The United Nations and the African union: Assessing a partnership for peace in darfur

Journal of Conflict and Security Law

Volumn 14, Issue 1, 2009, Pages 93-113

  Barnidge, Robert P ^a  

^a UNIVERSITY OF READING   (United Kingdom)

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EID: 69249091855     PISSN: 14677954     EISSN: 14677962     Source Type: Journal    
DOI: 10.1093/jcsl/krp013     Document Type: Article

References (170)

1. In his separate opinion in Armed Activities on the Territory of the Congo, International Court of Justice (ICJ) Judge Pieter Hendrik Kooijmans described such states as 'régimes under constant threat from armed movements often operating from the territory of neighboring states, whose governments sometimes support such movements but often merely tolerate them since they do not have the means to control or repel them'. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ (2005), para. 5 (Separate Opinion of Judge Kooijmans).
2. See J. Peter Pham, 'Renewed Congo Conflict Requires Fresh Approach', World Defense Review, 13 November 2008. Available at .
3. Kwame Nkrumah, Consciencism (1964) 70.
4. See UN Charter, Art. 39.
5. SC Res. 1556, 30 July 2004, Preamble.
6. In that case, the General Assembly tasked the ICJ with examining whether General Assembly authorized expenses to 'cover the costs of the United Nations operations in the Congo [...] and of the operations of the United Nations Emergency Force in the Middle East [...] "constitute 'expenses of the Organization' within the meaning of Article 17, paragraph 2, of the Charter of the United Nations"'. Certain Expenses of the United Nations, ICJ (1962) 151, 156.
7. Dag Hammarskjöld, 'Transcript of Press Conference, Copenhagen, 4 May 1959', in Andrew W. Cordier and Wilder Foote (eds), IV Public Papers of the Secretaries-General of the United Nations: Dag Hammarskjöld: 1958-60 (1974) 375, 377.
8. See Georg Ress and Jürgen Bröhmer, 'Article 53', in Bruno Simma (ed.) 1 The Charter of the United Nations: A Commentary (2nd edn, 2002) 854, 861 (asserting that '[i]t is problematic to assert categorically that peace-keeping is not enforcement action because peace-keeping activities can be performed in various guises'.).
9. See Antonio Cassese, International Law (2nd edn, 2005) 343-46
10. Yoram Dinstein, War, Aggression and Self-Defence (4th edn, 2008) 307-9.
11. An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peacekeeping (1992), A/47/277-S/24111, para. 20.
12. See ibid., paras. 20, 46-54.
13. UN Charter, Art. 24(1).
14. See ibid., Art. 103 (stating that, '[i]n the event of a conflict between the obligations of the members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail'.).
15. For a recent Security Council reaffirmation of a complementary role for regional arrangements or agencies in this regard, see SC Res. 1769, 31 July 2007, Preamble ('recalling that co-operation between the UN and the regional arrangements in matters relating to the maintenance of peace and security is an integral part of collective security as provided for in the Charter of the United Nations'.).
16. UN Charter, Art. 52(1). These actions must be 'consistent with the Purposes and Principles of the United Nations'. Ibid.
17. See ibid., Art. 52(2)-(3).
18. See ibid., Art. 52(4). The International Law Commission's Study Group on the fragmentation of international law reaffirms this interpretation. See Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law: Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi (2006), A/CN.4/L.682, 112.
19. UN Charter, Art. 53(1). The 'enemy state' exception at the end of Article 53(1) and in Article 53(2) is of historical interest only.
20. Ibid., Art. 54.
21. On Chapter VIII generally, see Jean Allain, 'The True Challenge to the United Nations System of the Use of Force: The Failures of Kosovo and Iraq and the Emergence of the African Union', (2004) 8 Max Planck Yearbook of United Nations Law 237, 248-51
22. Marten Zwanenburg, 'Regional Organisations and the Maintenance of International Peace and Security: Three Recent Regional African Peace Operations', (2006) 11(3) JCSL 483, 487-92.
23. Chapter VIII does not define regional arrangements or agencies, but in their commentary to Article 52 of the Charter, Hummer and Schweitzer define such an arrangement or agency as a 'union of States or an international organization based upon a collective treaty or a constitution and consistent with the Purposes and Principles of the UN, whose primary task is the maintenance of peace and security under the control and within the framework of the UN. Its members, whose number must be smaller than that of the UN, must be so closely linked in territorial terms that effective local dispute settlement by means of a specially provided procedure is possible. Accordingly, regional agencies are internally focused, thereby distinguishing themselves from, inter alia, externally focused systems of collective self-defense under Art. 51'. Waldemar Hummer and Michael Schweitzer, 'Article 52', in Simma (ed.), loc. cit., fn. 7, pp. 807, 828.
