Abstract

The conflict in Darfur is now nearly three years old. Hundreds of thousands of civilians have been killed and millions more remain unable to return to their homes, living the barest of existences in remote and often under-stocked and under-protected camps. Displaced populations are subject to malnutrition, disease and ongoing violence. Rape and other forms of sexual violence remain a tool for instilling fear and controlling the civilian population. Yet international will to protect and assist the victims of the conflict remains weak, with governments and world bodies bogged down debating the definition of genocide and the proper venues for eventual tribunals. This paper will examine whether or not the conflict in Darfur does indeed amount to genocide, including a discussion of the role of forced displacement in reaching such a determination. It then looks at the 2005 findings of the United Nations-sponsored International Commission of Inquiry and discusses some of the reasons behind the international reluctance to reach a determination of genocide in the region. Lastly, it addresses the constructiveness of the genocide label in the context of Darfur, and presents options for moving forward with a protection agenda regardless of what the conflict is called.

MS received Feburary 2005; revised MS received August 2005

Brief Background to the Conflict in Darfur

The conflict in Darfur is ‘Arab Africans who are black against black Africans who are Muslim’ (Nightline television news programme, November 2004).

When it first came to international attention in April and May of 2004, the crisis in Darfur was rather neatly described as an aggressive attack by armed, horse- and camel-riding Arab militia called Janjaweed on long-persecuted black African farmers. Reality is never neat, however, and since those initial reports, more detailed investigations have shown the situation to be much murkier than originally described.

Most simply for the purposes of this paper, which will not focus on history: a rebellion was begun in February 2003 by one of now two or three rebel groups who feared at the time that they would not benefit from recently-begun peace and power-sharing talks between the government of Sudan and the Southern People's Liberation Army/Movement (SPLA/M), with whom the government had been fighting a bloody war for more than 20 years. The original manifestos of the larger of the two rebel groups, the Sudanese Liberation Army (SLA; the other is the Justice and Equality Movement, or JEM) invited the participation of all aggrieved Darfurians, and aimed to redress the history of neglect and exploitation of the Darfur region at the hands of the government.

By April 2003, the rebels had captured a major garrison in northern Darfur and attracted government attention and concern. The government's motivations and decisions after this point are open to speculation. Perhaps the most accepted theory, however, suggests that the government, having only recently entered into power-sharing talks with its long-term enemy and aware of the unrest brewing in many of its other so-called ‘peripheral’ areas, feared that being anything less than harsh with the Darfur rebels would invite similar uprisings in other restive regions. Following a time-honoured tradition, the government called on the services of an ethnically-based militia—the Janjaweed—to quell the rebellion.

‘Quelling the rebellion’, however, quickly became a full scale, brutal attack by both government and Janjaweed forces on the mostly sedentary farming tribes of Darfur, identified as ‘African’ as opposed to the ‘Arab’ Janjaweed. The SLA and JEM have also increased their attacks, including on humanitarian convoys.

Since April/May of 2003, estimates of anywhere from 180,000 to 350,000 civilians have been killed, more than 300,000 have fled to Chad (approximately 200,000 of whom remain there), and just under two million remain internally displaced within Darfur. UN agencies such as the World Food Programme have estimated that over three million Darfurians (or nearly half the population) are conflict-affected, with millions at risk from disease and starvation. There is widespread evidence of mass rape and other forms of sexual violence, destruction of homes, properties and livelihoods. The UN Undersecretary-General for Humanitarian Affairs, Jan Egeland, has called Darfur the world's worst humanitarian crisis (Egeland 2004).

Though the violence and devastation are now more than two years old and still continuing, international involvement has been slow and remains inadequate. Restrictions on humanitarian access have eased somewhat since the summer of 2004, but access and supplies are still far from sufficient. The small contingent of African Union (AU) and, now, United Nations human rights observers on the ground are nowhere near enough to be effective in a region the size of Texas or France. The AU Mission in Sudan (AMIS) that accompanies the observers and is tasked with monitoring the fragile ceasefire has been slowly increasing in number, but remains significantly smaller than what many military experts suggest is needed for the territory. Further, the force's primary mandate is to protect the observers: protection of civilians is allowed only when civilians are ‘under imminent threat and in the immediate vicinity, within the limits of mission capability’ (Refugees International 2005).

Meanwhile, debate about what to do rages on within the United Nations and the international community: is the situation in Darfur a genocide or not? Does it matter? Can the AU solve the problem on its own or does it require international intervention? Will putting pressure on the Sudanese government about Darfur cause the government to abandon implementation of the peace agreement in the south? What is the best way forward?

This paper will discuss whether or not the crisis in Darfur amounts to genocide and how forced displacement in itself can constitute such a crime. It will also address the debate about genocide in Darfur: has it ultimately been constructive, or has it in fact diverted attention from the real needs of the victims of conflict? Lastly, the paper will examine potential ways forward, including the expansion of the protection force and, briefly, the role of the Comprehensive North–South Peace Agreement. It will not address the roots of the conflict in detail, nor will it discuss the ramifications of events still unfolding at the time of writing, including the death of Sudanese First Prime Minister and SPLA/M leader John Garang.

