Journal of Military Ethics,

Vol. 5, No. 2, 144" 160, 2006

/

The UN Security Council and the

Question of Humanitarian
Intervention in Darfur
ALEX J. BELLAMY+ & PAUL D. WILLIAMS$
+
School of Political Science and International Studies, The University of Queensland, Brisbane,
QLD, Australia, $Department of Political Science and International Studies, European Research
Institute, The University of Birmingham, Edgbaston, Birmingham, UK

ABSTRACT This article explores the different moral and legal arguments used by protagonists in
the debate about whether or not to conduct a humanitarian intervention in Darfur. The first
section briefly outlines four moral and legal positions on whether there is (and should be) a right
and/or duty of humanitarian intervention: communitarianism, restrictionist and counter-restric-
tionist legal positivism and liberal cosmopolitanism. The second section then provides an overview
of the Security Council’s debate about responding to Darfur’s crisis, showing how its policy was
influenced by both normative concerns and hard-nosed political calculations. The article concludes
by asking what Darfur’s case reveals about the legitimacy and likelihood of humanitarian
intervention in such catastrophes and the role of the UN Security Council as the primary
authorising body for the use of international force. The authors argue that this case demonstrates
that for the cosmopolitan/counter-restrictionist case to prevail pivotal states need to put
humanitarian emergencies on the global agenda and express a willingness to act without Council
authorisation, though the question of how to proceed in cases where the Council is deadlocked
remains vexed.

KEY WORDS: Darfur, UN, Security Council, humanitarian intervention

When, if ever, are outsiders entitled to use force to protect people from their
own governments? Do states have a legal or moral right to intervene in such
cases? Do they have a duty to do so? In the twentieth century, it has been
estimated that while approximately 40 million people were killed in wars
between states more than four times that number, some 170 million people,
were killed by their own governments (Rummel 1994: 21). In the 1990s alone,
Rwanda’s genocide claimed approximately one million victims in 100 days,
Yugoslavia’s disintegration left at least 250,000 dead and forced thousands
more to flee, and protracted civil wars in Angola, Burundi, Chechnya, the
Democratic Republic of Congo, East Timor, Haiti, Liberia, Sierra Leone,
Somalia, Sudan, Tajikistan and elsewhere killed millions more.

Correspondence Address : Alex J. Bellamy, School of Political Science and International Studies, The
University of Queensland, Brisbane, QLD, Australia. Tel: !/61 7 33653301; Fax: !/61 7 33651388; E-mail:
a.bellamy@uq.edu.au

1502-7570 Print/1502-7589 Online/06/020144 "/17 # 2006 Taylor & Francis

DOI: 10.1080/15027570600707680
 Humanitarian Intervention in Darfur 145

At the time of writing (August 2005), the conflict in Darfur, Sudan was
commonly estimated to have been directly responsible for the deaths of over
300,000 people (see, for example, UK House of Commons International
Development Committee 2005: 3). Approximately 90 percent of these victims
were non-combatants. Since 2003, the Sudanese government and Janjaweed
militia conducted a brutal campaign of mass killing and ethnic cleansing in
response to an uprising of two rebel groups in Darfur, the Sudan Liberation
Movement/Army (SLM/A) and the Justice and Equality Movement (JEM).
Recent surveys placed the number of deaths caused by direct violence between
73,700 and 172,154 (Coebergh 2005). By January 2005, deaths from
malnutrition and preventable disease in camps for Internally Displaced
Persons (IDP) stood at 108,588, while an additional 25,000 were thought to
have died in inaccessible regions. In total, the UN Secretary-General’s most
recent report on Darfur estimated that the conflict had adversely affected 2.9
million people in the region (Annan 2005: 7). On 9 September 2004, these
ghastly statistics and the role played by the Government of Sudan (GoS) and
the Janjaweed prompted the US government to take the unprecedented step
of labelling the violence genocide (see Totten & Markusen 2005).
And yet the world’s response to Darfur’s crisis was tepid (see Slim 2005;
Williams & Bellamy 2005). At the time of writing, a small under-funded and
under-staffed African Union peacekeeping force " the AU Mission in Sudan
/

(AMIS) " was the only external military presence deployed in Darfur. The
/

force reduced but proved unable to halt the violence or prevent the
humanitarian situation deteriorating throughout the region. While the AU
struggled to assemble its envisaged force, the UN Security Council adopted
an ambiguous position. On the one hand, it failed to impose serious sanctions
on Sudanese officials and did not publicly contemplate using force to protect
civilians or humanitarian aid. On the other hand, it (eventually) placed
limited sanctions on specific individuals, authorised an arms embargo and
no-fly zone, and took the momentous step of referring the Darfur case to the
International Criminal Court (ICC).
This article explores current thinking in international society about the
legitimacy of using force to save imperilled foreigners by charting the UN
Security Council’s debate about how best to respond to Darfur’s crisis. The first
section briefly outlines four moral and legal positions on whether there is (and
should be) a right and/or duty of humanitarian intervention. The second
section then provides an overview of the Security Council’s debate about
responding to Darfur’s crisis, showing how its policy was influenced by both
normative concerns and hard-nosed political calculations. We conclude by
asking what the case of Darfur reveals about the legitimacy and likelihood of
humanitarian intervention in such catastrophes and the role of the UN Security
Council as the primary authorising body for the use of international force.

