The UN’s Obligation to Prevent Genocide in el-Fasher: Is it Time for the UNSC to Authorize Force?

[Sanmay Moitra is a research assistant at ‘Human Rights in Practice’ and an Advanced LLM candidate at Leiden University. He has previously studied international law at the University of Oxford and Georgetown University.]

The UN’s Human Rights chief – Volker Turk – delivered a scathing condemnation on 14^th November, of the international community’s inaction on the situation in Sudan noting that “there has been too much pretense and performance and too little action.” Mr. Turk’s frustration is well-founded. In the wake of the Rapid Support Forces (RSF) seizing control of el-Fasher, the UN Security Council held an emergency session on 30 October and released a press statement noting “large-scale” and “ethnically motivated atrocities” being committed. This reflects widespread reporting of the RSF committing genocidal crimes in el-Fasher. Regretfully, however, the UNSC stopped at expressions of “grave concern,” condemnation, and calls for accountability. It has been almost two months since Mr. Turk’s urgent reminder that “the international community has a clear duty to act,” and the UNSC is yet to take or even seriously consider any decisive action in el-Fasher. The UN’s inaction and lethargy in preventing the commission of a rapid and ruthless genocide is hauntingly reminiscent of the tragedies that transpired in Srebrenica and Rwanda. With history repeating itself, the UNSC must do more. 

As such, though the imperative to act is without doubt, the legal basis and content of this ‘clear duty to act’ remain uncertain and unclarified. Given the circumstances now, it is likely that this legal duty would require the UN – through the UNSC –to act under Chapter VII of the Charter to intervene in el-Fasher with force. The legal imperative for this stems from the UN’s obligation to prevent genocide – the discharge of which in this instance would require the UNSC to intervene with force. This conclusion, of course, must never be arrived at with any haste; indeed, the use of force, let alone an obligation to do so, must always be a last resort both doctrinally and in practice. It is only, however, the continued failure of the international community to make decisive non-forceful interventions in relation to Sudan and the RSF in ignorance of years-long warnings that has led to this unfortunate conclusion. 

The Legal Basis of the Obligation: Is the Obligation to Prevent Genocide Applicable to the UNSC?

It is accepted that the obligation to prevent genocide, though finding its roots in the Genocide Convention, is now a rule of customary international law (and perhaps even a jus cogens norm). It is equally accepted that this obligation binds all States. Whether such rules of international law are ‘applicable’ to international organisations (IOs) such as the UN has, however, been the subject of some academic disagreement. 

As a starting point, it is clear that “international organisations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law” (para. [37]). The crux of the disagreement, however, is what constitutes the body of ‘general rules of international law’ as specifically applicable to IOs. Jan Klabbers  argues that primary rules of customary international law cannot apply to IOs since such law is created by States, with the consent of States, and is thus applicable only to “the community of States” (p. 997). August Reinisch, however, counters that rules of customary law can apply to and bind IOs in the same way it applies to new States who equally did not form part of ‘the community States’ at the time the custom was created and thus there is nothing special in the nature of IOs that prevent the applicability of customary rules (p. 1018).

Despite Klabbers’ contestation, Reinisch’s argument better reflects the general consensus on this point. This consensus is most clearly reflected in the Third Report on Responsibility of IOs where Special Rapporteur Gaja noted that where the UN is “in a position to prevent genocide, failure to act would have represented a breach of an international obligation” to prevent genocide (para. 10). Further, in the Mothers of Srebrenica case, the UN has also already been accused of breaching its duty under the obligation to prevent genocide in Srebrenica. Ultimately, the UN was only allowed to avoid legal responsibility in recognition of its jurisdictional immunities. As the ICJ explained in the Arrest Warrant case, such immunities are merely procedural and do not affect the substantive responsibilities of the subject (para. 60). In fact, the ECtHR’s emphasis on immunities was largely underscored by an assumption that the UN was, in fact, bound by the obligation to prevent genocide as a jus cogens norm. 

Therefore, there exists significant consensus and precedence to the understanding that the legal obligation to prevent genocide applies to and binds the UNSC. 

What Does the Obligation to Prevent Genocide Require the UNSC to Do?

The obligation to prevent genocide is triggered as soon as there exists a “serious risk that genocide will be committed” (para. 431). Though the particulars of this high threshold are debated, it can hardly be contested that it is not met in the present instance. The African Union Special Envoy on the Prevention of Genocide and Other Mass Atrocities – Adama Dieng – explicitly noted that “the risk of genocide exists in Sudan” in his address to the UN Human Rights Council. As such, the UNSC is now under a continuing obligation to discharge its duties to prevent the commission of genocide in el-Fasher. But what exactly does this duty entail and what does it require the UNSC to do? 

This question requires a contextual and fact-sensitive assessment since, though the obligation to prevent genocide attaches to all subjects of international law, it does so to varying degrees and effects relative to each actor’s availability means, capacities, and geographical and political proximity. The ICJ’s judgement in the Genocide Convention case would suggest that the threshold for the discharge of this obligation in the present circumstances is perhaps as high as requiring the UNSC to act with armed force under Chapter VII of the UN Charter.

This threshold can be derived from the ICJ’s determination that the general obligation is to take “all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide” (para. 430). The test for whether the obligation to prevent genocide has been discharged, therefore, involves looking at the nexus between the entire range of lawful options available and those that may be potentially effective. The standard for what may be ‘effective’ is determined by both the actor’s and that specific measure’s “capacity to influence” the commission of the genocide (of course, a particular measure’s capacity to influence depends a great deal on the actor’s underlying capacity to influence) (para. 430). The nexus thus consists of the subset of all options with a capacity to influence the situation within the larger set of all options that may be lawfully exercised. As such, only once the UNSC has exercised all options within this nexus, does it discharge its duties under the obligation to prevent genocide.