Grappling with the Issue of Genocide

Primary to any discussion of the genocidal impact of forced migration in Darfur—and of what to do about it—is the question of whether or not the events of the last two years in Darfur do indeed constitute genocide. The US State Department determined in September 2004 that genocide has occurred and may still be occurring, but other countries and international bodies have been reluctant to use what journalist Samantha Power has called ‘the G word’. More recently, the UN-sponsored International Commission of Inquiry documented large-scale war crimes and other atrocities, but stopped short of using the G word. Does the crisis in Darfur amount to genocide?

The most obvious comparison to Darfur is Rwanda, particularly as the violence in Darfur was reaching crisis level just as the UN and its member states commemorated the tenth anniversary of the Rwandan genocide. To many, Darfur is no Rwanda. As will be discussed further later in this article, the number killed in Darfur is (so far) much lower, the pace slower, and the intent and the ultimate goal of the perpetrators of the violence is less clear. These facts have led many to suggest that the situation in Darfur—while serious—does not rise to the ‘level’ of genocide. Is this true?

The 1948 Convention on the Prevention and Punishment of the Crime of Genocide defines genocide as ‘any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; (or) forcibly transferring children of the group to another group’ (UNGA 1948: Art.2).

Genocide through Forced Displacement

In keeping with that definition, numbers don't matter. As Power has noted, ‘if extermination were the threshold for response, action would inevitably come too late’ (Power 2004: 63). Nor does it matter (for definitional purposes) whether or not the victims died from direct murder, as happened in Rwanda, or as a result of the purposeful creation of conditions inhospitable to life or the deprivation of the means to sustain life—such as forced expulsion into desert and/or denial of access to food, water and other necessary supplies. By most estimates, upwards of 180,000 to as high as 350,000 civilians in Darfur have died as a result of the current crisis, with estimates of 6,000 to 10,000 people still dying monthly and hundreds of thousands more in imminent risk. Exact percentages are impossible to come by, but it is clear just in looking at crude mortality rates (see USAID 2004) in the hundreds of IDP camps throughout Darfur that a significant proportion of the dead have died as a result of the inhospitable conditions into which they were forced because of the violence.

There is abundant evidence, documented by the Office of the United Nations High Commissioner for Human Rights (OHCHR 2005) and several independent international organizations such as Amnesty International (2004a, b) and Human Rights Watch (2004a, b, c), that such forced expulsion (and denial of ability to return) has been a clear aim of the perpetrators of the violence. Not only have villages been attacked, looted and burned to the ground, but the Janjaweed have thrown dead bodies into wells to poison them and systematically destroyed fields, seeds and agricultural implements—elements critical to the survival of a population dependent on farming for its livelihood. Men have been killed and women raped and branded to ostracize them from society. There is little question that the Janjaweed are doing everything possible not only to force civilians to flee their land and villages, but to prevent them from being able to come home any time soon and to rebuild their lives even upon return.

Intent to Destroy

A second key component of the genocide definition is the question of intent: the intent to destroy a particular group as such—because of who they are. Intent is notoriously difficult to prove in any criminal situation, let alone one of mass atrocities conducted by a large number of participants. However, the 1985 UN ECOSOC Report on the Question of the Prevention and Punishment of the Crime of Genocide (widely known as the ‘Whitaker Report’), provides some helpful guidance on the question of intent. In order to be characterized as genocide, the report explained, ‘crimes against a number of individuals must be directed at the collectivity or at them in their collective character or capacity’ (Part II(B), Section 5, para. 38). Character, according to the Genocide Convention's definition and supported by the work of the International Criminal Court, can be defined by any of a variety of fundamental or unchangeable characteristics: nationality, ethnicity, race or religion.

The Whitaker Report also makes clear that intent need not be directly voiced, but can also be inferred from ‘sufficient evidence, (including) actions or omissions of such a degree of criminal negligence or recklessness that the defendant must reasonably be assumed to have been aware of the consequences of its conduct … In certain cases, calculated negligence may be sufficient to destroy a designated group wholly or partially through, for instance, famine or disease’ (UN ECOSOC 1985: Section 5, para. 39 and Section 6, para. 40). Forced displacement into an inhospitable environment, the denial of access to humanitarian aid (only 10 per cent of the affected displaced population could be accessed by humanitarian agencies during the spring of 2004) (Igiri and Lyman 2004), and deliberate poisoning of already-scarce water supplies clearly meets this understanding of intent. The findings of the Whitaker Report therefore further suggest that, in certain environments, genocidal intent can be inferred from forcible displacement in and of itself.

Nearly all Darfurians, displaced and Janjaweed alike, are Muslim. Further, ‘race’ in Darfur is now a subject of heated debate among those attempting to define the conflict, as many so-called Arabs look black, and many so-called Africans are relatively light-skinned. However, there is less question as to the self-identification and ethnicity of the region's inhabitants. The tribes that have been subject to attacks have been the Zaghawa, Fur, Massalit and others who self-identify as African (particularly in terms of ancestry, language and culture) and are largely sedentary farming communities (though some may spend part of their time raising livestock). The self-identified (again, mostly in terms of ancestry, language and culture) Arab communities are predominantly cattle and camel herders and have been left untouched by the Janjaweed and government forces. Satellite imagery taken in the spring of 2004 by the US government's space administration, NASA, supported the finding that African villages have been particularly targeted (more than 400 completely destroyed), with neighbouring Arab villages left untouched.

