September 7, 2004
THE IMPORTANCE OF A GENOCIDE DETERMINATION
Secretary of State Colin Powell is scheduled to testify Thursday (September 9, 2004) before the Committee on Foreign Relations of the US Senate. He is the only scheduled witness, and is widely expected to announce at the hearing (or before) the results of his shamefully dilatory determination of whether deliberate, ethnically/racially-driven destruction of civilians in Darfur, over more than a year, constitutes genocide.
The specific evidence upon which Powell will base his determination is a report reflecting more than 1,100 interviews conducted by a team organized under the auspices of the State Department and the US Agency for International Development. These interviews and the overall report are extremely important documents. Given the intense world interest in Darfur—however ineptly represented by the present “international response—it is incumbent upon Powell, when he has announced his findings, to release immediately all interviews and the complete text of the report. This will enable nongovernmental organizations working in the field of human rights, genocide scholars, international legal scholars, and various international organizations to make full use of these materials in furthering their own thinking about the nature of human destruction in Darfur.
There can be no legitimate argument against the release of these documents, suitably purged of any information that would put particular individuals at increased risk. Indeed, the argument for full release is as compelling as the growing insistence that what is happening in Darfur is most appropriately compared to the Rwandan genocide.
By analogy, we must ask whether any argument could possibly be made that if equivalent documents for Rwanda had existed while the genocide was underway, such documents should have been withheld from the world at large. Of course the time-frame of the Rwandan genocide made impossible the kinds of highly detailed, carefully randomized interviews that were conducted on the Chad/Darfur border—by 24 interviewers, in two larger overall groupings, dividing their labors geographically. Moreover, these interviews were conducted at length, in secure environments, with a fully adequate number of skilled translators, among refugees who could speak without the fear that haunts all who remain in camps for the displaced within Darfur itself.
No reasonable argument for withholding any of these documents can be made: there is no more important source of evidence for international efforts to make a determination of genocide. The significance of this determination lies in the obligation specified in Article 1 of the 1948 UN Convention on the Prevention and Punishment of the crime of Genocide, viz. the commitment to “prevent” genocide. The UN and member states presently refuse to describe what is occurring in Darfur as (potential) genocide; implicit in this refusal is the assertion that they have no obligation to “prevent” genocide under the Genocide Convention (to which every current member of the UN Security Council is a contracting party).
Many certainly wish, as this writer does, that the ultimate crime of genocide not become the perverse “gold standard” for humanitarian intervention: crimes against humanity, war crimes, and violations of international humanitarian law and of various Geneva Conventions should be enough in many circumstances. But we must recognize that other thresholds for intervention, established by several international agreements and doctrines, seem not to have any meaning. For example, the so-called “Responsibility to Protect” that grew out of a 2001 report sponsored by the Canadian government, “sought to define the circumstances in which the United Nations, or a coalition of willing states, could override the doctrine of non-interference in a nation’s internal affairs. Those circumstances included a ‘large-scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act'” (John Ibbitson, The Globe and Mail [Canada], September 3, 2004).
Of course Canada is nowhere to be found these days in discussions of how to mount a humanitarian intervention in Darfur, despite the unambiguous circumstances demanding that an international “Responsibility to Protect” be accepted. Canada would appear much better at funding studies and reports than acting on them: this presumably is one of the Canadian meanings of “soft power.”
But Canada is far from alone in shirking its “Responsibility to Protect” the people of Darfur—people who are facing “large-scale loss of life,” with what all evidence extant suggests is “genocidal intent,” which intent reflects “deliberate state action,” as has been established by numerous authoritative human rights reports. That such facts have not produced any willingness to “override the doctrine of non-interference in a nation’s internal affairs” makes clear why a determination of genocide so important. Again, in a better world we should not require such a threshold for international action; and those who worry about issues of precedent on this score are fully justified. But this is the world as we find it, and the context in which judgments and actions must be undertaken.
