The Role of Public International Law In Relation to Darfur - Essay Example

Name: University: Course: Tutor: Date: Discuss the Role of Public International Law In Relation To Darfur Introduction The paper is an essay that critically discusses the role of public international law in relation to Darfur. Three major areas are put into the spotlight; these are the principles of public international law involved, whether there is need to modify some of these involved principles and finally the nature of any modification of the said principles as well as the likelihood of the advantages and disadvantages of any modifications. War has very serious consequences that once unleashed can have disastrous implications. The war, which has been launched a few years ago in the region of Darfur, is no exception. Darfur has been witnessing a huge unprecedented humanitarian suffering in which it forces all the groups of international community to move toward bringing lasting and sustainable peace to the region. This essay will present a brief summary about the history of Darfur conflicts and the efforts that have been taking place to solve it. Public international law deals with the entire structure as well as how sovereign countries behave. It also includes the behavior and structure of analogous entities for instance intergovernmental organizations as well as the Holy See (Brownlie 76). Similarly, although to smaller extend public international law might impact on International conglomerates and persons; this has changed over time far from domestic legal understanding as well as implementation. It is important to note that the concept of international law has been in use more so in the 20th centaury as a result of globalization, armed conflicts, negative environmental impacts and people being well versed with issues of human rights. Brief history of Darfur conflict The conflict in Darfur which started in 2003 has been depicted by media as a struggle between the Arabs and Africans so to speak deemed to be instigated and sparked by competition over the scarce resources and ethnic tension. However it is worth noting that just like any other kinds of conflict, there are no single causes that can be attributed to the war in Darfur. It is worth noting that the war is driven by a set of complex and interrelated causes (United Nations Security Council 7). These include the perceptions and attitude the locals hold about race, governance problem especially lack of democracy, inequitable distribution of resources and well as benefits accruing from these resources, call for fair distribution of power, clashes over access to and control of natural resources such as water, grazing land and finally the proliferation of illegal arms and youths that are armed (Pantuliano & O’Callaghan 23). Records reveal that it was in 2003 when the present conflict in Sudan started. This was after a number of years in which varied ethnic groups in Darfur engaged in random clashes. The notable groups were the following; Zaghawa and Awlad and Masalit and Rizeigat. As at 1999, the clashes had resulted to over 100,000 people being displaced while about 40,000 went to Chad as refugees. It is important to note here that although the government of the day dismissed the conflict and say it was a mere tribal clashes, a myriad of forces instigated the conflict by politicizing and mobilization, the government also did this. In 2002, Sudan Liberation Front, DLF attacked a number of police stations, the organization later changed to Sudan Liberation Movement Army. It comprises majority of Zaghawa and Fur (Pantuliano & O’Callaghan 4). Together with Justice and Equality Movement, they took control of Tine as well as the Al-Fashir in 2003. This got worse as a result of hardliners especially from the government who were opposing the IGAD process of trying to bring peace. Through a militia grouped well known as Janjawiid’, it is alleged that the Sudanese government backed the efforts of this militia group in conducting insurgence by attacking civilians. It was later established that the government did support these raid in some instances using helicopters and fixed-wing aircraft. The conflict spilled into 2004 through 2005, this is despite the fact that there were ongoing peace initiatives as well as presence of au peace force (Quach 16). With the help of African Union, AU, and the support of UN, an international commission of inquiry on Darfur established its work on 25 October 2004, in which it had to submit an inquiry report within three months of its mission accomplishing four basic tasks; (1) investigating facts related to violation of human rights law and international humanitarian law which had been committed by all parties in the region, (2) determining whether an act of genocide really occurred or not, (3) identifying the perpetrators of such breaching, and (4) suggesting the accountability mechanism of those responsible for the violations. The commission was established in 2004 and adopted the same year on September 18th 2004 under a resolution which was done under the United Nations Security Council and the resolution was arrived under United Nations Charter in chapter VII. It requires the Secretary-General to urgently set up the commission. On 25 January 2005 the team of the commission submitted the inquiry report which was done to United Nations Secretary General about Darfur in which many issues and principles of international law were discussed (United Nations Security Council 15). According to the facts investigated by the commission in its report, the government of Sudan has breached some of the international law basic principles of the UN Charter. First, they have violated the rights of state sovereignty. During the discussion the government of Sudan officials argued that if there are any attacks which had been done by the government armed forces against Darfur would be referred to as