Consistent reports from refugees and displaced persons, detailed in publications by international human rights organizations such as Amnesty International and Human Rights Watch, as well as the OHCHR, also detail the use of racial and ethnic epithets during attacks, including during rape and the murder of children. And in March 2004, before the world's attention turned to Darfur, the (now former) UN Resident Coordinator for Sudan, Mukesh Kapila, noted that ‘the violence in Darfur appears to be particularly directed at a specific group based on their ethnic identity and appears to be systemized. This is akin to ethnic cleansing’1 (as cited in Igiri and Lyman 2004: 6).

1

The de facto difference between ‘ethnic cleansing’, a term which gained stature during the Balkan wars of the 1990s, and genocide is also a topic of significant debate, but outside the scope of this article.

Complicity of the Government

Last is the question of the complicity of the government of Sudan in the violence in Darfur. The government's long-held position has been that whatever violence has occurred in Darfur was initiated by the rebels, who therefore bear the brunt of blame for the crisis. Any ‘retaliation’ on the part of the Janjaweed is therefore not only—at least originally—a form of self-defence, but does not receive any support from Khartoum.

The evidence disputes the government's position. Not only does Khartoum have a long history of supporting ethnically-based militias to wipe out opponents (particularly in the south, the Nuba mountains and southern Blue Nile), but reports from refugees and displaced persons show a consistent pattern of collusion between the Janjaweed and the army: targeted villages are first bombarded from the air by government warplanes and attack helicopters, and then attacked from the ground by bands of Janjaweed on horseback, killing, beating and raping villagers, looting possessions and burning homes, and even chasing civilians as they flee in search of protection.

The government's 2004 pledge (through the 3 July Joint Communiqué with the UN) to rein in the Janjaweed has been met with suspicion on the part of many NGO and other observers, who suggest that Janjaweed members are in fact being recruited into regular army and police units. The few ‘Janjaweed’ that are presented to international observers as having been arrested have been exposed as nothing more than ordinary criminals, many of whom had been in jail since before the conflict even began. Countless human rights and humanitarian NGOs as well as UN agencies have investigated and called attention to the clear links between the government and the Janjaweed. In May 2004, Human Rights Watch published a report detailing the clear coordination between the government and the Janjaweed, including government documents proving the collusion. The long-delayed May 2004 report of the UN Commission on Human Rights also came to the conclusion that ‘(i)t is the manner of response to this rebellion by the Government of Sudan which has led to the current crisis in Darfur…It is clear that there is a reign of terror in Darfur…(T)he mission (of the CHR) encountered a consistency of allegations that government and militia forces carried out indiscriminate attacks on civilians; rape and other serious forms of sexual violence; destruction of property and pillage; forced displacements; disappearances; and persecution and discrimination’ (UNCHR, May 2004).

International Reluctance to Call Darfur a Genocide

Despite the arguments detailed above, most governments and major international organizations (not least of which is the UN) have refused to call the events in Darfur genocide. Reminiscent of the Clinton administration in the US during the Rwandan genocide, many governments have gone to great lengths not to use the G word. The German Foreign Minister Joschka Fischer called it a ‘humanitarian catastrophe with genocidal potential’ (Brand 2004). Fischer's French counterpart Michel Barnier lamented the ‘massive violation of human rights’ (Brand 2004), while the EU contorted itself around the description of ‘widespread, silent and slow killing…of a fairly large scale’ (Feith 2004).

Europe has not been alone in the denial of genocide—or even of the seriousness of the situation in the region. Sam Ibok, the Director of the African Union's Peace and Security Council, said in July 2004 that what was happening in Darfur was not yet genocide, but did have ‘the potential of deteriorating or degenerating into something quite serious’ (UN IRIN 2004). At that time, an estimated 30,000 to 50,000 people had been killed and well over one million displaced; given these figures, and complete with evidence of widespread rape and sexual violence, one could be excused for wondering what would be considered ‘quite serious’.

‘This isn't Rwanda’

There are a variety of concerns behind the hesitance of many in the international community to use the word genocide in reference to Darfur. One is a genuine belief that genocide has not occurred. Those governments and organizations that flatly deny that the crisis in Darfur amounts to genocide often use a combination of the ‘numbers issue’ and a comparison to Rwanda. Nearly one million people were slaughtered in Rwanda, they suggest, and Darfur is nowhere near that. Compared to Rwanda, they say, killing in Darfur is taking place ‘in slow motion’. What violence is occurring in Darfur is the result of a garden variety civil war.

There is no doubt about the fundamental differences between Rwanda in 1994 and Darfur ten years later. Yet even at the height of atrocities in Rwanda, no government or major international organization called it genocide; almost no one today would dispute that genocide was precisely what occurred there. As discussed above, numbers are not the issue in determining genocide. Nor is the speed or manner of the killing.

Further, these arguments ignore the all-too-real fact that death in Darfur is taking place with speed and in slow motion at the same time. People are killed in their villages often with lightning speed, either by bombs dropped from the sky or subsequent raids by gun-toting horsemen. Unlike in Rwanda at the height of the crisis in 1994, however, tens of thousands of Darfurians are dying slow deaths from malnutrition and disease in under-stocked refugee and IDP camps—falling under section (c) of the genocide definition: the deliberate infliction of conditions inhospitable to life. The government's ‘bureaucratic war’ on humanitarian agencies only exacerbates such conditions.

