The Responsibility to Protect: Political Ambition to Legal Obligation

Executive Summary:

States are the primary legal actors in the international realm and therefore bear the most responsibility. However, despite clear prohibitions against war crimes, crimes against humanity and genocide coupled with protections under human rights law against the arbitrary deprivation of life, against torture, degrading, cruel and unusual punishment and much more, violations are still a common occurrence today. With lack of action of States and the international community as a whole in preventing or restraining atrocities, it is against this background that the responsibility to protect has developed. In the World Summit Outcome Document, adopted by the General Assembly in 2005, States acknowledged not only their obligations towards their own people, but crucially, the responsibility of the international community towards civilians at risk of war crimes, crimes against humanity, ethnic cleansing and genocide whenever a government is either directly responsible for these crimes or incapable of stopping them. Since 2005, the responsibility to protect has been recognised and invoked by the Security Council acting under Chapter C.VII of the United Nations Charter to authorise the use of force, the United Nations High Commissioner for Human Rights and the Prosecutor of the International Criminal Court.

However, questions remain as to whether it invokes a duty on the international community to react in situations of mass atrocities. Although collective response in the face of gross human rights violations is not new, a positive obligation to act is something quite different. When such a duty would become operational is imprecise from the language of the World Summit Document and the consequences where the international community fails to act or acts inappropriately have not as yet been outlined. It is here that the limits of this concept become clear, where political ambition has not yet crystallised into a legal obligation.

The application of the norm to the current situation in Darfur highlights the strengths and weaknesses contained therein, and demonstrates that at present, we can not describe the international community’s responsibility to protect as a legal obligation in and of itself. Many of the mechanisms involved in enforcing the responsibility to protect involve political rather than legal considerations. In the situation in Darfur, responsibility to protect has been invoked by the international community to ensure compliance of the Government of Sudan with international rules. However, it also demonstrates the continuing prevalence of sovereignty in this equation.

Clearly, major challenges remain in implementing and actualising the responsibility to protect, with factors such as political will and operational capacity still decisive in implementation. At present, it may be classified as a declaratory principle of the international community to use appropriate diplomatic, economic, humanitarian and other peaceful means, including acting under Chapter VI and Chapter VII of the Charter to help protect populations from atrocities, but one which continues to influence the progression of international law. It can be seen as a means in which recognised principles are reinforced and buttressed. More attention is yet required on the framework regulating how, when and what action should be taken when faced with the potential or the reality of mass atrocities, questions the international community has long grappled with. As such, the international community should continue to develop means to strengthen the rule of law and ensure that responsibility for the protection of citizens is upheld.


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1.    Introduction

 

International legal responsibility is usually considered in relation to States as the normal subjects of the law. However, it is in essence a broader question inseparable from that of legal personality in all its forms.[1] States are no longer the only international actors who have rights and obligations under international law. It is not only States who can be held responsible for upholding particular international rights and for breaching certain international legal obligations, although clearly States remain the only actors with full international legal personality.

The international realm now encompasses a great plethora of various actors, who in turn have a varied degree of personality and therefore responsibility attached to them. The latter is largely dictated by what obligations international law imposes on these additional actors. In this respect, international law has developed dramatically in recent years in two fields, namely individual responsibility and the responsibility of organisations. Both individual actors and international organisations (most notably the United Nations)[2] are intrinsically involved with ensuring that serious violations of human rights law do not occur. Gross and large-scale violations of human rights have been considered a threat to international peace and security, and as such invoke the responsibility of the Security Council[3] under article 24 of the Charter of the United Nations 1945.[4] In addition, individuals carry out such acts and should be brought to account for this.

 

The failure of States and the international community at large to react to serious violations of human rights has recently lead to the development of the concept of a “responsibility to protect”. This responsibility is expressly recognised where the State holding the primary responsibility is “unable or unwilling” to ensure protection. This development can be seen as part of a wider shift in the international realm in which sovereignty entails responsibility. Other developments in this include the workings and constituting documents of the international criminal tribunals[5] and International Criminal Court,[6] in which official capacity and head of state immunity in no case exempts a person from criminal responsibility, and in further clarification of the rules of command responsibility.[7]

These developments all build on established legal norms and practices which obligate States to protect their citizens against mass atrocities. Holding officials individually criminally responsible for illegal conduct encourages better practice and discourages governments to pursue illegal policies. In addition, the role of the international community promotes the commitment of all nations to the rule of law. Emphasising cooperation in the responsibility to protect reinforces means of preventing such atrocities in the first place.

This paper will give account of the nature of responsibility under international law and the substantive obligations to protect under international law. The scope of this paper is limited to assessing international obligations and responsibilities regarding genocide, war crimes and crimes against humanity, taken to be grave violations of human rights and taken to be the “most serious crimes of concern to the international community as a whole” under the Rome Statute of 1998.[8] The wider obligations of States to the international community will be demonstrated, with particular emphasis on the obligations under the United Nations Charter, demonstrating the development under international law towards “the responsibility to protect”. Following an analysis of the responsibility to protect under international law, the practical application of this concept to the situation in Darfur will be illustrated.

2.    The nature of responsibility under international law

Responsibility is regarded as a general principle of international law. The substantive rules of international legal responsibility categorise acts or omissions as illegal by reference to the rules establishing rights and duties.[9] In the Spanish Zone of Morocco Claims case, Judge Huber said:

“Responsibility is the necessary corollary of a right. All rights of an international character involve international responsibility. If the obligation in question is not met, responsibility entails a duty to make reparation”.[10]

Responsibility may therefore arise from acts or omissions which on its face is a breach of a legal obligation of a treaty or other legal duties imposed under customary international law.[11]  The breach of an international legal obligation is considered an act “contrary to the rights of others”[12] or an act “contrary to the treaty right[s] of another State.”[13] 

The breach of an obligation must be a matter of international law. It must not be a matter purely within the area of discretion which international law designates as sovereignty.[14] For a breach of an obligation to occur, the conduct of the State must be inconsistent with an international obligation, whatever the nature of the obligation breached, including custom, treaty, a binding decision of an international organisation. States are precluded from arguing that article 2(7) of the UN Charter 1945 on political independence and territorial integrity applies where the SC is of the opinion that the breach of a specific legal obligation relating to human rights in the Charter itself has occurred.[15]

