Letting Sudan Get Away with Murder

NEW HAVEN: 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 favors 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 only 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, 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 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.

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 apologized 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, 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.