The
Case of Sudan
Demand for international
response for an internal conflict
Kamrul Hossain
Recently,
the Secretary General of the United Nations, in one of his statements,
declared that the crisis in Sudan's western Darfur region is the worst
humanitarian disaster of present days. The Arab militiamen in the region
are accused of committing atrocities against black Africans living in
Darfur. The Sudanese government has also been accused of supporting
the Arab Janjaweed militias by providing them with arms and other means
of support. It has also been evidenced that the government forces oversaw
and directly participated in massacres, summery executions of civilians
including women and children burning of towns and villages, and the
forcible depopulation of wide swathes of land long inhabited by the
Fur, Masalit and Zaghawa. The janjaweed militias with the support of
government have so far killed thousands of Fur, Masalit, and Zaghawa,
raped women, and destroyed villages, food stocks and other supplies
essential to the civilian population. They have driven more than one
million civilians, mostly farmers, into camps and settlements in Darfur
where they live on the very edge of survival. Hundreds of thousands
have fled already to neighboring Chad, but the vast majority of war
victims remain trapped in Darfur. Report from the Darfur region has
predicted that as many as one million people may die this year mainly
from starvation and disease. The conflict has already claimed more than
30,000 lives, and the experts warn that without a rapid international
response many more will die since direct killing is not yet stopped.
But how international community may act in an internal conflict such
as this has been the crucial question in order to help solve the conflict.
Some argue for humanitarian intervention, whereas others suggest economic
sanctions to be imposed by the Security Council.
Background
of the Present Conflict
The conflict in Sudan has historical roots. But the present conflict
has basically escalated in February 2003 when two rebel groups, the
Sudan Liberation Army/Movement (SLA/M) and the Justice and Equality
Movement (JEM) drawn from members of the Fur, Masalit, and Zaghawa ethnic
groups, demanded an end to chronic economic marginalisation and sought
power-sharing within the Arab-ruled Sudanese state. They also sought
government action to end the abuses of their rivals, Arab pastoralists
who were driven onto African farmlands by drought and desertification
and who had a nomadic tradition of armed militias. The government has
responded to this armed and political threat by targeting the civilian
populations from which the rebels where drawn. It has engaged in ethnic
manipulation by organizing a military and political partnership with
some Arab nomads comprising the janjaweed; armed, trained, and organized
them; and provided effective impunity for all crimes committed. The
government, however, signed a cease-fire with Darfur rebels on 8 April
2004. It has been, however, apparent that the cease-fire was not working
in either militarily or humanitarian terms.
Nature of
Conflict in International Law
From the outset of the conflict it may be assumed that the present crisis
in Sudan is merely an internal disturbance since it is within the territory
of Sudan itself. In principle government of Sudan may take any action
it finds fit to preserve its political independence and territorial
integrity. Under article 2(7) of the United Nations Charter it enjoys
the right not to be intervened in matters, which are essentially within
its own territorial or domestic jurisdiction. This is so called sovereignty
right of a state. The emergence of the principles of human rights, however,
has limited this right, and thus, human rights are not any longer a
matter that is essentially within the domestic or territorial jurisdiction
of a single state. There are certain international standards that a
state should follow while treating its own citizens. When gross violation
of human rights occurs by means of killing, ethnic cleansing, forcefully
replacing people from their home, creating a situation that may lead
to a refugee crisis, systematic rape, making obstacles in the supply
of humanitarian needs and so on, the matter then cease to be an internal
one any more. It constitutes serious international concerns since these
are the obvious infringements of the internationally agreed obligation
under the treaties and conventions concerning human rights. Moreover,
principles of international law suggest that there are certain norms
that are never to be derogated under any circumstances even in absence
of any treaty obligation. The violation of human rights, particularly
mass killing, ethnic cleansing, and genocide are strongly advocated
as violation of the principles of jus cogens a set of non-derogable
rules in international law. Despite its political nature of decision-making
the Security Council has agreed human rights violation as international
nature of conflict in many of its resolutions. The Security Council
designated the conflicts as threat to international peace and security
under Chapter VII of the Charter, which means that an international
action is possible in response to those conflicts. Apartheid in South
Africa, suppression of democratic rights of the Haitian people, famine
in Somalia, genocide committed in Bosnia-Herzegovina and in Rwanda are
some of the few examples where the Security Council found that although
the conflicts were primarily internal, but had serious impact for the
restoration of international peace and security. In case of recent conflict
in Sudan, it is pretty apparent from the features as delineated in the
above that the conflict has not been anymore an internal crisis. The
international nature of the conflict in Sudan is apparent not only from
the gross violation of human rights, but also from the refugee flow
to across the border into Chad the refugee who are then followed by
the Janjaweed, and which may result in a clash with Chad's army that
may produce a full-scale international war.
