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President
George W. Bush and Darfur
By
Tecola W. Hagos
October
10, 2006
PART
TWO
III.
Darfur: Political and Human Rights
A.
The Principle of Jus Cogens *
[*This
section and the following sections have been rewritten and very much
expanded based on an article posted in this website on 20 September 2004,
�Darfur Genocide: The World Must Punish Sudan.� I have retained the
citations from that previous article in this article as well. TH]
The
history of the people of Darfur is extremely complex. Darfur was an
independent state run as a Sultanate since the 14th Century
until it was incorporated in 1916 by Britain as part of its
protectorate/colony that included Egypt and the newly constructed British
Sudan and run by �The Sudan Political Service� of the
Anglo-Egyptian Condominium. When Egypt extricated itself from being the
protectorate of Britain in 1923, there was no decision as to the status of
Sudan. Sudan stayed under the governorship of the Governor General, who
answers to the British Government until its independence on 1st
January 1956.
The
irony of history is that the Mahdi movement that fed the political
aspiration of the many ethnic groups in the Nile Valley and Kordofan was
launched from the West (Darfur) area with the overwhelming support of
individuals from Darfur to such a degree that the successor to the Mahdi,
Khalifa Abdullahi, was from Darfur Ta�aisha tribe. The fact of the
dominance of those Westerners of the movement towards a unitary national
identity seems to have played out in a negative reaction against Darfur
once the British starting in
1898 until 1956, for over a period of fifty years dismantled the power
structure built around the Mahdi movement, and replaced it with the Nile
Valley Bejas, �Arabs,� and other tribes whom the British favored with
urbanization, education, wealth, and rudiment of modern state structure
centered around Khartoum. For over fifty years the people of Darfur were
pushed out, marginalized, exploited and brutally oppressed by the
Government of the Sudan dominated by Arabs and Nile Valley personalities.
The same is true of the South Sudan people who suffered even worse
discrimination and oppression because of their Christian faith.
Nevertheless, the people of Darfur have maintained their individual
identity to date even though pushed aside and marginalized first by the
British and later by the successor governments of Sudan since
independence.
The
Mahdi, Mohammed Ahmed, who
was from Dongola, was a full blooded Black African. He launched the famous
religious movement in 1881 that displaced the Ottoman Turk controlled
Egyptian rule of the Nile Valley, Kordofan and the many and diverse
independently run Sultanates (Darfur, Keyra, Sennar et cetera). His
movement is the very core of nationalism
that metamorphosized into the future independent Islamic country of Sudan.
The Mahdi died in 1885 after five months of total control of what is to be
known later as �the Sudan.� Sadly, before fully structuring an
independent �Sudanese� nation, the Mahdi�s successor Khalifa
Abdullahi, who was from Darfur, but from a different ethnic group, was
crushed in 1898 by an English colonial army commanded by Herbert Kitchener
who was appointed six years earlier as Commander in Chief of the Egyptian
army. Francis Reginald
Wingate was his director of military intelligence;
later, Wingate was appointed as the first Governor General of Sudan, and
Kitchener was sent to South Africa to fight both Zulus and Boers.
Khalifa
Abdullahi is the same Mahdist leader who attacked Gondar in 1887 in an
attempt to control the source of the Blue Nile (Lake Tana) whose army was
later stopped in its track at Metama by Emperor Yohannes IV, where the
great Ethiopian Emperor lost his life in defense of Ethiopia
in 1889. The name Sudan was derived in mid 19th Century
from the writings of medieval Arab geographers whereby they referred to
all the land south of Egypt/Sahara as �bilad
as-sudan� meaning the �land of the Blacks.� The reference made
by the medieval Arab geographers includes all the land south of the Sahara
from the West-coast of Africa to the highlands of Ethiopia in the East.
For example, the present day Mali used to be called French
Soudan. There never been a unitary state of such expanse since the
destruction of Nubia/Kushitic Empire centered from Meroe, in the Fourth
Century around AD 350.
I
do not have any ax to grind against the people of Sudan as a whole. If at
all I should welcome the disaster visited upon the people of Darfur and
side with the government leaders of Sudan, for the fact is that it was the
men of Darfur under the Khalifa Abdullahi who attacked Ethiopia in 1887
and later in 1889 and killed the greatest Emperor of Ethiopia, Yohannes
IV, whom I admire greatly. The people in power in Sudan since 1956, from
the day of independence to date, were counterweights to the Mahdi
movement, thus by extension friends of Ethiopia. It is not only
geopolitics that motivated me write this long article, but also a common
sense of humanity. I believe that history can only be an example to
consult and consider and not be used as some form of bondage. There is
also far more important principle at work here that overshadows personal
interest or group interest�universal ethical principles that bind us all
as human beings that we must not seek vengeance if there is a possibility
of renewed friendship. A great example in healing the wounds of war is the
relationship that exists now after a horrific war between Japan and the
United States.
