PILPG Update: Ambassador Morton Abramowitz and Paul Williams’ “Deals with the Devil: Thorny Diplomacy in Sudan” Published in The National Interest

July 8, 2011

PILPG Advisory Board Member Ambassador Morton Abramowitz and PILPG Executive Director Dr. Paul R. Williams’ commentary regarding Sudan appeared in the National Interest.  The article provides an insightful look at conflict in Sudan and U.S. policy.  Ambassador Abramowitz is a Senior Fellow at the Century Foundation.  Dr. Paul R. Williams is the Executive Director of the Public International Law & Policy Group.

The full article is included below and is available here.

Deals with the Devil: Thorny Diplomacy in Sudan
By Paul R. Williams and Morton Abramowitz
July 1, 2011

Violence permeates Sudan—in Darfur, the Nuba Mountains, and on the border between North and South Sudan.  At the same time, diplomatic efforts have intensified in an attempt to ensure that the division of North and South Sudan is peaceful.  Just recently, an agreement, yet to be implemented, was reached to have a UN force inserted to separate the warring parties in the contested area (Abyei) between North and South.  While both sides have a real interest—oil revenues—in an accommodation, shared interests do not necessarily produce peace—and certainly not in Darfur.  A lengthy, difficult American diplomatic effort in Sudan is at a critical decision point.  Because force has been ruled out despite continuing large-scale war crimes, it’s time for the United States to take its diplomatic approach of engagement, but this time by the secretary of state, to Sudan’s highest level—an approach the U.S. has resisted because of the International Criminal Court (ICC) indictment against President Bashir.  Navigating between the moral and legal obligations of accountability and the need to fully utilize American diplomatic capabilities to end massive human suffering is very difficult, but it is a course President Obama must now pursue.

More specifically: the decade-long Darfur crisis has grown even uglier, but media attention has mostly evaporated.  The camps of millions of displaced persons are increasingly endangered, and humanitarian organizations find it harder to carry out their mission.  Reduced Western attention is largely a result of the effort this past year to achieve a peaceful North-South separation, as provided for in the 2005 Comprehensive Peace Agreement (CPA) worked out by American negotiators.  The government in Khartoum is now wreaking major havoc on its own citizens in the Nuba Mountains, which is not a contested area but does have a large non-Arab population oriented to the South.  Meanwhile, along the North-South divide, Khartoum keeps trying to create new facts on the ground in its pursuit of oil-rich territory.

The response of Washington and its allies has been to continue a carefully crafted approach of threats, inducements and accommodation.  One cannot presume that this approach will ultimately produce a reasonably stable settlement between North and South or a return to normalcy in Darfur.  So far, evidence of that is at best uncertain.  The ability of the United States to normalize its relations with Sudan has been precluded by the North’s massive violence to achieve political objectives in its own fractured country.  Nor is the time frame for realizing the agreed division of the country open-ended; indeed, if success is not achieved soon, a cycle of violence could ensue, possibly leading to the destabilization of the frail South.

At this difficult stage the diplomatic playbook for all of Sudan calls for the deployment of America’s most senior diplomat—Secretary Clinton—to speak with the voice of the President.  She needs to make clear to Bashir and his top associates that future positive engagement with the United States is seriously on the table, and that a failure to abandon massive force as a political tool will result in a return to a U.S. policy of coercion, characterized by a renewed, intensive regime of sanctions and international isolation.  These changes must apply not only to an accommodation with the South but also to treatment of its own citizens.  No other U.S. diplomat can effectively or credibly make this case.

President Obama needs to make the politically difficult decision of whether to take the risk of launching what is sure to be a highly controversial diplomatic initiative or return to a policy of whatever coercion and sanctions we can execute.  Clearly, the muddled middle approach is no longer tenable.  The violence throughout Sudan is escalating even as hostilities in Darfur show no signs of ending after almost a decade.

Deploying the secretary of state does not guarantee that negotiations with Bashir will be successful.  The United States has not had much success dealing with an increasingly fractious Northern leadership.  On the other hand, President Bush was heavily involved in the successful negotiations to end the original North-South conflict: he called Bashir numerous times before settlement was achieved.  Washington does not possess the leverage or the power of persuasion it once did (absent a credible threat of force), but given the extent and duration of the human tragedy, a new intense American diplomatic effort is essential.

On the face of it, it appears as if the ICC—to which the US is not a signatory—effectively limits the ability of President Obama to engage at the highest levels with President Bashir.  The truth is that the inducements laid out before Bashir already run counter to the moral directive of a tribunal that has indicted him for genocide.  Moreover, the ICC operates in reality and understands that its role is to bring perpetrators to justice in order to end violent conflict and not inadvertently to prolong the violence.  Nevertheless, many will be aghast at this effort, and if it fails there will be a huge political cost.  Negotiating with even worst monsters, however, is not outside the experience of American leaders.

American policy is now conducted in the shadow of the ICC, but the people of Sudan—who have long relied on American political intervention to safeguard peace—merit an effort by President Obama to cut through the complexities to make progress on their terrible crisis.  If this effort fails, as it may well do, Obama has an obligation to fully embrace the reality described in the ICC indictment of Bashir, and to vigorously pursue negative inducements to contain his use of violence and to protect Sudan’s people.


Op-Ed: Genocide in Darfur: A Coward’s Way Out

Genocide in Darfur
A Coward’s Way Out

By Jamal Jafari and Paul R. Williams, The National Law Journal, October 22, 2007

As if Darfur hasn’t suffered enough, some Western diplomats want to punish victims of the genocide for dying in smaller numbers. The United Nations recently confirmed a decline in the death rate, which a diplomatic official, quoted anonymously in the Los Angeles Times, and echoing the sentiments of others, argues is evidence that the genocide is over. But according to international law, genocide ends only when murders, torture and destruction of food, water and shelter ends. Declaring a premature end to the genocide ignores the international community’s moral and legal obligations, rewards the Sudanese government and hinders efforts to stop this 4 1/2-year-long tragedy.

