Sudan and the ICC
By Derek Kirbow
July 6, 2009 — On 24 October 1945 the United Nations (U.N.) was born. Since that time there have been many efforts to make the U.N. an institution that accomplishes the missions it has been tasked with. The various departments of the U.N. are asked to help the malnourished, provide health assistance, and bring suffering to an end. These and dozens of other issues have been charged to the organization and have seen countless amounts of money and enormous hours of effort put to use in trying to solve these problems. Nevertheless, the last sixty years have not seen an end to any of these problems. Though many reasons for this have been forwarded over the years, one of the largest complaints has been that the U.N. fails to either take action when events most demand it or is unable to enforce the decisions and actions that it wants to undertake. This is the current situation in Sudan.
To understand why the U.N. has not had success in Sudan there needs to be an understanding of the situation it faces. While the U.N. has a department, commission, or agency to cover almost every conceivable problem states face, the situation in Sudan has called for attention to be focused on the fighting that has occurred across the state, especially in the Darfur region. This is certainly not the only problem facing the Sudanese but it nevertheless one of the issues that has exacerbated other problems within the state and has garnered the bulk of international attention. The reasons the fighting has occurred are not as relevant in this article as the fighting itself. That is to say that the deaths of thousands of Sudanese are more important than the reasons behind the killing. With this concept on the table it is important to understand that without getting to the root cause of the problem there will be the possibility, and perhaps probability, that bloodshed will resume, but these are concerns that can be dealt with once the various parties have stopped fighting.
There is, of course, the argument that until these issues are resolved there will continue to be fighting, but this need not be the case. In many conflicts around the world there has been general disagreement as the core issues spurring the fighting in one place or another, but this has not been a reason to call a cease fire. This has been true whether it is state on state fighting or conflicts involving paramilitary groups such as the Irish Republican Army. It is possible, therefore, to have the needed break in fighting and give the different sides the ability to lay out the problems and grievances they each have in order to end future conflict. It is with this basic understanding that the U.N. then must be examined as to its role.
As it stands with the U.N. there are several areas that need to be given attention. First is the general concept of conflict within the borders of Sudan. When there is interstate conflict the United Nations is to use the Security Council to try and end the conflict. The solutions that are most often employed are diplomatic negotiations and pressures, sanctions, and armed intervention in that order. The diplomatic tact is the first avenue taken as it is the easiest and carries the least risk. One or more countries often step in as mediators and talks are often held at Third-Party locations. When or if this fails to stop the conflict the application of sanctions are often employed. These sanctions are more effective than mere discussions as they bar the import and/or export of certain products. The hope here is that stress upon the government will force their hand. If this fails then armed intervention can be ordered.
Some detractors might suggest that this may be the role of the U.N. but that it would be better to use the African Union (A.U.) in this case. If the United Nations is to be a viable international organization with reach across the globe then the argument is one of preference if anything. For instance, one might suggest that the U.N. has a role to play equally as convincing as one might suggest the African Union has a role to play. They may work in concert with one another with the A.U. providing the troops needed to carry out the U.N. mission. To say that one or the other group has no role in the conflict is argumentative at best and may be considered pedantic. These are both seminal organizations in their own right and have a place in the conflict. To obfuscate the issue by claiming jurisdiction, cultural empathy, or some other reasoning for keeping the U.N. out is not in the best interest of those dying on the ground and will exacerbate the situation as there will further disunity in the international community. The two organizations must work one with the other.
Whether the U.N. takes a leading role with the help of the A.U. or not there are actions that must be taken. The first and most important of these actions is to stop the current fighting. As stated above, the move to end fighting in Sudan falls under the Security Council’s purview. Diplomatic negotiation is the best means of ending the conflict. It is low risk, offers quick cessation of fighting, and is not invasive. This is, therefore, the methods taken by U.N. members. The 2005 Nairobi Comprehensive Peace Agreement and the formation of the United Nations Mission in Sudan (UNMIS) are examples of this. While several agreements have been signed and agreed upon over the years, diplomacy has yet to see an end to the conflict. This does not mean that the U.N. has stopped trying the solve the conflict in this manner, but there have been attempts to try other avenues as well.
Sanctions, being the second step in the Security Council’s arsenal, were put in place as early as 2004. With UNSCR 1591 in 2005 there were a total of three major sanctions on Sudan: an arms embargo, travel ban, and asset freeze. These measures were meant to slow the spread of funds and weapons to those involved in fighting but they have not had the intended effect. Sanctions have typically had a spotty history of success and it may well be that Sudan is another example where sanctions will not work. The inability of diplomacy and sanctions to stop the fighting has not meant that the two approaches have been abandoned, but there are other measures that begin to come into play when they are not working as hoped. This is where armed intervention can take place.
