David Sullivan

DiggingInConflictMinerals.pdf

Enough experts David Sullivan and Noel Atama assess the conflict minerals trade in Congo based on firsthand field research.[1]

AP Photo / Riccardo Gangale

Congolese and international efforts to reform the mineral trade

Intense pressure on the Congolese minerals supply chain in the wake of the U.N. investigations and a rising tide of international interest invigorated efforts to establish a legitimate, formal supply chain under the control of Congo’s state authorities.

The Congolese Government

On August 8, Kinshasa dispatched a high-level delegation consisting of Prime Minister Adolphe Muzito and Minister of Mines Martin Kabwelulu to North Kivu to evaluate eastern Congo’s mining sector. Muzito travelled to Walikale, where he stated the government’s determination to bring the mining sector under state control and to remove the military from the mines.[16]

 

The prime minister’s visit was greeted with skepticism among some civil society groups in the Kivus, who perceived a degree of political pandering and populism from a party sorely in need of shoring up its sagging popularity in the east. However, interviews with mining officials in both North and South Kivu indicate that the government has developed a planning process for the minerals sector that will follow on the prime minister’s policy statement.

 

In South Kivu, Provincial Minister of Mines Colette Mikila travelled to the interior of the province for the first time, visiting Shabunda from September 1 - 4 to assess the situation in the field, with plans for the reform of the sector to be presented to the government by year’s end. Importantly, the government is specifically addressing the critical question of achieving a traceable supply chain for minerals, as well as related questions about combating fraud and contraband.

 

Kinshasa’s growing interest in reforming the mining sector in eastern Congo is long overdue. That government officials are only now visiting mining areas, more than three years after elections, indicates the degree to which the minerals trade in the Kivus has been ceded to armed groups and shadow networks. Shifting this dynamic will require more than statements and one-off visits—it will require dedicated resources and political will from President Joseph Kabila himself.

 

The good news is that such a move may be in Kabila’s interest. He won the 2006 election thanks to a vote bank in eastern Congo where his popularity has since plummeted. Delivering benefits to this population may be his only shot at prevailing in 2011 in a credible electoral process. However, this would require cracking down on some of his own inner circle, including powerful politicians, military commanders, and business elites, to demand that they alter their practices and bring the mineral trade in eastern Congo into the sunlight.

The stabilization plan

In debates over eastern Congo’s future everybody agrees that restoring state authority and developing security forces with basic capacity to protect the population is the key to peace. How to accomplish these tasks is more difficult to articulate, and the series of crises that have wracked the Kivus over the years since the 2006 elections have often distracted from this fundamental question. Nonetheless, the political space created by the Rwanda-Congo détente has reinvigorated attempts to try.

 

Toward this end, the Congolese government and MONUC have put pen to paper and developed an integrated plan entitled, “The Stabilization and Reconstruction Plan for Zones Emerging from Armed Conflict.” Based on a stabilization plan developed by MONUC in early 2008, the plan consists of three elements: security, humanitarian and social issues, and economic revival, with ambitious plans to cover six provinces in eastern Congo.

 

Importantly, the stabilization plan recognizes that dealing with illicit exploitation of natural resources is a core security challenge in eastern Congo, and it includes a component within the security objective to install a mechanism to control mineral and forest resources to prevent their illegal exploitation by criminal groups. Over a six-month period the plan envisions deploying mining authorities at the subprovincial level with offices in Beni/Lubero and Walikale in North Kivu and in Shabunda, Uvira, Walungu, Kalehe, Mwenga, and Fizi in South Kivu, as well as assorted locations in Maniema, Orientale, and Katanga. At these buying centers, authorized state authorities would be placed under one roof at transportation hubs, where they would be able to collect official taxes, compile statistics, and certify the origins of minerals.

 

The plan also calls for implementing Congo’s Mining Code and establishing a system of permits for artisanal exploitation of minerals, an aspect of the law that has been slow to be put into practice in eastern Congo, leaving the vast majority of miners operating in an ambiguous quasi-legal state.

 

To demilitarize the mines the plan calls for placing mining sites under the control of legitimate authorities and deploying officials from the mining ministry, its certification authority, and antifraud agents at mining sites themselves, as well as identifying airports and landing strips used to transport minerals and developing proper oversight systems. At airports, ports, and border crossings, the plan calls for placing state authorities under one roof, developing a one-stop shop for applying both mining and forestry laws. Such a system would build upon MONUC’s commencement of random checks of aircrafts and boats to combat contraband, which began in June 2009.

 

Although MONUC has reported the seizure of illicit minerals as a result of these checks, Enough understands that they are extremely limited in scale and scope. Even a modest augmentation of such efforts could help deter the wholesale smuggling of minerals and other illicit trade across Congo’s porous borders.

 

Much more detailed plans will be required to properly assess the viability of the natural resource control elements of the stabilization plan, but its existence and incorporation of these issues is a welcome step forward. The establishment of buying centers would not ensure traceability of minerals back to their specific mines of origin, but they would provide an important first step to reasserting the regulation of the trade by legitimate authorities rather than armed groups and military units.

 

Ultimately, getting the mines out of armed groups’ control will depend on the ability of the Congolese state to exercise control over its own security forces, which would provide the opportunity for other state agents, from mining inspectors to customs authorities, to be able to do their job and to be held accountable for fraud. This task is gargantuan, well beyond the six-month timetable of the plan. But the size of the challenge should not preclude first steps in the right direction. Contingent upon rigorous operational plans, international donors should support stabilization efforts and provide funding to begin the process of reforming the mining sector in the east.

