June 16, 2004
For many months now, Khartoum has deliberately denied, impeded, and made excessively difficult humanitarian access to the war-affected African peoples of Darfur. Tom Vraalsen, UN special envoy for humanitarian affairs in Sudan, declared in December 2003—now half a year ago—that the denial of aid to these peoples was “systematic,” i.e., ultimately based on race/ethnicity (Ambassador Tom Vraalsen, Note to the Emergency Relief Coordinator; “Sudan: Humanitarian Crisis in Darfur,” December 8, 2003). For, as was the case then and now, the war-affected peoples of Darfur most in need of humanitarian assistance are overwhelmingly the African tribal groups, primarily the Fur, the Massaleit, and the Zaghawa. These are the people who have been and will be destroyed by Khartoum’s past and continuing denial of humanitarian access.
The deliberate obstruction of humanitarian aid offers clear and unambiguous evidence of an intent to destroy these peoples “as such.” It is yet another aspect of Khartoum’s wider effort to “deliberately inflict on the [African groups] conditions of life calculated to bring about [their] physical destruction in whole or in part” (1948 UN Convention on the Prevention and Punishment of the Crime of Genocide, Article 2, clause [c]).
Certainly the world knows full well that it is Darfur’s African tribal groups that have been displaced or turned into refugees by Khartoum’s military and Arab militia allies (the Janjaweed). This is what has prompted the so far diffident characterizations of realities in Darfur as “ethnic cleansing.” But the world should also know full well that hundreds of thousands of people from these African tribal groups have been forced into concentration camps—the majority without humanitarian access—where there are continuous executions, and where extermination grows directly out of living conditions deliberately made intolerable.
It is the African peoples of Darfur that make up the overwhelming majority of the 2.2 million people now defined as “war-affected” by the UN, the US, and the European Union. And it is this “war-affected” population that is critically dependent upon the very humanitarian aid so relentlessly and resourcefully obstructed by Khartoum. Given the numbers of people at risk, we must speak in terms of a “very substantial part” of the African tribal populations of Darfur, whose destruction holds clear potential for a “highly significant impact on the populations as a whole” (see below for a legal analysis of the particular implications of these quoted phrases for a finding of genocide). In short, given the racial/ethnic character of the populations most acutely in need of humanitarian aid, the denial and obstruction of such aid is clear evidence of genocidal intent.
Now that the Bush administration has committed itself to a legal determination of whether the actions of the Khartoum regime and the Janjaweed rise to the level of genocide in Darfur, it will be useful to keep in mind some of the legal standards that have been established over the past decade. (The same must be said for the presidential campaign of Senator John Kerry.) Usefully, an especially significant review of the crime of genocide, and the nature of the “intent” essential to any finding of genocide, has recently been undertaken by the Appeals Chamber of the International Tribunal for violations of international law in the former Yugoslavia. The case (involving a review of “Prosecutor v. Radislav Krstic,” Case No. IT-98-33-T) speaks directly to various questions that bear on any finding of genocide in Darfur, and the question of whether the “intent” of Khartoum and its Janjaweed allies is genocidal.
At all points, the case review strongly support a finding, mutatis mutandis, of genocide in Darfur (the lengthy Appeals Chamber review may be found at: http://www.un.org/icty/krstic/Appeal/judgement/index.htm). In particular, the deliberate, systematic denial of humanitarian access to the African populations of Darfur conforms to various stipulations and precedents cited by the Appeals Chamber.
