General
Right at this moment, as you read this article, millions of Sudanese citizens, the people of Darfur, are driven out of their homes and land, hundreds of thousands murdered, and countless number of women raped. All these atrocities and crimes were committed by the Janjaweed, Beja marauders, misidentified as Arabs whereas the admixture is slight, armed and assisted by the Sudanese Government. The Government of Sudan itself was destroying scores of villages, murdering uncountable number of people using its army and advanced weapon systems of helicopters et cetera. It does not take great insight to realize that the Government of Sudan has committed genocide and allowed criminals to commit genocide, thus has violated the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). And every and all Members of the United Nations have an obligation to protect the People of Darfur, and an obligation to sanction or punish the Government of Sudan.

I have divided the discussion into two parts. First I have a brief discussion setting a framework showing that genocide is a violation of rights that are considered to be peremptory norms of international law: jus cogens. Second, I have shown that the violation of the those rights because of genocide, a particularly identified crime against all civilization spelled out in the Genocide Convention, imposes an obligation on the Members of the United Nations both as a unit and individually to punish those individuals and governments that violated the Genocide Convention, and that obligation is obligation erga omnes. 

If the World community fails to protect the People of Darfur it means it too has violated the Genocide Convention by its complicity [See Genocide Convention, Article III(e)]. I emphasize that complicity in not observing the Convention to prevent genocide and punish those who commit genocide is considered also a crime under the Genocide Convention.

II. Human Rights [Jus Cogens] Principles* 

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. 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 very fundamental such as that their violation by anyone would trigger Chapter VII, Article 39-50 of the Charter provisions of the United Nations. 

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 where ethnically distinct people were targeted and no less than one hundred thousand people were murdered or died of forced deprivation of food and shelter. The Government of Sudan was directly involved in bombing scores of villages and provided logistic, weapon even uniform to camouflaged the Janjaweed it surrogate to wipe out entire group of ethnically distinct people of Darfur causing death and destruction, and further forcing almost two million people to relocate to refugee camps and out in the desert.

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. The missing link on the part of the United Nations 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. 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). 

Contrary to the cautionary often opportunist 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 from 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, but individual States are obligated by the Convention to take steps to stop such genocide. Sudan has ratified the Genocide Convention.


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� in its Preamble, and further defined or identified what constitutes �genocide� in Article II:
�Article II: In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: 
       a) Killing members of the group;
       b) Causing serious bodily or mental harm to members of the group;
       c) Deliberately inflicting on the group conditions of life calculated to bring about its physical

           destruction in whole or in part;
       d) Imposing measures intended to prevent births within the group;
        e) Forcibly transferring children of the group to another group.�

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. Brownlie, an international law jurist, 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, Brownlie further pointed out 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 legal scholars who do 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 capacity of 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 protection whatsoever in any international law principles customary or otherwise from being punished for violating the Genocide Convention.

III. Obligation Erga Omnes

This concept of �obligation erga omnes� in general 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. 

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 declare such a situation and pass 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 that 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 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 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 going to war against Saddam Hussein without a Security Council Resolution to use force under the United Nations Charter, Chapter VII. Any effort to connect the two is fallacious and meant to divert the issue from violation of the Genocide Convention to the issue of forceful interference in general. The authority and obligation under the Genocide Convention is a specific pointed obligation on States.

Conclusion
In less than twenty years, the World has witnessed three humongous violations of the Genocide Convention where millions of people including babies and children were murdered, tens of thousands of women raped, entire group of people forced out of their homes and land just because of their religion and ethnic difference. This is happening after the World had said never again after the Holocaust where no less than six million Jews were murdered, gassed, and starved and tortured to death by the German Nazi Government of Adolf Hitler. The genocide committed in Rwanda, Sierra Leone, Bosnia and Herzegovina, and now in Darfur/Sudan while the World was looking on is a real tragedy and shame on the Nations of the World. The World should have acted swiftly to save the lives of millions of the people from those areas. 

People from international organizations including the United Nations have been reporting about the deteriorating situation in Sudan, and quite a few had stated with supporting pictures and personal accounts of victims about the atrocities committed against the people of Darfur for almost two years. The Arab World with its League should have been at the head of everyone to reign in one of its members from committing such atrocities on fellow Moslems. It did not even acknowledge if there was a problem in the Sudan let alone call to stop the atrocities. The African Union, the organ of the Continent where such genocide and atrocities are taking place against a distinct Black African ethnic people did nothing, except in the last couple of months, after having been gored repeatedly by the United Nations Secretary General, is now conducting some kind of talk between the Sudan Government and representatives of the People of Darfur. It is an unbelievably inept act by such a body that should have mounted massive force to stop the genocide a year ago. 

