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11
Table of contents
Abstract ... 7
List of Abbreviations ... 9
Table of contents ... 11
CHAPTER 1 INTRODUCTION ... 13
1.1 Historical
background
...
14
1.2 Rationale of the study ... 15
1.3 Aims and objectives ... 17
1.4 Structure of the dissertation ... 17
CHAPTER 2 LITERATURE REVIEW ... 19
2.1 The international community and protecting civilians in armed conflict ... 19
2.1.1 Inadequate
political
will
...
20
2.1.2 Logistical
obstacles
...
21
2.1.2.1 Moral
Hazard
...
22
2.2 The case of Darfur ... 24
2.3 The protection of Civilians and R2P ... 26
CHAPTER 3 METHODOLOGY ... 29
3.1 Research
Approach
...
29
3.2 Reliability and Validity ... 30
3.3 Analysis of UN documentation on R2P in the context of Darfur ... 31
3.3.1 Legal Objections to Humanitarian Intervention ... 31
3.3.2 Impasse in reconciling state sovereignty and humanitarian intervention ... 32
3.3.3 Tackling the legal objections ... 33
3.4 Roles and limitations of the International Criminal Court in internal conflict ... 34
CHAPTER 4 THE NEED TO CHANGE THE ROLE OF THE INTERNATIONAL
COMMUNITY IN DARFUR ... 37
4.1 Failure of R2P in Darfur ... 37
4.2 Selective State practice ... 38
4.2.1 Interest-Based
Selectivity
...
38
4.2.2 Racial-based
selectivity
...
39
4.3 Inadequate Humanitarian Discourse ... 40
4.4 Review of documentary evidence regarding the process of intervention ... 41
12
CHAPTER 5 CONCLUSION AND RECOMMENDATION ... 44
5.1 Conclusion
... 44
5.2 Recommendations
...
45
Appendix ... 47
Bibliography ... 49
13
CHAPTER 1: INTRODUCTION
Human rights are a key element in global politics and legal frameworks. The
United Nations,
agrees that human rights are important in the governance of people. Unfortunately, the world
has experienced, over time, many instances of human rights violations. The violations are
committed through war, genocides, crimes against humanity, forceful eviction of persons,
discrimination, and living in deplorable conditions among others. Ideally, governments are
supposed to ensure that rights of their people are respected. However, some governments
especially in developing nations have subjugated the rule of law to protect human rights.
Some have been passive, allowed violations of human rights to happen, while others have
actually propagated violation of human rights. Some of the issues of human rights have been
recorded in Rwanda, Democratic Republic of Congo, Sudan and Chad among other countries.
Following the intensity of deterioration of human rights in Africa, there has been a justifica-
tion for the United Nations to intervene in order to protect the rights of peoples.
According to Appiah-Mensah (2006) close to 10 years after the Rwandan Genocide and
several meetings of finding a way forward, the response to the Darfur conflicts from the
international community that started in 2003, seemed to be a case of déjà vu. The world just
watched in apathy and shock as the Arab dominated government of Sudan facilitated ethnical
cleansing in the vast Darfur region by assisting Arab militia with arms and air support to
continue maiming, killing and raping black Africans. Bach (2008) asserted that the situation
in Darfur is a combination of the worst crimes: sexual assault, armed conflict, extreme
violence, internally displaced persons. He contended that the evidence at hand makes the
situation reminiscent of the German Holocaust.
Bellamy, Williams and Griffin (2004)
contend that the violence in Darfur pose crucial challenges in legal and policy frameworks in
both the regional and international front, particularly in the areas of addressing state sover-
eignty and ensuring human security for those who are caught up in armed conflict. On the
global platform, the atrocities taking place in the Darfur region present dilemmas and chal-
lenges for the UNSC, which is tasked with ensuring peace and security is maintained on the
international scene. It realises this through coming up with effective strategies designed to
curb and eliminate threats to peace
and realise international co-operation in seeking solutions
to international situations of humanitarian in nature. Closer home, Darfur presents policy
dilemmas and legal challenges to the AU a creation of the Constitutive Act of 2000 to
address the major issues that Africans have to deal with, promote and ensure security across
14
Africa (Adebajo, 2008; Woodward, 2001; Annan, 2000). The situation maligning Darfur
brings to the fore the Principle of R2P or responsibility to protect, which is meant to encom-
pass the international community's right to protect civilians caught through acts of humanitar-
ian intervention; these civilians often end up being the victims of armed conflict. As a result,
it has been agreed that in cases where human rights are grossly violated, the Security Council
of the UN could take action. This principle has been referred to as Responsibility to Protect
(R2P). This dissertation explores that R2P application in the case of Darfur in Sudan.
