University of Nairobi

College of Education and External Studies

MASTERS IN PROJECT PLANNING AND MANAGEMENT

Conflict Analysis and Resolution
THE RESPONSIBILITY TO PROTECT

1. Introduction: The Concept of Sovereignty

 How did the concept of the nation state come about?

 Why and how does it have a responsibility towards its citizens?

Key points:

a) 1648 Peace of Westphalia (based on territorial integrity, order and

stability guaranteed by a state monopoly on the use of force1). The
basic principles of self determination, legal equality among states, non-
intervention in internal affairs of another state. In other words, a
country’s Sovereignty was to be sacrosanct.

“And to prevent for the future any Differences arising in the Politick
State, all and every one of the Electors, Princes and States of the
Roman Empire, are so establish'd and confirm'd in their antient
Rights, Prerogatives, Libertys, Privileges, free exercise of Territorial
Right, as well Ecclesiastick, as Politick Lordships, Regales, by virtue
of this present Transaction: that they never can or ought to be
molested therein by any whomsoever upon any manner of
pretence.”2
1
Marc Saxer, Security Governance in a post Sovereign World, in International Politics and
Society, Security Governance issue, 3/3008, 28.
2
Article LXIV, Treaty of Westphalia, International Relations and Security Network, 15.

1
In other words, anyone who paid loyalty to the state was in return protected
by the state.
b) 1948 UN Charter – Article 2:1 - 1. The Organization is based on the
principle of the sovereign equality of all its Members.

c) Kenyan Constitution – Chapter 1 Wako Draft - All sovereign

authority belongs to the people of Kenya and exercised only in
accordance with this Constitution.

Through their own volition, the people enter into a CONTRACT through
which they surrender some of their sovereignty to the government in
exchange for agreed services.

QUESTION 1: Use the example of post election violence. Why did the
government try to stop the violence – first with the police and then
the military?

QUESTION 2: Is sovereignty such a wonderful thing?

2. What is the Responsibility to Protect?

• An emerging legal norm

• It could be argued that the peacekeeping operations (all

generations) were an earlier form of R2P, in as much as they were
foreign interventions to breaches of and threats to international
peace and security.

• Resulted from a challenge by former SG Kofi Annan on how we are to

address gross violations of human rights

2
  war crimes – need a war, and can be committed by civilians or
military.

 crimes against humanity – can be in ‘peacetime’, committed by

civilians or the state.

• Statute of the International Criminal Court in Rome, July 1998, after ad-
hoc courts International Criminal Tribunal for the former Yugoslavia -
ICTY (1993) and International Criminal Tribunal for Rwanda - ICTR
(1994).

Article 8 of the Rome Statute:

War crimes include: rape, sexual slavery, enforced prostitution, forced
pregnancy or other forms of sexual violence; using children under the age of
15 to participate actively in hostilities.

Article 7 of the Rome Statute:

Crimes against humanity include: murder; extermination; enslavement;
deportation or forcible transfer of the population; imprisonment or other
severe deprivation of physical liberty in violation of fundamental rules of
international law; torture; rape, sexual slavery, enforced prostitution, forced
pregnancy, enforced sterilization, or any other form of sexual violence of
comparable gravity; persecution against any identifiable group or collectivity
on political, racial, national, ethnic, cultural, religious, gender or other
grounds that are universally recognized as impermissible under international
law, in connection with any act referred to in Article 7 of the Statute or any
crime within the jurisdiction of the Court; enforced disappearance of persons;
the crime of apartheid; other inhumane acts of a similar character
intentionally causing great suffering, or serious injury to body or to mental or
physical health.
Article 6: (reiterates 1948 Convention of Prevention and Punishment of the
Crime of Genocide)

3
Genocide is defined as any of the following acts committed with the intent to
destroy, in whole or in part, a national, ethnical, racial or religious group:
killing members of the group; causing serious bodily or mental harm to
members of the group; deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in whole or in part;
imposing measures intended to prevent births within the group; forcibly
transferring children of the group to another group.

• Canadian Govt formed International Commission on Intervention

and State Sovereignty (ICISS) which brought together eminent
international personalities such as Cyril Ramaphosa (South Africa),
Gareth Evans (Australia), Mohamed Sahnoun (Algeria), Michael
Ignatieff (Canada) etc, who consulted on every continent and resulted
in the 2001 Report of the ICISS on the Responsibility to Protect.

