Darfur and the Responsibility to Protect

Paper prepared by Camille Kam, Law Student Intern
In the Office of David Kilgour

MP, Edmonton-Mill-Woods-Beaumont

For discussion at a luncheon with other interns
National Press Club, Ottawa
June 17, 2005

Last month, Canadian Prime Minister Paul Martin announced that Canada would pledge $170 million to help the peace keeping mission in Darfur, Sudan, as well as up to 60 military advisers to help African Union (AU) commanders already there with planning, intelligence, and communications.  These new developments are certainly a welcome addition to the $180 million in humanitarian aid and 31 advisors to the peace process that Canada has already given to Sudan.  However, even a brief glimpse at the bigger picture of what is happening in Darfur shows how feeble such a response is from a country that prides itself on being a leader in the sphere of human rights. 

Canada’s response seems all the more inexcusable in light of the pledge of “never again,” given after the world stood by in silence as nearly one million people were butchered in less than 3 months in Rwanda just over 10 years ago.  And yet, in the space of less than a decade, it seems that the painful lessons of the past have been all but forgotten.  For a country of Canada’s stature and wealth to stand by again while innocent people die because of apathy and indifference is to dishonour both the memory of those who died and our pledge of “never again”. 

400,000 Dead

To date, it is estimated that over 400,000 people in the Darfur region have died in the conflict from attacks, starvation, and disease.  It is also important to note that aid groups have been reluctant to estimate the death toll, for fear of both error and angering the Sudanese government, which has been known to retaliate against aid workers.  Unfortunately, without more access to the region, there is no way to know how many people have really died, and the numbers estimated are only extrapolations made by a few dedicated people outside of Sudan. 

Darfur is inhabited by a variety of peoples, generally constituting two distinct groups: non Arab indigenous peoples such as the Fur, Masalit, and Zaghawa, and Arab tribes who settled in the region in the 13^th century.  Although both groups are Muslim, relations between them have long been tense.  Most significantly, the two groups have economic interests that often clash, with the Fur and Masalit people being primarily sedentary farmers, while the Arabs and Zaghawa are nomadic herdsmen.  Access to land and water resources have often brought them into conflict with each other. 

The Sudanese government has had a strongly Arab character since Sudan gained independence in 1956 and has been a military dictatorship since 1958.  Since then, Sudan has been through two civil wars that were, for the most part, fought between the Muslim government and the Christian population in the South and the Nuba Mountain people in the West. 

Origins of the Darfur Conflict

The conflict in Darfur began in early 2003 when rebels, accusing the government of oppressing and marginalizing non-Arabs, attacked government forces and installations.  In response, the government launched an aerial bombardment supported by the Janjaweed, Arab militias recruited from local tribes and armed by the government.  Civilians in Darfur have since been targeted by government forces and militias.  Although both sides have been accused of committing serious human rights violations, the government-backed Janjaweed has quickly gained the upper hand.  By the spring of 2004, mass killings, looting, and raping of the non-Arab population were occurring on a regular basis and millions of people had been driven from their homes. 

The crisis took on an international dimension, drawing the world’s attention when over 100,000 refugees were driven into neighbouring Chad, pursued by Janjaweed militias over the border.  Since then, various measures have been undertaken aimed at stopping the Genocide taking place in Darfur, including sanctions, UN Security Council Resolutions, and inquiries, but none of them have been to any avail, as civilians and refugees in the region are still dying daily from killings, disease, and starvation.  Millions of displaced refugees still unable to return to their homes for fear of reprisal.

The Universal Declaration of Human Rights

Over 40 years ago, after the end of World War II, the newly formed United Nations formally adopted the Universal Declaration of Human Rights.  This document begins with the phrase “All human beings are born free and equal in dignity and rights, endowed with reason and conscience and should act towards each other in the spirit of Brotherhood.”  With each passing year, we move closer to a new era in human rights thinking, one in which sovereign states are only seen as viable when they offer adequate protection for the basic human rights of their citizens. 

Currently, the most prosperous and democratic of nations have remained paralyzed in face of the most horrible atrocities committed against a people since World War II, either powerless or unwilling to act to ensure even the most basic of human rights to people who have known nothing but war, devastation, and the most abject poverty. Although many may naturally conclude that such inaction in the face of the oppression a group of people signals that, in this day and time, people simply do not care what happens to others anymore as long as their own interests are not being affected, a very important key to this puzzle lies with our long standing perceptions of state sovereignty. 