We should recall here that the UN, the US, Human Rights Watch, the International Crisis Group, and many other authoritative sources are already using the term “ethnic cleansing” to describe realities in Darfur, this in order to highlight the racial/ethnic animus in the vast human destruction and displacement. It is in this context that we must ask about genocide and the meaning of the fully compelling evidence that Khartoum continues to obstruct, in clearly intentional fashion, humanitarian access to the African populations of Darfur. Indeed, recent days have seen a flurry of condemnations of Khartoum’s obstructionism (though none with any apparent effect):
“Deputy U.S. Ambassador James Cunningham complained to the Security Council Monday that the Khartoum government is continuing to hamper the efforts to get humanitarian aid and workers to Darfur. ‘Unfortunately, the government continues to deny release of vehicles needed by humanitarian relief agencies,’ he said. ‘It has also in some cases denied release of radio equipment needed for workers to securely deploy to remote areas to deliver aid. In addition, the government has also delayed food shipments from Port of Sudan, potentially to the point of making the food useless.'” (Voice of America, June 14, 2004)
“UN humanitarian chief Jan Egeland criticized the Sudanese government Monday for blocking aid workers, food and equipment from reaching the Darfur region, where 2 million people desperately need humanitarian aid. Calling Darfur the worst humanitarian crisis in the world today, Egeland told the U.N. Security Council that relief agencies are trying to get food, water, sanitation equipment and tents to the western Sudanese region before the rainy season. ‘We’ve been working for many, many weeks in a race against the clock, and we see that the government which should do its utmost to help us is still not helping,’ he said. ‘Some ministers are helping us, but some of their subordinates are sabotaging us.’ [ ]
“Egeland said UN international staff were now able to travel to Darfur, but other aid groups still faced visa problems. He also said red tape has prevented ships carrying food and equipment for Darfur from unloading for weeks. [ ] ‘Nowhere else in the world are so many lives at stake as in Darfur at the moment,’ [Egeland] said.” (Associated Press, June 15, 2004)
“Sudan is blocking aid groups from getting food and medicine to hundreds of thousands of people in its western Darfur region, despite promises to the contrary, a senior U.N. official said on Monday. [ ] Groups, such as Medecins Sans Frontieres (Doctors Without Borders), are experiencing undue delays in getting visas, bringing in equipment, medicine and food. For example, [UN humanitarian chief Jan Egeland] said, radios needed for emergency communications were stripped from vehicles because Sudanese authorities believed they were a security liability. ‘If they have no radio, they cannot go into Darfur,’ he said. ‘They see this as a security risk for the government. We see it as a security necessity for us.'”
“‘People are dying because we were denied access for so long, and people will be dying because we are not able to get through,’ Egeland said. [ ] Egeland said a cease-fire in Darfur was sporadic. ‘We are still seeing grown men attacking defenseless woman and children with their automatic rifles,’ he said. Doctors Without Borders said late in May it had 50 pending requests for visas and had medical supplies impounded when they arrived by sea and not by emergency air transport.” (Reuters, June 14, 2004)
The head of UNICEF is reported today as declaring:
“‘It is clear to me that a worsening crisis is upon us,’ [Carol Bellamy] said following a visit to Darfur. ‘The number of displaced people [ ] continues to grow.’ [ ] The images of burnt-out villages and markets on the road from al-Junaynah, the capital of Western Darfur, southward to Sisi were stark in her mind, she said, and they were repeated hundreds of times across Darfur.”
“[Bellamy said] there were not enough NGOs in Darfur to provide aid. ‘I seldom recall coming to a place with this expansion of internally displaced people, to see so little going on. There are almost no NGOs [humanitarian nongovernmental organizations],’ she stated. ‘I understand it’s not their fault–it’s hard to get in. We in the UN have to work with NGOs, so the limited number of partners is a real problem for us.'” (UN Integrated Regional Information Networks, June 16, 2004)
A US Senate Foreign Relations Committee hearing of June 15, 2004 heard testimony from senior Bush administration officials and Sudan specialists:
“John Prendergast [of the International Crisis Group] says the Sudanese government is now using starvation and disease as weapons of war, blocking humanitarian relief from getting to those in need. Bush administration officials agree. ‘Have they been denying access to those who could go there to help the civil population or to see and report on what was going on? Yes, they do deny access,’ said Roger Winter, assistant administrator for the Democracy, Conflict and Humanitarian Assistance Bureau at the U.S. Agency for International Development. ‘There has been very restricted access.'” (Voice of America, June 15, 2004)
The US State Department also spoke out again yesterday on Darfur:
“‘We’re deeply concerned that, despite assurances from the government of Sudan that they are providing the humanitarian access, that there is, in fact, still considerable blockages to getting aid to the people in need,’ State Department spokesman Richard Boucher said. He said Khartoum continued to deny the release of vehicles needed to transport food and other assistance to Darfur, was refusing in some cases to release communications equipment needed by relief workers to coordinate their work and delayed the distribution of foreign food which has been sent by ship to Port Sudan. In addition, Mr Boucher accused Sudanese authorities of continuing ‘to harass or delay humanitarian workers seeking to administer to the needy.'” (Agence France-Presse, June 15, 2004)
[The official views of Khartoum are represented in recent statements by National Islamic Front Vice President Ali Osman Taha during a trip to Egypt: “[Taha] accused the international media of deliberately magnifying the scale of the humanitarian problem in the region. He also claimed that the conflict was fabricated by the West” (Agence France-Presse [Cairo], June 16, 2004).]
In aggregate, these assessments from UN officials, humanitarian aid officials, Sudan specialists, and US government officials make clear a policy on Khartoum’s part that continues what Ambassador Vraalsen described half a year ago as the “systematic” denial of humanitarian access. Six months after this UN assessment, access continues to be manipulated, impeded and obstructed.