The People
of Darfur have fundamental human rights guaranteed by the Charter of the
United Nations, the Universal Declaration of Human Rights, and the
Genocide Convention, as well as the standards of all civilized nations.
Sudan has ratified the Genocide Convention on October 13, 2003. Those
protected human rights constitute jus
cogens principle, a �peremptory norm of general international
law.� The General Assembly as a whole, Members of the United Nations
individually, the Security Council, and the Human Rights Commission each
and all have legal and moral duties to the people of Darfur�obligation
erga Omnes. Those rights of the Darfur people are fundamental rights
that constitute peremptory norms of international law and custom, such
that their violation by any government or group among other consequences
would trigger Chapter VII, Article 39-50 of the Charter provisions of the
United Nations. However, in case of genocide, I contend there is an
imposition of obligation erga omnes
on individual states as well.
No one nation can blatantly violate the fundamental rights of People by
committing or creating an environment for the commitment of genocide and
sneer at the world community with arrogance as the Government of Sudan has
done and face no consequences. The Government of Sudan has participated in
one of the most horrible genocide in the history of the African Continent,
where ethnically distinct people were targeted and no less than four
hundred thousand people were murdered or died of forced deprivation of
food and shelter. The Government of Sudan was directly involved in the
bombing of hundreds of villages; it has provided logistic, weapon, even
uniform to camouflage the Janjaweed, its surrogate murder squads, to wipe
out entire groups of ethnically distinct people of Darfur causing death
and destruction, and further forcing almost two and a half million people
to relocate to refugee camps and out in the desert to die of diseases and
starvation.
Secretary of State Colin Powell of the United States in his testimony
before Congress on 9 September 2004 has declared the situation in the
Sudan as constituting of genocide. There is no turning back now from
taking the next legally required steps by the Genocide Convention and
customary international Law once a state has identified another state for
commiting genocide. The missing link on the part of the United Nations as
a whole was and still is a clear declaration by the Security Council of
the United Nations that the Sudanese Government has committed or allowed
the commitment of genocide on the People of Darfur. As pointed out in Part
One above, the New Secretary of State Condoleezza Rice has asserted on
several occasion that the Government of Sudan is responsible for the
genocide in Darfur.
There has
been a series of resolutions (three) issued by the Security Council on the
genocide in Darfur, but it has as yet use the term �genocide.� On 18
September 2004 the Security Council adopted a Resolution drafted by the
United States that threatened possible sanction against Sudan and
establishing a UN Commission of inquiry to investigate atrocities in
Darfur and provide for an increased Military presence by African Nations.
The reason why China threatened to exercise its Veto power if the
draft-resolution was not amended excluding direct sanction against Sudan
was for the simple reason of Sudanese oil that China was buying below
market price. The Resolution was adopted with eleven votes in support,
zero against and four abstaining i.e., China, Russia (with veto power),
Algeria, and Pakistan (last two, revolving Members of the Security
Council). There were two other Resolutions with much watered down bit on
Darfur. At any rate the report of the Commission a year later was that
Sudan did not commit genocide but �crimes against humanity.� It is
just a political spine on genocide for the crimes listed under �crimes
against humanity� are exactly the same as those crimes constituting
genocide.
Contrary to the cautionary, often opportunistic and predatory, positions
of the five Veto holders of the Security Council, under the Genocide
Convention we have new forms of direct responsibility imposed on each
Member State of the United Nations. This means where there is a violation
of such protected rights under such treaties or conventions like the
Genocide Convention there are certain consequences that flow including and
not limited to the identification of a certain government to have violated
the terms of that Convention. The world community, preferably through the
United Nations system, must take steps including but not limited to
military action against the state in violation of the Genocide Convention.
Nevertheless, the fact that collective action maybe the preferred process,
does not in itself relieve individual states from their treaty
obligations. In short, individual states are obligated by the Convention
to take steps to stop such genocide by all means including the use of
force.
