Does International Law Help or Hurt in Darfur?
At least 200,000 people have died in the Darfur region of Western Sudan, and perhaps another 2.5 million have been displaced. The West has been roundly criticized for failure to act. The question becomes though, how best to intervene in what is essentially a civil war, in which the Chinese and Russians are arming the Sudanese government?
There is an interesting debate going on over at Opinio Juris on whether international law promotes or impedes the process to end the bloodshed in Darfur.
Julian Ku thinks international law makes a solution to the crisis harder, not easier. As he says:
notice how international law acts in ways that make a solution to this crisis harder, not easier, to achieve. An effective outside intervention by Western military powers (e.g. the U.S., U.K., France) is probably illegal (say most international lawyers) unless China and Russia consent via the Security Council or Sudan consents (don't hold your breath). So we instead get a hodgepodge of limited peacekeeping forces who do not have a mandate to force an end to the conflict. Meanwhile, an effective negotiated peace agreement may still be undercut by the outstanding ICC arrest warrants for Sudan government ministers. What should a good liberal internationalist do? Nothing, I guess.
His counterpart Kevin Jon Heller acknowledges that the ICC can sometimes cause more harm than good. For example some aid workers have feared that the war crimes accusations recently made by the ICC added another hurdle to proposed deployment of UN troops. But Heller questions the assumption:
that the West would take more affirmative steps to resolve crises like the one in Sudan if only international law did not (arguably) prevent it form doing so. ...Put aside the fact that the Sudanese government and the rebel groups showed no signs of being able to reach "an effective negotiated peace agreement" in the three years before the Security Council referred the situation in Darfur to the ICC. What evidence is there that the U.S., U.K., or France would intervene militarily in Darfur but for the supposed illegality of such intervention?...Consider, for example, the U.N.-African peacekeeping force that the Sudan approved for Darfur on Monday. Though understandably skeptical of its ability to end the conflict, Julian admits that the peacekeeping force is at least "something." As it turns out, however, the mission may never get off the ground — because the U.S. owes the U.N. more than $1 billion for the costs of global peacekeeping...
Harsh words, but perhaps well-deserved. The US always seems to have trouble paying its UN dues, even though it is the largest contributor to the UN budget. Unfortunately many conservatives use the UN budget issue to pressure the world body. It should be noted as well that the Sudanese government went back and forth on whether to allow a UN force back in 2006 which never came to fruition. Not being an international law expert as some on here are (and perhaps I'm a bit naive), I'm more inclined to agree with Heller on this one. International law seems to generally be what states are willing to do in practice. If the US was able to justify its invasion of Iraq, I see no reason why it couldn't exert similar pressure for the Darfur situation.
Comments
Whether or not international law helps or hampers the situation in Dafur comes, in my opinion, down to the possibility of justifying military action based on the notion of humanitarian intervention. Although a traditional stringent analysis of international law is likely to deem such intervention illegal, I believe that it has strong arguments in its favour.
The most prominent example to this date of humanitarian intervention remains the NATO intervention in Bosnia in 1999. Prior to the NATO bombing, the Kosovar Albanians were subject to extreme persecution and grave human rights abuses in the hands of the government of the Federal Republic of Yugoslavia. Although the international community was then accused, on the one hand, of waging illegal war, and on the other, of acting too late, it is an example of the insufficiency of certain areas and rules of international law. It is in my opinion clear that had NATO not acted the persecution of the Kosovar Albanians would have continued on an even bigger scale. This in itself justified the intervention (notwithstanding that the arguments benefits from hindsight). At the same time, expanding the room for military intervention in international law to cover humanitarian intervention is obviously open to abuse from rogue governments. However, the need to rethink certain rules of military intervention under international law is sadly, and once again, highlighted by the situation in Dafur.
With respect to Iraq, it is, however, a different story. The fiasco and mishandling of mainly the US administration is likely to hinder any international consensus on rethinking the rules of military action under international law. The loss of credibility that the US administration might have gained in light of the Kosovo intervention seems lost for a considerable future.