The U.N. Responds
to the Crisis in Darfur: Security Council Resolution 1556
By Mikael Nabati
August 2004
On July 30, 2004, the United
Nations Security Council adopted Resolution
1556 by a vote of 13 in favor, with China
and Pakistan abstaining. The US-drafted resolution
was co-sponsored by Britain, France, Germany,
Chile, Spain and Romania. Acting under Chapter
VII of the U.N. Charter, the Security Council
expressed its intention "to consider further
actions" if the Sudanese government fails
to disarm and prosecute the Arab militias
known as Janjaweed, who have forced black
Africans off their land in the Darfur region
of western Sudan through a campaign of killing,
rape, and pillage. The resolution sets a
30-day deadline for Sudan to comply with the
Security Council's demands.
I. Background
on the Darfur Conflict.
Since its independence from the
UK in 1956, Sudan has been embroiled in a
civil war between the Arab-dominated North
and the Christian and animist South. West
Darfur has a population of approximately 1.7
million, predominated by sedentary African
farmers such as the Fur, Masalit, and Zaghawa
tribes. The rest of the population of Darfur
consists of Arab nomadic tribes. Although
both the black African and the Arab tribes
are Muslim, they have a long-standing history
of clashes over land, crops, and resources.
The conflict in West Darfur began
in February 2003 when two rebel groups, the
Sudan Liberation Army (SLA) and the Justice
Equality Movement (JEM), took arms and attacked
government installations. The SLA and the
JEM accused the Arab-ruled Sudanese government
of oppressing black Africans in favor of Arabs.
Khartoum responded by launching air attacks
against civilian populations from which the
rebels were drawn. The aerial bombings were
followed by ground attacks by militiamen recruited
among the Arab tribes, known as the Janjaweed.
There is evidence that Janjaweed attacks are
supported and aided by the Sudanese military,
although the Sudanese Government denies the
charge and has described the militia as "criminals."
In September 2003, the SLA and the Sudanese
government reached a fragile cease-fire agreement
mediated by the U.S., Italy, Britain and Norway.
However, both sides soon accused the other
of breaking the agreement, and attacks by
Janjaweed militias intensified in December
2003.
Since the beginning of the 18-month
conflict, human rights groups estimate that
the Janjaweed militias are responsible for
the death of at least 30,000 black Africans.
[1] The militias have been accused
of raping women and girls, destroying villages
and crops, and polluting water supplies.
More than 1 million Africans villagers have
been forced from their homes, and have fled
to refugee camps in Sudan and in Eastern Chad.
According to the U.N. Office for the Coordination
of Humanitarian Affairs, about 2.2 million
civilians are in urgent need of food, medicine
and shelter. The humanitarian consequences
of the conflict have been further aggravated
by the Sudanese government's refusal to allow
unrestricted humanitarian access to Darfur.
Senior officials from U.N. agencies
have described the Darfur situation as "one
of the worst humanitarian crises in the world." [2] Last May, a report
of the U.N. High Commissioner for Human Rights
on the situation of human rights in Darfur
"identified disturbing patterns of massive
human rights violations in Darfur perpetrated
by the Government of Sudan and its proxy militia,
many of which may constitute war crimes and/or
crimes against humanity."
[3] Sudan is a party to the International
Covenant on Civil and Political Rights, the
International Convention on the Elimination
of All Forms of Racial Discrimination, the
Convention on the Rights of the Child, and
the African Charter on Human and Peoples'
Rights. In 2000, Sudan signed the Rome Statute
of the International Criminal Court, but has
not ratified it. Sudan is bound by the four
Geneva Conventions on international humanitarian
law, which prohibit "violence to life and
person, in particular murder of all kinds,
mutilation, cruel treatment and torture" and
"outrages upon personal dignity, in particular
humiliating and degrading treatment." [4]
On July 22, 2004, the U.S. Senate
and House of Representatives passed a resolution
declaring the attacks on the African villagers
to be "genocide." U.N. officials have also
compared the Darfur situation to the Rwandan
genocide of 1994, but the U.N., the Bush administration
and the African Union have so far refused
to define the Darfur killings as "genocide."
On August 9, a European Union fact-finding
mission found that there was "widespread,
silent and slow killing going on, and village
burning of a fairly large scale,"
[5] but rejected use of the term "genocide."
