darfur, au Assembly 3rd Ordinary Session, Addis Ababa, Ethiopia, 6 – 8 July 2004, Assembly/AU/Dec.54 (III) (hereinafter Decision on Darfur); Communiqué of the 46th Meeting of the au Peace and Security Council (psc), 10 March 2006, PSC/MIN/Comm.(XLVI) (hereinafter psc Communiqué 46), para 4(IV), at au website, http://www.africa-union.org (hereinafter au website) (urging a cessation of all acts of violence and atrocities by the parties, particularly those committed against the civilian population, humanitarian workers and agencies and amis personnel). 11 See, for example, N'djamena Ceasefire Agreement of 8 April 2004; Abuja Humanitarian and Security Protocols between the Government of Sudan, the Sudan Liberation Movement/Army and the Justice and Equality Movement of 9 November 2004; and the dpa. 12 psc Communiqué 46, para 4(b)(vi). See also para 4(b)(vii) (on 'the precarious security situation'). 13 See, for example, Security Council Resolution 1591, adopted at its 5153th meeting, 29 March 2005, S/Res/1591 (2005) (hereinafter Resolution 1591), preamble. 14 Ibid. Cf Resolution 1706, preamble ('Reaffirming its concern that the ongoing violence in Darfur might further negatively affect the rest of the Sudan as well as the region') (italics in the original); and Decision on Darfur, preamble (reiterating 'its serious concern over the prevailing situation in the Darfur Region of The Sudan, particularly the Humanitarian crisis and the continued reports of violations of human rights, including attacks against civilians committed by the Janjaweed militia and other non regular armed groups). 15 Resolution 1591, preamble. 16 Resolution 1706, ('considering that amis needs urgent reinforcing) (italics in the original). 17 Ibid, para 1. The parties to the crisis signed the dpa on 5 May 2006, following the au-led Inter-Sudanese Peace Talks in Abuja, Nigeria. The dpa dealt, inter alia, with the immediate cessation of hostilities; the release of detainees and child soldiers; the submission of a comprehensive plan for the neutralisation and disarmament of the Janjaweed/armed militia. All things being equal, the dpa should be incorporated into the Interim National Constitution, as envisaged in the Declaration of Principles adopted and signed by the parties in Abuja on 5 July 2005. 18 Ibid, paras 1, 2. 19 Ibid, para 5. 20 psc Communiqué 46, para 2. 21 Resolution 1706, preamble. Cf psc Communiqué 46, para 6 (emphasising, 'that the African character of the mission, including through its composition and leadership, is maintained in order, as much as possible, to secure the cooperation of all the parties, which is necessary to achieve a lasting solution to the conflict in Darfur'). 22 'Darfur: will they be rescued?', The Economist, 23 September 2006, p 60. 23 Ibid (arguing further that some Sudanese perceive the arrival of UN troops as a power grab rather than an effort to avert a humanitarian catastrophe in the refugee camps). 24 Ibid. 25 Krizner, 'Sudan sees UN intervention as an invasion'. 26 Eric Reeves, 'Death in Darfur', Guardian Unlimited, 18 October 2006, at http://commentisfree.guardian.co.uk/eric_reeves/2006/10/reeves.html. 27 Kofi Annan, 'Darfur's moment of peril', The Advertiser (Australia), 23 September 2006, at W03, at 2006 WLNR 16468125. Cf Resolution 1706, preamble ('Expressing its deep concern for the security of humanitarian aid workers and their access to populations in need, including refugees, internally displaced persons and other war-affected populations') (italics in the original). 28 UN Office for the Co-ordination of Humanitarian Affairs, 'SUDAN: pressure mounts for Sudan to allow African Union to stay on', 19 September 2006, at http://www.irinnews.org/report.asp?ReportID=55615&SelectRegion=Africa. 29 Report of the Secretary-General on Darfur, 28 July 2006, S/2006/591 (2006), para 3. 