Originally published by the Global Centre for the Responsibility to Protect
July 20, 2011

United Nations (UN) member states must uphold their responsibility to protect and take immediate action to protect populations from atrocities being perpetrated daily by Sudanese government security forces, and allied paramilitary forces and militias in South Kordofan. Since 5 June the Sudanese Armed Forces (SAF) has unleashed a barrage of indiscriminate aerial bombardment targeting civilians. With reports of mass graves and at least 73,000 people displaced, this is not the time for states to ‘wait and see’ how things transpire. With each passing day the situation becomes more complex and intractable and the plight of civilians more dire.

The Sudanese government has, as in Darfur, tried to hide the horrific consequences of its actions by restricting the access of the UN, media and independent monitors to the region. Yet credible reports indicate that the government is actively perpetrating atrocities against its own people. What began as an SAF operation ostensibly to disarm the Sudanese People’s Liberation Army-North (SPLA-N), a rebel group that fought alongside its southern counter-part against the SAF during Sudan’s 1983-2005 civil war, has escalated rapidly. In addition to daily aerial bombardment, the SAF and the Popular Defence Forces, an allied paramilitary force, have conducted house-to-house searches and imposed road blocks. This has been part of a deliberate strategy to target individuals for extra-judicial execution, abduction, arbitrary arrest and detention, and torture on the basis of his or her ethnicity and perceived support for the SPLA-N and its political arm, the SPLM-N. There are also reports that the SPLA-N has carried out extra-judicial killings.

The Nuba have borne the brunt of such targeting. They are marginalized and discriminated against by the Sudanese government on the grounds that they are not ‘Arab,’ and that many Nuba supported anti-government movements during the 1983-2005 civil war. Experts have labeled the government’s brutal actions against the Nuba during the early 1990’s, genocide. Once again the Nuba are the victims of mass atrocities. A leaked report by the UN peacekeeping mission in Sudan (UNMIS) argues that crimes perpetrated since the outbreak of fighting may amount to crimes against humanity and war crimes – crimes that states unanimously committed to protect populations from by endorsing the responsibility to protect at the 2005 World Summit.

At the core of this commitment is the responsibility to prevent crimes before they occur. Few situations have had as much early warning of imminent mass atrocities as South Kordofan or such a glaring failure to heed these warnings. Now is the time to take action to ensure that this mistake is not repeated. The risk of future crimes against humanity and war crimes is all too clear. The government’s actions over the past seven weeks have shown that, as with Darfur and the 1983-2005 civil war, it views the commission of mass atrocities as a legitimate counter-insurgency tactic. Furthermore, peaceful means of resolving differences, most notably through a 28 June framework agreement between the government and the SPLM-N to address political and security issues in the state, have been rejected by Sudanese President al-Bashir. This raises serious concerns that the government will continue to perpetrate atrocities against the Nuba as a means of destroying the SPLA-N and SPLM-N. That the current governor of South Kordofan is wanted by the International Criminal Court for atrocities perpetrated in Darfur, does not bode well for the Nuba. Nor does the reliance on paramilitaries and militias who may be motivated by ethnic and religious ideology and a desire to seize land. The SAF’s use of paramilitaries and militias adds another explosive ingredient as it is harder to deter and reign them in, thus making a political solution even more difficult.

The UN Security Council, key countries such as China and the Gulf States, as well as the guarantors of the Comprehensive Peace Agreement (CPA) for the South, including the African Union (AU) and the Arab League, have a critical role to play going forward. The failure to fully implement the provisions of the CPA, including the holding of popular consultations in South Kordofan and Blue Nile, helped fuel the current crisis. The guarantors must not allow their attention to be diverted now that the South has gained independence. Instead they must re-double their efforts to identify measures likely to bring a peaceful resolution to the crisis in South Kordofan and use every source of leverage to halt mass atrocities.

The Security Council’s 15 July issuing of ‘elements to the press,’ a minimal expression of the Council’s opinion that does not form part of the official UN record, was a first step but is insufficient absent sustained engagement. The Council’s inability to agree on a Presidential Statement drafted five weeks ago, or to consider a resolution, despite the disturbing findings of the recently leaked UNMIS report, sends a clear message to the Sudanese government that the Council is divided and that there will be no consequences for its heinous actions.
That there is division about issuing a more weighty condemnation is indefensible. Bombs rain down on civilians, individuals are targeted because of their ethnicity, and unknown horrors are being inflicted on populations in parts of South Kordofan that have been closed off to the rest of the world. The situation risks destabilizing the region, including the fragile newly independent South Sudan, and is a clear threat to international peace and security.