Four Positions on Humanitarian Intervention

The debate about the legitimacy of humanitarian intervention hinges on the
relative value afforded to sovereignty, self-determination and the ban on the
146 A. J. Bellamy & P. D. Williams

use of force on the one hand, and ideas of universal human rights on the
other. It is possible to identify at least four broad positions according to
whether they prioritise natural law or positive law and offer a permissive or
restrictive account of humanitarian intervention. This section briefly outlines
each of these positions in the debate.

Communitarianism
Communitarians argue that communities or nations have intrinsic value.
They claim that nations enjoy a ‘common life’ and should be free to
determine their own system of governance. There is a ‘fit’, they argue,
between the political community and the state, and it should be assumed that
the latter enables the former to develop and protect its own ideas about how
its members ought to live. Michael Walzer (1977: 87), for instance, argued
that governments only forfeit their sovereignty when they enslave and
massacre their own people, while John Stuart Mill (1973: 368" 84) maintained
/

that oppressed people themselves should overthrow their oppressors. Such

views have been widely challenged with critics insisting that there is no neat fit
between nations and states, that it should not be assumed that states protect
the common good, and that individuals are not parcelled into incommensu-
rate groups (Doppelt 1978; Luban 1980; Parekh 1997: 60). Nevertheless,
communitarianism draws our attention to the problems of assuming that all
communities agree that basic individual rights ought to be valued more highly
than other rights such as the right not to be governed by foreigners.

Legal-Positivist: Restrictionists
Contemporary restrictionists suggest that the common good is best preserved
by maintaining a ban on the use of force except in self-defence or when
authorised by the UN Security Council. This position assumes that
international society comprises a plurality of diverse communities each with
different ideas about the best way to live. International society is based on
rules that permit communities to pursue their own conceptions of the good
life without infringing on others’ right to do likewise. At the heart of this
society is the UN Charter’s rules governing the use of force. In a world
characterised by radical disagreements about how societies should govern
themselves, restrictionists suggest that humanitarian intervention would
create disorder as states waged wars to protect their own way of life and
force others to live by their ethical preferences (Jackson 2000: 291). Moreover,
they point out that states have shown a distinct predilection towards ‘abusing’
humanitarian justifications to legitimise other types of warfare. Most
notoriously, Hitler insisted that the 1939 invasion of Czechoslovakia was
inspired by a desire to protect Czechoslovak citizens whose ‘life and liberty’
were threatened by their own government. For these reasons, restrictionists
suggest that states developed a framework of positive law comprising a
comprehensive ban on the use of force except in self-defence or when
authorised by the Security Council. Without this general ban there would be
 Humanitarian Intervention in Darfur 147

more war in international society but not necessarily more genuine

humanitarian interventions (Franck & Rodley 1973; Chesterman 2001: 231).
This position has also been criticised on several grounds. First, Fernando
Tesón (1977) argued that it is predicated on a partial reading of the works of
Grotius and Vattel who insisted that natural law imposed limits on how a
sovereign may behave towards its own citizens and that it overlooks the
wealth of customary practice suggesting that sovereignty carries responsi-
bilities as well as rights. Second, Thomas Weiss (2004: 135) claimed that
restrictionists often exaggerate the risk of abuse. Third, some positive lawyers
suggest that restrictionists overlook the body of international law relating to
human rights (see, for example, Mertus 2000). These criticisms notwithstand-
ing, the restrictionist case reminds us that the legal prohibition on using force
plays an important role in the maintenance of international order.

Legal-Positivist: Counter-Restrictionists
The counter-restrictionist perspective holds that diverse communities can and
do reach agreement about substantive moral standards and that states have
the authority to uphold those standards. They argue that there is a customary
right (but not duty) of intervention in supreme humanitarian emergencies (see
Linklater 1998: 166" 167; Wheeler 2000: 14). Counter-restrictionists claim
/

that there is agreement in international society that cases of genocide, mass

killing and ethnic cleansing constitute grave humanitarian crises warranting
intervention. Some lawyers go as far as to read a humanitarian exception to
the ban on force into the text of the UN Charter. Michael Reisman (1985:
279" 280), for instance, argued that had the Security Council functioned as
/