• It states that when a population is

 suffering serious harm resulting from internal war, insurgency,

repression or state failure, and

 the state is unable or unwilling to act to prevent or protect its

peoples,

the international community has a moral (note, not legal) duty to

intervene to halt or avert the atrocities.3

R2P also broadens the responsibility of the international community to

encompass

 the responsibility to prevent armed conflict,

3
International Commission on Intervention and State Sovereignty, The Responsibility to
Protect - Report of the International Commission on Intervention and State Sovereignty,
International Development Research Centre, (December 2001), XI.

4
  react to the situation in the event that prevention has failed, and
finally

 to rebuild after the conflict has subsided

• Criteria for military intervention:

 Right authority (Security Council),

 Just cause (large scale loss of life, ethnic cleansing),

 Right intention (not for resources, expansion of borders, regime

change (though some disabling is ok) coalition, if locals want it,),

 Last resort (when all else fails and violence is imminent or occurring),

 Proportional means (scale, duration, intensity)

 Reasonable prospects (of success, the principle of Do No Harm4)

• JUST CAUSE is:

1. Large scale loss of life, actual or apprehended, with genocidal intent or

not, which is the product either of deliberate state action, or state
neglect or inability to act, or a failed state situation; or

2. Large scale “ethnic cleansing,” actual or apprehended, whether carried

out by killing, forced expulsion, acts of terror or rape.

Ethnic cleansing includes the systematic killing of members of a particular

group in order to diminish or eliminate their presence in a particular area;

4
Paris Declaration on Aid Effectiveness - http://www.oecd.org/dataoecd/11/41/34428351.pdf

5
the systematic physical removal of members of a particular group from a
particular geographical area; acts of terror designed to force people to
flee; and the systematic rape for political purposes of women of a
particular group (either as another form of terrorism, or as a means of
changing the ethnic composition of that group.

PRINCIPLES OF MILITARY INTERVENTION:

a. Clear mandate and resources (unlike peacekeeping)

b. Unity of command and clear and unequivocal communications (unlike
Somalia in ‘92)
c. Acceptance of limitations, incrementalism and gradualism in the
application of force, the objective being
 protection of a population, and not

 defeat of a state.
d. Rules of engagement
 are precise;
 reflect the principle of proportionality; and
 involve total adherence to international humanitarian law.
e. Acceptance that force protection cannot become the principal
objective. (MANDATE)
f. Maximum possible coordination with humanitarian organizations.

2.1 What IS protection?

a) Over the past decade, the UN has been talking about and moving
toward a ‘culture of protection’ and covers

 rule of law,

6
  respect for refugees,

 sustainable livelihoods,

 access to justice, etc.

b) 2001 - In his second report to the Security Council on the Protection of

Civilians in Armed Conflict former UN Secretary General Kofi Annan
defines protection as a wide range of activities that “may include

 the delivery of humanitarian assistance;

 the monitoring and recording of violations of international

humanitarian and human rights law, and

 reporting these violations to those responsible and other

decision makers;

 institution-building, governance and development

programmes; and, ultimately, the deployment of
peacekeeping troops.”5

c) In 1999, the ICRC brought together in Geneva a wide group of

humanitarian and human rights agencies that arrived at a definition
of protection by consensus. They concluded that protection is

 ‘all activities aimed at ensuring full respect for the rights

of the individual in accordance with the letter and the

5
United Nations, Report of the Secretary-General to the Security Council on the protection
of civilians in armed conflict, 30 March 2001 (available at
http://domino.un.org/UNISPAl.NSF/eed216406b50bf6485256ce10072f637/e8b5234d0339a2c
385256c8700549672!OpenDocument, downloaded 29 November 2007)

7
 spirit of the relevant bodies of law, i.e. human rights law,
international humanitarian law and refugee law.”

 These activities include the preservation of a person’s

dignity and integrity, as well as ensuring their physical
safety and providing for their material needs.6

They then continue to state that “human rights and humanitarian

organisations must conduct these activities in an impartial manner
and not on the basis of race, national or ethnic origin, language or
gender.”7

2.2 Why is R2P important?

Due to the changing nature of war:

 War is increasingly within a country’s borders not across them

 ICRC notes that during the 1990s, the civilian population represented an
estimated 80 percent of all victims of armed conflicts

 We are moving towards an age of collective responsibility, culture of

protection, no more impunity (Never Again, Again though?)?