Private-sector efforts

Renewed international attention to Congo’s conflict minerals has provoked an unprecedented response from actors engaged in the trade, from exporters in Goma and Bukavu to metals traders and smelters operating in Europe and Asia, all the way to the electronics companies that manufacture and market mobile phones, laptops, and music players. Although the United Nations and nongovernmental organizations have “named and shamed” companies involved with armed groups in eastern Congo in the past, these efforts have previously had little effect on trade dynamics.[17]

 

However, the 2008 U.N. Group of Experts report and the subsequent decision by metals trader Traxys to suspend purchasing from Congo does appear to have rattled both international and Congolese actors in the supply chain, and has sparked efforts by industry to develop higher standards of due diligence. While there is clearly more enthusiasm among some members on industry than with others, increased engagement on these issues is a good thing.

 

The International Tin Research Institute, or ITRI, is a membership organization that represents the world’s leading tin smelters. Among its members are the two major smelters that have been confirmed as purchasing minerals from eastern Congo—the Malaysia Smelting Corporation and Thaisarco. In response, these companies formed a working group together with Traxys to develop an action plan to implement more rigorous due diligence procedures that would enable companies to continue to purchase from the Congo while seeking to exclude armed groups and military units from the supply chain.[18] The tantalum industry has put forth a similar initiative as well.[19]

 

The ITRI Tin Supply Chain Initiative, or iTSCi, presents a phased approach to improving due diligence and traceable supply chains within the Congolese tin industry. Phase 1 involves improving practices in the already formalized links in the supply chain—ensuring that exporters complete paperwork attesting to the chain of custody for the minerals they export. Phase II involves expanding the project to actually verify mines of origin. Phase III would achieve a more comprehensive program that not only verifies the provenance of minerals, but also measures performance against a range of standards including supply chain mapping, chain of custody, legitimacy, business ethics, and avoiding conflict finance. Timelines for implementation of the initiative lack precision, and they are dependent on external funding.

 

A number of issues with this initiative remain. The most important is ensuring that the initiative’s effectiveness can be independently verified and made subject to audits by third parties without any conflict of interest. There are provisions for independent auditing in the plan, but they have yet to be implemented. If the initiative fails to put rigorous third-party monitoring into practice the scheme will simply be the industry policing itself and papering over the continuing flow of conflict minerals with half measures. Moreover, the industry should take more overt responsibility for taking all possible measures to exclude conflict actors from the supply chain. Although this will require partnership with the Congolese government, the United Nations, donor governments, and civil society, the industry can do much on its own to hold its suppliers to account.

 

On October 6, the Congolese Ministry of Mines endorsed the ITRI initiative following meetings in Kinshasa. In North and South Kivu, Enough encountered receptivity toward the plan from Congolese exporters, although they cautioned that the plan would need to be adjusted and revised to be feasible to implement on the ground in eastern Congo. Likewise, a coalition of civil society organizations in South Kivu active in supporting a process of dialogue with government and industry on mining sector reform has also called for international companies to engage with local structures to prevent a boycott of Congolese minerals that might adversely affect miners and their families.

 

In discussions with Enough, exporters suggested that other means of achieving traceability—including strengthened efforts to formalize the traders who move minerals from mines to the major cities—could help to improve accountability for the origin of minerals. Importantly, the exporters also expressed willingness to be more transparent, including providing detailed information on their finances and taxes. This could help ensure that the taxation of the minerals trade benefits Congo’s state coffers rather than fueling corruption.

 

Ultimately, the reputation of the companies dealing in eastern Congo’s minerals will depend not on intentions and plans, but on the concrete actions that result. The actions that will build the credibility of industry-led initiatives include companies willing to accept independent audits and suppliers ready to stop purchasing from companies that fall short of providing adequate due diligence or whom are shown to be continuing to source from militarized mines.

Conclusion

The economic underpinnings of Congo’s persistent conflict have been on the international agenda for nearly a decade, with many of the same individuals and companies continually linked to the trade in conflict minerals over that period. But the unprecedented surge in international attention to this issue over the past 12 months has created new opportunities for a concerted effort to break the link between Congo’s resources and violence. Sustained attention and well-coordinated action from governments, companies, activists, and civil society organizations will make or break this effort. We can only expect more of the same half measures that only scratch the surface of the problem absent a coherent approach that couples international initiatives with on-the-ground efforts to seize eastern Congo’s mineral trade back from the mafia networks. Moreover, without a credible initiative to manage the supply chain companies are more likely to cut off all engagement with Congo.

 

The legislation pending in the United States and the drive by Secretary of State Hillary Clinton to tackle conflict minerals has already spurred some action from the Congolese government and private-sector representatives, but unless these efforts remain closely aligned with and informed by developments in the field, they could prove counterproductive. Likewise, strong international oversight will be required in the short term to help counter the pervasive influence of the many vested interests at odds with efforts to put eastern Congo’s mineral wealth at the service of its people. Developing a coalition of private and public actors ranging from the largest of multinational electronics and jewelry companies all the way to the most knowledgeable and dedicated Congolese civil society voices from the mineral rich areas of the Kivus will be necessary to finally break the cycle of mineral-fueled violence in eastern Congo.

Endnotes

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[1] This report is based on field research during travel to North and South Kivu during August and September 2009, as well as follow up research by Noel Atama and Olivia Caeymaex during October and November. Unless otherwise noted, references in this report are based on interviews with civil society activists, minerals traders, Congolese government officials, and U.N. staff in Goma and Bukavu from August 25 through September 9, 2009.

 

[2] U.N. Security Council, “Final Report of the Group of Experts on the Democratic Republic of the Congo,” S/2009/603 (November 2009).

 

[3] For Enough’s analysis of this operation, see Colin Thomas-Jensen, Noel Atama, and Olivia Caeymaex, “An Uneasy Alliance in Eastern Congo and its High Cost for Civilians: Operation Kimia II,” Enough Strategy Paper, September 2009.