originally intended, it would have enforced a basic minimum of human rights

and taken action against states that committed genocide, mass murder or
ethnic cleansing. Because the Council failed to do this, he argued, part of the
justification for the ban on force was eroded, creating a right for states to take
unilateral humanitarian action when necessary. In a similar fashion, Lori
Fisler Damrosch (1991: 219) claimed that humanitarian intervention is not
forbidden because it violates neither a state’s ‘territorial integrity’ nor its
‘political independence’, the two conditions set out in Article 2(4) of the UN
Charter.
There are a number of problems with this approach, however. In particular,
it exaggerates the extent of consensus about the use of force to protect human
rights, epitomised by Richard Falk’s (2003) description of the 1990s as
‘undoubtedly the golden age of humanitarian diplomacy’ and Thomas Weiss’
(2004: 136) claim that ‘the notion that human beings matter more than
sovereignty radiated brightly, albeit briefly, across the international political
horizon of the 1990s’. This putative ‘golden era’ included the world’s failure
to halt genocide in Rwanda, the UN’s failure to protect civilians sheltering in
its ‘safe areas’ in Bosnia, and the failure to prevent the widely predicted mass
murder that followed East Timor’s vote for independence in 1999 as well as a
variety of other massacres. Moreover, despite the increased use of language
supporting human rights within the Security Council, its members are yet to
148 A. J. Bellamy & P. D. Williams

authorise intervention for humanitarian purposes against a fully functioning

sovereign state. The only instance where a functioning government’s
sovereignty was transgressed was NATO’s ‘humanitarian war’ in Kosovo in
1999 and this was not authorised by the Security Council. Finally, with the
partial exception of the UK, interveners have tended not to justify their
actions with reference to a customary norm of humanitarian intervention.

Liberal Cosmopolitanism
The final approach places less emphasis on the importance of inter-state
consensus and focuses instead on the idea that individuals have certain
inalienable rights. It differs from counter-restrictionism because it insists that
external actors have a duty as well as a right to intervene in supreme
humanitarian emergencies. Sovereignty should be understood as an instru-
mental value because it derives from a state’s responsibility to protect the
welfare of its citizens. When a state fails in this duty it loses its sovereign
rights (Caney 1997: 32; Téson 2003: 92). There are a variety of ways of
arriving at this conclusion. Some analysts draw on Kant’s concept of the
rational individual to insist that all individuals have certain pre-political
rights (for example, Caney 1997: 34). Others argue that today’s world is so
interdependent that massive human rights violations in one region are felt
everywhere, creating moral obligations to respond (Blair 1999). Some Just
War writers employ Augustine’s insistence that force be used to defend public
order to argue that intervention to end injustice was ‘among the rights and
duties of states until and unless supplanted by superior government’ (Ramsey
1983: 20, 35" 36). The Christian duty to offer charity to those in need,
/

Ramsey argued, was universal.

The liberal cosmopolitan approach is also problematic, however. First,
there are good reasons to doubt the empirical validity of the claim that all
individuals have intrinsic rights particularly because liberalism (the source of
most of the rights) is rejected in many parts of the world (Parekh 1997: 54" /

55). Others contend that it makes no sense to talk of pre-political rights

because rights are meaningful only when there are institutions bearing
requisite duties (for example, Brown 2002). Tesón (2003: 100) has countered
this argument by suggesting that there is widespread consensus about ‘basic
rights’ amongst the world’s major ethical systems, while Charles Beitz (1979:
422) has argued that the communitarian case against intervention also lacks
empirical support. Second, there is a strong likelihood that a norm endorsing
the use of force to protect individual rights would be abused in practice,
taking us back to the restrictionist case against intervention.
In sum, almost every aspect of humanitarian intervention is contested. One
cannot argue that ethical principles should always override the law in cases
where the two collide because (1) legal rules protect important values and (2)
there is no consensus among states and ethicists about either this proposition
in general or about the triggers for action in particular cases. On the other
hand, those that find simple answers in a restrictive reading of the legal ban
on force must also confront the moral consequences of their choice. As Paul
 Humanitarian Intervention in Darfur 149

Ramsey (1983: 23) put it anyone who is impressed only by the immorality and
probable ineffectiveness of interventionary action should sensitise his
conscience to the immorality and probable ineffectiveness of non-interven-
tion. The following section briefly charts the debate within the UN Security
Council about whether to intervene in Darfur in order to demonstrate the use
of these arguments in practice, the relationship between the different sets of
concerns and their impact on political outcomes.

