which responsibility in darfur?
TRANSCRIPT
This article was downloaded by: [Umeå University Library]On: 09 October 2014, At: 10:39Publisher: RoutledgeInforma Ltd Registered in England and Wales Registered Number: 1072954 Registered office:Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK
Peace Review: A Journal of Social JusticePublication details, including instructions for authors and subscriptioninformation:http://www.tandfonline.com/loi/cper20
Which Responsibility in Darfur?Kurt MillsPublished online: 21 May 2008.
To cite this article: Kurt Mills (2008) Which Responsibility in Darfur?, Peace Review: A Journal of SocialJustice, 20:2, 175-183, DOI: 10.1080/10402650802068093
To link to this article: http://dx.doi.org/10.1080/10402650802068093
PLEASE SCROLL DOWN FOR ARTICLE
Taylor & Francis makes every effort to ensure the accuracy of all the information (the “Content”)contained in the publications on our platform. However, Taylor & Francis, our agents, and ourlicensors make no representations or warranties whatsoever as to the accuracy, completeness, orsuitability for any purpose of the Content. Any opinions and views expressed in this publicationare the opinions and views of the authors, and are not the views of or endorsed by Taylor &Francis. The accuracy of the Content should not be relied upon and should be independentlyverified with primary sources of information. Taylor and Francis shall not be liable for anylosses, actions, claims, proceedings, demands, costs, expenses, damages, and other liabilitieswhatsoever or howsoever caused arising directly or indirectly in connection with, in relation to orarising out of the use of the Content.
This article may be used for research, teaching, and private study purposes. Any substantialor systematic reproduction, redistribution, reselling, loan, sub-licensing, systematic supply, ordistribution in any form to anyone is expressly forbidden. Terms & Conditions of access and usecan be found at http://www.tandfonline.com/page/terms-and-conditions
Which Responsibility in Darfur?KURT MILLS
The last two decades have witnessed significant developments in the way the
international community deals with massive violations of human rights in the
context of violent conflict, including genocide and crimes against humanity,
and in the way it talks about such responses. For the first time since
Nuremberg, individuals are being tried by international courts for such viola-
tions. Further, there has been much talk about an evolving “responsibility to
protect,” whereby the international community has not only a right, but a
duty to intervene militarily to stop genocide. And, the third response to wide-
spread human rights violations—the provision of humanitarian assistance—
has become much more central to contemporary conflict. These three
responses, however, have a complex relationship, leading to situations
where one may undermine the normative force of another. This relationship
will be discussed later, using Darfur as an illustration, asking to what extent
states have shown themselves willing to live up to their responsibilities to
protect people who are threatened by genocide or other widespread gross
violations of human rights, to prosecute those who engage in such violations,
and to feed and shelter those who flee from such violations.
The modern normative framework, with respect to humanitarian interven-
tion, can be traced back to the aftermath of the Holocaust and the horror
that the entire world stood by while genocide was carried out in the heart of
“civilized” Europe. In the wake of this tragedy, the world rapidly declared its
support for universal human rights through the Universal Declaration of
Human Rights and its determination that it would not allow genocide to
occur again. In fact, the Convention on the Prevention and Punishment of
Genocide affirmed that not only would states punish perpetrators of
genocide, but that they would also “undertake to prevent” genocide. On
the one hand, this affirmed a norm that has come to acquire the status of a
non-derogable principle. On the other hand, the actual force of the norm
was shown to be very weak, given that for decades, its terms were never
invoked, even in the clearest of cases. The one instance where a state has
attempted to bring another state to account for genocide led to a decision
by the International Court of Justice that Serbia had not committed
Peace Review: A Journal of Social Justice, 20:175–183
Copyright # Taylor & Francis Group, LLC
ISSN 1040-2659 print; 1469-9982 online
DOI: 10.1080/10402650802068093
175
Dow
nloa
ded
by [
Um
eå U
nive
rsity
Lib
rary
] at
10:
39 0
9 O
ctob
er 2
014
genocide against Bosnian Muslims (although it did find that Serbia had failed
to prevent genocide in Srebrenica).