Moreover, Darfur cannot be considered a civil war of the ‘traditional’ sort because of the targeted nature of the killings, aimed as they are at an identifiable ethnic group and with the goal of preventing return to homes and livelihoods, and with clear government backing of the militias responsible for the devastation. In terms of the patterns of destruction of property and economic capacity, Darfur may more closely resemble Bosnia than it does Rwanda. In all situations, however, the complicity of the government in both the violence and forced displacement is clear.

Distrust of the United States

Another issue underlying the reluctance of many governments to declare a genocide in Darfur may be the fact that the first (and so far only) major power to do so was the US. The US government is undeniably disliked in many international circles at the moment. But beyond the perhaps knee-jerk reaction of not wanting to support anything the US does, lies a genuine belief that the US government—and therefore the findings of any investigation it conducts—cannot be trusted. Several government spokespeople, particularly in the Arab world and including in Sudan, have compared the US declaration of genocide in Darfur with its proclamation that there were stockpiles of weapons of mass destruction in Iraq. Without an independent investigation, the determination of the US is not accepted. Pakistan added that the US declaration prejudiced the findings of the UN-sponsored International Commission of Inquiry (see below) before it even started.

Some institutions, including the Arab League, have further accused the Bush administration of having an anti-Islamic agenda—targeting yet another Islamic state for possible international sanctions or military actions. Regardless of whether or not such claims have real merit, it is clear they tap into the latent anger and resentment of the US among many Arab and Muslim populations.

There are also concerns that the US may not be pushing as hard on Darfur in the Security Council as it might under different circumstances. With US–UN relations at perhaps an all-time low and many member states still furious with the US for its invasion of Iraq, this argument suggests that the US may be relenting on Darfur in order to save its limited political capital in the Security Council to garner support and assistance with Iraqi reconstruction.

The International Commission of Inquiry

Many governments and the UN itself have not made statements one way or the other on the G word as it relates to Darfur, claiming instead that there is not yet enough evidence to make a determination. By September 2004, the UN Security Council was able to pass a resolution calling, among other things, for the establishment of a UN International Commission of Inquiry into the situation in Darfur (UNSC Res. 1564, 18 September 2004). The Commission did not begin its work until late October 2004. At the very end of January 2005, it released a lengthy final report detailing what it determined to be widespread, systematic and indiscriminate attacks on civilians throughout Darfur, including (among other atrocities) murder, torture, destruction of villages and property, rape and forced displacement. Controversially, however, the report indicated that it did not believe genocide had occurred or was occurring.

The report analysed the genocide question in a systematic fashion. It found that the atrocities detailed by the investigators did indeed fit within the definition of genocide as outlined in the convention. It further noted that, while ‘tribes’ cannot always be presumed to be a protected group within the understanding of the convention, in the case of Darfur, the tribes in question—primarily the Fur, Zaghawa and Massalit—could be subjectively considered a protected (ethnic) group since they not only perceived themselves to be part of such a group, but were perceived by others to constitute such a group as well.

The Commission did not, however, believe that it was and is the intent of the government of Sudan and the Janjaweed to commit genocide—that is, to systematically destroy a group, as such, in whole or in part. The report cites three main reasons for coming to this conclusion. The first is that in ‘a number of’ attacks on villages, the government and Janjaweed ‘refrained from exterminating the whole population that had not fled, but instead selectively killed groups of young men’ (International Commission 2005: para. 513). The second is that ‘populations surviving attacks on villages are not killed outright’, but rather are forced into government-selected IDP settlements (para. 515). Lastly, according to the report, lack of genocidal intent is illustrated by the story of two brothers—one of whom did not resist the Janjaweed's attempts to steal his cattle and was ‘only’ severely beaten, but not killed, and another, who did attempt to resist the theft and was killed for this resistance. In the opinion of the commissioners, ‘had the attackers’ intent been to annihilate the group, they would not have spared one of the brothers' (para. 517). Though undoubtedly well-documented, one can find fault with all three of these conclusions (the last simply because it invokes the story of only two of the more than two million victims of this conflict, and cannot therefore be considered a representative sampling).

For the first explanation, it may be true that in some instances, government and Janjaweed forces may have ‘refrained’ from wiping out each and every individual that did not flee their initial attacks, but rather focused on killing the young men. This in no way diminishes intent. First of all, in many cases it is physically impossible to kill each and every civilian in a given location; the genocide convention notes that killing of a group can occur ‘in whole or in part’ precisely to avoid the sinister scenario in which a government may be absolved of genocide simply because it was not as ‘successful’ or efficient as it intended to be. Further, requiring that all members of a group be killed before genocide can be said to have occurred would render the ‘prevention’ aspect of the convention truly useless—in fact, impossible.

Moving beyond the theoretical, the argument put forth by the Commission that the focus on killing young men demonstrated a lack of genocidal intent because it did not seek to annihilate each and every member of the group is not in line with various internationally-accepted interpretations of the phrase ‘in part’ as used in the genocide convention. These interpretations, such as that in the Whitaker Report, have held that the term ‘in part’ should be taken as meaning ‘a significant section of a group’. In a traditional, male-dominated society in a physically-demanding and conflict-ridden environment, men and boys of farming and fighting age could easily be thought to represent a ‘significant section’ of Darfurian society.