The genocide is alive and well in Darfur. According to the United Nations, 55,000 people have been displaced since June. Reports of large-scale attacks on civilians continued as recently as late August, and Amnesty International reports that the Sudanese government continues to transport military equipment into the region. The government and the Janjaweed militia continue to kill and maim civilians, while destroying their food and water stores. Women collecting firewood are still abducted and raped. Homes are still burned. In essence, it is still impossible for civilians to live in Darfur without international protection.

The government may have changed its tactics, but ethnic annihilation is still its goal. Instead of shooting, bombing and burning civilians to death en masse, the government and the Janjaweed prefer to ride into a town, kill a few civilians as a warning and let the rest flee into the unforgiving Sahara while their access to food and water is prevented — a death sentence simply by other means. Some civilians make it to international aid stations, but many do not. This represents the same intent pattern to empty Darfur of its indigenous African population.

These acts still constitute genocide. According to the Genocide Convention of 1948, genocide can encompass murder, serious assault or imposing conditions on a group “calculated to bring about its physical destruction in whole or in part.” The U.S. government found the convention to apply in Darfur when it categorized the atrocities as genocide in 2004. Today, the appropriate question is this: Will Sudan allow civilians in Darfur to live in peace with the basic necessities of life? The answer is no, as long as Sudan continues to murder, torture and rape civilians while blocking their access to food, water and shelter. Until these actions are halted, genocide will thrive. The convention poses no minimum requirement for suffering. Its language, supported by decisions of the international criminal tribunals for Rwanda and Yugoslavia, provides that genocide occurs when acts are committed with the intention “to destroy, in whole or in part, a national, ethnical, racial or religious group.” No mention is made of how many people have to die or how quickly. After it created 2.5 million refugees and killed 400,000 people, Sudan should not be rewarded for reducing the number of potential victims with a declaration that the genocide is over.

Genocide can end only when civilians in Darfur are able to live in peace. The International Criminal Tribunal for Rwanda and its sister tribunal for Yugoslavia, having prosecuted the most recent cases of genocide, looked to the presence, not the number, of genocidal acts to determine genocide. That means the atrocities against civilians must fully cease for diplomats to declare the genocide over. A good benchmark is whether many of the 2.5 million refugees can return to their homes in Darfur and live free from persecution. Unfortunately, refugees still choose to live in poorly equipped relief camps in the Chadian desert rather than risk living — or dying — under the government of Sudan.

Prematurely arguing for the end of genocide weakens international pressure. The Genocide Convention requires ratifying states to “prevent and punish” genocide, in part by calling on the United Nations to act. This language should be stronger, but it is the only means by which states can be compelled to act. When diplomats argue that the genocide is over based on no legal analysis, they undermine efforts to apply international pressure and risk reversing the few gains achieved. These gains, such as a consensus for an African Union force in Darfur and eroding international support

for the Sudanese government, could be undone by declaring the genocide over.

Just as key member states of the international community have weakened the Genocide Convention with their inaction, some diplomats now seek to use new facts as an excuse to ignore Darfur altogether. Genocide is not a crime of severity; it is a crime of intent. As long as Sudan and its agents act with the intention to eliminate civilians in Darfur, every weapon in the arsenal of the international community should be used to stop them. That means admitting that trying to wipe a group of people off the face of the earth still shocks our basic concept of humanity, whatever the latest death statistics report.

Jamal Jafari is senior peace fellow at the Public International Law & Policy Group. Paul. R. Williams is co-founder and executive director of PILPG and the Rebecca Grazier Professor of Law and International Relations at American University Washington College of Law.


Op-Ed: The Case Against Amnesty for Hussein

The Case Against Amnesty for Hussein
By Paul R. Williams, Chicago Tribune, February 14, 2003

In an effort to avert a war, Iraq’s neighbors have opened up the possibility of amnesty and comfortable exile for Saddam Hussein and his family. The U.S. government appears on the verge of considering this option in an effort to demonstrate its willingness to consider alternatives to the use of force.

While Iraq’s neighbors and our European allies are likely to be genuinely enthusiastic about the possibility of amnesty and exile for Hussein, the United States must not be seduced by the possibility of an apparently expedient solution to the difficult problem of meaningful regime change in Iraq. The open consideration of an offer of amnesty is fraught with serious consequences for American foreign policy.

Despite the overt willingness of our Arab and European allies to grant the Iraqi dictator amnesty, it is not theirs to grant. The victims of Hussein’s crimes, the Kurds of northern Iraq and the Shiites of southern Iraq, hold the moral and legal authority to decide the fate of Hussein.

In fact, many of the crimes committed by Hussein, such as the attempted genocide against the northern Kurds, rise to the level of “crimes against humanity.” It is the global community that also must consent to any amnesty, in the form of a UN resolution.

For the U.S. to seriously entertain amnesty and exile, let alone indicate its willingness to support such an act, would irrevocably undermine the moral authority of the United States–both in terms of the Bush administration’s ongoing efforts to build a coalition to bring meaningful change to Iraq and in our war against terrorism.

For instance, how can the U.S. justify the use of force to effect a regime change based on the logic that Hussein will eventually use weapons of mass destruction against America and its allies because he has used them against his own people–if America then considers granting him amnesty for those crimes and allows him to retire in luxury? Moreover, what impact will such a signal have on the Kurdish and Shiite forces we are trying to organize into an effective resistance?

And how can the U.S. maintain international support to “hunt down and bring to justice” Osama bin Laden while we also appear willing to consider amnesty and retirement for Hussein? Such an approach would play into the hands of those who mischievously argue that the U.S. applies double standards in its efforts to root out evil.

