Journal of Conflict and Security Law Advance Access originally published online on May 23, 2009
Journal of Conflict and Security Law 2009 14(1):93-113; doi:10.1093/jcsl/krp013
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The United Nations and the African Union: Assessing a Partnership for Peace in Darfur
* Lecturer in the School of Law, University of Reading. E-mail: r.barnidge{at}reading.ac.uk.
In Resolution 1556, the Security Council, with the conflict in Darfur clearly in mind, determined that the ‘situation in Sudan constitutes a threat to international peace and security and to stability in the region’. This article focuses on the response by the United Nations, in particular the Security Council, and the African Union to the Darfur conflict. It begins by exploring the role of peacekeeping operations and regional arrangements or agencies in the overarching architecture of international peace and security. Having laid this frame of reference, it then looks at the modalities of peacekeeping in Darfur. These operations began with the African Union acting in isolation but have transitioned to an increasingly important role being played by the United Nations and a hybrid peacekeeping presence. Finally, this article asks whether, assuming that a legally dispositive conclusion can be drawn that genocide has taken place in Darfur since the outbreak of hostilities there in 2003, there exists a legal justification, or even obligation, for non-compliance by states with the sanctions regime established by Security Council Resolutions 1556 and 1591. This regime of sanctions has played an important part in the Security Council's approach to Darfur but has been, unfortunately, left largely unexamined from the standpoint of international legality.
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1. Introduction |
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 TOP 1. Introduction 2. The Role of...3. The Modalities of...4. The Sanctions Regime...5. ConclusionNOTES |
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Of all of the upheaval and turmoil, heartache and desperation, which has gripped Africa since the end of decolonization, more than a few situations stand out as particularly tragic. International and non-international armed conflicts and an unfortunate reality of too many states seemingly sovereign in name only1 have meant that the aspirations contained in the Universal Declaration of Human Rights have remained but utopian platitudes for too many in need. ‘The African Hercules’, rather than having ‘his club poised ready to smite any new head which the colonialist hydra may care to put out’,2 as former Ghanaian President Kwame Nkrumah so boldly predicted in 1964, has been tested and battered. Perhaps nowhere more so than in Africa have international legal theories of civil and political rights and economic, social and cultural rights confronted so many contrary practices by state and non-state actors alike. Indeed, Africa has tested, fundamentally, the grand coalition of theory and practice that is said to be international law.
Given this history and present reality, any attempt to focus on particular situations in Africa at the expense of others risks minimizing ‘lesser atrocity’, although it should also be pointed out, of course, that this is exactly what the United Nations Security Council does in designating certain situations as threats to the peace, breaches of the peace and acts of aggression and not others.3 In scholarship as in life, however, the great should not be seen as the enemy of the good, and any attempt, however modest, to come to grips with the particular should neither be shied away from nor cavalierly dismissed.
In Resolution 1556, the Security Council, with the conflict in Darfur clearly in mind, determined that the ‘situation in Sudan constitutes a threat to international peace and security and to stability in the region’.4 This article focuses on the response by the United Nations, in particular the Security Council, and the African Union to the Darfur conflict. It begins by exploring the role of peacekeeping operations and regional arrangements or agencies in the overarching architecture of international peace and security. Having laid this frame of reference, it then looks at the modalities of peacekeeping in Darfur. These operations began with the African Union acting in isolation but have transitioned to an increasingly important role being played by the United Nations and a hybrid peacekeeping presence. Finally, this article asks whether, assuming that a legally dispositive conclusion can be drawn that genocide has taken place in Darfur since the outbreak of hostilities there in 2003, there exists a legal justification, or even obligation, for non-compliance by states with the sanctions regime established by Security Council Resolutions 1556 and 1591. This regime of sanctions has played an important role in the Security Council's approach to Darfur but has been, unfortunately, left largely unexamined from the standpoint of international legality.
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2. The Role of Peacekeeping Operations and Regional Arrangements or Agencies in the Overarching Architecture of International Peace and Security |
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TOP1. Introduction2. The Role of...3. The Modalities of...4. The Sanctions Regime...5. ConclusionNOTES |
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Before one can begin to assess the complex peacekeeping arrangements in Darfur, what has worked and what has not and what might perhaps be improved upon, a basic question needs to be asked, namely: what role, if any, does the overarching architecture of international peace and security provide for peacekeeping operations, particularly those that draw heavily upon regional arrangements or agencies?
At the outset, it should be said that the Charter of the United Nations (Charter) itself makes no express reference to peacekeeping operations as such. This is not to say, of course, that creative interpretation cannot ‘read in’ a possibility of peacekeeping into the Charter, and indeed, for the dozens of peacekeeping operations that have taken place since the dawn of the United Nations era to be considered permissible under international law, such a reading would be required as a matter of law.
In fact, the lawfulness of peacekeeping operations as a consent-based contribution to international peace and security would seem to be unproblematic since at least the advisory opinion of the International Court of Justice (ICJ) in Certain Expenses of the United Nations.5 Such operations straddle Chapters VI and VII of the Charter, chapters that deal with, respectively, the pacific settlement of disputes and actions with respect to threats to the peace, breaches of the peace and acts of aggression, and lie in, to quote former United Nations Secretary General Dag Hammarskjöld in the context of the General Assembly's Uniting for Peace Resolution, an ‘in-between stage, which we sometimes jokingly call "Chapter VIa"’.6
Although each peacekeeping operation, whether established under the auspices of the United Nations or regional arrangements or agencies or by states themselves on a bilateral or multilateral basis, bears unique features, as a tailored response to specific facts and circumstances,7 certain commonalities can be identified. As a general matter, peacekeeping focuses on reaching consensus between the parties, however minimal and tentative, and inserting peacekeepers only then, to sustain this, rather than opting for the non-consensual, coercive use of force on the ground in the absence of at least some degree of agreement.8 As then Secretary General Boutros Boutros-Ghali described it in An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peacekeeping (An Agenda for Peace), peacekeeping promises to ‘expand[] the possibilities for both the prevention of conflict and the making of peace’9 and can involve military, security and civilian personnel deployed in the field.10
While the Charter gives the Security Council a pride of place in the overarching architecture of international peace and security, endowing it with ‘primary responsibility for the maintenance of international peace and security’,11 and while Article 103 of the Charter positions the United Nations at the pinnacle of the international legal order,12 the framers of the Charter devoted an entire chapter, Chapter VIII, to putting forth a complementary role for regional arrangements or agencies.13 The first of the three articles in Chapter VIII, Article 52, allows regional arrangements or agencies to deal with matters of international peace and security ‘as are appropriate for regional action’14 and continues by stressing the reinforcing role that regional arrangements or agencies can play in the pacific settlement of disputes.15 The Charter is clear, however, that the Security Council retains a pre-empting and overriding authority.16 Chapter VIII continues, in Article 53, by permitting the Security Council to subcontract out enforcement measures, that is, non-consensual, coercive measures, to regional arrangements or agencies, although ‘no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council’.17 Finally, when regional arrangements or agencies act in ways that can be reasonably construed as falling within the context of Chapter VIII, Article 54 requires that they keep the Security Council ‘fully informed’.18
Only with the end of the Cold War and a shift to a more ambitious and interventionist posture in matters of international peace and security has there been a greater focus at international level on regional arrangements or agencies as facilitators of peacekeeping operations. Since that time, Chapter VIII of the Charter has commanded much more attention in practice. As early as 1992, for example, An Agenda for Peace touted the promise in an assertedly ‘new era of opportunity’19 that regional arrangements or agencies hold for ‘render[ing] great service if their activities are undertaken in a manner consistent with the Purposes and Principles of the Charter, and if their relationship with the United Nations, and particularly the Security Council, is governed by Chapter VIII’.20 An Agenda for Peace continued by stressing that coordinated, yet subservient, regional action could ‘not only lighten the burden of the Council but also contribute to a deeper sense of participation, consensus and democratization in international affairs’.21 A humble vision of the use of military force this was not; rather, it was a commitment to the pacific settlement of disputes ‘with bite’.