The Commission's finding further ignores section (b) of the genocide definition as contained in the convention: causing serious bodily and mental harm. Mass rape, sexual torture and branding of victims of sexual violence—documented by the Commission itself as having occurred with regularity and in large numbers—clearly constitutes ‘serious bodily and mental harm’. The fact that the female victims of such heinous crimes are often ostracized from society, disowned by their families and divorced by their husbands greatly exacerbates this harm.

For its part, the Commission's second main reason for finding a lack of genocidal intent—the fact that many villagers not killed were instead forced into IDP settlements—ignores section (c) of the convention's definition, discussed earlier in this paper: inflicting on a group conditions of life calculated to bring about its physical destruction (in whole or in part). Though the report acknowledges that conditions in the settlements are ‘open to strong criticism on many grounds’ (para. 515), it brushes aside such criticism by adding that the government ‘generally’ allows relief workers to ‘help’ the populations in the camps. It does not mention that the government only allowed such access after months of very public pressure by the agencies themselves as well as by the UN and various governments. It further neglects to discuss the multitude of restrictions under which such agencies still operate and the vastly inadequate humanitarian structures in place in these settlements. As discussed earlier, malnutrition and disease rates in the IDP settlements (as well as, more recently, in host villages) have been registered at well above crisis level, particularly for children. The government of Sudan has long pursued a policy of forced encampment in difficult circumstances, knowing from its experience in the south that such populations are likely to die in large numbers, albeit more slowly than through direct murder.

The report is careful to note that particular individuals may still be found to be responsible for having committed crimes of genocide, and that the ‘crimes against humanity’ (such as policies of murder, persecution and extermination) and ‘large-scale war crimes’ that have taken place in Darfur may be just as serious as genocide. Such additions and caveats, however—rightly or wrongly—do not carry the same weight within the international community as would an outright declaration of genocide by the United Nations. Instead, the report has been more or less welcomed by the government of Sudan and could be used as a ‘pass’ by member states already reluctant to put effective pressure on the government of Sudan—letting them off the hook, so to speak.

Even without a determination of genocide, however, the Commission has played a useful role in investigating and documenting the multitude of atrocities that have taken place in Darfur, and clearly sets the stage for some form of international tribunals. There was heated debate within the UN Security Council regarding the most appropriate venue for such a tribunal following publication of the Commission's report. A key recommendation of the Commission, wholeheartedly supported by the Europeans and others, was to immediately begin prosecution of alleged Darfurian war criminals in the International Criminal Court (ICC). The United States, however, has strongly opposed the ICC since before its inception, and campaigned vigorously for an AU-led International War Crimes Tribunal for Darfur that would make use of the facilities already in place for the Rwanda tribunals in Arusha, Tanzania. After more than two months of debate, the US finally abstained from voting on Security Council Resolution 1593 of 31 March 2005, which referred the matter to the ICC. Even with this resolution, however, the ICC's investigation did not begin until June 2005 and is unlikely to produce indictments quickly—no timetable was set for the investigation.

Pros and Cons of a Genocide Declaration

The lengthy debate regarding the proper venue for a tribunal has served only as a great distraction from the real issue at hand—that is, stopping the atrocities still occurring on an almost daily basis in Darfur. This same argument can be used in reference to the genocide debate as a whole: regardless of what such atrocities are called, they remain atrocities, and must be stopped and punished.

There are disagreements even among those working to stop the violence, suffering and displacement in Darfur about the relative merits or drawbacks of using the G word as a descriptor. One argument suggests that a genocide declaration is important in the context of accountability, particularly once tribunals are established under the auspices of the ICC. It may also represent a public recognition that the government accused of perpetrating a genocide (in this case, the government of Sudan) cannot be considered a legitimate partner in resolving the crisis. Rather, with genocide, the government itself is by definition directly implicated in the violence; a participant in the crisis. Such a determination can therefore provide the grounds for actions taken to prevent or suppress the genocide even in absence of government approval. As Africa Action's Executive Director Salih Booker has said, ‘in a case of genocide, you cannot call on the normal forces of law and order to stop it—the army, the police, the courts in Sudan, because those are the very instruments of genocide’ (Booker 2004).

A commonly-held belief also suggests that the determination of genocide carries with it an important obligation to do something, military or otherwise, to help the victims. This is the so-called ‘action clause’ of the Genocide Convention: Article 8, which states that any state party to the convention ‘may call upon the competent organs of the United Nations to take such action under the Charter … as appropriate for the prevention and suppression of acts of genocide’.

Despite common understanding, however, Article 8 places no clear legal obligation on contracting parties to do anything at all. States may call on the UN, but of course just because the UN is ‘called upon’ to do something does not mean that it can or will. There are no formalized procedures for doing so. Nor is there any punishment for a contracting state that does not call on the UN in such a situation.

Rather, the obligation may be cast as moral. Once a state that has ratified the genocide convention steps forward and identifies an ongoing genocide, it should strive to do something about it. As has been the case in the months following the US State Department's determination in September 2004, however, this does not always happen.