Even if America was seduced by its Arab and European allies to arrange for amnesty for Hussein, it would not achieve the broader American objective of a stable and democratic Iraq. It is clear that any genuinely democratic Iraq would immediately call for the extradition and prosecution of Hussein. For instance, if Russia were to grant asylum to Hussein, there would be an immediate destabilizing political standoff between Russia and the new Iraq, with the new Iraqi government potentially threatening to nullify the numerous lucrative oil concessions held by Russia. To side with Iraq would undermine our relationship with Russia, while to side with Russia would put the U.S. in the position of protecting Hussein.

Amnesty and exile of Hussein also would truncate the efforts necessary to remove the 10,000 or so Iraqis who perpetuate his regime of terror. Without the creation of a system of domestic prosecutions and truth commissions, coupled with vetting of criminals from the military, police and bureaucracy, it will not be possible to create a democratic and stable Iraq. No such mechanisms are likely to be created in the event of an amnesty for the most culpable individual.

The exile of Hussein will not avert the three-way civil war brewing in Iraq among the Kurds, Shiites and the ruling Sunnis. The only way to ensure the territorial integrity of Iraq post-Saddam is deployment of American ground forces and the international management of a democratic transformation. This will only occur when the U.S. moves forward with its plan to use force and when the people of Iraq join in the effort with an uprising against Hussein’s regime.

Since the war in Kosovo and the attack of Sept. 11, the mantra of the U.S. has been to deter future war crimes and acts of terrorism by bringing to justice the perpetrators, either by defeating them on the battlefield or prosecuting them in the courtroom. To entertain an amnesty for Hussein returns the U.S. to the path of accommodation and appeasement which helped to create the environment that enabled Slobodan Milosevic, provided succor to the Taliban and afforded opportunity to Al Qaeda.

The only way to deter future crimes and attacks against the U.S. and its allies is for would-be perpetrators to visualize Milosevic in The Hague and bin Laden in some dark cave, not to visualize Hussein enjoying caviar in a former Russian villa along the Black Sea.


Op-Ed: Peace Before Prosecution

Peace Before Prosecution
By Morton Abramowitz and Paul R. Williams, The Washington Post, August 25, 2003

Just as President Charles Taylor was arriving in Ghana on June 4 to participate in negotiations sponsored by West African nations to end the Liberian war, the U.N-supported special tribunal for Sierra Leone publicly unveiled his sealed indictment as a war criminal. His indictment points up how the diplomatic process for resolving armed conflicts can be affected by independent judicial bodies — a consideration that will likely grow with creation of the International Criminal Court and the spread of ad hoc tribunals such as those created for Yugoslavia, Rwanda and East Timor.

Many involved in the peace process denounced Taylor’s indictment as undermining diplomatic efforts to bring peace to Liberia. His listed crimes related to support of rebels in Sierra Leone who had committed crimes against humanity and bore no relationship to the continuing conflict in Liberia. In their view, while the Sierra Leone tribunal was created after the British made peace in Sierra Leone possible, it was now putting at risk efforts to stop the Liberian civil war. Because Ghana’s government failed to arrest Taylor and no other government was willing to do it, many believe the indictment delayed Taylor’s departure from Liberia.

Others welcomed the indictment, arguing that it put the diplomats on notice that they were negotiating with an indicted war criminal, hindered them from appeasing Taylor in negotiations and eroded the morale of his troops and their ability to defend against rebel forces.

We do not know whether publication of the indictment prolonged the war or accelerated Taylor’s departure; the final chapter of the Liberian civil war is still being written. But this dilemma is likely to repeat itself. Potential indictments in Congo, Colombia, Sudan, Sri Lanka and Zimbabwe may influence diplomatic efforts to promote a quicker peace settlement in those places or change a terrible regime. Indictments might well further a settlement rather than retard one. Similarly a “peace process” should not be confused with actually producing peace; we have witnessed that confusion repeatedly over the past decade. In any event the role of justice and accountability in resolving armed conflict needs greater attention.

The discussion to date is crudely divided into two camps, with both well aware of the complexities involved. “Justice first” advocates emphasize the preeminence of justice and focus on creating tribunals and establishing jurisprudence. The international “realists” stress not allowing justice to interfere with the ability to make peace and end massive violence.

The reality is that justice plays an important role in the “peace process” — propelling it or delaying it. But there is no specific mechanism for reconciling as well as possible the choice between impunity and accountability. There will be more war crime cases in which the benefits of deterrence and reconciliation must be weighed against the human costs of more violence.

History is an uneven guide in such dilemmas. An indictment may further an important cause, as in Kosovo, where the Yugoslav Tribunal indicted Slobodan Milosevic for crimes against humanity just as some NATO members were losing their will to continue the air campaign — a campaign that went on to end the conflict and Milosevic’s ethnic cleansing. In Bosnia, many believe that not indicting Milosevic before negotiations made peace possible and prevented more violence. Alternatively, some argue that had the Yugoslav Tribunal indicted Milosevic for war crimes prior to negotiations rather than four years later, it might have forced NATO into defeating Bosnian Serb forces rather than accepting the de facto partition of Bosnia and allowing Milosevic to ethnically cleanse Kosovo.

There is also a recent example of a peace agreement with truly vile parties going awry. The Lome agreement on Sierra Leone incorporated Foday Sankoh — later to become an indicted war criminal — into the government, and thereby produced several more years of a horrible war. The absence of justice in that case furthered war.

Just as it is improper to politicize justice it is important to avoid the possibility of institutions of justice overwhelming the complexities of peacemaking. Today there is no effective acceptable mechanism to guide tribunals whose actions might have a significant and unexpected impact on peace negotiations. The international community has relied on the judgment of prosecutors and tribunal judges, but these are people who should not be responsible for navigating the ins and outs of diplomatic negotiations. To require them to do so politicizes the tribunal.

It is important to develop a mechanism for doing this job.