Genocides in the Balkans and Rwanda soon shattered these and other starry-eyed visions of what United States President George H. W. Bush insisted at the time was the dawn of a ‘new world order’22 and revealed what Carr described in an earlier era as the ‘hollowness of ideas in face of armed force, of democrats when confronted with soldiers’.23 The responses to these and other disasters of the 1990s by international and regional actors, when these actors did respond at all, revealed not the final eclipse of geopolitics and state self-interest in favor of a fantastic new world of solidarity and unremitting enlightened self-interest. To the contrary, in fact, they led to charges of betrayal by the ‘so-called international community’24 and the continuation, if it had ever really ended in the first place, of a Hobbesian state of nature, ‘the life of man, solitary, poor, nasty, brutish, and short’.25
An interesting response to the disappointments of the years immediately following the end of the Cold War was a renewed focus on peacekeeping operations both as such and specifically as creatures of regional arrangements or agencies. Two reports under the auspices of the United Nations Secretariat, A More Secure World: Our Shared Responsibility (A More Secure World)26 and In Larger Freedom: Towards Development, Security and Human Rights for All (In Larger Freedom),27 deserve mention in this regard.
The first of these, A More Secure World, stresses the importance of clear and reasonably flexible mandates and sufficient resources28 and supports the idea of regional arrangements or agencies as practical complements to what the United Nations can achieve centrally.29 It encourages greater recourse by the Security Council to Chapter VIII of the Charter30 but very clearly subordinates the actions of regional arrangements or agencies to the prerogatives of the Security Council. There neither should be nor need there be petty posturing, according to A More Secure World, and the efforts of regional arrangements or agencies ‘need not contradict United Nations efforts, nor do they absolve the United Nations of its primary responsibilities for peace and security’.31
The second report worth mentioning under the auspices of the Secretariat at this time, In Larger Freedom, reiterates many of the points made in A More Secure World. In In Larger Freedom, then United Nations Secretary General Kofi Annan argued for a cooperative, non-competitive relationship between the United Nations and regional arrangements or agencies and foresaw a radical departure, or, as he put it, a ‘decisive move forward: the establishment of an interlocking system of peacekeeping capacities that will enable the United Nations to work with relevant regional organizations in predictable and reliable partnerships’.32 He stressed that the United Nations and regional arrangements or agencies should ‘play complementary roles in facing the challenges to international peace and security’33 and have, with one another, a ‘stronger relationship’.34 It is important to note that the General Assembly's 2005 World Summit Outcome document reiterates many of the points that A More Secure World and In Larger Freedom make as regards peacekeeping operations in the context of regional arrangements or agencies.35
To summarize, when one explores the role of peacekeeping operations and regional arrangements or agencies in the overarching architecture of international peace and security, an interesting paradox emerges. To be specific, peacekeeping operations, although not expressly mentioned in the Charter, have played an important role in international peace and security for decades, yet regional arrangements or agencies, although expressly mentioned in the Charter, have only of late played an important role in international peace and security. The trajectories of these two projects reveal that what the law neither expressly permits nor expressly excludes can pave the way for an emergent law of the possible and that what the law expressly provides for can remain irrelevant on the ground when not matched by the practice of states.
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3. The Modalities of Peacekeeping Operations in Darfur |
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TOP1. Introduction2. The Role of...3. The Modalities of...4. The Sanctions Regime...5. ConclusionNOTES |
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The background to the conflict in Darfur has been discussed elsewhere and need not be repeated here in great detail.36 Like all conflicts, its roots are complex, and unsurprisingly, the protagonists contest the controlling narrative. Regardless of rights and wrongs, questions of the responsibility to protect and proportionality, however, most would agree with France's description of Darfur in the Security Council in July 2007, that it is, or at least was at the time, a ‘synonym for despair, distress and violence’,37 or, as one scholar has described it, that it represents a ‘humanitarian and human rights tragedy of the first order’.38
Substantial rebellion in Darfur against President Omar Al Bashir's Sudan began in 2003. Although Iyob and Khadiagala describe the conflict as ‘more than an ethnic intifada’,39 one should not overlook or minimize its ethnic, and tribal, overtones. As the International Commission of Inquiry stated in its 2005 Report on Violations of International Humanitarian Law and Human Rights Law in Darfur (Report), ‘[r]ecent developments have led to the perception and self-perception of members of African tribes and members of Arab tribes as making up two distinct ethnic groups’.40 Khartoum, through helicopter gunships and Janjaweed militia proxies in the region, has sought to propagate a distinctly Arabist vision throughout the state, including, of course, in predominately black African Darfur. In opposition to this agenda and standing against it have been two main groups, the Sudan Liberation Army/Movement (SLA/M) and the Justice and Equality Movement (JEM). The first of these, broadly secular in outlook and open to Arab contributions, contrasts with the Islamist roots of the JEM, although the JEM, too, defies simple categorization.41
The first major legal development related to Darfur for purposes of this article, the Humanitarian Ceasefire Agreement on the Conflict in Darfur (Humanitarian Ceasefire Agreement), was signed in N’Djamena on 8 April 2004 by Sudan, the SLA/M and the JEM, with the African Union observing and under the sponsorship of Chadian President Idriss Deby. It set out a broad program of action for resolution of the conflict, foreseeing, in the words of the Preamble, a ‘global, just and durable solution negotiated peacefully’.42 One of the most important elements in the Humanitarian Ceasefire Agreement relates, unsurprisingly, to its ceasefire provisions. The ceasefire, in principle to be automatically renewable for periods of 45 days,43 was to take effect three days after signature,44 but it has proven to be very much a ‘paper tiger’.45 Article 2 of the Humanitarian Ceasefire Agreement defines the substance of the ceasefire obligations for the parties, and these include ensuring access for humanitarian purposes and refraining from recruitment, the supply of arms and ammunition, violence against civilians, and sabotage.46 The Humanitarian Ceasefire Agreement also calls for a Ceasefire Commission to monitor compliance,47 and it is also important to note that Article 6 requires that all parties ‘ensure that all armed groups under their control comply with this Agreement. The Sudanese Government shall commit itself to neutralize the armed militias’.48 This latter point encompasses the Janjaweed, but it has proven problematic to implement, to put it diplomatically.
