JURIST Guest Columnists Jamal Jafari and Paul R. Williams of the Public International Law and Policy Group and American University's Washington College of Law insist that under legal standards the situation in Darfur constitutes genocide, whether the UN classifies it that way nor not….

Among all the interviews conducted last August with the seemingly uncountable number of refugees of the Darfur crisis who had escaped to relief camps in Chad, Amina Adam's* story stuck out for us. She described seeing the Sudanese military and Janjaweed militia throw her neighbor's baby up in the air and catch it on a bayonet. Amina suffered not only from witnessing that horrific event, but from witnessing the deaths of members of her own family before she fled hundreds of miles through desolate terrain to a refugee camp in Chad. She continues to suffer today while the United Nations refuses to categorize Darfur as a genocide and plays word games with this unimaginable tragedy.

In January the United Nations released its own investigation of the Darfur atrocities and said that genocide was not committed, as defined by the Genocide Convention of 1948, because the perpetrators did not intend to destroy ethnic groups in Darfur. Rather, the intent was to “drive victims from their homes for the purposes of counter-insurgency warfare.” This logic is not only faulty, but diminishes the gravity of the crimes committed and places another roadblock to meaningful action.

First, the presence of other factors fueling violence is not a bar to declaring genocide. Rather, genocide is a means to an end for its perpetrators. In Rwanda, the extremist Hutu government hatched its diabolical plan in order to consolidate power, weaken a Tutsi insurgency, and claim control over vital natural resources. In its genocide trials, the International Criminal Tribunal for Rwanda did not see these factors as a substitute for the intent to destroy Tutsis and moderate Hutus.

Similarly, the government of Sudan has perpetrated violence to put down an insurgency effort in Darfur and send a message to the myriad other domestic groups opposed to the Khartoum government. The Janjaweed militia, which receives support from the government, joined the violence to gain control over valuable grazing territory. If, as the United Nations claims, the intent was to merely displace civilians, the government could have marched them to the border. Instead they chose to achieve their goals by killing civilians, driving refugees into a desolate desert, and making Darfur virtually uninhabitable by destroying food and water stores. These actions represent intent to destroy a group. That is genocide.

Second, genocide does not require the immediate killing of members of the victimized group by the perpetrators. The UN report cited individual incidents where victims were killed only after they protested the theft of their cattle — implying that the intent was theft, not annihilation. In another example cited in the report, 220 out of more than 1000 captured civilians were executed by the government and militias. According to the report, “The fact that… the attackers refrained from exterminating the whole population that had not fled, but instead selectively killed groups of young men”, proves intent to kill potential rebels, not destroy the group.

If these arguments were applied to Rwanda, it could be argued that the motive for the violence was theft because some Rwandans were able to bribe their way out of execution. Similarly, it could be argued that the Holocaust was not genocide because not all of the people sent to concentration camps were executed. Rather, those that posed a risk, or were not physically capable of providing labor, were executed. Therefore there was no attempt to annihilate a group. In actuality, the Genocide Convention poses no timeline for genocide to occur, nor does it specify how brutally it must be carried out. The presence of secondary motives does not contradict intent to commit genocide.

It's easy to see why the UN would seek to avoid categorizing Darfur as genocide. The Genocide Convention states that a finding of genocide can lead member states to "call upon the competent organs of the United Nations to take such action… as they consider appropriate for the prevention and suppression of acts of genocide…" Former Secretary of State Colin Powell pointed to this language when he described the violence in Darfur as genocide in September and called on the UN to act. The UN cannot separate the genocide from the war between the government and the rebels. Its policy of encouraging negotiations has not halted this nearly year-long genocide. It does not want a declaration of genocide as such to highlight its inadequacy in this regard.

In a final example of contradictory absurdity, and after establishing that there was no intent to commit genocide, the UN report states that “in some instances individuals, including government officials, may commit acts with genocidal intent.” During the genocide in Rwanda, reporter Alan Elsner famously asked State Department Spokesperson Christine Shelley “how many acts of genocide does it take to make genocide?” Now, it appears we must ask the UN, “How many individuals have to act with genocidal intent to make genocide?” Amina would like to know. But while the UN plays its word games, she and other Darfurians continue to suffer.

* Pseudonym used for the protection of the refugee.

Jamal Jafari is a Senior Research Associate with the Public International Law and Policy Group, and interviewed Darfurian refugees in Chad in August 2004. Paul R. Williams is PILPG Executive Director and holds the Rebecca Grazier Professorship in Law and International Relations at American University.
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