Humanitarian Intervention

The prevailing idea that one cannot intervene in another state’s affairs unless specifically asked to do so is a fundamental element in any understanding of how and why the world is able to turn a blind eye to the Genocide of a people as it did in Rwanda in 1994.  For the traditional idea of sovereignty, in which each state or nation has a right to be free from interference from others still holds a very real and historic power in the minds of our policy makers today.  But what defines sovereignty, a state or its people? And how can we protect the fundamental rights and freedoms of those in other countries when their own government has turned against them?

Darfur Cries for Help

In Darfur, the citizens of the country are calling out for Western intervention even if the Sudanese government isn’t.  This is very important, for it is in our understanding of the idea of sovereignty, state or citizen, that will ultimately determine the eventual outcome of the Sudanese civil war.  More and more, it seems that trumpeting the virtues of the Declaration of Human Rights only really ends the argument in the West, not the rest of the world, where the intrusion of Western democracies is viewed, or at least proclaimed, as some kind of foreign invasion.  Unfortunately, the reality seems to be that the language in the Declaration is largely a product of the West, representing a rising theory of thought brought about by centuries of struggle and the ultimate ascendancy of democracy in those countries; other countries like Sudan merely signed on to the Declaration as a means of achieving other ends, and not for the purpose of respecting human rights within its borders.  Thus, if a commitment to human rights as enshrined in the Declaration is seen largely as a product of Western democratic thought, then who should be responsible for ensuring that its ends are achieved?

International Consensus

In September 2000, Canada responded to the challenge by launching the International Commission on Intervention and State Sovereignty (ICISS). Until terrorism overwhelmed international attention after Sept. 11, 2001, the issue which had dominated international relations for over a decade was the “right of humanitarian intervention;” that is, the question of when, if ever, it is appropriate for states to take coercive military action against another state for the purpose of protecting people at risk.  This so-called “right of humanitarian intervention” has been one of the most controversial foreign policy issues of the last decade, both when intervention has happened, as in Kosovo, and when it has failed to happen, as in Rwanda.  Hence, on the initiative of then Foreign Minister Lloyd Axworthy, with the support of several major US foundations, the assistance of the British and Swiss governments, and the cooperation of many others, ICISS was established. 

The Responsibility to Protect (R2P)

The mandate of the Commission was to try to develop a global political consensus about how and when the international community should respond to emerging crises involving the potential for large scale loss of life, particularly through the UN system.  This goal was to be achieved by building a broader understanding of how to reconcile intervention for human protection purposes, while respecting the rights of sovereign nations.  The report, The Responsibility to Protect (R2P), was released in December 2001, the culmination of 12 months of intensive research, worldwide consultations, and deliberations.  In essence, the responsibility to protect, as conceptualized in this report, means that no state can hide behind the concept of sovereignty while it conducts, or permits, widespread harm to its population. R2p is also a key component of Canada’s Human Security Agenda; the human security approach to foreign policy puts people and their most fundamental rights and freedoms first.

Perhaps the ICISS Commission’s single most important contribution was its reconceptualization of the core concept of “the right to intervene”, as rather, "the responsibility to protect."  Rephrasing the issue as a responsibility on the part of strong, wealthy, and democratic nations to protect those whose governments have failed to, placed the focus where it always ought to be – not on those exercising power, but on the victims of conflict who need the assistance of others if they are to be protected from suffering. 

Thus, the two core principles of R2P are, first, that state sovereignty implies responsibility and the primary responsibility for the protection of it people lies with the state itself.  The second principle states that, where a population is suffering serious harm as a result of war, insurgency, repression, or state failure, and the state in question is unwilling or unable to stop it, the principle of non-intervention must yield to the international responsibility to protect.  In this way, the R2P extends the principle of state sovereignty to include the responsibility of the state to protect its own citizens. 

