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Darfur and legal definition of genocide

May 05, 2009

EL FASHER (Sudan) What if the conflict many call the “first genocide of the 21st century” wasn't one at all?

In the United States, many see the six-year war in Darfur as a bloody campaign by an Arab-dominated government against rebellious “African” tribes in western Sudan. Two consecutive US presidents and several activist groups have defined it as genocide.But others, while acknowledging the severity of the violence, question whether it meets the legal definition of genocide. The United Nations determined in 2005 that the Sudanese government was not committing genocide in Darfur. Human Rights Watch and Doctors Without Borders avoid the g-word, too.

The International Criminal Court renewed the debate in March with its arrest warrant for Sudanese President Omar Hassan Ahmed Bashir. Judges said that his counterinsurgency tactics in Darfur might amount to war crimes and crimes against humanity but that there was no evidence of genocide.

The debate raises touchy and politically explosive questions what constitutes genocide? Why does - or doesn't - Darfur fit the mould? Has the label helped, or hurt, the people of Darfur? And what does it matter anyway if what has occurred in Darfur is viewed as genocide rather than, say, war crimes or “ethnic cleansing”?

Most agree that it has mattered a lot.

When former US Secretary of State Colin L. Powell first described Darfur as a case of genocide in 2004, a $1 billion-a-year international aid effort quickly followed, elevating the crisis above other African conflicts, including those in Somalia and Congo, where the mortality rates in recent years have been higher and the displacement greater.

”The word 'genocide' has so much power,” said Neha Erasmus, programme coordinator for London-based Justice Africa. “Darfur really took hold of the American psyche after it was called genocide.”But the global attention also brought heightened politics and at times led to resources being misdirected, aid workers say.

A misconception that hundreds of people are dying each day in Darfur because of the conflict has led many in the West to push for emergency security measures such as military intervention, UN peacekeepers and no-fly zones, and to overlook larger issues such as stalled peace talks and millions of people dependent on foreign aid, said Thierry Durand, director of operations for Paris-based Doctors Without Borders.

”The magnitude of violence in Darfur has been huge, but it's not genocide,” Durand said. “The situation on the ground has not been an emergency since 2004. The real problem is the dependency in the camps. But the whole thing has become overpoliticised.”

The genocide label may have prolonged the conflict by raising the stakes and complicating peace talks, experts and diplomats say.

”Genocide puts a moral price on this that limits the room to manoeuvre,” said one Western diplomat in Khartoum, the Sudanese capital, who did not want to be identified because of the sensitivity of the topic. “How can you deal with a genocidal government? Can you compromise with evil?”

John Prendergast, a former Clinton administration adviser and founder of one of the advocacy groups that have lobbied the United States to declare Darfur a genocide, said the “invocation of that word saved hundreds of thousands of lives. Absent that, it would have been harder to get this on the radar screen.”

But he dismissed the is-it-or-isn't-it controversy as legal semantics. “Well-meaning scholars can disagree, but the debate is a crushing diversion from what we need to do to find a solution,” he said.

It's a question now facing US President Barack Obama. As a candidate, Obama opposed attempts to normalise Sudanese relations, accusing former President George W. Bush's administration of trying to reward a brutal regime.

As president, Obama is navigating that rhetoric as he searches for an end to the crisis. His ambassador to the United Nations, Susan Rice, describes Darfur as an “ongoing genocide,” but Obama's new envoy to Sudan, J. Scott Gration, called the nation a “friend” and reopened the door to improved ties during a recent visit to Khartoum.

To many, such a policy sets a dangerous precedent. A determination of genocide should trigger immediate action to end the killing, including military intervention if necessary, legal experts say.

But after the United States described Darfur as genocide, its policy consisted of economic sanctions and diplomatic pressure.

”If this is the first genocide of the 21st century, why the heck are we talking about travel bans and asset freezes?” asked Alex De Waal, a noted Sudan expert and programme director with the nonprofit Social Science Research Council. “Would you do that with (Adolf) Hitler?”

De Waal, who does not consider the campaign in Darfur genocide, said the US stance “diluted” the sense of international urgency that should accompany a finding of genocide.

So is Darfur genocide? The simplest legal definition is an attempt to annihilate, in whole or in part, a national, racial, ethnic or religious group.

There's no question that Darfur fits some of the criteria. About 35,000 people have been killed, according to the ICC, and at least 100,000 others have died from disease or starvation. The United Nations estimated last month that about 50 civilians still die as a result of the conflict each month in Darfur, down substantially from the thousands who died monthly in 2003 and 2004.

Most victims are from the Fur and Zaghawa tribes, both associated with rebels. Hundreds of their villages were torched by government troops and allied militias, known as janjaweed. Government officials and militia leaders have been quoted as referring to the tribes as “slaves” and “subhuman.”

But the United Nations and ICC have raised doubts about “genocidal intent.” Simply put, they question whether the government is trying to wipe out the tribes or if it instead wants to terrorise them into submission or chase them away, which doesn't necessarily constitute genocide.

”The crucial element of genocidal intent appears to be missing, at least as far as the central government authorities are concerned,” the UN's International Commission of Inquiry on Darfur concluded in 2005. “Rather, it would seem that those who planned and organised attacks on villages pursued the intent to drive the victims from their homes, primarily for purposes of counterinsurgency warfare.”

Pose the genocide question to UN officials and aid workers here in Darfur and you'll likely get an awkward smile and silence. Many fear being called genocide deniers or apologists for the government.

Andrew Natsios, former special US envoy to Sudan, was skewered by Darfur activists and US lawmakers for suggesting in 2007 that the genocide was over. A new envoy was named by the end of the year.—Dawn/LA Times-Washington Post News Service