This post is my contribution to Spotlight on Darfur 2.
On October 1st, 2005, the African Union's envoy to the Sudan, Baba Gana Kingibe, leveled a serious charge against the government of Sudan:
As you may well know, AMIS patrol teams have often encountered restrictions to their movement, particularly in SLA-controlled areas. The SLA commanders have often cited lack of prior notification, and more significantly the use by GOS forces of vehicles painted in AMIS colours which makes it extremely difficult for them to distinguish friend from foe. In these latest incidences, we indeed observed some GOS vehicles painted in white colour, giving credence to the claim by the SLA. We, therefore, view as unacceptable and in violation of all established norms and conventions the use of a neutral parties colours by belligerents as is done by the GOS forces. This practice of painting some of the vehicles in AMIS colours was witnessed during the attack on Tawila, and a couple of days earlier in Shangil Tobaya. We urge the GOS forces to stop forthwith this unethical practice in order to maintain the integrity and neutrality of the AMIS forces. We now call upon the GOS forces, as indeed we had called upon the rebel movements before, to immediately cease any further acts of violations of the ceasefire on the ground. I appeal to them to honour the sacredness of the holy month of Ramadan into which we are now entering and stop the bloodshed in Darfur, to stop any further suffering of the innocent population of Darfur, especially those living on handouts in the IDP camps, and allow them to observe the holy month in serenity, peace and dignity.
[Emphasis added]
International humanitarian law, in particular Article 37 of the first additional protocol to the Geneva Conventions, Relating to the Protection of Victims of International Armed Conflicts, clearly prohibits perfidy, defined in part as "the feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other States not Parties to the conflict." The reasoning behind the prohibition against perfidy is self-evident: perfidy on the battlefield endangers civilians and combatants who might otherwise be protected by the laws of war. Even a limited, tactical use of perfidy has grave implications for international humanitarian law. Indeed, bringing about a situation of partial or total lawlessness may conceivably be a strategic aim of those who employ perfidy. Thus acts of perfidy may justly be said to be in violation of all established norms and conventions.
The government of Sudan, as one might expect, is not a signatory to the first additional protocol. (The United States, of which I am a citizen, has signed but not ratified the treaty; in my view this is a mistake.) Sudan, has, however, committed itself to international human rights treaties, including the Banjul Charter on Human and People's Rights. The Banjul Charter was originally an instrument of the Organization of African Unity, and it now falls under the purview of the African Union. The Banjul Charter makes a remarkable contribution to the discussion of international human rights, in that it enunciates a broad range of rights and obligations, some of which had not been recognized in previous human rights documents. The Banjul Charter is also remarkable for the fact that a handful of its signatories have made a complete mockery of its principles. It's perhaps not an unfair reading of the history of the Organization of African Unity to say that such mockery of its founding principles contributed greatly to its slide into irrelevance, and that the greatest challenge facing the African Union is how to avoid becoming another "club for dictators and a useless bureaucratic talk shop."
Sudan responded to Kingibe's accusations as per usual: by attacking the messenger, as well as its means of delivery, diverting attention away from the message itself.
Ambassador Kingibe deliberately opted to address the media directly without first resorting to and abiding by the established norms and rules of procedure.
In his address to the media he also violated other diplomatic norms by the language he used and the phrases he selected to raise his concerns as a Special Representative of the Chairperson of the African Union.
He is not in position to give moral lessons to a founding member of the African Union or to judge, without verification, whether the Government of the Sudan is acting in good faith or respecting its commitments.
