Intervention under international law in the context of the humanitarian crisis in Darfur: Twail perspective

Posted on 8 May, 2023 by Taha khan

Intervention Under International Law in the Context of the Humanitarian Crisis in Darfur: TWAIL PERSPECTIVE

Abstract

In its essence, coercive interference on humanitarian grounds when it is carried out to defend some “essential human rights” across state borders without the consent of the state whose territory the force is used in order to prevent or end pervasive and serious violations of the  human rights of people who are not its own citizen is called Humanitarian Intervention. Determining whether military intervention on humanitarian grounds is justified raises a myriad of challenges. Concerns arise when threshold requirements have to be determined. For instance, How many horrifying or egregious breaches of human rights must occur before there is a case for armed intervention? Just war theory is another element that needs to be considered. Although a lot of these threshold conditions for justifying humanitarian intervention have been considered but no detailed study which takes into account TWAIL perspectives on humanitarian intervention has been done especially in the context of the conflict and resulting Genocide in Darfur.

Therefore, This paper would undertake a detailed analysis of the existing literature attempts to consider whether Humanitarian intervention in Darfur was/is justified especially within the context of Third world approaches to international law. It would also offer insights into TWAIL perspectives of various judgements delivered by the ICC in the context of gross violations of human rights in Darfur. Moreover, it would suggest some reforms that should be taken and will also discuss some recent reforms that have already been taken in this regard.

1.

Introduction

One of the core principles of international law, the principle of non-intervention, is firmly rooted in state practise and customary international law and is enshrined in the United Nations Charter.[1]Protecting human rights is now both a domestic and international problem, as many commentators have noted.[2][3] In fact, one of the goals of the United Nations is to support and promote respect for human rights.[4]Academic and governmental debates have been driven by the worry that governments will use a humanitarian exemption to legitimise military aggression primarily against third world countries such as those observed in Iraq and elsewhere.[5]Wherein, many scholars have pointed out that western nations indulge in armed aggression against third world states for ulterior motives and then justify it on Humanitarian grounds.[6]The United Nations Charter and customary international law both contain restrictions on the use of force.[7]The UN Charter contains, among other things a prohibition of the threat or use of force, under Article 2(4).[8]The United Nations Charter's Article 2(4) forbids the use of force under international law, however, Article 51 allows for the use of force as in self-defense. [9]

There are basically two exceptions in the U.N. Charter to the prohibition on the use of force,  enumerated below:

1. States may use force when so authorized by the U.N. Security Council pursuant to its powers under Chapter VII of the Charter.[10]
2. Self defence[11][12]

Although under certain circumstances even if a state isn’t authorized by the UN Security Council to use force it still uses such force, it does not necessarily mean that such force used is illegitimate. Such use of force by some scholars has been termed as “Illegal but legitimate” force. This will be discussed in much detail in the proceeding sections. In light of this, this research paper is structured in a way that meticulously examines the crucial topics in a sequential and logical manner. Initially this paper begins by defining Humanitarian Intervention, first in the Historical Context and then it proceeds to lay out the modern definition of Humanitarian Intervention. Thereafter, in the section proceeding that it would go on to provide an overview of the conflict in Darfur. In addition to that, section number four would both enumerate and explain in much detail the various legal nuances and perspectives involved in the conflict including various judgements delivered on the subject. Thereafter, in the penultimate section this paper would analyse the entire conflict and the legalities involved in the light of TWAIL. Lastly, this paper will end with some suggestions and other concluding remarks.

2.

Humanitarian Intervention

Historical Context

There are two separate contexts in which the phrase "humanitarian intervention is used, namely:

1. Traditionally: It was primarily employed in the past when a State was rescuing its citizens abroad when the territorial State was unable or unwilling to do so.[13]
2. Contemporarily: It refers to the use of force by a third state or states to protect citizens from the actions or inaction of their own government.

