Is Darfur a Genocide? (Well, it's complicated.)

by Michelle

Published March 03, 2009 @ 03:35PM PT

Part II of a three part series. See Part I: "Is Darfur a Genocide? (Colin Powell says, "Yes."), and stay tuned for Part III.

So what of the UN Commission?

Well, it's not as straightforward as you might think. The report issued by a UN commission of inquiry in 2005 states that the investigation did not uncover evidence of genocidal intent, but recognizes that "elements of genocide might be deduced from the gross violations of human rights perpetrated by Government forces and the militias under their control."

Seems kind of wishy-washy, doesn't it?

To quote Colin again:

"There is a lot of ambiguity here: ‘The Commission does recognize that in some instances individuals, including Government officials, may commit acts with genocidal intent.'  What is that?  Sounds an awful lot like the State Department talking about Rwanda in 1994.  Looks like a duck, walks like a duck, talks like a duck, but if we call it a duck then we are obligated to..."

The 2005 UN report is directly contravened by the case presented by International Criminal Court (ICC) Chief Prosecutor Luis Moreno Ocampo against Sudanese President Omar al-Bashir, which purports to show that Bashir "masterminded and implemented a plan to destroy in substantial part the Fur, Masalit and Zaghawa groups, on account of their ethnicity." Ocampo submitted charges against Bashir for war crimes, crimes against humanity, and genocide in July 2008, and after over seven months of deliberation, the Court's pre-trial panel is set to announce its decision tomorrow.

In considering the discrepancy between UN report and the Chief Prosecutor's application to the ICC, international legal scholars Martha Minow and Philip Heymann write:

"The answer lies in the law and facts considered by each body and the different standards applied. The Commission of Inquiry found that it could not conclude that there was genocidal intent in part because the perpetrators did not kill all the members of the targeted groups they attacked. Instead, in some cases, they drove survivors to camps for internally displaced persons where they received humanitarian relief. However, as the Commission acknowledges, the selective killing of certain members of a protected group may be consistent with genocidal intent.

Moreover, in his application for a warrant the prosecutor emphasizes that the perpetrators also subjected the targeted groups to systematic rape, torture, the destruction of their basic means of life, and mass displacement. Taken together, these acts justify an inference of genocidal intent."

The Importance of Intent

The question of genocidal intent is, to say the least, a biggie. The intent of the perpetrator --- to destroy, in whole or in part, a national, ethnical, racial or religious group --- is the very thing that sets genocide apart from other forms of mass killing. And it is incredibly difficult to prove, especially in a court of law.

Susana SáCouto at the IntLawGrrls blog provides a great analysis of the Ocampo's argument in support of the genocide charge:

"Recognizing the difficulty of proving genocidal intent, the ad hoc tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) have determined that, in the absence of a confession, genocidal intent can be inferred from other facts and circumstances, such as speeches or statements against the targeted group, acts of violence against cultural symbols associated with the group, other policies of discrimination against members of the group, and the brutality, scale and/or systematic nature of the atrocities against the particular group."

So if the UN report claims that, despite the absence of direct evidence of genocidal intent, "elements of genocide may be deduced" from the patterns of abuses --- then, according to Susana, the precedent set by ICTY and ICTR recognizes such deductions as legitimate.

(For the record, I am not a lawyer, and do not claim insight or extensive knowledge in international law. But, I have put myself through a fair amount of schooling focused on these issues, and feel at least somewhat comfortable pulling these points together.)

Ocampo defended this very point, along with the rest of his application, in an interview at ForeignPolicy.com, noting, "Even Hitler did not have a document saying ‘go and destroy the Jews, or the gypsies.' You have to prove the intention through facts."

Genocide, Then and Now

According to Ocampo, Bashir publicly ordered the attacks, used the entire state apparatus to draw lines of in- and exclusion, directed the Janjaweed militias, and --- very importantly --- continues to impede humanitarian assistance to the same populations previously targeted for direct violence:

"[The ongoing] hindering of humanitarian assistance is part of the genocide, because the consequence is that people are dying. Five thousand are dying each month, and we are presenting that as a humanitarian crisis. It's not; it's a crime. I'm sorry if I disturb those who are in negotiations, but these are the facts."

This point is absolutely critical, because it links the current situation with the past peak of the violence, from 2003 - 2005. As scholar Eric Reeves argues, the violence now may be of a different character than the large-scale massacres of the peak, but,

"...it could hardly be otherwise: the strong consensus among this writer's informed contacts in the Darfuri diaspora is that between 80 and 90 percent of all African villages have been destroyed. More than 2.7 million people---overwhelmingly from African (non-Arab) populations---have been displaced into camps within Darfur or refugee sites in Eastern Chad."

Current, lower-scale violence not only remains systematic and largely one-sided, but the systematic displacement and deprivation of assistance must also be considered as part of Khartoum's genocidal continuum --- as creating the "conditions of life" designed to insure a group's destruction, which need not always entail direct killing.

(Part III comes later tonight...after I walk my dog.)

[Photo from AP: Posters showing a red cross over the face of International Criminal Court chief prosecutor Luis Moreno Ocampo lie on the ground among a crowd at the opening ceremony of the Merowe High Dam, attended by Sudanese President Omar al-Bashir, in Merowe, northern Sudan Tuesday, March 3, 2009. Ocampo said Tuesday that he has strong evidence that Omar al-Bashir controlled a genocidal campaign aimed at wiping out three ethnic African tribes in the Darfur region, while al-Bashir insulted the court and danced for supporters who torched Ocampo's effigy.]