‘Genocide’ is of course a word packed with controversy. Given that there is no strict or binding legal obligation on even those states party to the convention, it could be suggested that a declaration of genocide may in fact cause more problems than it rectifies. In the case of Darfur, a primary concern of many relief workers has been access. Relief workers are reliant on the cooperation of the government of Sudan to be able to reach vulnerable populations as well as to import and transport necessary food, medical and other supplies. Having had less than adequate access during the first year or more of the violence, many relief workers fear that a genocide declaration would anger the government of Sudan and cause it to once again severely restrict their access and movement, resulting in even higher numbers of civilians at risk—unintentionally perpetuating the genocide itself. In this scenario, unless a genocide determination were accompanied by an infusion of international peace and security forces—so-called ‘boots on the ground’—a declaration of genocide could in fact cause a precipitous decline in the humanitarian situation.

The second key concern is that a declaration of genocide in Darfur could negatively affect the brand-new peace agreement between the government of Sudan and the Southern People's Liberation Army/Movement (SPLA/M) in southern Sudan. The two sides in Sudan's roughly twenty-year civil war signed the Comprehensive Peace Agreement (also known as the Naivasha protocols) on 9 January 2005 after more than two years of negotiations. There was significant concern during the talks that strong international pressure on the government about Darfur could prompt it to pull out of Naivasha. Even after the recent signing, relations between the two sides are still tenuous—and much more so following the death of newly-installed First Prime Minister and SPLA/M leader John Garang in July 2005. The government may also see itself as being in a particularly vulnerable position since, in addition to being a peace agreement, the Naivasha protocols are a framework for power and revenue-sharing between the government and the south.

Does it Matter What it's Called?

(D)oes it matter if we call this a genocide? Does it make it worse if it's a genocide? Or, conversely, does it make it a better situation in Darfur if we say, ‘Whew! It's not a genocide’. Has this debate been constructive? (Gourevitch 2004)

The debate surrounding the findings of the International Commission of Inquiry may be just as misplaced as the very similar, and often heated, discussion that swirled before the US State Department's eventual genocide declaration in September 2004. For all the talk of the potential benefits and drawbacks of a genocide determination, and for all the discussion of the so-called ‘action clause’ of the Genocide Convention, very little actually changed after the US statement, and even the Commission's report was met with less than enthusiastic interest. After the US declaration, the AU has maintained its vastly under-staffed and under-resourced observation mission, humanitarian agencies continue to do their best to meet the growing needs of the displaced and the UN has issued a new appeal to donors. The UN Security Council has issued three new and more strongly-worded resolutions on the matter, but there is no international protection force, no new sanctions, and no international arms embargoes placed on the Sudanese government.

At the same time, however, the government has not significantly restricted humanitarian access, nor did it pull out of the Naivasha talks. Meanwhile, the violence and displacement continue and the overall situation for civilians is growing increasingly bleak. At the very least, the Commission's findings that genocide has not occurred have sparked a strong debate about eventual accountability mechanisms, something the US declaration, even in using the G word, was not able to accomplish.

Does this mean that a declaration of genocide, and maybe even the Convention itself, is irrelevant? Perhaps. For the second time in ten years, the international community seems to be expending more energy debating a word than taking strong and decisive action to alleviate the suffering of millions of people. Even while explaining his agency's determination that genocide ‘has occurred and may still be occurring’ in Darfur, the then US Secretary of State Colin Powell immediately added that ‘no new action is dictated by this determination’. On the other hand, the International Commission of Inquiry denied that genocide had occurred, but strongly encourages international prosecution.

Money and supplies have been sent and outrage voiced by those calling Darfur genocide as well as those calling it ‘merely’ a situation of large-scale war crimes. Particularly for such a large population and in such a difficult environment, however, humanitarian assistance can be little more than a band aid unless the security situation on the ground as well as the roots of the conflict are addressed.

Looking at it from that perspective, the US declaration of genocide did nothing but ‘set off a new round of bureaucratic shuffling’ (Power 2004). If Rwanda (where the term was avoided until the killing had stopped) and Darfur (where a major world power used the term without any corresponding change in action or policy) are any indication of the usefulness of the term and the convention, there is clearly a need for some rethinking. Many international law experts have posited that the real role of the genocide convention lies in determining accountability and punishment after a genocide has unfolded—something the Commission has attempted even without invoking the convention. If that is the case (the title of the convention notwithstanding), then there is need for other intermediate steps that the international community can take to prevent and/or stop a similar crisis before it reaches the level of the horrors of Rwanda or, now, Darfur. ‘Never again’ will continue to be meaningless if the only actions taken by concerned observers occur years after a crisis has unfolded.

Ways Forward

The alternative to difficult action is to live with the consequences of inaction (Washington Post 2004).

So what can be done, now, for Darfur? By now the divisions within the UN Security Council on the issue of Darfur are apparent to anyone following the crisis. China, Russia, Algeria and Pakistan2 have abstained from voting on most of the Darfur-related Security Council resolutions, though Russia did support the referral to the ICC. More importantly, however, the reluctance of these countries to support any measures seen as punishing or even directly threatening the government of Sudan has resulted in weak resolutions. The word ‘sanctions’ has yet to be used; replaced instead with vague references to ‘further actions’. No travel bans or asset freezes of Sudanese government officials were even considered until UNSC Res. 1591, of March 2005.
2

There are various assumptions as to why these four countries have been reluctant to condemn the government's actions in Darfur: China is the largest investor in Sudan's oil industry and may be concerned about setting a precedent that could affect its policies on Tibet; Russia is the largest seller of arms to Sudan and may be concerned about setting a precedent that could allow international involvement in Chechnya; and Algeria and Pakistan have cited Islamic solidarity as well as commonly-held concerns within the developing world about infringement on sovereignty.