24. An Agenda for Peace, op. cit., fn. 9, para. 63.
25. Ibid.
26. Ibid., para. 64.
27. See Zwanenburg, loc. cit., fn. 18, p. 484.
28. 'Transcript of President Bush's Address on End of the Gulf War', New York Times, 7 March 1991.
29. E. H. Carr, What Is History? (2nd edn, 2001) 33.
30. International Panel of Eminent Personalities to Investigate the 1994 Genocide in Rwanda and the Surrounding Events, Rwanda: The Preventable Genocide (2000) 128.
31. Thomas Hobbes, Leviathan (1998) 84.
32. A More Secure World: Our Shared Responsibility: Report of the Secretary-General's High-Level Panel on Threats, Challenges and Change (2004).
33. In Larger Freedom: Towards Development, Security and Human Rights for All: Report of the Secretary-General (2005), A/59/2005.
34. See A More Secure World, op. cit., fn. 26, p. 68.
35. See ibid., 69-70.
36. See ibid., 85.
37. Ibid.
38. In Larger Freedom, op. cit., fn. 27, p. 31 (bold omitted).
39. Ibid., 52.
40. Ibid., Annex, 62.
41. See GA Res. 60/1, 24 October 2005, 23-24
42. ibid., 37.
43. For background, see Report of the International Commission of Inquiry on Violations of International Humanitarian Law and Human Rights Law in Darfur (2005), S/2005/60, 18-27
44. Julie Flint and Alex de Waal, Darfur: A Short History of a Long War (2006)
45. Implementation of General Assembly Resolution 60/251 of 15 March 2006 Entitled 'Human Rights Council': Report of the High-Level Mission on the Situation of Human Rights in Darfur Pursuant to Human Rights Council Decision S-4/101 (2007), A/HRC/4/80, 10-12
46. Tim Murithi, 'The African Union's Evolving Role in Peace Operations: The African Union Mission in Burundi, the African Union Mission in Sudan and the African Union Mission in Somalia', (2008) 17(1) African Security Review 70, 76
47. Ademola Abass, 'The United Nations, the African Union and the Darfur Crisis: Of Apology and Utopia', (2007) 54(3) Netherlands International Law Review 415, 417-18.
48. UN doc. S/PV.5727, 31 July 2007, 5.
49. Kenneth Kimathi, 'Darfur in the Pan, Unity on the Call', All Africa Global Media, 12 October 2005. Available at .
50. Ruth Iyob and Gilbert M. Khadiagala, Sudan: The Elusive Quest for Peace (2006) 149.
51. Report of the International Commission of Inquiry on Violations of International Humanitarian Law and Human Rights Law in Darfur, op. cit. fn. 36, p. 141.
52. See Public Redacted Version of the Prosecutor's Application Under Article 58 Filed on 14 July 2008, ICC-02/05, Annex A, 26-28.
53. Hong argues that '[t]he Arab-versus-black characterization is somewhat misleading, however, because these groups are neither internally cohesive nor fully distinct from each other. Collectivities in Sudan are multidimensional - as they are anywhere in the world, but especially so here'. Mai-Linh K. Hong, 'A Genocide by Any Other Name: Language, Law, and the Response to Darfur', (2008) 49(1) Virginia Journal of International Law 235, 243.
54. On the SLA/M and the JEM, see Flint and de Waal, op. cit., fn. 36, pp. 82-83
55. ibid., 92-96.
56. See also Report of the International Commission of Inquiry on Violations of International Humanitarian Law and Human Rights Law in Darfur, op. cit., fn. 36, pp. 24-25.
57. As perhaps the most striking example of the JEM's defiance of simple categorization, consider that its leader, Khalil Ibrahim, supports peaceful relations with Israel. See Interview on Al-Jazeera TV with Dr. Khalil Ibrahim, Leader of the Sudanese Justice and Equality Movement, 'I Support Peaceful Relations with Israel', Middle East Media Research Institute, 15 June 2008. Available at .