Debating Darfur in the UN Security Council

In early 2004, Mukesh Kapila, the UN’s coordinator for Sudan, accused Arab
militia backed by the government of ‘ethnic cleansing’ and warned that left
unchecked the humanitarian catastrophe in Darfur would be comparable to
the 1994 Rwandan genocide (BBC 2004a). Later that year, Kofi Annan
(2004a) drew similar parallels when he said that unfolding events in Darfur:
‘leave me with a deep sense of foreboding. Whatever term it uses to describe
the situation, the international community cannot stand idle. . . . [It] must be
prepared to take swift and appropriate action. By ‘‘action’’ in such situations
I mean a continuum of steps, which may include military action’.
In response to such concerns, in April 2004 the UN Commission on
Human Rights dispatched a fact-finding team to Darfur. It found ‘a
disturbing pattern of disregard for basic principles of human rights and
humanitarian law . . . for which the armed forces of the Sudan and the
Janjaweed are responsible’ (UN High Commissioner for Human Rights 2004:
3). The team concluded that ‘it is clear that there is a reign of terror in Darfur’
and that the government and its proxies were almost certainly guilty of
widespread crimes. However, before the Commission could vote on a
resolution based on the draft report, its content was leaked to the press.
Pakistan and Sudan condemned the leak and called for an immediate inquiry.
Unwilling to force the issue, and concerned that a strongly worded resolution
would be rejected by the Commission’s African and Asian members, the EU
members watered down a draft resolution they had been preparing. The
redrafted resolution neither condemned Sudan nor mentioned its crimes. It
was passed with fifty votes in favour and only three against (Australia,
Ukraine, United States) (E/CN.4/2004.L11/Add7, 23 April 2004).
The underlying dynamics of the Security Council’s attitude to Darfur
became apparent when it met on 11 June 2004 to unanimously pass
Resolution 1547. This resolution expressed the Council’s willingness to
authorise a peace operation to oversee the so-called Comprehensive Peace
Agreement between the GoS and the Sudanese People’s Liberation Move-
ment/Army (SPLM/A). Although the resolution did not relate to Darfur,
some Council members nevertheless reaffirmed Sudanese sovereignty and
expressed deep scepticism about humanitarian intervention. Pakistan, for
instance, reminded the Council:
The Sudan is an important member of the African Union, the Organization of the
Islamic Conference and the United Nations. As a United Nations Member State, the
150 A. J. Bellamy & P. D. Williams

Sudan has all the rights and privileges incumbent under the United Nations Charter,
including to sovereignty, political independence, unity and territorial integrity */the
principles that form the basis of international relations. (S/PV.4988, 11 June 2004, p. 4)

That this was not the view of an isolated minority in the Council was
demonstrated by the fact that the resolution’s drafters felt it necessary to
insert a passage ‘reaffirming its commitment to the sovereignty, independence
and unity of Sudan’ (Res. 1547, 11 June 2004). Pakistan, China, and Russia
believed that the scale of human suffering in Darfur was insufficient to
provoke serious reflection on whether Sudan was fulfilling its responsibilities
to its citizens, and the US, UK, and France were reluctant to force them to do
so. The Western democracies that contributed to the 11 June debate made
pointed remarks about the Darfur emergency and tacitly referred to the
commission of crimes against humanity and war crimes, yet none of these
states cast doubts on Sudanese sovereignty. Germany, for instance, noted that
peace in Sudan was indivisible and required ‘an end to the sweeping and
widespread human rights violations’ without suggesting how this might be
achieved. Similarly, the United States pointed toward a litany of human rights
abuses in Darfur but simply confirmed its support for the AU initiatives (S/
PV.4988, 11 June 2004, p. 4).
This pattern was repeated on 30 July 2004, when the Council met to pass
Resolution 1556. Three positions were put forward during the Council’s
deliberations. The first view, articulated by the Philippines, was that Sudan
had failed in its duty to protect its citizens and that international action was
warranted. The Philippines insisted that:
Sovereignty also entails the responsibility of a State to protect its people. If it is unable or
unwilling to do so, the international community has the responsibility to help that State
achieve such capacity and such will and, in extreme necessity, to assume such
responsibility itself. (S/PV.5015, 30 July 2004, pp. 10 "/11)

At the other end of the spectrum, China, Pakistan, and Sudan all rejected talk
of intervention on sovereignty grounds, while Brazil and Russia were
reluctant to even contemplate the question. China abstained in the vote,
complaining that the resolution alluded to ‘mandatory measures’ against the
Sudanese government, while Pakistan argued that it ‘did not believe that
the threat or imposition of sanctions against . . . Sudan was advisable’ (p. 10).
For its part, the Sudanese government made a restrictionist argument that
Western states were abusing humanitarian justifications to legitimise neo-
colonial interference in the affairs of the weak. As Sudan’s ambassador asked
the Council, would his country have been safe from the hammer of the
Security Council even if there had been no crisis in Darfur, and whether the
Darfur humanitarian crisis might not be a Trojan horse? Has this lofty
humanitarian objective been adopted and embraced by other people who are
advocating a hidden agenda?’ (p. 13).
The resolution’s sponsors and their supporters adopted a line between
these two positions. The US, UK, Germany, Chile, and Spain implied that
Darfur’s civilians should be protected without suggesting that the Security
 Humanitarian Intervention in Darfur 151

Council should accept that responsibility. Instead, they suggested that the
primary responsibility remained with the Sudanese government and pointed
to the AU as the most appropriate external body to assist in the process. This
tension between, on the one hand, a concern for human suffering in Darfur
and, on the other hand, a reluctance to press for action was most clearly
expressed by the United States:
Many people who are concerned about Darfur would say that this resolution does not
go far enough. Last week, the Congress of the United States passed resolutions referring
to the atrocities in Darfur as genocide. Many people would want the Security Council to
do the same. Perhaps they are right. But it is important that we not become bogged
down over words. It is essential that the Security Council act quickly, decisively and with
unity. We need to fix this humanitarian problem now. (p. 4)