Responsibility is not dependent on the existence of material damage or loss, but arises directly from the breach of an obligation.[16] This is particularly noteworthy in regards to breaches of human rights obligations, in which obligations are not based on reciprocity, but are obligations owed to the international community as a whole, or erga omnes obligations.[17] Erga omnes obligations by their very nature are the concern of all States and in view of the importance of the rights involved, all States can be held to have a legal interest in their promotion.[18] Cassese terms the violation of a general rule laying down a community obligation as “aggravated responsibility”. Human rights would fall within this category of obligations.[19] To entail responsibility, the breach of the obligation must be widespread and systematic, more than sporadic, isolated or a minor contravention of the obligation.[20]

The international realm has witnessed a clear change in emphasis from ‘sovereignty as control’ to ‘sovereignty as responsibility’[21] and it is clearly established that sovereignty entail duties on the international plane.[22] This was highlighted in the Arbitral Awards Case Island of Palmas:

“Territorial sovereignty .... has as corollary a duty, namely, the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and in war, together with the rights which each State may claim for its nationals in foreign territory.”[23]

States bear responsibility to their citizen’s internally for their safety, lives and welfare. [24] In addition, States also owe external responsibility to live up to their international obligations to the international community through the UN. [25]  Although human rights law is largely imposed on States, as the primary actors in the international realm, questions of human rights have been determined by organs of the United Nations as presenting definite and active legal obligations arising under Chapters IX and XI of the UN Charter 1945.[26] Furthermore, one of the purposes of the UN is to achieve international cooperation in solving problems of a humanitarian character and promoting and encouraging respect for human rights.[27] Responsibility therefore exists under the Charter for any substantial infringement of the provisions. The substance of the obligation to protect civilians from war crimes, crimes against humanity and genocide can be found in international human rights, humanitarian and criminal law. This will be explored in the next section.

3.    Obligations of international law encompass the responsibility to protect

There is a broad consensus in international practice that the obligation of State parties under human rights law includes obligations to respect, to protect and to fulfil.[28] In turn, the obligation to fulfil incorporates obligations to facilitate and to provide.[29] In situations where international humanitarian and international criminal law are applicable, the protections afforded under human rights law continue to apply alongside any addition protection by these bodies of law. Derogations are permissible to certain provisions under the various conventions under specific conditions, but such derogations must not be ‘inconsistent with other obligations under international law’.[30] As such, complementary protection to that afforded under human rights law can be found in the conventions and customary rules pertaining to war crimes, crimes against humanity and genocide. The particular acts that constitute war crimes, crimes against humanity and genocide are not only prohibited under the numerous treaties substantiating these crimes, but also under customary international law. Such rules are elementary considerations of humanity and the ratification of human rights treaties obliges States not only to protect the rights enshrined, but to fully respect the treaty towards all other contracting parties.[31]

States have primary responsibility to protect their citizens from the catastrophes of war crimes, crimes against humanity and genocide, clearly demonstrated in the treaty obligations they sign up to and international practice. Indeed, all three categories are considered to be jus cogens crimes, therefore peremptory and binding on all States.[32] But States are not the only actors involved in executing these obligations. The actions of international courts and tribunals, bodies of the UN, regional organisations, and individuals play a large and growing role.

a.     War Crimes

The main instruments regulating conduct in warfare are the 1949 Geneva Conventions which enjoy universal acceptance by States.[33] The provisions on grave breaches of the Conventions have been further developed through the practice of the international criminal tribunals and International Criminal Court. Such grave breaches impose obligations on individuals, violations of which entails individual criminal responsibility. Grave breaches of the Conventions are defined as “acts, if committed against persons or property protected by the Conventions: wilful killing, torture or inhumane treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly”.[34] State parties are obligated to enact penal legislation to punish grave breaches and to search for, prosecute or extradite such persons.[35]

Under Common Article 1, High Contracting Parties must “respect and ensure respect…in all circumstances” for the Conventions. As a general principle of international law, this obligation is applicable in both international armed conflicts and conflicts not of an international character.[36] Furthermore, being applicable in peacetime as well as in times of conflict, means that the obligation to “ensure respect” encompasses the responsibility of the State to protect its citizens from war crimes. This responsibility of the State to protect its citizens during armed conflict is elaborated further in the provisions of the Conventions, which regulate the conduct of armed forces in relation to each other, treatment and responsibility with regard to civilians and the civilian population, prisoners-of-war and detained persons, and limitation on the means and methods of warfare that may be used.

The obligation to “ensure respect” also obligates State parties to demand compliance by other States. The provisions of the Conventions bestow the right on State parties to invoke the international responsibility of another contracting party for grave breaches perpetrated by members of its armed forces or other individuals acting on its behalf.[37] Although this right is not often invoked, the SC has passed a number of resolutions calling upon all parties to the hostilities to respect fully the applicable provisions of international humanitarian law, including Common Article 3.[38] 

b.     Genocide

Article 1 of the Genocide Convention imposes a specific duty to prevent and punish acts of genocide,[39] such conduct bearing individual criminal responsibility.[40] A necessary element in the crime of genocide requires a specific intent “to destroy, in whole or in part, a national, ethnical, racial or religious group”. Such intent may be inferred from the general context of the perpetration of other culpable acts systematically directed against that group.[41] Both lethal and non-lethal acts may constitute genocide. The International Criminal Tribunal for Rwanda has held that acts constituting “conditions of life calculated to bring about [an ethnic group’s]…physical destruction…[as] subjecting a group of people to a subsistence diet, systematic expulsion from homes and the reduction of essential medical services below minimum requirement.”[42] Similarly to war crimes, States are obligated to enact penal legislation to punish those guilty or genocide or any other acts enumerated in article 3.[43]