Traditional context(i.e. point number 1.) is more relevant while discussing the historical context of the emergence of Humanitarian Intervention in Public International Law.” When studying the history of the emergence of the concept of Humanitarian Intervention, we conventionally are made to look to the early modern era, wherein the "common interests of "Christendom", when brave Crusading knights and soldiers stopped "savage" and "barbarous" acts like those carried out by the Ottoman Empire in places like Greece and elsewhere.[14]Moreover, Hugo Grotius who is considered as the father of International law also discussed Armed Intervention in his 1646 work, The Law of War and Peace.[15]Since World War II, states are not allowed to threaten or use force unless they are acting in self-defence or with the permission of the Security Council. The right to life and widespread violations of that right have received an excessive amount of attention from traditional historians and philosophers such as John Stuart Mill.[16]They understand the phrase "saving strangers" to mean rescuing someone from a physical threat or death rather than some sort of abstract danger. Moreover, to them it meant, not just any human rights violation, but abuses that are so extreme and heinous that they require their own categorization, met the criteria for humanitarian intervention.[17]The concept of "just war," which had been discussed frequently during earlier eras, had nearly vanished from the writings on international relations during the century before to the WW1. But since the war's end, writers from the legal field have resurrected the topic. The Just War Tradition, too, recognizes Humanitarian Intervention as a just cause for the use of force.[18]

Modern definition and Laws governing Humanitarian Intervention

The UNSC was no longer split by Cold War rivalries, and as a result, human rights principles gained more legitimacy in the 1990s. During the Cold War, humanitarian action was not permitted. Thereafter, debates on Humanitarian Intervention began to emerge in the 1990s. According to ICRC’s report on its stance on Humanitarian Intervention, “humanitarian "intervention" is an inconsistency from the perspective of humanitarian law because the term "humanitarian" should only be used to describe actions taken to lessen the suffering of the subject. However, the term "humanitarian intervention" relates to military intervention, which more often than not is done for ulterior motives.”[19]Chapter VII of the United Nations Charter enables the Security Council in the event of any threat to the peace, breach of the peace, or act of aggression, to take measures to maintain or restore international peace and security. These measures may include the use of armed force, if necessary. The United Nations Charter has an issue with humanitarian intervention because it was written to govern interstate relations. Serious humanitarian issues within a state or the international reaction to such issues are not really addressed.[20] Due to the principle of sovereign equality established by post-World War II international law, it is usually seen as illegal to submit a sovereign state to outside interference.

The International Court of Justice determined in Nicaragua v. United States[21]that custom does not permit Unilateral Humanitarian Interventions as a matter of customary international law. Wherein the Court concluded “the argument derived from the preservation of human rights in Nicaragua cannot afford a legal justification for the conduct of the United States." Moreover, two High level reports by the United nations advocate for preserving the Security Council's exclusive legal authority over the use of force for humanitarian purposes.

The idea that state practise cannot supersede treaty and customary law, both of which forbid the use of force except in self-defence, is generally accepted, despite the fact that humanitarian intervention occurs in state practise and despite the fact that state practise is recognised as a source of law under Article 38 (1) (a) of the Statute of the ICJ.[22]Legal voids now exist as a result of the glaring lack of legally "binding" documentation guiding humanitarian action. Much of which is the cause of nuances which will be discussed in much detail in the proceeding sections.

The relative importance accorded to sovereignty, self-determination, and the prohibition of the use of force on the one hand, and concepts of universal human rights on the other, is at the heart of the dispute regarding the validity of humanitarian intervention. Depending on whether they prioritise natural law or positive law and provide a permissive or restricted account of humanitarian action, there are four main viewpoints which have hereby been enumerated:

1. “Communitarianism
2. Legal-Positivist: Restrictionists
3. Legal-Positivist: Counter-Restrictionists
4. Liberal Cosmopolitanism”

The next section will delve into the relation and conflict of Humanitarian Intervention and Sovereignty with a special focus on third world countries.