 

[4] United Nations, “Press Conference on Final Report by Democratic Republic of Congo Experts Group,” available at http://www.un.org/News/briefings/docs/2009/091207_Mahtani.doc.htm (accessed December 21, 2009).

 

[5] See U.N. Security Council, “Final Report of the Group of Experts on the Democratic Republic of the Congo,” S/2008/773 (December 2008) and Global Witness, “Faced With A Gun, What Can You Do? War and the Militarisation of Mining in Eastern Congo” (July 2009).

 

[6] The CNDP previously controlled relatively few mining sites and profited more from general taxation of trade in regions under their control, especially at key border post. See U.N. Security Council Report, “Final Report of the Group of Experts on the Democratic Republic of the Congo,” S/2008/773.

 

[7] See Global Witness, “Faced With A Gun, What Can You Do? War and the Militarisation of Mining in Eastern Congo.”

 

[8] Radio Okapi, “Walikale: attaques des FDLR, 1 mort, 11 villages vidés de leurs habitants,” December 13, 2009.

 

[9] U.N. Security Council, “Final Report of the Group of Experts on the Democratic Republic of the Congo,” S/2009/603, pp. 54-56.

 

[10] See Global Witness, “Faced With A Gun, What Can You Do? War and the Militarisation of Mining in Eastern Congo.”

 

[11] Interview with western diplomat in Goma, August 27, 2009.

 

[12] Human Rights Watch, “You Will Be Punished: Attacks on Civilians in Eastern Congo” (December 2009). 

 

[13] Notably Lt. Col. Innocent Zimurinda, whose role in the Shalio massacre is described by Human Rights Watch, and whose role in minerals extraction is described in the 2009 Group of Experts report on p. 56-57.

 

[14] Quoted in Metal Bulletin Weekly, “Sellers concerned by Traxys's withdrawal from DRC tin market,” May 11, 2009.

 

[15] ITRI, “Top Tin Producing Companies 2008,” available at http://www.itri.co.uk/pooled/articles/BF_TECHART/view.asp?Q=BF_TECHART_285697.

 

[16] Radio Okapi, “Goma: Adolphe Muzito à Walikale pour mettre de l’ordre dans l’exploitation minière,” 2009,

available at http://www.radiookapi.net/index.php?i=53&a=24240.

 

[17] Raf Custers, Jeroen Cuvelier, and Didier Verbruggen, “Culprits or Scapegoats? Revisiting the Role of Belgian Minerals Traders in Eastern DRC,” (Antwerp: International Peace Information Service, 2009).

[18] ITRI, “Tin Supply from the Democratic Republic of the Congo,” available at http://www.itri.co.uk/POOLED/ARTICLES/BF_PARTART/VIEW.ASP?Q=BF_PARTART_310250.

 

[19] See Electronic Industry Citizenship Coalition, “EICC & GeSI Join with Tantalum Supply Chain Representatives to Improve Responsible Sourcing,” Press release, September 28, 2009, available athttp://www.eicc.info/PDF/Tantalum%20Supplier%20Meeting.pdf.

 

[20] U.N. Security Council, “Final Report of the Group of Experts on the Democratic Republic of the Congo,” S/2009/603, p. 72.

 

Appendix: North and South Kivu mining export data

Data provided by North and South Kivu mining authorities provides a view of the mineral trade in Congo’s conflict zones during the first half of 2009. Given the severe challenges to obtaining comprehensive and reliable data in eastern Congo, these statistics are by no means authoritative, and a close look at these figures raises more questions than it answers. The most recent U.N. Experts report makes explicit this challenge, noting the huge discrepancies between statistics recorded by the mining authorities and actual exports by particular companies. Nonetheless, this information does provide some basis for evaluating the impact of recent events on the trade.

 

Tin ore exports began 2009 at low levels, especially in South Kivu, which exported only 100,000 kilograms in January. Exports then rose up to more than 500,000 kilograms by May. Although they did fall back below 300,000 kgs in July, statistics for August indicate a rebound. Likewise, in North Kivu, monthly exports have mostly remained within the range of 700,000 to 1,000,000 kgs.

 

Source: London Metals Exchange.

Source: Division of Mines, North/South Kivu.

 

What other factors may have influenced the minerals trade during 2009? The most likely factor is the world price of tin as determined by the London Metals Exchange.

 

The trendlines in the world price, with strong gains in during April and May followed by a dip in June and July, broadly match the pattern of exports reported out of the Kivus. This matches analysis by experts that link trends in the trade in Congo to world price fluctuations.

 

Insecurity was cited by both the private sector and civil society as also contributing to the slowdown in the trade. The president of the Association of Negociants in South Kivu told Enough that many middlemen had closed their doors as a result of the war, and that important trade routes to minerals mined outside of the conflict zone in northern Katanga and Maniema had been blocked by fighting.

 

Another important factor cited by comptoirs in North Kivu was tax reforms. Previously as much as 12.5 percent of the value of tin exports according to London Metals Exchange prices wound up going to Kinshasa in tax payments, but this was reduced to 3 to 3.5 percent this year, increasing the incentives for minerals to be exported through legal channels. Nonetheless, we heard from negociants, comptoirs, government officials, and civil society groups that the lack of taxes across the border in Rwanda meant that smuggling minerals into neighboring countries continued, and the U.N. Experts report that “the level of fraudulent mineral exports to neighboring states has escalated significantly since 2008 and particularly since the rapprochement between Kinshasa and Kigali since January 2009.”[20]

 

Where are Congolese minerals going? Data provided by the Division de Mines for North Kivu provides a snapshot view of what countries and companies received exports from the province.

