The U.N. Responds to the Crisis in Darfur: Security Council Resolution 1556
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.
[2] Statement by the UN World Food Programme Executive Director James Morris, May 4, 2004, available at http://www.wfp.org/index.asp?section=2 (click on "Press Releases").
[3] The report is available on the U.N. High Commissioner for Human Rights' web site at http://www.ohchr.org/english/.
[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.
[6] The full text of the statement is available on the U.N. web site at http://www.un.org/News/Press/docs/2004/sc8050.doc.htm.
[7] The full text of the presidential statement is available on the U.N. web site at http://www.un.org/Docs/sc/unsc_pres_statements04.html.
[8] The full text of Resolution 1547 is available on the U.N. web site at http://www.un.org/Docs/sc/unsc_resolutions04.html.
[9] Communiqué of the 13th Meeting of the Peace and Security Council of the African Union, July 27, 2004, available on the African Union's web site at http://www.africa-union.org/DARFUR/homedar.htm.
[10] The full text of Resolution 1556 is available on the U.N. web site at http://www.un.org/Docs/sc/unsc_resolutions04.html.
[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.