Some actors, including the US and the UK, have been somewhat more forceful in their criticism of the Sudanese government. However, the constant repetition of threats and demands with no consequence or punishment tends to water down the importance of such criticism. Take for example the statement of the UK's Ambassador to the UN, Sir Emyr Jones Parry, at the Security Council meeting in Nairobi in November 2004: ‘(W)e repeat the message that we will come after you if you don't comply’ (as cited in Blomfield 2004). This is, more or less, the same message that various parties have been sending the government of Sudan for close to nine months. Outgoing US Ambassador to the UN, John Danforth, highlighted this policy in a speech to Georgetown University in December 2004: ‘When we passed the resolutions last summer, we provided for a clock so that every month, just like clockwork, the issue of Sudan would come before the Security Council so it wouldn't fall off the table, it wouldn't be forgotten’ (Danforth 2004).

Call it genocide or not, the issue of Darfur has not been forgotten by the international community. But nor has any real action toward stopping the crisis been taken during any of the Security Council's thirty-day intervals. The AU force is slowly getting into place, but even at its eventual height of roughly 7,500 troops, it will not come close to meeting the needs of the population.

The Need for a Protection Force

Too often the idea of ‘military intervention’ in Darfur has been described in terms of a large western force arriving in full armour to battle the Janjaweed and the Sudanese government. Such an image is repulsive to states and actors well beyond the confines of Sudan, and for this and other reasons would likely not be effective. A traditional military force, however, is not the only option. As Gourevitch has remarked, ‘There is a fundamental difference between protecting people and fighting the Janjaweed’ (Gourevitch 2004). What is needed is a protection force not unlike the current AU force, but much larger3 and, crucially, with a stronger mandate for protection of civilians at risk.

3

In a 5 December 2004 op ed in the Miami Herald, US Congressman Thomas Lantos quoted military experts as suggesting that between 40,000 and 50,000 troops would be required for an effective protection force in an area the size of Darfur.

The debate about a ‘full size’ protection force in Darfur has followed some of the same lines as that about the propriety of a genocide declaration. Would a force ease or compound the current crisis? How would the government of Sudan react to the mobilization of such a force? There are a host of other considerations as well: what troops would be used? Where would the funding come from? Would it be a UN force, an AU force, or a different force altogether? What are the political and other considerations involved?

Any discussion about any type of intervention force, military, protection or otherwise, is fraught with controversy. In the specific case of Darfur, however, there is no question that the government of Sudan is unlikely to accept any but the barest of deployments (such as the current AU force) without a struggle. The issue therefore becomes what the international community would need to do to convince the government of Sudan that accepting a protection force is actually its best option.

Various Sudan experts including John Prendergast and Francis Deng have suggested that the government of Sudan might be convinced to accept a full-size protection force instead of something more coercive, particularly if the force were still led and largely staffed by AU members. Given its recent track record, however, the UN could have a difficult time convincing the government of Sudan that it could, if required, even muster anything more coercive. The inability of the Security Council to reach consensus on anything related to Darfur is well-known by now in Khartoum, as is the reluctance to impose any type of punitive measures on the government. This is not to say that interested member states such as the US and UK should not continue exerting pressure on reluctant governments to become more involved in protecting civilians in Darfur. To this end, the notion of a protection force rather than more coercive measures such as sanctions or military intervention may initially be a more effective incentive for Security Council members than for the government of Sudan itself.

With estimates of up to 6,000–10,000 people dying monthly in Darfur during the spring and summer of 2005 (Financial Times 2005; WHO 2005), however, the UN road cannot be allowed continue indefinitely. In absence of the ability to create a protection force under the UN umbrella, other options must be explored. Various regional bodies, including the AU, NATO or a group of interested (and well-resourced) states have been proffered. There are of course complications with each. The AU is already involved but under-resourced and would struggle to secure funding and other resources for an even larger mission. NATO has the resources and the experience, having performed well in Kosovo, but could have a difficult time convincing members that Darfur lies ‘in area’ (the organization's current mission in Afghanistan, however, may have helped put to rest some earlier questions about NATO's accepted theatre of operations: it has already been successfully airlifting AU troops into Darfur for several months). NATO would further face the problem of being a largely western and northern force intervening, once again, in a developing, majority Muslim region. The idea of a ‘coalition of the willing’ may have fallen from favour in the wake of the US invasion of Iraq, but could still be a viable option in Darfur provided it was not led by the US and was comprised of an ethnically, economically and religiously balanced membership.

Of all these options, the idea of an AU force has been most accepted by outside actors. Not only would it provide an important source of legitimacy for a new organization still struggling to find its role, but it could be the start of a new precedent of African countries taking responsibility for addressing peace and security issues on the continent. However, as a new organization, the AU would likely not succeed in such a large mission without the support of the UN and individual UN member states. Cautions have been raised by a variety of observers both in Africa and around the world that the international community must not be allowed to ‘dump’ Darfur on the AU's lap and then wonder later what went wrong. If the AU option is chosen, it must come hand in hand with substantial, long term financial, military, logistical and human resource support in order to ensure that the mission succeeds. In a telling development, however, the expanded AU force that has been slowly arriving in Darfur throughout 2005 is already, according to AU press releases, suffering from under-funding.