1.1 Historical background
Calls to advance the R2P grew from recognizing the inadequate reaction from the UN towards
adding to the morally indefensible and grotesque mass atrocities that have taken place in the
20
th
century; from the Holocaust, Bosnia, Rwanda, Kosovo, Congo, Liberia, and now Darfur
(Cilliers, 2008; Cilliers and Malan, 2005). In all the aforementioned situations, the interna-
tional community sat by and watched as acts of violence were conducted out in brutal and
systemic forms. Inaction was defended on fact that state sovereignty was far superior com-
pared to the responsibility of the international community to protect innocent civilians who
had turned into victims of war. At the entry of the 21
st
century, the former UN Secretary
General posed to the UN member states a challenge by asserting that if intervention from the
international community constituted an affront towards the sovereignty of the state, then at
which stage should the international community come in with regard to responding to
systemic and gross abuses of human rights that continuously afflict common humanity
(Callaghy, Kassimir and Latham, 2001a). In responding to this, the Canadian government
called onto the ICISS, who issued "The Responsibility to Protect" in 2001; a report that
according to Collins (2008) reconceptualised the challenge posed by Annan on the point of
humanitarian intervention with regard to protecting innocent civilians caught up in armed
conflict by the international community. Tentatively, the report shifted the issue from the
proponents of the actions to the victims of the conflict.
According to Callaghy, Kassimir and Latham, (2001b), R2P respects that the sovereign state
bears the responsibility of protecting its citizenry. However, in the event that the state is either
unwilling or unable so to do, then the onus in on the international community to intervene and
perform the same role; this is especially the case for crimes against humanity, genocide, war
crimes and ethnic cleansing. De Coning (2005a) argues that even though the biggest innova-
15
tion of R2P entails altering the concept of civilian protection to a responsibility from a right
and justifying military intervention as the last resort. The Principle addresses responsibility in
three fronts: responsibility to rebuilt, prevent and react. This will ensure that there is lasting
and sustainable peace across the world; particularly in regions there is armed conflict.
The High-Level Panel on Threats, Challenges, and Change that was formed by the Secretary
General Koffi Annan in 2004 was tasked with monitoring the international community and
identifying any major threats to peace and security. Thereafter, this panel was to come with
policies and institutions to eliminate the threats to peace and create frameworks to deal with
future events. (De Coning, 2005b). After conducting vigorous research, the panel endorsed
R2P as a fundamental and emerging norm through their report "A More Secure World: Our
Shared Responsibility." In addition, this report underscored the three-pronged role of the R2P
as was indicated by the ICISS. In the 2005 World Summit, De Waal (2007a) asserted that all
present member states conglomerated at the UN to discuss matters of development, security,
partial reform in the UN, and protection of human rights. At the end of the World Summit, all
the member states unanimously signed the Outcomes Document that affirmed the UN should
protect populations caught up in armed conflict. The UNSC passed resolutions 1706 and 1674
that underlined the role and purpose of the R2P (De Waal, 2007b). However, despite the
gleam and magnificent provisions of the R2P and affiliated documents there are still questions
on how they can be applied in cases of armed conflict; particularly in the case of Darfur.
1.2 Rationale of the study
Sovereign states have the responsibility to protect its citizenry; this is the key principle in
R2P. Failure to do so demands action from the international community. The R2P framework
is premised in an approach to ensure that civilians are protected, but it appears that the
primary objective is not to intervene, but to remove the alleged perpetrator of armed conflicts;
the individual who is believed to be behind all the crimes taking place in Darfur, Al-Bashir.
At the present time two arrest warrants are in effect; as of November 2013, al-Bashir has not
been arrested. While it might be argued that the ICC's actions in charging and indicting al-
Bashir represent an effort of R2P, it could also be argued that the failure to arrest Bashir,
particularly in the conjunction with the refusal of the Governments of Sudan, Egypt, Qatar,
Djibouti and Chad to turn over Bashir to the ICC when he has been in their nations represents
a supreme failure of R2P. By investigating the current situation in Darfur in light of the
16
responsibility to protect (R2P) on analytical platform, this study will contribute to the body of
evidence that can be utilised to develop the next steps for protecting civilians in Darfur in
light of the armed conflict in the region. It is imperative to assess varying positions on the
situation in Darfur, Western Sudan and to present a carefully considered position paper that
incorporates all sides of the situation in terms of humanitarian needs and responsibility to
protect the civilians in the Darfur Region.