Kingibe, for his part, has said that he does indeed have films and pictures to support his claims that Government of Sudan helicopter gunships were recently involved in attacks against civilians. Whether he will be releasing any similar evidence of perfidy, I do not know, but I have seen no reason to doubt his credibility so far, and that puts him head and shoulders above some of the other concerned entities. As for Kingibe's position to give moral lessons to a founding member of the African Union, one wonders exactly whom the government of Sudan has been relying upon for moral guidance. Legally, Special Representative Kingibe indeed appears to be in a position to give moral lessons to the government of Sudan. Article 4 of the African Union Charter reads:
The Peace and Security Council shall be guided by the principles enshrined in the Constitutive Act, the Charter of the United Nations and the Universal Declaration of Human Rights. It shall, in particular, be guided by the following principles:
peaceful settlement of disputes and conflicts;
early responses to contain crisis situations so as to prevent them from developing into full-blown conflicts;
respect for the rule of law, fundamental human rights and freedoms, the sanctity of human life and international humanitarian law;
interdependence between socio-economic development and the security of peoples and States;
respect for the sovereignty and territorial integrity of Member States;
non interference by any Member State in the internal affairs of another;
sovereign equality and interdependence of Member States;
inalienable right to independent existence;
respect of borders inherited on achievement of independence;
the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity, in accordance with Article 4(h) of the Constitutive Act;
the right of Member States to request intervention from the Union in order to restore peace and security, in accordance with Article 4(j) of the Constitutive Act.
Sudan's understanding of its commitment seems to be that it can ignore those items in the charter that it finds unpleasant, or that its national soveriegnty trumps all other considerations. It would be laughable if only the consequences weren't so pernicious. What have been the consequences of perfidy to date? In the past several weeks, African Union peacekeepers have been taken hostage, and a total of seven peacekeepers have been killed by rebel groups. Rebel factions have challenged the impartiality of the African Union, the Abuja talks are on the brink of collapse, threatening the agreed-upon ceasefire. As the violence has escalated beyond the capacity of the African Union peacekeepers to control, the United Nations has evacuated non-essential staff from West Darfur, a move which will deprive many thousands of people of desperately needed food, water, medicine and other supplies. All in all there has been another wretched turn of events over the past month, and while perfidy cannot be the sole cause, it surely has caused damage.
It occurs to me Kingibe may have said one thing in particular that got under the skin of the Sudanese government, namely his appeal "to honour the sacredness of the holy month of Ramadan." Surely it's not news to the government that dropping bombs on civilians is unholy. And having claimed to govern according to Islamic principles, they are hardly in a moral position to object to such an entreaty. What's at stake, it would seem, is whether Muslims around the world will come to identify with the Muslims who are being slaughtered during the month of Ramadan, or the government that is using its armed forces to slaughter them.
In thinking about the issue of human rights, I had turned to Richard Rorty's essay, "Human Rights, Rationality, and Sentimentality" (in Stephen Shute and Susan Hurley, eds., On Human Rights (New York: Basic Books, 1993)), and found it rather useless. Rather, because there would appear to some warrant for the claim that human rights are grounded in educated moral sentiments rather than some form of knowledge or reason. Useless, because I'm not sure the philosophical problem Rorty addresses hasn't been eclipsed by a more urgent set of problems arising from willful and flagrant betrayals of international law. Another essay in that volume, Jean-François Lyotard's "The Other's Rights," seems much more germaine. Lyotard's argument, crudely put, is that what we call human rights represents a respect for the other which arises from and is governed by the addressivity of language. Lyotard describes a fundamental right to speak, one which is not natural, but civic:
We should then distinguish three different levels of the "right to speak." First, the faculty of interlocution, a principle factually inherent in human languages; second, the legitimation of speech, due to the fact that it announces something other, which it strives to make us understand; and last, the legitimacy of speech, the positive right to speak, which recognizes in the citizen the right to address the citizen. The latter aspect merges the two former. But this confusion is good. By authorizing every possible speaker to address others, the republic makes it every speaker's duty to announce to those others what they do not know. It encourages announcements; it instructs. And, on the other hand, it forbids that anyone be arbitrarily deprived of speech. It discourages terror. In this way it governs silence in everyone's best interest, authorizing the silence of discipline and outlawing the silence of despotism.
(p.143)
How can we judge perfidy in light of Lyotard's formulation? We certainly have the capacity to announce things that aren't true, but we hardly have that right (setting aside the problem of literary fictions and such), any more than we have a right not to take moral lessons or not to be civilized. Perfidy represents a direct assault on humanity's collective ability to bestow legitimacy. The victims of Sudan's perfidy are thus not only the people who are suffering and dying in Darfur at this very moment, but each and every one of us who is able to speak.
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