2.3 How serious is R2P?

6
Sylvie Giossi Caverzasio, Strengthening Protection in War: a Search for Professional
Standards. (Geneva: ICRC 2001) 19, quoted in Hugo Slim and Andrew Bonwick, Protection:
An ALNAP Guide for Humanitarian Agencies, Overseas Development Institute (2005), 33.
7
Ibid.

8
 It is very serious. No country is an island.

a. Basically it suspends sovereignty. Heralded as a major breakthrough in

international humanitarian law, along with the International Criminal
Court – means that all these ad-hoc courts (Yugoslavia, Rwanda, Sierra
Leone, Cambodia8 can stop).

b. R2P was subsequently mentioned in 2004, 2005, 2006, 2007, 2008.

i. The 2004 report by the UN High Level Panel on Threats, Challenges

and Change, A More Secure World: Our Shared Responsibility. The
Panel refers to a “responsibility to protect of every state when it
comes to people suffering from avoidable catastrophe.”9 The Panel
added that it “endorse(s) the emerging norm that there is a
collective international responsibility to protect, exercisable by the
Security Council authorizing military intervention as a last resort, in
the event of genocide and other large scale killing, ethnic cleansing
or serious violations of international humanitarian law which
sovereign Governments have proved powerless or unwilling to
prevent.”10

8
Though Cambodia one is different from all others as the ‘victim’ can actually come to court
and accuse the ‘perpetrator’ and ask them direct questions.
9
United Nations, UN High Level Panel on Threats, Challenges and Change, A More Secure
World: Our Shared Responsibility (2004), 65, para 201. (available at
http://www.un.org/secureworld/, downloaded 29 November 2007)
10
United Nations, UN High Level Panel on Threats, Challenges and Change, A More Secure
World: Our Shared Responsibility (2004), 66, para 203. (available at
http://www.un.org/secureworld/, downloaded 29 November 2007)

9
 ii. Secretary General, Kofi Annan, in his 2005 report, In Larger
Freedom: Towards Development, Security and Human Rights for All.
He wrote: “I believe that we must embrace the responsibility to
protect, and, when necessary, we must act on it. This
responsibility lies, first and foremost, with each individual
State, whose primary raison d'être and duty is to protect its
population. But if national authorities are unable or
unwilling to protect their citizens, then the responsibility
shifts to the international community to use diplomatic,
humanitarian and other methods to help protect the human rights
and well-being of civilian populations. When such methods appear
insufficient, the Security Council may out of necessity decide to
take action under the Charter of the United Nations, including
enforcement action, if so required.”11

iii. R2P was universally endorsed at the October 2005 World Summit,
the Outcome Document (of all General Assembly members) stating
that “the international community, through the United
Nations, also has the responsibility to use appropriate
diplomatic, humanitarian and other peaceful means, in
accordance with Chapters VI and VIII of the Charter, to help
to protect populations from genocide, war crimes, ethnic
cleansing and crimes against humanity.”12

11
United Nations, In Larger Freedom: Towards Development, Security and Human Rights for
All Report of the Secretary-General of the United Nations, (2005), 35, para 135. (available at
http://www.un.org/largerfreedom/, downloaded 29 November 2007)

12
United Nations General Assembly 2005 World Summit Outcome, 15 September 2005, 30,
paras. 138-139.

(available at http://www.ony.unu.edu/seminars/2007/R2P/2005%20World%20Summit
%20Outcome.pdf) (downloaded 20 June 2008)

10
 iv. 2006 U.N. Security Council Resolution 1674, whereby the Security
Council “reaffirm(ed) the provisions of paragraphs 138 and 139 of
the 2005 World Summit Outcome Document regarding the
responsibility to protect populations from genocide, war
crimes, ethnic cleansing and crimes against humanity”.

v. UN Resolution 1706 on the deployment of a peacekeeping force to

Darfur, Sudan, invoked the R2P principle for the first time.13

vi. In February 2008, Secretary General Ban Ki-moon appointed a

Special Advisor on the Responsibility to Protect at the Assistant
Secretary-General level, working very closely with Office of the
Special Advisor on the Prevention of Genocide.14

vii. At a regional level, Article 4h of the African Union Constitutive

Act of 2002, states one of the principles of the Union as being
“(t)he right to intervene in a Member State pursuant to a
decision of the Assembly in respect of grave circumstances,
namely war crimes, genocide and crimes against
humanity.”15

