FROM AUSCHWITZ TO DARFUR
Bangkok Post – Thailand
Feb 13, 2005
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 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 _ 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 just
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, ethnic, 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.
UN definition is best
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 apologised 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 there is risk that the Darfur crimes
will 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). This article is reprinted
with permission from YaleGlobal Online ().