September 10, 2004
In declaring that “genocide has been committed in Darfur, and that the government of Sudan and the Janjawid bear responsibility,” Colin Powell made history of a grim sort: this is the first time that a sovereign nation has accused another sovereign nation of active genocide under the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide. But as important as this determination is, and as profoundly as it works to force the rest of the international community to consider more deeply the nature of human destruction in Darfur, it is not by itself enough. Indeed, by arguing in yesterday’s testimony before the Senate Foreign Relations Committee that the obligation to “prevent” genocide entails so very little, Powell has done what his State Department spokesmen have done for months: he has made it less likely that the Genocide Convention will ever be used as a tool to serve the primary purpose for which it was created.
On the narrow reading of Convention obligations as rendered by Powell, the US has fulfilled its contractual obligation to “prevent genocide” by simply proceeding as it has, referring the matter to the UN in the already-planned UN Security Council resolution: “In fact, no new action is dictated by this determination [of genocide]” (testimony of Secretary of State Colin Powell, September 9, 2004, before the Senate Foreign Relations Committee).
What does it mean for Powell to declare that “no new action is dictated” by a determination that the Khartoum regime and its Janjaweed militia proxy are engaged in the ultimate crime? What does such a narrow view of US obligations mean for genocide prevention? What does this minimalist interpretation mean for Darfur? Though much anticipated, and though certain to change the moral character of debate about international response to Darfur’s catastrophe, Powell’s genocide determination may actually signal the end of the Genocide Convention as a tool of deterrence and prevention. For if a finding of this sort, rendered in light of the most conspicuous evidence of ongoing genocide, prompts no action, then the precedent created during yesterday’s Senate testimony by the US Secretary of State is wholly unfortunate.
The insistence that, despite a genocide finding, “no new action is dictated” reflects in part US impotence at the UN, a function in many ways of diplomatic capital expended on the war in Iraq. Indeed, under questioning by Senators on the Foreign Relations Committee, it became painfully clear that the new US draft resolution being circulated in the UN Security Council is not so much a draft as a plea. The proposed resolution is vague, without a clear or explicit threat of sanctions, and establishes no meaningful new benchmarks for Khartoum. Though Powell sought to represent this as a tougher resolution, he was entirely unpersuasive.
Most significantly, the resolution contains no means of forcing Khartoum to accept African Union peacekeepers (ever more clearly the default policy response of the international community); Powell refers often in his testimony to several thousand addition AU monitors and “protection forces”—but never to peacekeepers. This represents acquiescence before Khartoum’s refusal to accept any augmented African Union force that has a robust peacekeeping mandate. As a consequence, the proposed resolution does not do nearly enough to address the immediate and pressing security needs in Darfur, despite Powell’s repeated claims to the contrary.
Nor does the proposed resolution do anything to augment the woefully inadequate humanitarian capacity to respond to the more than 2 million people in ever greater need throughout Darfur and in refugee camps in Chad. Powell calls on scandalously unresponsive countries (France, Italy, Japan) to contribute more. But these countries will likely respond more generously to other voices. The political logic of this resolution, aptly described as “milquetoast” in a Washington Post editorial (September 9, 2004), is inescapable: unable to do anything for lack of will and diplomatic capital, the US has declared that a genocide determination does not require more than what the lowest common denominator at the UN permits.
This provides a certain ghastly clarity in the new world order of the 21st century: even genocide, even the crime that defined the actions in Rwanda and Eastern Europe during the Holocaust, does not entail any special response or effort of prevention. If this indeed marks the end of any particular obligations under the Genocide Convention, we may legitimately wonder whether the price paid for Powell’s determination is not exorbitantly high.
WHAT POWELL SAID
In speaking of the Khartoum regime as bearing responsibility for genocide in Darfur, along with the Janjaweed, Powell added an extraordinarily significant caveat: “and that genocide may still be occurring” (this and subsequent references from transcript of Secretary of State Colin Powell, September 9, 2004 testimony before the Senate Foreign Relations Committee).
“May still be occurring”? This implies a doubt about present realities that has no justification.
