UN resolutions provide an opportunity to build H.R. and end impunity in Sudan
AMNESTY INTERNATIONAL
– AI Index: AFR 54/037/2005 (Public)
– News Service No: 085
– 8 April 2005
It took more than two months for the United Nations (UN) Security Council to effectively react to the signing of the Comprehensive Peace Agreement, ending two decades of war between North and South Sudan, and to the recommendations of the report of the International Commission of Inquiry into the crimes committed in Darfur, western Sudan. During the last week of March three separate resolutions were passed by the UN Security Council: resolution 1590, establishing the United Nations Mission in Sudan on 24 March; resolution 1591, strengthening the arms embargo on Sudan and imposing sanctions on individual Sudanese, on 29 March; and resolution 1593, referring suspected perpetrators of war crimes and crimes against humanity in Darfur to the Prosecutor of the International Criminal Court (ICC), on 31 March 2005.
The long negotiations, accompanied by pressure from non-governmental organisations (NGOs), helped to strengthen the resolutions, in particular the originally weak human rights provisions. Amnesty International sent an open letter to the Security Council on 21 February 2005 (AI Index AFR/024/2005) and made specific recommendations on the establishment of the United Nations Mission in Sudan in Sudan: Amnesty International’s recommendations for a UN peace support mission (AI index AFR 54//2005, February 2005); on imposing an arms embargo in Sudan: Arming the perpetrators of grave abuses in Darfur (AI index AFR 54//2005, 18 November 2004); and on ending impunity in Sudan: Who will answer for the crimes? (AI index AFR 54//2005, 20 January 2005). They provide an opportunity to strengthen human rights promotion and protection as well as to end impunity in Sudan. It is now important to ensure that the positive provisions of these resolutions are fully implemented.
Resolution 1590 establishes the United Nations Mission in Sudan (UNMIS), with up to 10,000 military personnel, up to 715 civilian police personnel, and an “appropriate civilian component”. Its mandate includes monitoring and investigating violations of the ceasefire agreement; assisting the parties to restructure the police service “consistent with democratic policing”; assisting the parties in promoting the rule of law and protecting human rights; protecting civilians; and facilitating and coordinating the voluntary return of refugees and internally displaced persons.
Specifically, operative paragraph 4(a)(viii) of resolution 1590 states that UNMIS should:
“assist the parties to the Comprehensive Peace Agreement in promoting the rule of law, including an independent judiciary, and the protection of human rights of all people of Sudan through a comprehensive and coordinated strategy with the aim of combating impunity and contributing to long-term peace and stability and to assist the parties to the Comprehensive Peace Agreement to develop and consolidate the national legal framework;”
The resolution specifies that activities to promote the rule of law, restructure the police, and protect human rights are to assist “the parties to the Comprehensive Peace Agreement” — that is, in both north and south Sudan. In order to fulfil these tasks, the resolution calls for “an adequate human rights presence, capacity, and expertise within UNMIS to carry out human rights promotion, civilian protection, and monitoring activities”. In addition, the Security Council underscored the “immediate need to rapidly increase the number of human rights monitors in Darfur”, augmenting their numbers and accelerating their deployment on the ground. Amnesty International hopes that UNMIS will implement effectively its human rights protection and monitoring mandate throughout the Sudan, not only in the south, but also throughout the northern Sudan, including Darfur, the marginalised areas of Blue Nile, Nuba Mountains and Abyei, the rest of Kordofan, the eastern Sudan, and Khartoum.
The UN should ensure that the human rights component of UNMIS will have the necessary personnel and resources and will be deployed swiftly to carry out its mandate. The component should also ensure that the rights of children and women are effectively addressed. It should be able to document and publicly report on the human rights situation in all areas of the country, including by addressing both thematic issues pertaining to human rights as well as individual cases of alleged human rights abuses. It should also contribute to the human rights training of all personnel of the mission. and cooperate with efforts to bring to justice those responsible for crimes under international law anywhere in Sudan.
Injustice and discrimination, which have fuelled conflicts in the south, continue in all parts of Sudan. Human rights violations must therefore be addressed throughout the Sudan for peace to be durable and sustainable. Long-term incommunicado detention continues and facilitates torture, and the presence of human rights monitors can help halt and prevent these and other human rights violations. UN human rights monitors should be granted full and unimpeded access to all those detained throughout the Sudan.
Amnesty International welcomes the resolution’s focus on the need for a gender perspective in UNMIS, on the role of Sudanese women in reconciliation and peace building and on addressing women and children’s specific needs in the process of disarmament, demobilisation and reintegration. The resolution also reaffirms the “zero-tolerance” policy regarding sexual exploitation and abuse by peacekeepers. Amnesty International expects that UNMIS, in accordance with Security Council resolution 1325(2000) and the Secretary-General’s report on Sudan of 31 January 2005 (S/2005/57), implements a plan of action to guide the process of gender mainstreaming in all aspects of its work, and that the mission’s gender component facilitates capacity-building support for both uniformed and civilian elements in the mission on gender mainstreaming strategies. In order to undertake these activities, the UN should ensure that the necessary number of gender advisers and child protection advisers are deployed without delay in Sudan.