30 International law provides protection for refugees. See the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, entry into force 22 April 1954, 19 UST 6259, 189 UNTS 150 (hereinafter Refugee Convention). There are no equivalent international legal standards for idps, who, by definition, are persons who flee from war and domestic disturbances but have not crossed their countries' borders. In reality both refugees and idps often arise from the same conflict. The UN has developed soft norms, in terms of Guiding Principles on Internal Displacement, but much work remains to be done to give meaning to these norms. See Francis M Deng, 'The global challenge of internal displacements, Washington University Journal of Law & Policy, 5, 2001, p 141; and Corinne E Lewis, 'Dealing with the problem of internally displaced persons', Georgia Immigration Law Journal, 6, 1992, p 693. 31 Jonathan Erasmus, 'Up to 2000 refugees a day flood into Darfur's camps of despair', Independent, 22 October 2006, at http://news.independent.co.uk/world/africa/article1919109.ece. 32 See generally UN Department of Public Information, The Blue Helmets: A Review of United Nations Peace-Keeping, New York: UN, 1990. 33 Boutros Boutros-Ghali, An Agenda for Peace, New York: United Nations, 1995, p 45. Cf JC Waddell's observation: 'peacekeeping describes the inherently peaceful action of an internationally directed force of military, police and sometimes civilian personnel to assist with the implementation of agreements between governments or parties which have been engaged in conflict. It presumes cooperation, and the use of military force (other than in self-defense) is incompatible with the concept'. Wadell, 'Legal aspects of UN peacekeeping', in Hugh Smith (ed), The Force of Law: International Law and the Land Commander, Canberra: Australian Defence Force Academy, 1994, p 47. 34 'It was not long after the signing of the [UN] charter in San Francisco that the cold war between the East and West grew in intensity and so clouded the issues that the potential of the [UN] in the maintenance of peace and security could not be fully activated. The mutual suspicions and rival interests of the two sides prevented the employment of arrangements to enforce peace when needed.' Indar Jit Rikhye, 'Peacekeeping and peacemaking',in Henry Wiseman (ed), Peacekeeping: Appraisals and Proposals, New York: Pergamon Press, 1983, p 5. 35 UN, The Blue Helmets, p 5. 36 Certain Expenses case, 1962 ICJ Rep. 151. 37 Daphna Shraga & Ralph Zacklin, 'The applicability of international humanitarian law to United Nations peace-keeping operations: conceptual, legal and practical issues", in Umesh Palwankar (ed), International Committee of the Red Cross Symposium on Humanitarian Action and Peace-Keeping Operations, Geneva: ICRC, 1994, p 40. See also Shashi Tharoor, 'The changing face of peace-keeping and peace-enforcement', Fordham International Law Journal, 19, 1995, p 411. 38 Katherine Cox, 'Beyond self-defense: United Nations peacekeeping operations and the use of force', Denver Journal of International Law and Policy, 27, 1999, p 241. 39 For a review of the convergence between the 'responsibility to protect' and 'protection of civilians' mandate of peace operations, see Victoria Holt, Responsibility to Protect: Considering the Operational Capacity for Civilian Protection, at http://www.stimson.org/fopo/pdf/Stimson_CivPro_pre-pubdraftFeb04.pdf>. 40 See generally W Andy Knight, 'Towards a subsidiarity model for peacekeeping and preventive diplomacy: making Chapter VIII of the UN Charter operational', Third World Quarterly, 17 (1), 1996, p 31. 41 Constitutive Act of the au, adopted 11 July 2000, entry into force 26 May 2001, oau Doc. CAB/LEG/23.15 (2000) (as amended by the Protocol on Amendments to the Constitutive Act of the au, 11 July 2003) (hereinafter au Act), Art 3(f). See also Art 4(e) (having, as one of its organising principles, 'Peaceful resolution of conflicts among Member States of the Union through such appropriate means as may be decided upon by the Assembly'). 42 Ibid, preamble. Cf Declaration on a Code of Conduct for Inter-African Relations, AHG/Decl.2 (XXX) (1994) (hereinafter Declaration on Code of Conduct), preamble (noting that 'every cooperation effort is doomed to failure in an environment devoid of stability, trust and security'). 43 au Act, Art 4(i). 44 Protocol Relating to the Establishment of the Peace and Security Council of the au, adopted 9 July 2002, entry into force 26 December 2003 (hereinafter psc Protocol), at au website. 45 Ibid, Art 13(3)(c). 46 Ibid, Art 13(3)(f). 