This debate produced an understandably Janus-faced resolution that invoked

Chapter VII and condemned human rights abuse but stopped short of
sanctioning or even condemning the Sudanese government. Resolution 1556
gave the GoS thirty days to disarm the Janjaweed and punish human rights
abusers and threatened economic sanctions if it failed to do so. For some,
such as China and Pakistan, the resolution went too far; for others, it did not
go far enough.
The initial international response to Darfur was thus characterised by three
contradictory trends, reflecting the competing values outlined earlier. First,
there was clear recognition on the part of Western journalists, human rights
organisations, and some states of an international responsibility to protect the
people of Darfur. Second, however, there were also significant doubts about
how the (primary, secondary, tertiary, etc.) responsibility should be allocated
in practice, particularly what roles the GoS, AU and UN should assume.
What was clear, was that key Western states were deeply reluctant to assume
that responsibility if it meant acting against the wishes of the GoS. Third,
many states expressed their disquiet at any potential violation of Sudanese
sovereignty.
Resolution 1556 imposed a thirty-day deadline for the GoS to comply with
the Security Council’s demands and threatened sanctions if it failed to do so.
In informal consultations immediately after its passage, the United States set
about gauging potential support for sanctions, including an arms embargo
and a travel ban on government officials, in the event of Sudanese non-
compliance. During these consultations a consensus against sanctions began
to emerge. Some Council members (Pakistan) were opposed to sanctions in
principle (because they violated Sudanese sovereignty). The Arab League also
joined the anti-sanctions chorus by issuing a statement opposing them in any
circumstances (see Khan & Abdellah 2004). Other Council members (most
notably China and Russia) opposed sanctions for a mix of principled and
economic interests. Crucially, the UK, the most proactive state advocate of a
legal and moral right of humanitarian intervention, also informally opposed
sanctions. A senior Foreign Office official told reporters that the UK had two
problems with sanctions. First, expressing concerns about undermining the
ongoing Naivasha process aiming to bring peace between the GoS and the
152 A. J. Bellamy & P. D. Williams

SPLM/A, the UK was apparently ‘wary of giving the impression that the
international community is beating up on the government of Sudan’. Second,
the Foreign Office believed that ‘the best way to deliver security to the people
of Darfur is to get those with primary responsibility for it to do it . . . [namely]
the government of Sudan’ (Sunday Standard 2004: 2). British officials were
apparently worried that coercion could inflame the situation in Darfur and
undermine the peace agreement without delivering security (owing to the
logistical difficulties that a Darfur deployment would entail).
On 2 September 2004, Jan Pronk, the UN’s Special Representative in
Sudan, reported that the Sudanese government’s compliance with Resolution
1556 was mixed. He claimed that the AU Ceasefire Commission had reported
that government forces had not breached the ceasefire, a claim hotly disputed
by the United States (S/PV.5027, 2 September 2004). However, Pronk also
noted that the government had failed to stop Janjaweed attacks or disarm
and prosecute the militia’s members. Nevertheless, he endorsed the emerging
Security Council consensus against imposing strong enforcement measures
on Sudan. This view was also supported by Francis Deng, the Secretary-
General’s Representative on Internally Displaced Persons. Deng argued that
although the government ‘probably lacked the will and capacity to disarm the
Janjaweed’ it retained primary responsibility for doing so. Moreover, Deng
suggested that the government had indicated its strong preference for
cooperating with the AU and ‘was fearful of any direct international
involvement’ to such an extent that it ‘would probably resist it, either directly
or through other means’ (2004: paras 22" 26). He concluded that interna-
/

tional intervention would ‘complicate and aggravate’ the crisis by increasing

the level of violence and causing the government to withdraw its cooperation
(para. 36). The best way forward, he argued, was to encourage the AU to
increase its presence in the region in collaboration with the Sudanese
government.
Although there was an emerging Security Council consensus against
intervention, the United States continued to push for stronger measures,
propelled by its finding that the government and its allies were committing
genocide in Darfur. In mid-September 2004 it circulated a draft resolution
finding Sudan to be in material breach of Resolution 1556 and calling for an
expanded AU force, international overflights to monitor the situation, moves
to prosecute those responsible for genocide, a no-fly zone for Sudanese
military aircraft, and targeted sanctions (such as travel bans) against the
ruling elite (BBC 2004b). The resulting Resolution 1564 (18 September 2004)
contained some of these measures but in much-diluted forms. It called for an
expanded AU presence, reiterated earlier demands for all sides to respect the
ceasefire and for the government to disarm and prosecute the Janjaweed,
invited the UN Secretary-General to create a commission of inquiry to
investigate reported crimes and indicated the Council’s intention to ‘consider’
further measures if the government failed to comply. Significantly, however,
the resolution failed to find Sudan in breach of Resolution 1556, impose
measures upon it, or even criticise the government explicitly. Once again,
three positions were apparent.
 Humanitarian Intervention in Darfur 153