Member states of the International Criminal Court have rejected a role for the U.N. Security Council. One possible solution is to make use of the unique role of the secretary general and have the Security Council authorize him to advise tribunals, especially U.N. tribunals, on the appropriate timing to release indictments. The secretary general could advise that an indictment be sealed and announcement delayed until the conflict ends. Alternatively he could determine that peace would be served by making an indictment public. At no time should the secretary general be permitted to argue for impunity. This is one step that might save lives and better preserve the international momentum toward punishing such crimes.


Op-Ed: Word Games: The UN and Genocide in Darfur

Word Games: The UN and Genocide in Darfur

By Jamal Jafari and Paul R. Williams, The Jurist, March 17, 2005

Among all the interviews conducted last August with the seemingly uncountable number of refugees of the Darfur crisis who had escaped to relief camps in Chad, Amina Adam’s* story stuck out for us. She described seeing the Sudanese military and Janjaweed militia throw her neighbor’s baby up in the air and catch it on a bayonet. Amina suffered not only from witnessing that horrific event, but from witnessing the deaths of members of her own family before she fled hundreds of miles through desolate terrain to a refugee camp in Chad. She continues to suffer today while the United Nations refuses to categorize Darfur as a genocide and plays word games with this unimaginable tragedy.

In January the United Nations released its own investigation of the Darfur atrocities and said that genocide was not committed, as defined by the Genocide Convention of 1948, because the perpetrators did not intend to destroy ethnic groups in Darfur. Rather, the intent was to “drive victims from their homes for the purposes of counter-insurgency warfare.” This logic is not only faulty, but diminishes the gravity of the crimes committed and places another roadblock to meaningful action.

First, the presence of other factors fueling violence is not a bar to declaring genocide. Rather, genocide is a means to an end for its perpetrators. In Rwanda, the extremist Hutu government hatched its diabolical plan in order to consolidate power, weaken a Tutsi insurgency, and claim control over vital natural resources. In its genocide trials, the International Criminal Tribunal for Rwanda did not see these factors as a substitute for the intent to destroy Tutsis and moderate Hutus. 

Similarly, the government of Sudan has perpetrated violence to put down an insurgency effort in Darfur and send a message to the myriad other domestic groups opposed to the Khartoum government. The Janjaweed militia, which receives support from the government, joined the violence to gain control over valuable grazing territory. If, as the United Nations claims, the intent was to merely displace civilians, the government could have marched them to the border. Instead they chose to achieve their goals by killing civilians, driving refugees into a desolate desert, and making Darfur virtually uninhabitable by destroying food and water stores. These actions represent intent to destroy a group. That is genocide.

Second, genocide does not require the immediate killing of members of the victimized group by the perpetrators. The UN report cited individual incidents where victims were killed only after they protested the theft of their cattle – implying that the intent was theft, not annihilation. In another example cited in the report, 220 out of more than 1000 captured civilians were executed by the government and militias. According to the report, “The fact that… the attackers refrained from exterminating the whole population that had not fled, but instead selectively killed groups of young men”, proves intent to kill potential rebels, not destroy the group. 

If these arguments were applied to Rwanda, it could be argued that the motive for the violence was theft because some Rwandans were able to bribe their way out of execution. Similarly, it could be argued that the Holocaust was not genocide because not all of the people sent to concentration camps were executed. Rather, those that posed a risk, or were not physically capable of providing labor, were executed. Therefore there was no attempt to annihilate a group. In actuality, the Genocide Convention poses no timeline for genocide to occur, nor does it specify how brutally it must be carried out. The presence of secondary motives does not contradict intent to commit genocide.

It’s easy to see why the UN would seek to avoid categorizing Darfur as genocide. The Genocide Convention states that a finding of genocide can lead member states to “call upon the competent organs of the United Nations to take such action… as they consider appropriate for the prevention and suppression of acts of genocide…” Former Secretary of State Colin Powell pointed to this language when he described the violence in Darfur as genocide in September and called on the UN to act. The UN cannot separate the genocide from the war between the government and the rebels. Its policy of encouraging negotiations has not halted this nearly year-long genocide. It does not want a declaration of genocide as such to highlight its inadequacy in this regard.

In a final example of contradictory absurdity, and after establishing that there was no intent to commit genocide, the UN report states that “in some instances individuals, including government officials, may commit acts with genocidal intent.” During the genocide in Rwanda , reporter Alan Elsner famously asked State Department Spokesperson Christine Shelley “how many acts of genocide does it take to make genocide?” Now, it appears we must ask the UN, “How many individuals have to act with genocidal intent to make genocide?” Amina would like to know. But while the UN plays its word games, she and other Darfurians continue to suffer.

* Pseudonym used for the protection of the refugee.

Jamal Jafari is a Senior Research Associate with the Public International Law and Policy Group, and interviewed Darfurian refugees in Chad in August 2004. Paul R. Williams is PILPG Executive Director and holds the Rebecca Grazier Professorship in Law and International Relations at American University.


Op-Ed: Why the Bosnian Arms Embargo Is Illegal

Why the Bosnian Arms Embargo Is Illegal

By Paul R. Williams, The Wall Street Journal – Europe, June 15, 1995

On Sept. 25, 1991, the United Nations imposed an arms embargo on the former Yugoslavia for the ostensible purpose of promoting peace and security in the Balkans. But for over three-and-a-half years the embargo has failed to achieve its objectives. Instead, it has made possible ethnic cleansing, genocide and the dismantling of a member state of the U.N.

Recognizing the inherent injustice of applying the arms embargo only to the most disadvantaged combatant and the predictable failure of such an embargo to promote the desired peace and security in Bosnia, many states are considering whether it might make more sense to lift the arms embargo and permit the Bosnian government to provide for its own self-defense. The Turkish Parliament is in the process of taking such action, while America’s House of Representatives voted overwhelmingly to do so last week.