Some have argued that there is little material difference between genocide and ethnic cleansing. The term “ethnic cleansing” entered the vocabulary of diplomacy only in the 1990s, in connection with events in the former Yugoslavia.[44] Schabas has noted that “the ultimate consequence [of the acts of genocide and ethnic cleansing] may be the same: the ethnically cleansed group, deprived of its linguistic, cultural, economic and political infrastructure may well cease to exist as a result of such forced migration. But this corresponds to acts of cultural genocide which are not, unfortunately, contemplated by the Convention definition”.[45] However, there is no formal international legal definition of ethnic cleansing.[46] States are only obligated to prosecute those underlying acts which constitute other crimes under international law, such as a war crimes or crimes against humanity.[47] Therefore, a State’s duty to prevent and to punish is not inherently connected to the term ethnic cleansing.[48]

c.      Crimes Against Humanity

There is no specific convention dealing with crimes against humanity, but there are a large number of international instruments which include this category of crime.[49] The Nuremberg Charter first defined crimes against humanity as conduct against civilian populations such as murder, extermination, deportation, and persecution on religious, racial or political grounds before or during the war.[50] Just as with genocide,[51] crimes against humanity can be committed in times of peace against a State’s own population. The lack of definition and specificity of this crime have been clarified to a great and extent by the work of the International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda and particularly the definition of crimes against humanity under article 7 of the Rome Statute 1998. Under the Rome Statute, States are under an obligation to prosecute those who commit crimes against humanity.[52]

Despite clear obligations upholding State’s obligations to protect their citizens from catastrophes, such atrocities are still an all too familiar occurrence in the world today. The next section will explore the reaction of the international community and development of the concept of responsibility.

4.    Expanding the concept of responsibility– the “responsibility to protect”

The SC has on several occasions deemed acts of genocide, war crimes and crimes against humanity to be a threat to international peace and security.[53] It is therefore in the interest of the international community as a whole to prevent such acts and in turn to protect civilian populations. [54] However, the record of the international community and individual States in preventing and halting this illegal conduct when it arises has been telling and the collective security system has failed to enforce international regulations. The genocide in Rwanda and the mass atrocities that took place in the former Yugoslavia are pertinent examples of what the consequences in failing to prevent or react can be. The intervention by NATO in Kosovo in 1999 in turn led to enormous debate in the international community about the legitimacy of humanitarian intervention. All these situations demonstrated that there is still a reluctance on the part of States to interfere with internal affairs of other States, hence progress in this area is slow.[55]

In response to this, many felt there was a need to establish international guidance for dealing with imminent or ongoing incidents of grave violations of human rights and to ensure that human rights are protected and respected by all.[56] Out of this came the notion of “responsibility to protect”. Following a report in 2001 by the International Commission on Intervention and State Sovereignty,[57] the High-Level Panel on Threats, Challenges and Change noted that “while sovereign Governments have the primary responsibility to protect their own citizens from such catastrophes, when they are unable or unwilling to do so that responsibility should be taken up by the wider international community – with it spanning a continuum involving prevention, response to violence, if necessary, and rebuilding shatter societies”.[58]

The responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity, including the responsibility of each individual State to protect its populations from such crimes, and a corresponding responsibility of the international community received recognition in the General Assembly through the World Summit Outcome Document 60/1 (2005).[59] Following this, the concept has been referenced in a number of Security Council Resolutions.[60] These ideas have also been of interest to the Secretary-General in the development of international doctrine addressing the protection of civilians.[61]

The recognition of this principle is part of a broader shift in international law, limiting the traditional principle of State sovereignty and establishing a normative framework designed to protect certain community interests,[62] the roots of which can be traced back to the establishment of the UN. Sovereignty and territorial integrity are no longer blanket defences against intervention against human rights abuses.[63] The debate over responsibility to protect has shifted the discussion on humanitarian intervention away from a politically and legally undesirably right to intervene for humanitarian purposes to the perspective of those in need of protection, whilst maintaining the principle of State sovereignty.[64] The idea of collective responsibility neatly bridges the gap between intervention and sovereignty.

First and foremost, States remain ultimately responsible to protect their citizens from atrocities. It is clearly accepted that States have a duty to protect their citizens, reflected in universal and regional human rights conventions[65] and reinforced by the growing commitment to criminalise genocide, crimes against humanity, and war crimes under domestic and international law.[66] However, where a State is “unable or unwilling” to fulfil its domestic obligations to protect, it loses its primacy and the wider international community should ensure this protection.[67] This language reflects the structure of the Rome Statute 1998 and the complimentary jurisdiction of the ICC.[68] It accords with the idea that domestic authorities are better placed to take action on the ground and enjoy the proper legitimacy to make fundamental choices about the future of their citizens.[69] The responsibility to protect can therefore be seen in the light of the larger development of responsibility under international law, which has recently clarified rules and strengthened enforcement mechanisms in relation to individual criminal responsibility.

The responsibility to protect encompasses the responsibility to prevent, the responsibility to react and the responsibility to rebuild.[70] The responsibility to rebuild entails assistance in reconstruction and reconciliation. These strategies are already seen in peace-keeping policy.[71] Prevention as already noted is also one of the purposes of the collective security system under the UN Charter 1945.[72] The controversial element in this formulation is the responsibility to react.

The SC has primary responsibility for the maintenance of international peace and security. The wide ranging powers under Chapter VI and Chapter VII of the Charter allow the SC to react to situations it considers a threat to international peace and security. Acting under the Charter, it has considerably enlarged the concept of ‘threat to the peace’ under article 39 to include humanitarian crises within one State.[73] Most notably, it has become accepted practice that the SC may authorise military action to redress catastrophic internal wrongs if it is prepared to declare that situation to be a threat to international peace and security under article 42 of the Charter.[74] However, it is clear that situations do not have to reach the stage in which military force is the only possible means of protection. Humanitarian and diplomatic assistance may also be utilised before this point. There is growing support that both the United Nations and third States may intervene through diplomatic and peaceful means. Indeed, humanitarian crises have more generally been predominated by a history of non-intervention.[75]  As such, the responsibility to protect could be viewed as a means of strengthening the collective security system under the Charter,[76] constraining the use of force by allowing action to be taken before resort to force is necessary.[77]

It is unclear if this imposes a duty to react.  Collective responsibility to act in the face of gross human rights violations is not new, but a positive obligation to act is something different. However, under article 41(1) of the ILC Draft Articles, the duty to cooperate to end a serious breach through lawful means does come close to the idea of collective responsibility under the responsibility to protect.[78] This obligation to cooperate is transformed under the responsibility to protect into a general responsibility to “use diplomatic, humanitarian or other peaceful means” or collective action to “help protect populations from atrocities.” The Outcome Document 2005 represents the clearest commitment by States and the respective heads of State and government expressly recognise their duty in the wording “We accept that responsibility”, termed quite unequivocally.[79] With regards to the responsibility of the international community, the commitment is framed in more cautious terms.[80] Action is to be taken on a case-by-case basis through the SC,[81] which stands in contrast to the assumption of a systematic duty.[82] The cautious phrasing of this is partly the result of unwillingness of SC members to concede that the Council has a firm duty to act.[83]

