Darfur is a highly complex political and social context, and is often referred to as a 'human-made' disaster. It is the epicentre of three overlappin...

Darfur is a highly complex political and social context, and is often referred to as a 'human-made' disaster. It is the epicentre of three overlapping circles of an internal armed conflict. First, a war commenced between the Sudanese government in Khartoum and two armed resistance groups, the Sudanese Liberation Army (SLA) and the Justice and Equality Movement (JEM). Second, there was a proxy war between Sudan and Chad, with each country hosting and supporting the other's rebel groups. Third, localised conflicts are primarily based on land tensions between sedentary and nomadic tribes.

This conflict originally began in August 2002, when Sudan deployed its armed forces to try to control the insurgency. The operation extended until February 2003 but was unsuccessful. In April 2003, the rebel forces attacked the airport at Al Fashir (North Darfur), inflicting heavy losses on the government. Subsequently, the government ceased peace negotiations with the rebels, recruited a large number of militia (Janjaweed) and embarked on a full-scale counter-insurgency operation or so-termed 'scorched-earth campaign' that also resulted in 'cultural genocide'.

Of a population of six million, more than 1.5 million persons were displaced; in excess of 200,000 crossed the border into the remote, barren regions of Eastern Chad. Thousands saw their families killed, abducted, abused or raped. Estimates vary, but over 50,000 died.

Incursions by the Janjaweed on Darfur's black African tribes have been regarded as genocide. But 'the international community ignored Darfur for too long, letting it rage out of control'. Only belatedly did the conflict attract international attention. Both the Security Council and General Assembly have been criticised for their position of condoning inaction.

To date, conditions for the displaced Darfurians remain appalling. Lack of food and incessant rains drastically increased the threat of water-borne diseases. Many roads became impassable, and aid distribution was severely hindered. Many relief workers were murdered. In certain areas, air lifts of food and medical supplies were the only means of support. Relief organisations such as Oxfam joined many communities to assist in the struggle against the spread of disease and improve the minimal conditions of survival.

In July and August 2003, Sudan's armed forces together with the Janjaweed attacked the towns of Kodoom, Bindisi and Mukjar. Shortly afterwards, the government and the rebel groups signed a peace agreement in Abeche. However, the rebels continued, and increased, their attacks against the government. The armed forces and Janjaweed resumed military operations, and in December 2003 attacked Arawala (West Darfur). The government blocked the main crossings into Chad, stopped its attacks in West Darfur and in January 2004 concluded all major military operations. After losing control of North and West Darfur, the rebels shifted their action to the South. Sudanese Armed Forces attacked a rebel base in the Sindu Hills, causing residents to flee to Mukjar. The town was subsequently attacked by both the armed forces and Janjaweed. They allegedly killed or tortured dozens of civilians, destroyed private and public property, and pillaged livestock, crops and goods.

The African Union acted as a mediator, and troops from Nigeria and Rwanda were sent to Sudan as members of an African Union peacekeeping force. In April 2004, the government and the rebels signed a ceasefire agreement. However, the rebels continued their attacks in South Darfur, prompting the government to engage in another military operation in December 2004. With the distinct possibility of peace talks breaking down, the United States pressured the Security Council and General Assembly to provide a greater lead to a settlement outline. On 18 September 2004, Security Council Resolution 1564 alleviated the suffering of the Darfurians, particularly through the assistance and document verification provided by African Union personnel. However, that document lacked substance, except for the recommendation that the Secretary-General be authorised to 'rapidly establish an international commission of inquiry to investigate reports of violations of international humanitarian law and human rights law in Darfur, and whether acts of genocide have occurred'.

The threat of sanctions remained if Sudan did not observe this Resolution, or failed to cooperate with the African Union Monitoring Mission in Darfur. No mention was made of humanitarian intervention principles. Rather, this Resolution reaffirmed the UN's commitment to the sovereignty, unity, territorial integrity and independence of Sudan. Khartoum argued that the more outside pressure was applied on it at this sensitive time, the more likely it was to be counterproductive. The wording of the Resolution may suggest that Khartoum's argument was attractive to states, and this in part explains the Security Council's cautious action and world leaders' ambivalence.