It was not until the end of the Cold War that an international political
debate on humanitarian intervention could occur. With the end of the super-
power rivalry, the UN, for a few years anyway, found itself centrally
involved in a wide variety of human rights and humanitarian crises. The
Security Council began using human rights and humanitarianism as bases
for UN-sanctioned action—at least insofar as a connection could be made
to international peace and security.
Hopes that the end of the Cold War and the increasing activism of the
UN might mean that the international community would act forcefully to
enforce the dormant norms against genocide and other human rights violations
were quickly dashed. In Bosnia, UN peacekeepers were given an ineffective
mandate to deal with ethnic cleansing, and it took three years for the inter-
national community, in the guise of a regional organization—NATO—to
take forceful military action after the Srebrenica massacre. The case of
Rwanda demonstrated a complete lack of international will to stop genocide
when the perceived national interests of the major powers were not at stake.
Kosovo illustrated the fact that the major powers could still prevent the UN
from acting, even when there was the will to do so. The fact that the interven-
tion in Kosovo, as with other regional interventions, such as the ECOWAS
intervention in Liberia, was not universally condemned indicated a growing
acceptance of an emerging norm of humanitarian intervention. That such a
norm might exist was also evident in the Bush administration’s attempt to
use it as a justification for its invasion of Iraq in 2003. This was generally
rejected by the international community, but it was this particular use of the
norm, not necessarily the norm itself, which was rebuffed.
This developing norm was given voice by the International
Commission on Intervention and State Sovereignty in a report entitled The
Responsibility to Protect. The report shifted the debate away from discussing
a right to intervene to a responsibility to protect those who might be threa-
tened by gross violations of human rights or humanitarian crises. This
responsibility would need to be carried out under strict criteria and would
normally be undertaken and directed by the UN Security Council or,
possibly, regional organizations.
This norm was endorsed by the report of the UN Secretary-General’s
High-Level Panel on Threats, Challenges and Change. The panel,
which was given the task of identifying the major threats facing the world
today, provided further recognition that widespread gross violations of
human rights are an issue for the human collective as a whole, and not
just particular states, and thus that the international community, through
the UN, has a duty to respond to this global issue.
KURT MILLS176
Dow
nloa
ded
by [
Um
eå U
nive
rsity
Lib
rary
] at
10:
39 0
9 O
ctob
er 2
014
The UN Secretary-General, Kofi Annan, highlighted and affirmed this
developing norm in his report, “In Larger Freedom: Towards Development,
Security and Human Rights for All,” and called on the Security Council to
take enforcement action to protect human rights. He also called on the
Security Council to adopt principles for the use of force. This report was
intended to set the agenda for the 2005 World Summit. The 2005 World
Summit Outcome declared that in certain situations, such as genocide, the
international community, through the UN, has an obligation to stop such
human rights violations.
As Kofi Annan said to the world leaders gathered at the World Summit,
“you will be pledged to act if another Rwanda looms.” This is certainly a
stunning recognition of the norm that there’s a responsibility to protect.
Yet, the devil is in the details, and the final document included a reference
to “on a case-by-case basis,” and had no clear criteria on which to make
such a decision. And, of course, another Rwanda has, in fact, arrived in
Darfur. The lack of criteria, or even a call to create such criteria, for invoca-
tion of the responsibility to protect, as well as evaluating such cases on a
“case-by-case basis” would indicate that the world is not 100 percent com-
fortable with such a development.
Just as the “responsibility to protect” regime has accelerated its pace of
development in the last few years, so the international justice regime appears
to have grown dramatically since the 1990s. Like the current discussions
about humanitarian intervention that began in the aftermath of World War
II, so the modern international justice regime has its roots in attempts to
prosecute the perpetrators of the Holocaust. The International Military
Tribunal at Nuremberg established the precedent of (parts of) the inter-
national community coming together to judge those who committed the
most heinous human rights violations. That there were omissions or
charges of victor’s justice does not take away from the fact that precedents
were set. Individuals could be tried by international courts. The crimes
that they could be tried for were established and legitimized. One could
not escape prosecution by arguing that one was just following orders. The
focus was on individual responsibility for crimes committed in the name,
and under the supervision, of the state.