This nexus test derived from the ICJ’s approach requires the UNSC to intervene with force under Chapter VII in el-Fasher to discharge its obligation to prevent genocide. Undoubtedly, intervening with force is well within the UNSC’s set of all available options since it is empowered to do so under Chapter VII. A further question, however, is whether the UNSC can legally use force under Chapter VII under the circumstances since an actor may “only act within the limits permitted by international law” (para. 430). Under Chapter VII, the UNSC is empowered to intervene with armed force when two cumulative conditions are satisfied. 

First, there must exist a “threat to the peace, breach of the peace, or act of aggression” which is required to trigger the UNSC’s Chapter VII powers (Art. 39). This condition can safely be assumed to be satisfied given that the UNSC has already determined “that the situation in Sudan continues to constitute a threat to international peace and security in the region” in Resolution 2791. 

Second, for the UNSC to intervene with armed force, measures not involving the use of force must either be considered inadequate or prove to have been inadequate (Art. 42). Crucially, this means that the UNSC is not bound to actually exhaust all means not involving force before it can use force; it must just consider all other means inadequate. Given the rapid pace at which the RSF is committing genocidal acts with complete disregard for calls for compliance with international law, it is not hard to reach a conclusion that measures not involving armed force would be inadequate. In any case, the UNSC has also already exercised measures not involving the use of armed force which have proven to be inadequate. In Resolution 2736, for example, it was “[demanded] that the Rapid Support Forces halt the siege of El Fasher” and that it “ensure the protection of civilians, including by allowing civilians wishing to move within and out of El Fasher to safer areas to do so”. This constituted a binding direction issued to the RSF which has clearly proven to be inadequate given the RSF’s capture of el-Fasher and genocidal acts already committed since.

In addition to the use of force being a lawfully available measure, the UNSC is also obliged to exercise this measure given both the measure’s and the UNSC’s capacity to influence. Three points reflect this. First, because an armed intervention is a coercive measure and thus, of necessity and by definition, possesses a capacity to effectively influence the commission of genocide. This brings the use of force within the nexus of available and effective measures that must be undertaken to discharge the obligation to prevent genocide. Second, the UNSC is in a singularly unique position where it can use force lawfully to prevent genocide. This is significant since an actor’s capacity to influence must be considered in light of its “legal position vis-à-vis the situations and persons” involved (para. 430). Since the UNSC’s Chapter VII powers are one of only three uncontroversial grounds to use force legally, it enhances the UNSC’s capacity to influence the commission of genocide and consequently also increases its responsibility to do so. Third, the UN’s character as an IO further enhances its capacity to influence. As Abbott and Snidal have demonstrated, IOs – particularly those with large secretariats and administrative capabilities such as the UN – enjoy unique advantages in terms of managing operational activities, pooling resources, and supporting state cooperation; all of which contribute to boosting the effectiveness of an armed intervention to prevent the continuing commission of genocide.

In sum, the UNSC is capable of being bound by the obligation to prevent genocide under international law. To discharge this obligation in the context of el-Fasher, the UNSC must exercise all measures lawfully available to it that, in light of the UN’s capacity to influence the commission of genocide, may prove effective. As such, the UNSC has a legal responsibility to intervene with armed force to prevent genocide since this measure is both lawfully available and likely to effectively influence the commission of genocidal acts by the RSF.

Concluding Thoughts – A Word of Caution

Though I have argued that the UN is obliged to, and must, intervene in el-Fasher with force to prevent genocide, I recognise the need to make this argument with caution. Indeed, neither a conclusion that international problems must be dealt with by force nor a legal argument legitimising it must be made with haste. Indeed, in most instances the UN would satisfy its obligations if it were able to secure the protection of civilians through other means such as humanitarian aid cutting off the supply of weapons to the belligerent at risk of committing genocide. This, however, does not seem practically possible in el-Fasher anymore and devastating lessons learnt from the UN’s hesitation in Srebrenica and Rwanda must not be forgotten. As such, it is crucial to stress that the situation in el-Fasher represents an exceptionally urgent and dire crisis which triggers an equally exceptional obligation of the UNSC to go as far as using force. Importantly, this obligation rests only on the UNSC and no individual state can cry genocide to justify the unilateral use of force. That such unilateral uses of force to prevent genocide are likely unlawful has also been noted by the ICJ’s Order for Provisional Measures in Ukraine v Russia and this must be respected (para. 59).

The UN, too, must tread with sensitivity and respect for international law in using force; the rules of engagement must be strict, and accountability mechanisms strong. Here, the UN must learn from its failures in Haiti and South Sudan. Most fundamentally, it is imperative that the UNSC’s intervention is with the consent, support, and collaboration with the Sudanese government and that any intervention is absolutely limited in its material and temporal scope to protecting civilians against genocide with a defensive attitude. 

Most crucially, however, the situation in el-Fasher must serve as a warning for the UN and the international community about the consequences of neglecting to take the signs of a developing crisis seriously. It must be remembered that the present circumstances in el-Fasher were not reached overnight. As Mr. Turk also stated, the situation was “foreseen and preventable – but they were not prevented” and his office had repeatedly warned of this. Both the UN and the international community, however, repeatedly ignored warning signs and omitted to take decisive and effective action not involving the use of force at a time when those options were still available; had they done so, it is very possible that the UN, today, would not be constrained to intervening with force.