Daily Star Home  

<%-- Page Title--%> Human Rights analysis <%-- End Page Title--%>

  <%-- Page Title--%> Issue No 154 <%-- End Page Title--%>  

August 22, 2004

  <%-- Page Title--%> <%-- Navigation Bar--%>
<%-- Navigation Bar--%>

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.

      (C) Copyright The Daily Star.