Humanitarian Intervention and Conflict with Sovereignty

In international law, the idea of national sovereignty is well-established. National sovereignty and non-intervention were inserted into Article 2 of the United Nations Charter after WW2. Article 2(1) declares that the foundation of the United Nations is "the sovereign equality of all of its Members."[23]The standards for how individual Member countries and the United Nations as a whole are to understand the ideas of sovereignty and non-intervention under international law are laid forth in paragraphs 4 and 7 of Article 2. The fundamental point of contention about humanitarian intervention is how it connects to or affects state sovereignty. Traditional interpretations of sovereignty have excluded meddling in domestic matters, barring international responses to atrocities like the one’s in Kosovo or the Iraqi government's alleged “gassing of the Kurdish people”.[24]Humanitarian intervention is crucial and necessary, but if it is not controlled or limited, it may infringe on state sovereignty. The African Union Charter and the Peace and Security Council of the African Union concur with the UN Charter on non-intervention but also advocate intervention when necessary in their acts and protocols, respectively.  In the context of the Darfur conflict it was argued that since Sudan is not a signatory to the Rome Statute and has not given its agreement to be bound by it, that the ICC's assertion of jurisdiction violates Sudan's sovereignty.

Precedents of Humanitarian Intervention

Several states or groups of states have used force without prior UN Security Council approval, at least in part in reaction to alleged severe abuses of fundamental human rights.

A panel of experts concluded that the intervention in Kosovo was "illegal but legitimate," meaning that even while it did not adhere to the legal norms of international society, it was "sanctioned by its compelling moral goal."[25]More recently, the UN involvement in Somalia has been cited as an example of humanitarian intervention. This intervention was authorised in part by the Security Council under Chapter VII (Article number 42) of the Charter. United States of America led 2003 invasion of Iraq has also been justified as Humanitarian Intervention.

Following the 800,000 people who were subjected to genocide in Rwanda, calls had been raised for ‘never again’. Many Jurisprudential questions had arisen as a result of this.

Many academics have argued that it is okay to violate the law if the consequences are less detrimental than they would have been if the law had been followed strictly. This is a key jurisprudential principle while decide whether to intervene on humanitarian ground in cases such as Darfur.

The UN's biggest task in the post-Cold War era has been the worldwide endeavour to bring peace back to the former Yugoslavia. The decision of NATO nations to intervene in Kosovo in 1999 has been the subject of intense discussion. The main point of contention is whether NATO functioned with the approval of the Security Council.[26]

3.

DARFUR CONFLICT

Sudan has been officially divided into two regions since at least the colonial era namely the North and the South.[27]During the colonial era, the French authorities referred to the mostly Arab North as "useful land," where most resources were available in contrast to the Barabaric-Black-South. The country's African or Arab identity has long been a source of debate, particularly during the conflict that followed 1983.[28]Thereafter in 2011, South Sudan became a sovereign nation.[29]With the longest duration in Africa, the wars in Sudan cost two million lives and uprooted an additional 4 million people.  “The systematic murder of ethnic Darfuri people that has taken place throughout the continuing conflict in Western Sudan is known as the Darfur genocide.” As a result of the genocide being carried out against the Fur, Masalit, and Zaghawa tribes, the International Criminal Court has brought numerous indictments for crimes against humanity, rape, forced displacement, and torture. The legitimacy and ramifications of a military intervention for humanitarian reasons in the Darfur Conflict/Genocide will be examined in much detail in this research paper.Darfur was never a clear national security concern for European nations. Interest of foreign nations especially those involving the erstwhile colonial powers of France and the UK in Chad and Sudan, respectively—can be accounted for by the flow of refugees to neighbouring nations that might potentially lead to interstate war.