The following decades saw little concrete evidence of further develop-
ment in this area. In the 1990s, however, things changed dramatically,
as the international justice regime acquired teeth and began to be institutio-
nalized. The International Law Commission began thinking about the
creation of an international criminal court, and states started looking at
this proposal more seriously. At the same time, Yugoslavia broke apart,
falling into war and ethnic cleansing, and Rwanda experienced genocide.
In the first case, the international community waited three years before
WHICH RESPONSIBILITY IN DARFUR? 177
Dow
nloa
ded
by [
Um
eå U
nive
rsity
Lib
rary
] at
10:
39 0
9 O
ctob
er 2
014
taking the forceful action that ultimately led to the Dayton Accords. Before
the NATO bombings in response to the Srebrenica massacre, the UN
Security Council had created the International Criminal Tribunal for the
Former Yugoslavia (ICTY). While, in one sense, this represented an effort
to divert attention from the fact that the Security Council had done essen-
tially nothing to stop the fighting and ethnic cleansing (toothless peace-
keepers and vast quantities of humanitarian aid notwithstanding), it also
served to resurrect the principles of Nuremberg.
The International Criminal Tribunal for Rwanda was created by the
Security Council in 1994 after 800,000 people were killed in the space of
100 days. It was supposed to represent the world’s revulsion at such
brutality, although, like the ICTY, as much as anything it served as an
attempt to divert attention from the fact that the world had allowed
genocide to happen yet again. Yet, the very fact that there was a felt need
to cover up the failure to respond illustrated the effect of the developing
responsibility to protect. Why try to cover up inaction unless there was an
expectation that the UN, the Security Council, states—somebody—should
respond?
The pinnacle of the developing international justice regime was, of
course, the creation of the International Criminal Court (ICC) with the
signing of the Rome Statute in 1998. That the most powerful country in
the world did not initially sign on, and then withdrew its eventual
signature before the court came into force in 2002, does not detract from
the fact that the ICC represents a dramatic leap forward in the international
community’s ability to prosecute individuals for the most horrible crimes. It
has initiated investigations in four countries to date—Uganda, the
Democratic Republic of Congo, Darfur in Sudan, and the Central African
Republic. In Darfur, over the strenuous objection from the United States,
the Security Council voted to refer Darfur to the ICC for investigation.
Fifty-one individuals, including some Sudanese government leaders, were
named for complicity in war crimes and crimes against humanity and the
court has issued arrests warrants for two individuals—a government
minister and a Janjaweed leader. Yet, the existence of the ICC may serve
to deflect attention away from more forceful action that may be necessary
to stop atrocities. By having recourse to international criminal justice via
the ICC, states can make it seem like they are addressing a problem like
Darfur without putting troops on the ground. As will be seen in the case of
Darfur, however, this is not likely to be a successful long-term strategy
because indicting war criminals is not going to stop a conflict like Darfur.
Along with the responsibility to protect and the international criminal
justice regime, norms and practices associated with providing humanitarian
assistance in the midst of conflict have evolved. Over the last three decades,
the provision of humanitarian assistance in conflict has grown dramatically,
KURT MILLS178
Dow
nloa
ded
by [
Um
eå U
nive
rsity
Lib
rary
] at
10:
39 0
9 O
ctob
er 2
014
and international humanitarian organizations have grown in prominence.
They have become so prominent that they can affect the course of
conflicts and have found themselves the objects of manipulation.
Humanitarianism is embedded within the logic of contemporary conflict.
Today humanitarianism is manipulated for political or military gain on the
ground in a conflict, or as a substitute for political and military action.
Thus, humanitarian action has become part of the conduct of war.