If such a duty does exist, it is also unclear when it becomes operable. In principle, the Outcome Document 2005 stipulates that collective action shall be taken only if national authorities “manifestly fail” to protect their populations from the stipulated atrocities.[84] This is very imprecise and leaves room for argumentation that international actors are either not yet competent to assume control or no more entitled to exercise such protection than local actors.[85]

What then if the international community fails to react? Unfortunately, failure to act is not a new feature of the SC, which has often been hindered by the political interests of its permanent members.[86] Traditional ideas of sovereignty still play a large part in international practice. It has not been conclusively determined whether and under what conditions inaction by an international organisation may entail international legal responsibility. It also is highly questionable whether the architects of the responsibility to protect wanted to attach any direct legal consequence to such inaction.[87] This brings about the broader question of the international responsibility of the UN, a topic which is too large to be discussed in this paper.[88]

Whether and under what circumstances States may use force to put an end to large-scale atrocities is also controversial.[89] Some see action as military intervention as a last resort authorised only through the SC,[90] whereas others do not categorically exclude responsibility to protect might ultimately be assumed by the General Assembly,[91] regional organisations, or coalitions of States.[92] In such cases, a careful balance would be required between the damage to the international order in bypassing the Security Council and the damage in not acting. Both the ICISS Report 2001 and High-Level Panel Report 2004 list operational principles to asses the need for military intervention.[93] These principles bear a remarkable resemblance to criteria used to asses unilateral humanitarian intervention and thus bear all the weakness and strengths associated with these arguments. Proportionality, a key principle under international humanitarian law, is emphasised in both documents. However, the responsibility to protect is as much concerned with conflict prevention as it is with ending conflicts already underway. The emphasis of the doctrine is to ensure that situations do not escalate to a point where military intervention is required.[94]

The responsibility to protect can be seen as a means in which recognised principles are reinforced and buttressed. As outlined above the concept has legal foundations in human rights treaty provisions, the 1949 Geneva Conventions, the Genocide Convention 1948, Rome Statute  1998 and growing practice of the international community generally and SC specifically. The primary role of States in preventing serious violations of human rights is emphasised, alongside cooperation with the international community in upholding community interests. Such considerations aim to achieve a legal balance between State sovereignty and human rights and thus contributes to the definition of State responsibilities.[95] The prominence of peaceful means of settlement builds on obligations already found in the UN Charter 1945.[96] In addition, highlighting the responsibility of the SC in maintaining international peace and security may encourage better practice in the Council, such as better use of veto power. It is a strategy to promote the commitment of all nations to the rule of law and human security.[97]

The concept has not reached a sufficient level of certainty or specificity to be characterised as a substantive legal obligation.[98] Major challenges remain in implementing and actualising the responsibility to protect,[99] with factors such as political will and operation capacity still decisive in implementation.[100] Further commitment by States is needed and clarification on its parameters. At present, it may be classified as a declaratory principle of the international community to use appropriate diplomatic, economic, humanitarian and other peaceful means, including acting under Chapter VI and Chapter VII of the Charter to help protect populations from atrocities,[101] but one which continues to influence the progression of international law.

5.    The situation in Darfur – a test case for the responsibility to protect?

The SC has explicitly invoked the responsibility to protect in reaction to the ongoing atrocities in Darfur, Sudan, and has been described as a “test case” for the operation of this concept. This situation may thus prove to be illustrative of the UN’s commitment to the concept.[102]

Darfur is considered to be one of the world’s worst ongoing humanitarian crises.[103] Since 2003, the conflict has displaced more than two and a half million people[104] who now live in displaced-persons camps in Sudan or refugee camps in Chad, and more than 3.5 million people are reliant on international aid for survival.[105] The violence against Darfur's civilian population has been widely recognized as genocide, perpetrated by government forces and militia groups alike.[106] The UN, African Union and European Union have all committed peacekeeping forces to the area in its efforts to establish peace and stability in Darfur.[107] In 2005 the situation was referred to the ICC by the SC[108] and the crisis remains on the Council’s agenda.[109] Unfortunately, despite the signing of a series of ceasefire and peace agreements, there has been increased violence including credible allegations of torture and attacks on civilians by signatories and non-signatories alike.

The SC has invoked the responsibility to protect in a number of resolutions relating to the situation in Darfur.[110] This was taken a step further in SC Resolution 1679 which, again invoking responsibility to protect civilians from crimes against humanity, simultaneously called for the transition of military operations in Darfur from AMIS to UNMIS and for an assessment team to visit the region to prepare for this transition.[111] This was repeated in SC Resolution 1706, which whilst recalling Resolution 1674 coined in the same language as SC Resolution 1679, further specifying the nature of the UN force which will replace AMIS. This Resolution in authorising the use of force highlights the need to focus on finalising “preparations for reconstruction and development”, elements of the responsibility to rebuild under the responsibility to protect.[112] As such, this could be seen as the SC directly invoking the responsibility to protect while calling for actions within the principle’s framework.[113] SC Resolution 1755 reaffirms not only SC Resolution 1674, but also the Outcome Document 2005, which reaffirms the responsibility to protect. SC Resolution 1778 mandates United Nations Mission in the Central African Republic and Chad (“MINURCAT”) with the protection of civilians and promotion and protection of human rights and the rules of law in authorising the use of force acting under Chapter VII of the Charter.[114] In invoking the concept whilst authorising the use of force, the Security Council appears to be taking its responsibility to protect seriously.

Despite the number of pronouncements on the responsibility to protect by the SC, the violence in Darfur continues to escalate. Darfur is now the largest peacekeeping operation in the world, yet until all measures taken by the SC and international community are fully implemented, it is too soon to say whether the SC has failed in its responsibility to protect.[115]

One other mechanism utilised by the international community in implementing the responsibility to protect in Darfur has been the reliance of individual criminal responsibility, an area that has developed extensively in the work on the international criminal tribunals and ICC. Such reliance again highlights the complimentary character of the doctrine with other already established obligations under international law.[116] There are clear overlaps between State and individual responsibility, particularly in the case of genocide when determining the mental element of the crime.[117] For example, in the 7th Report to the SC of the Prosecutor to the ICC, whilst highlighting the responsibility of the Government of Sudan to fulfil obligations under SC Resolution 1593 to hand over those subject to ICC arrest warrants,[118] the Prosecutor also drew the attention to the promotion of Ahmed Harun from Minister of the Interior to Minister of State for Humanitarian Affairs, who is under arrest warrant by the ICC.[119] There are differences between State and individual responsibility in that State responsibility seeks cessation of an internationally wrongful act or reparation, whereas individual criminal responsibility is based on the idea of punishment for acts already committed. Furthermore, the collective nature of responsibility of States is specifically avoided in the doctrine of individual responsibility. Individual criminal responsibility has been used as a means in which to avoid collective guilt, by shifting blame from the group to those individuals who actually perpetrated the actions, which is believed to be positive for reconciliation purposes.