58. For further on the SLA/M and the JEM, see Iyob and Khadiagala, op. cit., fn. 39, pp. 136-37.
59. Humanitarian Ceasefire Agreement on the Conflict in Darfur, N'Djamena, 8 April 2004, Preamble. Available at .
60. See ibid., Art. 1.
61. See ibid., Art. 2.
62. See Michael Bothe, 'International Legal Aspects of the Darfur Conflict', in August Reinisch and Ursula Kriebaum (eds), The Law of International Relations - Liber Amicorum Hanspeter Neuhold (2007) 1, 6.
63. See Humanitarian Ceasefire Agreement, op. cit., fn. 42, Art. 2.
64. See ibid., Arts 3-4.
65. Ibid., Art. 6.
66. Murithi, op. cit., fn. 36, p. 72.
67. See Agreement with the Sudanese Parties on the Modalities for the Establishment of the Ceasefire Commission and the Deployment of Observers in the Darfur, Addis Ababa, 28 May 2004, Art. I(1)(A)-(B). Available at .
68. Ibid., Art. II(4).
69. Ibid., Art. II(5).
70. Ibid., Art. II(6).
71. See ibid., Art. IV.
72. See 'African Union Mission in the Sudan'. Available at (accessed 25 October 2008)
73. 'African Union Mission in the Sudan: Background and Chronology'. Available at (accessed 29 October 2008).
74. See Seth Appiah-Mensah, 'AU's Critical Assignment in Darfur: Challenges and Constraints', (2005) 14(2) African Security Review 7, 8.
75. 'African Union Mission in the Sudan: Background and Chronology', op. cit., fn. 55.
76. See 'African Union Mission in the Sudan', op. cit., fn. 55
77. 'African UnionMission in the Sudan: Background and Chronology', op. cit., fn. 55
78. Appiah-Mensah, loc. cit., fn. 56, p. 8.
79. On the exact numerical breakdown of AMIS military personnel, civilian police officers and representatives from Sudan and the SLA/M and JEM on 16 January 2007, see 'African Union Mission in the Sudan: Strength of AMIS', 16 January 2007. Available at .
80. SC Res. 1590, 24 March 2005, Preamble.
81. See ibid., para. 1.
82. Ibid., para. 2.
83. On Resolution 1590, see Susan C. Breau, 'The Impact of the Responsibility to Protect on Peacekeeping', (2006) 11(3) JCSL 429, 452.
84. See SC Res. 1706, 31 August 2006, para. 3.
85. See ibid., para. 8(b).
86. See ibid., para. 8(c).
87. See ibid., para. 9(a).
88. Ibid., para. 12.
89. Ibid., para. 1.
90. Report of the Secretary-General on Darfur (2007), S/2007/462, 1.
91. See ibid., 1-4.
92. See SC Res. 1755, 30 April 2007.
93. See also Gérard Prunier, 'Sudan: Genocide in Darfur', Le Monde Diplomatique, March 2007. Available at .
94. UN doc. S/PV.5727, op. cit., fn. 37, p. 3.
95. On this consent, see Report of the Secretary-General on Darfur, op. cit., fn. 68, pp. 10-12.
96. See SC Res. 1769, op. cit., fn. 13, para. 2.
97. For the exact number of personnel deployed as of 31 January 2009, see Report of the Secretary-General on the Deployment of the African Union-United Nations Hybrid Operation in Darfur (2009), S/2009/83, 1-4.
98. Paragraph one of Resolution 1769 refers to a 5 June 2007 report concluded by the Secretary General and the Chairperson of the African Union Commission as encompassing UNAMID's mandate. In particular, see paragraphs 54-55 at Report of the Secretary-General and the Chairperson of the African Union Commission on the Hybrid Operation in Darfur (2007), S/2007/307/Rev.1, 12-15.
99. See SC Res. 1769, op. cit., fn. 13, para. 15.
100. See Report of the Secretary-General on the Deployment of the African Union-United Nations Hybrid Operation in Darfur, op. cit., fn. 73.
101. On UNAMID, see Abass, loc. cit., fn. 36, pp. 432-39.
102. SC Res. 1556, op. cit., fn. 4, para. 7.
103. By 'arms and related materiel of all types', the Security Council includes 'weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned, whether or not originating in their territories'. Ibid.
104. Ibid., para. 8.
105. See ibid., para. 9.
106. See SC Res. 1591, 29 March 2005, para. 3.
107. See ibid., para. 3(f)-(g).
108. See also Flint and de Waal, op. cit., fn. 36, pp. 127-28.
109. For a useful summary of the 1556/1591 sanctions regime in tabular form, see 'Security Council Committee Established Pursuant to Resolution 1591 (2005) Concerning the Sudan'. Available at (accessed 31 October 2008).