Humanitarian
Intervention or Sanctions!
The failure of the Sudanese government to protect its citizens has had
a repeated international pressure for the international intervention.
Therefore, many have argued for humanitarian intervention. The legal
basis for humanitarian intervention is, however, weak unless the Security
Council authorizes the action under Chapter VII of the Charter. NATO
action in Kosovo in 1999, for example, had not been legally justified
because of the absence of UN authorization under Chapter VII of the
Charter, although there was an extreme need to do so. On the other hand,
some suggested UN imposed economic sanctions, which is also part of
Chapter VII of the Charter. In this context, briefly, Chapter VII of
the United Nations deals with a crisis or situation that constitutes
a threat to or breach of international peace and security. Article 39
of the Charter, the key article to enter into Chapter VII, ensures that
the situation is constitutive of a threat to international peace and
security. Then the Security Council is free to choose whether a non-military
sanction (article 41), or the military action (article 41) is to be
used to mitigate the conflict. A legal humanitarian intervention is
possible if the members of the Security Council agree to authorize use
of force under article 42 of the Charter. In the absence of such an
authorization any resort to use of force under the plea of humanitarian
intervention is illegal. The Security Council, nonetheless, has been
discussing to impose economic sanctions (part of article 41) since the
beginning of the recent conflict. The disagreement among the members
of the Council has always been producing a presidential statement (a
statement made by the president of the Security Council) that evidences
the lack of consensus among the permanent members. The Security Council,
however, on the 30th of July, 2004 adopted resolution 1556 demanding
the Sudanese government disarm the militias in Darfur. The resolution
was adopted under Chapter VII of the Charter. It was at some point a
compromise among the permanent members of the Council. Two of the members
(China and Pakistan) have abstained. The compromise is found in its
decision not to use sanctions instantly, rather allowing the Sudanese
government some time (30 days) to disarm militias, with a threat to
impose economic sanctions in case Sudan fails to fulfill the demand.
The point still is that how effective it may be to solve the humanitarian
crisis once economic sanctions are imposed. Do sanctions really help
the ordinary civilians who are the victims of this humanitarian disaster?
Concluding
Remark
In a sense it is good to intervene militarily, which is quicker, and
which do not target the innocent civilians; but the fact is that military
intervention is pretty unlikely unless the state willing to intervene
has its own interests. An authorization from the Security Council is
not even always easy, which could frame a legal action. At the same
time it has now been proved that economic sanctions have become a blunt
instrument. The sanctions such as these do not affect the regime; rather
these affect the ordinary innocent civilians. The long sanctions continue
the more is there the humanitarian crisis. Thus, it is now strongly
advocated that targeted sanctions may help ease the crisis to some extent.
The idea is that sanctions will target the regime, not the country as
a whole. In Sudanese case the target groups may be the government (and
its officials) and the Janjweed militias. Arms embargoes, travel ban,
freezing the assets in foreign banks are some of the examples that may
be invoked. These will perhaps help reduce the humanitarian disaster.
Author is a
Research Fellow in International Law, University of Helsinki.