While the Humanitarian Ceasefire Agreement speaks but generally about how the Ceasefire Commission should operate, the Agreement with the Sudanese Parties on the Modalities for the Establishment of the Ceasefire Commission and the Deployment of Observers in the Darfur (Agreement on Modalities), signed less than two months later, fills in the specifics and reflects the reality of an African Union determined to both play an increasingly assertive role in conflict resolution on the Continent and shed the ineffectual legacy of the Organization of African Unity, an organization that Murithi describes as a ‘toothless talking shop, a silent observer to the atrocities being committed by its member states’.49 The Agreement on Modalities provides for a Joint Commission at the top of a ceasefire structure. Operating on the basis of consensus, the Joint Commission's membership extends broadly, including not only Sudan, the SLA/M, the JEM, the Chadian mediation team and the African Union but also the United States and the European Union.50
The most interesting aspect of the Agreement on Modalities, however, is not the Joint Commission, which essentially plays an oversight role, but, rather, the Ceasefire Commission itself. Like the Joint Commission, the Ceasefire Commission draws on a wide membership, but unlike with the Joint Commission, the Agreement on Modalities subdivides the Ceasefire Commission into a number of subbodies, each of which exercises specific functions: the African Union Monitoring Mission, the Ceasefire Commission's ‘operational arm’51; a Chief Military Observer, to be chosen by the African Union and tasked with exercising ‘command and control’52; and Military Observers, ‘lightly armed’.53 The Agreement on Modalities permits the Ceasefire Commission to deploy throughout Darfur to carry out inspections and investigations by air and on the ground and endows it with a right to complete freedom of access and movement.54
The initial deployment of what came to be known as the African Union Mission in Sudan (AMIS) in the weeks following signature of the Agreement on Modalities soon found itself overwhelmed in the largest state in Africa, with too few personnel, numbering but a few hundred in October 2004.55 As Appiah-Mensah recounts, the first Military Observers in Darfur had but a single satellite phone and no transport of which to speak.56 Numbers were an issue, hardware was an issue, and a circumscribed mandate was an issue. As AMIS's own website acknowledges, ‘[s]ixty MILOBs [i.e., Military Observers], regardless of their efficiency and dedication, were unable to provide meaningful monitoring coverage for an area roughly the size of France in a situation where the parties were not complying with the provisions of the HCFA [i.e., the Humanitarian Ceasefire Agreement] they had signed’.57 The African Union Peace and Security Council, in transitioning from AMIS I to AMIS II, called for a larger presence in October 2004 of a few thousand military personnel and a civilian police presence, and while these numbers were further increased on paper in the spring of 2005, implementation on the ground proved to be both slow and stunted.58
At the same time that the African Union was renewing its commitment in Darfur, the Security Council began to assert itself more fully there. In light of what it described as the ‘deterioration of the security situation and the negative impact this has had on humanitarian assistance efforts’,59 Security Council Resolution 1590 established the United Nations Mission in Sudan (UNMIS), which would include as many as 10 000 military personnel and up to approximately 1000 civilian police officers.60 This Resolution tasked UNMIS with coordinating with AMIS ‘with a view towards expeditiously reinforcing the effort to foster peace in Darfur, especially with regard to the Abuja peace process and the African Union Mission in Sudan’.61
Security Council Resolution 1706 significantly expanded UNMIS's mandate over a year later. According to this Resolution, UNMIS's capacity was to be increased to as many as 17 300 military personnel and a few thousand civilian police officers.62 UNMIS was also now tasked with supporting both the Humanitarian Ceasefire Agreement and the 5 May 2006 Darfur Peace Agreement by, among other means, monitoring the movement of armed forces in Darfur through ground and aerial surveillance63 and by investigating ceasefire violations,64 and it was also tasked with assisting in the voluntary return to Darfur of refugees and internally displaced people.65 Importantly, Paragraph 12 of Resolution 1706 sees the crossing of the rubicon for a number of UNMIS's key functions to Chapter VII of the Charter, with the Security Council authorizing UNMIS to ‘use all necessary means’,66 although the Security Council also in this regard expressly ‘invites the consent of the Government of National Unity for this deployment’.67
Despite the efforts of both the United Nations and the African Union to achieve ‘peace in our time’ in Darfur, the situation on the ground remained dire. As United Nations Secretary General Ban Ki-Moon put it in a July 2007 report, ‘[i]n recent months, the overall security situation in Darfur has been characterized by continual violence and insecurity’,68 with both AMIS and UNMIS suffering attacks, humanitarian workers being abducted, assaulted and carjacked and civilians being indiscriminately attacked.69 The Security Council had expressed similar concerns a few months earlier, in Resolution 1755.70 To put it bluntly, AMIS had been, despite its best efforts, acting as ‘peacekeepers without a peace to keep’.71
The final major development on the peacekeeping front in Darfur has been the transition from AMIS, with the assistance of UNMIS, to a hybrid peacekeeping presence. Security Council Resolution 1769 established this hybrid peacekeeping presence, the African Union/United Nations Hybrid operation in Darfur (UNAMID), with the consent of Sudan, the same state, of course, that has stood accused of having committed genocide in Darfur.72 Paragraph two of Resolution 1769 anticipates up to almost 20 000 military personnel and a few thousand civilian police officers for UNAMID,73 and UNAMID's mandate, encompassing good offices and support for the peace process, ensuring security, prioritizing the rule of law, human rights and governance and providing humanitarian assistance,74 can perhaps best be described, even with its Chapter VII mandate,75 as being as ambitious as it is completely unrealistic. Unfortunately, the Secretary General's most recent report on UNAMID's deployment attests to this.76
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4. The Sanctions Regime under Security Council Resolutions 1556 and 1591: A Legal Justification, Even Obligation, for Non-compliance by States? |
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TOP1. Introduction2. The Role of...3. The Modalities of...4. The Sanctions Regime...5. ConclusionNOTES |
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Clearly, peacekeeping operations have played an important role in the response by the United Nations, in particular the Security Council, and the African Union to the Darfur conflict. These operations began at the initiative of the African Union, with the consent of the parties as set out in the Humanitarian Ceasefire Agreement and the Agreement on Modalities, were later endorsed by the Security Council, and have undergone a number of permutations since their inception, transitioning from AMIS I to AMIS II to, eventually, a hybrid peacekeeping presence.
