Preserving Self-Determination in the Search for Peace in South Sudan

Photo Credit: https://www.flickr.com/photos/eeas/

By Guest Contributor:

Laura Nyantung Beny Professor of Law, University of Michigan Law School Co-editor of Sudan’s Killing Fields: Political Violence and Fragmentation

 

 

Following decades of civil war in Sudan, in 2011 South Sudan became an independent nation due to an internationally brokered peace agreement and referendum on secession. At independence, Southern Sudanese and many international supporters were jubilant and full of great hope for the new country, a region which had been in nearly perpetual conflict.

Early hopes and celebration gave way in December 2013 to an intractable conflict, now recognized as a civil war, between rival factions of the ruling Sudan People’s Liberation Movement/Army (the “SPLM/A”). The competing factions include forces loyal to President Salva Kiir, a Dinka, and former Vice President Riek Machar, a Nuer. The humanitarian situation is dire. The United Nations (UN) and other bodies have issued warnings about ethnic cleansing and impending genocide. Over 3 million people have been displaced, internally and in neighboring countries. The UN has declared famine status in several regions. Reports chronicle massive human rights abuses, including gender-based violations, such as rape and sexual harassment. Peace remains elusive.

The UN Security Council, governments, and civil society groups have put forth multiple proposals to end the conflict and restore peace to South Sudan. Proposed measures include: UN sanctions (general and targeted); criminal tribunals for culpable leaders; international peacekeeping forces (AU and UN); and national dialogue. Ironically, some have even proposed “neo-trusteeship” for South Sudan.

None of these preceding measures alone is sufficient to end the conflict. Some, like national dialogue, are necessary, while others, like criminal tribunals or sanctions, might be unnecessary for peace. This commentary gives an overview of several of the proposed measures and potential obstacles to their success. It concludes that the most promising, indeed indispensable, measure is an indigenous, all-inclusive peace process. Trusteeship is especially problematic, as it would entail a break from the foundational basis of South Sudan’s sovereignty – self-determination.

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MUCH ADO ABOUT NOTHING: LEGAL REFLECTIONS ON THE UNITED STATES ‘DRONES PLAYBOOK’:PART II

drones

Photo Credit: Doran

Part One available here

Guest Post by: Arthad Kurlekar & Arindrajit Basu

 

In the previous post, we discussed the legal implications of the recently declassified Presidential Policy Guidelines (PPG) in terms of its conformity with the distinction principle in International Humanitarian Law (IHL). It has been argued that the rise of transnational terrorism itself has altered the contours of the Laws of Armed Conflict and thus the legal regime governing counter-measures. Nevertheless we firmly believe that the survival of a global legal order must be predicated on the guarantee of certain principles that cannot be shirked regardless of the circumstances. The principle of sovereign equality of all states, as enshrined in the United Nations Charter is one such non-derogable principle. The PPG violates the principle of sovereign equality by imposing an obligation on other states, higher than that recognised under international law and also that it violates the principle of self-defense under Article 51 of the UN Charter.

SOVEREIGN EQUALITY

The justification of lethal action against High Value Targets (HVTs) who pose an imminent threat to the US also must be questioned for its violation of sovereignty. Sovereign equality mandates that states be internally bound by their domestic legal order and conform to the tenets of international law, not the laws or views of another state. Proponents of targeting argue that a state is required to curb acts of terrorism within their borders, failing which outside states, like the United States, have the power to conduct targeting in self-defense. Such an argument imposes an inequitable obligation to prevent terrorism. Under international law, this obligation extends as far as the taking all ‘practicable measures’ towards the elimination of the threat. The International Court of Justice (ICJ) has confirmed this in the Bosnia Genocide Case, enunciating that the obligation is one of conduct and not of result. Professor Kimberley Trapp has argued for the evaluation of this due diligence standard on a two-pronged test, that of knowledge and capacity. So long as a state is aware of the terrorist operation and is taking reasonable steps given its resources and institutional capacity, it has not breached its obligation.

Continue reading MUCH ADO ABOUT NOTHING: LEGAL REFLECTIONS ON THE UNITED STATES ‘DRONES PLAYBOOK’:PART II