Present situation in Sudan
Since the beginning of 2003, the Sudanese government has been using its proxy Janjaweed militias to fight the rebels ethnic tribes in Darfur. When the Sudanese government realised the size of the revolt surpassed its military capabilities, it started arming neighbourhood militias. These militias, subsequently known as the Janjaweed, not only fought the rebels but also attacked civilians. Due to the outsourcing of counterinsurgency to local militias, Darfur became a "ethics free zone" where the government of Sudan "told the soldiers and militiamen to do what they could get away with horrific atrocities they committed." Despite the widespread violations of human rights that occurred in Darfur, the international community took a long time to intervene in the conflict.  Eventually, the UNSC established a Commission of Inquiry through UNSC Resolution 1564[30]in response to the widespread violations of humanitarian law committed in Darfur and characterised to as “ ethnic cleansing” by several foreign UN officials. The government coordinated airstrikes and coordinated ground actions to aid in the ensuing ethnic cleansing campaign. The majority of the recruits for the two main rebel organisations, the Sudan Liberation Army  and the Justice and Equality Movement , are from the Fur, Massalit, and Zaghawa.[31]The Security Council convened a historic meeting in Nairobi, Kenya, in 2004, where it unanimously adopted Resolution 1574[32], reiterating the UN's preparedness to support IGAD's leadership to launch a mission to support peace as soon as the Sudanese government and SPLA/M .[33]Although, The concept of foreign involvement was rejected on October 17, 2004, during a conference with the leaders of Libya, Sudan, and three other African Nations. The Security Council enacted Resolution 1590[34]to establish a 10,000-strong United Nations Mission in Sudan, after concluding that the situation in Sudan poses a threat to global peace and security. The political struggles in these nations and president al-hostility Bashir's to foreign intervention have had an impact on the overall UN response to Darfur, despite the fact that China and the US did not vote in favour of Security Council Resolution 1593, which referred Darfur to the ICC.

Moreover, Population displacement incidents during the Darfur conflict have been enormous.[35]Those who cross borders in search of safety in neighbouring nations are considered externally displaced people and are typically referred to as refugees. In addition to this the people  displaced within their own nations are known by the acronym IDP. In his 2005 report on UN reform, In Larger Freedom, UN Secretary-general Kofi Annan called attention to "the growing problem of internally displaced persons". IDPs lack a well-established system of international protection or support because they do not cross international boundaries. [36]

In my opinioncrimes have been perpetrated in Darfur while the rest of the world has sadly stood by and done nothing. After the Holocaust, the international community made promises that they would never allow something like that to occur again. However, despite that 0.2 million–0.4 million deaths and an estimated 2.5 million people remain displaced, such promises have repeatedly shown to be empty.

Stance of the United States of America

Prior to 2011, the Republic of South Sudan, which later seceded from southern Sudan, received the majority of US aid for the Sudan.[37]Prominent Democrats also called on the United States to use military force to end the mass killings in Darfur, Sudan.[38]The supporters of such interventions typically argue for their position by citing American moral obligations. On September 9, 2004, Colin Powell, who was the US Secretary of State at the time, told the US Senate that “Darfur was experiencing genocide”[39]and accused both the Sudanese government and the Janjaweed militias for it. The United States once more pressed for tougher action against the Sudanese government during late 2004 i.e. during the deliberation of Resolution 1564.  The United States then chose to abstain from voting on Resolution 1593[40], which referred the Darfur situation to the International Criminal Court. Political differences between the US and the ICC would have undermined efforts to defend human rights in general and the legitimacy of the ICC in particular if the US had rejected Resolution 1593.

4.

Legal Issues Involved

Grounds for Humanitarian Intervention in Darfur

It is generally acknowledged that Chapter VII of the UN Charter gives the Security Council the legal authority to approve humanitarian action. Additionally, there is some agreement among states that in exceptional circumstances, there is a moral obligation to act without first seeking council approval.[41]   

Two issues, though, are still in dispute: First, when the Security Council is shut down by veto, who has the power to approve humanitarian intervention? Second, what type of humanitarian emergency should prompt potential armed intervention? The phrase "crimes against humanity" itself seems to imply behaviours that are wrong regardless of a country's legal system. According to this interpretation, intervention could be justified under Chapter VII of the UN Charter, which gives the Security Council permission to use armed force among other tools to "keep or restore international peace and security."