While much of the international law scholarship related to Darfur has focused on the peacekeeping response, and with good reason, insufficient attention has been paid to the sanctions regime that Security Council Resolution 1556, as supplemented by Resolution 1591, imposes upon states and the implications of this from the standpoint of international legality. The embargo component of this regime applies to ‘arms and related materiel of all types’ and requires states to ‘take the necessary measures to prevent the sale or supply, to all non-governmental entities and individuals, including the Janjaweed, operating in the states of North Darfur, South Darfur and West Darfur, by their nationals or from their territories or using their flag vessels or aircraft’.77 It also extends to the intellectual infrastructure of conflict, that which interfaces with military hardware to maim and kill, namely the ‘technical training or assistance related to the provision, manufacture, maintenance or use of the items listed in paragraph 7 above’.78 Paragraph 9 of Resolution 1556 excludes hardware and knowledge transfer schemes that would otherwise fall within the parameters of the embargo when they are directed at humanitarian and human rights purposes and for the media and other designated groups.79 Resolution 1591, adopted less than a year later, supplements Resolution 1556 and establishes a Committee to monitor compliance, designate individuals for sanctions, draw up guidelines and issue regular reports, creates a Panel of Experts to, among other things, aid the Committee in its work and sets up a mechanism that subjects named individuals to sweeping travel bans and assets freezing.80 As with Resolution 1556, Resolution 1591 allows for certain exceptions.81
The 1556/1591 sanctions regime aims to halt the proliferation of arms and related materiel to, specifically, ‘all non-governmental entities and individuals, including the Janjaweed’,82 and in this regard, it is particularly striking. It is particularly striking because, by so doing, this posture maintains, and sustains, the power advantage of the Sudanese state in Darfur. By reinforcing the classic Weberian paradigm of the state as a ‘human community that successfully claims for itself the monopoly of the legitimate use of physical violence within a territory with determined boundaries’,83 it shows that state sovereignty continues to act as both sword and shield in international relations.84
Given the accusations of genocide that have been leveled against Sudan for its conduct in Darfur and the nature of the 1556/1591 sanctions regime with its significant focus on preventing the proliferation of arms and related materiel to what might be deemed to be the ‘victims’ of an alleged genocide and those fighting it, one cannot help but think back to the arms embargo that Security Council Resolution 713 imposed upon the former Yugoslavia in 199185 and International Court of Justice Judge Elihu Lauterpacht's reflections on it in his separate opinion attached to the Order of 13 September 1993 in the Further Requests for the Indication of Provisional Measures phase of Application of the Convention on the Prevention and Punishment of the Crime of Genocide.86
In his separate opinion, Judge Lauterpacht examined Bosnia and Herzegovina's argument in its fourth request that the 713 embargo unlawfully deprived it of the ‘means to prevent the commission of acts of genocide’,87 acts that the International Panel of Eminent Personalities to Investigate the 1994 Genocide in Rwanda and the Surrounding Events described in Rwanda: The Preventable Genocide as striking at the ‘ultimate depths of human perversity’.88 The thinking behind Judge Lauterpacht's argument, on Bosnia and Herzegovina's part, was that the arms embargo acted to reinforce the already disproportionate power advantage of the Yugoslav state and its Bosnian Serb proxies at the expense of Bosnia and Herzegovina, a state that was, at the time, on the receiving end of a genocide.89
Judge Lauterpacht found Bosnia and Herzegovina's argument on this point to be quite persuasive, although, to be sure, he did ‘play both sides of the fence’. Put differently, he put forth both the radical possibility that states could not be said to be bound by the 713 embargo when to be so bound would effectively make them accessories to genocide and the more modest possibility that heady and highly debatable questions of fact and law would have to be carefully parsed before legal conclusions could be drawn.90 He concluded this part of his separate opinion by drawing the Security Council's attention, advising it to give ‘due weight’,91 a standard that he left undefined, to legal reasoning that was far from clear in its scope, intentions and ramifications.92 Finally, it should be pointed out that while Judge Lauterpacht was convinced that the Security Council would never deliberately adopt a Resolution the content of which would obviously conflict with jus cogens, he did acknowledge that the ‘possibility that a Security Council resolution might inadvertently or in an unforeseen manner lead to such a situation cannot be excluded’.93
Before one can even entertain the possibility of applying, in theory, the more radical proposition in Judge Lauterpacht's separate opinion, that an embargo that would otherwise bind states by way of a Security Council Resolution would cease to have such an effect when compliance would effectively make them accessories to genocide, to the 1556/1591 sanctions regime, one would, of course, have to determine that a legally dispositive conclusion can be drawn that genocide has taken place in Darfur since the outbreak of hostilities there in 2003 and, more specifically, since the Security Council's adoption of the 1556/1591 sanctions regime. That international law recognizes this, conclusively, however, is far from clear. A number of positions can be identified, and these run the spectrum from concluding that genocide has indeed taken place in Darfur to a denial of this to a more nuanced, and one might say even confused and unclear, view.
The United States’ position on the matter provides a clear example of the view that genocide has taken place in Darfur. In his September 2004 testimony before the United States Senate Foreign Relations Committee, then Secretary of State Colin L. Powell concluded that ‘genocide has occurred and may still be occurring in Darfur’.94 According to him, the specific intent element required by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), the dolus specialis, had been met by inference from conduct carried out deliberately by Sudan and the Janjaweed.95 After applying the law of the Genocide Convention to the facts of Darfur, Powell reached his conclusion, convinced that it satisfied a standard of ‘totality of the evidence’.96 While a rigid understanding of the sovereign equality of states might lead one to minimize the importance of this conclusion or to dismiss it as being the position of just one state among many, concerned, states, a more realistic and practical perspective would recognize that the sole superpower's view, particularly when couched in legal language, carries significant and disproportionate weight in the international arena and discourse.