110. SC Res. 1556, op. cit., fn. 4, para. 7.
111. Max Weber, The Profession of Politics, Simona Draghici (ed.) (2000) 2.
112. Admittedly, though, of course, one could argue that the express inclusion of the Janjaweed, the 'including the Janjaweed' language in Resolution 1556, chips away at this power advantage since a good deal of evidence suggests that Sudan instructs or directs or controls, at least in part, the Janjaweed and, thus, that the Janjaweed's conduct can be attributed to Sudan under the law of state responsibility. See International Law Commission, 'Articles on Responsibility of States for Internationally Wrongful Acts', (2001) in James Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (2003) 61, 62, Art. 8 (stating that '[t]he conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct'.). According to the ICJ, Article 8 of the International Law Commission's Articles on Responsibility of States for Internationally Wrongful Acts reflects customary international law.
113. See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) ICJ (2007), para. 398.
114. For a nuanced view on the attribution issue as relates to the Janjaweed's conduct and Sudan, see Report of the International Commission of Inquiry on Violations of International Humanitarian Law and Human Rights Law in Darfur, op. cit., fn. 36, pp. 33-39.
115. On Sudan's mobilization, recruitment and funding of the Janjaweed, as well as its supplying of arms, equipment and ammunition to it, see Public Redacted Version of the Prosecutor's Application, op. cit., fn. 40, pp. 81-86.
116. See SC Res. 713, 25 September 1991, para. 6 ('[d]ecides, under Chap ter VII of the Charter of the United Nations, that all States shall, for the purposes of establishing peace and stability in Yugoslavia, immediately implement a general and complete embargo on all deliveries of weapons and military equipment to Yugoslavia until the Council decides otherwise following consultation between the Secretary-General and the Government of Yugoslavia'.). On the arms embargo in the former Yugoslavia, see Jeane J. Kirkpatrick, Making War to Keep Peace (2007) 202.
117. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), ICJ (1993), paras 84-107 (Further Requests for the Indication of Provisional Measures Order of 13 September) (Separate Opinion of Judge Lauterpacht).
118. Ibid., para. 89.
119. See Jan Klabbers, An Introduction to International Institutional Law (2007) pp. 239-40.
120. International Panel of Eminent Personalities, op. cit., fn. 24, p. 6.
121. Hong describes genocide as 'both a product and a perversion of nationalism'. Hong, loc. cit., fn. 40, p. 256.
122. On the indifference of the Security Council to Rwanda in 1994, see Allain, loc. cit., fn. 18, pp. 262-64.
123. See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), op. cit., fn. 86, paras. 95-96.
124. The prohibition of genocide is said to amount to jus cogens, as Judge Lauterpacht noted at the time and as the ICJ has reaffirmed since. See ibid., para. 100
125. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), op. cit., fn. 84, para. 161.
126. On genocide, seeWilliam A. Schabas, An Introduction to the International Criminal Court (3rd edn, 2008) 91-98
127. Report of the International Commission of Inquiry on Violations of International Humanitarian Law and Human Rights Law in Darfur, op. cit. fn. 36, pp. 132-38
128. International Panel of Eminent Personalities, op. cit., fn. 24, pp. 5-8.
129. See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), op. cit., fn. 86, paras. 103-04.
130. Ibid., para. 104.
131. To be precise, Judge Lauterpacht stated that, '[s]o far [...] as this fourth request is related to the elimination of the arms embargo vis-à-vis Bosnia-Herzegovina, I would be prepared to say that the Applicant may have an indication of a provisional measure in the following terms: That as between the Applicant and the Respondent the continuing validity of the embargo in its bearing on the Applicant has become a matter of doubt requiring further consideration by the Security Council'. Ibid., para. 107.
132. Ibid., para. 102.
133. Dinstein expresses concern about theories based on fidelity to jus cogens that would see states refuse, of their own accord, to comply with obligations contained in Security Council Resolutions. See Yoram Dinstein, 'The Interaction Between Customary International Law and Treaties', in 322 Collected Courses of the Hague Academy of International Law (2006) 243, 425-26.
134. Secretary Colin L. Powell, Testimony Before the Senate Foreign Relations Committee, Washington, DC, 9 September 2004. Available at .
135. See ibid.
136. Ibid.
137. SC Res. 1564, 18 September 2004, para. 12.
138. See Report of the International Commission of Inquiry on Violations of International Humanitarian Law and Human Rights Law in Darfur, op. cit., fn. 36, pp. 132-42.