Regardless of what entity or entities comprise the force, its overarching goal must be the protection of civilians. In the immediate term, this would mean protecting civilians where they are: in the IDP settlements and in their villages, for the few that have not yet fled. It would mean protecting against attacks and sexual violence. It would also mean protecting the humanitarian corridors to ensure delivery of supplies, which have been coming under increasing attack in recent months. In the medium term, it would mean ensuring that villages are secure enough and have the necessary resources to sustain return of displaced populations. It would also mean protecting civilians during and after return to their villages and ensuring that relief workers can access new returnees, particularly in light of the near-total devastation brought upon so many villages by the Janjaweed militias. In the medium to longer term, it would mean training of civilian police and establishment of other local law enforcement mechanisms to guard against future outbreaks of violence. It would also eventually mean disarming the Janjaweed and the rebels. Meanwhile, the international community, AU and local leaders must work to create accountability mechanisms for perpetrators of the conflict, as well as processes for resolving the land and resource disputes that lie at the heart of the conflict and that have fuelled regional tensions.

The Naivasha Protocols

Another important consideration is the status of the Comprehensive North–South Peace Agreement. Concerns that sending an international force into Darfur could sabotage years of painstaking peace work in the south are very real. However, implementation of the agreement has only just begun. And, of course, ultimate success of the complicated series of protocols is not guaranteed, particularly with such contentious issues as power and revenue sharing at stake and the daunting challenges of implementation that still lie ahead. Given the snail's pace at which the talks proceeded, it is callous to expect Darfurian civilians to continue to watch their families being torn apart and livelihoods destroyed while waiting for the international community to turn its attention toward them—first while Naivasha was being concluded and now as it is implemented. The government of Sudan has already shown itself willing to use Naivasha to gain leverage in Darfur, and there is no reason to think that it would not continue such a tactic as long as it works.

It is also becoming increasingly difficult to justify inaction in Darfur as merely a consequence of achieving peace in the south. Not only does the sheer number of victims in Darfur defy such logic, but their continuing struggle makes it less and less likely that the Naivasha protocols can survive in the long term with a high-intensity conflict raging in nearly half the country. As the then Representative of the Secretary-General on Internally Displaced Persons, Francis Deng, noted: ‘The crisis in Darfur has already overshadowed the positive development towards achieving peace in the south…(the) failure to manage the Darfur crisis constructively could eventually jeopardize the peace achievement in the south’ (2004, paras. 37, 45). The principles currently guiding the SPLA in the south and the founding principles of the SLA in Darfur are fairly similar, and include the equitable sharing of resources and distribution of political and economic power, an end to the exploitation of Sudan's so-called peripheral regions and a lightening of the heavy hand of Khartoum. Allowing the crisis in Darfur to continue nearly unabated for the sake of the southern peace process could prove devastating for both—and perhaps for Sudan's eastern regions as well.

A solution to this scenario is to include Darfur, as well as other regions or political parties in dispute with Khartoum, in all-country peace talks. Assuming that Sudan itself and the international community in general wish it to stay one country, all-country talks are the only way to solve what lies at the heart of the various crises in Sudan: the political manifestation of national identity—that is, who controls what, gives what to whom and why.

The idea of all-country talks does not mean a vast table with representatives of hundreds of different groups sitting around arguing with each other, but rather the development of a common framework for all of the various regional talks, allowing for regional and political particulars as they arise. The current piecemeal approach—the Comprehensive Peace Agreement between north and south, the government and Darfur rebels occasionally talking in Abuja and the recent preliminary agreement following years of talks with the opposition National Democratic Alliance in Cairo—may produce short term results but is unlikely to be sustainable in the long term unless all talks and agreements address the underlying, and common, causes of Sudan's various conflicts. The millions of suffering civilians in Darfur should not be left to defend themselves for the sake of a unsustainable framework.

Conclusion

The international community has moved from ignorance, to concern, to feigned action. Coming a decade after the Rwandan genocide, this meager response mocks our vows of ‘never again’ (Roth 2004).

If we don't act now, when will we ever act? If we don't have special and clear-cut obligations in the case of genocide, when do we? (Booker 2004).

The US State Department declared genocide in Darfur well over one year ago—more than three times longer than the whole of the Rwandan genocide. Since the US declaration, tens of thousands of people, at a minimum, have died, most of them in insecure and under-stocked IDP settlements. Yet there is still no fully-supported and effective protection force, no international arms embargo, and no international sanctions. In fact, few punitive measures of any kind have been imposed on the government, save for a no-fly zone that is consistently ignored and travel and asset freezes that have been difficult to institute. Instead, ten years after Rwanda, world bodies are once again devoting their time to defining a word.

None of the options presented above is easy or inexpensive, particularly with the international community as fractious as it currently is and with resources already overstretched. But without strong and decisive international involvement, hundreds of thousands more people will die. Like the victims of the Holocaust, and Cambodia, and Bosnia, and Rwanda, they will eventually be lamented in yet another series of sombre commemorations. This time, concerns about setting a precedent of intervention must not be allowed to outweigh the chance to finally, belatedly, break the cycle of ‘never again’.

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