The Commission of Inquiry's 2005 Report gives the clearest example of the contrasting perspective on the genocide issue, the view that it has not taken place in Darfur. Charged by the Security Council ‘immediately to investigate reports of violations of international humanitarian law and human rights law in Darfur by all parties, to determine also whether or not acts of genocide have occurred, and to identify the perpetrators of such violations with a view to ensuring that those responsible are held accountable’,97 the Commission of Inquiry examined the question of genocide in the second part of its lengthy report.98 It stated that the international law of genocide requires certain objective conduct, namely specified prohibited acts aimed at a particular target group or groups, and a particular mens rea, relating both to the underlying acts themselves and a dolus specialis as relates to genocidal intent as such.99 The second aspect of the mens rea, according to the Report, ‘implies that the perpetrator consciously desired the prohibited acts he committed to result in the destruction, in whole or in part, of the group as such, and knew that his acts would destroy, in whole or in part, the group as such’.100
While the Commission of Inquiry's process of creative interpretation led it to find that the Darfurian tribes qualified as ‘protected groups’ for purposes of the definition of genocide,101 it gave the benefit of the doubt to Sudan on the lingering specific intent question.102 Some of the facts, according to it, ‘could be indicative of the genocidal intent. However, there are other more indicative elements that show a lack of genocidal intent’.103 While the Commission of Inquiry did not exclude the possibility that some actors might have had the requisite intent to sustain a finding of genocide,104 it was unwilling to make this conclusion generally, convinced that Sudanese intent aimed not at genocidal annihilation as such but, rather, was done ‘primarily for purposes of counter-insurgency warfare’.105
The Commission of Inquiry released its Report in the last days of January 2005, and unsurprisingly, international actors quickly seized upon it in their posturing on the genocide issue. Perhaps most importantly in this regard from the standpoint of international law, the Security Council ‘took note’ of the Report in Resolution 1590.106 Clearly, ‘taking note’ is neutral language, a compromise construction, and as such, it reflects more than anything else the divided geopolitical stakes at play on the issue among the 15 Members of the Security Council, particularly among the veto-wielding Permanent Five. Indeed, ‘taking note’ reveals very little of substance from a legal point of view. It falls well short of language, such as ‘endorsing’ or ‘agreeing with’, which might reasonably be construed as ratifying the Commission of Inquiry's conclusion on the genocide issue and, in so doing, leaves the Security Council a good deal of ‘wriggle room’ on the issue.107
A final development worth noting regarding the question of whether genocide has taken place relates to the Security Council's referral of the ‘situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court [(ICC)]’.108 The referral Resolution, Resolution 1593, begins by also, and only, ‘[t]aking note’ of the Commission of Inquiry's Report, nothing more, nothing less.109 It expresses no preference per se as to which of the core crimes that lie at the heart of the ICC's subject matter jurisdiction, namely genocide, crimes against humanity, war crimes and aggression,110 might, at least as a preliminary matter, fit the facts and circumstances in Darfur more than others, but of course, nothing requires the Security Council to express such a preference. It is telling, however, that only one state, the United States, expressly referred to genocide by name in the floor discussions in the Security Council immediately following adoption of Resolution 1593.111
While the intricacies of how the ICC has dealt with the situation in Darfur lie outside the scope of this article, one final point should be made, and this strengthens the perception that genocide has indeed taken place in Darfur. In his 14 July 2008 Public Redacted Version of his Application Under Article 58 of the Rome Statute of the ICC (Application Under Article 58), ICC Prosecutor Luis Moreno-Ocampo reached the same conclusion on the genocide issue that Powell had reached almost four years previously.112 Where the Commission of Inquiry had been willing to give the benefit of the doubt to Sudan on the specific intent issue, minimizing, as it did, its intent as being aimed ‘primarily for purposes of counter-insurgency warfare’, Moreno-Ocampo was much more decisive. For him, the situation was clear; for him, ‘Al Bashir's motives for the attacks his forces have carried out against the target groups were largely political. But his intent was genocide’.113 Al Bashir's ‘sophisticated cover up strategy[, ...] conceal[ing] not just the crimes, but their genocidal character’,114 had evidently succeeded in preventing the Commission of Inquiry from reaching a finding of Sudanese state responsibility for genocide, but for Moreno-Ocampo, this sophisticated strategy simply would not work. It was, for him, merely a ruse, however clever, an attempt to obfuscate, however deliberate, that could not, and should not, prevent Al Bashir's prosecution in the individual criminal responsibility context. Moreno-Ocampo put forward three counts of genocide, namely genocide by killing members of each target group, genocide by causing serious bodily or mental harm to members of each target group, and genocide by deliberately inflicting on each target group conditions of life calculated to bring about the group's physical destruction.115
Thus, it cannot be said, at least not yet, that international law has reached a dispositive conclusion on the genocide issue in Darfur. Those who wish to accuse Sudan as a state or Al Bashir as an individual of having committed genocide can harness Powell's testimony before the United States Senate Foreign Relations Committee, the fact that the Commission of Inquiry's Report expressly left open the question of possible individual criminal responsibility for genocide,116 the Security Council's referral of the situation in Darfur to an international criminal tribunal that has jurisdiction over a very limited number of crimes of which genocide clearly is one, and Moreno-Ocampo's case against Al Bashir with three counts of genocide. They can draw generous inferences on the dolus specialis issue as relates to genocidal intent itself given the realities of Sudanese state sovereignty117 and perhaps make an analogy with the ICJ's discussion in Corfu Channel of a ‘more liberal recourse to inferences of fact and circumstantial evidence’ in light of the ‘exclusive territorial control exercised by a State within its frontiers’.118 For the defenders of Sudan and Al Bashir, however, Powell's testimony can be dismissed as being but politically motivated posturing from one state among roughly two hundred, the Commission of Inquiry's inability to find genocidal intent can be argued to speak volumes about the difficulties of sustaining a finding of genocide in Darfur, Moreno-Ocampo's Application Under Article 58, however well-argued it may or may not be, can be acknowledged as remaining but a prosecutor's brief,119 and indeed, the Security Council's very referral of the situation in Darfur itself can be said to reflect, as Sudan argued in the floor discussions in the Security Council immediately following adoption of Resolution 1593, an ICC as an institutional ‘tool for those who believe that they have a monopoly on virtues on this world, rife with injustice and tyranny’.120 That one may wish to wield the weapon of international law against Sudan and Al Bashir on the genocide issue may make sense, and probably does, tactically, but methodologically, it is unconvincing. International law remains silent, and agnostic, on the issue.
To conclude, then, there exists no legal justification, much less obligation, for states’ non-compliance with the 1556/1591 sanctions regime. Even if one were to accept in law Judge Lauterpacht's more radical proposition in his separate opinion, that an embargo that would otherwise bind states by way of a Security Council Resolution would cease to have such an effect when compliance would effectively make them accessories to genocide, as applied to the 1556/1591 sanctions regime, the predicate for proceeding within this framework, namely that a legally dispositive conclusion of genocide can be drawn, does not exist. Indeed, it might even be said that international law's radical decentralization of authority, its ‘absence of authoritative, impartial, and effective interpreters of the meaning of norms’,121 puts states in a particularly difficult legal position if one accepts the more radical proposition in Lauterpacht's separate opinion: either states hazard non-compliance with a Security Council-imposed sanctions regime that they judge, of their own accord and presumably, although certainly not necessarily, in good faith, to require compliance that would effectively make them accessories to a breach of jus cogens or they rigidly follow the dictates of the Security Council and willfully blind themselves to the consequences of their actions on the ground.
States may, of course, decide to ignore their obligations under Resolutions 1556 and 1591 out of a sense of ‘higher obligation’, but while they may or may not be politically, morally, ethically or otherwise justified in so doing, they would surely risk falling foul of their Charter obligation to ‘accept and carry out the decisions of the Security Council in accordance with the present Charter’.122
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To conclude, peacekeeping operations, whether doled out directly from the center or whether facilitated at the initiative of regional arrangements or agencies can be effective in the context of international peace and security, but they can also be disastrous. When disastrous, they are false assurances, false dawns, compromises arrived at through geopolitical manipulation, or worse. Perhaps much worse, perhaps ‘totally at the mercy of the host country, so totally at its mercy as to be the instrument of its policies, whatever those policies may be’.123 Unfortunately, this seems to have been the case in Darfur.