13
International Crisis Group, Responsibility to Protect website section
http://www.crisisgroup.org/home/index.cfm?id=4521&l=1
14
United Nations Department of Public Information, News and Media Division, New York

Secretary-General Appoints Edward C. Luck of United States Special Adviser 21 February

2008 (available at http://www.responsibilitytoprotect.org/index.php/pages/1271
(downloaded 1 June 2008)
15
African Union Constitutive Act 2000 available at
http://www.au2002.gov.za/docs/key_oau/au_act.htm (downloaded on 28 May 2008)

11
2.4 BUT – What might be the challenges that a state may face in
implementing R2P?

 Lack of capacity?

 Didn’t know?

 Unwillingness over a foreseen quagmire?

 Lack of economic interest?

Discuss - Darfur, Burma, Kenya, Zimbabwe, Somalia.

a) Policymakers know far more about emerging crises than the international
media do through their diplomatic dispatches. So NOT KNOWING IS
NOT AN EXCUSE.

b) BBC journalist Mark Doyle writes that he received the most

comprehensive briefing on the impending Rwanda genocide from an
unnamed African ambassador in Kigali a few months before the
presidential plane crash on 6 April 1994.16

c) This contrasts with the American diplomats who were still advocating
peace talks while the massacres were already taking place.17

16
Allan Thompson, The Media and the Rwanda Genocide, Plato Press, (2007), 146.
17
Samantha Power, “Bystanders to Genocide”, The Atlantic Monthly, September 2001, in
Gerald Caplan The Role of the Media in the Rwandan Genocide, Short Readings 3, University
for Peace and Institute for Media, Peace and Security, (2005) 162.

12
d) It is also now known that the Belgian diplomats and intelligence in
Kigali had been sending information on the increasing tensions to
Brussels for a year before the genocide.18

e) The United Kingdom’s House of Commons

International Development Committee admits as much in a post-fact
report on the UK’s involvement in Darfur.19 The Committee charges that
“Governments and politicians must not wait to act until images of death
and destruction are on the TV screens. By then it is too
late...Governments which are aware of emerging humanitarian
crises have a responsibility to act in a timely manner, regardless
of the level of media coverage, as indeed do humanitarian
agencies.”20

CHALLENGES:

a) Full R2P = regime change – Rwanda, Darfur. Holt argues that “full
scale interventions to protect civilians are likely to occur only in
extreme cases and only for a limited time period. They could involve
significant force and warlike tactics to eliminate the capacity of the
killers or to halt violence quickly. Yet such interventions are not to
defeat a designated enemy – although that may be the
strategy – but to stop violence against a civilian population.”21

18
Gerald Caplan, The Preventable Genocide, (2000) Chapter 9, 9.13.
19
House of Commons International Development Committee - Fifth
Report printed 16 March 2005 (available at
http://www.publications.parliament.uk/pa/cm200405/cmselect/cmintdev/67/6706.htm#a4,
downloaded 17 June 2008)
20
Ibid.
21
Victoria Holt and Tobias C. Berkman, The Impossible Mandate? Military Preparedness, The
Responsibility to Protect and Modern Peace Operations, The Henry L. Stimson Centre,
September 2006, 185.

13
 ICISS categorically says “the aim of the human protection operation is
to enforce compliance with human rights and the rule of law as quickly
and as comprehensively as possible, but it is not the defeat of a
state.”22

b) Economic Interest: The interests that UN member states,

particularly the veto-carrying Security Council members, have with
states accused of war crimes and crimes against humanity. On Darfur
for instance, China stands accused of reneging on its commitment to
R2P to maintain access to Sudanese oil resources.23

c) No Political/Military Readiness to protect civilians: To date, there

has not been a military mission whose core function has been the
protection of civilians, and furthermore, no military currently has a
specific doctrine to stop genocidaires.24(It is likely that special
forces such as the French Legion may have the tactics, but clear
instructions from politicians may be unforthcoming.)

d) “Coercive protection” which Holt describes as operationalised R2P,

is not business as usual for militaries as either combat or
peacekeeping. “Rather it requires forces to come between potential
attackers and civilians, and carry out tasks that are not favoured