The referral to the ICC created targeted and tangible consequences for individuals and institutions who bear responsibility under international law for their actions and thus represent positive steps in enforcing the responsibility of individuals to protect.[120] Paragraph 5 of this Resolution also noted the role of the ICC in protecting human rights, suggesting that the responsibility to protect is not confined only to the institutions of the UN such as the SC, but extends to other international organisations. The Prosecutor to the ICC in his report to the SC of June 2008, specifically refers to the lack of support by the Government of Sudan for UNAMID as another failure by the Government of Sudan to actively protect its citizens.[121] The Prosecutor also draws the attention of the role the SC to protect the lives of the millions of Sudanese citizens in Darfur.[122]

The above highlights that the responsibility to protect is still an emerging norm and that the mechanisms involved in enforcing the responsibility to protect involve many political rather than legal considerations. In the situation in Darfur, responsibility to protect has been invoked by the international community to ensure compliance of the Government of Sudan with international rules.[123] However, it also demonstrates the continuing prevalence of sovereignty in this equation.[124] Despite the various steps taken by the international community, more remains to be done and it remains to be seen whether further peacekeeping efforts will be able to halt the progression of violence and establish security.

To ensure the international investment and support required to implement the doctrine, action under the doctrine must be based on factual, credible information and, in the case of peacekeepers and applied sanctions, be subject to strong and transparent oversight mechanisms to maintain credibility.[125] Credible information is mandatory for the legitimisation of any actions taken. The role of civil society which has proven to be a reliable information-gathering mechanism, is in this regard extremely important.

6.    Concluding Remarks

The responsibility to protect can be seen as the progression of political decisions forming into affirmative legal responsibilities. However, the selectivity of the SC in enforcing human rights in particular situations is still apparent, with many calling into question why action has not been taken with regard to the current situation in Burma, for example. The strength of the doctrine is its reinforcement of established legal principles, and as such it should continue to guide international practice with regards to the protection of civilians from serious violations of human rights – namely genocide, war crimes and crimes against. Expanding the concept beyond this scope would weaken the strength in the doctrine and undermine the current resolve amongst States. More attention is yet required on the framework regulating how, when and what action should be taken when faced with the potential or the reality of mass atrocities, questions the international community has long grappled with. The role of the State remains paramount in protecting human rights and the international community, drawing on lessons learned from the past, should continue to develop means to strengthen the rule of law and ensure this responsibility is upheld.


[1] Brownlie, I, Principles of Public International Law 1998 5th Ed. Oxford University Press, Oxford  p. 444. [hereinafter Brownlie 1998]

[2] Hereinafter UN.

[3] Hereinafter SC.

[4] Charter of the United Nations 1945, 26 June 1945, U.N.T.S XVI. [hereinafter UN Charter 1945]

[5] See Statute of the International Criminal Tribunal for the former Yugoslavia annexed to SC Resolution 827, UN SCOR, 48th sess, 3217th mtg, UN Doc. S/RES/827 (1993); Statute of the International Criminal Tribunal for Rwanda annexed to SC Resolution 955, UNSOC 49th sess. 3453rd mtg. UN Doc S/RES/955 (1994); and Statute of the Special Court for Sierra Leone 2002 annexed to the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, 2178 UNTS 138, 14 UN Doc. S/2002/246 Appendix II.

[6] Hereinafter ICC. See Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9 (1998) [hereinafter Rome State 1998].

[7] Rome Statute 1998 supra note 6 articles 27 and 28.

[8] Rome Statute 1998, supra note 6, article 5(1).

[9] Brownlie 1998, supra note 1, p. 436

[10] Reports of International Arbitral Awards, 1923-1925 Vol. II, p. 614, quoted in Brownlie 1998, supra note 1 at p. 437.

[11] See Corfu Channel Case ICJ Reports (1949) 18, 22. Brownlie 1998, supra note 1, p. 437-439. Cassese. A, International Law, 2001 1st Ed. Oxford University Press, Oxford p. 182 [hereinafter “Cassese 2001”].

[12] International Law Commission, Commentary to the Draft Articles of the Responsibility of States for Internationally Wrongful Acts (2001), Report of the Work of its 55th Session, UN Doc A/58/10 p. 72. [hereinafter “ILC Commentary on Responsibility 2001”]

[13] Phosphates in Morocco, Preliminary Objections, 1938, P.C.I.J., Series A/B, No. 74, p. 10 at 28.

[14] Brownlie 1998, supra note 1, p. 557.

[15] Brownlie 1998, supra note 1,p. 557. See for example S C Res. 1199/1998. 

[16] ILC Commentary on Responsibility 2001, supra note 12, at 45-49, para. 4.

[17] The breach results in the infringement of a State’s right to compliance by any other State with the obligation.

[18] Barcelona Traction, Light and Power Company Ltd, Second Phase, Judgement ICJ Reports 1970 p. 32 para. 33; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p. 136. Cassese 2001, supra note 11, also highlights breaches of obligations erga omnes contractantes laid down in a multilateral treaty safeguarding those fundamental values and entitling respectively any State or any other party to the multilateral treaty, to demand cessation of any serious violation, p. 185.

[19] Cassese 2001, supra note 6, p. 185.

[20] Cassese 2001, supra note 6, p. 201.

[21] Francis M. Deng et al., Sovereignty as Responsibility: Conflict Management in Africa, 1996, Brookings Institution, Washington D.C.