It has become perhaps trite to say that history tends to repeat itself, but there is some truth in this, in the peacekeeping context as in others. As Israeli diplomat Abba Eban put it in the aftermath of the United Nations Emergency Force's departure from the Sinai Peninsula in 1967, leaving the young Jewish state at the tender mercies of its Arab neighbors, ‘what is the use of a United Nations presence if it is in effect an umbrella which is taken away as soon as it begins to rain’?124
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1 In his separate opinion in Armed Activities on the Territory of the Congo, International Court of Justice (ICJ) Judge Pieter Hendrik Kooijmans described such states as ‘régimes under constant threat from armed movements often operating from the territory of neighboring states, whose governments sometimes support such movements but often merely tolerate them since they do not have the means to control or repel them’. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ (2005), para. 5 (Separate Opinion of Judge Kooijmans). See J. Peter Pham, ‘Renewed Congo Conflict Requires Fresh Approach’, World Defense Review, 13 November 2008. Available at <http://worlddefensereview.com/pham111308.shtml>.
2 Kwame Nkrumah, Consciencism (1964) 70.
4 SC Res. 1556, 30 July 2004, Preamble.
5 In that case, the General Assembly tasked the ICJ with examining whether General Assembly authorized expenses to ‘cover the costs of the United Nations operations in the Congo [...] and of the operations of the United Nations Emergency Force in the Middle East [...] "constitute ‘expenses of the Organization’ within the meaning of Article 17, paragraph 2, of the Charter of the United Nations"’. Certain Expenses of the United Nations, ICJ (1962) 151, 156.
6 Dag Hammarskjöld, ‘Transcript of Press Conference, Copenhagen, 4 May 1959’, in Andrew W. Cordier and Wilder Foote (eds), IV Public Papers of the Secretaries-General of the United Nations: Dag Hammarskjöld: 1958–60 (1974) 375, 377.
7 See Georg Ress and Jürgen Bröhmer, ‘Article 53’, in Bruno Simma (ed.) 1 The Charter of the United Nations: A Commentary (2nd edn, 2002) 854, 861 (asserting that ‘[i]t is problematic to assert categorically that peace-keeping is not enforcement action because peace-keeping activities can be performed in various guises’.).
8 See Antonio Cassese, International Law (2nd edn, 2005) 343–46; Yoram Dinstein, War, Aggression and Self-Defence (4th edn, 2008) 307–9.
9 An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peacekeeping (1992), A/47/277-S/24111, para. 20.
10 See ibid., paras. 20, 46–54.
12 See ibid., Art. 103 (stating that, ‘[i]n the event of a conflict between the obligations of the members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail’.).
13 For a recent Security Council reaffirmation of a complementary role for regional arrangements or agencies in this regard, see SC Res. 1769, 31 July 2007, Preamble (‘recalling that co-operation between the UN and the regional arrangements in matters relating to the maintenance of peace and security is an integral part of collective security as provided for in the Charter of the United Nations’.).
14 UN Charter, Art. 52(1). These actions must be ‘consistent with the Purposes and Principles of the United Nations’. Ibid.
16 See ibid., Art. 52(4). The International Law Commission's Study Group on the fragmentation of international law reaffirms this interpretation. See Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law: Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi (2006), A/CN.4/L.682, 112.
17 UN Charter, Art. 53(1). The ‘enemy state’ exception at the end of Article 53(1) and in Article 53(2) is of historical interest only.
18 Ibid., Art. 54. On Chapter VIII generally, see Jean Allain, ‘The True Challenge to the United Nations System of the Use of Force: The Failures of Kosovo and Iraq and the Emergence of the African Union’, (2004) 8 Max Planck Yearbook of United Nations Law 237, 248–51; Marten Zwanenburg, ‘Regional Organisations and the Maintenance of International Peace and Security: Three Recent Regional African Peace Operations’, (2006) 11(3) JCSL 483, 487–92. Chapter VIII does not define regional arrangements or agencies, but in their commentary to Article 52 of the Charter, Hummer and Schweitzer define such an arrangement or agency as a ‘union of States or an international organization based upon a collective treaty or a constitution and consistent with the Purposes and Principles of the UN, whose primary task is the maintenance of peace and security under the control and within the framework of the UN. Its members, whose number must be smaller than that of the UN, must be so closely linked in territorial terms that effective local dispute settlement by means of a specially provided procedure is possible. Accordingly, regional agencies are internally focused, thereby distinguishing themselves from, inter alia, externally focused systems of collective self-defense under Art. 51’. Waldemar Hummer and Michael Schweitzer, ‘Article 52’, in Simma (ed.), loc. cit., fn. 7, pp. 807, 828.
19 An Agenda for Peace, op. cit., fn. 9, para. 63.
21 Ibid., para. 64. See Zwanenburg, loc. cit., fn. 18, p. 484.
22 ‘Transcript of President Bush's Address on End of the Gulf War’, New York Times, 7 March 1991.
23 E. H. Carr, What Is History? (2nd edn, 2001) 33.
24 International Panel of Eminent Personalities to Investigate the 1994 Genocide in Rwanda and the Surrounding Events, Rwanda: The Preventable Genocide (2000) 128.
25 Thomas Hobbes, Leviathan (1998) 84.
26 A More Secure World: Our Shared Responsibility: Report of the Secretary-General's High-Level Panel on Threats, Challenges and Change (2004).
27 In Larger Freedom: Towards Development, Security and Human Rights for All: Report of the Secretary-General (2005), A/59/2005.
28 See A More Secure World, op. cit., fn. 26, p. 68.
32 In Larger Freedom, op. cit., fn. 27, p. 31 (bold omitted).
35 See GA Res. 60/1, 24 October 2005, 23–24; ibid., 37.
36 For background, see Report of the International Commission of Inquiry on Violations of International Humanitarian Law and Human Rights Law in Darfur (2005), S/2005/60, 18–27; Julie Flint and Alex de Waal, Darfur: A Short History of a Long War (2006); Implementation of General Assembly Resolution 60/251 of 15 March 2006 Entitled ‘Human Rights Council’: Report of the High-Level Mission on the Situation of Human Rights in Darfur Pursuant to Human Rights Council Decision S-4/101 (2007), A/HRC/4/80, 10–12; Tim Murithi, ‘The African Union's Evolving Role in Peace Operations: The African Union Mission in Burundi, the African Union Mission in Sudan and the African Union Mission in Somalia’, (2008) 17(1) African Security Review 70, 76; Ademola Abass, ‘The United Nations, the African Union and the Darfur Crisis: Of Apology and Utopia’, (2007) 54(3) Netherlands International Law Review 415, 417–18.
37 UN doc. S/PV.5727, 31 July 2007, 5.
38 Kenneth Kimathi, ‘Darfur in the Pan, Unity on the Call’, All Africa Global Media, 12 October 2005. Available at <http://www.ushmm.org/newsfeed/darfur/viewstory.php?storyid=5875>.
39 Ruth Iyob and Gilbert M. Khadiagala, Sudan: The Elusive Quest for Peace (2006) 149.
40 Report of the International Commission of Inquiry on Violations of International Humanitarian Law and Human Rights Law in Darfur, op. cit., fn. 36, p. 141. See Public Redacted Version of the Prosecutor's Application Under Article 58 Filed on 14 July 2008, ICC-02/05, Annex A, 26–28. Hong argues that ‘[t]he Arab-versus-black characterization is somewhat misleading, however, because these groups are neither internally cohesive nor fully distinct from each other. Collectivities in Sudan are multidimensional–-as they are anywhere in the world, but especially so here’. Mai-Linh K. Hong, ‘A Genocide by Any Other Name: Language, Law, and the Response to Darfur’, (2008) 49(1) Virginia Journal of International Law 235, 243.