We know from countless sources, including the African Union monitors on the ground, that Khartoum continues its genocidal ways. The Janjaweed are Khartoum’s primary military instrument: they have not been disarmed or controlled in any meaningful way, as even Kofi Annan and his special representative for Darfur Jan Pronk have reported to the UN Security Council (August 30, 2004 and September 1, 2004). In fact, as Human Rights Watch has recently established, the Janjaweed forces have numerous bases in Darfur, and are often quartered with Khartoum’s regular military forces (“Sudan: Janjaweed Camps Still Active,” Human Rights Watch [New York], August 27, 2004; report available at: http://www.hrw.org/english/docs/2004/08/27/darfur9268.htm).
The African Union has very recently confirmed attacks on civilians by Khartoum’s regular forces, including military aircraft. Indeed, Powell himself declares at one point that Senator Jon Corzine “can vouch for the fact that atrocities are still occurring.” And most significantly, the consequences of previous deliberate civilian destruction, including the destruction of foodstocks and water supplies, brutal displacement, the creation of massive insecurity, and the impeding of critically needed humanitarian relief supplies continue to play out in the form of ongoing civilian deaths among the targeted African tribal populations.
Khartoum has “deliberately inflicted on [Darfur’s African tribal populations] conditions of life calculated to bring about their physical destruction” (from the Genocide Convention, Article 2, clause [c]). This “deliberate,” “calculated” human destruction clearly continues. Moreover, despite Powell’s repeated insistence on a complete change for the better in the nature of humanitarian access, serious problems remain and are reported weekly by the US Agency for International Development and various aid organizations. The unqualified crediting of Khartoum on this score is seriously misleading, and evidently designed to suggest that more has been accomplished than the facts bear out. Moreover, Khartoum is well aware that during the heaviest part of the rainy season, months of previous obstruction will now have their culminating destructive effect.
This is not a genocide that only “may” be continuing: it is clearly continuing and to suggest otherwise is disingenuousness growing out of political calculation.
We catch a glimpse of the political bind driving Powell to such calculation in a revealing moment of testimony. On the one hand, he declares that, “We are not trying to punish [ ] the Sudanese government; [ ] we have a mutual interest with the Sudanese government, if they are determined, as we are, that their people should not put at this kind of risk.” But in the same testimony Powell has announced his determination that the National Islamic Front regime is guilty of genocide. How can these two statements be made to comport with one another?
Moreover, despite his finding of genocide on the part of Khartoum, Powell preemptively pardons the regime by saying “we are not trying to punish them.” But shouldn’t genocidaires be punished? Shouldn’t there be, as Powell explicitly suggests elsewhere, be an international tribunal to punish the crime of genocide in Darfur and those guilty of this monstrous crime? —
“The United States will propose that the next UN Security Council resolution on Sudan request a United Nations investigation into all violations of international law and human rights law that have occurred in Darfur.”
How can Powell simultaneously find the regime guilty of genocide, but then declare that “we are not trying to punish the Sudanese government” and indeed we may have “a mutual interest with the Sudanese government”? This profound moral confusion is not lost on the “Sudanese government,” for the “Sudanese government” is not a government at all, but a tyrannical cabal of vicious survivalists—well-organized, protected by a highly elaborate security network, acutely aware of whether they confront any meaningful external threats, and determined to act only under the most concerted international pressure—and then only for reasons of political survival. Why should they be preemptively pardoned, as Powell so clearly suggests they might be? —
“Before the government of Sudan is taken to the bar of international justice, let me point out that there is a simple way for Khartoum to avoid such wholesale condemnation by the international community and that way is to take action, to stop holding back, to stop dissembling.”
But a government that is guilty of genocide must be taken before “the bar of international justice”: otherwise, following the logic of Powell’s statements, a genocide determination neither “dictates new action” (prevention of genocide) nor produces the certain knowledge that justice will be rendered (punishment of genocide). Both of the key goals of the Genocide Convention (“on the Prevention and Punishment of the Crime of Genocide”) have been undermined.