This information can be misleading because most of these companies are metals traders, rather than the smelters and processors that are the actual destinations for the minerals. However, the data underlines the continued importance of Belgian metals traders and smelters and processors in Asia to the Congolese trade. Of particular note are the shipments to smelters Thailand Smelting and Refining (Thaisarco), which announced it would suspend purchasing only a few weeks later. Comptoirs Sodeem, Hill Side, and Pan African Business Group were all identified by the U.N. Experts as sourcing from Bisie mine in Walikale. The Coltan supplied by MH1 to African Ventures was also noted by the U.N. Experts Group as sourced from a militarized mine operated by former CNDP elements in Masisi, North Kivu. African Ventures supplied this coltan to Refractory Metals and Mining according to the U.N. report.

 

 

The South Kivu Division of Mines informed Enough that the number of comptoirs actively exporting minerals declined significantly during the Summer 2009, with only 4 of 16 registered comptoirs operating at full capacity. Three of the five comptoirs cited by the U.N. Group of Experts as selling minerals from FDLR-controlled mines to international companies were operational and exporting during this period.

 

It is important to note that because U.N. investigations named particular companies rather than individuals, it is possible that some of these companies may have suspended operations in an effort to avoid being targeted for sanctions. In fact, the U.N. Experts report that Bukavu-based comptoir MDM, which announced it had suspended operations, was in fact continuing to trade in minerals from FDLR mines under the name of WMC, another comptoir also cited by the Group of Experts.

This weekend, human rights contrarian David Rieff’s op-ed in the LA Times castigated activists for “human rights triumphalism” after the International Criminal Court’s move to indict Sudanese President Omar al-Bashir and argued “it would make more sense to try to restart negotiations in a serious way with Bashir and his government than to indulge in ‘Count of Monte Cristo’-like fantasies of the wicked getting their comeuppance.”

Rieff’s timing could not have been worse: the very next day, Serbia captured indicted war criminal Radovan Karadzic, the man most responsible for the crimes against humanity in Bosnia that Rieff lambasted western governments for failing to stop in his book Slaughterhouse. Someone apparently forgot to tell Karadzic, former Liberian President Charles Taylor, and the late Slobodan Milosevic that The Hague was just a “Count of Monte Cristo”-like fantasy. Humor aside, Rieff’s argument is particularly galling because he directly denigrates the popular mobilization of Americans to stop genocide and crimes against humanity. In this regard Rieff joins former United States Special Envoy for Sudan Andrew Natsios who wrote in Foreign Affairs that “moral outrage is no substitute for practical policies aimed at saving lives and promoting stability.” This is a false choice that is as incorrect as it is condescending.

For all their expertise, Rieff and Natsios come off as more naïve than the average activist in repeatedly arguing that peace and justice are incompatible, despite so much evidence to the contrary. As with the charges against Milosevic in 1999 and Charles Taylor in 2003, the ICC’s move to charge Bashir presents an opportunity for the U.N. Security Council to exert leverage with his government. Article 16 of the Rome Statute (pdf) (the document that governs the ICC) allows the U.N. Security Council to suspend ICC investigations on an annual basis, creating an ongoing point of leverage that can be used to pressure Khartoum not just to sign peace deals, but to implement them.

Rieff and Natsios suggest that many Americans, especially those who care about human rights around the world, are incapable of understanding the complexities of foreign policy. In fact, the grassroots efforts to support an effective peacekeeping force in Darfur or to use the Beijing Olympics to press China to move away from unconditional support for Khartoum reflect an understanding of international politics, and how an organized constituency can have the most impact. These groups are tapping into understandable moral outrage to generate the political will necessary to pressure the U.S. government to back up its anti-genocide rhetoric with action. This, contrary to what Reiff and Natsios might think, is a good thing.

Finally, when it comes to the specifics of the situation in Darfur, both Rieff and Natsios are just plain wrong on the facts. Rieff claims the conflict has “morphed into a war of all against all,” a view shared by Natios who has said that the genocide in Darfur is finished. These sentiments may be useful in getting articles published, but they obscure a very simple fact: the fragmentation of rebel groups, growing insecurity for the U.N. and aid agencies, and the killing of U.N. peacekeepers last week are all components of a deliberate effort (pdf) by the Sudanese government to divide and destroy the people of Darfur while maintaining the plausible deniability afforded by the fog of war.

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The above report is originally posted as a guest blog on the Wonk Room.

Sudanese President Omar al-Bashir

“I gave the army a free hand to move out in all directions, to use all of its weapons, with no restraints, no restrictions, whatsoever” – Sudanese President Omar al-Bashir, in Agence France-Presse, September 3, 2002

With indications that the International Criminal Court will move against Sudanese President Bashir for crimes against humanity, we here at the ENOUGH Project thought you might like to be reminded of some of his past comments and behavior:

• On June 30, 1989, led fellow officers in a mutiny against the democratically elected Prime Minister Sadiq al-Mahdi. General Bashir announced “Your armed forces have come to carry out a tremendous revolution for the sake of change after suffering” and said in a televised communiqué that the coup was “to save the country from rotten political parties.”
• From 1991 through 1996, hosted Osama bin Laden and turned Sudan into the world headquarters for international terrorism. Bashir later said of bin Laden, “He is a very normal person and he is very religious.”
• In 1992, declared jihad against the people of the Nuba Mountains, launching a massive offensive targeting civilian populations. During this genocidal campaign, the government forced conversions to Islam, displaced populations into government controlled ‘peace villages,’ and denied access to humanitarian aid.
• Beginning in 1994, became the only government sponsor of the Lord’s Resistance Army, as it abducted thousands of children in its campaign of terror in northern Uganda. According to a 13-year old child who spent two years in LRA captivity in Sudanese government-controlled territory: “I saw Sudanese Arab soldiers deliver weapons to the commanders of the LRA. The guns were brought to the LRA camp by airplane, and the soldiers unloading the guns were Arabs. They were big guns, machine guns.”
• Continually used arbitrary detention, disappearances, and torture to stifle political opposition. In 1995, a notorious “ghost house” located near a Citibank branch in Khartoum was used to torture dissidents. On civil liberties, Bashir has said: “When we talk of handing power to the people, we mean the people will be within certain limits but no one will cross the red lines which are aimed at the interest of the nation.”
• In the 1990s, revived the practice of slave raids against the people of southern Sudan. NGOs have suggested that as many as 200,000 southern Sudanese have been enslaved, and a UN report stated slavery there was “deeply rooted in Arab and Muslim supremacism.”
• In 1998, engineered a famine in the Bahr el-Ghazal region of southern Sudan that killed hundreds of thousands of people. The lethal combination of militia attacks on civilians and systematic denial of humanitarian aid transformed a drought into a crime against humanity.
• From 2000-01, systematically depopulated the oil fields of western Upper Nile. According to the United Nations: “government bombers, helicopter gunships, tanks and artillery were used against unarmed civilians to clear a 100-kilometer area around the oils fields. Witnesses reported that over 1,000 government soldiers swept through Ruweng county, wreaking human and material destruction, including destroying 17 churches.”
• Continually used aerial bombing of women and children, aid workers, and hospitals. Among the hundreds of air strikes from 2000-01 were a World Food Program airlift, a church school, a hospital, and the International Committee of the Red Cross.
• In 2003, organized the creation of the Janjaweed militias to commit genocide in Darfur. On the Today Show, Bashir claimed: “I would confirm that we have never targeted civilian citizens and we can never target citizens.” Of Musa Hilal, the notorious Janjaweed commander, Bashir said: “He has contributed to peace and stability.” Also: “The so-called Darfur conflict is an invention by foreign interests.”
• Orchestrated insecurity, rape, and malnutrition against displaced Darfuris. In August 2006, more than 200 women were sexually assaulted in five weeks in Kalma camp, South Darfur. But according to Bashir: “It is not in the Sudanese culture or people of Darfur to rape. It doesn’t exist. We don’t have it.” On the humanitarian conditions: “The food and health situation in Darfur is acceptable for me, because it is comparable to situation in the rest of the country” and "any talk of a humanitarian crisis is not true."

Watch Bashir assert “all figures about the deaths in Darfur are fabricated” on Al Jazeera on YouTube here.

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The above report is originally posted as a guest blog on the Wonk Room.

IRRESOLUTION: The U.N. Security Council on Darfur

Last week’s move by the Chief Prosecutor of the International Criminal Court, or ICC, to seek an arrest warrant for Sudanese President Omar al-Bashir introduces a new point of leverage with the Sudanese government and provides an opportunity for the U.N. Security Council to demand real changes in Khartoum’s policies and behavior. Unfortunately, the historical record suggests that the Council will likely miss this opportunity as it has missed many others during the past five years. This time, the Council must move quickly and use this leverage to help construct an effective peace process for Darfur, to provide meaningful protection for civilians, and to enact the right mix of carrots and sticks to convince various actors—Sudanese and external—to take the necessary steps to end the conflict.

If success at the Council was defined merely by volume of output, Sudan would be in great shape: Nine major resolutions have been adopted and 21 presidential statements have been issued since the start of the Darfur crisis in 2003 (see Annex)^[1]. Yet the Darfur crisis has continued to deepen and the Council has unmistakably failed to live up to its responsibility to protect the people of Darfur and help restore peace and security in Sudan and the region.

As the Council’s member states consider their next steps, they ought to look carefully at the reasons behind their failure on Darfur, which has as much to do with how the Council works and its inherent structural limitations as it does with the substance of its resolutions. It has become painfully clear that Security Council members lack the political will to deal effectively with the Darfur crisis. Instead of strong support for the result of their own referral of the case of Darfur to the ICC, many Council members are considering how to suspend the case against Bashir without getting anything in exchange for this capitulation. Throughout the last five years, member states, including the United States, have positioned themselves to blame the U.N. while knowing full well they have not given the organization the resources, support, direction and will it needs to succeed.

This strategy paper will diagnose the underlying obstacles to effective Security Council response, providing a practical guide on how activists can better engage their governments to stop—and ultimately prevent—genocide and crimes against humanity.

1. THE BASICS

Article 24 of the Charter of the United Nations confers upon the Security Council “primary responsibility for the maintenance of international peace and security,” a unique mandate in international law. Its 15 members have the power to impose sanctions, establish peacekeeping missions, and authorize military action in the name of international peace and security.

Not All Members Created Equal

The permanent membership of the Council—China, France, Russia, the United Kingdom, and the United States—reflects the international balance of power at the time of the U.N.’s creation in 1945. These states have the power to veto Council resolutions, unlike the 10 rotating, non-permanent members of the Council who are elected by the General Assembly to serve two-year terms. What does this mean? Although the Council enjoys unrivaled legal weight in international relations, it remains a product of and a venue for politics and statecraft led by some of the world’s most powerful countries. The U.N. can be no more effective than its member states allow it to be.

Political Paralysis

During the Cold War, the veto threat exercised by the East and the West paralyzed the Security Council and relegated it to the sidelines of international politics. A window of cooperation opened as the Soviet block crumbled during the early 1990s, and a degree of consensus enabled the Council to support action against Saddam Hussein’s invasion of Kuwait and to authorize a humanitarian intervention in Somalia. But competing political interests stymied the Council’s ability to stop the genocide in Rwanda, end ethnic cleansing and crimes against humanity in the Balkans in a timely fashion, or deal effectively with countless other threats to peace and security around the globe. Africa in particular has suffered from the Council’s frequent failure to take early, strong, and united action to prevent or halt deadly conflicts. The wars that tore apart the Great Lakes region, the interconnected conflicts in the Mano River countries in West Africa, and the now-deepening crises in Somalia and Zimbabwe have all occurred in full view of the Security Council, and member states have often preferred the rhetoric of condemnation that has not been backed by practical actions.