This represents an unconscionable moral and political failure on the part of the international community, a refusal to respond to what has clearly been genocide in the making. Khartoum for its part, sensing that it will pay no real price for obstructionism, has merely varied its methods of obstruction. The urgency of the demands for access we now hear from various international actors is months overdue—and this terrible belatedness has ensured that hundreds of thousands of people from the African populations of Darfur will die. They will die because their deaths are clearly what Khartoum intends.
This is genocide. Indeed, it is so clearly genocide that one must search for reasons to explain why any other characterization is offered.
The most conspicuous reason is that to characterize the present realities in Darfur as genocide forces an inevitable question: why wasn’t this characterization appropriate last month? or several months ago? For the evidence has not changed in character. The numbers are of course increasing, indeed dramatically, but not in ways that somehow cross a particular categorical threshold. Nor are there new or different actions by Khartoum and its militia allies, or new evidence about Khartoum’s intentions in committing or supporting these actions.
Perversely, failure to have characterized Darfur as genocide in the past seems to make it more difficult to reach this determination in the present.
To be sure, there is evidence of considerable ignorance (willful or otherwise) about the meaning of genocide. The comments yesterday of UN Undersecretary for Humanitarian Affairs Jan Egeland offer an ironic example. Associated Press (June 15, 2004) quotes Egeland as saying:
“The conflict in the Darfur region of western Sudan is the worst in the world today and a result of ‘ethnic cleansing,’ [Egeland] said, ‘I think it’s not genocide yet, and we can prevent it from becoming one.'”
But what can this possibly mean? What can be done to “prevent” Darfur from “becoming a genocide”? Is there some numerical threshold that Egeland feels must be crossed before genocide is reached? Are the staggering numbers that prompted Egeland to declare in December 2003 that “Darfur is probably the world’s worst humanitarian crisis” not great enough? How many hundreds of thousands, killed or destined to be killed from deliberate actions, are required for a finding of genocide?
Are 2.2 million “war-affected” people not enough, even when the evidence is clear that they are at acute risk precisely because Khartoum has “deliberately inflicted on [these African groups] conditions of life calculated to bring about [their] physical destruction in whole or in part”? What of Amnesty International’s prediction that “there are 350,000 people who are most likely to die in this period [the rainy season]”: is this figure too low? And what of the Doctors Without Borders/Medecins Sans Frontieres (MSF) declaration that “the whole population [of Darfur] is teetering on the verge of mass starvation”? Or the grim assessment of the consequences of continued aid denial from the US Agency for International Development”?
“‘We estimate right now if we get relief in, we’ll lose a third of a million people, and if we don’t the death rates could be dramatically higher, approaching a million people,’ said US Agency for International Development (USAID) chief Andrew Natsios after a high-level UN aid meeting [in Geneva].” (Agence France-Presse, June 3, 2004)
Are these numbers not more than enough to cross any conceivably required threshold for a determination of genocide in the context of Darfur?
Or is there some further evolution of “intent” on the part of the Khartoum regime that Egeland and others expect to see so that the “intent requirement” of the 1948 UN Genocide Convention is more fully met? What could “prevent” the racially/ethnically animated human destruction we now see in Darfur from becoming, or in fact being, genocide? What difference does Egeland mean to imply by distinguishing between “ethnic cleansing” and “genocide”?
Too many questions; too few explicit or cogent answers.
We should bear in mind here that the UN General Assembly, when initially deploying the phrase “ethnic cleansing” in 1991 (in the context of the Balkan conflicts), made clear that the phrase referred to a “form of genocide.” A review of the term by UN lawyers in 1993 (again in the context of the Balkans) found that “ethnic cleansing” “might well be considered genocide under the [genocide] convention” (Samantha Power, “‘A Problem from Hell’: American and the Age of Genocide,” page 483).
But the most substantial guidance here comes from the Appeals Chamber of the International Tribunal for violations of international law in the former Yugoslavia, review of “Prosecutor v. Radislav Krstic,” Case No. IT-98-33-T (http://www.un.org/icty/krstic/Appeal/judgement/index.htm). Radislav Krstic was charged in connection with his role in the slaughter of 7,000 to 8,000 Bosnian Muslim men in the UN “safe area” of Srebrenica in July 1995, as well as the movement of Bosnian women, children, and elderly from the Srebrenica enclave. The Appeals Chamber speaks comprehensively to the issues of both “quantity” and “intent” in a determination of genocide. Attention to this articulate, intelligent, and deeply historically informed review should clear away some of the fuzzy (and disingenuous) thinking about genocide that has begun to proliferate. (All references will be to paragraph numbers of the Appeals Chamber review.)
