COLLECTIVE IN-ACTION: WHO HAS A
RESPONSIBILITY TO PROTECT?
96. The Government of the Sudan has been able to
avoid international political pressure on Darfur, in part because
such pressure has been poorly coordinated. There has been pressure
at various levels — bilaterally, through the AU, and through
the UN Security Council — but the relationships between
these different fora are not clear, as, in general terms, the
report of the Commission for Africa acknowledged.[285]
To illustrate, consider the following questions, none of which
have been conclusively answered by the international community:
does the AU mission require explicit authorisation by the UN Security
Council; has the AU mission got UN authorisation, specifically
to use force to protect civilians; at what point, and on whose
say-so, might the UN Security Council authorise military intervention
to ensure that the mission currently being carried out by the
AU in Darfur is effective; and, what would happen if the AU declared
that it did not need such assistance? (see paragraphs 59 and 75).
The application
of political pressure through different channels is the right
approach, but it must be better coordinated. The AU, the UN, and
its international partners must work from a coordinated strategic
plan, with roles and responsibilities made clear.[286]
97. At the root of the problem is the fact that there
is no clear legal obligation on any state or supra-state
organisation to prevent another government from committing war
crimes against its own citizens.[287]
No-one is ultimately accountable. The
"responsibility to protect" is an emerging legal norm,
but as yet it has no firm legal basis. As a result, a shared responsibility
to protect risks degenerating into a game of passing the buck
and avoiding responsibilities. When everyone is responsible for
collective security, it might be that no-one will take responsibility.
To put it differently, when the Prime Minister says that in a
situation similar to Rwanda in 1994, "we would have a moral
duty to act", who precisely is the "we", and what
action would be required? Despite the commendable efforts of the
UK and others to promote the notion of the "responsibility
to protect", and what it terms the "doctrine of humanitarian
intervention", regrettably, there are no clear answers. There
may be a shared responsibility to protect, but the mechanisms
of accountability, to ensure that responsibilities are shouldered,
are lacking. We are aware that perceptions
of the UK's role in the build-up to war in Iraq, and the legal
arguments used to justify that intervention, will no doubt have
made some countries question the UK's motives in promoting a doctrine
of intervention, including military intervention, for humanitarian
purposes.
98. The UN Security Council might seem the best place
to pin down the responsibility to protect. The UN Security Council
has the "primary responsibility for the maintenance of international
peace and security" (Article 24-1 of the UN Charter).[288]
If the Security Council determines that a crisis — which
can include a humanitarian disaster — is a threat to international
peace and security,[289]
then it is treated under Chapter VII of the UN Charter. In such
cases, the principle of non-intervention in sovereign states in
relation to matters which are "essentially within the domestic
jurisdiction" (Article 2-7 of the UN Charter) is effectively
overridden. The evidence demonstrates this to be the case: "The
Security Council has on a number of occasions cited severe cases
of internal repression or humanitarian disasters in determining
that a situation constitutes a threat to international peace and
security, and has acted to address the situation, for example
in Somalia, eastern Zaire, East Timor, Sierra Leone and Haiti."[290]
99. The Security Council's two main Resolutions on
Darfur (1556 and 1564) were adopted under Chapter VII. As such,
intervention — economic sanctions or military intervention
— could be considered, and, ultimately, authorised. The
fact that the Security Council has failed to authorise decisive
intervention of any sort is explained more by politics and the
interests of Member States, than by the legal complexities. Nevertheless,
a lack of legal clarity does not help. The "responsibility
to protect" is as yet only an emerging legal norm. But —
given credence by human rights treaties, the Genocide Convention,
the Geneva Conventions and international practice — the
principle is becoming more widely accepted.[291]
As the report of the UN High-level panel put it:
"The principle of non-intervention in internal
affairs cannot be used to protect genocidal acts or other atrocities,
such as large-scale violations of international humanitarian law
or large-scale ethnic cleansing, which can properly be considered
a threat to international security and as such provoke action
by the Security Council."[292]
100. As our report was being finalised, the UN Security
Council was in its fifth week of discussions about
a new Resolution on Darfur. Predictably, there have been disagreements
over an ICC referral, and over proposals to extend the arms embargo,
to impose sanctions on the oil sector, and to freeze the assets
of key individuals within the Khartoum regime. The failure of
the UN Security Council to act decisively has serious consequences,
both for the people of Darfur and for the credibility of the UN.
If the UN
Security Council fails to act on Darfur, it will once more find
its position undermined, in two ways. First, many will conclude
that the workings of the UN Security Council do not promote the
responsibility to protect. And second, if frustrated Member States
act successfully outside the authority of the Security Council,
many will conclude that the UN is not necessary.[293]
Those who do not wish to see the UN authorise military interventions
for humanitarian purposes, for fear that they might be abused,
have legitimate concerns. They should however, consider the following:
if such interventions are left to "coalitions of the willing",
acting without UN-authorisation, then they will be more open to
abuse, will be more likely to be driven by national interests,
and will be less responsive to humanitarian need. For those of
us who believe that membership of the international community
requires that countries adhere to certain minimum standards of
behaviour, and who regard the UN — flawed as it is —
as the best hope of achieving collective security and sustainable
development, this would be nothing short of disastrous. Global
social justice — in relation to peace, security, development,
and the environment — requires an effective and accountable
UN.
101. If the Comprehensive Peace Agreement is to provide
a template for sustainable peace and development across Sudan,
and a framework for a political agreement between the GoS and
the Darfur rebels, an effective UN will be crucial. Peace will
only be established once the parties see that other options offer
more than does continued conflict. This scenario will only come
to pass when the Sudanese government, and its international partners,
jointly deliver on their shared responsibilities, not just to
protect, but also for development.
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