The
International Court of Justice (ICJ) in its 28 May 1951 Advisory Opinion
on the status of reservations made by States in connection with their
ratifications of the Genocide Convention stated that such reservation may
be made only if �the reservation is compatible with the object and
purpose of the Convention; otherwise, that State cannot be regarded as
being a party to the Convention.� There are several steps that can be
taken by individual states in the discharge of their obligation under the
Genocide Convention before resorting to the use of force. Such member
states to the Convention could start by disconnecting any trade
relationship with the Government of Sudan; withdrawing privileges of
over-flight; withdrawing diplomatic immunities to traveling Sudanese
officials; freezing bank accounts et cetera. Such measures are simply
procedures outside of the United Nations conflict resolution mechanism
under Chapter VII of the Charter.
The United
States has placed itself in a difficult position of opposing the
International Criminal Court (ICC) on one side and claiming to stand for
international law and order and justice and human rights (freedom) on the
other side. In fact, it seems very hypocritical when the United States
government leaders assert that the Government of Sudan is responsible for
the genocide in Darfur and yet do not support the one structure that could
bring the government leaders of Sudan to account for their crimes.
The United States seems to suffer from split personality disorder,
on one hand hiding from a legacy of its own atrocities in Vietnam,
Hiroshima and Nagasaki, and a sense of justice on the other. The fact is
that it took the United States fifty years to ratify the Genocide
Convention, from the date it signed the original Document on 11 December
1948 to the date it ratified the document fifty years later on 25 November
1988! Nevertheless, the Government of the United States need not censor
itself from leading the world in the development of international law just
because it has some skeletons of misdeeds in its past closet.
In its Preamble, the Genocide Convention states that �genocide is a
crime under international law, contrary to the spirit and aims of the
United Nations and condemned by the civilized world.� Genocide is not
just a crime but a crime against the very civilization of nations.
The definition of �genocide� in Article II of the Convention is
very extensive, and most importantly does not set a threshold number of
victims. It defined and further identified what constitutes �genocide�
in Article II (a) as killing, (b) serious bodily or mental harm (c),
infliction of a condition of life calculated to bring about the physical
destruction, (d) prevent birth, or (e) transfer children by force, all
such �acts committed with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group.� The Government of Sudan
has committed all of such criminal acts, any one of which violations could
result in holding the Government of Sudan as violator of the Genocide
Convention.
The
hesitation of the Commission established by the United Nations in 2004,
and several Governments who have ratified the Convention, and a few NGOs
involved in human rights work to declare the activities of the Government
of Sudan and that of its proxy Janjaweed as being violations of the
Genocide Convention and that genocide has occured is quite shameful. It is
a puzzle to me what else can be required to constitute genocide
considering the ethnic based murder, displacement, torture, et cetera of
over two million ethnic people of Darfur, specifically identified with
ethnic characterizations of difference of language, physical feature,
tribe, et cetera used as reasons to commit crimes of genocide.
Extremely rare for international conventions and treaties, the Genocide
Convention in Article III clearly states that genocide, conspiracy to
commit genocide; direct and public incitement to commit genocide; attempt
to commit genocide; and complicity in genocide are all acts that shall be
punishable. The seriousness of the Convention against genocide leaves no
room that the right not to be subjected to such crime must be
�peremptory norm of international law and principle� (jus
cogens). The first problem is to establish whether there are in fact
peremptory norms of general international law. Some jurists consider the
concept of jus cogens as a
recent development of a version of �public Policy�[1] with
international dimension. However, �according to some authors, some
international public policy has always existed.�[2] At any rate this
issue is moot since there is a formal Convention spelling out the
punishment for the crime of genocide.
Now the problem is to determine whether there is any international law
principle or practice that may protect the Government of Sudan from being
punished for its violation of the Genocide Convention. Some international
law jurists, in discussing general principles of international law and
practices pointed out that principles of jus
cogens holds that there �are rules of customary law which cannot be
set aside by treaty or acquiescence but only by the formation of a
subsequent customary rule of contrary effect.�[3] The difficult task
faced by the Vienna Conference on the Law of Treaties, for example, was to
draft provisions that would adequately retain the principle of jus
cogens extracted from customary international law and practices. In
fact, McNair asserts that it is easier to �illustrate these rules than
to define them.�[4]
It took over twenty years for the Vienna Conference on the Law of
Treaties, with the assistance of an impressive collection of great
international jurists at its disposal, to draft acceptable provisions on
the principle of jus cogens.[5]
As indicated above, the Vienna Conference on the Law of Treaties was
instituted by the General Assembly of the United Nations. The principle of
jus cogens was first drafted by
the ILC in Article 15 and later incorporated by the Second, and Third
Rapporters as Articles 37 and 50. Finally, it was incorporated in a single
draft by the fourth Rapporteur of the Convention as Article 53 (Articles
64, and 71 are further expansion of the core principle) of the Vienna
Convention on the Law of Treaties that was adopted on 22 May 1969 by the
Vienna Conference on the Law of Treaties.