Acting under the binding provisions of Chapter VII of the UN Charter, resolution 1590 also authorizes UNMIS “to take any necessary action, in the areas of deployment of its forces and as it deems within its capabilities, … to protect civilians under imminent threat of physical violence”. UNMIS should effectively implement the mandate given to it by the Security Council based on clear rules of engagement that are strictly consistent with UN guidelines for law enforcement operations and with international humanitarian law. The protection of those in detention should be part of its mandate.
The Secretary-General’s report on Sudan (S/2005/57, paragraphs 75 and 76) had foreseen the development of a Sudan-wide protection strategy and work plan focussed on the protection of returning populations, host communities, those wishing to remain in situations of displacement, civilian victims of armed conflict, women, children and vulnerable groups. Amnesty International hopes that the new UN mission in Sudan will soon develop and implement such a strategy. This would include paying particular attention to the protection of civilian population from gender-based violence and trafficking. In order to implement this protection mandate, the UN should promptly deploy the full UNMIS authorized personnel and give the mission adequate logistical support to enable it to deploy swiftly throughout the country.
The resolution also requests that “UNMIS closely and continuously liaise and coordinate at all levels with the African Union Mission in Sudan (AMIS) with a view towards expeditiously reinforcing the effort to foster peace in Darfur, especially with regard to the Abuja peace process and the African Union Mission in Sudan”. The UN Security Council should now play close attention to the recent African Union/ (AU)/UN assessment mission in Darfur; ensure that UNMIS is able to support the African Union force in fulfilling its mandate to protect civilians in Darfur; and also provide the necessary political support to the African Union force to act in such situations.
One of the tasks of UNMIS described in resolution 1590 is:
“to facilitate and coordinate, within its capabilities and in its areas of deployment, the voluntary return of refugees and internally displaced persons, and humanitarian assistance, inter alia, by helping to establish the necessary security conditions;”
and the resolution stresses the need to monitor the security of refugees and internally displaced and to ensure “the full, safe and unhindered access of relief personnel to all those in need and delivery of humanitarian assistance”, especially to refugees and displaced persons. At the moment those refugees and displaced persons who have returned to the southern Sudan have mostly done so spontaneously, left to struggle on their own through the difficulty of the journey, mines, and lack of security and access to food, health and education services upon return. Sometimes, when they reach home they find that others have settled on their lands. Amnesty International is concerned that current conditions in Sudan are not conducive for the promotion of voluntary return. Amnesty International believes that the UN peacekeeping presence in the country must now urgently establish a secure environment in which refugees and internally displaced persons can return home in safety and with dignity. UNMIS should undertake recovery, return and reintegration tasks in a coordinated manner, in which the Office of the United Nations High Commissioner for Refugees should continue to play, in cooperation with other agencies, funds and programs, a central role in facilitating the voluntary return and monitoring the safety of those refugees and internally displaced persons who spontaneously choose to return. The absorption capacity of returnees’ host communities and the fragile security situation on the ground must always be taken into account.
Resolution 1591 considerably strengthens the scope and monitoring mechanism for the UN arms embargo originally set out in resolution 1556 of July 2004 (and which applied only to “all non-governmental entities or individuals, including the Janjaweed, operating in the states of North Darfur, South Darfur and West Darfur”). The resolution demands that the government of Sudan immediately cease conducting offensive military flights in or over the Darfur region, and extends the arms embargo to the government. Items covered by the embargo include “arms and related materiel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned” as well as “technical training or assistance related to the provision, manufacture, maintenance or use of the items listed”.
The resolution also imposes targeted sanctions, including freezing of assets and travel bans, against designated individuals who “impede the peace process, constitute a threat to stability in Darfur and the region, commit violations of international humanitarian or human rights law or other atrocities …are responsible for offensive military overflights”, or violate the provisions of Security Council resolution 1556 (2004) which called for the Janjawid militias to be brought to justice and imposed an arms embargo on non-governmental entities in Darfur. These sanctions would enter into force 30 days from the date of the resolution, “unless the Security Council determines before then that the parties to the conflict in Darfur have complied with all the commitments and demands referred to” in paragraphs 1 and 6 of this resolution.
Amnesty International welcomes the Security Council decision to strengthen the scope and monitoring mechanism for the UN arms embargo so that it now applies to arms and related transfers to all the belligerent parties to the conflict in Darfur, including the Sudan government armed forces.
