Darfur: the New Name of Genocide

The following article was originally published by Vanguard. Chidi Odinkalu is senior legal officer for the Africa program of the Open Society Justice Initiative.

"They came on their horses, killed the people of our village, who started to resist them. When I heard the machine guns, I started to collect my kids, trying to escape from the agony. But they captured me, killed my three kids, and six of them raped me. Then they went away. The rest of the villagers collected together and fled the area, and now I am staying at a refugee camp looking for something secure. I do not know how to say it, I am really afraid of even being killed by my relatives because of the Janjaweed baby that I am bearing."

This is the testimony of a female survivor of the ongoing genocide in Darfur Western Sudan. In 1944, Polish Philosopher, Ralph Lemkin, coined the expression, Genocide, to describe the crimes such as the Nazi-led attempt to eliminate the gene of a race, in that case, the Jewish race. During the First World War, the Armenians suffered a similar fate. A world appalled at the crimes of the Nazis adopted on the last day of 1949 the Convention on the Prevention and Punishment of the Crime of Genocide, otherwise known as the Genocide Convention.

The Genocide Convention entered into force on January 12, 1951. Article 2 of the Convention defines Genocide as "any of the following acts committed with 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;
• Forcibly transferring children of the group to another group.

This definition makes genocide a crime of very specific intent. It is adopted completely by Article 6 of the Rome Statute of the International Criminal Court. One or a mixture of these elements would constitute the crime of genocide. Article 8 of the Genocide Convention establishes perhaps the most important obligation contained in that treaty. It obliges all Contracting Parties to "call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any other acts enumerated in Article III of the Convention." These enumerated acts are genocide, conspiracy to commit genocide, incitement to genocide, attempt to commit genocide, and complicity in genocide.

The obligations to prevent, suppress, and punish the crime of genocide are both customary and peremptory norms of international law. Thus, the egregiously notable failure of Sudan to ratify the Genocide Convention does not shield it from the obligations to prevent, suppress and punish the crime of genocide. Moreover, as the United Nations Security Council noted in its Resolution 1556 of 30 July 2004, "the Government of Sudan (GoS) bears the primary responsibility to respect human rights while maintaining law and order and protecting its population within its territory." The GoS has not just manifestly failed to do this; it is actively involved in the most brutal violations of these obligations.

The prefatory testimony to this article is not isolated. The numbers are even more harrowing: international agencies estimate that over 50,000 have been killed in the Darfur region since the beginning of February 2003; over 200,000 have been forcibly displaced into refugee camps in neighboring Chad; over 1,700,000 million people are internally displaced and mostly encamped within Sudan itself; there are up to an estimated 600 deaths in the camps for the internally displaced who, until recently, have been denied access to humanitarian assistance by the Sudanese Government. This adds up to a monthly average of about 18,000 deaths; sexual violence and rape of the women and young girls, some of the victims as young as eight years and less, is employed as an instrument of war and ethnic cleansing.

In a recent survey of the Darfurian refugee population conducted for the State Department by the Center for International Justice, 67 percent had witnessed the killing of a non-family member; 61 percent had seen their own family members killed; 44 percent had survived being shot at; 28 percent had suffered death or forced displacement; 25 percent had been abducted; and 16 percent of the population had been raped!

To put these numbers in perspective, Darfur comprises three States of the Republic of Sudan that between them are bigger than the territory of France and host about 7 million people. Nearly one-third of this number are now dead, displaced, abducted, raped, or being starved to death in installments. Faced with this evidence, both the European Union and the United States have in the past fortnight determined that the situation in Darfur amounts to genocide. On any reading, violations on this scale must qualify, in the language of Article II(c) of the Genocide Convention, as "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part."

For its part, the farthest that the African Union has been able to go was the acknowledgement at the 5th Session of its Peace and Security Council in April 2004, that the situation in Darfur represents a "grave humanitarian situation." The AU requested an investigation of the situation in Darfur by the continental human rights body, the African Commission on Human and Peoples' Rights. But just as the five-person team Commission was physically deployed on its mission in Darfur in July, the Summit meeting of the 3rd Ordinary Session of the Assembly of Heads of State and Government of the African Union, presided over by Nigeria's President Olusegun Obasanjo, prejudged the outcome of the investigation by deciding on July 8 that "even though the humanitarian situation in Darfur is serious, it cannot be defined as a genocide."

Article 4 of the Constitutive Act of the African Union requires African States to exercise active intervention in other Member States of the Union when those other States are involved in committing war crimes, crimes against humanity, or genocide.

Africa's leaders persist in minimizing the international crimes being committed in Darfur as "a humanitarian crisis," very much redolent of acts of nature like a flood, earthquake, or hurricane. But Darfur is not an act of nature. It is caused by human actors, exercising political authority. They must be halted and brought to account. One point of view within the leadership of the African Union is that unlike the case of Rwanda, a genocide in terms of both the quantity (nearly one million killed) and quality (mass murder) of the acts perpetrated, "a mere" 50,000 have been killed in Darfur. Apparently, in the arithmetic of the African Union, the 2 million forcibly displaced into death-like conditions in refugee camps guarded by the same Janjaweed militia that have raped, outraged, and violated them should have been physically wiped out too.

In Pretoria, South Africa, the African Commission on Human and Peoples' Rights met on Sunday, September 19, to adopt the report of its investigation mission to Darfur. The report of the Commission is yet to be published but authoritative sources close to the Commission indicate that it found as a fact that in Darfur, the government of Sudan had been involved in "war crimes and crimes against humanity, and massive human rights violations by members of the security forces." The Commission is reported to have recommended the establishment of an independent international commission to investigate the international crimes in Darfur. While this bureaucratic rigmarole goes on, the people of Darfur are being savaged and the continent's rulers shrink from their moral and legal duty to call the crime by its name, Genocide.