First, many states expressed scepticism about the legitimacy of enforcement

measures against Sudan. Explaining its abstention, Algeria, for instance,
argued that while ‘certain measures that might have been unacceptable
assaults on Sudan’s sovereignty’ (such as overflights) had been dropped from
the original US draft, the resolution was still problematic because it failed to
recognise Sudan’s cooperation with the AU and UN (S/PV.5040, 18
September 2004, pp. 2" 3). Russian, Chinese, and Pakistani opposition to
/

sanctions appears to have been partly made out of a principled concern for
eroding sovereignty and the norm of non-intervention and partly on the
instrumental grounds that the situation in Darfur was improving. Although it
supported the resolution, Brazil expressed disquiet at what it described as the
‘excessive’ use of Chapter VII, which, it feared runs the risk of misleading all
parties concerned’ (p. 10). These views were widely endorsed outside the
Security Council. For instance, a communiqué issued by an ‘African mini-
summit’ on Darfur led by Libya and Egypt reaffirmed a commitment to
preserve Sudanese sovereignty and expressly rejected foreign intervention (17
October, 2004, Tripoli, Libya, p. 2).
At the other end of the spectrum, two states spoke out in favour of a more
robust approach. The Philippines reiterated its view that if a state is unable or
unwilling to protect its citizens’ the Security Council has the moral and legal
authority to enable that State to assume that responsibility’. Romania
endorsed this view more pointedly, implying that the Council had not yet
fulfilled its responsibilities:
There should be no moral hesitation in the Council in taking up its responsibilities.
While it may be true that it is not for the Council to make legal findings, it is certainly
within its political, legal and moral obligations to ring the alarm bell and foster */and
indeed, urge */proper consideration of such acts in the appropriate venues. (S/PV.5040,
18 September 2004, p. 12)

As before, the US and the UK adopted a public position midway between the
other two. While the United States noted that progress had been made, it
insisted that the Sudanese government remained in breach of Resolution
1556. Nevertheless, it stopped short of specifically criticising the Sudanese
government or calling for further measures (p. 6). Likewise, the UK noted
ceasefire violations by all parties to the conflict and reiterated its view that
‘ultimate responsibility lies with the Government of Sudan and the rebel
groups’ (p. 10).
What is remarkable here is not so much that the resolution was toned down
to secure a Security Council consensus but that the United States in
particular chose not to argue along the lines of Romania and the Philippines
that the Council should assume a responsibility to protect civilians in Darfur.
This is particularly striking because the George W. Bush administration had
publicly declared that genocide was being committed in Darfur and because it
had attempted to develop a more activist approach during the Security
Council’s informal consultations.
The United States thus found itself faced with two options. It could act
within the Council as it had over Kosovo and Iraq and adopt a robustly
154 A. J. Bellamy & P. D. Williams

activist line in favour of intervention. It could also have declared itself willing
to act outside the Council if that body was unable to reach a consensus. Given
its military commitments in Iraq and elsewhere, the latter course would have
required the Bush administration to exercise some effective political leader-
ship. However, the difficulties of selling such a policy domestically need not
have been insurmountable. Polling data compiled by the International Crisis
Group/Zogby, for instance, indicates 84 percent of their respondents said the
US should not tolerate an extremist government committing such attacks,
and should use its military assets, short of inserting US combat troops on the
ground to protect civilians, to help bring them to a halt (International Crisis
Group 2005). Failing this, the logical alternative was to try and build a
consensus within the Council. This remained fragile, however, owing to the
scepticism expressed towards anything but AU operations by states including
Russia, China, Pakistan and Algeria as well as many key members of the AU
and the League of Arab States. As a result, American diplomats may have felt
unable to take a more robust public stance for fear of undermining the
Council’s fragile consensus, upon which the AU’s initiatives depended.
The situation in Darfur deteriorated soon after Resolution 1564 was
passed. As noted earlier, evidence grew of AMIS’s inability to protect civilians
throughout Darfur or deter renewed clashes between rebels and government
forces (see Human Rights Watch 2004). Jan Pronk reported that GoS
compliance was going backwards, telling the Security Council of ‘numerous’
ceasefire breaches by all parties and militia attacks on civilians (UN News
2004a). At the end of October 2004, the UN estimated that the number of
people needing aid in Darfur had increased by as much as 10 percent in the
previous month alone and reported that militia and government forces were
harassing IDPs and preventing the timely delivery of aid (UN News 2004b).
In his monthly report to the Security Council on Darfur, Annan noted a
string of ceasefire breaches by all parties, very slow progress on disarmament
and almost no progress on apprehending Janjaweed militia. Tellingly, Annan
advised that the ‘Security Council may wish to consider creative and prompt
action’ to ensure effective implementation of its demands (2004b).
The US Ambassador to the UN expressed doubts, however, about whether
sanctions would ever be implemented and suggested that ‘carrots’ not ‘sticks’
would be used to alleviate the problem, presumably because the Council was
reluctant to intervene and interventionist states like the US, UK and France
were reluctant to force the issue for a variety of reasons (BBC 2004c). In
particular, Western allies were reluctant to push the GoS too hard as it had
become an important source of intelligence relating to the US-led war on
terror (Snyder 2005), they were concerned that a more robust line over Darfur
could jeopardise the prospects of achieving peace between the GoS and the
SPLM/A (Williams & Bellamy 2005), and the US and UK in particular were
already stretched militarily and suffering from a post-Iraq international
credibility crisis (Bellamy 2005).
By early 2005, Pronk reported to the Security Council that increased
violence in Darfur had ‘seeped into the [IDP] camps themselves’. December
2004, he noted, had seen an arms build-up, numerous attacks by all sides
 Humanitarian Intervention in Darfur 155