WHAT WE KNOW OF THE GENOCIDE ASSESSMENT MISSION
We now know a good deal about the findings of the State Department/USAID investigating team. Indeed, a fine account of the general tenor of the investigation and interviews is provided in an article written yesterday for the International Herald Tribune (September 6, 2004) by Kelly Askins. Askins is senior legal officer at the Open Society Justice Initiative, and has a doctorate in humanitarian law:
[I was in Chad to provide] assistance to a US-government-funded mission led by the Coalition for International Justice, to interview refugees about why they fled Darfur, and to participate in documenting and assessing the crimes they endured or witnessed before leaving. According to witnesses I interviewed, since its independence from Britain and Egypt in 1956, Sudan has systematically discriminated against its black citizens, amounting to the crimes against humanity of persecution and apartheid. It has now reached the scale of genocide—executed through violence, starvation and other means of destroying the black Africans in the Darfur region.” [ ]
This finding—“it has now reached the scale of genocide”—is without qualification. Askins continues:
“The definition of genocide is not limited to mass killing, although that is the means that generates the most attention and outrage. The Genocide Convention of the United Nations also requires states to prevent and punish other acts committed with an intent to destroy, even partially, a racial, ethnic, national or religious group. The most common form of genocide committed in Darfur is the infliction of ‘slow death’ through starvation and disease—an act covered under Subarticle C of the Genocide Convention, which prohibits inflicting on a group ‘conditions of life’ calculated to result in its demise.” (International Herald Tribune, September 6, 2004)
Here we have the assessment of an international legal expert who participated in the most substantial investigation of its kind ever undertaken during an episode of genocide. There is no hesitation, no qualification, no agnosticism: “The most common form of genocide committed in Darfur is the infliction of ‘slow death’ through starvation and disease”; the reference to clause [c] of Article 2 of the Genocide Convention is precisely appropriate: “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.”
What else have we learned from this group of 24 investigators and the preliminary report they have compiled? (The final report is presently tightly held, but this is justified only until Secretary of State Powell has testified). The New York Times obtained a copy of the preliminary report and notes a number of important findings (August 25, 2004):
“A preliminary State Department review of the violence waged in the Darfur region of Sudan has implicated government-backed militias in ‘a consistent and widespread pattern of atrocities,’ including murder, torture, rape and ethnic humiliation.” [ ]
“The study, conducted by State Department officials together with outside legal experts, found that nearly one-third of the refugees interviewed reported hearing racial epithets while under attack, and that nearly 60 percent of them reported witnessed the killing of a family member. Twenty percent of the respondents said they had witnessed a rape and another 25 percent had witnessed beatings.”
“In the preliminary study, roughly half of the respondents said government soldiers had joined Arab militias, known as the Janjaweed, in attacking black African villages. One quarter of the refugees said they were attacked by soldiers alone. Another 17 percent said militias alone attacked them.”
“Based on the testimony, the survey declared that ‘the primary cleavage defining this conflict appears to be ethnic,’ with Arab soldiers and militia attacking non-Arab villagers. ‘Numerous credible reports point to the use of racial and ethnic epithets by both the Jingaweit and Government of Sudan military personnel,’ the report said. Among the epithets that the interviewers reported were ‘Kill the slaves’ and ‘We have orders to kill all the blacks.'” (New York Times, August 25, 2004)
The hateful racial/ethnic animus in civilian destruction throughout Darfur is yet again clearly revealed here, as it has been in numerous reports from Amnesty International, Human Rights Watch, the International Crisis Group, UN human rights investigations, and countless news dispatches.
Of particular importance in establishing the “intent” that defines genocide is the finding that 75% of all attacks, on the more than 200,000 civilians who have fled to Chad, included regular armed forces of the Khartoum regime. This large refugee population is represented in statistically significant fashion by the more than 1,100 interviews conducted in the US-government-supported study. Moreover, these attacks continue to this day, as has recently been established by the African Union monitoring team in Darfur.
We must ask here a simple question: “How can we escape the conclusion that such concerted, long-term attacks on civilians by Khartoum’s regular military forces—including attacks by helicopter gunships and Antonov bombers—are intentional?” And if the overwhelming majority of the victims of these attacks are civilians from Darfur’s African tribal populations, how can we avoid the further conclusion that these attacks are intentional efforts to destroy these people, “as such”? On what basis does agnosticism about “genocidal intent” sustain itself in the face of these undeniable facts?