Mehta (2009) suggests that it is time to establish language which requires specific guidance
regarding the legitimate utilization of force in regard to R2P. A resolution was passed in 2005
by the UN that allows the international community to assist other nations in meeting their
humanitarian obligations to care for their populations, and which allows the UN to act when
the nations do not do so (United Nations, 2005). Mehta suggests that the time has come to
establish the requirement for intervention, based on the concept of serious harm. This project
is based on the framework of shared normative understanding concerning the military use
through UNSC directive and exploring the emerging norm of legality. The ICISS determined
that "the emerging norm that there is a collective international R2P, that can only be exercised
by the UNSC when its authorising the use of military force as the last effort" (United Nations,
2004) but did not provide the requriement for the intervention.
The responsibility to protect (R2P) has been driven by the violation of human rights on a large
scale in the last few years. Rwandan genocide, the crisis in Sierra Leone, and now in Darfur
has followed on the heels of international intervention in Kosovo in 1999. The question arises
as to whether or not humanitarian intervention is a norm, and whether or not the norm should
be invoked by individual states, or the United Nations Security Council (Kosovo, 2000). The
further issue that arises is whether intervention is a right, or a duty. If it is a duty, then the UN
Security Council may be failing in that duty. Under the role of sovereignty, if we agree that
the States have the primary role of protection, and then surely they have failed in that role
when their leader is indicted on multiple violent charges on populations. Placed in this
context, the responsibility to protect would take on a new and international importance, surely
qualifying for the UN Security Council intervention "where appropriate" (United Nations
Security
Council, 2013, para. 1).
The R2P framework is relevant to the Darfur crisis. Darfur is an example of an unwilling and
unable government to shield its citizens from the harmful effects of war, as well as
unfortunately, an international community that is equally unwiling and/or incapable of
17
embracing the soveriegn responsibility that is envisaged by the R2P. As such, it is
fundamental to identify and underline the Principle of R2P and intervention of the
international community in protecting civilians from being victims of armed conflict in light
of the case in Darfur.
1.3 Aims and objectives
The UN has mandated the responsibility to protect (R2P). Darfur has offered particular
challenges to those wishing to intervene. Humanitarian goals in Darfur are threatened. More
than 300,000 have lost their lives in the Darfur conflict since rebels first began asserting
independence against the Sudanese government ten years ago (Associated Press, 2012). The
UNAMID peacekeeping mission in Darfur is tasked with protecting civilians, providing
humanitarian aid, reconciling the political effort, and promoting human rights (Associated
Press, 2012). The Sudanese Armed Forces have been conducting air strikes and more resi-
dents have recently died as the result of unidentified armed attacks, rape, and looting (Fasher,
2012).
On February 13, 2013, the United Nations Security Council reaffirmed its position that in the
case of innocent civilians who are targeted in armed conflicts. States have the primary
responsibility for safety (United Nations Security Council, 2013, para. 1). The Council also
stated that the international community should ensure the continuation of peace-keeping
missions and that these missions should have priority use of resources when needed for that
purpose (United Nations Security Council, 2013, para. 1).
The aim of this research therefore is to consider what the current UN role should be in ther
case of armed conflict in Darfur. The objective of the research is as hereunder;
a) To investigate the current situation in Darfur in light of the Responsibility to Protect
(R2P).
b) To recommend the next steps for protecting civilians in Darfur in light of the armed
conflict in the region.
1.4 Structure of the dissertation
In an effort to fully satisfy the above mentioned aims and objectives, this study will be
divided into five chapters. The first chapter has been on the introduction of what the research
18
will discuss; particularly the right to protecting innocent civilians caught up in armed conflict
on the part of the international community. The second chapter will be the literature review, it
will discuss the status of the international community with regard to humanitarian interven-
tion, how it has worked and failed in previous situations, the reasons for the same, and the
situation in Darfur. Chapter three will be on the methodology employed by the researcher in
formulating this research, it will discuss the research approach, validity and reliability of the
information acquired .The fourth chapter will highlight the flaws of the R2P principle and the
justification for change in the same if international intervention is to successfully work and an
in-depth analysis of documentary and the UN evidence regarding international intervention as
enshrined in the principle of R2P.. The fifth chapter will be the conclusion and recommenda-
tions.