The Responsibility to Protect One’s Own Citizens

Moreover, the ICISS Commission did not limit the responsibility to protect to the duty to react to such critical situations.  By identifying the duty to prevent these types of conflicts by addressing both their root and direct causes, the Commission recognized that long term assistance as well as short term economic, political, and diplomatic responses are the most important means by which these situations can be prevented.  Thus, not only is there a responsibility to react to internal conflict that puts populations at risk, whether through measures such as economic sanctions or military intervention, but there is also an initial and overriding responsibility to prevent the risk to the population from arising in the first place.  Only if prevention fails should more coercive measures be taken, with the threshold for the most extreme measure of military intervention being high.  For military intervention to be considered, there must be large scale loss of life or large scale ethnic cleansing, actual or apprehended, and either must be pursued by forced expulsion or other means.  Military intervention must also always be carried out in a principled way, having regard always to prudential criteria of right intention, last resort, proportional means, and reasonable prospect of the benefit of an intervention clearly outweighing its harm.

However, the responsibility to protect does not stop there.  If coercive measures going beyond prevention must be utilized, there is also a responsibility to follow through and rebuild, with the time and effort required to ensure that the original problem does not recur.  If military action does become necessary, every reasonable effort should be made to obtain the authorization of the U.N. Security Council.  Where the Council drags its heels, action by regional organizations within their area of jurisdiction, subject to getting subsequent approval by the Security Council is another option consistent with the Charter, as would be approval by the General Assembly.  However, if the Security Council falls short in its responsibility to protect by failing to authorize action in conscience shocking situations, the Security Council must face the prospect that one or more concerned states will act without the UN’s authority.  There can be no doubt that the Genocide taking place in Darfur, with the aid and assistance, and perhaps even the direction, of the Sudanese government, is the very embodiment of such a conscience shocking situation.

African Armies

Although today, the African Union (AU) has about 3,000 troops and police on the ground, most experts agree that such a force is grossly inadequate to deal with one of the worst humanitarian crises being perpetrated across an area the size of France.  Moreover, the international community has seemed to agree that the AU is the most appropriate body to deal with the mess, which means that the AU’s response, despite how inadequate and poorly equipped it is, has been deemed to be the final word in the matter.  Last week, the fledgling International Criminal Court (ICC) announced that it would launch a formal investigation into allegations of war crimes in Darfur.  The Court has been analyzing the situation since the Security Council voted to have the United Nations refer to the allegations of rape, torture and murder to the Court in April.  However, the government in Khartoum has repeatedly shown that it will only stop its human rights violations if and when it is given no other choice.  It has also declared that it will never hand over a Sudanese national to the ICC, which makes the Court’s move to prosecute those responsible for the Darfur genocide largely impotent.  Thus, all the sanctions, inquiries, and resolutions are completely powerless to stop a government that seems determined to exterminate the very people it has been charged to protect. 

Conclusion

Darfur, it is said, is fast becoming the litmus test for the Responsibility to Protect.  As the leading proponent and sponsor of the R2P, Canada’s stunning inaction in the face of genocide – with the justification that the AU and the AU alone will decide how and when to stop the violence in Darfur – dishonours and betrays the principles underlying R2P and the memory of all those who have died as a result of Genocide.  As a recent article in the National Post says, “This should be our moment, our chance to demonstrate that the lives of Africans matter and that 'never again' means more than humanitarian relief.  Instead, after months of doing nothing, Canada’s efforts have helped produce a plan for international prosecution, but do little to prevent further crimes.  On the question of interdiction, Ottawa appears to be yielding to Sudan’s predictable assertion of sovereignty and to the workings of a frequently inept regional organization that is loath to sanction one of its own.”

A true commitment to R2P means that we should have insisted long ago that Sudan has forfeited the right to decide who protects the people of Darfur.  The presence of AU troops in the region only provides the illusion of that something is being done, as it has become more and more clear that the Sudanese government is willing to tolerate their presence precisely because they are powerless to stop the violence and human rights violations being perpetrated there.  What is needed is a military force capable of protecting civilian populations, killing attackers without terrorizing communities, and arresting those responsible for the worst human rights violations, as the British did successfully in 2000 in Sierra Leone.  At this point, in light of all the documented evidence that indicates that what is happening in Darfur is indeed a Genocide, for Canada to do any less would be to betray not only the Responsibility to Protect, but its own signature foreign policy and the human rights it purports to protect as well.

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