In the case of the former Yugoslavia, as noted earlier, initially the inter-
national community did little to stop the fighting and killing. Instead, it
provided a lot of money to the UN High Commissioner for Refugees
(UNHCR) to deliver food to the civilians stuck in the middle of conflict. It
also provided UN peacekeepers with a very weak mandate—essentially to
protect themselves and sometimes to help out UNHCR and other organiz-
ations. By providing such assistance, the major powers could say they
were doing something—that is, responding to the as yet unnamed responsi-
bility to protect—while not endangering their soldiers too much, and while
also providing a rationale for bottling displaced people up in a few so-
called safe zones, rather than allowing them to leave Bosnia and become
refugees in Europe. Airlifting in large amounts of aid to Rwanda and the
refugee camps in eastern Zaire, and focusing on the humanitarian
nightmare being faced by more than two million refugees, allowed the
major countries to reorient discussion away from the fact that they failed
to prevent or stop genocide.
We thus see an interesting dynamic emerging between the responsibil-
ity to protect norm, international justice, and humanitarianism. The former
creates pressure for states and the UN to respond to highly visible armed
conflicts and gross violations of human rights. The latter two, however,
provide states the ability to evade such responsibilities. One might posit a
three-stage process that the international community writ large goes
through when dealing with situations of genocide.
First, once pictures of refugees and starving children start appearing on
TV, and civil society groups begin to organize, states will start giving large
amounts of money to humanitarian organizations to provide relief to some
victims of the conflict. This allows them to claim that they are addressing
the conflict, while in reality they may be addressing the symptoms, but not
the causes. Here the UN becomes much more valuable to states since they
can use it, and its associated humanitarian organizations, for cover.
Addressing the symptoms but not the causes obviously is going to do little
to solve the underlying conflict, and it is likely that widespread human
rights violations will continue.
Second, developments in international criminal justice provide states
another option to address, or at least make it look like they are addressing,
WHICH RESPONSIBILITY IN DARFUR? 179
Dow
nloa
ded
by [
Um
eå U
nive
rsity
Lib
rary
] at
10:
39 0
9 O
ctob
er 2
014
violent conflicts and war crimes when it becomes clear that humanitarianism
is not going to make a crisis—and pressure to address the crisis—go away.
The international tribunals for the former Yugoslavia and Rwanda created by
the UN Security Council helped to divert attention from the fact that little
was being done, or had been done, to stop the atrocities committed. The
ICC will also provide similar opportunities in the future. Referring a case
to the ICC indicates a higher level of engagement and commitment on the
part of states to deal with a crisis, and would be the next logical step for
states who may not want to commit to a UN peacekeeping mission or
other type of military operation.
To date, however, such prosecutions have done little to end or prevent
conflicts, and this situation will likely continue, at least until a substan-
tial record of prosecutions has been built up—and possibly far beyond. Thus,
there may be continued and increasing pressure to intervene. This last step is
obviously not automatic and, even if resorted to, may entail the gradual intro-
duction of peacekeepers with limited mandates, rather than a full-on inter-
vention to stop killing once and for all.
The current situation in Darfur illustrates the aforementioned pattern.
The initial response of the international community to Darfur was not to
try to stop the killing; rather, it was to help those who had escaped
the killing. For a variety of reasons, including not wanting to endanger the
peace agreement in southern Sudan and not wanting to anger an ally in
the War on Terror, states decided that it was not in their interest to get
involved in any significant way. By providing millions of dollars to the
UN and nongovernmental organizations (NGOs) for humanitarian oper-
ations, and employing the language of humanitarianism rather than of
human rights, member states used humanitarianism to put off, for a while
anyway, pressure to intervene to stop the killing. At the same time, the
government of Sudan attempted to keep humanitarian aid from getting to
Darfur and declared that there was no food crisis.
The killing continued unabated, culminating in a series of massacres in
February and March 2004, which represented a turning point of sorts. Soon
after, a series of Western newspaper editorials appeared, calling on the inter-
national community more generally to “do something.” In the following
months the “G” word—genocide—was increasingly used to describe the
situation. This expanded publicity increased the pressure on states to
respond. The Security Council finally got into the act in July—17 months
after the conflict erupted—calling on the government to disarm the
Janjaweed, which predictably did not happen. Further resolutions also failed
to address the situation head on. It was clear that the Security Council could
not continue to treat this simply as a humanitarian crisis, although the steps
it took allowed the members to continue to evade their responsibilities.
