YaleGlobal Online, CT
Feb 4 2005

Over 200,000 people have died in the violence in Sudan’s Darfur
provinces. And as the bloodshed continues, genocide scholar Ben
Kiernan writes, members of the international community – who may
actually have the influence to halt the killings and prosecute the
perpetrators – have been preoccupied with semantic and jurisdictional
wrangling. Kiernan provides an historical background to the legal
definition of “genocide,” noting that the concept pre-dated the term.
He writes, “After a century of genocide, resistance, and research on
the phenomenon, the world community has a legal definition, an
international statute outlawing the crime, and a court asserting
jurisdiction over it,” And now, in order to halt the massacres in
Sudan, punish those responsible, deter such crimes elsewhere, Kiernan
concludes that the next step must be for the International Criminal
Court to hear the Darfur case. – YaleGlobal

Letting Sudan Get Away with Murder

Debate over whether to call the mass murder in Darfur “genocide” is
preventing efforts to bring those responsible to justice

Ben Kiernan
YaleGlobal, 4 February 2005

Horsemen of death: Janjaweed rebel leader Musa Hilal (left) and his
men have been accused of committing genocide in Darfur

NEW HAVEN: In two years of mass killings and forced population
displacements, Sudan and its Arab Janjaweed militias have caused the
deaths of over 200,000 Africans in the country’s Darfur provinces.
Though existing international law already provides both a relevant
statutory definition of genocide and a court to judge these crimes,
needless semantic disputes are hampering effective punishment and
deterrence. Failure to promptly bring those responsible before the
International Criminal Court (ICC) could render the international
community helpless onlookers – and would further encourage such
crimes.

Despite persistent reports of attacks on Africans in Darfur, military
intervention has been slow. The African Union peacekeeping force is
small. Guarding their own sovereignty, few African or Arab
governments will intervene in a regional Islamic state, or prosecute
its crimes. US intervention, with American forces extended in Iraq
and elsewhere, seems unlikely. Washington favors a genocide tribunal,
in a special court restricted to hearing the Darfur case. It opposes
the new permanent ICC, which one day might try US war crimes.

Differing definitions of genocide plague the legal response. A United
Nations commission, urging referral of the case to ICC prosecutors,
recently found that crimes against humanity and war crimes are
occurring in Darfur. The commission avoided charging Sudanese
government officials with genocide – the most heinous crime against
humanity – stating that “only a competent court” can determine if
they have committed “acts with genocidal intent.” Meanwhile, the US
government, the German government, the Parliament of the European
Union, the US Holocaust Museum’s Committee on Conscience, and Yad
Vashem, all accuse Khartoum of “genocide.”

Why this debate over the definition of genocide? Although the concept
of genocide preceded the invention of the term, the jurist Raphael
Lemkin coined the term “genocide” in his 1944 classic Axis Rule in
Occupied Europe. Warning of what we now call the Holocaust, he cited
previous cases, particularly the 1915 Armenian genocide perpetrated
by the Ottoman Young Turk regime. Lemkin thought that the term should
denote the attempted destruction not only of ethnic and religious
groups, but also of political ones, and that it encompassed
systematic cultural destruction as well.

The 1941-45 Nazi genocide of Jews and Gypsies constitutes not only
the most extreme case of genocide; it differs from previous cases –
the conquistadors’ brutality in the New World or nineteenth-century
Ottoman massacres of Armenians – in an important respect: The
Holocaust was one of the first historical examples of attempted
physical racial extermination. On a smaller scale, this fate had
already befallen a number of indigenous peoples in the Americas,
Africa, and Australia – and later, the Vietnamese minority in
Cambodia, and Tutsis in Rwanda in 1994. By then, planned
near-complete annihilation of a people had become the colloquial
meaning of “genocide.”

Yet the postwar United Nations Convention on the Prevention and
Punishment of Genocide adopted Lemkin’s broader concept, which
encompasses the crimes in Darfur. Ratified by most UN member states,
the 1948 Convention defines genocide as acts committed “with the
intent to destroy, in whole or in part, a national, ethnical, racial,
or religious group, as such.” It includes even non-violent
destruction of such a group. While excluding cultural destruction and
political extermination, the Convention specifically covers removal
of children, imposing living conditions that make it difficult to
sustain a group’s existence, or inflicting physical or mental harm,
with the intent to destroy a group “as such.” Australia’s Human
Rights and Equal Opportunity Commission found in 1997 that the UN
definition of genocide applies to the removals of Aboriginal children
from their parents to “breed out the color” – as one Australian
official put it in 1933. The law thus expands the popular
understanding of genocide. As in the case of Darfur, genocide may
fall well short of total physical extermination.

