Eric Reeves’ Mischaracterization of Facts about Darfur

In a recent comment posted under the thread titled: “What it the ICC After?” Eric Reeves made what I assume to be a response to a previous comment of mine.

Because an adequate response to Eric requires a lengthy reply, I have asked to be allowed to respond in a separate posting rather than in the comment section of the relevant thread.

I apologize in advance for the length of this posting, but in his comment, Eric set forth numerous excerpts from various sources and for the sake of clarity I will need to restate them here.

Eric is a professor of literature, and it therefore seems reasonable that he would approach this issue by setting out “the written word” from various organizations and individuals in order to argue his point.

But I am afraid that I must accuse Eric of citing literature without the appropriate accompanying critical analysis or fair disclosure.

First, he refers to a document from JUSTICE AFRICA.:

“JUSTICE AFRICA (UK), June 18, 2004:
“In response to the question, ‘Is the Darfur conflict genocide?’ [,] if we strictly apply the provisions of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, there is no doubt that the answer is yes.”

But JUSTICE AFRICA by its own self definition is an advocacy organization. “Justice Africa is an advocacy organisation and research institute founded in 1999 in London to campaign for human rights and social justice across Africa.” Justice Africa is not an accepted legal authority and if they cited some authority on which it based their conclusion relative to whether the 1984 Convention has been violated then Eric should have cited that authority as well. So, I consider this as “literature” but not law.

And before we get too far into claims by Americans as to whether or not some actor has violated the 1948 Convention, let us keep in mind that the United States signed that treaty with the Reservation that the U.S. could not be brought before the International Court of Justice WITHOUT THE CONSENT OF THE U.S. ITSELF!

Further, the U.S. signed the Convention with several “Understandings,” one of which is stated as follows:

“(1) That the term `intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such’ appearing in article II means the specific intent to destroy, in whole or in substantial part, a national, ethnical, racial or religious group as such by the acts specified in article II.”

By setting apart this “Understanding” the U.S. took the position that as far as this Convention went, there must exist a “specific intent” to “destroy, in whole or in substantial part, a national, ethnical, racial or religious group” by the acts specified in article II. This requirement of “specific intent” set forward a more rigorous test to be met than proving mere “intent.”

The significance of this is that mere intent (or basic intent) necessary for an offense is in existence when an actor intends to carry out (or has reckless disregard for whether his actions will result in) what is called the “actus reus” (or guilty act). An actus reus in and of itself does not constitute a specific crime, and it only becomes a crime when coupled with mens rea, which can loosely be defined as “intent.” The firing of a pistol can be an “actus reus” but if it is fired without the intent to harm anyone (or without reckless disregard) then it may not be a crime of “premeditated murder” if a victim is struck by the bullet.

If, on the other hand, the actor fires the pistol at someone, (or in a direction where the possible presence of individuals may exist) then you may then have the act coupled with intent. However, this still may not be “premeditated murder” if the actor is able to prove that he did not mean to kill the victim.

Finally, if the actor fired the pistol with the intent of killing the victim, then there existed a specific intent to kill the victim. Thus, the act coupled with the specific intent to commit the crime constitutes the crime of premeditated murder.

Now, I must apologize for an oversimplification of the facts and the law in this example, so as to not make this posting too long. But I hope that this example is illustrative of the situation.

Justice Africa stated that “[I]f we strictly apply the provisions of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, there is no doubt that the answer is yes.”

I would posit that the International Commission of Inquiry on Darfur did strictly apply the provisions of the 1948 Convention and their answer was “No.” The Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General is clear on that point. In Item 640 of the U.N. Report states (on pages 160 & 162):

“The Commission concluded that the Government of the Sudan has not pursued a policy of genocide. Arguably, two elements of genocide might be deduced from the gross violations of human rights perpetrated by Government forces and the militias under their control. These two elements are, first, the actus reus consisting of killing, or causing serious bodily or mental harm, or deliberately inflicting conditions of life likely to bring about physical destruction; and, second, on the basis of a subjective standard, the existence of a protected group being targeted by the authors of criminal conduct.”