Some European states, led by Britain and France, believe that creating a balance of power in the Balkans, by partitioning Bosnia between Croatia and Serbia, is the only path to peace and stability. Lifting the arms embargo would scuttle their plans by providing the 100,000-strong Bosnian army the ability to properly defend the territorial integrity of Bosnia. These states therefore assert that since the arms embargo has been imposed by the Security Council, any moves to unilaterally lift the embargo would be a violation of international law.

In fact, those states seeking to lift the arms embargo do so consistent with international law, while those states continuing to enforce the embargo violate some of the most basic principles of justice and international law.

Although Security Council resolutions are generally considered binding under international law, the Security Council is not above the law. The U.N. Charter provides that those resolutions are only valid so long as they are consistent with “the principles of justice and international law.” Because the arms embargo is not capable of being subject to an independent judicial review, the member states of the U.N. must make their own determination as to its legality. It is my firm belief that the act of denying Bosnia the right to prevent its own destruction and the genocide of its nationals calls for the determination that the embargo is illegal and exceeds the authority of the Security Council.

— The arms embargo violates Bosnia’s inherent right to self-defense. The right to self-defense is one of the most basic rights of any state. In recognition of this, Articles 2 and 51 of the U.N. Charter codify that right and affirm that every state is entitled to use self-defense to protect its territorial integrity and political independence. When the Security Council acts on matters affecting peace and security, it must do so within the confines of both the U.N. Charter and the inherent rights of its member states. Thus Security Council resolutions may coexist with Bosnia’s inherent right to self-defense, but they cannot abridge that right. By imposing an arms embargo on Bosnia and thereby preventing it from defending its territory and population from externally sponsored ethnic cleansing, the Security Council has clearly acted beyond its authority.

— The Security Council has not preempted Bosnia’s right of self-defense. The U.N. Charter provides that a state may exercise its right to self-defense until the Security Council takes action “necessary to maintain international peace and security,” and thus some European states assert that since the Security Council has passed over 55 resolutions, and has deployed peacekeepers in Bosnia, Bosnia no longer has a right to provide for its own self-defense.

— States making this argument fail to understand that the U.N. Charter requires the Security Council to take “effective action” to promote peace and security before it may supersede a state’s inherent right to self-defense. Although the Security Council has spilled much ink on the issue of Bosnia, there is neither peace nor security in Bosnia, but rather ethnic cleansing and threats of starvation. In fact, as the recent hostage-taking situation has demonstrated, the U.N. is unable even to provide for the effective defense of its own peacekeepers, let alone the unarmed civilians of Bosnia.

— The arms embargo violates numerous other Security Council resolutions. Many of the 55 resolutions passed by the Security Council since the imposition of the arms embargo create obligations inconsistent with the continued application of the embargo. For instance, numerous resolutions call for the member states, and others concerned (specifically the Bosnian government) to take all necessary measures, including the use of force, to facilitate the unimpeded delivery of humanitarian aid, and to provide for the protection of a number of safe areas. The continued application of the arms embargo prevents the Bosnian government from providing the necessary protection to its civilian units trying to deliver aid to Bosnian nationals, and prevents the Bosnian government from adequately defending the so-called safe areas — areas the U.N. not only fails to adequately protect, but is even considering abandoning.

— The arms embargo violates the U.N. Convention on Genocide. This convention, adopted after the atrocities of World War II, requires all states to prevent and punish crimes of genocide. Although there is some debate as to whether genocide has occurred in Bosnia (e.g. the British government now asserts that Bosnia was on the brink of genocide just before U.N. troops were sent in), the prosecutors for the Yugoslav War Crimes Tribunal, the legal experts in this matter, have determined that crimes of genocide have been committed in Bosnia and have indicted over 20 war criminals. States enforcing the arms embargo deny the Bosnian government the means to protect its nationals from genocide, and are responsible for complicity in genocide — a punishable crime under the Genocide Convention.

— Although appropriate when first adopted, the arms embargo is no longer legitimate. Given the patent illegality of the arms embargo, the question arises as to how it could have been imposed in the first place. Its original imposition on the former Yugoslavia in September 1991 was consistent with international law since Yugoslavia consented to — indeed requested — the imposition of the arms embargo; Yugoslavia was not subject to an externally sponsored armed attack at the time of the embargo; and Yugoslavia maintained an ample supply of weapons to carry out effective self-defense.

However, after Bosnia’s secession from Yugoslavia in March 1992, and its admission to the U.N. in May 1992, the arms embargo could no longer be legitimately applied to Bosnia for a number of reasons: Bosnia had not consented to the embargo but had strenuously objected to it; Bosnia was subject to direct military aggression sponsored by neighboring states; the intent of the military aggression was to carry out a program of ethnic cleansing; and Bosnia did not possess a sufficient supply of defensive weapons necessary to meet even the minimal requirements for self-defense.

— In the case of Bosnia, the right to self-defense equates with the prerogative to acquire defensive weapons. Although in some circumstances the right of self-defense does not necessarily equate with the right to receive arms, this is not the case with Bosnia. Bosnia is on the brink of extinction with the 32% of the territory it controls subject to a medieval state of siege. Bosnia will likely be extinguished, and the national group known as Bosnians will cease to exist, unless the member states of the U.N. permit Bosnia to properly defend its territory and nationals. As the protection of a state’s territory and its nationals are the core elements of the concept of national self-defense, Bosnia’s right of self-defense equates with the ability to acquire weapons.

— The unilateral lifting of the arms embargo by U.N. member states does not affect the continued application of the other arms embargoes adopted by the United Nations. Some states assert that a finding of the illegality of the Bosnian arms embargo would result in the nullification of the arms embargoes against states such as Iraq and Libya. These assertions fail to consider the legally significant differences between a victim state such as Bosnia, and predator states.