Another wire service report on the findings in the preliminary report offers additional chilling details, and also supports previous accounts of the close military relationship between Khartoum and the Janjaweed militia; it also provides a key statistic from the report on aerial attacks, with clear bearing on Khartoum’s “intent”:
“‘Based on the information we gathered, the links seemed very strong between the Janjaweed and the government,’ said Stefanie Frease of the Washington-based Coalition for International Justice, which oversaw the study with a grant from the U.S. Agency for International Development. Sudan’s government, which faces growing international pressure over the humanitarian crisis, has denied having control over the militia.”
“Frease said the refugees, selected at random for interviews, offered firsthand accounts of racially motivated attacks. In some instances, she said, the Janjaweed would take infants from their mothers’ backs. If the child was a boy, it would be killed by crushing or knifing. Female infants would be tossed aside.” [ ]
“[A] senior [Bush] administration official, also speaking on condition of anonymity, said the report tracked closely with other studies by human rights groups that have documented a campaign of violence targeting black Africans. The refugees, he said, reported rapes of women of all ages; the targeting of males over age 12 for execution; the burning of villages and killing of livestock; and deliberate destruction of wells and irrigation systems. ‘It was not random, it was systematic,’ he said.”
“More than 60 percent of those interviewed reported that government aircraft were used to bomb villages, and some mentioned the presence of tanks as well, [the senior Bush administration official] said.” (Knight Ridder news service, August 25, 2004)
“It was not random, it was systematic”—this forces the obvious question: “What is the nature of the ‘system’ of civilian destruction?” And the equally obvious answer is that the “system” is defined by the ambition to destroy the African tribal populations of Darfur. That 60% of these people, on fleeing to Chad, report Khartoum’s use of Antonov bombers to attack their villages makes clear just how widespread and “systematic” the genocidal assault has been. Such numerous attacks, with this extremely high level of purely civilian targeting, cannot have a military purpose other than to destroy those villages and their African populations. It is yet more evidence of genocidal intent.
THE QUESTION OF GENOCIDAL INTENT
In the event that political considerations prevent Secretary of State Powell from speaking the truth about genocide in Darfur, he will need an excuse for deciding that the deliberate destruction of African tribal peoples in Darfur, by Khartoum and its Janjaweed proxy, does not constitute genocide. The excuse to be offered, if this is his decision, will have been formulated by State Department lawyers—the same sort of lawyers who were so shamefully diffident during the Rwandan genocide. We are offered a telling glimpse of their attitudes in an excerpt from Samantha Power’s magisterial study of genocide:
“1. Genocide investigation [in Rwanda]: Language that calls for an international investigation of human rights abuses and possible violations of the genocide convention. Be Careful. Legal [Affairs Department] at State [Department] was worried about this yesterday—Genocide finding could commit (the US government) to actually ‘do something’ [last sentence emphasized in original text].” (“‘A Problem from Hell: American and the Age of Genocide,” page 359)
“Be careful… A genocide finding could commit the US government to actually ‘do something.” This “carefulness” at the State Department is presently being widely reported in Washington by knowledgeable sources. It is not yet certain that Powell will seek to avoid “doing something”—will shirk the obligations the US must accept under the Genocide Convention. But repeated comments from State Department spokesmen Ereli and Boucher are hardly encouraging in their relentless effort to diminish expectations about US obligations under the Convention. This may of course be a means of downplaying the consequences of a genocide determination, if it occurs; or it may be a means of suggesting that the absence of a genocide determination would not change US policy on Darfur.
Neither motivation is encouraging; nor is the statement of a senior US official, speaking on background in late July, declaring that the only firm US obligation “would be the responsibility to arrest a genocide perpetrator if that person ventured onto US soil.”
