In December, Kurt Mills attended a United Nations Security Council meeting on the situation in the Darfur region of Sudan. In this essay, he provides an overview of the proceedings, and critiques the collective inaction which stops this ostensibly powerful international body from halting some of the world’s most damaging conflicts.
On 12 December 2017, The Prosecutor of the International Criminal Court, Fatou Bensouda, gave a briefing to the United Nations Security Council on the situation in the Darfur region of Sudan, and the ICC’s efforts to hold those most responsible for mass atrocities in Darfur to account for their crimes. It was the 26th time she, or her predecessor, Luis Moreno Ocampo, had come before the Council to update it on the situation. This one meeting serves as a microcosm of the challenges in the fight against impunity for the worst international crimes, as well as broader attempts to deal with genocide, crimes against humanity, and widespread war crimes.
Indeed, even a cursory examination of this meeting reveals a picture of dysfunction, hypocrisy, and silence in the face of widespread human rights violations which calls into question many of our attempts to push the human rights project forward at the international level.
First, some background. The conflict in Darfur in western Sudan began in 2003, and has been responsible for perhaps 300,000 – 500,000 deaths, and millions of displaced. Although many parties are at fault for the violence, the government holds primary responsibility for the situation. Leading up to the referral, the UN Security Council had focused more on the provision of humanitarian aid rather than protecting people from human rights violations – a pattern we see repeated in many other situations. Further, the Security Council and the African Union have refused to provide a sufficiently robust mandate to the peacekeeping operation in Darfur to allow it to adequately protect civilians.
The International Criminal Court (ICC) was created in 1998 at the Rome Conference. It was intended to hold to account those most responsible for atrocity crimes. It was built on the legacy of the Nuremberg war crimes trials, as well as more recent ad hoc attempts to hold war criminals to account in the Former Yugoslavia, Rwanda, and elsewhere. It applies to citizens of the 123 states which have ratified the Rome Statute of the ICC, those who commit crimes on the territory of state parties, and situations that the UN Security Council has referred to the ICC, even if the states are not party to the Rome Statute.
It is this last element which is key to the situation under scrutiny here. The Security Council, which has the primary responsibility for maintaining international peace and security, referred the ongoing conflict in Darfur in western Sudan to the ICC in 2005. This meant that all who committed crimes in Darfur would be subject to the Court’s jurisdiction, even though Sudan was not a member of the ICC. And although there is still continuing controversy over this, it meant that the ICC could issue an arrest warrant for President Omar al-Bashir of Sudan. It did so in 2009 for crimes against humanity, and again in 2010 for genocide.
The most prominent act of resistance on the part of ICC members has been refusal to arrest President Bashir when he visited their countries. This is in direct violation of their obligations under the Rome Statute.
These arrest warrants set off a chain of events which have seriously called into question the commitment of states to stop atrocities and punish those who commit them. When the Prosecutor asked the Pre-Trial Chamber to issue arrest warrants, many African states, including members of the ICC, expressed outrage that a sitting head of state was being targeted by the Court, and began what is now almost a decade of increasing resistance to the Court. The most prominent act of resistance on the part of ICC members has been refusal to arrest President Bashir when he visited their countries. This is in direct violation of their obligations under the Rome Statute, and this lack of cooperation was the focus of the Prosecutor’s remarks at the meeting in question.
THE UN SECURITY COUNCIL DISCUSSES DARFUR
The short of account of the Security Council meeting which follows reveals cowardice, duplicity, and a stunning lack of moral fibre on the part of those at the peak of global power. They had come together in an international body tasked with the most important job of ensuring international peace and security, which includes stopping the most egregious violations of human rights. As you read this, it is important to keep in mind that this meeting was not a discussion – there was no interaction between state representatives. Rather, it was a random collection of statements.
Prosecutor Bensouda began by repeating a request that the UN Security Council support the ICC and ‘enforce decisions by the Court in relation to situations that the Council has referred to the Court’, while noting that the Council had failed to act in many situations of noncompliance.
The UK was the first state to make a statement. Whilst noting that ‘the security and human rights situation remains volatile and unpredictable,’ it did nothing more than to ‘encourage our fellow Council members to consider carefully what more we as a Council can do to ensure that the Court receives the necessary support.’ That’s it. No specific proposals. No calls for sanctions on Sudan or African states for non-cooperation. Not even a call for a strongly worded letter. Nothing.