including government aircraft, the spread of violence into West Kordofan,

and the emergence of new rebel groups (S/PV.5109, 11 January 2005, pp. 2" 3).
/

The only way to improve the situation, Pronk argued, was to deploy more
international personnel into the region. Now, Pronk tacitly recognised the
AU’s inability to protect civilians in Darfur and suggested that other agencies
should be deployed.
From this point on the debate about sanctions within the Council was
complicated by two further interrelated issues. First, a debate emerged over
whether to refer Darfur to the ICC. Second, the conclusion of a Compre-
hensive Peace Agreement between the GoS and the SPLM/A kick-started a
debate about whether the UN force created to police the agreement, the UN
mission in Sudan (UNMIS), would also deploy to Darfur and assist AMIS
with its operations. Importantly, in both debates the US attempted to
promote stronger measures to protect Darfur’s civilians. In the first, it
eventually succumbed to European pressure and agreed to refer Darfur to the
ICC despite its continuing objections to the Court. It should be noted,
however, that critics of the Bush administration believed it had supported this
resolution because it helped ‘create an appearance of action in Sudan even
though this resolution, like those that went before it, will do nothing much to
stop the actual killing’ (Daalder 2005). In the second debate, the US led an
informal push to give the new UN mission, UNMIS, a role in Darfur.
On 25 January 2005, a UN Commission of Inquiry concluded that while
the Sudanese government did not have a policy of genocide, it was implicated
in numerous war crimes and crimes against humanity. Moreover, it suggested
that ‘In some instances individuals, including government officials, may
commit acts with genocidal intent’ (International Commission of Inquiry
2005: 4). The Commission judged that only a competent court would be able
to determine whether specific crimes were genocidal. The report sparked a
heated debate about the appropriate venue in which to prosecute accused war
criminals. EU states, including the UK, argued that the Security Council
should refer the matter to the ICC. The UK Ambassador to the UN, for
instance, insisted that the ICC referral was ‘non-negotiable’ (Heinlein 2005).
The US, on the other hand, argued that the Security Council should create a
special tribunal in Arusha to indict and prosecute war criminals. Nigeria
offered a compromise in the form of an AU tribunal. This was quickly
rejected by the EU states on the grounds that any such compromise would
fatally undermine the ICC’s standing. For more than two months, this debate
hamstrung efforts to create a UN peace operation, as the Europeans insisted
on the ICC referral being part of any authorising resolution.
The deadlock was finally broken in late March when the two issues were
decoupled. On 31 March, the Council passed Resolution 1593 referring
Darfur to the ICC. Explaining its decision to abstain in the vote, the United
States reaffirmed its fundamental objection to the ICC, which, it claimed
‘strikes at the essence of the nature of sovereignty’ but noted the importance
of a unified response to Darfur and the need to end impunity in the region
(S/PV.5158, 31 March 2005, p. 3). The United States had few options in
Darfur and was ultimately forced to accept the ICC referral as the only
156 A. J. Bellamy & P. D. Williams

alternative to inaction or unilateralism. After conducting a preliminary

analysis of the situation, evidence of crimes and justice mechanisms within
Sudan, Luis Moreno-Ocampo, Prosecutor of the ICC, officially initiated an
investigation into crimes committed in Darfur on 1 June 2005 (see S.PV.5216,
29 June 2005).
The debate about the role and nature of the UN mission to Sudan was
similarly long-winded with states particularly divided over whether UNMIS
could be ‘rerouted’ to Darfur. In the end, Resolution 1590 authorised a
10,000 strong peace operation mandated to support the implementation
of the Comprehensive Peace Agreement, including (acting under Chapter
VII of the UN Charter) the ‘protection of civilians under imminent threat
of physical violence’. The resolution avoided pronouncing on whether
UNMIS would be deployed to Darfur and invited the Secretary-General
to investigate the types of assistance that UNMIS could offer to AMIS,
identifying ‘technical and logistical’ assistance as two potential areas
(Res. 1590, 24 March 2005). Between March and August 2005, less than
1,200 of the authorised 10,000 military personnel had been deployed and it
gradually became apparent that UNMIS would not take on much of a role in
Darfur.
No consensus emerged on the question of sanctions, however. In mid-
February 2005, the United States circulated a draft resolution coupling
UNMIS and oil sanctions. After a protracted round of informal consulta-
tions, the US dropped the oil embargo in favour of the imposition of travel
bans and asset freezing on suspected war criminals. Russia and China,
however, rejected both the asset freezing and the linkage between sanctions
and UNMIS. The US revised its draft further, and on 29 March 2005, the
Security Council passed Resolution 1591 imposing a travel ban on suspected
war criminals. Russia, China, and Algeria abstained* Algeria because it
/

believed that the draft failed to recognise the significant progress that the
Sudanese government had made, and Russia and China because they
remained opposed to sanctions (S/PV.5153, 29 March 2005, pp. 2" 5). /