“Generally speaking the policy of attacking, killing and forcibly displacing members of some tribes does not evince a specific intent to annihilate, in whole or in part, a group distinguished on racial, ethnic, national or religious grounds. Rather, it would seem that those who planned and organized attacks on villages pursued the intent to drive the victims from their homes, primarily for purposes of counter-insurgency warfare.”

The Commission found that the killing was there, the rape was there the destruction of lives was there, but the Commission did not find that even the basic intent to commit genocide was there – let alone the “specific intent” that the U.S., by its own Understanding, claims must be present for genocide to exist. Justice Africa’s statement shows a lack of understanding of the law in this instance.
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Next, Eric quotes an article written by Alex :

ALEX DE WAAL, LONDON REVIEW OF BOOKS, August 2004
“This [the Darfur counterinsurgency] is not the genocidal campaign of a government at the height of its ideological hubris, as the 1992 jihad against the Nuba Mountains was, or coldly determined to secure natural resources, as when it sought to clear the oilfields of southern Sudan of their troublesome inhabitants. This is the routine cruelty of a security cabal, its humanity withered by years in power: it is genocide by force of habit.”

Eric truly disappoints me here, because it appears that Eric cited Alex here in order to suggest that Alex believes that genocide has taken place in Darfur. This is not Alex’s position at all. And Alex has written a very clear explanation of why his statement in the article cited by Eric should not be taken to mean that he believes genocide has taken place in Darfur. (See: “Genocide by force of habit?”) If this was a mere oversight by Eric, I could overlook [after its correction], but in a thread of comments subsequent to that post, Eric and Alex had an exchange that should have left no doubt in Eric’s mind that he could not suggest that Alex believes that genocide, as defined by the 1948 Convention has in fact occurred in Darfur. In fact, during that exchange, Eric suggested that Alex’s arguing that genocide had not taken place in Darfur tended to “trivialize the suffering of Darfuris.” It is difficult for me to believe, given the passion with which Eric argued his position during this exchange with Alex, that he could have forgotten that the exchange had I fact taken place – or what Alex’s position is on the issue.

The full text in Alex’s article in the London Review of Books, to which Eric referred, may be found here.
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After what has the appearance of an attempt by Eric to misrepresent Alex, Eric goes on to quote the Executive Director of Amnesty International.

WILLIAM SCHULTZ, EXECUTIVE DIRECTOR OF AMNESTY INTERNATIONAL, DARFUR PANEL AT THE KENNEDY LIBRARY, December 9, 2004 (from Kennedy Library transcript)
“Let me just conclude with this thought. You know, we often hear proudly sloganized at every opportunity the two words, “Never again.” Well, were we to draw analogies between Darfur today and the Holocaust, we would by now in Darfur be way past the Vanzi (?) Conference. We would be way past the Kristallnacht. We would be way past the initial deportations, way past SS thuggery, way past the holding camps, way past the first 40,000 deaths. About the only thing that remains in Darfur is full-scale Auschwitz. And until we stop this carnage, anyone, any one of us who has shouted ‘Never again’ ought to be too embarrassed to ever shout it again.”

While William Schultz’s statement references genocidal acts committed by Germans during the Holocaust, he does not state that the crimes committed in Darfur were in fact genocide as defined by the 1948 Convention. And while I was under the belief that Amnesty International has issued statements stating a belief that genocide has been committed in Darfur, I was unable (through a recent Google searches) to find a site where Amnesty International made that claim.

