The Scotsman, UK
March 20 2005

Less talk, more action

BEN KIERNAN

IN TWO years of mass killings and forced population displacements,
Sudan and its Arab Janjaweed militias have caused the deaths of more
than 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 favours 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 stating that “only a competent
court” can determine if they have committed “acts with genocidal
intent”. Meanwhile, the US government, the German government and the
parliament of the European Union all accuse Khartoum of “genocide”.

Why this debate over the definition of genocide? Although the concept
preceded the invention of the term, the jurist Raphael Lemkin coined
the word 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 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 Ottoman massacres –
in an important respect: the Holocaust was one of the first 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 UN 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 applied
to the removals of Aboriginal children from their parents to “breed
out the colour” – 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.

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. It is statutory international
law, binding on 136 states. In the past decade, UN tribunals for
Bosnia and Rwanda have 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. 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 – 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 Africans from
Darfur, crushing all national resistance in East Timor, imposing
totalitarian racism in Cambodia. When such policies knowingly bring
genocidal results, their perpetrators may be legally judged to have
possessed the “intent” to destroy a group, 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 20th 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
genocide 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 apologised to the Herero people of Namibia for Berlin’s
genocidal conquest of South-West Africa in 1904-05. The US and
Australia have yet to acknowledge 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