Not the Only Forum

The Security Council was not designed to be and has never served as the sole forum in which states congregate to transcend their differences and hammer together collective international security policy. Rather, the Council functions as an arena where states often struggle to win ground within the confines imposed by diplomatic understandings reached far from the U.N. building in Manhattan. These constraints are often defined—and often redefined—during concurrent meetings of regional bodies like the African Union, security alliances such as NATO, and above all through bilateral diplomacy between states. Most importantly, the core strategic decisions of member states are made in national capitals, not at the United Nations. In this sense, the Council is a diplomatic tool that states both use and abuse in their desire to act, give the appearance of acting, or block action on any particular international security issue.

The geopolitical landscape determines the extent to which states choose to employ or ignore the Council. In the case of Kosovo in 1999, NATO wound up striking against Serbia without Council authorization because of a Russian veto threat. Veto threats are not the only factor, however. Threats by key states to abstain on resolutions can result in deadlock or ineffective, watered-down language and toothless enforcement mechanisms.

The Political Mechanics of the Council

The Security Council functions through the interactions of its member state delegations. Decisions on resolutions or on non-binding presidential statements are negotiated in New York, but the key parameters are often set in national capitals. The international civil servants of the U.N. Secretariat and U.N. agencies (such as the U.N. Children’s Fund, or UNICEF, the World Food Program, and the World Health Organization) take a backseat during these deliberations, even as many states scapegoat them. The procedural aspects of the Council’s operation, such as the rotating presidency and the opportunities it affords a given state to drive the Council’s agenda, are one telling component of the Council’s elaborate rituals.

Member states also play a critical role in the implementation of Security Council resolutions. Subsidiary bodies established by resolutions, such as sanctions committees and working groups on issues such as counter-terrorism, are composed of representatives of Council members, and these members’ procedural and substantive decisions can make or break effective implementation. Absent sufficient political will, Security Council measures to stop crimes against humanity often simply die in committee.

Tragically, the case of Sudan, and in particular the response to Darfur, illustrates all too well the dysfunction of which the Council is capable.

2. INDECISION IN ACTION: THE CASE OF DARFUR

The first U.N. Security Council briefing exclusively devoted to Darfur was given by then Emergency Relief Coordinator Jan Egeland on April 2, 2004, already a year after the crisis had erupted. Four months later, the Council adopted Resolution 1556, which demanded that the government of Sudan disarm the janjaweed militias or face possible sanctions, and imposed a symbolic arms embargo on “non-governmental entities operating in Darfur.” The resolution lacked a robust enforcement mechanism and was disregarded on the ground as the situation deteriorated. The eight major subsequent resolutions have followed this depressing pattern of inefficacy.

Why so many resolutions to so little effect? Council failure was largely predetermined by an upside-down strategy chosen in Washington, London and other capitals. Western Council members decided to use the Security Council to help muster the political will to tackle Darfur, rather than engaging in New York once that will had been generated. The United States and its European partners engaged only in occasional bouts of mostly cosmetic advocacy with skeptical but indispensable interlocutors in Beijing, Moscow, and key Arab and African capitals, thus dooming their strategy to failure.

As per instructions from their capitals, the United States, U.K., and a handful of other delegations at the U.N. were tasked with bullying their way into the little that could be achieved in New York absent broad high-level support. That approach gradually poisoned the atmosphere at the Council, created a thick layer of doubt regarding Anglo-American intentions, and played a part in inducing a number of critical abstentions, resulting in a litany of watered down and irrelevant statements.

Divided We Fall – the March 2005 Resolutions

From 2003 through the beginning of 2005, international diplomacy was crippled by the decision to concentrate on securing the Comprehensive Peace Agreement, or CPA, between Sudan’s ruling National Congress Party and the Sudan People’s Liberation Movement at the expense of Darfur. Instead of seeking an all-Sudan solution, the United States allowed Darfur and the CPA processes to be played against each other. The strong rhetoric of the Security Council resolutions was belied by the unwillingness of the United States and its allies to risk confrontation with Khartoum because the CPA seemed within reach.

The signing of the CPA on January 9, 2005 created an opportunity for comprehensive Council action toward Sudan. Tragically, international consensus was not achieved, and what was intended to be one mega-resolution stalled in negotiations. It eventually metamorphosed into three separate resolutions, all adopted in March 2005. These resolutions exposed the fault lines within the international community on how best to deal with Sudan in its entirety.

Resolution 1590 established the U.N. Mission in Sudan, or UNMIS, to support CPA implementation. Resolutions 1591 and 1593 attempted to get tough on Khartoum over Darfur, extending the arms embargo, articulating a targeted sanctions policy, and referring the Darfur situation to the Prosecutor of the ICC. Though adopted unanimously, resolution 1590 demonstrated that there was no coherent international strategy to ensure the government of Sudan’s compliance. With striking inconsistency, the Council pledged collective allegiance as the “good cop” in Southern Sudan, while simultaneously feigning toughness with the very same interlocutors in Khartoum over Darfur—an approach which the government of Sudan easily saw through. Neither 1591 nor 1593 passed unanimously, indicating to Khartoum that the Council’s follow-through would be, at best, inconsistent.

Taken together, the March 2005 resolutions had the potential to outline an effective approach to Sudan through a dual focus on protecting the peace—and civilians—in the South, and providing the pressure to achieve a similar settlement in Darfur through sanctions and accountability measures. Ultimately, deep international divisions toward Sudan, manifested in the many abstentions to the two Darfur resolutions, undercut their viability. Absent consensus, the Security Council often lacks the political will to implement its own resolutions.