The resolution requests the Secretary-General, in consultation with the Security Council Committee established under resolution 1591, to appoint a four-member Panel of Experts to be based in Addis Ababa to assist in monitoring the implementation of the measures imposed by this resolution and to recommend the Security Council measures that it may want to consider. The panel, once appointed, should assess reports from field monitors and travel regularly to Sudan to monitor the arms embargo and hostile military flights. The Panel is mandated to coordinate its activities with ongoing operations of the African Union Mission in Sudan. Our organization hopes that there will be soon formal arrangements with this mission to make the monitoring of the arms embargo more effective. In addition, the Security Council should consider giving UNMIS the mandate to actively cooperate with the UN Panel of Experts in the monitoring of the extended arms embargo, much in the way the United Nations peacekeeping mission in the Democratic Republic of the Congo is mandated to do under SC resolution 1565(2004). Amnesty International calls on the Panel of Experts to carry out international investigations and regularly monitor the main ports of entry to Sudan to help ensure the embargo on Darfur is respected.
The Security Council Committee under Resolution 1591 will be required to assess reports of the Panel of Experts, designate individuals breaching the resolution, consider requests for military equipment from the Government of Sudan and report to the Security Council every 90 days.
The strengthened arms embargo will enable the Committee of the Security Council to exempt military and related supplies provided in support of the Comprehensive Peace Agreement and arms supplies to Darfur approved by the Committee of the Security Council. There is, of course, a danger that this provision will provide the government of Sudan with a means to partially or wholly bypass the arms embargo, so the Committee will need to assess each request on a case-by-case basis to ensure that any transfer to the government does not contribute directly or indirectly to violations of human rights or international humanitarian law in Darfur. Supplies of non-lethal military equipment, technical training and protective clothing intended solely for humanitarian, human rights and peace monitoring are exempt from the arms embargo.
The Security Council should now ensure that the Security Council Committee and the Panel of Experts are set up and functioning without delay and that sufficient time and resources are devoted to their work so that the arms embargo can be properly enforced.
Resolution 1593 at last fulfils the recommendation of the UN Commission of Inquiry established by the Security Council in resolution 1564 that the situation in Darfur should be referred to the Prosecutor of the International Criminal Court (ICC). This referral is a first step in putting an end to impunity for the grave crimes which have occurred in Darfur and elsewhere in Sudan.
The ICC will have the ability to investigate and prosecute only a handful of those suspected of these crimes, and its work must be supplemented by the development, in close consultation with civil society, of a long-term, “comprehensive and coordinated strategy with the aim of combating impunity” called for in resolution 1590 (paragraph 4(a)viii). Amnesty International welcomes this recommendation. Such a strategy must be designed to eventually bring all those responsible for crimes under international law to justice, to establish the truth and provide full reparations to the victims and their families. Such a strategy must be effectively supported by the UN and AU, Sudan and all other states.
The UN Security Council should ensure that UN funding is provided for the investigation and prosecution of these crimes by the ICC, and that all states cooperate with the ICC. Amnesty International is concerned that resolution 1593 did not make provisions to that effect.
The “restructuring of the police service” and promoting an “independent judiciary”, mentioned in resolution 1590 are vital elements in ensuring the rule of law and an end to impunity. Amnesty International again stresses the importance of an integrated and coordinated approach to these aspects of the UN mission’s mandate.
The International Commission of Inquiry on Darfur also recommended the establishment of a compensation commission for the victims in Darfur, including a special chamber for victims of rape. Amnesty International urges the Council to address this recommendation without delay and urges governments and individuals to make voluntary contributions to the new ICC Trust Fund for Victims which has been established for the benefit of victims of crimes under the ICC’s jurisdiction.
Regrettably, the resolution includes a provision, inserted at the insistence of the United States of America, seeking to prevent the ICC and the courts of any other state from investigating and prosecuting nationals from states outside Sudan that are not party to the Rome Statute serving in a UN or AU operation anywhere in Sudan for genocide, crimes against humanity and war crimes. The above provision seeks to create double standards of justice, and violates the UN Charter, the Rome Statute and other international law. The ICC will itself decide whether it has jurisdiction.
Amnesty International welcomes the invitation to the ICC and the AU to discuss practical arrangements that will facilitate the work of the prosecutor, including the possibility of conducting proceedings in the region, which would contribute to regional efforts against impunity. In addition to proceedings at The Hague, regional proceedings should take place in Sudan as soon as conditions permit the ICC to be able to conduct them there and to ensure safety to victims, witnesses and all others connected with the proceedings.
The need to institute mechanisms for peace and reconciliation, stressed in resolution 1593, is very important. However, any peace and reconciliation commission should not obstruct or limit other criminal investigations or civil proceedings, or other processes to provide reparations.
Conclusion
The test of the resolutions is not the present but the future: the implementation of the rule of law and human rights protection and monitoring provisions in resolution 1590, the enforcement of the arms embargo in resolution 1591, and exemplary and fair justice — which ensures also the protection of witnesses and the victims — in the cases to be referred to the Prosecutor of the ICC under resolution 1593 and in complementary measures to end impunity in Sudan.
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