The issue of “genocidal intent” deserves particular attention, then, since there can be no question that the sheer numbers of human beings destroyed, displaced, and put at the acutest risk cross whatever threshold is required to constitute the “part” stipulated in the Genocide Convention: “In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part…. (Article 2). A powerful source of guidance here is the Appeals Chamber of the International Tribunal for violations of international law in the former Yugoslavia, in particular the case involving a review of “Prosecutor v. Radislav Krstic,” Case No. IT-98-33-T); this extraordinarily well-reasoned and lucid document can be found at: http://www.un.org/icty/krstic/Appeal/judgement/index.htm). Speaking to the issue of “quantity” or “substantiality,” i.e., what constitutes a “part,” the Appeals Chamber noted:
“It is well established that where a conviction for genocide relies on the intent to destroy a protected group [i.e., “national, ethnical, racial or religious” group] ‘in part,’ the part must be a substantial part of that group. [ ] The part targeted must be significant enough to have an impact on the group as a whole.” (Paragraph 8)
Citing Raphael Lemkin, who coined the term “genocide” (and was instrumental in drafting the UN Genocide Convention) the Appeals Chamber noted: “‘the destruction in part must be of a substantial nature so as to affect the entirety'” (Paragraph 10).
With 2 million people now internally displaced or refugees in Chad; with more than 2 million people deeply affected by the war—hundreds of thousands of whom are in desperate need of food, clean water, and medical treatment—there can no question that “substantial parts” of the Africa tribal populations of Darfur are victims of Khartoum’s “deliberately inflicting on [these groups] conditions of life calculated to bring about their physical destruction.” Moreover, there have been huge numbers of civilian casualties: reports from the UN Special Rapporteur for extrajudicial executions and the US-government team on the Chad/Darfur border make clear that there have been at least 100,000 violent deaths. There have been perhaps as many as 100,000 additional casualties from the effects of malnutrition and disease (see survey of mortality data by this writer, August 27, 2004; available upon request).
There simply can be no question about whether “substantial parts” of the African tribal populations in Darfur face the clear prospect of deliberate destruction.
Nor finally can there be any intellectually cogent doubt about genocidal “intent” in Darfur. This is especially clear when we look at the Janjaweed militia which has been responsible for so much civilian destruction, and which has been most clearly animated by a belief in the “racial inferiority” of African tribal populations in Darfur. The vicious Arab supremacist views espoused by the Janjaweed have been actively encouraged by Khartoum, even as the regime has armed and directed the Janjaweed, and coordinated with them militarily. Of course, Khartoum continues to deny that the Janjaweed are a genocidal instrument under its control, but this denial is wholly belied by the facts.
Human Rights Watch reported in late July on clear evidence of Khartoum’s deliberate and systematic use of the Janjaweed for its own purposes of racial/ethnic destruction (“Darfur Documents Confirm Government Policy of Militia Support,” July 20, 2004):
“Sudan Government documents incontrovertibly show that government officials directed recruitment, arming and other support to the ethnic militias known as the Janjaweed, Human Rights Watch said today. The government of Sudan has consistently denied recruiting and arming the Janjaweed militias.”
“Human Rights Watch said it had obtained confidential documents from the civilian administration in Darfur that implicate high-ranking government officials in a policy of militia support. ‘It’s absurd to distinguish between the Sudanese government forces and the militias—they are one,’ said Peter Takirambudde, executive director of Human Rights Watch’s Africa Division. ‘These documents show that militia activity has not just been
condoned, it’s been specifically supported by Sudan government officials.'”
(“Darfur Documents Confirm Government Policy of Militia Support,” July 20, 2004; at http://www.hrw.org/english/docs/2004/07/20/darfur9095.htm)
How can there be any doubt that the violence and racially/ethnically-animated civilian destruction on the part of the Janjaweed reflects Khartoum’s “intentions”? A more recent Human Rights Watch report on the shared use of military camps by the Janjaweed and Khartoum’s regular forces also makes clear that the ambitions of civilian destruction on the part of the Janjaweed are fully, intentionally supported by Khartoum:
“The government of Sudan is permitting abusive Janjaweed militia to maintain at least 16 camps in the western region of Darfur”; “despite repeated government pledges to neutralize and disarm the Janjaweed, Human Rights Watch investigators in West and North Darfur were able to gather information on the militias’ extensive network of bases”; “throughout the time Khartoum was supposedly reining in the Janjaweed, these camps have been operating in plain sight,’ said Peter Takirambudde, executive director of the Africa division of Human Rights Watch”; “five of the 16 camps, according to witnesses, are camps the Janjaweed share with the Sudanese government army.” (“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 question of genocidal “intent” was at the center of “Prosecutor v. Radislav Krstic” (see above). A particularly important finding by the Appeals Chamber was that while genocidal intent “must be supported by the factual matrix, the offense of genocide does not require proof that the perpetrator chose the most efficient method to accomplish his objective of destroying the targeted part. Even where the method selected will not implement the perpetrator’s intent to the fullest, leaving that destruction incomplete, this ineffectiveness alone does not preclude a finding of genocidal intent” (Paragraph 32).