The desire to reward the Sudanese government for allowing the South independence cannot come at the price of lives lost in South Kordofan. At this moment, the Council must be guided by the lessons of the past. The strategy of compartmentalizing the various conflicts within Sudan has proved ineffective in preventing atrocities. The Sudanese government is repeating familiar patterns of behavior: it is trying to hide the true horrors of its crimes by denying outside monitors, the UN and humanitarian agencies access to the most vulnerable of populations; it is being relentless in its commission of atrocities as part of its counterinsurgency; it is relying on militias, often motivated by extremist ideologies to do so; and it is providing piecemeal concessions in negotiations to resolve crises, only to subsequently reject any agreements reached. Finally, what little protection was provided by UNMIS through their presence and by bearing witness to unfolding atrocities in its vicinity ended on 8 July and the mission is currently withdrawing from South Kordofan, at the behest of the Sudanese government. Concerted international efforts, including demarches from all five permanent members of the Council and a personal request from UN Secretary-General Ban Ki-moon to convince Khartoum to allow them to stay have unsurprisingly failed.

Now is the time for decisive action. Council members should request an emergency briefing by senior UN and AU officials, including former South African President Mbeki, who negotiated the 28 June agreement. Those members supporting a stronger response should use the opportunity to engage with fellow members who oppose taking further steps and find a way for the Council to speak with one voice. That voice should strongly condemn the commission of mass atrocities, demand an immediate halt in aerial bombardments, call on both sides to cease their hostilities, allow for humanitarian access, and establish a human rights fact-finding mission. The AU and Arab League should similarly call for the creation of a fact-finding mission and use their relationship with the Sudanese government to urge the parties to grant such a mission much needed access. They should, as with the UNSC, outline that there will be consequences for the Sudanese government and actors responsible for perpetrating and inciting mass atrocity crimes should they fail to halt their actions. This should include the enactment of further targeted economic sanctions.

The leaked UNMIS report cannot be more clear, “the International Community cannot afford to remain silent in the face of such deliberate attacks by the Government of Sudan against its own people. If the current conduct of the SAF, especially the aerial bombardments, does not stop, it will dissipate the Nuban population in South Kordofan.” The time for warnings has passed. Atrocities are being perpetrated. Failure to act today will be a repeat of previous mistakes and will see more lives unnecessarily lost.

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For more information, please visit the Global Centre for the Responsibility to Protect.

Originally Published by Inside US Trade
July 15, 2011

There is a growing sense in Washington that members of Congress will need assurances on human rights if they are to agree to grant Russia permanent most-favored nation (MFN) status, which is necessary if U.S. companies are to fully benefit from Russia acceding to the World Trade Organization.

In a July 7 statement, House Foreign Affairs Committee Chairman Ileana Ros-Lehtinen (R-FL) argued that extending permanent MFN and ushering Russia into the WTO is “simply not an option” until Russia is pressed to improve its human rights record. A congressional aide said this sentiment is shared by other members of Congress.

According to an informed source, the White House opposes directly linking improvements in Russia’s human rights situation to Russia’s WTO accession, but since January has nonetheless been advancing the idea that Congress should consider separate human rights legislation this year.

The White House wants to head off a situation where Congress would put off a vote on extending permanent MFN status due to objections on human rights abuses or lack of democracy in Russia, this source said.

President Obama raised both human rights abuses and WTO accession in July 13 discussions with Russian Foreign Minister Sergey Lavrov, according to a White House statement, although that statement gave no indication that Obama directly linked the two issues.

In particular, Obama discussed the death of Sergei Magnitsky, a Russian lawyer who died in government custody after uncovering a massive tax fraud by Russian government officials. Obama also reaffirmed U.S. support of Russia’s efforts to complete its accession to the WTO this year, and discussed other issues as well, according to the White House statement.

Ros-Lehtinen has no direct jurisdiction over the MFN vote, but she could use her chairmanship to sway the House leadership to take her position, sources said. Alternatively, she could devise her own human rights bill that would fall under the jurisdiction of her committee.

In April, Mike McFaul, the White House National Security Adviser on Russia, said that members alarmed about Russia’s human rights record could back legislation that would penalize Russian officials found to have contributed to Magnitsky’s death and are involved in other gross human rights abuses (Inside U.S. Trade, April 22).

The bill in question is sponsored by Sen. Ben Cardin (D-MD) and would authorize the United States to impose a travel ban and financial sanctions on Russian individuals believed to have been directly involved in Magnitsky’s prison death. It would also ban U.S. visas and freeze U.S. assets of Russian individuals found to be directly involved in other gross violations of human rights, such as murder, torture or imprisonment.