While some scholars use the term more broadly, to include destruction
of political groups, the legal recourse now available to victims
under international law is a good reason to accept the 1948 UN
definition. In 2003, Sudan acceded to the Genocide Convention (which
the US ratified in 1988). It is statutory international law, binding
on 136 states. In the past decade, UN tribunals for Bosnia and Rwanda
have prosecuted and convicted genocide perpetrators from both
countries. The Convention’s definition is enshrined in the statute of
the ICC, created in 2002 and ratified by 94 states.

The legal definition is broad in another sense, too. In criminal law,
the term “intent” does not equal “motive.” One of Hitler’s motives
for the construction of Auschwitz was to destroy the Jews directly,
but other genocide perpetrators have pursued different goals –
communism (Stalin and Pol Pot), conquest (Indonesia in East Timor),
“ethnic cleansing” (in Bosnia and Darfur) – which resulted in more
indirect cases. If those perpetrators did not set out to commit
genocide, it was a predictable result of their actions. The regimes
pursued their objectives, knowing that at least partial genocide
would result from their violence: driving Muslim communities from
Bosnia or Africans from Darfur, crushing all national resistance in
East Timor, imposing totalitarian racism in Cambodia. When such
policies, purposefully pursued, knowingly bring genocidal results,
their perpetrators may be legally judged to have possessed the
“intent” to destroy a group, at least “in part,” whatever their
motive. Such crimes are not the same as the Holocaust, but
international law has made them another form of genocide.

The 1948 Convention also outlaws complicity, incitement, conspiracy,
and attempt to commit genocide. A government could commit those
crimes by facilitating an ongoing genocide against indigenous people.
Darfur may include such cases of official complicity with the
Janjaweed militia attacks. In colonial Australia, British authorities
did not set out to exterminate Aborigines, but some police and
settlers did. Nor did US federal officials adopt such a goal in
California and the West, though some state governments and
bounty-hunting posses did. Yet courts in both countries prohibited
testimony by native people. Such official policies and their
deliberate, sustained enforcement facilitated or resulted in the
predictable genocide of a number of Aboriginal and Native American
peoples.

Complicity, discrimination, and refusal of legal responsibility to
protect threatened groups continued in the twentieth century. Even
after World War II, the UN Security Council failed to enforce the
1948 Genocide Convention until the crime recurred in Europe. By then
genocides had proliferated elsewhere. A few independent scholars,
inspired by Lemkin, had long been working to broaden understanding of
the phenomenon beyond the Holocaust. Most scholars now include the
Armenian, Bangladeshi, Cambodian, East Timorese, Guatemalan,
Sudanese, and other cases, along with those of Bosnia and Rwanda.

Attention has also turned to indigenous peoples. A German official
recently apologized to the Herero people of Namibia for Berlin’s
genocidal conquest of Southwest Africa in 1904-05. The United States
and Australia have yet to acknowledge earlier genocides against their
indigenous inhabitants, but now the Muslim Africans of Darfur have a
legal remedy.

After a century of genocide, resistance, and research on the
phenomenon, the world community has a legal definition, an
international statute outlawing the crime, and a court asserting
jurisdiction over it. The task now requires less definitional
disputation, more investigation, rigorous enforcement, and
compensation for the victims. Unless either the Sudanese government
invites the ICC, or the UN decides to send the case before the ICC,
the Darfur crimes may go unpunished. Lest international efforts to
prevent genocide disintegrate into empty talk, the ICC should be
allowed to take up the case of Darfur.

Ben Kiernan is the A.Whitney Griswold Professor of History and
Director of the Genocide Studies Program at Yale University,
He is the author of How Pol Pot Came to Power, and
The Pol Pot Regime (Yale 2002, 2004), and co-editor of The Specter of
Genocide: Mass Murder in Historical Perspective (Cambridge, 2003).