Article 2 of the 1948 Convention on the Prevention
and Punishment of the Crime of Genocide defines
genocide as "any of the following acts committed
with intent to destroy, in whole or in part,
a national, ethnical, racial or religious
group, as such: (a) Killing members of the
group; (b) Causing serious bodily or mental
harm to members of the group; (c) Deliberately
inflicting on the group conditions of life
calculated to bring about its physical destruction
in whole or in part; (d) Imposing measures
intended to prevent births within the group;
(e) Forcibly transferring children of the
group to another group." If the situation
in Darfur is indeed genocide, Article 1 of
the Genocide Convention says that the state
parties undertake to prevent and to punish
it as a crime under international law. It
does not matter that Sudan is not a party
to the Genocide Convention, since genocide
is an international crime under customary
international law, and since states that are
parties to the Convention have undertaken
to prevent and punish it wherever it may occur.
If there is a dispute between states parties
as to whether genocide as defined in the Convention
has been committed, any party to the dispute
may refer the matter to the International
Court of Justice.
II. Initial
International Response to the Crisis.
On April 2, 2004, the Security Council
issued a presidential statement expressing
its concern about the "massive humanitarian
crisis" in Darfur and called on all parties
to protect civilians, to allow humanitarian
agencies full access to Darfur, and to reach
a ceasefire. [6] The Council issued a second presidential
statement on May 25, expressing its "deep
concern at the continuing reports of large-scale
violations of human rights" and calling on
the Sudanese government to disarm the Janjaweed. [7] On June 11, 2004, the Security
Council unanimously adopted Resolution 1547,
which called on the parties to "use their
influence to bring an immediate halt to the
fighting in the Darfur region."
[8] Resolution 1547 also approved
Secretary General Kofi Annan's proposal to
establish, for an initial period of three
months and under the authority of a Special
Representative, an advance team in Southern
Sudan to prepare for a future peacekeeping
mission in the region. In early July, U.S.
Secretary of State Colin Powell and Secretary
General Kofi Annan visited Sudan and held
talks with Sudanese government officials about
the situation in Darfur. On July 3, the Sudanese
government signed a joint communiqué with
Secretary Annan, pledging to disarm the Janjaweed
militias and accept human rights monitors
in Darfur. In the communiqué, Khartoum agreed
to a list of 16 specific actions to take in
order to resolve the crisis. The U.N. said
it would assist in the deployment of African
Union ceasefire monitors, help implement Sudan's
peace accords, and continue to provide humanitarian
assistance to the population of Darfur and
the refugees in Chad. But despite Sudan's
pledge to rein in the violence, the African
Union reported on July 27 that Janjaweed attacks
against civilians in Darfur had continued.
[9]
III. Security
Council Resolution 1556.
Security Council Resolution 1556
was adopted under Chapter VII of the U.N.
Charter. Chapter VII authorizes the Security
Council to determine the existence of a threat
to the peace, breach of the peace or act of
aggression, and to take measures to maintain
or restore international peace and security.
The preamble to the resolution
reiterates the Security Council's "grave concern
at the ongoing humanitarian crisis and widespread
humanitarian violations, including continued
attacks on civilians that are placing the
lives of hundreds of thousands at risk." [10] While "acknowledging steps
taken toward humanitarian access," the Council
recalls that "the Government of Sudan bears
the primary responsibility to respect human
rights while maintaining law and order and
protecting its population within its territory"
and that "there will be no impunity for violators."
The preamble concludes with the Council's
determination "that the situation of Sudan
constitutes a threat to international peace
and security and stability in the region."
Paragraph 6 of Resolution 1556
requests the Secretary-General to report in
30 days, and monthly thereafter, on the progress
or lack thereof by the Government of Sudan
in disarming the Janjaweed militias. Initially,
the draft of the resolution provided for "sanctions"
against Sudan in the event of non-compliance.
However, 7 of the 15 Council members, including
Algeria, China and Pakistan, were reluctant
to endorse an explicit threat of sanctions
against Sudan. The U.S. thus decided to
soften the language of the resolution, and
to substitute a reference to "further actions,
including measures as provided for" in
Article 41 of the United Nations Charter in
the event of non-compliance. China and Pakistan
eventually abstained, saying that Sudan needed
time to live up to its commitments, and that
the resolution was too harsh.
Although the final draft no longer
mentions the word "sanctions," Resolution
1556 maintains the threat of economic and
diplomatic "measures" if Sudan fails to satisfy
the Council within 30 days. Under Article
41 of the Charter,
The Security Council may decide what measures
not involving the use of armed force are
to be employed to give effect to its decisions,
and it may call upon the Members of the
United Nations to apply such measures. These
may include complete or partial interruption
of economic relations and of rail, sea,
air, postal, telegraphic, radio, and other
means of communication, and the severance
of diplomatic relations.
In sum, Article 41 has the same
effect as "sanctions," except for the fact
that Article 41 excludes military intervention.