being conducted through military imperatives for counter insurgence purposes (Human Rights Watch 72). However, as stated in the report, whether the persons supporting rebels or were from the same village. Those who were attacking them did not take into considerations for the civilian to have left the villages before they attack it or even prevent the civilians to be injured was the main threat posed by the rebels. It is clear enough that the right to respect for life and property of the state’s nationals has been perpetrated. The second principle, which has been clearly breached by the Sudanese Government, is the self-determination of people. As noted in the commission report, rebel groups claimed the absence of their rights. Many victims and eyewitnesses Moreover, respect of human rights has been obviously violated. Summing up the facts established by the commissioners’ report; which includes victim’s testimony, eye-witnesses and other reliable sources such as intergovernmental organizations, Governments, Non-profit/governmental organizations and United Nations mechanisms and bodies. The two different kinds of human rights which were violated by the government of Sudan and the Janjawiid during the commission’s mandate can be distinguished; There are more than two hundred thousands refugees who migrated from Darfur to the neighboring Chad while 1.65 million people are in record by United Nations to have been internally displaced. In all the three states of Darfur there is evidence of large scale destructions which has made the place to be in habitable. The civilians were killed through discriminatory attack while others were tortured. Enforced disappearances and forced displacement. Destruction of villages. Rape against women and other forms of sexual violence. Use of military force as a threat. It is worth noting that the conflict was exacerbated by division in SLMA, this jeopardized negotiation being held in Abuja. The agreement (Darfur Peace Agreement) which was as a result of an understanding between the government and the SLMA was later rejected by a majority of SLMA, the Fur and JEM. This sparked fresh violence. The results of the violence from 2003 are the death of close to a quarter a million people, as well as displacement of over 2 million. Properties were destroyed and looted, women and young girls raped. Generally speaking, the war resulted to violation of human rights, despite the fact that there are international principles guiding the same, this thus lay the basis for discussion in this paper. In accordance to international law, conflict in Darfur is categorized as internal armed, whereby the applied law is found in article 3 that was generated in 1949 Convention in Geneva. Public international law principles on human rights The brutal disagreement that exploded in Darfur, in 2003 has resulted to serious infringements of human rights as well as humanitarian law. This was as a result of militia groups well backed and financed by the government of Sudan. It is worth noting that According to public international law, the basic principles of human rights are that human rights are universal, inalienable, indivisibility, interdependence and interrelatedness (Brownlie 632). Other principles include progressive realization and principle of non discrimination, equity, participation and inclusion and finally accountability and rule of law. It is important to note here that these principles of Public International Law on human rights have shaped the study and application of international law for many years. Additionally, Sudan has signed a number of human right treaties. This implies that the government had legal obligations to uphold a number of provisions in these treaties. It is important to note here that when the government was alleged to have supported the militia-Janjawiid to execute massacre, raping women and young girls, destroying and looting property, displacing people forcefully and inhuman treatment of un armed citizen amounts nothing other than violation of human rights (United Nations Security Council 34). Among the international treaties that are implicated in the case of Sudan are the international convention on civil and political rights article 7, the African charter on human and people’s rights article 5, convention on the rights of the child article 37, articles 20124 on the welfare of refugees from the convention relating to the status of refugees, 12 of international covenant on economic, social and cultural rights, 5 of international convention on elimination of all forms of racial discrimination and 34 of convention on the rights of the child. All these treaties which constitute public international law on human rights aim at reducing the unnecessary suffering as well as protecting civilians as well as other unarmed persons. It is worth remembering that the international criminal court issuing a warrant of arrest for Oman Hassan Ahmad al-Bashir the current president of Sudan clearly depicts that the government played a major role in the atrocities that were felt by the civilians. Seven charges were place on his head and include crimes against humanity which violate the Rome Statute. It is important to note that the grounds under which, Ahmad al-Bashir’s warrant of arrest was issued is due to the important roles of the public international laws principles on human rights coupled with other important principles. However, there were clear instances in which these principles were seriously violated. Violation of the principles concerning human rights According to United Nations Security Council 2, throughout the conflict in Darfur, civilians and no-combat individuals continuously suffered as a result of the persistent violence as well as the poor state of security. The suffering are characterized with displacement of new individuals, very high rates of sexual and gender biased violence, blockage from accessing