47 Ibid, Art 13. For commentaries on the new au security framework, see Nsongurua J Udombana, 'The unfinished business: conflicts, the African Union and the New Partnership for Africa's Development', George Washington International Law Review, 35 (1), 2003, p 55; Theo Neethling, 'Shaping the African standby force: developments, challenges, and prospects', Military Review, May/June 2005, p 68; and Cedric De Coning, 'Refining the African standby force concept', Conflict Trends, 2, 2004, p 22. 48 Agreement with the Sudanese Parties on the Modalities for the Establishment of the Ceasefire Commission and the Development of Observers in the Darfur, 28 May 2004, at au website (hereinafter cfc Agreement). 49 Ibid, Art III.i. 50 Ibid, Art II.4. 51 Ibid, Art II.6. 52 Ibid. 53 Decision on Darfur, para 7. 54 Communiqué of the 17th Meeting of the au Peace and Security Council (psc), 20 October 2004, PSC/PR/Comm.(XVII) (hereinafter psc Communiqué 17), para 7, at au website. 55 Report of the Secretary-General on Darfur, para 8. 56 psc Communiqué 17, para 4. 57 Ibid, para 6. Its further mandate includes: 'Protect[ing] both static and mobile humanitarian operations under imminent threat and in the immediate vicinity, within capabilities'. 58 Security Council Resolution 1574, UN Doc. S/Res/1574 (19 November 2004), para 13. 59 Darfur Integrated Task Force (ditf), Information Update No 2, 26 July 2005, at au website (reporting on the current status of the military deployment for the enhanced amis). 60 psc Communiqué 46, para 3 (extending amis tenure and renewing its mandate). 61 UN Office for the Co-ordination of Humanitarian Affairs, 'SUDAN: au mission extended with Arab League and UN support, 20 September 2006, at http://www.irinnews.org/report.asp?ReportID=55656&SelectRegion=East_Africa. 62 'Darfur: will they be rescued?', p 60. 63 Resolution 1706, preamble (also commending the efforts of au member states and regional and international organisations that assisted amis's deployment). 64 Kopel et al, 'Is resisting genocide a human right?', p 1300. 65 Communiqué of the 28th Meeting of the au Peace and Security Council (psc), 28 April 2005, PSC/PR/Comm.(XXVIII) (hereinafter psc Communiqué 28), para 8 (referencing gaps identified by the au-led Assessment Mission in Darfur), at au website. 66 Report of the Secretary-General on Darfur, para 15 (noting some practical assistance that the Cell has facilitated, including the deployment of technical experts to assist amis in the areas of planning, logistics, communications and transport). 67 Michael Clough, 'Darfur: whose responsibility to protect?', in Human Rights Watch, World Report 2005, New York: Human Rights Watch, 2005, p 36, at http://www.hrw.org/wr2k5/wr2005.pdf. 68 Krizner, 'Sudan sees UN intervention as an invasion'. 69 'Peacekeepers die in Darfur ambush", bbc News, 8 October 2005, at http://news.bbc.co.uk/2/hi/africa/4323288.stm. 70 'A UN spokeswoman confirmed that the deterioration in security meant that all staff not considered essential to the aid operation would be flown out. Those who remain will be unable to leave the capital, El Geneina.' Jonah Fisher, 'UN staff withdrawn from Darfur, bbc News, 13 October 2005, at http://news.bbc.co.uk/2/hi/africa/4339286.stm. 71 'Darfur's moment of peril', which adds that the renewed fighting has made it harder for humanitarian agencies to reach the civilians. 72 'au to expand peacekeeping mission in Darfur', bbc International Reports (Africa), 3 October 2006, at http://international.westlaw.com/welcome/GlobalNews/default.wl?fn=_top&rs=WLIN6.09&mt=GlobalNews&vr=2.0&sv=Split&sp=intbaltic-1000. 73 Ruth Wedgwood, 'The evolution of United Nations peacekeeping', Cornell International Law Journal, 28, 1995, p 632. 74 psc Communiqué 46, para 6. 75 Nsongurua J Udombana, 'When neutrality is a sin: the Darfur crisis and the crisis of humanitarian intervention in Sudan', Human Rights Quarterly, 27, 2005, p 1192. 76 See generally Adekeye Adebajo, Liberia's Civil War: Nigeria, ecomog , and Regional Security in West Africa, 2002; and Jeremy Levitt, 'Humanitarian intervention by regional actors in internal conflicts: the cases of ecowas in Liberia and Sierra Leone', Temple International & Comparative Law Journal, 12, 1998, p 333. 