“QUANTITY” AND GENOCIDE
From an international legal perspective, how many people among the African populations of Darfur must be destroyed or confront “conditions of life calculated to bring about [their] physical destruction in whole or in part” in order to justify a determination of genocide?
“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 of 1948) the Appeals Chamber noted: “‘the destruction in part must be of a substantial nature so as to affect the entirety'” (Paragraph 10).
If we survey the situation in Darfur, with a total population of approximately 6.5 million, with an African majority but very large Arab tribal populations as well, it is clear that the 1.3 million persons—overwhelmingly African—internally displaced or displaced into Chad are a “substantial” part of the population. A fortiori, the figure of 2.2 million “war-affected” people, with the vast majority at acute risk because of Khartoum’s deliberate impeding and obstructing of humanitarian access, also meets the criterion of “a substantial part of the [African tribal] groups,” with a clear threat of “having an impact on these groups as a whole.”
The Appeals Chamber review also notes that:
“The historical examples of genocide also suggest that the area of the perpetrators’ activity and control, as well as the possible extent of their reach, should be considered. Nazi Germany may have intended only to eliminate Jews within Europe alone; that ambition probably did not extend, even at the height of its power, to an undertaking of that enterprise on a global scale. Similarly, the perpetrators of genocide in Rwanda did not seriously contemplate the elimination of the Tutsi population beyond the country’s borders. [ ] The intent to destroy formed by a perpetrator of the genocide will always be limited by the opportunity presented to him.” (Paragraph 13)
This is a particularly important consideration, given the means available to Khartoum. Obliged, at least in part, to refrain from using its military air power by virtue of the April 8, 2004 cease-fire; constrained, in part, by the cease-fire and international attention to be more circumspect in its genocidal ambitions, Khartoum is presently “limited by the opportunity presented to [the regime]” to obstruct humanitarian access and to refuse to rein in the primary instrument of direct civilian destruction, the Janjaweed militia.
It is impossible to avoid the conclusion that Khartoum’s actions—in Darfur and in the “systematic” obstruction of humanitarian aid—deliberately threaten a “substantial part” of the African groups, that this will “have an impact on these groups as a whole,” and that the extent of genocidal activity by Khartoum is constrained in significant ways by limitations on the “opportunities presented.”
“INTENT” AND GENOCIDE
The Appeals Chamber review noted a number of issues bearing on a determination of “intent” to commit genocide, perhaps the central issue in any debate about genocide in Darfur. A particularly important finding is 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; in the form of destruction of seeds, fruit trees, agricultural implements, and critical agricultural livestock); and the 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 atrocities as have been reported in great number, for example, by Human Rights Watch, Amnesty International, the UN HCHR human rights investigation of April 2004, the UN inter-agency investigation of the Krailek concentration camp in later April 2004, 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.
Moreover the nature of this responsibility is specifically articulated by the Appeals Chamber review:
“The Appeals Chamber has previously explained, on several occasions, that an individual who aids and abets a specific intent offense [e.g., genocide] may be held responsible if he assists the commission of the crime knowing the intent behind the crime.” (Paragraph 140)
In considering responsibility for genocide on the part of individual members of the Khartoum regime, actions such as heavily arming the Janjaweed, coordinating militarily with the Janjaweed, flying bombing and helicopter gunship missions in support of the Janjaweed, inciting the Janjaweed—all constitute acts of genocide, given the known nature and intention of Janjaweed attacks against African civilian populations.
The scale of intentional destruction of African tribal groups in Darfur, and the clear intent to destroy these groups as such, mark Khartoum’s actions in Darfur as unambiguously genocide. This is clear not only from a common-sense reading of the language of the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide, but from the vantage of a fully legally and historically informed analysis of the sort offered recently by the Appeals Chamber of the International Tribunal for the former Yugoslavia.
To be sure, skepticism about genocide can always be contrived on a temporary basis—especially, in the case of Darfur, by those whose inaction has done so much to allow a ghastly slide into the present abysm of suffering and destruction. But the truth will out, and the clarity that some now profess to be beyond them will be brought home with searing force.
There simply can be no reasonable skepticism or agnosticism about the genocidal realities in Darfur, much less about the responsibility of Khartoum for deliberately engineering massive displacement, famine, and epidemic disease among the African peoples of Darfur, especially by denying humanitarian access to these desperately needy civilians. There remains only a decision—daily more costly so long as it is not made—about how much we will to do mitigate the massive and now unavoidable genocidal catastrophe.
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