22
International Commission on Intervention and State Sovereignty, The Responsibility to
Protect - Report of the International Commission on Intervention and State Sovereignty,
International Development Research Centre, (December 2001), 67.
23
Peggy Hicks, Principled Leadership - A Human Rights Agenda for UN Secretary-General
Ban Ki-moon, Human Rights Watch World Report 2007, available at
http://www.hrw.org/wr2k7/essays/principled/index.htm
24
Victoria Holt and Tobias C. Berkman, The Impossible Mandate? Military Preparedness, The
Responsibility to Protect and Modern Peace Operations,The Henry L. Stimson Centre,
September 2006, 103.

14
 by militaries such as forcible disarmament, maintaining safe
areas and protecting humanitarian efforts and staff.”25

ONLY - Mission des Nations Unies en République Démocratique du Congo

(MONUC), in English, the United Nations Mission in the Democratic Republic
of Congo (DRC).

 Following a massacre in Bukavu in 2004, while only a few

peacekeepers were present, the UN increased the force personnel and
the troops have exploited their Chapter VII mandate to the
maximum, engaging in fierce combat with rebel forces.26 Despite the
fact that the MONUC mandate was a traditional peacekeeping one, the
arrival of 16,000 internally displaced persons (IDPs) at their doorstep
forced them to begin protecting civilians.27

e. Humanitarians do not like them: Reprisal attacks on humanitarian

workers and other civilian populations, increased population displacement
when MONUC engages in combat and the lack of cooperation from

25
Thomas G. Weiss, The Humanitarian Impulse in The UN Security Council: From the Cold
War to the 21st Century, David M. Malone, ed., Boulder: Lynn Reinner, (2004), 47-48, in
Victoria Holt and Tobias C. Berkman, The Impossible Mandate? Military Preparedness, The
Responsibility to Protect and Modern Peace Operations, The Henry L. Stimson Centre,
September 2006, 52.
26
Victoria Holt and Tobias C. Berkman, The Impossible Mandate? Military Preparedness, The
Responsibility to Protect and Modern Peace Operations,The Henry L. Stimson Centre,
September 2006, 165.
27
Victoria Holt and Tobias C. Berkman, The Impossible Mandate? Military Preparedness, The
Responsibility to Protect and Modern Peace Operations,The Henry L. Stimson Centre,
September 2006, 173.

15
 unarmed humanitarian agencies afraid to lose their access to vulnerable
populations.28

f. R2P IMPLEMENTATION needs clarity of goal from the politicians to

the military.

28
Victoria Holt and Tobias C. Berkman, The Impossible Mandate? Military Preparedness, The
Responsibility to Protect and Modern Peace Operations,The Henry L. Stimson Centre,
September 2006, 175.

16
 3. R2P in Kenya - UN Security Council response

UN agencies, the Red Cross and other humanitarian agencies were on the
ground engaged in protection work, and responding to the crisis from the
outset.

a) The first statement from UN Secretary General Ban Ki-moon on the

violence in Kenya came on 31 December, in which he deplores the
loss of life, appealed to Mr Kibaki and Mr Odinga to resolve their
conflict peacefully, and “called on the security forces …. to show
utmost restraint and appealed to the population for calm,
patience and respect for law.”29

b) Two days later, a statement is released saying the Secretary General is

“increasingly troubled” by the violence and “shocked by reports
that dozens of civilians were burned to death in a church in
Eldoret, and that 300 people have now been reported killed in
this deplorable outburst of violence”.30 He is reported to be in
touch with the principals and others on how to resolve the crisis. This is
the same day that the New York Times carries a story with an
inference to the Rwanda genocide.

29
UN News Centre, “Secretary-General calls for restraint from all in Kenyan post-election
violence”, 31 December 2007

http://www.un.org/apps/news/story.asp?
NewsID=25189&Cr=kenya&Cr1=&Kw1=Kenya&Kw2=&Kw3=

(downloaded 19 June 2008)

30
UN News Centre, “Ban Ki-moon shocked by deadly wave of violence in post-election
Kenya”, 2 January 2008 http://www.un.org/apps/news/story.asp?
NewsID=25194&Cr=kenya&Cr1=&Kw1=Kenya&Kw2=&Kw3=

(downloaded 19 June 2008)

