1. The UN report on Darfur: What role for the AU?

The UN International Commission of Inquiry established by Security Council Resolution 1564 on 18 September 2004 to "investigate reports of violations of international humanitarian law and human rights law in Darfur by all parties, to determine also whether or not acts of genocide have occurred" completed its work and submitted its findings to the UN Secretary General on 31 January 2005.

Although the report did not find genocide to have occurred in Darfur, it confirms that serious violations of international human rights law and humanitarian law by all parties have taken place and are continuing. In particular, the Commission found that Government forces and militias conducted indiscriminate attacks, including killing of civilians, torture, enforced disappearances, destruction of villages, rape and other forms of sexual violence, pillaging and forced displacement, throughout Darfur.

These acts were conducted on a widespread and systematic basis, and therefore may amount to crimes against humanity. The Commission recommends that the International Criminal Court (ICC) should prosecute those persons allegedly responsible for the most serious crimes as part of the solution to the Darfur crisis.

It is notable that the report sparingly mentions the AU and does not prescribe any role it should play in the punishment of the violators of international human rights law and humanitarian law. The AU on its part has steered clear of the definition game of what is or is not "genocide."

When the then US Secretary of State Colin Powell announced on September 9, 2004, that the killing, raping and displacement of black Africans by horse-mounted Arab fighters amounted to genocide, the AU called it a "big mistake" and criticized Powell for "undermining the AU." The AU wiggled out of intervening in Darfur by arguing that it will "call it genocide" after carrying out a "full investigation."

However, it would be wrong to assume that the AU's refusal to acknowledge, despite the teeming evidence in its field reports, that genocide has taken place in Darfur is the decision of one official.

In a communiquÈ issued in July, the AU Peace and Security Council (PSC) stated that even though the crisis in Darfur was grave with unacceptable levels of deaths, human suffering, and destruction of homes and infrastructure, the situation could not be defined as "genocide."

The AU's highest organ, the Assembly of Heads of State and Government, also reiterated this position during the 6-8 July 2004 Summit, when it noted "that, even though the humanitarian situation in Darfur is serious, it can not be defined as a genocide."

Indeed, the UN Commission has concluded that although inhuman acts may have been committed "with genocidal intent?no genocidal policy has been pursued and implemented in Darfur by the Government authorities, directly or through the militias under their control."

But the AU should not rest on its laurels and feel that it has been exonerated from intervening in Darfur to protect civilians who are being victimized by the Government-supported armed militia groups, the Janjaweed. According to Article 4(h) the Constitutive Act, the AU has "the right...to intervene in a Member State pursuant to a decision of the Assembly (of Heads of State and Government) in respect of grave circumstances, namely war crimes, genocide and crimes against humanity."

If we accept the findings of the UN Commission report that "war crimes and crimes against humanity" are taking place in Darfur, then the AU should be urged to invoke Article 4(h) to intervene in Darfur and protect the civilian population. However, for the following reasons, the AU is incapable of invoking Article 4(h) to intervene in Darfur.

Lack of Political Will

African leaders at the moment have no political will to authorize the AU to intervene in one of its most important member-states. As the Darfur decisions of the July 2004 and January 2005 Summit show, African leaders are not interested in ordering actions that would set precedents. Africa is replete with Darfurs. There are at least half a dozen African states that are currently facing serious political crisis that could lead to civil wars. If the AU intervenes in Darfur, it must prepare to intervene in the near future in Zimbabwe and Nigeria, which have simmering civil conflicts, and in Ivory Coast and Uganda, which are embroiled in seemingly intractable civil wars.

It would be a form of poetic justice for Nigerian President Olusegun Obasanjo, to preside over the AU intervention in Sudan and in 2006 have the same organization, under the chairmanship of Omar al-Bashir, intervene in Nigeria, assuming the situations in the Delta and Plateau regions are not contained. Likewise, AU leaders, particularly South African President Thabo Mbeki, would find it difficult to authorize AU intervention in Zimbabwe or Uganda to protect civilian populations of those countries.

AU Lacks Institutional Capacity

Assuming that African leaders had the political will to intervene in Darfur pursuant to Article 4(h) of the AU Constitutive Act, the AU would still not be able to do so as it does not have the requisite capacity.

As the chaotic deployment of the AU Mission in Sudan (AMIS) has proven, poor logistical planning and lack of trained personnel, funds, and experience in intervening to protect civilians have exposed the AU to be a mere child that has not even learned to walk on its own. It has been more than six months since the AU made the decision to send 3,300 troops to protect its own civilian monitors in Darfur.

So far, it has been unable to deploy half the troops. The haphazard way in which AMIS was conceived, planned, deployed and is being operated has brought back the sad memories of the OAU peacekeeping mission in Chad in early 1980s.

The Sudan Factor

Even if African leaders had the political will and the AU had the capacity to intervene in Sudan to protect the civilian population of Darfur, it would still find it difficult to make the decision and marshal regional, continental and international support needed for such an intervention.

Regionally, such an intervention will need the support of the Intergovernmental Authority on Development (IGAD). A decision by IGAD supporting such an intervention will have to be made by the IGAD Assembly of Heads of State and Government, which is chaired by President Yoweri Kaguta Museveni, who will not allow IGAD to make such a decision for reasons pointed out above. Were IGAD to make such a decision it would have to be implemented by the Executive Secretary, Dr. Attala Hamad Bashir, who is Sudanese.

Continentally, the AU would have to rely on the expert advice of the African Commission on Human and People's Right (ACHPR) on matters relating to international human rights and violation of the African Charter on Human and People's Rights. The ACHPR would not easily and expeditiously arrive at recommendations on violations of human rights in Sudan as its vice chairman is Yassir S. A. El Hassan, who is an official of the Sudan Ministry of Justice. The inability of the ACHPR to conduct an investigation of human rights violations in Darfur is now apparent as the resolution it adopted on 4 June 2004 to do so has yet to be implemented.

Were the ACHPR to come up with a report showing that human rights violations were taking place in Darfur and that urgent action was needed to protect civilians that report would be presented to the PSC, the AU body with the responsibility of deciding on matters of intervention. The PSC has 15 members without veto powers. Sudan is a member of the PSC. However, it is an open secret in Addis Ababa that Sudan has "veto power" on the PSC through its powerful Permanent Representative, Osman Said, who is the dean of the diplomatic corps and former head of the national intelligence service.

Sudan is also a member of the Bureau of the Assembly of the AU, the leadership body that includes Mali, Senegal, Burundi, Chad, Libya, Saharawi Arab Democratic Republic,?Ethiopia, Botswana, Equatorial Guinea and Swaziland. The Bureau decides on important matters of the Assembly including the venue and the agenda.

Originally Sudan was supposed to host the AU Summit in July 2005 but this venue has been changed to Libya. However, Sudan will still host the January 2006 Summit. It is traditional that the country that hosts the AU Summit also assumes the organization's Chairmanship and it is most likely that Sudan would do so when it host the January 2006 Summit.

Internationally, an intervention in Darfur would have to get the Security Council's stamp of approval, under Article VIII of the UN Charter. Sudan has powerful friends, Russia and China, in the Security Council who are most likely to veto such a decision. Russia is the main supplier of arms to the Khartoum government while China has secured lucrative oil deals in Sudan.

It is apparent that the time has come for the role of the AU in Darfur to be evaluated, as the above facts have clearly pointed to one conclusion: it is time the UN Security Council assumed its primary responsibilities of maintaining peace and security in the whole of Sudan. The AU should be thanked for the role it has played so far and be asked to back out now with grace before things get messier.

* Waranya Moni works for an international organization specializing in humanitarian assistance.

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