Cardin’s bill currently has 18 co-sponsors, including fellow Finance Committee members Sen. Jon Kyl (R-AZ) — who also serves as the Senate Republican whip — and Sen. Robert Menendez (D-NJ). Senate Majority Whip Richard Durbin (D-IL) has also signed on to the bill. The measure is pending before the Senate Foreign Relations Committee.

In the House, a more limited bill is pending before the Judiciary Committee. The House bill would only apply visa bans and asset freezes to those directly involved in Magnitsky’s death but not other human rights violations.

The legislation may become a required trade off for some senators to support the administration’s push to get a vote on permanent MFN and the repeal of the Jackson-Vanik amendment in Congress, according to a congressional aide. Delay in moving this legislation may lead to a delay in the Jackson-Vanik vote, he said.

Passing this legislation could give political cover to members who are nervous about voting in favor of permanent MFN for Russia because they could also support a measure that addresses Russia’s human rights abuses.

The congressional aide acknowledged that the asset freeze may not have a large financial impact due to the fact that many Russian individuals in question do not have assets in the United States or could easily pull their assets out once they know they are subject to an investigation.

But it will put pressure on the European Union, which is also considering a similar policy for freezing assets and banning visas for questionable Russian individuals, to adopt a similar model. This is significant because many Russian individuals keep many of their assets in the EU and travel frequently to EU member states, this source said.

By banning the entry of Russian individuals to the United States, this source said the bill would make a strong symbolic statement to a country whose population is eager to immigrate to the United States and find opportunity here.

The White House is considering formally supporting the legislation in response to growing criticism in Congress over Russia’s human rights issues, but is facing opposition from the State Department, according to an informed source.

The State Department has been cautious toward the White House fully supporting Cardin’s bill, asking instead for a non-binding version or a “sense of the Congress” resolution, according to a congressional source.

State is the lead agency in the bill to carry out the visa ban and will work with the Treasury Department to freeze assets of individuals listed.

State has made it clear that it wants sufficient due process provisions to accompany any kind of asset freeze carried out by the Treasury Department, such as a verification process to make sure assets frozen truly belong to someone listed.

Additionally, State is concerned that the bill’s provision that would allow any member of Congress to submit a request for an individual to be investigated for possible sanctions under the law and require a response within 30 days might expose the department to unreasonable requests by congressional members wishing to make political statements.

A congressional source said that some of its objections could be addressed by having the legislation limit requests only to the chairmen and ranking members of the relevant committees and giving State 90 days to respond to a request, according to a congressional source.

The Sergei Magnitsky Rule of Law Accountability Act of 2011, S. 1039, is a reintroduction of a bill first proposed by Cardin last year but not pushed in the lame-duck session so as not to jeopardize the ratification New Strategic Arms Reduction Treaty (START), which Cardin supported.

The bill may have more traction this year not only because of Russia’s pending WTO accession but because many senators “went out on a limb” for the administration to approve New START despite human rights concerns at the end of last year.

Members of Congress this year were confronted by a spate of events this year that reflect poorly on Russia’s human rights record. These included the news that high-profile Russian prisoner Mikhail Khodorovsky was convicted a second time, extending his prison sentence to at least 2016, the congressional source said.

The 2003 imprisonment of Khodorovsky, a former Russian oil tycoon, has been criticized in the United States as a heavy-handed response to Khodorovsky challenging the power of then Russian President Vladimir Putin.

Additionally, Russia has stated that it will not honor the terms of New START if the United States pursues a missile defense program in Europe because Russia considers it a threat to its security. The terms of the treaty allow for the United States to pursue missile defense efforts, sources said.

The bill may also gain more support after Russia banned the formation of an opposition party this year and had, for a time, instituted a travel ban that prohibited two of the party’s organizers from leaving Russia. The travel ban was overturned last week, sources said, most likely in response to the fact that a travel ban was directly contradictory with the Jackson-Vanik amendment’s provisions on the free movement of people.

The Jackson-Vanik amendment is part of Title IV of the Trade Act of 1974 and makes MFN conditional on Russia’s emigration policy. For Russia the amendment was meant to pressure the country to allow the free emigration of its Jewish population but it applies to the movement of all people. If the amendment is repealed by Congress, it gives the president the authority to grant permanent MFN to Russia, which will allow the United States to take advantage of the tariff and trade commitments that Russia will make as part of its WTO accession.

The United States has granted Russia conditional MFN for many years recognizing the fact that Russia no longer restricts the movement of its people.