77 Security Council Resolution 1590, adopted at its 5151th meeting, 24 March 2005, S/Res/1590 (2006) (hereinafter Resolution 1590), para 4. The unmis mandate also includes facilitating and co-ordinating, within its capabilities and in its areas of deployment, voluntary return of refugees and idps; assisting parties to the cpa in the mine action sector, by providing humanitarian de-mining assistance, technical advice, and co-ordination; contributing towards international efforts to protect and promote human rights in Sudan; and co-ordinating international efforts towards the protection of civilians. Ibid. 78 Martin Meredith, The State of Africa: A History of Fifty Years of Independence, London: Free Press, 2006, p 598. 79 Wole Soyinka, You Must Set Forth at Dawn: A Memoir, New York: Random House, 2006, p 101. 80 Resolution 1590, para 1. 81 Ibid, para 2. 82 Security Council Resolution 1679, adopted at its 5439th meeting, 16 May 2006, S/Res/1679 (2006) (hereinafter Resolution 1679). 83 Ibid, para 2. 84 Report of the Secretary-General on Darfur. 85 Ibid, para 83. 86 Cf ibid, preamble (expressing belief that the dpa provides a basis for sustained security in Darfur). 87 Ibid, para 132. 88 Ibid, para 6. 89 Report of the Chairperson of the Commission on the Situation in Darfur, au Doc. PSC/MIN/2(LVIII) (June 2006) (hereinafter au Commission Report on Darfur), para 10. 90 'Sudan: pressure mounts' (quoting Jan Pronk, the UN's Special Envoy to Sudan). 91 Resolution 1706, para 3. 92 Ibid, para 8. 93 Ibid, para 4. 94 Ibid, para 8. 95 Ibid. 96 Ibid. 97 Ibid, para 9. 98 Ibid, para 12. 99 SD Bailey & S Daws, The Procedure of the UN Security Council, Oxford: Clarendon Press, 1998, p 271. 100 UN Charter, Art 42. 101 See, for example, ibid, preamble ('Determining that the situation in the Sudan continues to constitute a threat to international peace and security') (italics in the original). Chapter VII, Chapter 12 of the UN Charter deals with the collective security system and empowers the Council to determine the existence of a threat to peace, breach of peace, and acts of aggression and to take measures to suppress them. 102 Boutrol-Ghali, An Agenda for Peace, p 12. 103 Ibid, pp 15 – 16. Cf '"Peace enforcement" … may be defined as a military operation in support of diplomatic efforts to restore peace between belligerents who may not be consenting to intervention and who may be engaged in combat activities'. Waddell, 'Legal aspects of UN peacekeeping', pp 47 – 48. 104 See, for example, Security Council Resolution 1556, 5015th meeting, UN Doc. S/Res/1556 (2004), preamble. 105 Resolution 1706, preamble. 106 Ibid. 107 UN Charter, Art 2(1). 108 Cf. Ian Brownlie, Principles of Public International Law, New York: Oxford University Press, 1998, p 289 (emphasising that sovereignty and equality of states 'represent the basic constitutional doctrine of the law of nations'). 109 Boutros-Ghali, An Agenda for Peace, p 17. 110 Udombana, 'When neutrality is a sin, p 1150. 111 Amy E Eckert, 'United Nations peacekeeping in collapsed states, Journal International Law and Pracrice, 5, 1996, p 274. 112 Wedgwood, 'The evolution of United Nations peacekeeping', p 633. 113 Resolution 1706, para 1. 114 Tharoor, 'The changing face of peace-keeping and peace-enforcement', p 409. 115 Cf G Norman Anderson, Sudan in Crisis, Gainesville: University Press of Florida, 1999, p 274 (attributing Sudan's collapse to a 'failure of leadership'). 116 Eckert, 'United Nations peacekeeping in collapsed states', p 274. 117 The present writer has argued elsewhere that Darfur needs a coercive enforcement action to end the genocide scourge. Udombana, 'When neutrality is a sin', p 1149. See also Beth Van Schaack, 'Darfur and the rhetoric of genocide", Whitter Law Review, 26, 2005, p 1101 (urging hmi in Sudan notwithstanding the absence of categorisation of genocide by the icid). 