Unlike Iraq and Libya, Bosnia is under direct military attack sponsored by neighboring states; 68% of Bosnia’s territory is occupied by hostile forces seeking its partition and destruction; Bosnia’s population is subject to mass killings, rapes, forcible relocations and crimes of genocide; and Bosnia does not possess a sufficient supply of defensive arms to defend its citizens from these atrocities. These differences are determinative for a legal finding that an arms embargo violates a state’s right to self-defense, and no comparable claims can be made in the case of Iraq or Libya.

Despite the conspicuous illegality of the arms embargo, and its complete failure to deliver peace and security in the Balkans, the Security Council still seems to lack the political will to give the Bosnian government the opportunity to defend itself. Individual member states must therefore take action — either unilaterally or collectively — to lift the arms embargo, while those states continuing to enforce the arms embargo must be condemned for doing so in violation of the principles of justice and international law.

Dr. Williams is executive director of the Public International Law and Policy Group in London and from 1991 to 1993 was an attorney-adviser for the United States Department of State, Office of the Legal Adviser for European Affairs.


Op-Ed: Une Lourde Violation du Droit International

Une Lourde Violation du Droit International

By Paul R. Williams, Le Monde, June 29, 1995

LE 25 septembre 1991, les Nations unies ont impose un embargo sur les armes dans l’ancienne Yougoslavie avec pour objectif affiche de promouvoir la paix et la securite dans les Balkans. Mais, depuis plus de trois ans et demi, l’embargo n’a pas atteint son but. Au contraire, il a permis le nettoyage ethnique, le genocide et le demantelement d’un Etat membre de l’ONU.

Reconnaissant l’injustice qu’il y a en soi a n’appliquer l’embargo qu’au belligerant le plus desavantage, et son echec previsible a promouvoir la paix et la securite desiree en Bosnie, beaucoup d’Etats se demandent aujourd’hui s’il ne serait pas plus sense de lever cet embargo et de permettre au gouvernement bosniaque d’assurer sa propre defense.

Certains Etats europeens, sous la conduite de la Grande-Bretagne et de la France, croient que creer un equilibre du pouvoir dans les Balkans par la partition de la Bosnie, avec d’une part la Croatie et de l’autre la Serbie, est le seul moyen d’arriver a la paix et a la stabilite. La levee de l’embargo saboterait leurs plans en fournissant a l’armee bosniaque, forte de 100 000 hommes, la capacite de defendre veritablement l’integrite territoriale de son pays. Ces Etats affirment que l’embargo sur les armes ayant ete vote par le Conseil de securite, toute demarche unilaterale visant a le lever se ferait en violation de la legislation internationale.

En fait, les Etats favorables a la levee de l’embargo le sont conformement a la legislation internationale, alors que les partisans de son maintien violent certains principes les plus elementaires de la justice, ainsi que la loi.
Bien que ses resolutions soient, de maniere generale, considerees comme irrevocables selon la legislation internationale, le Conseil de securite n’est pas au-dessus des lois. D’apres la Charte des Nations unies, ces resolutions n’ont de valeur que dans la mesure ou elles sont conformes aux principes de justice et a la legislation internationale.

Parce que l’embargo sur les armes ne peut etre soumis a une instance juridique independante, les Etats membres des Nations unies doivent eux-memes decider de sa legalite.

L’embargo sur les armes viole le droit legitime pour la Bosnie d’assurer sa propre defense. Le droit de se defendre est pour un Etat l’un des plus fondamentaux. Les articles 2 et 51 de la Charte des Nations unies, qui le reconnaissent, codifient ce droit.

En imposant l’embargo sur les armes, le Conseil de securite a manifestement outrepasse ses pouvoirs

Quand le Conseil de securite intervient en matiere de paix et de securite, il se doit de le faire dans les limites, a la fois de la Charte des Nations unies et des droits legitimes de ses Etats membres. Ainsi les resolutions du Conseil de securite peuvent-elles coexister avec le droit de la Bosnie d’assurer sa propre defense, mais elles ne peuvent reduire ce droit. En imposant a la Bosnie un embargo sur les armes qui l’empeche de defendre son territoire et de proteger sa population d’un nettoyage ethnique encourage de l’etranger, le Conseil de securite a manifestement outrepasse ses pouvoirs.

Le Conseil de securite n’a pas acquis le droit de la Bosnie a se defendre. La Charte des Nations unies enonce qu’un Etat peut exercer le droit qu’il a de se defendre jusqu’a ce que le Conseil de securite prenne des mesures necessaires au maintien de la paix et de la securite au niveau international. Ainsi certains Etats europeens affirment-ils que le Conseil de securite ayant vote 55 resolutions et deploye des soldats de la paix en Bosnie, celle-ci n’a plus le droit d’assurer sa propre defense.

Les Etats qui avancent cet argument oublient que la Charte requiert du Conseil de securite qu’il exerce un role effectif pour promouvoir la paix et la securite, avant de pouvoir se substituer a un Etat et a son droit legitime de se defendre. Bien que le Conseil de securite ait noirci beaucoup de papier sur la question bosniaque, il n’y a ni paix ni securite en Bosnie, mais bien le nettoyage ethnique et la menace de famine.

L’embargo sur les armes viole de nombreuses autres resolutions du Conseil de securite. Beaucoup des 55 resolutions votees par le Conseil depuis l’imposition de l’embargo sur les armes ont cree des obligations incompatibles avec le maintien de l’embargo. Nombre d’entre elles, par exemple, appellent les Etats membres et tous les Etats concernes (en particulier le gouvernement bosniaque) a prendre toutes les mesures necessaires, y compris par la force, pour faciliter le libre acheminement de l’aide humanitaire et assurer la protection de plusieurs zones de securite. Le maintien de l’embargo sur les armes empeche le gouvernement bosniaque d’assurer la necessaire protection de ses unites civiles qui tentent d’apporter de l’aide aux nationaux de Bosnie et l’empeche de defendre efficacement lesdites zones de securite zones que les Nations unies non seulement ne parviennent pas a proteger correctement, mais songent meme a abandonner.

