International law or a self-help phenomenon: the case of Darfur

By Chuei D. Mareng

March 15, 2007 — Many ordinary citizens around the world have been wondering about the
application of international law when it comes to defining genocide and action
of the United Nations Member States in responding to such incidents. I am
assuming that a question that everyone should be asking about international law
is this: How could this be a law when it is not enforced even though its core
roles had been violated? It seems that international law is concept of
self-help because many atrocities that demonstrated the violation of
international law had occurred, but the UN Member States had taken no actions.
For example, Darfur’s genocide has happened, but many of the UN Member States
were not cleared about this concern. Even though genocide has been properly
defined by the convention, the UN Member States are always slowed in responding
to such confrontations.

Apparently, the actions of the UN Member States had led its other member states
to be skeptical when an action is presented by a state which is assumed to be
having a variety of interests. While under the international law, genocide has
been viewed as the mass killing of a group of people as defined by Article 2 of
the Convention on the Prevention and Punishment of the Crime of Genocide as any
of the following acts committed to: (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.

From this definition however, it clears that genocide is a crime against
humanity and war crime, but many of the UN Member States are still reluctance
in responding to what is going on in Darfur. I do believe that recognition of
genocide as a crime against humanity and war crime is a collective
responsibility and not just one state responsibility to call an action taken by
other state against its people a genocide. A good example of this would be a
testimony given before the Senate Foreign Relations Committee, on September 9,
2004 when a former United States Secretary of State, Colin Powell who called
atrocity in Darfur a genocide. But other permanent member of the UN Security
Council has not followed the same suit. Thus, the US seems to have retreat
their recognition of the atrocity as a genocide. This silence by other
permanent member of the UN Security Council and regular members indicated that
the definition of genocide under international law is unless because no binding
mechanism. In a moral sense however, it is wrong to standby when innocent people
are being killed by those who had power. The fundamental principle of
international law was to protect people regardless of their colour or status,
but the current actions by the UN Member States seem to be having bias and this
is why I do wonder about the application of international law.

International law was supposed to protect those who are being prosecuted by
their government based on the above definition. But there has been a mixed
reaction from the UN Member States when it comes to a mass killing. Of course,
there are many mass killing that had taken places in this world and not all of
them could be called genocide. It is very clear from the convention definitions
that genocide is called when the action is based on how the killing took place.
Given the situation in Darfur, there is no doubt that the Sudanese Government
has committed genocide. But the UN Member States are not responding as they
should. It is obvious that there are no specific surveillances on the ground
that could give the UN Member States a better understanding of the problem in
the region in which they could enforce the rule of law. In this respect, the
Government of Sudan seems to be acting above the law, because there are no
specific consequences spelled out by the UN Member States regarding one state
that had violated the law. Barbara Harff noted that: “It looks as if the state
is above the law since no effective international enforcement agency exists for
the purpose of punishing states that violate the human rights of their
citizens.” This indicates that the UN Member States are the ignorance of
international law in which atrocities against the spirit of international peace
and security are committed by states. It is obvious that one person killed more
than fifty people would not be viewed as a genocide, because the scope it
happened differs from the above definition. In Darfur however, that killing of
innocent civilians is a genocide because Sudanese Government has armed the Arab
militants to wipeout other ethnic groups in the area. Why that killing could not
be called a genocide by the UN Member States?

Regardless of the term definition that clearly mentioned that genocide involves
the act of intentionally killing of population for the political purposes or
anything related. But the crisis in Darfur has been given a blind eye by the UN
Member States. This encourages me to argue that the failure by the UN to
prevent, or to stop the genocide in Darfur was a failure of the UN system as a
whole. Having said that however, this does not necessarily mean the failure of
international law, but it means the failure of the UN Member States in
responding to what has faced them. This indicates that a persistent lack of
political will by the UN Member States to act decisively, or to act with enough
assertiveness is a lack of commitment. This is due to the fact that the UN
Member States have always thought first about their national interests before
considering international law. We have seen many cases in which strong states
had bypassed the UN Security Council when there is a vital interest to that
state, but other states often do nothing. This is why I view international law
as a self-help phenomenon because there are no consequences when states breach
international law. I do see that a law without a big stick is not a law.
Because we human beings belief in consequences, but not an abstract phenomenal
likes international law. How could international law be a law of nations when
its primary roles are violated, but no action taken by the UN Member States?

The author is a Sudanese currently living in Canada. He can be reached at [email protected]