It must be remembered that the U.N. does not have a formal army and depends on the member states to donate troops when actions call for it. These troops are to be peace keepers after hostilities have stopped. To end the hostilities there would need to be a consortium of troops from states lent to the U.N. for a specific mission. This is the type of operation the U.N. authorized in the wake of the Iraqi invasion of Kuwait in 1990. A similar directive could be issued by the Security Council to end hostilities in Sudan. There have been two major moves in this direction thus far. The first was a move by the African Union to send upwards of 7,000 troops from 2004 until 2007 into the Darfur region. Security Council resolution 1564 authorized this force and called for close monitoring of the situation to the UNSC. The second force was the UNAMID group of 26,000 authorized troops to move into the area. Under UNSCR 1769 the force was tasked with using force to protect civilians. Neither of these forces was given the directive to hunt down those responsible or to conduct offensive operations. As such, those responsible for the killings are still at large.
The question of what should be done at this point begins to loom large. While opinions might come from many different quarters, the most important question may be what the duty of the Security Council is at this point. If they are mandated to stop the conflict and have tried diplomacy, sanctions, and a show of force without great effect then there must be a new strategy employed. This is where the International Criminal Court (ICC) comes into play. The ICC has been signed onto by many African states though Sudan is not one of them. As a member of the U.N. Sudan falls into a category that is difficult to calculate. They are to follow directives of the Security Council but having not signed onto the ICC they can claim there is no jurisdiction within Sudan. Where does the truth lie?
The Security Council has an obligation to stop the violence in Sudan. Whether they should have this mandate or not is irrelevant in this paper. The reality is that it currently does hold this responsibility and as such it must do what it needs to to accomplish its duty. Failing in the three previous methods, the UNSC has decided to try and determine if the government of Sudan itself is complicit in the killings. Security Council resolution 1593 referred the matter to the ICC and an investigation was undertaken. The ICC’s findings show that the government was indeed complicit and took the next step of issuing the arrest warrant for the Sudanese president that is now so hotly debated. With this information in hand the Security Council is left with three important choices.
First, the Security Council can suspend the warrant. This action can be renewed indefinitely. The Council is unlikely to do this as they are the ones that sent the request to the ICC in the first place. To get a warrant from the request that was made and then determine to suspend it would erode the legitimacy of the ICC, put major questions of integrity to the Council members, and would do nothing proactive in the way of stopping the Sudanese violence. Second, the Council can choose to pass a resolution that would force the president’s arrest, especially if an armed intervention is sent to arrest the president. This is also unlikely as the UNAMID force consists of many African states that would likely be unwilling to carry out the orders. This would not only hurt the ICC but the UNSC as well. The 1593 resolution specifies that the government of Sudan would cooperate with the ICC and the prosecutor, but it is evident this will not occur. The third option is to ignore all of the problems with the ICC and send the UNAMID troops on the offensive. This could help quell the violence and bring about the completion of the mandate the UNSC has in Sudan. It is also unlikely to occur as there are many states with troops in the UNAMID mix that would be unwilling to send them on offensive maneuvers. Besides this there would need to be a further Security Council resolution giving UNAMID that charge and it would most likely be vetoed by China or Russia.
There is no winning answer for the Security Council at this juncture. It has failed to stop the fighting with diplomatic measures, the imposition of sanctions, or the placement of peace keepers. It has been granted a warrant for the arrest of the Sudanese president that cannot be served, and it is unable or unwilling to put forces on offensive operations within Sudan. With no options left it will continue to do what it has been tasked to do but will find little success. The diplomatic overtures will continue, the sanctions will not be lifted and the peace keepers will remain in place. All the while the ICC’s warrant will remain in effect but will not be served to the president. As everyone sits and waits to see what will happen next there will be more killing in the land. The sad reality of the Security Council’s inability to take measures that will stop the violence will become more apparent as time goes on. Both the United Nations and the African Union will have missed an opportunity to not only bring legitimacy to their organization but also in protecting and securing the millions of citizens that wonder who will come to their rescue.
Derek Kirbow is a faculty member at Indiana Wesleyan University in the United States and is completing his Ph. D. in International Development at the University of Southern Mississippi. He can be reached at [email protected]