L’embargo sur les armes viole la Convention des Nations unies sur le genocide. Cette convention, adoptee apres les atrocites de la deuxieme guerre mondiale, exige des Etats qu’ils empechent et punissent le crime de genocide. Bien qu’il y ait debat sur la realite d’un genocide en Bosnie (le gouvernement britannique affirme aujourd’hui que la Bosnie etait au bord du genocide au moment de l’envoi des troupes des Nations unies), le tribunal pour crimes de guerre en Yougoslavie, expert juridique en la matiere, a estime que des crimes de genocide avaient ete commis en Bosnie et a inculpe plus de vingt criminels de guerre. Les Etats partisans de l’embargo, qui refusent au gouvernement bosniaque les moyens de proteger ses nationaux du genocide, se rendent ainsi coupables de complicite crime que punit la Convention sur le genocide.

Bien qu’adequat lors de son adoption, l’embargo sur les armes ne se justifie plus. Devant son illegalite manifeste, la question se pose de savoir comment il a pu etre decide. Sa mise en place en septembre 1991 etait, a l’origine, conforme a la legislation internationale, la Yougoslavie ayant consenti a une telle mesure l’ayant reclamee, en realite. Le pays n’etait pas alors victime d’une attaque armee, encouragee par l’etranger, et conservait d’importantes reserves d’armes pour assurer avec efficacite sa propre defense. Cependant, apres la secession de la Bosnie, sortie de la Yougoslavie en mars 1992, et son admission aux Nations unies en mai, l’embargo sur les armes ne pouvait plus legitimement s’appliquer a la Bosnie pour plusieurs raisons: la Bosnie n’avait pas consenti a l’embargo, mais s’y etait energiquement opposee; elle faisait l’objet d’une agression militaire directe, soutenue par ses voisins; cette agression avait pour but l’adoption d’un programme de nettoyage ethnique; enfin la Bosnie ne disposait pas du minimum de stock d’armes defensives pour assurer sa protection.

La Bosnie est menacee de disparition, les 32 % du territoire qu’elle controle etant soumis a un siege de caractere moyenageux

Dans le cas de la Bosnie, le droit a sa propre defense implique que lui soit autorisee l’acquisition d’armes defensives. Bien que, dans certaines circonstances, le droit de se defendre n’implique pas necessairement celui de recevoir des armes, tel n’est pas le cas de la Bosnie. Elle est menacee de disparition, les 32 % du territoire qu’elle controle etant soumis a un siege de caractere moyenageux. La Bosnie sera sans doute rayee de la carte, en meme temps que ses nationaux, les Bosniaques, a moins que les Etats membres des Nations unies ne lui permettent de defendre convenablement son territoire et ses habitants. La protection du territoire et des habitants d’un Etat etant au coeur du concept de defense nationale, le droit de la Bosnie a sa propre defense passe par sa capacite a acquerir des armes.

La levee unilaterale de l’embargo sur les armes par des Etats membres des Nations unies n’affecte pas la poursuite des autres embargos sur les armes decides par les Nations unies. Certains Etats pretendent que prononcer l’illegalite de l’embargo sur les armes en Bosnie aboutira a la levee des autres embargos sur les armes decides par les Nations unies, comme pour l’Irak et la Libye. Ces affirmations ne prennent pas en compte la difference majeure qui separe juridiquement un Etat victime tel que la Bosnie d’Etats predateurs.

En depit de l’evidente illegalite de l’embargo sur les armes, et de son indeniable echec a apporter la paix et la securite dans les Balkans, le Conseil de securite semble n’avoir toujours pas la volonte politique de donner au gouvernement bosniaque la possibilite de se defendre. Ses Etats membres doivent donc par eux-memes soit individuellement, soit collectivement faire en sorte de lever cet embargo et condamner ceux qui continuent de le soutenir contre le principe de justice et en violation de la legislation internationale.


Op-Ed: UN Members Share Guilt for the Genocide in Bosnia

UN Members Share Guilt for the Genocide in Bosnia

By Paul R. Williams, The Christian Science Monitor, August 9, 1995

The United Nations Convention on Genocide requires that all nations prevent and punish crimes of genocide. By enforcing the illegal UN arms embargo on the sovereign and independent state of Bosnia- Herzegovina, the member states of the UN are not only failing to prevent and punish crimes of genocide, they are actually facilitating the commission of these crimes.

This is a fact President Clinton should bear in mind when considering whether to veto recent legislation seeking to lift the arms embargo.

The Convention on Genocide was adopted to prevent a recurrence of the atrocities experienced during World War II, and as such it defines genocide as the deliberate attempt to destroy a national, ethnic, racial, or religious group, in whole or in part. Recognizing genocide as a scourge on humanity, the convention criminalizes not only genocide, but also attempted genocide, incitement to commit genocide, and complicity in genocide.

Much international attention has naturally been focused on the fact that the Serbian nationalists are widely responsible for pursuing a policy of genocide in Bosnia. This fact has been confirmed by the indictments of Radovan Karadzic and Ratko Mladic for crimes of genocide.

There is no doubt, therefore, that evidence exists to prove that genocide, as defined under international law, is occurring.

Members’ responsibility

There has, however, been little attention focused on the responsibility of nations and international policymakers for their part in the commission of crimes of genocide. Most states and international policymakers naively assume that, since they are pursuing a policy of ”negotiate and pray,” and because they have the best interest of ”peace” (appeasement) at heart, they can’t be associated with the genocide taking place in Bosnia.

What these international policymakers fail to realize is that an integral component of their ”negotiate and pray” strategy – the exclusive enforcement of the arms embargo on Bosnia-Herzegovina – is a tool of genocide.
Enforcement of the arms embargo facilitates the ability of Serb forces to commit genocide and reduces the Bosnian government’s ability to defend its citizens from that genocide by permitting Serb forces to retain a superior military edge.