41 On the SLA/M and the JEM, see Flint and de Waal, op. cit., fn. 36, pp. 82–83; ibid., 92–96. See also Report of the International Commission of Inquiry on Violations of International Humanitarian Law and Human Rights Law in Darfur, op. cit., fn. 36, pp. 24–25. As perhaps the most striking example of the JEM's defiance of simple categorization, consider that its leader, Khalil Ibrahim, supports peaceful relations with Israel. See Interview on Al-Jazeera TV with Dr. Khalil Ibrahim, Leader of the Sudanese Justice and Equality Movement, ‘I Support Peaceful Relations with Israel’, Middle East Media Research Institute, 15 June 2008. Available at <http://www.memritv.org/clip_transcript/en/1796.htm>. For further on the SLA/M and the JEM, see Iyob and Khadiagala, op. cit., fn. 39, pp. 136–37.
42 Humanitarian Ceasefire Agreement on the Conflict in Darfur, N’Djamena, 8 April 2004, Preamble. Available at <http://www.africa-union.org/DARFUR/Agreements/agreementHum.pdf>.
45 See Michael Bothe, ‘International Legal Aspects of the Darfur Conflict’, in August Reinisch and Ursula Kriebaum (eds), The Law of International Relations—Liber Amicorum Hanspeter Neuhold (2007) 1, 6.
46 See Humanitarian Ceasefire Agreement, op. cit., fn. 42, Art. 2.
49 Murithi, op. cit., fn. 36, p. 72.
50 See Agreement with the Sudanese Parties on the Modalities for the Establishment of the Ceasefire Commission and the Deployment of Observers in the Darfur, Addis Ababa, 28 May 2004, Art. I(1)(A)-(B). Available at <http://www.africa-union.org/DARFUR/Agreements/agreement%20with%20the%20Sudanese%20parties.pdf>.
55 See ‘African Union Mission in the Sudan’. Available at <http://www.amis-sudan.org/> (accessed 25 October 2008); ‘African Union Mission in the Sudan: Background and Chronology’. Available at <http://www.amis-sudan.org/history.html> (accessed 29 October 2008).
56 See Seth Appiah-Mensah, ‘AU's Critical Assignment in Darfur: Challenges and Constraints’, (2005) 14(2) African Security Review 7, 8.
57 ‘African Union Mission in the Sudan: Background and Chronology’, op. cit., fn. 55.
58 See ‘African Union Mission in the Sudan’, op. cit., fn. 55; ‘African Union Mission in the Sudan: Background and Chronology’, op. cit., fn. 55; Appiah-Mensah, loc. cit., fn. 56, p. 8. On the exact numerical breakdown of AMIS military personnel, civilian police officers and representatives from Sudan and the SLA/M and JEM on 16 January 2007, see ‘African Union Mission in the Sudan: Strength of AMIS’, 16 January 2007. Available at <http://www.amis-sudan.org/AMIS%20Strength.html>.
59 SC Res. 1590, 24 March 2005, Preamble.
61 Ibid., para. 2. On Resolution 1590, see Susan C. Breau, ‘The Impact of the Responsibility to Protect on Peacekeeping’, (2006) 11(3) JCSL 429, 452.
62 See SC Res. 1706, 31 August 2006, para. 3.
68 Report of the Secretary-General on Darfur (2007), S/2007/462, 1.
70 See SC Res. 1755, 30 April 2007. See also Gérard Prunier, ‘Sudan: Genocide in Darfur’, Le Monde Diplomatique, March 2007. Available at <http://mondediplo.com/ 2007/03/08darfur>.
71 UN doc. S/PV.5727, op. cit., fn. 37, p. 3.
72 On this consent, see Report of the Secretary-General on Darfur, op. cit., fn. 68, pp. 10–12.
73 See SC Res. 1769, op. cit., fn. 13, para. 2. For the exact number of personnel deployed as of 31 January 2009, see Report of the Secretary-General on the Deployment of the African Union-United Nations Hybrid Operation in Darfur (2009), S/2009/83, 1–4.
74 Paragraph one of Resolution 1769 refers to a 5 June 2007 report concluded by the Secretary General and the Chairperson of the African Union Commission as encompassing UNAMID's mandate. In particular, see paragraphs 54–55 at Report of the Secretary-General and the Chairperson of the African Union Commission on the Hybrid Operation in Darfur (2007), S/2007/307/Rev.1, 12–15.
75 See SC Res. 1769, op. cit., fn. 13, para. 15.
76 See Report of the Secretary-General on the Deployment of the African Union-United Nations Hybrid Operation in Darfur, op. cit., fn. 73. On UNAMID, see Abass, loc. cit., fn. 36, pp. 432–39.
77 SC Res. 1556, op. cit., fn. 4, para. 7. By ‘arms and related materiel of all types’, the Security Council includes ‘weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned, whether or not originating in their territories’. Ibid.
80 See SC Res. 1591, 29 March 2005, para. 3.
81 See ibid., para. 3(f)–(g). See also Flint and de Waal, op. cit., fn. 36, pp. 127–28. For a useful summary of the 1556/1591 sanctions regime in tabular form, see ‘Security Council Committee Established Pursuant to Resolution 1591 (2005) Concerning the Sudan’. Available at <http://www.un.org/sc/committees/1591/index.shtml> (accessed 31 October 2008).
82 SC Res. 1556, op. cit., fn. 4, para. 7.
83 Max Weber, The Profession of Politics, Simona Draghici (ed.) (2000) 2.
84 Admittedly, though, of course, one could argue that the express inclusion of the Janjaweed, the ‘including the Janjaweed’ language in Resolution 1556, chips away at this power advantage since a good deal of evidence suggests that Sudan instructs or directs or controls, at least in part, the Janjaweed and, thus, that the Janjaweed's conduct can be attributed to Sudan under the law of state responsibility. See International Law Commission, ‘Articles on Responsibility of States for Internationally Wrongful Acts’, (2001) in James Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (2003) 61, 62, Art. 8 (stating that ‘[t]he conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct’.). According to the ICJ, Article 8 of the International Law Commission's Articles on Responsibility of States for Internationally Wrongful Acts reflects customary international law. See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), ICJ (2007), para. 398. For a nuanced view on the attribution issue as relates to the Janjaweed's conduct and Sudan, see Report of the International Commission of Inquiry on Violations of International Humanitarian Law and Human Rights Law in Darfur, op. cit., fn. 36, pp. 33–39. On Sudan's mobilization, recruitment and funding of the Janjaweed, as well as its supplying of arms, equipment and ammunition to it, see Public Redacted Version of the Prosecutor's Application, op. cit., fn. 40, pp. 81–86.