Moreover,
it is further stated that �[a]part from the law of treaties the specific
content of norms of this kind involves the irrelevance of protest,
recognition, and acquiescence: prescription cannot purge this type of
illegality...However certain position of jus
cogens are the subject of general agreement, including the rules to
the use of force by states, self-determination, and genocide.�[6] What
is pointed out here is that the principle of jus
cogens does deal exclusively with formal �treaties� but takes
within its scope both procedural and substantive international general
customary law.
Of course, there are international law scholars such as Lauterpacht (the
father), who did not accept the concept of jus
cogens in international law because it goes against long-standing and
extremely important customary international law principle dealing with the
sovereignty of states and their capacity as states to enter into
agreements and treaties without limitation.[7] But such traditional
conception of the capacity of States is based on the antiquated idea of
absolute sovereignty of states. Judge Alvarez in his advisory concurring
opinion in the Admission Case in 1948 had addressed the fluidity rather
than the rigidity of international law by his emphasis on the progressive
developmental aspect of international law and practice.[8] Thus, we need
to look into the contextual capacity of States with real limitations
imposed by numerous international treaties, conventions, resolutions et
cetera and economic as well as political interdependence of States rather
than look into the abstract traditional conception of States and their
inviolate Sovereignty. In the modern world not even the most powerful
nations could claim absolute capacity to do as they please without regard
to their international obligations. Thus the Government of Sudan has no
defense whatsoever in any international law principles customary or
otherwise from being punished for violating the Genocide Convention. Very
often I hear/read people, who should have known better, arguing that there
is no treaty or customary international law that covers a particular
situation thus the situation is open ended and free for all. This is
precisely the type of reasoning that undermines the rational capacity of
human beings to resolve problems equitably and fairly.
B. The Principle of Obligation
Erga Omnes
This concept of �obligation erga
omnes,� in general in international law and in treaty law, deals
with an obligation owed to the community of States by a State to refrain
from acting in a manner that would violet �peremptory norms of general
international law and treaties.[9] The term �erga
omnes� is Latin meaning �towards all.� It is not clear from the
literature whether the principle also includes or requires active
participation as �a duty� to enforce �peremptory norms of general
international law.� This may be so in cases of customary international
law, but not in situations where there is a convention or treaty requiring
such sanction or punishment. However, in the South Africa illegal
occupation of South-West Africa (Namibia) case, the International Court
seems to suggest the existence of such a duty.[10]
Going back to the origin or genealogy of the concept of obligation erga omnes, it is often emphasized by international law
scholars that the concept was introduced by the International Court in Barcelona
Traction case in a dictum in 1970: "[A]n essential distinction
should be drawn between the obligations of a State towards the
international community as a whole, and those arising vis-�-vis another
State in the field of diplomatic protection. By their very nature the
former are the concern of all States. In view of the importance of the
rights involved, all States can be held to have a legal interest in their
protection; they are obligations
erga omnes.� [11]
In such instances the obligation that may be considered as obligation erga omnes may be seen as the interest of the community
of states in toto or as
individual nations in preserving the fundamental rights of human beings no
matter where they may be living at any particular moment. In a similar
reasoning, the International Court in the case involving the presence of
South Africa in Namibia, after the General Assembly has already passed a
resolution terminating the Mandate and declaring that South Africa no
longer has any right to administer the Mandate Territory, stated that any
state dealing with South Africa that may touch upon Namibia would be
acting in violation of obligation
erga omnes.[12] The recent order of the International Court in the
case of Bosnia and Herzegovina v. Yugoslavia dealing with the violation of
the Genocide Convention states that �in no case could one breach of the
Convention serve as an excuse for another�[13] seems to disapprove of a
violation of an �obligation erga omnes� even in an effort to remedy an
international wrong. In other words, in order to right a wrong States may
not commit another breach of an obligation
erga omnes category.
All the cases mentioned above involved some form of �peremptory norm of
general international law.� The question usually asked is about the
degree of overlap and distinction between jus
cogens and obligation erga omnes.