17
 1. On 11 January, with the death toll at 500, and 250,000 people
displaced, the Secretary General “urgently” calls on both parties to
resolve the differences through dialogue.31

2. He then visits the country on 1 February, and meets with the

principals. At this point the number of dead is 800, and 300,000
people have been displaced. Importantly, this coincides with a
statement by French Foreign and European Affairs Minister Bernard
Kouchner expressing concern about the situation in the country, and
specifically stating: “In the name of the responsibility to protect,
it is urgent to help the people of Kenya. The United Nations
Security Council must take up this question and act.”32

3. A presidential statement from the Security Council is finally

released on 6 February. It voices concern over the violence and
humanitarian crisis in the country, welcomes a roadmap to an
agreement, supports Kofi Annan’s efforts, and announces that UN
Emergency Relief Coordinator, John Holmes will be visiting the

31
UN News Centre, “As death toll rises, Ban Ki-moon calls for urgent solution to Kenya
crisis”, 11 January 2008 http://www.un.org/apps/news/story.asp?
NewsID=25272&Cr=kenya&Cr1=&Kw1=Kenya&Kw2=&Kw3= (downloaded 19 June 2008)

32
French Ministry of Foreign and European Affairs, “Violence in Kenya (January 31, 2008),
Statement made by Foreign and European Affairs Minister Bernard Kouchner”

http://www.diplomatie.gouv.fr/en/country-files_156/kenya_209/situation-in-kenya-
2008_6019/violence-in-kenya-january-31-2008_10767.html (downloaded 19 June 2008)

18
 country.33 More than 1000 people had lost their lives, and over
300,000 displaced.34

POINTS OF NOTE:

1. Being that the Secretary General and other envoys were already
engaging in talks with Mr Kibaki and Mr Odinga, these diplomatic
efforts must be considered R2P.

2. However, the fact that R2P was only verbally mentioned when
hundreds of people had lost their lives means that it has not yet
become grounded within the Security Council, the primary organ
that needs to be most attentive to it.

3. Mr Kouchner is a humanitarian at heart, having founded Medecins sans

Frontieres, it is likely that he was already inclined toward R2P even
before he became a member of a government with a seat on the
Security Council.

4. If SC fails in its duty, options are:

 GA Uniting for Peace through Emergency Special Session

 OR regional/sub-regional initiatives (Chapter 8 of the Charter) for

subsequent approval from SC.

5. The International Conference on the Great Lakes Region in the mid-

1990s led to the Pact on Security, Stability and Development in the
33
UN News Centre, “Kenya: Security Council voices concern over continued post-election
violence”, 6 February 2008

http://www.un.org/apps/news/story.asp?
NewsID=25534&Cr=kenya&Cr1=&Kw1=Kenya&Kw2=&Kw3
(downloaded 19 June 2008)
34
Ibid.

19
 Great Lakes Region (Great Lakes Pact) in Dec 2006, Protocol on Non-
Aggression and Mutual Defence says countries can act with notice to
the AU and SC.

QUESTIONS:

 What is the threshold for the Security Council to invoke R2P?

 How many more people need to lose their lives before the Security
Council holds a discussion on halting the killings? (ICISS had
recommended the GA define one).

 2005 UN Commission of Inquiry on Darfur discovered that it was not

genocide, but serious crimes against humanity had taken place. So
what?

 ICC Prosecutor Luis Moreno Ocampo’s application to build a case

against Sudanese President Omar El Bashir has triggered regional
reaction. How will it play out?

The Darfur Commission concluded that the Government of the

Sudan has not pursued a policy of genocide.

Arguably, two elements of genocide might be deduced from the gross

violations of human rights perpetrated by Government forces and the militias
under their control. These two elements are, first, the actus reus consisting
of killing, or causing serious bodily or mental harm, or deliberately inflicting
conditions of life likely to bring about physical destruction; and, second, on
the basis of a subjective standard, the existence of a protected group being
targeted by the authors of criminal conduct. However, the crucial element
of genocidal intent appears to be missing, at least as far as the central
Government authorities are concerned.

Generally speaking the policy of attacking, killing and forcibly displacing

members of some tribes does not evince a specific intent to annihilate, in
whole or in part, a group distinguished on racial, ethnic, national or religious
grounds. Rather, it would seem that those who planned and organized

20
attacks on villages pursued the intent to drive the victims from their
homes, primarily for purposes of counter-insurgency warfare.