KURT MILLS180
Dow
nloa
ded
by [
Um
eå U
nive
rsity
Lib
rary
] at
10:
39 0
9 O
ctob
er 2
014
The Western governmental discourse changed in late 2004 when the
United States officially declared the situation to be genocide, all the while
maintaining that this did not require it to take any action. This is a rather
curious development because why would one feel the need to make such a
pronouncement unless one intended to do something about it? One could
argue that the very fact that the disclaimer had to be made illustrated the
growing salience of the nascent responsibility to protect—even if it did
not lead to the necessary action to implement this responsibility. Other
Western capitals identified Darfur as genocide, although, again, to little
practical effect.
Matters got even more complicated in January 2005 when the UN
Commission of Inquiry reported that the situation in Darfur entailed
war crimes and crimes against humanity, but not genocide. A debate
ensued about exactly what this meant, but, in the end, if people are being
killed in large number as a result of war crimes rather than genocide, does
this really make a difference? This side debate over terminology allowed
humanitarianism to continue to be the preferred response. By this time, a
small African Union (AU) peacekeeping force was in place, not with a
mandate to stop the killing but rather to monitor humanitarian agreements
that usually broke down almost as soon as they were agreed. On the one
hand, this seemed to be a positive response from the newly reconstituted
African organization putting into practice the “African solutions for
African problems” sentiment. At the same time, it is clear that the AU did
not have the resources or mandate to be effective in stopping the violence.
But, the presence of the African Union Peacekeeping Mission in Sudan
allowed other member states to avoid making hard decisions about UN
peacekeeping and intervention.
Yet, the pressure continued for the international community to do
something and a debate over whether to refer Darfur to the ICC opened up
in the Security Council—and beyond. In light of the Bush administration’s
antipathy to the ICC, the United States tried hard to stop the referral, but in
the end was forced to abstain on the resolution rather than vetoing it. Yet,
this referral in March 2005 marked a significant step in the development of
international criminal justice mechanisms, although it is unclear exactly
what effect it will have on the conflict in Darfur (particularly given that
Musa Hilal, a Janjaweed leader who is suspected of being named in the
ICC referral, was recently named as special adviser to the president of
Sudan). The referral, however, allowed states to redirect the discourse over
Darfur, allowing them to say that they recognize that Darfur is something
more than a simple humanitarian catastrophe and that they were addressing
the atrocities through the pursuit of international criminal justice. As was
inevitable, though, the ICC referral has done little to stop the violence.
WHICH RESPONSIBILITY IN DARFUR? 181
Dow
nloa
ded
by [
Um
eå U
nive
rsity
Lib
rary
] at
10:
39 0
9 O
ctob
er 2
014
During this time the African Union force expanded further, but it
continued to be ineffectual in stopping the violence. Pressure continued to
mount for the Security Council to take further action. Rather than mount a
military operation that might stop the fighting, however, Western states
focused on peace talks that, although leading to an agreement in May
2006, were not signed by all the parties to the conflict (most rebels
factions declined to sign) and did not, in the end, lead to much of a
decline in government attacks—not surprising given the duplicity of the gov-
ernment. The Security Council agreed to expand the mandate of UNMIS—
the UN Mission in Sudan, tasked with implementing the North–South peace
agreement—to Darfur with Resolution 1706 in August 2006. While referring
to the responsibility to protect provisions in the World Summit outcome
document, and providing a Chapter VII mandate to “protect civilians
under the threat of physical violence,” it also indicated that the consent of
the government would be required. Predictably, the government impeded
the progress of this mission and it was never deployed. So, even while recog-
nizing the genocidal (or at least crimes against humanity) nature of the
conflict in Darfur, and recognizing the responsibility to protect on the part
of the international community, the Security Council failed to implement
that responsibility in a robust manner.