Actually, it is like comparing the two sides of the same coin. The two
concepts are best appreciated if considered as correlated. With such
working model, the problem of overlap disappears since each concept is
distinct within a single matrix. The obvious illustrative difference is
that in situations of �obligation
erga omnes� it is the action of a state that is in consideration
whether there is a violation of an international norm or obligation that
is presumed to affect the community of states. In fact one may refine this
interpretation of the concept by distinguishing further that the
�essential idea is not that the obligations are owed to all states, but
that in case of the breach of such an obligation the corresponding rights
of protection are in possession of each and every State.�[14]
As stated above the link between the principle of jus cogens and obligation erga
omnes is obvious as we consider several different cases where the
court has discussed �peremptory norms� of international law. �Thus
the prohibitions concerned are, and were, regarded as being related to the
fundamental interests in need of protection by every State.�[15]This
linkage is not a process of rendering subjective rules, but rather the
reading of objective principles of universal application from court
decisions that affect the interest of the community of States. We could be
able to draw some understanding by considering some important cases
decided by the International Court.
It is extremely time consuming and very complex processes to study the
cases that came before the International Courts. It is not an impossible
task. Moreover, to read the entire opus of the two International Courts to
examine the courts� opinions on important concepts, norms, and
principles of international law, such as principles of �jus
cogens� or �peremptory norms of international law� and �obligation
erga omnes� is necessary to understand how the many international
law principles, treaty laws, political Resolutions, and the organs of the
United Nations and regional organizations work together or make a cohesive
system.
From my observation none of the judges of both International Courts were
positivist or narrow constructionist black-ink-of-the-law types. In fact
one can discern from their opinions a wide range of interpretation of
�international law and practice� from the progressive (almost
improvisatory) opinions of Judge Alvarez to the sectarian opinions of
Judge Schwebl--the Judges of the two courts reflect mostly natural law
normative values in their opinions. And this is good. It seems to me the
world gets into a problem every time it shades the concept of natural law
and verses toward positivism. Whether it is Nazi Germany, Fascist Italy,
or Totalitarian Soviet Union, the root cause of the brutality of such
systems lies in their pretensions of adopting a positivistic approach to
law and social interactions.
There are two patterns that we observe in the judgments and advisory
opinions of the judges of the International Court: a) the innovative
interpretation by judges who are inclined towards �the progressive
development� of international law, and b) the safe and familiar
interpretation of judges who are closer or strictly observant of the
traditional interpretation of norms and principles of customary
international law. In at least two cases mentioned above, I believe there
was an overriding role played out by political outlook in the decision
making process more than the observance of norms of general international
law.[16] Overall, the judgments and advisory opinions of the International
Court including dissenting opinions of judges seem to be reflective of the
progressive development of international law rather than being reflective
of the conservative precedent-bound customary international law.
At any rate, unlike military intervention in civil war type situation to
secure peace in the world there is no requirement that the Security
Council declares such a situation and passes a resolution for the use of
force in cases of genocide. Human Rights that are violated by genocide are
protected rights that are so fundamental the violation of which affects
the world community far more directly. Thus there is no need to wait for a
lengthy debate at the Security Council where such delay would result in
the murder of millions of people during such debating period. The
violation thus inflicted is irreversible; the death and destruction, the
pain and suffering of millions of people cannot be undone, thus the
urgency for action. And the Genocide Convention is aimed in making sure
that there is no delay in the reaction of the world community. The world
community as one body or member nations individually are obligated to act
to remedy such violations. This is what the International Court of Justice
(ICJ) has identified in past cases as an obligation
erga omnes.
The United Nations Security Council is illegally delaying and interfering
in the type of procedure it is following in order to pass a declaratory
resolution on the fact of genocide in Sudan. By such a process the
Security Council is amending the clear admonishment of the Genocide
Convention that puts responsibility on each member of the United Nations
(signatories of the Convention) from acting under the Convention. For all
purposes, I hold that the Genocide Convention is not just a Treaty, but
now makes up the body of principles of customary international law where
there is no need for ratification to be bound by the principles contained
in both the substantive and procedural provisions of the Genocide
Convention.
The unilateral actions of a state in carrying out its obligation under the
Genocide Convention cannot be equated with the illegal action of the
United States and the �coalition of the willing� going to war against
Saddam Hussein without a Security Council Resolution to use force under
the United Nations Charter, Chapter VII provisions. Any effort to connect
the two situations is fallacious and is either meant to divert the issue
from violation of the Genocide Convention to the issue of forceful
interference in general or simply confuse the issue in order to delay any
action against Sudan and its government leaders. The authority and
obligation under the Genocide Convention is a specific pointed obligation
on States.
Tecola
W. Hagos
Washington
DC
Next
PART
THREE
IV.
Solutions and Conclusion
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