But at any rate, Amnesty International states that it “is a worldwide movement of people who campaign for internationally recognized human rights for all.” And even if Amnesty International does maintain that genocide has occurred in Darfur, I maintain that the UN, the EU and the AU have the greater credibility in this matter.
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Eric quotes Alex for a second time:
ALEX DE WAAL (at the same event at the Kennedy Library):
“We’ve heard the crisis, the conflict, and the mass killing in Darfur described as genocide, and I believe that’s correct. I think the comparison with Rwanda and the Holocaust is less exact than the comparison with southern Sudan and the Nuba Mountains. A colleague of mine in London, John Rowe (?) [sic: Ryle], in response to, I forget who it was who had called Darfur ‘Rwanda slowed down,’ said, ‘No, this is actually southern Sudan speeded up.’”

In light of Alex’s post: “Genocide by force of habit?”, I believe that there is no need revisit the issue of whether Alex believes that genocide, as defined by the 1948 Convention has in fact occurred in Darfur. However, a second attempt by Eric to misrepresent Alex’s position on this point tends to make me believe that this is no mere oversight on Eric’s part.
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Next, Eric quotes from a 2006 report by Physicians for Human Rights:

REPORT FROM PHYSICIANS FOR HUMAN RIGHTS (January 2006):

New Report on Genocide in Darfur, Sudan, Documents Systematic Destruction of Livelihoods of Three Villages in Unprecedented Detail:
“Assault on Survival: A Call for Security, Justice and Restitution”

“We…saw that the Janjaweed had burned everything–fields with crops, houses, shops. Everything. There was nothing to salvage.”
–35-year-old mother from Darfur

Just days before Sudanese leaders responsible for orchestrating ongoing acts of violence in Darfur host the African Union summit in Khartoum, a new report from Physicians for Human Rights (PHR) reveals, in unprecedented detail, the underreported catastrophic elimination of traditional livelihoods in Darfur, Sudan. The report, “Assault on Survival: A Call for Security, Justice and Restitution,” spotlights the obliteration of the means of survival and the way of life in three villages by the Government of Sudan (GOS) and its proxy militia, the Janjaweed.

During three trips to the region between May 2004 and July 2005, investigators randomly surveyed dozens of survivors from the villages of Furawiya, Bendisi and Terbeba and documented–with hundreds of photographic images as well as hand-drawn maps–compelling evidence of attacks on lives and livelihoods that PHR has assessed as genocidal.

“’Killings, rape, torture and other heinous crimes against non-Arabs in Darfur are well-documented,’ said PHR investigator and report author John Heffernan. “But PHR’s in-depth investigation shows that the GOS and the Janjaweed, have in a systematic way attacked the very survival of a people by destroying property, livestock, communities and families, driving victims into a terrain unable to sustain life, and then repeatedly obstructing humanitarian assistance, their only lifeline.”

The report also illuminates and analyzes an overlooked clause in the Genocide Convention which defines the crime as including deliberate infliction on a group ‘conditions of life calculated to bring about its physical destruction in whole or part.’ The PHR investigators documented the precariousness of life in the vast no-man’s land beyond the network of villages and transport. One refugee told PHR investigators that she overheard her attacker say, ‘Don’t bother, don’t waste the bullet, they’ve got nothing to eat and they will die from hunger.’”

According to their website: “PHR was founded in 1986 on the idea that health professionals, with their specialized skills, ethical duties, and credible voices, are uniquely positioned to investigate the health consequences of human rights violations and work to stop them.” I am certain that their members have witnessed grave crimes, but I would question whether they understand what the crime of genocide is – as defined by the 1948 Convention.
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Eric quotes law professor Jennifer Trahan who makes a strong assertion that that genocide has taken place in Darfur:

JENNIFER TRAHAN, “Why the Killing in Darfur is Genocide,” Fordham Law Review, May 2008: currently the most sustained and compelling analysis of Darfur and the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide (and particularly persuasive on the issue of “genocidal intent”).
[PDF version of this article is available at this link.]

Professor Trahan is an Independent Consultant & Expert in the field of International Justice. She has served as Iraqi Prosecutions Consultant for the International Center for Transitional Justice, Defense Consultant for the Sierra Leone Special Court, and both Counsel and Of Counsel to the International Justice Program of Human Rights Watch.