[22] Carsten Stahn, ‘Responsibility to Protect: Political Rhetoric or Emerging Legal Norm? January 2007, 101 AMJIL 99-120 p.112. [hereinafter “Stahn 2007”]

[23] Island of Palmas, 2 R. Int'l Arb. Awards 829, 839 (1928). See also US Diplomatic and Consular Staff in Tehran Case ICJ Reports (1986) at 44 ff., paras. 75-86, 93-115 in which Iran was held responsible in that it failed to protect the US premises as required by international law. Also Article 14 of the Draft Declaration on the Rights and Duties of States, which provided that "[e]very State has the duty to conduct its relations with other States in accordance ... with the principle that the sovereignty of each State is subject to the supremacy of international law," International Law Commission, Draft Declaration on Rights and Duties of States, Art. 14, GA Res. 375(IV), annex (Dec. 6, 1949).

[24] Stahn 2007, supra note 22, p.103.

[25] International Commission on Intervention and States Over Eighty, “The Responsibility to Protect” para. 2.15 (2001) available at http://www.iciss.ca/report-en.asp.(last visited 12 June 2008) [hereinafter “ICISS Report 2001”]

[26] Advisory Opinion on Namibia ICJ Reports (1971) at 56-7. UN Charter 1945 preambular para. 2, articles 1(3), 55 and 56. Brownlie 1998, supra note 1,p. 557.

[27] UN Charter 1945 article 1(3).

[28] Asbjørn Eide, Making Human Rights Universal: Achievements and Prospects (on file with the author) p. 24. See also Universal Declaration on Human Rights, GA Res. 217A (III), U.N. Doc. A/810 (1948) article 29 and Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, HRI/GEN/1/rev.4, February 7, 2000 p. 83 [hereinafter HRI/GEN/1/rev4].

[29] See Committee on Economic, Social and Cultural Rights: General Comment No. 12 (May 1999) para 15 in HRI/GEN/1/rev4 supra note 28.

[30] International Covenant on Civil and Political Rights, GA Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 UNTS 171, article 4(1), [hereinafter “ICCPR”]; Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 UNTS 22, article 15(1), [hereinafter “ECHR”]; American Convention on Human Rights,  OEA/ser. K/XVY1.1, Doc. 65, Rev. 1, Corr. 1 OASTS, No. 36 (1970), article 27(1) [hereinafter “ACHR”].

[31] See Cassese 2001, supra note 11, p. 185.

[32] M. Cherif Bassiouni, Introduction to International Criminal Law, 2003 Transnational Publics Inc, New York, p. 141. See also International Law Commission, Draft Articles of the Responsibility of States for Internationally Wrongful Acts UN GAOR, 56th Session, Supp. No. 10, UN Doc. A/56/10 (2001), article 19 Draft Articles of State Responsibility [hereinafter “ILC Draft Articles”]. See further Prosecutor v. Kupreškić et al Case No. IT-95-16, Judgement of 14 January 2000 para. 520 ‘most of the norms of international humanitarian law, in particular those prohibiting war crimes [and] crimes against humanity’. Extended to torture in Prosecutor v. Furundžija  Case No. IT-95-17/1T, Judgement of 10 December 1998, at paras. 153-157.

[33] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 75 U.N.T.S. 31 (1949) [hereinafter GCI]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter GCII]; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GCIII]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GCIV]. www.icrc.org/ihl.nsf/CONVPRES?OpenView (last visited 12 June 2008)

[34] GCI article 50; GCII article 51; GCIII article 130; GCIV article 147. See also Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, 1125 UNTS p. 3 article 85.

[35] GCI ibid article 49; GCII ibid article 50; GCII ibid article 129; GCIV ibid article 146.

[36] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits,  ICJ Reports (1986) p. 14 at p. 114 para 220 [hereinafter “Nicaragua Case”].

[37] GCI supra note 28, article 51; GCII supra note 28,  article 52; GCII supra note 28, article 131; GCIV supra note 28, article 148.

[38] SC Res. 1193 (1998) para 12 (29 August 1998) (Afghanistan); SC Res. 812 (1993) para. 8 (12 March 1993) (Rwanda); SC Res. 794 (1992) para. 4 (2 December 1992) (Somalia). See also UN Commission on Human Rights, Res. 1999/18 para. 17 (23 April 1999), UN Commission on Human Rights, Res. 1997/59 para. 7 (15 April 1997); Commission on Human Rights Res. 1998/67 para. 6 (21 April 1998). E.g.  SC Res. 681 (1990) paras. 5 and 6; GA Res. 32/91 of 13 December 1977 para. A(4) and 39/95 of 14 December 1984 paras. B(4) and C(9). See also the Secretary-General’s Report of 21 January 1988, UN Doc. S/19443 para. 27.

[39] Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277, 1948 article 1. See further articles 2 and 3 defining genocide and listing those acts punishable. [hereinafter Genocide Convention 1948]

[40] In Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Serbia), General List, No. 91, 26 February 2007 available at http://www.icj-cij.org/docekt/files/91/13685.pdf, the International Court of Justice found Serbia in violation of article 1 of the Genocide Convention 1948, for failure to prevent genocide, not in its own territory, but in the territory of another, neighbouring State.

[41] Prosecutor v. Akayesu, 1998 I.C.T.R. No. 96-4-T, P 506 (Sept. 2, 1998) p. 498 [hereinafter Akayesu Case]. See also Linnea D. Manashaw, ‘Genocide and Ethnic Cleansing: Why the Distinction? A Discussion in the Context of Atrocities Occurring in the Sudan’, Spring 2005, 35 Cal. W. Int’l L. J. 303. [hereinafter “Manashaw 2005”]

[42] Akayesu Case supra note 41 p. 523.

[43] Genocide Convention 1948 supra note 39, article 4.

[44] John Quigley, State Responsibility for Ethnic Cleansing, 32 U.C. Davis L. Rev. 341, 350 (1999), citing Interim Report of the Commission of Experts Pursuant to Security Council Resolution 780, U.N. SCOR, Annex I, at 16, U.N. Doc. S/25274 (1993)).