No doubt Powell will say, as will many in the international community, that we must work with the Khartoum regime, not confront it. Such a strategy of engagement has failed for fifteen years and shows no signs of succeeding now. This regime cannot be reformed; ultimately it must be removed if a just peace is ever to come to Sudan. But until the will is found to effect this change in regime, we must at the very least recognize that preemptive pardons for genocide will gain the US no credit with these brutal men, only their contempt. Indeed, they will simply be more secure in knowing that there is no truly credible threat behind international pronouncements and indignant bombast.
POWELL ON THE AFRICAN UNION MONITORING FORCE
Powell places inordinate hope in the African Union monitoring force presently deployed in Darfur: 120 monitors and just over 300 troops to protect them. Disingenuously, he nowhere in his testimony notes the debilitating logistical problems and constraints this force faces. Deliberately created fuel “shortages”; lack of helicopter transport; lack of communications gear; and most significantly, an extremely constrained mandate: to “monitor” a cease-fire that is obviously in tatters.
And though Powell talks frequently about the mooted figures for a larger deployment of African Union troops, he nowhere talks about the means by which the UN or the international community can overcome Khartoum’s adamant refusal to accept any force with a peacekeeping mandate. Indeed, by suggesting that “Khartoum seems to have expressed a willingness to consider such an expanded mission,” Powell deliberately, and again disingenuously, obscures the critical failure to address security issues in a meaningful fashion. For as long as Khartoum refuses to accept any expanded mission with a peacekeeping mandate (only additional observers, and forces to protect these observers), there will be no significant improvement in the security situation on the ground.
Nor does Powell acknowledge that a force of even “2,000 to 5,000″ monitors, protectors of monitors, and military police cannot begin to address fully the security issues that presently put so many hundreds of thousands at risk in Darfur, and threaten to paralyze agricultural production for the foreseeable future. On the contrary, he dangerously suggests that African Union monitors can bring security to rural Darfur: “the fastest way to bring security to the countryside [is] through this expanded monitoring presence, so we can see what is going on and act to prevent it.” This is shamefully inaccurate, misleading, and ultimately dangerous to the people of Darfur.
The vast rural areas may be partially observed (though often only after new atrocities have been committed) by a vastly expanded force of African Union monitors, fully equipped with transport and communications equipment; but there is no way that this force can act to “prevent” acts that threaten human security. All that can actually secure the rural areas in ways that permit displaced people to return and resume agriculturally productive lives is a much larger force, with an explicit peacekeeping mandate—many times the size of the purely monitoring force Powell repeatedly refers to (“something from 2,000 to 5,000″). This is not a solution to the security crisis in Darfur, but a means of obscuring its severity.
By way of trying to forestall criticism of the inadequacy of the solution he is proposing, Powell sets up a straw man, suggesting that the only alternative to increasing the number of monitors is that “some outside force could come in and undertake military action against the Janjawid, as if they’re a military organization; [this] is nave in my judgment.” But humanitarian intervention of the sort suggested by this writer and others isn’t a war against the Janjaweed (which certainly is a “military organization”): humanitarian intervention at this point entails military force in support of a much expanded capacity to deliver critically necessary food, medicine, shelter, and water purification equipment. It also entails protecting the exceedingly vulnerable camp populations that remain at the mercy of the Janjaweed, and protecting increasingly endangered humanitarian workers. By refusing to discuss the true nature of the humanitarian intervention most widely proposed, and the appropriate accompanying military force, Powell attempts to force a deeply misleading choice.
Powell’s testimony is distorting and disingenuous on other counts as well. He declares at one point:
“Since the United States became aware of the atrocities occurring in Sudan, we have been reviewing the Genocide Convention and the obligations it places on the government of Sudan and on the international community,”
and that on this basis,
“in July  we launched a limited investigation by sending a team to the refugee camps in Chad.”
In other words, Powell is attempting to suggest that the State Department responded in a timely fashion to the threat of genocide. This is not true. Ample evidence was available at the end of 2003, clearly suggesting that genocide was occurring (by December 2003 the nature of the fall offensive by Khartoum and the Janjaweed became fully evident). Human rights reports, alluded to at one point in Powell’s testimony, were filled with details suggesting that genocide was unfolding. Certainly by February of 2004, as attacks on the African tribal populations of Darfur again dramatically increased, there was more than enough evidence to justify a genocide investigation. And yet the State Department deployed an investigative team only in July, almost half a year later. This was shamefully belated action—shamefully.