Excerpts from Security Council Members' Statements on Security Council Resolution 1564 relating to R2P and Darfur are relevant: 'the situation is totally unacceptable as regards the renewed commitment of the UN in favour of human dignity'; 'there is a need for further and unequivocal actions by the Government of Sudan in carrying out its primary responsibility to extend protection and security to the civilian population'; 'A State has the responsibility to protect its citizens, and, if it is unable or unwilling to do so, the international community - the Security Council - has the moral and legal authority to enable that State to assume that responsibility'; 'there should be no moral hesitation in the Council in taking up its responsibilities'; 'The Security Council cannot neglect its responsibilities'; 'the pressure of the international community has been chiefly responsible for this progress'; 'to protect the people of Darfur, who have been suffering terribly and in a way that is unique in the tragedies of the world today'. A terminology shift has occurred here, with an increased use of the terms 'responsibility' and 'protect' and 'pressure from the international community'. Arguably the statements accord with the definition of state practice in the diffusion stage of the lifecycle of the R2P norm.

However, placing human dignity at the centre of the UN's agenda remains a slow, deliberative process. This could well be expedited as the potential utility of the emerging norm becomes more globally understood, and gains widespread acceptance by the international community. Currently, significant pressure from civil society on some of the major states to exercise their obligation is mounting. Additionally, with Security Council Resolution 1706, the concerted efforts of the World Federalist Movement, Global Policy Forum and Africa Action, the considerable recent literature developed by Evans102 and academic commentators, the renewed sense of legal obligation necessary to implement the R2P norm is strengthening.

The newly appointed UN Secretary-General Ban Ki-moon visited Sudan, and stated he had established a position of trust with Sudan's President Bashir. The Secretary-General anticipated his support in the current negotiation process to establish the combined African Union-UN hybrid protection force. In his report to the Security Council on Sudan, he contends that 'the paramount goal for international complementary efforts in the areas of security, political and humanitarian assistance must be to stabilize Darfur sufficiently so that its residents are able to participate in the 2009 midterm elections along with the rest of the country'.

On a positive note, in April 2007 Sudan announced it would allow 3,000 international peacekeepers into Darfur. Some observers contend that Sudan's decision reflects China's increased influence on Khartoum to respond to growing pressures from the international community. The threat of UN sanctions may also have contributed. In addition, there are the arrest warrants issued by the ICC (2 May 2007) for Sudan's Humanitarian Affairs Minister Ahmad Arun and the Janjaweed 'colonel of colonels' Ali Kushayb, who allegedly are 'criminally responsible' for war crimes and crimes against humanity. These warrants list 51 counts for each accused, which include persecution, murder and attacks against civilians, forcible transfer, rape, pillaging, destruction of property, inhumane acts, imprisonment and torture.

The persistence and intractability of this harsh conflict has generated developments which continue to impact on vulnerable civilians. Various initiatives to stabilise the country, and build an effective peace process, have failed. Despite the numerous appeals for urgent action, there is yet no coordinated effort by all the relevant parties to address first and foremost the protection of civilians, or related issues such as power-sharing, wealth, individual compensation and disarmament of the Janjaweed militia, or complex questions concerned with justice. The latter include questions about punitive measures and sanctions for the perpetrators of human rights violations. The current position is that 'with the right policies and increased levels of engagement on the issue, there is potential for Darfur to stabilize within a year. If not, it is almost a foregone conclusion that hundreds of thousands more will be killed on our watch in 2007'.

On the ground, the protagonists are facing the enforcement of Security Council Resolutions 1674 and 1706. Recent international law developments are relevant to Darfur. The ruling by the International Court of Justice (ICJ) in the Bosnia v Serbia case states that, in principle, states can be held responsible for genocide. The ICJ ruling reaffirms the important distinction between ethnic cleansing and the ultimate crime, genocide. The finding that Serbia failed to prevent and to punish genocide is quite significant because it is the first time in history that an international court has judged a state legally responsible for violating the Genocide Convention. The potential remains for Sudan to be judged responsible for genocide, notwithstanding that such responsibility is extremely difficult to prove as intentional performance by a specific state.

Although there are some clear signs of acceptance of the emerging norm of R2P across all levels of society, its operationalisation still depends largely on the international community grasping the opportunity to redress its failed obligation towards the people of Darfur.

Progress towards a political settlement of the situation in Sudan, including implementation of the United Nations-African Union peacekeeping mission (UNAMID), has been abysmally slow and inconsistent. Darfur remains a litmus test for the new international norm of R2P. The situation has deteriorated due to a proliferation of armed groups, rebel divisions, and escalation of the proxy war between Sudan and Chad. Emerging data over the past year reveal an even grimmer picture for Darfurians who continue to suffer human rights abuses, sexual violence and internal displacement. Recent attacks on humanitarian workers and food convoys are highlighting the growing malnutrition, and increased mortality levels. Two compelling examples are: on internal displacement, a key finding by the Norwegian Refugee Council states that currently Sudan is the country with the highest numbers of IDPs, and on mortality levels, the UN estimates that besides the 200,000 deaths in 2005, an additional 110,000 died during the last two years.