[45] William A. Schabas, ‘Symposium: Universal Jurisdiction: Myths, Realities, and Prospects: Problems of International Codification--Were the Atrocities in Cambodia and Kosovo Genocide?’, 35 New Eng. L. Rev. 287, 295 (2001)

[46] Human Rights Watch Report, ‘Darfur Destroyed: Ethnic Cleansing by Government and Militia Forces in Western Sudan’, May 2004, Vol. 16 No. 6(A) at 39 [hereinafter “HRW Report 2004”]. See Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 296 (S.D.N.Y. 2003) in which “ethnic cleansing” was described as a literal translation of the Serbo-Croation term etnicko cis cenje, arising from atrocities in the former Yugoslavia. The court understood ethnic cleansing to be "a euphemism for genocide." The Commission of Experts established by the United Nations under Security Council Resolution 780 defined ethnic cleansing as “rendering an area ethnically homogenous by using force or intimidation to remove from a given area persons from another ethnic or religious group” - Final Report of the United Nations Commission of Experts Established Pursuant to Security Council Resolution 780, U.N. SCOR, Annex IV, at 1, S/1994/674/Add.2 (1994).

[47] See for example Rome Statute 1998 supra note 6, article 7(1)(d) widespread forcible transfer of population included in under crimes against humanity.

[48] HRW Report 2004 supra note 46, p. 318.

[49] See for example International Convention on the Suppression and Punishment of the Crime of Apartheid, GA Res. 3068 (XXCIII) U.N. GAOR, 28th Sess., Supp. (No. 30) at 75, U.N. Doc. A/9030 of Nov. 30, 1973 in force July 18, 1976 article 1(1). M. Cherif Bassiouni, International Criminal Law Conventions and Their Penal Provisions, 1997, Transnational Publishers Inc, New York, at 269-84.

[50] Agreement for the Prosecution and Punishment of the Major War Criminals in the European Axis Powers and Charter of the International Military Tribunal signed and in force August 8, 1945, 82 UNTS 279 article 6(c). See also Charter of the International Military Tribunal for the Trial of Major War Criminals, August 8, 1945, 82 UNTS 279.

[51] Genocide Convention supra note 33, article 1.

[52] See Rome State 1998, supra note 2 preambular paragraph 6 and article 17. See further GA Res. 2840, U.N. GAOR, 26th Sess., Supp. No. 29, at 88, U.N.Doc A/8429 (1971) para. 1 and GA Res. 3074 U.N. GAOR, 28th Sess., Supp. No. 30 at 78 U.N. Doc. A/9030 (1973). See generally Hersch Lauterpacht, ‘The Grotian Tradition in International Law’, 1946 BRIT. Y.B. INT'L L. 1, 27.

[53] Supra note 32.

[54] In Larger Freedom: Towards Development, Security and Human Rights for All, Report of the Secretary-General, UN Doc. A/59/2005, paras. 16-22 (2005).

[55] Cassese supra note 6, p. 205.

[56] Max W. Matthews, ‘Tracking the Emergence of a New International Norm: The Responsibility to Protect and the Crisis in Darfur’ 31 B. C. Int’l & Comp. L. Rev. 137-151, Winter 2007, p. 138. [hereinafter “Matthews 2007”]

[57] ICISS Report 2001 supra note 25, at VIII.

[58] A More Secure World: Our Shared Responsibility, Report of the High-Level Panel on Threats, Challenges and Change, UN Doc. A/59/565 at 6-7 par. 201 (2004). [hereinafter “High-Level Panel Report 2004”]

[59] 2005 World Summit Outcome, GA Res. 60/1, paras. 138-39 (Oct. 24, 2005). [hereinafter “Outcome Document 2005”]

[60] See SC Res. 1674, para. 4 (28 April 2006) ("reaffim[ing] 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").

[61] See the Secretary-General, Report of the Secretary-General to the Security Council on the

Protection of Civilians in Armed Conflict, delivered to the Security Council, U.N. Doc. S/2001/331 (30 March 2001) and the Secretary-General, Report of the Secretary-General on the Protection of Civilians in Armed Conflict, delivered to the Security Council, U.N. Doc. S/2005/740 (28 November 2005).

[62] Stahn 2007, supra note 22,p. 101

[63] UN Secretary-General, Press Release, "Terrorism is Global Threat, Says Secretary-General, but

Measures Against it Must Not be Used to Justify Human Rights Violations," SG/SM/8518 (21 November 2002), http:// www.un.org/News/Press/docs/2002/SGSM8518.doc.htm.

[64] ICISS Report 2001 supra note 25 at VIII (quoting Secretary-General Kofi A. Annan, Millennium Report and Annual Report on the Work of the Organization, UN Docs. A/54/2000 & A/55/1 (2000), at 48 & para. 37, respectively). Matthews 2007 supra note 56, p. 140.

[65] See for example ICCPR supra note 30 article 2, in conjunction with article 6 (right to life) and article 9 (liberty and security of persons); ECHR supra note 30 article 1, in conjunction with Article 2 (right to life), and Article 5 (liberty and security of persons).

[66] Stahn 2007, supra note 22, p.118.

[67] Ibid p.114.

[68] Rome Statute 1998, supra note 6 article 17.

[69] Stahn 2007, supra note 22,116.

[70] ICISS Report 2001, supra note 25, at xi.

[71] Report of the Secretary-General, ‘An Agenda for Peace-Preventive Diplomacy, Peacemaking and Peacekeeping’, at 2, para. 5, UN Doc. A/47/277- S/24111 (1992), UN Sales No. E.95.I.15 (1995). Report of the Panel on United Nations Peace Operations, UN Doc. A/55/305-S/2000/809. See also Report of the Secretary-General, ‘No Exit Without Strategy: Security Council Decision-Making and the Closure or Transition of United Nations Peacekeeping Operations’, para. 26, UN Doc. S/2001/394.

[72] UN Charter 1945 upra note 4.

[73] E.g. S C Res. 836, 844 (1993) Bosnia-Herzegovina, S C Res. 794/1992 Somalia, S C Res. 929/1994 Rwanda all had humanitarian objectives.

[74] High-Level Panel Report 2004, supra note 58 para. 202.

[75] Nicaragua Case, supra note 36, at 134 para 268 ‘the use of force could not be the appropriate method to monitor or ensure such respect’ [of human rights]’.

[76] High-Level Panel Report 2004, supra note 58. Stahn 2007, supra note 22, p.105.

[77] Stahn 2007, supra note 22, p. 107.

[78] ICL Draft Articles supra note 32.

[79] Outcome Document 2005, supra note 59, para. 139.

[80] Stahn 2007, supra note 22, p.108.

[81] Outcome Document 2005, supra note 59, para. 139.

[82] May also be a reflection of the political realities of such situations and view that humanitarian aid is foreign interference. See Moir , L, The Law of Internal Armed Conflict, Cambridge University Press, Cambridge, 2002, p. 301 in regard to situations of armed conflict.