humanitarian aids and death. Under protocol II which Sudan ratified in 2006, it is not allowed to attack civilians. It is further stated in the same protocol that threats or any other act that seem violent that are aimed at inflicting fear or terror are prohibited. Additionally, it clearly stipulates that making civilian starve forceful eviction or displacement unless for security concerns are not allowed. All these in the case of Darfur were at greater degree violated (Brownlie 287). Concerning the principle of distinction, it is well spell out that the groups involved in a conflict should clearly differentiate between combat and non-combat individuals. What this means is that military operation are only to be directed to armed and military oriented groups and not civilians, this was not the case in Darfur because there were well known attacks that targeted un armed citizens for instance in 2008 (Human Rights Watch 43). Additionally, it is prohibited to treat civilians and those armed militia members in inhuman manner for instance mutilating them, killing them as well as cruel and degrading treatment, collective punishment, sexual violence, arbitrary denial of liberty and enforced disappearances. This is supported by what military did in Kernek and Kalma; in these two regions armed personnel harassed civilians and shot them (Quach 2). Additionally, there were clear incidences where police tried to fully control the camps where displaced individuals resided. This created an environment that was seen by the civilian as being intimidating and very volatile, raising concern as civilians became more insecure in presence of police which should not be the case. Similarly, in February 2008, the government through it forces violated public international law by more than once pillaging large amount of food that was to be given to civilians, additionally, the armed forces linked to the government also raided, stole and looted various properties. It is worth mentioning that this attack was carried out with the aim of punishing the local non-combat citizens who were deemed to be supporting the rebels. This violated the provision that prohibited collective punishment and spread of fear and terror among un armed civilians. It has been observed that most of the government attacks were indiscriminate as bombs were unleashed from helicopters and other airborne machineries. Rockets were also fired in random manner into a region having dense human population. These attacks left the population of the towns- Jebel Mun, Abu Suruj and Sirba and Silea in problems as their houses were set ablaze by the rockets, destroyed property, food and even caused serious injuries and death. It is also well documented and observed that the militia backed by the government did block aid from international organization from reaching the desired individuals. They looted or destroyed food as well as other forms of aid that were being transported to the needy. This is nothing but a clear violation of humanitarian law. Similarly, those who advocated for human right were restricted from carrying on with their duties. Additionally, the may 2006 report on Darfur established that those individuals who corporate with international organization and were providing relevant information to Sudanese police were at higher risks of being arrested, detained and brutally treated while under custody and even murdered, this is a clear violation of all the principles of international law concerning human rights (Quach 12). Modification of human right principles In my own opinion, the principles on human rights do not need a lot of modifications. What indeed needs to be modified at greater height are the acts and constitution of the country so that it will be in line with the principles Additionally, international law need to make the governments especially in war torn regions to be more accountable on their deed, this will indeed foster better implementation of the principles. All these are aimed at addressing the failure to provide protection against serious violations as a result of lack of efficient safeguards as well as absence of accountability, lack of full protection for suspects in terms of defense, lack of fair trials as a result of using special courts and summery trials, some punishment at it reads in the criminal law are too severe (Human Rights Watch 3). Due to these shortcomings, the protection of human rights has been adversely impacted. The failure of protecting individuals from the various injustices is thus the source of concern. I propose some modification on legislation concerning rape; this will indeed help women and young girls who have been sexually assaulted. Additionally, if the law on immunity could be abolished government as well as other top officials will be held accountable for their deeds especially in contributing to the violence (United Nations Security Council 21). According to Sudan constitution, the conditions under which a testimony concerning rape and sexual assault are so tough that cannot be attained in any given circumstance. It is required that for a victim to present a case and to be heard, there need to be at least four adult men who witnessed the penetration. This in most cases is not the scenario when it comes to sexual assault. Additionally, the law of the land does not allow medical reports of those raped to be used as evidence in court of law. I thus propose that there is need to modify the legislation on rape so that it makes the conditions provided previously to be fair and attainable. Similarly, since there are no provisions that rape victims should be provided with immediately medical attention, which might put them in higher risk, the legislation should have a provision for the same. There is also need to foster accountability. This can be attained by modifying article 33 of the National Security Forces Act, article 46 of the police Act as