Nearly a decade ago, over 800,000 Tutsi, men, women and children were systematically and savagely butchered at the hands of their Hutu countrymen in the central African nation of Rwanda. Several nations called for immediate intervention to protect the Tutsi population. However, as the atrocities spread, so did the dissension on the United Nations Security Council. The United States, under the Clinton administration, and other nations became embroiled in a pedantic legal debate as to whether the atrocities in Sudan actually constituted “genocide”; that is whether the actions of the Tutsi’s satisfied the legal elements of the crime of genocide. This deadlock ensured that the United Nations Security Council would not authorise military intervention. Further compounding the deadlock was the machinery of the United Nations which requires member states to follow the strict procedures of Chapter VII of the United Nations Charter before states can take action. In the aftermath of the most “efficient” genocide of the 20th Century, nations vowed that they would never allow it to happen again.
But nearly a decade later, thousands are being slaughtered in the Sudanese region of Darfur by contracted Arab militiamen under the actual or constructive approval of the government of Sudan. And while some nations, particularly the United States, appear to have learned the important lesson of Rwanda, others states on the United Nations Security Council clearly have not. In September 2004, the United States reached the conclusion that genocide was in fact occurring in Sudan and escalated its efforts to pressure the United Nations and the government of Sudan to take steps to stop the Janjawid. However, the action taken by the United Nations has proven wholly ineffective. While resolutions of the Security Council have successfully placed African Union military observers in the region, that placement required the consent of the Sudanese government. Needless to say, those observer forces have no legal capacity to protect the Darfurians and have stifled in their mission by the government of Sudan.
Earlier this month, the United Nations Commission of Inquiry on Darfur released its report on the crisis in Darfur and concluded that while it appeared that there had been serious breaches of international humanitarian law committed by the perpetrators of the atrocities (which according to the report included Sudanese officials), the legal elements of the crime of genocide have not been satisfied. The significance of this conclusion cannot be over-emphasised, because what was classified a year ago as the worlds worst humanitarian crisis, will now be placed on the “backburner” in terms of priority on the United Nations agenda. UN officials, would undoubtedly vehemently deny this and reiterate that there have been serious breaches of international humanitarian law which warrant accountability. However, one only need to look at Khartoum’s earlier foray into atrocities which resulted in the slaughter of over one million Southern Sudanese Christian/animist’s, which also failed to meet the exacting legal criteria of genocide, and thus the plight of those murdered was not a priority on the international agenda.
There are several questions worth examining in light of this most recent and abysmal failure:
Where does the blame lie for Darfur?
What solutions exist within international law to remove the shackles presented by the United Nations and its Charter?
When the dust finally settles, and after thousands more Black African Darfurians perish, nations will undoubtedly once again converge to ask “why?” And the answers will be just about the same for every other instance in the last five decades when the UN has failed to prevent genocide and intervene in clear cases of genocide and other cases of serious breaches of humanitarian law which result in the death of thousands and millions. A partial answer is that the blame rests on the enforcement mechanisms of the United Nations Security Council, as set forth in the United Nations Charter (which I will discuss below).
There has been a tendency since the Commission of Inquiry’s decision came out, by some commentators to focus their criticism on the Commission’s conclusion that the legal elements of the crime of genocide have not been met. (The criticism of these commentators should instead focus on process over substance). I believe this criticism is partially misplaced. Genocide, as defined in the Convention and the treaty that established the International Criminal Court (ICC), is deliberately and deceptively precise. In order to establish a prima facie case of genocide, the following must be established:
“Mens rea” (the mental element): The “intent to destroy, in whole, or part, a national, ethnical, racial or religious group, as such”; and
“Actus reus” (the physical element): (Any of the following acts) Killing members of the group; Causing serious bodily or mental harm to members of the group; Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; Imposing measures intended to prevent births within the group; Forcibly transferring children of the group to another group.
While the Commission concluded that the physical element of the crime of genocide had been satisfied, they could not conclude that the Sudanese government itself had the requisite intent to carry out genocide, although they admit that individual government officials “may” have had genocide intent. This conclusion seems consistent when one realises the steps that the government of Sudan took to prevent a thorough and adequate investigation. The Commission certainly did not have access to the files, documents, individuals and other evidence that could have established the element of intent. Khartoum has taken every step to obfuscate and hide its involvement in Darfur. Thus actually establishing actual “intent” has proven to be a daunting task. Nonetheless, the Sudanese government’s failure to cooperate with the United Nations in its investigation, should inspire the United States and other like minded UN members, to foster a change in the law of genocide (I e reforming the Convention for the Prevention of Genocide), so that any nation who deliberately interferes in an investigation or fails to fully cooperate, is automatically deemed to have satisfied the element of intent (this point will be explored further in the next section).
What is disturbing about the Commission’s report is the failure to address the potentiality that Khartoum, while maybe not directly responsible for committing genocide, is at the very least “complicit” in genocide. Complicity to genocide is criminal under the Convention. Nonetheless, the crime of genocide, is designed to punish those who commit genocide; it is not designed to prevent genocide. Thus the debate, on whether genocide is occurring or not, is not as significant as some would make it. At the end of the day, whether a state has committed genocide is a moot point, because the atrocities have been committed or are being committed.
Nonetheless, The Commission of Inquiry in its report, attempts to comfort us by stating:
The conclusion that no genocidal policy has been pursued and implemented in Darfur by the Government authorities, directly or through the militias under their control, should not be taken in any way as detracting from the gravity of the crimes perpetrated in that region. International offences such as the crimes against humanity and war crimes that have been committed in Darfur may be no less serious and heinous than genocide.