118 The literature on the 'responsibility to protect' is legion. See generally Samantha Power, 'A Problem From Hell': America and the Age of Genocide, New York: Basic Books, 2002, which examines how Americans have very rarely marshalled their might to stop genocide and mass terror against Armenians, European Jews, Cambodians, Iraqi Kurds, Bosnians and Rwandans; Stephen J Toope, 'Does international law impose a duty upon the United Nations to prevent genocide?", McGill Law Journal, 46, 2000, p 187; Francis Kofi Abiew, The Evolution of the Doctrine and Practice of Humanitarian Intervention, The Hague: Kluwer Law International, 1999; Fernando R Tesón, Humanitarian Intervention: An Inquiry into Law and Morality, New York: Transnational Publishers, 1997; and Martin Griffiths, Iain Levine & Mark Weller, 'Sovereignty and suffering', in John Harris (ed), The Politics of Humanitarian Intervention, New York: Pinter, 1995, p 33. 119 Jonathan Katzenellenbogen, 'Sudan: Soyinka lashes Arab League over Darfur', Business Day (Johannesburg), 21 September 2006, at http://allafrica.com/stories/200609210432.htmlm, accessed 21 September 2006. 120 2005 World Summit, 14 – 16 September 2005, World Summit Outcome, UN Doc. A/60/L.1, 20 September 2005. 121 Ibid, p 138 ('Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity'). 122 Ibid, Art 139. In testimony before the Senate Foreign Relations Committee in October 2005, the US permanent representative to the UN, Ambassador John Bolton, applauded this provision: 'Related to the issue of preventing conflict is the important progress we made in the section on the "Responsibility to Protect", which moves us toward a new strengthened international moral consensus on the need for the international community to deal with cases involving genocide, war crimes, ethnic cleansing, and crimes against humanity. We were successful in making certain that language in the Outcome Document guaranteed a central role for the Security Council. We were pleased that the Outcome Document underscored the readiness of the Council to act in the face of such atrocities, and rejected categorically the argument that any principle of non-intervention precludes the Council from taking such action." John Bolton, 'Challenges and opportunities in moving ahead on UN reform', 18 October 2005, at http://www.usunnewyork.usmission.gov/05jrb1018.htm. 123 Tharoor, 'The changing face of peace-keeping and peace-enforcement', p 414. Walter Gary Sharp, Sr, 'Protecting the avatars of international peace and security', Duke Journal of Comparative International Law, 1996, 7, p 105 refers to such robust peacekeeping operations as 'coercive peace-keeping'. 124 Resolution 1706, para 14. 125 Resolution 1591, para 9 ('demanding that the GoS, in accordance with its commitments under the various peace agreements, "immediately cease conducting offensive military flights in an over the Darfur region'). 126 'Darfur: will they be rescued?, p 60. 127 Report of the High-level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility, UN Doc. A/59/565, 17 November 2004, p 32, para 79. 128 'To a realist, Security Council action can be explained as the resolution of political vectors. Each country calculates its national self-interest, and the interests of allied cooperative states, while speaking a universalist vocabulary.' Wedgwood, 'The evolution of United Nations peacekeeping', pp 631 – 632. 129 Thalif Deen, 'Oil, arms stymie United Nations effects on Sudan", Inter Press Service (Johannesburg), 5 November 2004, at http://www.ipsnews.net/interna.asp?idnews=26175. 130 'Sudan: pressure mounts'. 131 Lydia Polgreen, 'Over tea, sheik denies stirring Darfur's torment, New York Times, 12 June 2006, at http://www.nytimes.com/2006/06/12/world/africa/12darfur.html. 132 Report of the High-level Panel, A More Secure World, p 79, para 246; and David D Caron, 'The lLegitimacy of the collective authority of the Security Council', American Journal of Internationall Law, 87, 1993, p 555. 133 Wedgwood, 'The evolution of United Nations peacekeeping', p 632. 134 Declaration by the Assembly of the au, au Assembly 6th Ordinary Session, au Doc. Assembly/AU/Decl.2(VI), January 2006, at au website. 135 psc Communiqué 46, para 7. 136 'What I think will resolve the problem is sending additional forces to the African mission or new forces under the umbrella of the United Nations because the present situation is very untenable and something needs to be done'. Mohammed Khalil, quoted in Aida Akl, 'Darfur faces peacekeeping dilemma', Voice of America, 17 October 2006, at http://www.voanews.com/english/NewsAnalysis/DarfurConflict2006-10-17-voa60.cfm. 137 'Escalating crisis in Darfur'.