Monograph 131: Intervention to Protect Civilians in Darfur: Legal Dilemmas and Policy Imperatives, Kithure Kindiki

Darfur. This name when spoken in contemporary times evokes immediate reference to dark days gone by – the Holocaust, Rwanda and former Yugoslavia, places and events that many would like to forget. Many people have spoken and written about Darfur. The United States, early on labeled the killings and destruction of livelihoods in Darfur as genocide while doubts remained in other quarters. The United Nations Mission to Darfur stated that it was unable to reach such definitive conclusion, but added that international crimes - crimes against humanity and war crimes were certainly being committed in that conflict. Much time has elapsed since then, yet the atrocities continue. The African Mission in Sudan (AMIS) has been deployed, yet, in the face of continuing atrocities, and the regionalization of the conflict, discussions remain about what action should be taken by various players to stop these crimes.

The possibility of deploying a larger, better equipped UN force in Darfur still remains in the balance, with Khartoum refusing to consent to its deployment terming such action ‘colonization’ which it will not countenance. Many diplomats have requested Khartoum to temper its tone, and to allow deployment of UN troops. The Sudan regime has stood its ground, stating that as a sovereign nation, it will allow only a strengthened African Union force. Calls on the government to stop the atrocities have largely gone unheeded, with reports that apart from continually supplying the Janjaweed militia, government forces have been involved directly in attacks on civilian villages and civilians in Darfur.

No doubt, as advanced by the present author, the atrocities taking place in Darfur present serious legal challenges and policy dilemmas to the global and regional institutions. At the global level, the atrocities pose challenges and dilemmas for the United Nations (UN), especially its Security Council (SC), whose chief purposes are to maintain international peace and security by taking effective collective measures for the prevention and removal of threats to the peace, and achieving international cooperation in solving international problems of a humanitarian character. Regionally, Darfur poses legal challenges and policy dilemmas to the African Union (AU), established by its Constitutive Act of 2000 with a mandate to “take up the multifaceted challenges that confront Africa and its peoples”, and, among others, to promote peace, security and stability on the continent. The functions of the AU Peace and SC (PSC), the AU standing decision-making organ for the prevention, management and resolution of conflicts in Africa are implicated.

In an attempt to figure out the best possible action(s), permissible under international law that could, and should be taken by the international community to address the atrocities in Darfur, this contribution focuses on humanitarian intervention as an option. Indeed, the way Darfur has played itself out highlights the long standing debate on the “right” or “duty” of humanitarian intervention in international law, and whether this is permissible in circumstances of mass human rights violations such as those prevailing in the Sudan. It appears that continued atrocities in Darfur of which the Khartoum regime has knowledge, and is said to actively participate in their commission would require such action from the international community.

This contribution aims at reexamining this debate within the context of Darfur by grappling with a number of questions: 1) whether there is any legal basis for forcible military intervention in cases of serious human rights violations as those taking place in Darfur; 2) whether, if justified, the form that such intervention should take; 3) who should intervene; and 4) whether such intervention would violate Sudan’s state sovereignty as claimed by the Government of Sudan (GoS).

The core argument of the study is that the human rights violations in Darfur meet the legal threshold of genocide, war crimes and crimes against humanity and, therefore, justifies forcible humanitarian intervention in the Sudan by any grouping of states whether in or outside the context of the UN or the AU. While intervention may be legitimate outside the UN or AU framework, the author suggests that it would be in the interest of the stability of the global and regional peace and security system painstakingly assembled over the last six decades that preference is given to forcible intervention within the institutional framework of the UN and AU. In order to demonstrate that forcible humanitarian intervention remains a serious policy option, the study shows that the other possible options of intervention are not appropriate in the particular circumstances of Darfur.

This study is divided into five parts. The introductory part gives a background of the Darfur crisis by examining the origins and nature of human rights violations taking place in that part of the Sudan. It also reviews initial responses to the atrocities by the international community and sets out the conceptual parameters of the “responsibility to protect” and “humanitarian intervention”. In the second part, the author examines the possible legal and policy objections to humanitarian intervention. The author indicates that the legal objections to humanitarian intervention revolve around the concept of state sovereignty, often cited by the GoS whenever issues of foreign intervention in Darfur are raised. The part further explores the policy considerations and argues that today, the doctrine of state sovereignty must be interpreted in the context of the changing value systems of the international community, whereby sovereignty is increasingly viewed as hinging on a state’s responsibility to protect its citizens and that failure by a state to do so automatically invites intervention by the community of states in various forms, including forcible military intervention. Part three focuses on the normative framework for the responsibility to protect civilians in Darfur by responding to an array of questions in the nature: how, when and by whom. Part four discusses the roles of the international community, particularly the UN and AU by focusing on the institutional and legal apparatus relevant to humanitarian intervention. The fourth and final part sums up the main conclusions and recommendations of the study. In sum, the author concludes that in contemporary international law, humanitarian intervention is sustainable in case of serious human rights violations and that the international law principle of sovereignty has acceded to this exception. The author recommends that focus should shift from peacekeeping to rethink other options, of which humanitarian intervention is a concrete and permissible option. In the case of Darfur, which is the focus of this study, there is need for urgent forcible humanitarian intervention, preferably authorized by the UN.