There is no doubt in my mind that there will continue to be the murdering, raping, and destruction of the Darfur people, and the world will not be doing much about it. The only credible power with moral commitment at this time is the United States, with its supporters such as Great Britain, Australia et cetera, that can take steps by creating a no-fly-zone banning all flight over the Darfur region by the Government of Sudan by declaring the Darfur area as a protected region. Furthermore, since Sudan is a failed state, and in order to bring about lasting peace in the region, it should be divided up into three new states. The United States government ought to take the necessary step to insure in permanent arrangement that the Darfur People and the southern Christians are protected from the raving attack of the Sudan Government Army. 

Sudan had never seen a day of peace since its creation by the British from the day of its independence to date. We must understand that prior to the British interference there were distinct and independent proto-states in the areas now under dispute where millions have died in the last thirty years of conflict. The Government of the Sudan is a very dangerous government, a real threat to the nations in the area. With its oil wealth will entertain ambitions that will affect the stability and survival of Ethiopia. No amount of appeasement will stop its ambition to control the Lake Tana and Blue Nile River and Basin. Egypt and Sudan have perceived Ethiopia as a mortal threat to their existence. Thus Ethiopians must find a strong association with anyone that would censor at its inception the ambitious drive of the Government of Sudan. Eritrea�s past or future effort to work through the Beja Congress will not achieve the balancing of power to check the Government of Sudan because since independence the Government of Sudan has been a Beja based power structure. Eritrea itself is at a great risk of being swallowed up by Sudan. 

With all kinds of dangerous outcomes as real possibilities, Ethiopians cannot afford to sit around hoping for some miracle to avert the danger from a historic enemy that had gained tremendous power and wealth in recent years. It has now connected with a powerful Country with veto power, which means it can do most anything and get away with it. For Ethiopia, we have no choice but to strengthen Gojjam, Wollo, Gondar/Begemder/Semien, and BenShangul areas with massive investment and militia organizations. We need to support fully the Government of the United States in its effort to stop the genocide in Darfur. As I have indicated above, the United States needs no approval or a declaration of genocide in the Sudan from the United Nations Security Council, and can act unilaterally under the Genocide Convention to prevent further genocide on the People of Darfur by the Government of Sudan and/or its surrogate the Janjawee!


Tecola W. Hagos
September 2004

Footnotes
1. Elias, T.O. The Modern Law of Treaties, Leiden: A.W.Sigthoff, 1974, 177. In Osca Chinn Case (1934)P.C.I.J., Series A/B, No. 63, pp134-36, 146-50; the Court introduced the concept of international public policy.

2. Sztucki, Jerzy, Jus Cogens the Vienna Convention of the Law of Treaties: A Critical Appraisal, Wien New York: Springer-Verlog, 1974, 8.(footnote not included)

3. Brownlie, Principles of Public International Law, 1975, 515. McNair, The Law of Treaties, Oxford UK: Oxford university Press, 1961, 214.

4. McNair, Lord, The Law of Treaties, Oxford: Oxford University Press, 1961, 214.

5.The International Law Commission in 1949 as its first order of business made recommendations in order to study three international problems dealing with genocide, racism, and the laws of treaties.

6. Brownlie. 516-517.

7. See Heinze, Eric and Malgosia Fitzmaurice, Landmark Cases in International Law, London: Kluwer Law International Ltd., 1998.

8.Admission of a State to Membership in the United Nations, (Charter, Art. 4) Advisory Opinion: I.C.J. Reports 1948, p.68-69.

9. See De Hoogh, Andre, Obligations Erga Omnes and International Crimes: A theoretical Inquiry into the Implementation and Enforcement of the International Responsibility of States, The Hague, London, Boston: Kluwer Law International, 1996; Ragazzi, Maurizio, The Concept of International Obligations Erga Omnes, Oxford: Oxford University Press, 2000.

10. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970) I.C.J. Reports (1970-71) para 133.

11. Barcelona Traction, Light and Power Company, Limited, ICJ Reports (1970) 32, at paras. 33-34.

12. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970) I.C.J. Reports (1970-71) para 133.

13. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) ICJ Report (1996), para 35; Bekker, �International Decisions,� 92 AJIL (1998), 508. 

14. De Hoogh, Andre, Obligations Erga Omnes and International Crimes: A theoretical Inquiry into the Implementation and Enforcement of the International Responsibility of States, The Hague, London, Boston: Kluwer Law International, 1996, 53.

15.Id., 55.

16. South West Africa (Ethiopia v. South Africa; Liberia v. South Africa) I.C.J. Reports 1960-1966 - Judgment of 21 December 1962, Second Phase - Judgment of 18 July 1966. 
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgments, I.C.J. Reports 1986.
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*The legal analysis on �jus cogens� and �obligation erga omnes� was first presented in a speech given by the author on 9 February 2002 in Toronto, Canada.