To date, the Security Council has invoked
Chapter VII to impose "measures" in fourteen
cases: Afghanistan (S.C. Resolution 1333,
2000), Angola (S.C. Resolutions 864, 1993
and 1127, 1997), Ethiopia and Eritrea (S.C.
Resolution 1298, 2000), Haiti (S.C. Resolutions
841, 1993 and 917, 1994), Iraq (S.C. Resolution
661, 1990), Liberia (S.C. Resolution 788,
1992), Libya (S.C. Resolutions 748, 1992 and
883, 1993), Rwanda (S.C. Resolution 918, 1994)
Sierra Leone (S.C. Resolution 1132, 1997),
Somalia (S.C. Resolution 733, 1992), South
Africa (S.C. Resolution 418, 1977), Southern
Rhodesia (S.C. Resolution 232, 1966), Sudan
(S.C. Resolution 1054, 1996) and the former
Yugoslavia (S.C. Resolutions 713, 1991 and
757, 1992).
[11]
Under the terms of Paragraph
6 of Resolution 1556, the Security Council
will receive reports every month on whether
Sudan is fulfilling "its commitments to disarm
the Janjaweed militias and apprehend and bring
to justice Janjaweed leaders." While the
Council expressed its intention to consider
"further actions . in the event of non-compliance,"
it is unclear what level of compliance will
be required for Sudan to avert U.N. sanctions.
Whether Resolution 1556 imposes on the Sudanese
government an "obligation of result," or an
"obligation of means" is debatable. The U.N.
envoy in Sudan recently stated that the Security
Council would need some "proof of substantial
progress towards security in Darfur," which
seems to require from Sudan less than a full
resolution of the conflict, but more than
mere diligence or reasonable efforts in addressing
the crisis.
Paragraphs 7 and 8 of the Resolution
place an immediate embargo on supplying arms
to "all non-governmental entities and individuals,
including the Janjaweed" operating in Darfur.
It is important to note that under the terms
of the Resolution, the weapons embargo does
not pertain to Sudanese government forces.
Yet, the Sudanese military has been accused
of supporting and supplying equipment to the
Janjaweed.
Paragraphs 2 and 3 of the Resolution
seek to augment the deployment of international
monitors led by the African Union. The Resolution
urges the international community to continue
to support and to reinforce the international
monitoring team.
Finally, at the humanitarian
level, Resolution 1556 exhorts the Sudanese
government to facilitate "international relief
for the humanitarian disaster by means of
a moratorium on all restrictions that might
hinder the provision of humanitarian assistance
and access to the affected populations."
The Resolution also calls on Sudan to advance
"independent investigation in cooperation
with the United Nations of violation of human
rights and international humanitarian law."
IV. Recent
developments.
Sudan's response to Resolution
1556 was mixed. Sudan's government initially
rejected the resolution, but later stepped
back from its rejection. On August 4, the
Sudanese government finalized an agreement
with the U.N. Secretary General Special Representative
Jan Pronk, which contains detailed steps and
policy measures to be taken within the next
30 days to begin to disarm the Janjaweed.
On the same day, a spokesman for the African
Union said the organization would boost from
300 to 2,000 the number of troops it would
deploy to protect its cease-fire monitors.
The proposal awaits approval from South African
President Thabo Mbeki, the current head of
the African Union's security body. On August
7, Khartoum announced that Sudan will accept
African troops to protect observers, but that
any peacekeeping role will be limited to Sudanese
forces. Finally, Sudan agreed on August 9
to participate in peace talks with rebel groups.
The talks are scheduled to be held in Nigeria
on August 23.
About the Author:
Mikael Nabati, candidate for J.D./Maîtrise
en Droit (Cornell Law School - Université
Paris I Panthéon-Sorbonne), is currently a
summer associate at the law firm of King &
Spalding in New York. He is the former president
of the H.W. Briggs Society of International
Law at Cornell, and has published several
articles on the use of force in international
law. Mikael Nabati may be contacted at mn95@cornell.edu.
[1] See generally Human
Rights Watch Report: Darfur Destroyed, Ethnic
Cleansing by Government and Militia Forces
in Western Sudan, Vol. 16, No. 6(A), May
2004.
[4] Article 3 of the four Geneva Conventions
of August 12, 1949.
[5] Press Briefing by Pieter
Feith, Personal Representative for Sudan
of the Secretary-General of the Council
of the EU, on the EU Action in Sudan/Darfur,
August 9, 2004.
[11] See generally "Use
of Sanctions Under Chapter VII of the U.N.
Charter," available on the U.N. web site
at http://www.un.org/News/ossg/sanction.htm.
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