[83] Stahn 2007, supra note 22, p. 120.

[84] Outcome Document 2005, supra note 59, para. 139.

[85] Stahn 2007, supra note 22, p.117

[86] Glennon, ‘Time for a New ‘Inquiry’ 2003 International Law Forum de droit international 283, at Wedgwood, The Fall of Saddam Hussein: Security Council Mandates and Pre-emptive Self-Defence 97 AJIL (2003) 576 at 584.

[87] Stahn 2007, supra note 22, p.118.

[88] See further Responsibility of International Organizations, in International Law Commission, Report on the Work of Its 56th Session, ch. V, UN GAOR, 59th Sess., Supp. No. 10, at 94, UN Doc. A/59/10 (2004).

[89] See for example Constitutive Act of the African Union July 11, 2002, OAU Doc. CAB/LEG/23.15, available at http://www.africa-union.org article 4(h) recognises an express right of intervention of the Union “in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity”.

[90] High-Level Panel Report 2004, supra note 58, para. 203.

[91] E.g. GA Res. 337(v) (November 3, 1950) “Uniting for Peace” Resolution.

[92] Stahn 2007, supra note 22, p.104

[93] ICISs Report 2001, supra note 25 paras. 4.18, 4.32-.48. High-Level Panel Report 2004, supra note 58 para. 207.

[94] Anonymous, ‘Ensuring the Responsibility to Protect: Lessons from Darfur’, Winter 2007, 14 NO. 2 Hum. Rts. Brief 26, p. 27. [hereinafter “Human Rights Brief 2007”]

[95]Ibid, p. 26.

[96] See UN Charter 1945, supra note 4, preambular para. 3, and articles 2(3), 2(4) and 33. See also ILC Draft Articles supra note 32, article 42(2) States must co-operate as far as possible to bring breaches of international obligations to an end.

[97] Stahn 2007, supra note 22 p.106. High-Level Panel Report 2004, supra note 58 para. 256.

[98] Matthews 2007, supra note 56, p. 137

[99] Ibid, p.138.

[100] Ibid, p. 146.

[101] Letter from Ambassador Bolton to UN Member States Conveying U.S. Amendments to the Draft Outcome Document Being Prepared for the High Level Event on Responsibility to Protect, at 2 (Aug. 30, 2005), available at <http:// www.responsibilitytoprotect.org/index.php/pages/2>, <http://

www.un.int/usa/reform-un-jrb-ltr-protect-8-05.pdf>

[102] See Irene Khan, Kenneth Roth & Gareth Evans, Joint Letter to the U.N. Security Council, May 25, 2006, available at http:// hrw.org/english/docs/2006/05/25/sudan13462.htm.

[103] U.N. Mission in Sudan, Darfur and the Peacebuilding, http:// www.unmis.org/english/darfur.htm

[104] Prosecutor of the International Criminal Court, 7th Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1593, 5 June 2008, [hereinafter “Prosecutor of the ICC Report 2008”] available at www.iccnow.org/documents/7thUNSCversionsenttoUN29may.pdf (last visited 12 June 2008).

[105] Human Rights First, About the Crisis, http://www.humanrightsfirst.org/international_justice/darfur/about/backg... (last visited 12 June 2008)

[106] See, e.g., Darfur Peace and Accountability Act of 2006, para. 3, Pub. L. No. 109-344, 120 Stat. 1869

(recognition, by the U.S. Congress, that the violence in Dafur is genocide). C.f. HRW Report 2004, supra note 46.

[107] See S.C. Res. 1769, pmbl., para 1-2, ( 31 July 2007); S.C. Res. 1706, para. 1, (31 August 2006); See African Union Mission in Sudan, Mandate, http:// www.amissudan.org/amismandate.html (last visited 12 June 2008) [hereinafter “AMIS”]. See further S.C. Res. 1679, para. 3, (16 May 2006) extending UNMIS to include a robust military force to take over peacekeeping operations from ANMIS. See also SC Res. 1778 (25 September 2007).

[108] S. C Res. 1593 (31 March 2005). Note that the US is the only permanent member of the SC who is not a party to the Rome Statute 1998, but has described the situation in Darfur as amounting to genocide. C.f. position of EU, in Manashaw 2005, supra  note 41 p. 310.

[109] See U.N. Mission in Sudan, Mission Background, http:// www.unmis.org/english/background.htm (last visited 12 June 2008).

[110] S.C. Res. 1672, para. 1 (implementing sanctions specified by S.C. Res. 1591, para. 3, (29 March 2005) (against additional Sudanese officials). Also  S.C. Res. 1679, para. 3, (16 May 2006).

[111] Matthews 2007, supra note 56, p.  149

[112] See S.C. Res. 1769 preambular para. 3 (31 July 2007).

[113]Matthews 2005, supra note 56 p.  149

[114] SC. Res. 1778 (25 September 2007), para. 2(a)-(c), and (e). See also Prosecutor to the ICC 7th Report to the UNSC, supra  note 104 para. 79 noting UNAMID is specifically mandated with the protection of civilians under imminent threat and prevent attacks against them.

[115] Note US proposals in February 2007 to block increased financial transactions of Sudanese citizens and companies if Sudan continues to resist UN peacekeepers from entering Darfur and failure of Sudanese bid for presidency of the January 2007 AU Summit, African states instead.

choosing Ghana.

[116] Cassese 2001, supra note 11, p. 272.

[117] See also Prosecutor v. Furndžija Judgement of 10 December 1998, 28 ILM 317 (1999)  para. 142 on torture “if carried out as extensive practice of State officials torture amounts to a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, thus constituting a particularly grave wrongful act generating State responsibility”.

[118] Prosecutor of the ICC Report 2008 supra note 104. See also SC. Res. 1593 (31 March 2005).

[119] Prosecutor of the ICC Report 2008 supra note 104 para. 32

[120] Human Rights Brief 2007, supra note 94, p. 28.

[121] Prosecutor of the ICC Report 2008 supra note 104 para. 80. See further ibid para. 110.

[122] Ibid para. 111.

[123] Human Rights Brief 2007, supra note 94, p. 27.

[124] Ibid, p. 29, giving examples of how peacekeepers have been portrayed as “Western occupiers”, claiming that the Western media and UN officials have exaggerated the Darfur crisis.

[125] Ibid p. 28