Sudan's unwillingness to address its poor and highly centralised governance, and procrastination in fulfilling its commitment to protect civilians is a clear case that demands a more sustained reaction by the Security Council and the international community. The ruling National Congress Party (NCP) is determined to maintain power and is deferring the agenda for reforms stipulated in the 2005 Comprehensive Peace Agreement (CPA). The CPA is crucial both for its provisions of significant governmental reforms, and democratisation process leading to the 2009 elections. Implementation of the CPA, however, has been hampered in two ways: by the NCP, which continues to undermine those provisions at the national level, and by the southern-based Sudan People's Liberation Movement's uneven process due to its internal divisions and capacity issues. A BBC programme termed the situation 'All talk and no action'. Essentially, the USA, Russia and China are backsliding in their support for UNAMID not only with regard to the contribution of troops, but also with infrastructure, ground transport, helicopters, and other technical equipment. The hybrid force, which took over from the African Union on 31 December 2007, was to be 26,000-strong but to-date only around 9,000 peacekeepers and soldiers are on the ground. Despite the logistical and security difficulties, peacekeepers have resumed their night patrols, and with the improved security Darfurians are gradually gaining confidence in the mission.

From January to March there was an upsurge in violence in West Darfur as government forces carried out a series of coordinated attacks using aerial bombardments and ground forces in an attempt to clear the area of rebel fighters. However, according to the UN High Commissioner for Human Rights' report of 20 March 2008, the offensives in January and February in the area north of el-Geneina and the villages of Saraf Jidad, Sirba, Silea and Abu Suruj caused severe losses of civilians and indispensable property. Moreover, consistent information gathered by UNAMID Human Rights Officers indicated that such actions, which failed to distinguish between civilian objects and military objectives, violated the principle of distinction under International Humanitarian Law. Another issue with both political and economic ramifications that needs to be resolved is the contested area of Abyei, which comprises significant oil fields. Regardless of the remaining reserves, Abyei will retain its importance because of the pipeline infrastructure. The proposed referendum in 2011 aims to establish whether the Abyei district decides to join what might then be an independent South.

With regard to international justice, the government of Sudan has perpetuated an environment of impunity for crimes in Darfur. It is one year since the International Criminal Court (ICC) issued arrest warrants against Ahmad Harun and Ali Kushayb, but they are both still free in Sudan. Harun was promoted to State Minister for Humanitarian Affairs, and Kushayb, who was in custody for other charges in Sudan, was released. To date the Sudanese government has adopted a defiant stance towards the Court and the international community, and shown a blatant disregard for the authority of the Security Council. Khartoum refuses to comply with SC Resolution 1593, and surrender the two indicted criminals for prosecution by the ICC. Significantly, during April 2008 with the approaching anniversary of the warrants issuance, many human rights organisations and NGOs have mobilised jointly under the banner of Justice for Darfur (www.justice4darfur.org). They are sending an urgent call to the UN Security Council, regional organisations and individual governments to confront Sudan over the alleged war criminals and secure their surrender to the ICC. The appeal is also supported by the European Union, two former justice ministers (UK, Canada) and two former chief prosecutors for the International Criminal Tribunals (Yugoslavia, Rwanda).

Clearly the strategy of threats without imposing them is both inadequate and counter-productive. This is so both for the suffering Darfurians, and for the credibility of the international community. The Security Council must provide greater leadership now available through the operationalisation of the R2P norm. Accordingly, the international community needs to redouble its efforts in countering Khartoum's persistent hostility and defiance by addressing the Darfur conflict in the broader context of Sudan. The recent international impetus indicates an exigency for concerted action by the UN, the international community, other actors, such as the European Commission, and even by appointing a single, empowered mediator with the leverage of major states, to achieve the following outcomes:
´ Protection for civilians through a full and appropriately resourced deployment of UNAMID.
´ Unrestrained humanitarian access to alleviate hunger and reduce mortality.
´ Accountability for human rights abuses, and guarantee of safe-return of IDPs.
´ Implementation of the CPA to resolve the underlying political and economic issues in Sudan, and thus facilitating the democratisation process in the whole country.

*First appeared as 'Towards Normative Consensus on Responsibility to Protect' in the Griffith Law Review (2007) vol. 16 no. 1 pp. 193-224 (accessible via http://www.informit.com.au/plustext.html ISSN1038-3441). The Federalist Debate thanks Griffith University and the journal for their kind permission to republish the above section on Darfur, now updated by the author.