Home | Comment & Analysis    Tuesday 13 July 2004

Sudan: death by designation


Let the lawyers debate whether the situation in Darfur is legally ’genocide.’ It’s past time to bandy words.

By JERRY FOWLER, The Globe and Mail

July 13, 2004 — I went to the African country of Chad in May on behalf of the U.S. Holocaust Memorial Museum to investigate the threat of genocide in the Darfur region of Sudan, right across the border. What I saw and heard haunts me still.

I talked to dozens of Sudanese refugees spread over hundreds of kilometres and heard remarkably consistent stories of people who fled their homes in terror. I heard stories of murder and pillage and chilling references to rape and sexual violence. Almost everyone told me that they believed they were attacked because of their ethnic identity as members of African, non-Arab tribes. They said that the perpetrators were the Sudanese government and its Arab janjaweed militia allies.

I also saw the harsh desert environment into which they’d been driven, where lack of food and water very soon can be fatal. I’ve since heard of obstacles placed by the Sudanese government in the way of international assistance for the more than one million refugees who have been driven from their homes and are still in Darfur. And I know that those obstacles amount to a death warrant.

People ask me, is this genocide? My answer: It doesn’t matter.

"Genocide" was first introduced to the English language 60 years ago by a Jewish refugee from Poland, Raphael Lemkin, who was trying to describe what was happening in Nazi-occupied Europe, where his parents and other members of his family were being swept up in what today we call the Holocaust. After the Second World War, Mr. Lemkin successfully pushed the newly formed United Nations to adopt the Genocide Convention, an international treaty whereby nations promised to "prevent" and "punish" the crime of genocide. Poignantly, he described the convention as the epitaph on his mother’s grave.

Canada and more than 130 other countries are parties to the convention, which defines genocide as the intentional physical destruction of a group or a substantial part of a group. The convention talks about "prevention" of genocide, but it does not specify what parties to the treaty actually have to do. It vaguely commits nations to "undertake" to prevent genocide and permits them to refer instances of genocide to the United Nations.

What comes next is not clear from the language of the treaty. The fact is, however, that whatever obligations exist are more political and moral than legal. And those obligations are to prevent genocide, which by definition means that countries do not have to wait to act until everybody agrees that genocide is occurring.

The convention also creates a field day for lawyers by defining genocide in terms of the subjective "intent" of perpetrators. Members of a group may be killed, but is it with the "intent to destroy, in whole in or in part, a . . . group, as such"? Determining the subjective intent of an array of perpetrators who are far away is inevitably an ambiguous undertaking. Lawyers can argue the point long past the time when all the members of a targeted group are dead.

Many say that what is happening in Darfur is genocide. I do not quarrel with that assessment. There is a strong case to be made — especially based on the contention that the Sudanese government and its janjaweed allies are, in the words of the Genocide Convention, "deliberately inflicting on [a] group conditions of life calculated to bring about its physical destruction in whole or in part."

UN Secretary-General Kofi Annan, on the other hand, avers that he cannot say that it is genocide "yet." And no doubt his lawyers can back him up on that. But he is not off the hook. The goal is to "prevent" genocide, and that means acting even if one cannot "yet" say that genocide is occurring. Once there is a threat of genocide or, in the words of U.S. Ambassador Pierre-Richard Prosper, there are "indicators of genocide," we know everything that we need to know to act as vigorously as possible.

And we are way past that point in Darfur. The "indicators" of genocide are legion. People have been murdered and subjected to serious bodily and mental harm, apparently because of their ethnic and perceived racial identity. More than a million people have been forced into conditions of life that threaten their physical destruction. Tens of thousands have died already, and the U.S. Agency for International Development (AID) estimates that 350,000 or more will die in the coming months. Ongoing assessments by independent organizations such as Médecins sans frontières suggest that the agency’s estimate may be conservative. Lives are hanging in the balance on a massive scale.

We do not need to know more in order to act. Genocide is a real and present threat in Darfur.

Let the lawyers write their memos and have their intriguing legal discussions of what constitutes evidence for "intent to destroy." But don’t wait to act while they are doing so. Canada, the United States, the European Union, the African Union, the Arab League and the entire United Nations need no further legal advice. All they need is political will.

The time for action in Darfur is now.

Jerry Fowler is staff director of the Committee on Conscience, which guides the genocide prevention activities of the U.S. Holocaust Memorial Museum.

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