The flaw in Jennifer’s analysis is found in the very first paragraph of her article where she states:

“The world has shamelessly stood by as the atrocities committed in Darfur, Sudan have occurred over the last several years. While 200,000-400,000 have been killed and an estimated 2.5 million displaced, all based on tribal ethnicity, pledges of “never again” made both after the Holocaust and the Rwandan genocide, have once again rung hollow.

But the UN Commission found:

“Generally speaking, the policy of attacking, killing and forcibly displacing members of some tribes does not evince a specific intent to annihilate, in whole or in part, a group distinguished on racial, ethnic, national or religious grounds.”

Neither the UN, nor the EU nor the AU has found that the crimes were “all based on tribal ethnicity;” as asserted by Professor Trahan. And I would question the quality of Ms. Trahan’s scholarship for making such a statement. Indeed if the crimes were all based on tribal ethnicity there could possibly be a claim for the existence of genocide, but that is not the case. If the UN Commission is to be believed, Ms. Trahan did not get her facts correct; and it would be of interest to me to learn where she obtained her incorrect facts.

Also, in regard to Ms. Trahan, Eric cites among her credentials that she is both “Counsel” and “Of Counsel” to the International Justice Program of Human Rights Watch. I was a member of the Africa Advisory Committee of Human Rights Watch from 2006 until 2010, and at no time during my tenure on that committee am I aware of Human Rights Watch asserting that genocide had taken place in Darfur. Eric did not state that Ms. Trahan’s position was that of Human Rights Watch, but I bring up this point just to avoid confusion lest the reader attribute Ms. Trahan’s view to Human Rights Watch.
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And for a third time, Eric quoted Alex:
ALEX DE WAAL AND JULIE FLINT, from “Darfur: A Short History of a Long War,” page 39:
“But…[the] ultimate objective [of the ‘Arab Gathering’] in Darfur is spelled out in an August 2004 directive from [Janjaweed paramount leader Musa] Hilal’s headquarters: ‘Change the demography of Darfur and empty it of African tribes.’ Confirming the control of [Khartoum’s] Military Intelligence over the Darfur file, the directive is addressed to no fewer than three intelligence services—the Intelligence and Security Department, Military Intelligence and National Security, and the ultra-secret ‘Constructive Security,’ or Amn al Ijabi.”

I usually try to refrain from employing American idioms when I address an audience from various nations and backgrounds. But I can not resist the temptation to make reference to a saying in American baseball: “Strike Three – You’re Out!
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Finally, Eric posted several “voices” from Darfur. These statements certainly point out the tragedy that has taken place in Darfur, but they in no way establish the legal requirements necessary to assert that genocide has taken place there. Again, I choose to rely more on the Commissions of the UN, the EU and the AU rather than the reports of Amnesty International, the New York Times or even IRIN with regards to the existence of genocide.

The UN Commission met with many representatives of both sides of the conflict in Khartoum, North Darfur, South Darfur and West Darfur. They met with representatives from SMA and JEM. They visited 29 towns and cities, met with people in eight camps, and four detention centers. They also talked to relevant persons in Eretria, Ethiopia and Chad. [all listed on pages 166-176 of the Report]. I would be interested in knowing if those persons in the U.S. that claim to be aware of the existence of genocide in Darfur have done as extensive research; or are they relying on what they heard from others?

If the reader will indulge me just a bit longer, I would like to relate some personal experiences that may help explain why I am so pained by misrepresentations such as the type I believe Eric is using.