In theory, the Commission is correct; the atrocities that are being committed at the behest of the Sudanese government or with their tacit approval (if they do not constitute genocide or “acts of genocide”), still are serious in the sense that they “may” constitute crimes in breach of international humanitarian law, and as such are serious enough to invoke the innocuous mechanisms of international criminal law. But even so, the political and legal reality of the Commission’s conclusion is that mere breaches of international humanitarian law and the crime of genocide do not carry the same weight. Genocide is the penultimate crime in international law; breaches of international humanitarian law occur every day by dozens of nations which result in the death of thousands. While the atrocities in Darfur may be “no less serious and heinous than genocide”, history and state practice tells us that war crimes are met with condemnation, but little else.
This really brings us to a central part of the problem, the United Nations Charter, and the enforcement provisions of Chapter VII, which prevent states from intervening militarily unless approval is met by the Security Council. Articles 2(4) and 2(7) of the Charter establish the UN’s core principles of non-intervention and interference with domestic conflicts:
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.
In other words, the principle of non-intervention/interference is subject to the provisions of Chapter VII. Under Chapter VII however, before states can act militarily towards another state or entity, the Security Council must first establish that a breach of peace of act of aggression exists (article 39). The Security Council can then, in the interim period, ask the transgressing state to cease and desist its actions, thus giving it a chance to right itself (article 40). If that fails, then and only then, (legally speaking) can the Security Council “take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security”. The situation in Darfur has been a textbook example of just how the enforcement provisions of Chapter VII hinder states from acting collectively or unilaterally fro protecting. On 30 July 2004, nearly a year after the atrocities began, the Security Council finally passed a resolution determining that a threat to peace and international security existed in Darfur, and formally invoked Chapter VII. Eight months later no action has been taken, and massacres and displacement occur on a daily basis.
What will states do to really pledge adherence to the solemn post Holocaust affirmation “Never again”? To be sure, states cannot rely solely on the criminal law, ex post facto. And that is exactly what the Commission is saying; that the only real solution is prosecution of the individuals responsible (whom the Commission refused to name) before the untested International Criminal Court. States should instead focus on the prevention of genocide and war crimes. This requires revisiting and rethinking the UN Charter and contemporary perspectives on international law. States must begin to think “outside the box” to find new avenues to meet the challenges posed particularly by growing radical Islam.
Clearly the enforcement provisions of Chapter VII need to be addressed by the UN as a whole. The UN Charter (a monumental task in and of itself) should be amended to create an express exception to allow states to act immediately and unilaterally if necessary in situations of extreme humanitarian oppression and disaster. States however, must not collectively “hold their breathe” and wait for this to occur. Some states have gone outside the mandate of the UN Charter in order to intervene for purposes of protecting a foreign population from rogue states and regimes. A “new” doctrine in international law, which arguably provides the best premise for states to protect victims of war crimes is “humanitarian intervention”. This principle, while not an established principle of international law holds that when a compelling and urgent situation of humanitarian distress arises which demands immediate relief”, states can intervene. It is rarely, expressly invoked. Notably, the United Kingdom, relied on this doctrine to justify its involvement of the establishment of “safe havens” and “no-fly zones” in Northern and Southern Iraq. The Foreign Commonwealth’s Legal Counsellor further crystallised the principle, in justifying its role: “The principle of provision of relief by the UN in areas of internal conflict is well established. The UN is increasingly acting on this principle. We support both the principle of such intervention in such cases of extreme humanitarian need, and the relief operations of this type in which the UN is involved… We believe that international intervention without the invitation of the government of the country concerned can be justified in cases of extreme humanitarian need…” (Emphasis added).
This doctrine, while not technically legal under the current provisions of the Charter has a basis in international law, and is slowly emerging into individual state practice. It provides a basis for states to prevent or intervene, unilaterally if necessary, in cases of genocide or the like. It is this doctrine that Member States should have relied on to intervene in Rwanda, and again in Darfur.
A further positive step, although superficial, would be amending the Genocide Convention and the ICC treaty to punish states who do not fully cooperate with UN investigations into genocide. A state’s failure to cooperate with an investigation or its obstruction of it, would be considered prima facie guilty of complicity to genocide. This strict liability approach in itself, however would be, ultimately a mechanism of international criminal law, and is not aimed at prevent of genocide and intervention to stop it. Coupled with effective enforcement mechanisms however, progress could be made towards both prevention and prosecution, which is how international law should operate in the face of tyranny.
The UN can only be as effective as its Member States are. Not to be ignored, in this analysis are the enumerable political considerations states take into account. Indeed, the enforcement provisions of the Charter are a major source of the problem, UN inaction would not necessarily disappear, even with a mandate to intervene in cases of genocide and serious war crimes against a population. This is why, an actual duty to intervene in these situations, is necessary. A recent Canadian contingent of legal academics put together a treatise outlining proposals for imposing such a duty on states. In order to become part of the corpus of customary international law (which is arguably as important as codified international law), states must gradually accept that this duty exists, and act as if they are bound to it. The principle of the “duty to protect” has no legal status whatsoever… yet.
As state practice in this area develops however, that could change, and become a further method, of breaking the ties of the UN Charter. The United States and the United Kingdom have stood on the forefront, and while not expressly invoking it, has demonstrated that there is a duty to protect (as evidenced by US and British intervention to protect Kurds and Shia through the creation of safe havens and “no-fly zones”). In this case there was a sense of obligation to do so. Developing this moral principle will be the real key behind preventing and intervening cases of genocide. Without it, the conditions will always exist for another Rwanda or Darfur.