In July 2007, after much resistance and dithering, the Security Council
has finally approved a mixed AU–UN force—the United Nations–African
Union Mission in Darfur (UNAMID). With only a couple of exceptions,
the force will be comprised of troops from African countries—many of the
same countries that contributed to the failed African Union force. To a signifi-
cant extent, this is because Khartoum would not allow the deployment of
troops from other countries, preferring to have troops from countries it was
previously able to control and to avoid the appearance of a non-African
force invading its territory. The force has so far deployed at just over one-
third its approved strength and has been hampered from the very beginning
by the lack of essential items, such as helicopters, as well as the lack of
permission from Khartoum to conduct night flights. It is clear that, five
years after the eruption of the conflict, the international community does
not yet have the stomach to use its full might to stop the atrocities in Darfur.
What conclusions can we draw from the preceding discussion? There
has been dramatic normative and practical development in the areas
of humanitarian intervention (responsibility to protect), international
criminal justice (responsibility to prosecute), and humanitarianism (respon-
sibility to feed). The strongest response (humanitarian intervention),
however, also has the weakest normative weight attached to it, and the inter-
national community has used the other, more developed, norms and practices
to avoid real action to stop the ongoing violence in Darfur—and elsewhere.
KURT MILLS182
Dow
nloa
ded
by [
Um
eå U
nive
rsity
Lib
rary
] at
10:
39 0
9 O
ctob
er 2
014
Yet, this strategy to ease pressure to respond forcefully to human rights
violations is a losing strategy. Humanitarianism cannot stop genocide and
other types of mass killings, nor are investigations and indictments by inter-
national courts going to stop genocide. Using the international courts and
humanitarian organizations to defer hard decisions about appropriate
responses to horrendous situations ends up leaving the situations even
more horrendous and the decisions ultimately facing the member states
even more difficult. It is unclear that the international community is
willing to face up to these decisions in Darfur. It has implemented the
responsibilities to feed and to prosecute in Darfur, but it is does not seem
willing to seriously consider living up to the responsibility to protect
people from a murderous government, rebels, and paramilitaries. While
the responsibility to protect norm has had effects, including much inter-
national hand-wringing, millions of dollars spent on humanitarian assistance,
the issuing of arrest warrants by the ICC, and the creation of the largest UN
peacekeeping force (albeit with no peace to keep), Darfur leaves the extent of
the practical force of the responsibility to protect in doubt.
RECOMMENDED READINGS
de Waal, Alex. 2007. War in Darfur and the Search for Peace. Cambridge: Harvard University Press.
International Commission on Intervention and State Sovereignty. 2001. The Responsibility to Protect.
Ottawa: International Development Research Centre.
Maogoto, Jackson Nyamuya. 2004.War Crimes and Realpolitik: International Justice from World War I
to the 21st Century. Boulder, CO: Lynne Rienner.
Mills, Kurt. 2005. “Neo-Humanitarianism: The Role of International Humanitarian Norms and
Organizations in Contemporary Conflict.” Global Governance, 11(2): 161–183.
United Nations. 2004. “A More Secure World: Our Shared Responsibility.” Report of the High-level
Panel on Threats, Challenges and Change. http://www.un.org/secureworld/
United Nations. 2005. “In Larger Freedom: Towards Development, Security and Human Rights for All.”
Report of the Secretary-General. http://www.un.org/largerfreedom/United Nations General Assembly. 2005. “2005 World Summit Outcome.” http://www.un.org/
summit2005/documents.html
Kurt Mills is a Senior Lecturer in International Human Rights at the University of Glasgow. He is the
author of Human Rights in the Emerging Global Order: A New Sovereignty? and a number of articles
on human rights, refugees, and humanitarianism. E-mail: [email protected]
WHICH RESPONSIBILITY IN DARFUR? 183
Dow
nloa
ded
by [
Um
eå U
nive
rsity
Lib
rary
] at
10:
39 0
9 O
ctob
er 2
014