Compartmentalizing Sudan

The CPA contains the seeds for democratic reform across Sudan, and its effective implementation is critical to helping achieve peace in Darfur. But instead of using the CPA to affect Darfur positively, Security Council members, including the United States, neglected CPA implementation and rushed, ill-prepared, into ad-hoc peace talks on Darfur. The talks were heavy on international diplomats and outside experts but light on Darfurians, having excluded representatives of political parties, civil society, displaced persons, and women’s groups. Only one of the major rebel leaders, Minni Minawi, signed the Darfur Peace Agreement, or DPA, on May 5, 2006.^[2]

The Security Council again demonstrated that it could only concentrate on one issue at a time, and even then it performed poorly. By focusing disproportionately on Darfur, the Council, along with others, lost focus on CPA implementation. The Council did not refocus on the CPA until the middle of 2007, by which point Darfur was in a deeper crisis and the CPA itself was facing possible collapse. Peace agreements had been produced for both Darfur and southern Sudan, but neither appears likely to bring lasting peace.

Preoccupation with Peacekeeping

The signing of the ill-conceived and ill-fated DPA generated another misstep—the Council’s tunnel vision on getting a U.N. peacekeeping operation to take over from the underfunded, underequipped, and understaffed African Union force in Darfur, or AMIS. Observers who doubted the viability of the DPA were dismissed as naysayers, and the international community made limited efforts to lure or pressure the holdout rebel groups to sign^[3]. As rebel groups reconfigured themselves for the next phase of the conflict, the Council experienced a bout of collective amnesia: the Council forgot lessons from comparable past conflicts and moved to deploy a peacekeeping force with no peace to keep and with no strength or mandate to impose its will. The A.U. has unfairly absorbed much of the blame for the lack of effective civilian protection in Darfur, but missteps by the Security Council and broken promises of its member states have continually compounded and exacerbated the situation.

The peacekeeping blunders began in May 2006 with Security Council Resolution 1679, in which the Council called for a U.N. peace operation with a disastrous caveat: Both Russia and China emphasized they had supported the resolution on the understanding that any U.N. deployment had to be acceptable to the government of Sudan. Discernibly hostile to an effective U.N. force in Darfur, Khartoum unsurprisingly refused to cooperate. The U.N. had accepted a pre-condition that made effective deployment virtually impossible.

Under domestic pressure to take action, the United States and U.K. forced the adoption of U.N. Security Council Resolution 1706 on August 31, 2006, mandating the U.N. Mission in southern Sudan, or UNMIS, to assume AMIS’ responsibilities in Darfur “no later than December 31, 2006.” The lack of adequate bilateral preparation and the impatience of the resolution’s sponsors came at a steep price—China, Russia, and Qatar abstained, again demonstrating the Council’s divisions and emboldening Khartoum. Within hours of the vote, the Sudanese government rejected the idea of a U.N. force in Darfur and Resolution 1706 was dead on arrival. The world community stood exposed—unwilling and unable to deploy an effective peacekeeping force to Darfur over Khartoum’s objections.

Chinese support eventually helped reach agreement in principle on a hybrid U.N./A.U. operation for Darfur in November 2006. But disagreement over the Council’s strategic approach was far from resolved and allowed Khartoum to continue its delaying tactics. It took the Council eight months, until July 31, 2007, to unanimously adopt Resolution 1769 and formally establish the U.N./A.U. Hybrid Operation in Darfur, or UNAMID. UNAMID was to take over AMIS by the end of that year, and it was to be the largest and most expensive peacekeeping operation ever run by the United Nations outside of the Balkans.

So far, UNAMID’s deployment progress has been inexcusably slow, impeded by a Sudanese government now accustomed to staring down the timid international community. In essence, the U.N. was asking the Sudanese government for permission to go in and stop the atrocities which the ICC chief Prosecutor has made clear are being directly orchestrated by the Sudanese government. It is small surprise that the mission is at a virtual standstill, and UNAMID now stands as a textbook case of how not to authorize, organize, and deploy peacekeepers. Full deployment is not expected until well into 2009 and it appears very likely—barring dramatic changes—that UNAMID will not be able to implement most of its mandate meaningfully for the rest of 2008, and perhaps for much longer^[4]. Ominously and tragically, armed groups ambushed UNAMID peacekeepers on July 8 near El Fasher, killing 7 and injuring 22. Another peacekeeper was killed July 16. U.N. and A.U. officials have all but pointed the finger squarely at Khartoum and its janjaweed proxies.

Sanctions Undermined

U.N.-authorized sanctions against Sudan, established under Resolution 1591, have simply been an empty threat and affirmed Khartoum’s conviction that the Council lacks the political will to take strong action in the face of mass carnage. The resolution created a Sanctions Committee composed of Security Council members and supported by an independent Panel of Experts. But China and Russia used procedural machinations to ensure that the committee did not begin its work for more than a year and that even then it did not take meaningful action.

The Sanctions Committee has repeatedly delayed—or even prevented—the publication of reports of the independent Panel of Experts^[5]. In January 2006, for example, the committee finally released the final version of the panel’s first report, having delayed its publication for the previous two months. The report detailed massive violations of the arms embargo, found multiple instances of breaches to the ban on offensive military flights, and, in a confidential annex, identified a list of 17 individuals impeding the peace process^[6]. The Security Council did not act effectively on the findings^[7].

Even worse, recent reporting by BBC has uncovered Chinese support for the Sudanese military in Darfur that, if accurate, would constitute a violation of the arms embargo^[8]. This includes the supply of Chinese-manufactured military trucks that were shipped to Sudan in 2005, as well as the training of Sudanese fighter pilots who fly Chinese fighter planes in Darfur. Such behavior underscores the reality that until the Security Council member states decide to uphold their own resolutions, these measures are unlikely to impact insecurity on the ground in the region.