Because the countries enforcing the arms embargo are aware that it facilitates the commission of genocide, the Serbian nationalists reasonably interpret the continued enforcement of the embargo as tacit acceptance and encouragement of their genocidal acts.

Most policymakers who support the arms embargo contend that they do not ”intend” to encourage genocide, so their policy could not therefore promote genocide.

The genocide convention, however, does not require that a third-party nation or international policymaker actually intend to commit a crime of genocide. The mere fact of their complicity in the commission of genocide, be it through intent, arrogance, or ignorance, makes them liable for that crime.

International policymakers frequently recite the mantra that they are required to enforce the arms embargo because it is mandated by a Security Council resolution.

Although the Security Council adopted more than 75 UN resolutions, including the protection of Zepa, a so-called UN ”safe area,” the arms embargo on the former Yugoslavia is one of the few that is actually enforced – and then only with respect to Bosnia-Herzegovina.

The arms embargo is, in fact, the one resolution that should not be enforced because it is illegal under international law. It is illegitimate because it violates Bosnia-Herzegovina’s territorial integrity and inherent right of self-defense as codified by UN Charter Articles 2(4) and 51.

The embargo further contravenes the obligations of UN member states and the rights of Bosnia-Herzegovina under several Security Council and General Assembly resolutions. States are thus not only permitted but are obligated by the rule of law to cease enforcement of the arms embargo.

‘Official state policy’

The last remaining bit of cover for international policymakers carrying out the arms embargo is that they are simply state officials dutifully carrying out official state policy.

Yet not even this argument absolves their actions. The Convention on Genocide unambiguously declares that those who commit crimes of genocide shall be held responsible and punished, whether they are ”constitutionally responsible rulers, public officials, or private individuals.”

Foreign countries enforcing the arms embargo deny the Bosnian government the means to protect its citizens from genocide, violate their own obligations to prevent genocide, and are responsible for complicity in genocide – a crime punishable under the genocide convention.

They should keep in mind that, although no tribunal has been established to prosecute those who violate the arms embargo, a tribunal has been established to prosecute those responsible for crimes of genocide.

Paul R. Williams is former attorney-adviser, Office of the Legal Adviser for European Affairs, US Department of State. He is currently the executive director of the Public International Law and Policy Group and a Fulbright Research Scholar at the University of Cambridge.


Op-Ed: Indict Serbia’s Milosevic for Crimes Against Humanity

Indict Serbia’s Milosevic for Crimes Against Humanity

By Paul R. Williams and Michael P. Scharf, International Herald Tribune, March 21, 1998

The recent killing of more than 80 civilians, including women and children, in Kosovo raises yet again the question of why the International Criminal Tribunal for the Former Yugoslavia has not indicted Slobodan Milosevic for crimes against humanity.

Despite ordering and supervising the slaughter of more than 200,000 civilians in Bosnia-Herzegovina, Mr. Milosevic was granted de facto immunity as the war crimes tribunal accepted the Clinton administration argument that he represented the keystone to any lasting peace in Bosnia.

The administration contended that although Mr. Milosevic could be perceived as having aided and abetted war crimes and of being complicit in the commission of genocide, there was no ”smoking gun,” or direct order bearing his signature.

Yet now that peace has begun to take hold in Bosnia, Mr. Milosevic has lost any shield of political utility. This, coupled with the fact that he has now orchestrated crimes against humanity in his own country, by forces under his direct command, exposes him to immediate indictment by the war crimes tribunal.

As an acknowledgment of Mr. Milosevic’s prima facie culpability, the tribunal recently issued a press release indicating that it exercised jurisdiction over events in Kosovo. Although they occurred as a result of an internal conflict, individuals ordering or participating in atrocities could be found liable for crimes against humanity, the release said.

The tribunal’s immediate next step should be to issue a public indictment of Mr. Milosevic based on his responsibility for the systematic attacks on Kosovo’s ethnic Albanian population.

Civilians have been hanged, shot, burned and tortured. Mothers have seen their children murdered and children have seen their fathers hunted and shot, according to several reports.

As president of the Federal Republic of Yugoslavia, Mr. Milosevic is directly responsible for the crimes against humanity committed in Kosovo.

He exercises power, influence and control over the Serbian military, over the police forces of the Interior Ministry and over many of the Serbian paramilitary forces that committed the atrocities.

Without Mr. Milosevic’s direct order, it would not have been possible for the helicopter gunships, light tanks and armored personnel carriers of the military and police forces to have carried out the coordinated, well-executed attacks on the homes of Kosovo’s Albanian villagers.

Mr. Milosevic is also criminally responsible for the Kosovo atrocities under the doctrine of ”command responsibility.” As the civilian commander of the military and police forces, he has a legal obligation to prevent his forces from committing, encouraging or enabling others to commit crimes against humanity.

Rather than directing his forces to protect civilians, it appears from the systematic nature of the Kosovo slaughter that Mr. Milosevic intended the attacks to serve as a warning to Kosovo Albanians that any further moves toward self-determination would result in an ethnic cleansing of the region.

The way toward peace in the former Yugoslavia lies in bringing about an end to Mr. Milosevic’s illegitimate and immoral regime. The war crimes tribunal must summon the political will to act on the evidence of Mr. Milosevic’s most recent crimes against humanity and bring him to justice.

If the tribunal fails to act now, it will undoubtedly soon be overwhelmed with all the evidence it could desire as Mr. Milosevic’s program of ethnic cleansing and genocide in Kosovo unfolds. –

Mr. Williams, a senior associate with the Carnegie Endowment for International Peace, and Mr. Scharf, a professor at the New England School of Law, contributed this comment to the International Herald Tribune.