The essential framework to determine whether the states' choice to interfere was more influenced by states' own domestic interests or humanitarian objectives is provided by two opposing theories, humanitarian imperialism and the responsibility to protect. There has been a drive at the UN to "legalise humanitarian action as a worldwide obligation to protect" because of the indignation over the horrific destruction in Darfur. This will be discussed in much detail in the proceeding sections.

In addition to this the ‘the International Committee of the Red Cross’does not dictate how the infractions should be stopped, including whether or not to use force. The ICRC does not take a position on the legality of actions taken in response to violations of humanitarian or human rights legislation.[42] However, genocidal or mass atrocities have been the driving force for appeals for humanitarian interventions in Yugoslavia, Rwanda, and particularly the Darfur region. Genocide has always been recognised as a legal justification for armed humanitarian intervention.[43]

GENOCIDE IN DARFUR

Genocide has become the most widely recognised standard for humanitarian action since at least World War II.  On whether the atrocities taking place in Darfur are best classified as a genocide i.e. a crime against humanity, the United States of America, the UN, the AU, HRW and Amnesty International, disagree.  Although all genocides are crimes against humanity, yet not all crimes against humanity do not have the same symbolic meaning as genocide. According to Article II of the Genocide Convention[44], “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:

1. killing members of the group,
2. causing serious bodily or mental harm to members of the group,
3. deliberately inflicting on the groups conditions of life calculated to bring about its physical destruction in whole or in part,
4. Imposing measures intended to prevent births within the group,
5. forcibly transferring children of the group to another group”

The Genocide Convention requires state parties to prevent and punish genocide "whether perpetrated in time of peace or in time of conflict" in order to provide proscriptive power to the crime of genocide.[45]

The US State Department and human rights organisations have all reached the same conclusions on the nature of the violence in the context of the ongoing conflict in Darfur. The janjaweed leaders claim that army and militia groups routinely coordinate their operations. In certain cases, government aircraft bomb target areas before militia attacks, destroying cities and villages; these tactics have been essential in this conflict.[46]

Colin Powell declared the violence conducted in Darfur to be "genocide" following a unanimous vote by the U.S. Congress.[47]Even though the International Commission of Inquiry on Darfur did not label the events in Darfur as acts of genocide, it did find that the Sudanese government and the Janjaweed were accountable for grave violations of international human rights and humanitarian law that qualify as crimes under international law.

The killing in Darfur has been labelled as a Genocide in line with Article II of the Genocide Convention according to many research scholars.[48][49]The reason why the labelling of genocide for the atrocious mass killings happening in Darfur is so important is because:

1. The atrocities in Genocide constituted genocide since they targeted an ethnic group for annihilation, were deliberate and systematic, and had state backing.
2. The use of the word ‘Genocide’ would come under  the Genocide Convention thereby initiating a rapid much needed International response.

Responsibility to Protect and Darfur

The theme of "Responsibility to protect" was highlighted in the 2005 World Summit Outcome. In line with Chapters VI and VIII of the Charter, it states that "the international community, through the United Nations, also has the obligation to use appropriate... peaceful methods, to help protect populations." The International Commission on Intervention and State Sovereignty had the most sway. The Responsibility to Protect was the title of the Commission's 2001. The notion of "humanitarian intervention," in contrast, contends that using force to achieve a humanitarian goal is permissible without the Security Council's approval. The R2P and humanitarian intervention both acknowledge that sovereignty is not unqualified. However, the R2P concept changes focus from state-centered objectives to the interests of victims by emphasising a responsibility to protect populations at risk rather than a right for states to intervene.

At the UN, there has been a drive to "legalise humanitarian intervention as a global duty to protect" in response to the anger over the horrific carnage in Darfur.  The Security Council used Responsibility to Protect in its resolutions for the first time during its discussions on Darfur.

Role of ICC

There has been a lot of debate over the impact of the ICC on efforts to prevail peace during civil wars and cases of other state endorsed atrocities[50]Scholar who propose that the Rome Statute, the treaty that created the ICC in 2002, is a crucial tool for holding those accountable for war crimes have argued that states that have adopted the Rome Statute are less prone to experience mass crimes. This claim is supported by numerous studies.