The UK didn’t even refer, as other delegations did, to a proposal made by New Zealand in 2015, for ‘a more structured approach on considering findings of non-cooperation.’ New Zealand did not call for any specific sanctions, but just asked for a mechanism to talk about the situation. The UK, a supposed leader in the global fight for human rights, failed to even assert that the Council should have a discussion about how to respond to manifest failures to protect human rights and uphold Security Council resolutions.
The UK, a supposed leader in the global fight for human rights, failed to even assert that the Council should have a discussion about how to respond to manifest failures to protect human rights and uphold Security Council resolutions.
Ethiopia criticised the Council and the ICC for ‘chasing an African Head of State in what appears to many to be a charade or the fight against impunity gone haywire.’ It called for the Council to suspend proceedings against Bashir as well as to withdraw its referral.
France at least referred to the New Zealand proposal and went a step further than the UK in reiterating its proposal that states which have failed to cooperate with the ICC ‘be invited to address the Council and that, on the basis of such an exchange, the Council then determine the next steps to be taken.’ That this was the most specific and extensive proposal made to the Council to address a human rights catastrophe which has dragged on for 15 years should give one pause.
Sweden called for a structured approach to discussing the situation and called for a meeting with the African Union to discuss the Union’s position on the matter.
Senegal, which was the first country to ratify the Rome Statute, supported the ICC and the New Zealand proposal. It noted with regret ‘the passivity of the Security Council in addressing the repeated calls of the Office of the Prosecutor… thus far the Council has not provided it with a single strategic recommendation.’ This was the greatest expression of moral outrage – yet it seems fairly tame given the situation.
Kazakhstan made no mention of the arrest warrants or lack of cooperation, and supported the African Union position on deferring the arrest warrants.
Russia scolded the Prosecutor for not more accurately reflecting what it saw as positive developments in Darfur. It reiterated the Sudanese – and African Union – view that Bashir holds immunity as head of state – a direct challenge to the anti-impunity norm underpinning the Rome Statute.
Italy noted that the Security Council’s approach did not make it ‘particularly proud’, and called for a structured mechanism to enable more in-depth discussions on the matter. It concluded by noting that ‘Repeating the same arguments every six months, unfortunately, does not advance things in any way,’ while reminding the Council the ‘victims of crimes in Darfur still need to see justice done.’
Egypt reiterated the AU position, called on the ICC to respect head of state immunity, and specifically called for no sanctions to be imposed on the ‘pretext’ of non-cooperation.
The US began its statement by noting that more than 300,000 people have been killed, 4.7 million have been affected, and 2 million people remain internally displaced. It said: ‘We must stand with the victims and suspects must be brought to justice’. Yet, all of this was done in the passive voice and it made no specific proposals. And, in what can only be described as the height of hypocrisy, it reiterated its position that it was exempt from the ICC investigation in Afghanistan, even though its citizens are clearly subject to the laws of any country in which they are present. Thus, while making vague expressions of support for the ICC investigation in Darfur, it ended up making it all about the US.
Ukraine professed support for the ICC and noted that the Council ‘is still not ready to take measures to give effect to the Court’s decisions on non-cooperation.’
Uruguay expressed ‘consternation at the lack of cooperation by States parties to the International Criminal Court.’ It noted that ‘There is a shared responsibility among the States that do not cooperate and the Council, which lacks effectiveness and action, in contravention with… the Rome Statute.’ It supported the New Zealand proposal.
Bolivia, while rhetorically supporting the ICC, was particularly vague in pointing to a way forward, referring obliquely to hypocrisy on the part of some states: ‘We insist that we cannot sustain sincere dialogue as long as there are countries that demand all the rigour of justice, but do not fulfil their own obligations.’
China made a particularly short statement, which called on the international community to ‘fully respect the leadership of the Government’. It said the judicial sovereignty of Sudan should be respected, and attention should be given to the concerns of the AU and the government of Sudan. There was no reference to atrocities committed in Darfur.
Japan noted that failure to implement Resolution 1593 undermined the credibility of the Council and passively stated that ‘Follow-up on non-compliance is seriously needed.’