In short, there needn’t be a Nazi-like efficiency in killing or destroying, in whole or in part, the African peoples of Darfur. That the methods previously and presently deployed by Khartoum will accomplish enough to meet the “substantiality” criterion is all that must be established for the purposes of finding that these methods may constitute genocide.
In the subsequent Paragraph the Appeals Chamber review finds that “genocidal intent may be inferred, among other facts, from evidence of ‘other culpable acts systematically directed against the same group'” (Paragraph 33). In other words, Khartoum’s “systematic” denial of humanitarian access to the African populations of Darfur may be considered in the context of the systematic destruction of African villages (now numbering in the thousands); the systematic destruction of African agricultural capacity (in the form of poisoning and blowing up water wells and irrigations systems, and in the destruction of seeds, fruit trees, agricultural implements, and critical agricultural livestock); and the systematic and widespread practices of execution, rape, abduction, and torture directed against the African populations of Darfur.
The process of inferring genocidal intent from particular atrocities (such as have been reported in great number, for example, by the US-government investigating team, Human Rights Watch, Amnesty International, and many others) is also illuminated in a discussion of legal precedent by the Appeals Chamber review:
“Where direct evidence of genocidal intent is absent, the intent may still be inferred from the factual circumstances of the crime. The inference that a particular atrocity was motivated by genocidal intent may be drawn, moreover, even where the individuals to whom the intent is attributable are not precisely identified. If the crime committed satisfied the other requirements of genocide, and if the evidence supports the inference that the crime was motivated by the intent to destroy, in whole in part, a protected group, a finding that genocide has occurred may be entered.” (Paragraph 34)
We need not know the particular perpetrators of individual atrocities to reach a finding of genocide. But to the degree that various such genocidal atrocities can be tied to specific individuals (in the Janjaweed command structure, or in the intelligence, military, or political structure of Khartoum’s National Islamic Front regime), this becomes cumulative evidence of responsibility for genocide.
ACCELERATING AND UNIMPEDED VIOLENCE
Fighting in Darfur presently shows all signs of escalating, with civilians again the inevitable victims. Associated Press reports:
“A United Nations spokeswoman said Sunday the world body keeps receiving reports of clashes continuing throughout Sudan’s Darfur region, where up to 4,000 people [in the el-Fashir area of North Darfur] are believed to have been forced from their villages in recent days.” (Associated Press, September 5, 2004)
The Los Angeles Time reports that:
“Some survivors of the latest atrocities in the south Darfur region have trickled into the Kalma camp for displaced persons outside Nyala [South Darfur State] in recent days. Aid officials report that about 1,000 families–more than 5,000 people—are still making their way to the camp.” (Los Angeles Times, September 6, 2004)
The African Union has fully confirmed recent attacks by Khartoum’s regular forces on civilian villages, including Yassin (near Nyala), and the use of helicopter gunships and Antonov bombers in these attacks.
According to UN reports, Internally Displaced Persons in the Riyad and Mornei camps have “reacted violently to Government of Sudan pressure to relocate or participate in pro-government activities” (Fact Sheet #21, “Darfur—Humanitarian Emergency,” US Agency for International Development, September 3, 2004). This and other reports strongly suggest that despite promises made to Jan Pronk and Kofi Annan, Khartoum is pursuing its policy of forced expulsions from camps for the displaced.
This occurs against a backdrop of peace talks in Abuja (Nigeria), between Khartoum and the Darfur insurgency groups, that are fully stalemated over security issues. At the same time, Khartoum has told the southern Sudan People’s Liberation Movement (SPLM) that “north/south” peace talks are suspended. An SPLA delegation sent to Khartoum to discuss the resumption of peace talks was ominously informed that there would be no further negotiations to complete the Naivasha (Kenya) peace agreement until “the Darfur problem is settled.”