Conclusion
For those interested in furthering a norm of humanitarian intervention in
international society, the preliminary conclusions from this study will make
for depressing reading. In relation to the four positions outlined in the first
section of the article, it is clear that there remains solid support for
restrictionist and communitarian arguments in the UN Security Council.
At least two of the permanent members (China and Russia) and a number of
non-permanent members consistently refused to acknowledge the idea that
consideration for human rights should trump sovereignty, despite the very
clear evidence that the situation in Darfur was characterised by mass murder,
ethnic cleansing and* potentially* genocide. This raises the question of
/ /

whether only absolutely clear-cut cases of genocide would elicit Security

Council consensus on action. Even this, though, is a moot point. Even if the
UN Commission of Inquiry had unambiguously labelled the violence in
 Humanitarian Intervention in Darfur 157

Darfur genocide, it is likely that states such as Russia, China, Algeria and
Pakistan would have rejected those findings rather than support calls for
intervention. Throughout the debates, counter-restrictionist and cosmopoli-
tan arguments appeared to carry very little weight with the Council’s
members.
In practice, therefore, the Darfur case suggests that in order for
cosmopolitan/counter-restrictionist arguments to gain the upper hand one
of two things needs to happen. First, some country could come forward and
act as a pivotal state, placing the issue high on the international agenda,
orchestrating an international response and offering to carry a significant
portion of the political and financial burdens entailed. Pivotal states and their
allies might use a mixture of coercive measures to elicit host state consent,
making it harder for traditional opponents of intervention in the Security
Council to block action. An example of this sort of action was Washington’s
use of economic pressure to persuade the Indonesian government to consent
to the deployment of an Australian-led and UN-authorised force into East
Timor in 1999. There is little doubt that in this case the Security Council
would not have authorised action had Indonesian consent not been forth-
coming, or that Indonesian consent was granted in large part because of US
pressure (Dunne et al. 2001: 93" 116).
/

Second, states might force the issue by publicly expressing a willingness to

act outside the Council if it fails to reach consensus. NATO did just this in
relation to Kosovo, securing what Michael Byers (2005: 40" 51) called an
/

‘ambiguous authorisation’ whereby the Council identified a threat to

international peace and security but stopped short of explicitly authorising
intervention. This ‘ambiguous authority’ was enough to enable action (the
UK for instance relied on this as part of its legal justification for participating
in the NATO campaign) and when Russia tabled a resolution condemning
NATO’s intervention it was voted down by 12" 3. /

The key question, and one that remains unresolved by the ongoing process
of Security Council reform, is how to proceed in the face of humanitarian
crises when the Council is deadlocked. The problem is heightened in the
Darfur case because none of the great powers were willing to act outside
the Council or even try and force the Council’s hand. The main hope
for change* although it comes too late for Darfur’s civilians* is to
/ /

increase the number of actors we look to for action in such cases. The
most obvious candidate in this case is the AU. But in spite of article 4(h) of
its new charter, the organisation has neither the capability nor a political
consensus to support serious interventionism. Alternatives might include
NATO and the EU. Both of these organisations, however, are closely related
to the three key permanent members of the Security Council (US,
UK, France) and are thus unlikely to provide the impetus for action in
cases where these states are reluctant to act themselves. Given these limited
options, international society would do well to put serious resources into
preventing such tragedies rather than waiting around for the next one to
ignite.
158 A. J. Bellamy & P. D. Williams

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Biographies
Alex J. Bellamy is Senior Lecturer in Peace and Conflict Studies at the
University of Queensland, Australia. His most recent book, Just Wars: From
Cicero to Iraq (Polity) is due out in August 2006 and he is currently working
on a book on the ethics of terrorism (under contract with Oxford University
Press). His articles have been published in journals such as International
160 A. J. Bellamy & P. D. Williams

Security, Ethics and International Affairs and the Review of International

Studies. Address: School of Political Science and International Studies, The
University of Queensland, Brisbane, QLD 4072, Australia. Tel: !61 7 /

33653301; Fax: !61 7 33651388; E-mail: a.bellamy@uq.edu.au

/

Paul D. Williams is Senior Lecturer in the Department of Political

Science and International Studies at the University of Birmingham, UK.
He is author of British Foreign Policy under New Labour, 1997" 2005 /

(Palgrave-Macmillan, 2005), co-author of Understanding Peacekeeping

(Polity, 2004) and co-editor of Africa in International Politics (Routledge,
2004). Address: Department of Political Science and International Studies,
European Research Institute, The University of Birmingham, Edgbaston,
Birmingham B15 2TT, UK. Tel: !44 121 414 6727; Fax: !44 121 414 3496;
/ /

E-mail: p.d.williams@bham.ac.uk