Sudan, which is not a member of the Council, spoke last. It accused the ICC of going beyond all norms in a conspiracy to extend the war in Darfur and dismember the country. It referred to ‘the contradictions and indecorous utterings and phrases of a Court that was born dead’, while asserting that Sudan was protecting its people.
With that, the UN Security Council meeting ended, one hour and 50 minutes after it started. While a slight majority of states supported the ICC in its efforts to hold people accountable in Darfur, that was about it. There was no banging on the podium in moral outrage. There were no calls for sanctioning states which didn’t live up to their international legal obligations. There was not one request for a strongly worded letter. Nothing.
All we had was a suggestion that the Council find a way to talk about the situation. The 15 members of the most powerful body in the world were sitting around the table. They could have talked about how they were going to talk about the fact that multiple countries had defied the will of the Security Council, did not live up to their international legal obligations, and had let a mass murderer go free. Instead, the representative of that mass murderer was given the last word.
The 15 members of the most powerful body in the world were sitting around the table. They could have talked about how they were going to talk about the fact that multiple countries had defied the will of the Security Council, did not live up to their international legal obligations, and had let a mass murderer go free. Instead, the representative of that mass murderer was given the last word.
In many ways, this one meeting sums up the scope – and frustrations – of much research into how the international community addresses mass atrocities. International law and norms and institutions are vitally important in efforts to protect human rights. They create the ideational and institutional foundations for domestic and international efforts to protect human rights. Yet, they are flawed. The greatest laws in the world are meaningless unless there are powerful institutions to back them up. As this one meeting demonstrates, our international institutions are frequently incapable of doing so.
We blame the institutions – such as the UN – or a vague ‘international community’ for such failures, just as those who want to withdraw from the European Union blame it for so many ills. Yet, we consistently fail to recognise, as was evident on 12 December in the UN Security Council chamber, that it is states – national governments – that create and maintain the institutions we castigate. And while international institutions can sometimes be more than the sum of their parts, those parts must be willing to act constructively.
Furthermore, those parts are not abstract black boxes – what happens inside them matters. At least for democratic countries like the UK, what happens in the chambers of the Security Council is – theoretically – tied directly to the wishes of citizens. Non-rights-supporting states like Russia, China, and Ethiopia will always be there. And unless we demand that our representatives act differently, they will win with a mixture of power and passivity. We clearly have not demanded enough of our representatives.
And Darfur is just one situation – and by no means the most serious today – demanding a better response. There is Myanmar, and Syria, and Yemen, and the Democratic Republic of Congo, amongst many others. Perhaps as many as 6 million people have died as a result of a conflict – or a series of interrelated conflicts – in the DRC over 20 years, and there are 2.2 million internally displaced persons in the DRC today – this represents an increase of more than 900,000 over the 2016 figure.
The situation in Myanmar, which can most probably be referred to as ‘genocide’, has not just arisen in the last 6 months, but is a product of decades of discrimination – and inaction by the international community. And of course, both the UK and US sell weapons to the Saudi Arabian government, which is pursuing a murderous war in Yemen, responsible for many deaths, massive displacement, and famine.
As 19th century American minister Theodore Parker said: ‘the moral arc of the universe is long, but it bends towards justice.’ While activists, lawyers, and diplomats were celebrating in Conference Room 4 of UN Headquarters the addition of prohibited weapons to the Rome Statute and the activation of the crime of aggression – albeit in a circumscribed and problematic manner – on the other side of the UN building in the Security Council chamber, that bend in the moral arc was difficult to discern.
Kurt Mills is Professor of International Relations and Human Rights at the University of Dundee and Vice-Chair of the Academic Council on the United Nations System. He is the author of two books – International Responses to Mass Atrocities in Africa: Responsibility to Protect, Prosecute, and Palliateand Human Rights in the Emerging Global Order: A New Sovereignty? – and co-editor of two others – Human Rights Protection in Global Politics: Responsibilities of States and Non-State Actors and Moral Victories: The Ethics of Winning Wars. Email him sat: firstname.lastname@example.org Find him on Twitter at @ProfKurtMills
Feature image: A UN solider mans a mounted machine gun in Darfur. Image: EC/ECHO/Daniel Dickinson [CC BY-SA 2.0]