The Commission does recognise that in some instances individuals,

including Government officials, may commit acts with genocidal
intent. Whether this was the case in Darfur, however, is a determination
that only a competent court can make on a case by case basis.

The conclusion that no genocidal policy has been pursued and

implemented in Darfur by the
Government authorities, directly or through the militias under their
control, should not be taken in any way as detracting from the
gravity of the crimes perpetrated in that region. International
offences such as the crimes against humanity and war crimes that
have been committed in Darfur may be no less serious and heinous
than genocide.35

Sandra Macharia (swmacharia@yahoo.co.uk)

August 2008.

35
Report of the International Commission of Inquiry on Darfur to the United Nations
Secretary General, Geneva 25 January 2005, 4.

21
Resources:

1. International Commission on Intervention and State Sovereignty, The

Responsibility to Protect - Report of the International Commission on
Intervention and State Sovereignty, International Development
Research Centre, (December 2001)
http://www.responsibilitytoprotect.org/ (look under Core Documents).

2. Charter of the United Nations 1948 – see particularly Chapter 1 Article

2, Chapter 6, Chapter 7, Chapter 8, Chapter 15 Article 99.
http://www.hrweb.org/legal/unchartr.html

3. Treaty of Westphalia October 24 1648 -

http://se2.isn.ch/serviceengine/FileContent?
serviceID=23&fileid=BD05098C-2A1C-A7AC-9796-
19E4BE38F0B8&lng=en

4. Report of the International Commission of Inquiry on Darfur to the

United Nations Secretary General, Geneva 25 January 2005 -
http://www.un.org/News/dh/sudan/com_inq_darfur.pdf

5. AU Constitutive Act -
http://www.au2002.gov.za/docs/key_oau/au_act.htm

6. Ezulwini Consensus, The Common African position on the Proposed

Reform of the United Nations - March 2005. See page 6 – ‘Collective
Security and the Use of Force. (attached).

22
 7. Victoria Holt and Tobias C. Berkman, The Impossible Mandate? Military
Preparedness, The Responsibility to Protect and Modern Peace
Operations, The Henry L. Stimson Centre, September 2006.
(Downloadable for free at http://www.stimson.org/pub.cfm?id=346)

8. Hugo Slim and Andrew Bonwick, Protection: An ALNAP36 Guide for

Humanitarian Agencies, Overseas Development Institute (2005) -
http://www.odi.org.uk/ALNAP/publications/protection/alnap_protection_
guide.pdf

9. International Crisis Group, Responsibility to Protect website section

http://www.crisisgroup.org/home/index.cfm?id=4521&l=1

10. International Refugee Rights Initiative, Aspects of the Emerging Legal

Framework Bolstering the Responsibility to Protect in East Africa and
the Great Lakes Region – paper presented to a conference in Kampala
17-18 April 2008 - http://www.refugee-rights.org/

11. UN wins immunity in Srebrenica case – Al Jazeera website -

http://english.aljazeera.net/news/europe/2008/07/20087101346178476
4.html

12. Khmer Rouge victims given a voice in Cambodia trails – International

Herald Tribune article -
http://www.iht.com/articles/2008/06/16/asia/cambo.php

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Active Learning Network for Accountability and Performance in Humanitarian Action
(ALNAP)

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13. New ICC Prosecution: Opportunities and Risks for Peace in Sudan – ICG
website
http://www.crisisgroup.org/home/index.cfm?l=1&id=5572&m=1

14. Paris Declaration on Aid Effectiveness -

http://www.oecd.org/dataoecd/11/41/34428351.pdf

15. OCHA website – Protection of Civilians in Armed Conflict -

http://ochaonline.un.org/HumanitarianIssues/ProtectionofCiviliansinArm
edConflict/tabid/1114/language/en-US/Default.aspx

16. ICRC fact sheets: Punishing War Crimes: International Tribunals; The
Statute of the International Criminal Court; International Humanitarian
Law and International Human Rights Law (attached).

17. ICRC International Humanitarian Law resources page:

http://www.icrc.org/web/eng/siteeng0.nsf/iwpList2/Humanitarian_law?
OpenDocument

18. On a UN standing army, see the 1992 Brahimi Report – the

Report of the Panel on United Nations Peace Operations at
http://www.un.org/peace/reports/peace_operations/

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