Though the European Union is making vague noises about its own sanctions (it is palpably clear that the UN will not act), Khartoum’s response has been dismissive contempt—all too justified by longstanding European acquiescence in the face of Khartoum’s genocidal ambitions.
The regime is also thwarting the work of the African Union observer force, which augurs extremely poorly for the deployment of a large and effective AU peacekeeping force—the default “solution” for an international community lacking in both resolve and moral clarity. The Telegraph (UK) offers some telling details of how the regime’s military operates with impunity, even as it denies the AU observers fuel for critical helicopter transport:
“The troops were ready, the mission decided and the flight crew was standing by, but the African Union ceasefire monitors still lacked one vital element. ‘The Sudanese say there is no fuel,’ said one of the soldiers waiting to board. ‘They say there’s a fuel problem whenever they want to keep us on the ground. They don’t want us to see. It’s a big ceasefire violation.'”
“Hours later, as a Sudanese army attack helicopter came in to land, its own mission complete, the ‘shortage’ was suddenly resolved. Fuel trucks that had sat all the while on the other side of the fence lumbered towards the aircraft, chartered to carry the troops on observation missions across the region.”
The dispatch goes on to report “a pattern of obstruction by Sudanese officials. ‘We’re always fighting about these fuel issues,’ said William Molokwane, a South African intelligence officer. ‘We are supposed to know about these Sudanese movements, attack helicopters flying in and out of the airport, troops moving out of the city.'”
“‘They’re not acting in good faith,’ said Col Anthony Amedoh, the Ghanaian chief military observer. ‘There are many clear ceasefire violations by the Sudanese government but we can’t stop them, we can just report them.’ Even when the Sudanese are caught in the act, the AU observers are powerless to stop them. In Nyala, the biggest city in Darfur, a Nigerian observer reported that his team saw Sudanese government soldiers fighting alongside the Janjaweed militia at a large refugee camp. ‘We caught them fighting together red-handed,’ he said. His team could do nothing, however.” (The Telegraph [UK], September 5, 2004; dateline al-Fasher military airfield)
Genocide, both through rapid violence and accelerating attrition from disease and malnutrition, is continuing throughout Darfur. The vast body of evidence could not be clearer in its implications. There is no “genocide determination” to be made; only a decision, finally political, about whether to speak the truth about what is occurring in Darfur.
We cannot know the number who have died in this holocaust, but there are compelling statistical reasons for assuming a present figure of over 200,000 (see reference to mortality analysis above). Most of these people have died, and will continue to die, invisibly—beyond the view of an international community that does not care enough to stop the genocide. Even the records of deaths are being destroyed, as a Los Angeles Times dispatch painfully reported yesterday (September 6, 2004):
“When the mosque at Yassin village was burned by Arab militias more than a week ago, there was no way to save four frail old men who died in the flames. A list of 485 dead from the surrounding area, painstakingly collected by local people over two months, burned in the mosque too, village leaders said.” (Los Angeles Times, September 6, 2004)
458 dead in just the Yassin village area alone: just how credible is the UN figure of 30,000-50,000 deaths for all of the immense Darfur region, over 19 months of extreme violence, displacement, and trauma? The gross understatement of civilian deaths, as well as the growing but unspoken mismatch between desperate humanitarian need and foreseeable humanitarian capacity, suggests that for all the urgent talk about Darfur, truth is a commodity not always valued.
But one truth that now stands beyond dispute. Khartoum will not cease to commit genocide until the international community stops it. This requires urgent humanitarian intervention, with robust military support. Even the contemplated African Union force of 2,000 to 3,000 peacekeepers is woefully inadequate to the task. (Khartoum adamantly refuses to accept any force with a peacekeeping mandate.) A peacekeeping/peace-making force will require more than ten times this number if it is to halt genocide in Darfur.
The question is, as it has been for so many months now, whether the world is serious about stopping genocide in Darfur. There is no present evidence to suggest that this is the case. If Colin Powell refuses, out of political expediency, to determine that deliberate, racially/ethnically-animated human destruction is genocide, then we will have what should prove the defining evidence of our refusal, yet again, to stop genocide in Africa.
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