85 See SC Res. 713, 25 September 1991, para. 6 (‘[d]ecides, under Chapter VII of the Charter of the United Nations, that all States shall, for the purposes of establishing peace and stability in Yugoslavia, immediately implement a general and complete embargo on all deliveries of weapons and military equipment to Yugoslavia until the Council decides otherwise following consultation between the Secretary-General and the Government of Yugoslavia’.). On the arms embargo in the former Yugoslavia, see Jeane J. Kirkpatrick, Making War to Keep Peace (2007) 202.
86 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), ICJ (1993), paras 84–107 (Further Requests for the Indication of Provisional Measures Order of 13 September) (Separate Opinion of Judge Lauterpacht).
87 Ibid., para. 89. See Jan Klabbers, An Introduction to International Institutional Law (2007) pp. 239–40.
88 International Panel of Eminent Personalities, op. cit., fn. 24, p. 6. Hong describes genocide as ‘both a product and a perversion of nationalism’. Hong, loc. cit., fn. 40, p. 256. On the indifference of the Security Council to Rwanda in 1994, see Allain, loc. cit., fn. 18, pp. 262–64.
89 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), op. cit., fn. 86, paras. 95–96. The prohibition of genocide is said to amount to jus cogens, as Judge Lauterpacht noted at the time and as the ICJ has reaffirmed since. See ibid., para. 100; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), op. cit., fn. 84, para. 161. On genocide, see William A. Schabas, An Introduction to the International Criminal Court (3rd edn, 2008) 91–98; Report of the International Commission of Inquiry on Violations of International Humanitarian Law and Human Rights Law in Darfur, op. cit., fn. 36, pp. 132–38; International Panel of Eminent Personalities, op. cit., fn. 24, pp. 5–8.
90 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), op. cit., fn. 86, paras. 103–04.
92 To be precise, Judge Lauterpacht stated that, ‘[s]o far [...] as this fourth request is related to the elimination of the arms embargo vis-à-vis Bosnia-Herzegovina, I would be prepared to say that the Applicant may have an indication of a provisional measure in the following terms: that as between the Applicant and the Respondent the continuing validity of the embargo in its bearing on the Applicant has become a matter of doubt requiring further consideration by the Security Council’. Ibid., para. 107.
93 Ibid., para. 102. Dinstein expresses concern about theories based on fidelity to jus cogens that would see states refuse, of their own accord, to comply with obligations contained in Security Council Resolutions. See Yoram Dinstein, ‘The Interaction Between Customary International Law and Treaties’, in 322 Collected Courses of the Hague Academy of International Law (2006) 243, 425–26.
94 Secretary Colin L. Powell, Testimony Before the Senate Foreign Relations Committee, Washington, DC, 9 September 2004. Available at <http://www.state.gov/secretary/former/powell/remarks/36042.htm>.
97 SC Res. 1564, 18 September 2004, para. 12.
98 See Report of the International Commission of Inquiry on Violations of International Humanitarian Law and Human Rights Law in Darfur, op. cit., fn. 36, pp. 132–42.
100 Ibid. As Hong puts it, ‘[g]enocide is not only a crime that requires specific intent; it can be said to be a crime of intent, since it is the mens rea that makes it what it is’. Hong, loc. cit., fn. 40, p. 260.
101 See Report of the International Commission of Inquiry on Violations of International Humanitarian Law and Human Rights Law in Darfur, op. cit., fn. 36, pp. 138–39. Abass agrees with this conclusion but objects to the way in which the Commission of Inquiry arrived at it. See Ademola Abass, ‘Proving State Responsibility for Genocide: The ICJ in Bosnia v Serbia and the International Commission of Inquiry for Darfur’, (2008) 31(4) Fordham International Law Journal 871, 882–85.
102 See Report of the International Commission of Inquiry on Violations of International Humanitarian Law and Human Rights Law in Darfur, op. cit., fn. 36, pp. 139–40.
106 SC Res. 1590, op. cit., fn. 59, Preamble (‘Taking note of the Secretary-General's reports of 31 January 2005 (S/2005/57 and Add. 1), 4 February 2005 (S/2005/68) 4 March 2005 (S/2005/140) as well as the report of 25 January 2005 of the International Commission of Inquiry (S/2005/60)’.).
107 It is interesting to note that over six months prior to the release of the Commission of Inquiry's Report and over two months prior to Powell's testimony before the United States Senate Foreign Relations Committee that the African Union's Peace and Security Council also found that genocide had not been committed in Darfur, this, according to it, ‘even though the crisis in Darfur is grave, with the attendant loss of lives, human suffering and destructions of homes and infrastructure’. African Union, Peace and Security Council, Communiqué of the Twelfth Meeting of the Peace and Security Council, On the Crisis in the Darfur Region of the Sudan (2004), PSC/MIN/Comm. (XII), para. 2.
108 SC Res. 1593, 31 March 2005, para. 1.
110 See Rome Statute of the International Criminal Court, Rome, 17 July 1998, Arts 5–8. Currently, the ICC cannot exercise jurisdiction over aggression since the relevant treaty provision has not, at least not yet, been adopted. See ibid., Art. 5(2).
111 See UN doc. S/PV.5158, 31 March 2005, 3. Tanzania also referred to genocide in the discussions, but it did so only generally, and not particularly as relates to Darfur as such. See ibid., 9.
112 See J. Peter Pham, ‘Sudan: The Beginning of the End’, World Defense Review, 15 July 2008. Available at <http://worlddefensereview.com/pham071508.shtml>.
113 Public Redacted Version of the Prosecutor's Application, op. cit., fn. 40, p. 96. See ibid., 96–108. For Moreno-Ocampo's statement along the same lines before the Security Council on 3 December 2008, see UN doc. S/PV.6028, 3 December 2008, pp. 2–5; ibid., 20–21.
114 Public Redacted Version of the Prosecutor's Application, op. cit., fn. 40, 108.
116 See Report of the International Commission of Inquiry on Violations of International Humanitarian Law and Human Rights Law in Darfur, op. cit., fn. 36, p. 141.
117 See Hong, loc. cit., fn. 40, p. 262.
118 Corfu Channel (United Kingdom v Albania), ICJ (1949) 4, 18.
119 In the event, in fact, the ICC's Pre-Trial Chamber I rejected Moreno-Ocampo's Application under Article 58 as relates to the counts of genocide. It did, however, issue an arrest warrant for Al Bashir for war crimes and crimes against humanity. See Warrant of Arrest Issued by Pre-Trial Chamber I, ICC-02/05–01/09, 4 March 2009.
120 UN doc. S/PV.5158, op. cit., fn. 111, p. 12.
121 Richard Falk, ‘Forty Years After 242: A "Canonical" Text in Disrepute?’, (2007) 37(1) Journal of Palestine Studies 39, 44.
122 UN Charter, Art. 25. As Dinstein bluntly puts it as regards those who would take upon themselves a seemingly ex cathedra authority to determine when states can refuse to comply with Security Council Resolutions along the lines of Lauterpacht's more radical jus cogens proposition, ‘who are these observers and why should their interpretation [...] be taken seriously?’ Dinstein, op. cit., fn. 93, p. 426.
123 UN doc. S/PV.1348, 6 June 1967, p. 16.
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