19
CHAPTER 2 LITERATURE REVIEW
2.1 The international community and protecting civilians in armed conflict
The concept of the humanitarian intervention in instances of armed conflict is not a recent
doctrine. It is enshrined in history as a practice and a concept (De Waal, 2007c). De Conin
(2006) , notes that the current historical analysis of intervention of the international communi-
ty in protecting civilians illustrates a development in the concept of humanitarian intervention
over time. However, Field (2004) is of the opinion that the development and actual implemen-
tation of this form of intervention has fallen victim to political circumstances and is not being
moved by actual human suffering. Inasmuch as the doctrine was formulated on a premise of
protecting human beings in times of armed conflict when their governments are unwilling or
incapable of assisting them, the practice has evidently been failing to realise its objectives in
current times. Francis, Faal, Kabia and Ramsbotham (2005) argue that the current world order
is founded on contemporary principles of state security and state sovereignty has been
slowing down efforts to facilitate actual humanitarian intervention urgently in times of need.
Supportively, Flint and de Waal (2008) contend that other priorities are obliterating violation
of human rights taking place across the world.
According to Francis (2006) even recent attempts to resuscitate the doctrine of humanitarian
intervention, such as the R2P, have fallen wayward to similar state-centered traps that have
again led to the failure to prioritise the life of innocent human beings, and to underpin an
impartial authority tasked with the responsibility of actualizing humanitarian intervention.
Grono (2006) further notes that the post 9/11 attacks have poisoned and weakened humanitar-
ian intervention doctrine. This is because it has been integrated with the US new definitions
and understandings of preemptive self defense, which politicizes the rationale of humanitarian
intervention; consequently, the doctrine and its purpose has become more confusing than
ever.
MacQueen (2002) notes that the international community has failed Darfur, Rwanda and
other countries stifled in armed conflict resulting in the deaths and displacement of millions of
civilians. Kagwanja and Mutahi (2007) add that the Rwanda genocide highlighted the
unfortunate, albeit tragic, consequence of inaction and silence. The tenets of humanitarianism
that have been gaining momentum ever since the Holocaust and armed conflict in Cambodia
were demanded to be impartially and urgently implemented. Kent and Malan (2003) agree
20
that at that juncture, humanitarian intervention and the R2P were found to contain serious and
fundamental deficits in their implementation. Furthermore, States were seen to employ
humanitarianism on a rhetorical and selective level, Johnstone, Tortolani and Gowan (2005)
contend that intervention was partially seen from States that sought to protect their interests
and the race of the victims. Juma (2006) further notes that such forms of selectivity were
found not only be horrific, but they were also contrary to the provisions that underline the
protection of human rights. The reason that the situations were facilitated, according to
Ekengard (2008), was due to the dysfunction of the international organisations, and the lack
of impartial authority to intervene and protect the innocent civilians. The situation in Rwanda
clarified the foregoing concerns and need to address the apparent gaps in humanitarian
intervention. In addition, hope and efforts were raised to curb similar humanitarian disasters
from occurring. Unfortunately, this was not the case as would be underlined in the case of
Darfur.
2.1.1 Inadequate political will
Civilians are the primary casualties of war across the world (Associated Press, 2012). Most of
the armed conflicts taking place are within sovereign territories and they have continued
unabated for many years despite attempts of international community to find solutions.
However, Clough (n.d.) argues that despite the international community declaring on several
occasions that it has the responsibility to protect innocent civilians in instances of armed
conflict; it has lacked the political will to put a stop to the violence until it is too late when
many lives have been lost. Nonetheless, Bogland, Egnell and Lagerstrom (2008) note that
political will have a tendency of disintegrating amidst intervention, particularly when the
forces of intervention are confronted with casualties. For example, in 1992 when the UN
peacekeeping forces were deployed in Bosnia they were denied authority to intervene and
protect the civilians until 1995 when more than 100,000 Bosnians had lost their lives. Similar-
ly, Brickhill (2007) adds that in case of Somalia, the US and the UN failed to deploy military
intervention till late 1992 when close to 30,000 civilians had lost their lives due to famine
resulting from the armed conflict. Later, all the forces that had been deployed were later
withdrawn in October 1993 after 18 US soldiers were killed. Supportively, Curtis (2001)
notes that in 1994 when the Rwandan Genocide commenced, the UN quickly voted to
withdraw significant portions of its peacekeeping forces as soon as 10 of them were killed on
the first day. However, Fasher (2012) argues that in 2000, British peacekeeping forces
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