139. See ibid., 132.
140. Ibid.
141. As Hong puts it, '[g]enocide is not only a crime that requires specific intent; it can be said to be a crime of intent, since it is the mens rea that makes it what it is'. Hong, loc. cit., fn. 40, p. 260.
142. See Report of the International Commission of Inquiry on Violations of International Humanitarian Law and Human Rights Law in Darfur, op. cit., fn. 36, pp. 138-39.
143. Abass agrees with this conclusion but objects to the way in which the Commission of Inquiry arrived at it. See Ademola Abass, 'Proving State Responsibility for Genocide: The ICJ in Bosnia v Serbia and the International Commission of Inquiry for Darfur', (2008) 31(4) Fordham International Law Journal 871, 882-85.
144. See Report of the International Commission of Inquiry on Violations of International Humanitarian Law and Human Rights Law in Darfur, op. cit., fn. 36, pp. 139-40.
145. Ibid., 139.
146. See ibid., 173.
147. Ibid.
148. SC Res. 1590, op. cit., fn. 59, Preamble ('Taking note of the Secretary-General's reports of 31 January 2005 (S/2005/57 and Add. 1), 4 February 2005 (S/2005/68) 4March 2005 (S/2005/140) as well as the report of 25 January 2005 of the International Commission of Inquiry (S/ 2005/60)'.).
149. It is interesting to note that over six months prior to the release of the Commission of Inquiry's Report and over two months prior to Powell's testimony before the United States Senate Foreign Relations Committee that the African Union's Peace and Security Council also found that genocide had not been committed in Darfur, this, according to it, 'even though the crisis in Darfur is grave, with the attendant loss of lives, human suffering and destructions of homes and infrastructure'. African Union, Peace and Security Council, Communiqué of the Twelfth Meeting of the Peace and Security Council, On the Crisis in the Darfur Region of the Sudan (2004), PSC/MIN/Comm. (XII), para. 2.
150. SC Res. 1593, 31 March 2005, para. 1.
151. Ibid., Preamble.
152. See Rome Statute of the International Criminal Court, Rome, 17 July 1998, Arts 5-8.
153. Currently, the ICC cannot exercise jurisdiction over aggression since the relevant treaty provision has not, at least not yet, been adopted. See ibid., Art. 5(2).
154. See UN doc. S/PV.5158, 31 March 2005, 3. Tanzania also referred to genocide in the discussions, but it did so only generally, and not particularly as relates to Darfur as such. See ibid., 9.
155. See J. Peter Pham, 'Sudan: The Beginning of the End', World Defense Review, 15 July 2008. Available at .
156. Public Redacted Version of the Prosecutor's Application, op. cit., fn. 40, p. 96.
157. See ibid., 96-108.
158. For Moreno-Ocampo's statement along the same lines before the Security Council on 3 December 2008, see UN doc. S/PV.6028, 3 December 2008, pp. 2-5
159. ibid., 20-21.
160. Public Redacted Version of the Prosecutor's Application, op. cit., fn. 40, 108.
161. See ibid., 20-21.
162. See Report of the International Commission of Inquiry on Violations of International Humanitarian Law and Human Rights Law in Darfur, op. cit., fn. 36, p. 141.
163. See Hong, loc. cit., fn. 40, p. 262.
164. Corfu Channel (United Kingdom v Albania), ICJ (1949) 4, 18.
165. In the event, in fact, the ICC's Pre-Trial Chamber I rejected Moreno-Ocampo's Application under Article 58 as relates to the counts of genocide. It did, however, issue an arrest warrant for Al Bashir for war crimes and crimes against humanity. See Warrant of Arrest Issued by Pre-Trial Chamber I, ICC-02/05-01/09, 4 March 2009.
166. UN doc. S/PV.5158, op. cit., fn. 111, p. 12.
167. Richard Falk, 'Forty Years After 242: A "Canonical" Text in Disrepute?', (2007) 37(1) Journal of Palestine Studies 39, 44.
168. UN Charter, Art. 25. As Dinstein bluntly puts it as regards those who would take upon themselves a seemingly ex cathedra authority to determine when states can refuse to comply with Security Council Resolutions along the lines of Lauterpacht's more radical jus cogens proposition, 'who are these observers and why should their interpretation [...] be taken seriously?' Dinstein, op. cit., fn. 93, p. 426.
169. UN doc. S/PV.1348, 6 June 1967, p. 16.
170. Ibid.