 ICC charges could prevent amnesty or other peace deals if individuals charged could be forced to stand trial for any prior violations of human rights. The ICC cannot replace peacekeeping operations and civilian protection because it only offers ex-post judicial tools.[51]

While the International Criminal Court may in theory present itself as an organisation that functions independently, but any party whose members are charged by the International Criminal Court are likely to view the ICC as representing a specific agenda of the First world Nations-specifically those aligned with the United States of America. These countries collectively make up the international community, and its peacekeeping forces and humanitarian aid workers are stationed all over the world.[52]In the present case(i.e. the Darfur conflict), the ICC passed a judgment indicting president Omar Al-Bashir for war crimes. This judgement according to AU was passed in alignment with the agenda of the first world nations in mind. This will be discussed in much detail in the next section.

Indictment of president omar al-bashir

For committing Crimes against humanity, and genocide related to Darfur in 2009, Omar al-Bashir was the first head of state in office to be charged by the ICC in early 2009.[53]This is the first time the ICC has brought allegations of genocide against a Head of State who is still in office. The ICC asked Sudan to detain and hand over President Al Bashir on March 5, 2009. The International Criminal Court asked member states to arrest and hand over President Al Bashir the following day in accordance with Article 89(1) of the Rome Statute.[54] In response to this, the African Union decided that its member nations would not assist the ICC in executing the arrest order issued against Al Bashir.[55]In addition to this, the issue of the head of state immunity concept also has been discussed in much detail in the meeting conducted by AU, i.e. serving heads of state are entitled to immunity for all acts performed while in office, whether carried out in their official or private capacities. However, many scholars have pointed out that such an immunity is not valid when an arrest warrant is issued by an International Court such as the ICC.

5.

TWAIL AND HUMANITARIAN INTERVENTION IN DARFUR

As has been argued throughout the article that the very emergence of Humanitarian intervention has been defined by the West and that it has profoundly influenced the guidelines for legal intervention, particularly that of non-Western governments.

One of the major concerns when allowing an exception to the “prohibition of both actual use of force and threat to use force”is that it basically allows preauthorization of UHI.The fear that states would start conflicts for ulterior motives using humanitarianism as a justification is possibly "the most compelling" and undoubtedly "the most common" argument against legalisation of humanitarian intervention. Several states or groups of states have used force without prior UN Security Council approval, at least in part in reaction to alleged severe abuses of fundamental human rights. The fundamental worry regarding the price nations must pay for the dilution of the concept of sovereignty in order to further humanitarian goals, and how much of this is acceptable given the goals of such involvement. Concerns about the third world are significantly more important than those of the affluent countries in this perspective.[56]Third world countries are worried about the growing trend of humanitarian intervention and the rising international activism that may endanger their status as a sovereign nation. Many scholars also believe that the recent Security Council and North Atlantic Treaty Organization moves to launch an international intervention represent a return to the "standard of civilization" yardstick that was once employed to support colonial domination. Such interventions have become extremely dubious as a result of the Permanent Five's assumption of the authority to decide whether situations call for intervention and its subcontracting of interventionist endeavours to coalitions of the "willing and the competent." Examples cited here is the intervention to create a safe haven for Kurds in Northern Iraq.[57]Similarly, in the case of Kosovo. It was believed that the dominant international coalition not only prevented humanitarian action when it did not serve its interests but also supported it when it did. The North Atlantic nations were perceived as actively intervening in Kosovo against the wishes of the international community. Moreover as has been discussed in the preceding section, the opposing stance taken by the African Union regarding the indictment of President Omar al Bashir regarding worries over the fact that the ICC arrest warrant may be an example of "double standards" and a "misuse of indictments against African leaders."[58]Moreover, there is also the underlying argument that the ICC should not have jurisdiction over African leaders since it is a western organisation and that the arrest order smells of imperialist hubris.  Countries such as the United States of America justify their invasion of Afghanistan and Iraq on the Humanitarian gro