The Council and the Court

Resolution 1593 referred the Darfur situation to the Prosecutor of the International Criminal Court, elevating the matter to a legal plane not as easily influenced by politics. The Sudanese government, feeling seriously threatened, reacted with unprecedented public criticism of its ally China for not vetoing the resolution. (China, along with the United States, Algeria, and Brazil had abstained.) Once Sudanese anger dissipated, these four abstentions conveniently suggested to Khartoum a simple response—stonewall the ICC investigation with impunity. The Chinese and American abstentions meant that the two states with arguably the greatest individual leverage over Khartoum would not spend any of their political capital inducing Sudanese cooperation with the Court. Since then, the Sudanese regime has brushed aside the ICC with little cost and its derision of international justice has remained unchallenged.

3. PROSPECTS FOR IMPROVED PERFORMANCE

The case of Darfur illustrates the interconnection between Security Council activity and the wider context of international politics. With the U.S. government conserving scarce political capital for issues like Iraq and Iran, Sudan has remained considerably down the list of American priorities. In effect, the United States has used the mechanics of the Security Council to satiate domestic activist demand for a response on Darfur without spending the political capital necessary to get results. Most in the international community simply do not see the United States as being serious about resolving the situation. China, meanwhile, has used its veto-wielding position to block strong action against Khartoum, while Russia has largely followed suit. Both China and Russia should understand that over-use of their veto will simply push western democracies over time to work through other regional bodies and organizations that are more effective, such as in the example of NATO and European Union, cooperation in addressing the situation in Kosovo in the late 1999.

Several factors will affect the Security Council’s future effectiveness. First, China’s growing global influence, already evident in its expanding economic and diplomatic ties to Africa, will increasingly shape Council dynamics. Second, the degree to which the United States chooses to engage the Council meaningfully—and lead by example—will determine its relevance. The third factor is the outcome of continuing long-term efforts to reform the Council and make it more representative and transparent. Finally, the developing role of other international institutions—from security alliances such as NATO to regional bodies like the E.U. and the A.U.—will alter the context in which the Council functions.

CONCLUSION

The Security Council’s track record on Darfur could make a cynic out of the most optimistic of activists. But singularly blaming the Council as an institution is counterproductive. Instead, constituencies that care about Darfur and other places of conflict must focus on decisions made by individual member states and push their governments to invest the diplomatic capital to make Security Council resolutions more meaningful and follow-through more comprehensive. Concerted, consistent high-level engagement by the United States and its European allies will be critical to secure Chinese, Russian, and, importantly, African support or at least acquiescence. Only then will parties to the conflict in Darfur hear a single international voice that they will be unable to ignore or manipulate.

Efforts to deal with Darfur at the Security Council will not succeed until:

• Our leaders realize that resolutions “on the cheap” do not work and can even be counterproductive: Pushing issues to the Security Council without addressing significant policy differences between key member states results only in watered-down resolutions that embolden those directing Darfur’s tragedy, while giving the appearance of action.

• Political capital is committed: Absent increased attention to Sudan in bilateral contacts, aimed at resolving differences before the issue is tackled in New York, Council fragmentation will persist and Khartoum will continue to act with impunity.

• Resolutions are actually implemented, not merely adopted: Resolutions that create sanctions committees, peacekeeping missions, or peace processes are crucial, but become irrelevant without follow through. Council members must feel constant pressure to persevere with implementation, and to ensure that intransigent states and individuals are held accountable.

For all its faults, the Security Council remains indispensable to securing viable peace in Sudan and in other troubled spots around the world. When the Council speaks clearly, with one voice, no other institution can rival its authority and legitimacy. But renewed efforts to secure peace in Sudan will need to acknowledge that the rush to “do something” about Darfur at the Security Council, absent minimal strategic consensus among its permanent members and pivotal regional players, can be worse than doing nothing at all.

A consultant based in New York City helped in drafting this report.

Endnotes

^[1] A total of 23 resolutions have been adopted on Sudan since the beginning of the Darfur crisis, but this report focuses on those with significant policy implications.

^[2] See John Prendergast and Jerry Fowler, “Creating a Peace to Keep in Darfur: A Joint Report by the ENOUGH Project and the Save Darfur Coalition,” May 2008. Available at http://www.enoughproject.org/reports/creatingpeacedarfur

^[3] This failure would come back to haunt the international community in more ways than one. The Justice and Equality Movement, or JEM, was dismissed in Abuja as politically reckless and militarily irrelevant. Less than two years later JEM launched an audacious assault on Sudan’s capital, reducing even further the chances for a negotiated settlement in the near future.

^[4]See Joint ENOUGH/SDC Report on UNAMID, June 2008. The UN goal is to reach 80 percent deployment by the end of 2008 but, privately, UN staff admit this target would be extremely difficult to meet.

^[5] Only “final” reports of the Panel have been formally published. All “interim” reports have never been officially released to the public.

^[6] http://www.un.org/sc/committees/1591/reports.shtml

^[7] The first—and so far the only—time the Council moved on its threat of targeted sanctions occurred on April 25, 2006, three months after the public release of the Panel’s report and days before the signing of the DPA. China, Russia and Qatar had blocked action at the Committee, which operates on consensual basis, and abstained on Resolution 1672, which named four persons for sanctions. None of the four had significant assets in foreign banks or indulged in foreign travel, so the impact of these sanctions was more symbolic than real. Resolution 1672 was largely an exercise aimed at deflecting criticism from constituencies in the United States and Europe which demanded greater accountability.

^[8] http://news.bbc.co.uk/2/hi/africa/7503428.stm