Much is explained in the nature of State Department statements on Darfur through the early part of 2004—statements that relentlessly elided all mention of the patently clear racial/ethnic dimension of the human destruction. This was clearly so as not to roil the diplomatic waters while negotiations in Naivasha (Kenya) between Khartoum and the southern Sudan People’s Liberation Movement/Army where inching their way toward completion (May 26, 2004). Far from working to investigate genocide, the State Department deliberately obscured the nature of human destruction in Darfur for many months.
US DIPLOMATIC FAILURE AT THE UN
What is most striking about Powell’s testimony concerning the proposed US resolution for the Security Council is its utter lack of enforcement provisions. Here, predictably, the real question was forced by the distinguished Russ Feingold of Wisconsin:
“FEINGOLD: In the draft resolution currently being circulated by the US at the Security Council, what specific consequences will be triggered by the government of Sudan’s failure to improve the security situation in Darfur?”
“POWELL: There is no specific action in the form of sanctions, if that’s your context, Senator Feingold.”
When Feingold persisted—“What good does it do to pass UN resolutions with deadlines when there are no actual consequences triggered by a failure to achieve the….”—Powell simply cut him off and offered a lengthy response full of talk about what the resolution “expresses” and “declares” and “sets in play” and “measures” and how it “elevates the concern.” But nowhere did Powell actually answer the question posed.
All Powell can do is lamely suggest “the possibility of sanctions.” By way of trying to give emphasis to this merely notional threat, Powell simply talks repeatedly about sanctions, “including in the petroleum sector.” The reference to Khartoum’s “petroleum sector” occurs more than half a dozen times in Powell’s testimony. But as Powell himself is forced to admit, there is no mechanism for enforcement of “sanctions” against Khartoum’s “petroleum sector,” nor is it possible to imagine how this is politically practicable:
“[Oil sector sanctions] would of course require concerted UN action, and the UN would have to do it in the form of a resolution so that is becomes binding as in international law.”
Powell does nothing to suggest how veto-wielding China and Russia could be brought to support such a Security Council resolution. For both Russia and China have large oil interests in Sudan. Indeed, China is the dominant player in Sudan’s oil production and development sector; China is also a net importer of oil (with imports growing at a rate of 10 percent per year and an economy especially vulnerable to oil price shocks), and will certainly reject any UN action that does anything to pressure Khartoum in this arena.
Here Powell is evidently trying to piggy-back on recent European Union comments about EU sanctions, including an “oil embargo”; but since the EU proposal seems equally without clear meaning or indication of conceivable implementation, Powell has ended up trying to threaten with a stick that doesn’t really exist. Without specifying the means of pressuring Khartoum by way of its “petroleum sector,” Powell is simply signaling to the regime US powerlessness.
THE END OF THE 1948 GENOCIDE CONVENTION?
What must we conclude about Powell’s testimony? Ultimately he appears to be using the potency of the term genocide without any commitment to the moral obligations entailed in a finding of genocide. In trying to have it both ways, he produces only incoherence, captured in a single page of transcript: Powell first declares that “the government of Sudan bears responsibility [for the genocide in Darfur],” and then observes that “Sudan is a contracting party to the Genocide Convention and is obliged under the convention to prevent and to punish acts of genocide.”
How likely is it that the genocidaires will punish themselves? and prevent a continuation of their own clearly designed policies for human displacement and destruction in Darfur? This is hopelessly illogical and reflects a desire to threaten while at the same time, out of impotence and desperate hope, encourage Khartoum. But when the issue is genocide, this is simply moral madness. Senator Feingold again offers a moment of lucidity in yesterday’s hearing, responding to the relentlessness of emphasis on the African Union force and “African solutions to African problems”:
“Genocide is not a regional problem, it is a whole world problem.”
If we lose sight of this fundamental point on the international moral compass, then we are truly lost and we may be sure that other names will be added to a list that includes Biafra, Rwanda, and now Darfur.
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