well as article 34 of the Armed Forces Act of 2007 which provide state official with immunities while committing serious acts as they perform their duties. In my view, this will ensure that those individual who committed serious crimes in line with their duties or failed to act appropriately to either prevent the war or those who instigated it are brought to books. This will deter future top officials from doing the same. Concerning Sudanese criminal law, there is no provision for a right of victims to provide evidence at all stages of the hearing. The legislation on immunity coupled with lack or inadequate protection make this to be just a dram. Thus there is need to ensure that victims are fully protected even after the end of the proceedings of a case brought forth especially linking top government officials. It is important to note that the Emergency and Protection of Public Safety Act of 1997 is not well spell out and can be abused by those in power. There are instances where some human rights especially in freedom of expression are denied on ground of public safety. Such provisions deter and downplay the legitimate practice of rights that are inherent to human beings. Modification of the same and doing away with some clauses will help restore human dignity in terms of exercising their rights. It is also worth bringing forth the weaknesses in how individuals are punished. There are instances in the criminal law of Sudan where there is excessive and sever punishment while on the other hand, very serious crimes are slightly punished. For instance, in article 115 (2) one charged with an offence of torturing another human being is only liable to three month imprisonment. Sudan has the largest number of offense punishable by death. There is need to craft and do away with some provision as it regards to punishment. This will help foster human rights through the varied principles. Pros and cons of modifying the principles The only problem I fore see in modifying these sort of legislation so that they are in line with the principles on human rights is that it will take time before an agreement is arrived at and similarly, there will be problems in trying to implement them. The advantages of modifying some of the said legislation will foster a number of things more importantly, enhancing full protection of human right of those held in custody, fostering fair trial, doing away with some brutal way of punishment such as capital punishment, full right of defense to suspects will be provided, top officials in government as well as others from varied quota will be held responsible for their deeds hence accountability, rape victims will be offered justice as well as treatment (Brownlie 432). In addition, concerning modification of rape legislation, victims when adequately provided with protection as well as initiatives to reduce instances of re-traumatisation as regards admission and cross examination will mean that more women will be bold enough to come forward and launch complain. This will help in curbing the menace. Conclusion From the review of what happened in Darfur in relation to the principles of human rights in the context of international law, it is evident that these principles played a major role in trying to bring to book those who violated them. Additionally, the government through the militia group well known worldwide as Janjawiid did commit serious crimes against humanity that resulted to sexual harassment of women, death, mass displacement of the locals, destruction and looting of property among other. As a result of the conflict there are more than two hundred thousands refugees who migrated from Darfur to the neighboring Chad while 1.65 million people are in record by United Nations to have been internally displaced. In all the three states of Darfur there is evidence of large scale destructions which has made the place to be in habitable. The civilians were killed through discriminatory attack while others were tortured, enforced disappearances and forced displacement, destruction of villages, rape against women and other forms of sexual violence and use of military force as a threat. Although the principles are wide enough to cover all these problems, what needs to be done is to modify some legislation so that the law of the land will be in line these principles. The most agent legislation that needs modification are those touching on sexual assault (rape). The modifications will yield more benefits for instance full right of defense to suspects will be provided, top officials in government as well as others from varied quota will be held responsible for their deeds hence accountability, rape victims will be offered justice as well as treatment. Works cited Brownlie, Ian . Principles of Public International Law. Oxford University: Oxford University Press, 2008. Print. Human Rights Watch. They Shot at Us as We Fled. 2010. Viewed on 29 Nov. 2010 from http://www.hrw.org/en/node/62220/section/4 Pantuliano, Sara & O’Callaghan, Sorcha. The ‘protection crisis’: A review of field-based strategies for humanitarian protection in Darfur. HPG Discussion Paper December 2006. Viewed on 29 Nov. 2010 from http://protection.unsudanig.org/data/darfur/protection/HPG%20-%20The%20Protection%20Crisis%20%28Dec06%29.pdf Quach Thu Thi. The Crisis In Darfur: An Analysis Of Its Origins And Storylines, 2004. Viewed on 29 Nov. 2010 from http://scholar.lib.vt.edu/theses/available/etd-12242004-143603/unrestricted/tquachmajorpaper.pdf United Nations Security Council. Report of the Secretary-General on Darfur. Viewed on 29 Nov. 2010 from http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N06/354/47/PDF/N0635447.pdf?OpenElement United Nations Security Council. Security Council Refers Situation in Darfur Sudan To Prosecutor of International Criminal Court, 2005. Viewed on 29 Nov. 2010 from http://www.un.org/News/Press/docs/2005/sc8351.doc.htm Read More