When I was a young child, I learned to read the newspaper in the southern U.S. during what we call the Civil Rights Era. African Americans owned few newspaper companies so most of the accounts about the African American struggle for equality that showed up in Southern newspapers were printed by those who opposed racial equality. Daily I would read about atrocities committed by African Americans – atrocities that I knew did not happen. The people who were being accused of despicable crimes were often people that I knew, and I was often aware of the events that were misrepresented in the newspapers as heinous acts. I knew that the facts that were being reported were not being reported because they were true, but because they would paint a certain picture – they were fictions with a literary flourish meant to influence the minds of people. To this day, I get a bitter taste in my mouth when I see facts being misrepresented in order to distort reality. And while I have nothing personal against Eric, I am deeply troubled by what seems to me to be his intentional distortions of the facts.

I will close by saying that I abhor the violence that has taken place in Darfur and I believe that the international community must do all that it can to stop that violence and improve the quality of life for the people of Darfur. But I am not impressed by those who have the hubris to claim to be fully aware of the situation, facts, events and conditions in Darfur without having had the opportunity to conduct extensive observations and who are quick to distort facts and legal principles in order to satisfy their own sense of justice. While I have been to Sudan, but I have not been to Darfur, so I do not claim to have any direct knowledge about what has happened there. But thirty two years ago, when I was the Managing Editor of Yale Studies in World Public Order [later named “The Yale Journal of International Law] I learned that law [and particularly international law] is not ‘cut and dried” nor “black and white” but I learned that there are legal principles that can guide us and that those principles should be adhered to if we are to hope to achieve a better world. This “Wild West” attitude about the human rights crisis in Darfur that boils everything down to the “good guys vs. bad guys,” and “cowboys vs. Indians” is an approach to this violent conflict that does more damage than good. We have to be through in our fact finding, critical in our analysis and abjure the tendency to carelessly cast players in the roles of heroes or villains such as we find in literary dramas.

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16 thoughts on “Eric Reeves’ Mischaracterization of Facts about Darfur

  1. I’m sure that Eric is more than capable of defending himself, but Mr. Blayton’s incoherent comments on Justice Africa deserve a response. He claims that “Justice Africa’s statement shows a lack of understanding of the law in this instance,” but he never identifies what, exactly, Justice Africa got wrong. He seems to believe that Justice Africa doesn’t realize that genocide requires specific intent, which is why it asserts — contrary to the Commission of Inquiry — that genocide took place in Darfur. But there is nothing in Justice Africa’s statement to support that claim. The 1948 Genocide Convention explicitly requires specific intent: “genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” And there is no disagreement among states or scholars — literally none — that specific intent is a necessary element of genocide. In that regard, the US “understanding” is completely uncontroversial. Justice Africa cites the Genocide Convention in its claim about genocide in Darfur, so on what basis does Mr. Blayton believe that Justice Africa does not believe that specific intent is required for genocide?

    One other point: Mr. Blayton’s insinuation that Americans are not permitted to opine on questions of genocide because the US has entered a reservation to Article IX of the Genocide Convention is truly pathetic — and beneath the dignity of this blog. Put aside that 125 other states do not accept the compulsory jurisdiction of the ICJ. Put aside that numerous other countries have made the same reservation to Article IX, including Argentina, China, India, Malaysia, the Phillippines, Rwanda, and Venezuela. The idea that individuals are disqualified from taking legal positions (at least ones that Mr. Blayton doesn’t like) beacause they are a particular nationality is the worst form of essentialism imaginable.

  2. Well said, Oscar H. Blayton. It would be interesting to know for sure why Eric Reeves intentionally distorts the facts. I find it difficult to believe that he thinks everyone (except himself, of course) is stupid. It worries me that he is advising the ICC.

  3. I believe that when Mr Blayton accused Justice Africa of lack of understanding of the law he was alluding to two key issues: the first is the difference between specific and basic intent—although I’m not sure if this is relevant at all to countering Justice Africa’s June 2004 claim that, if the provisions of the 1948 convention were strictly applied to the conflict in Darfur, it would definitely fall under the definition of genocide. Justice Africa’s statement was obviously referring to the main treaty and not to the United States’ instrument of ratification of the treaty. The second issue was whether basic intent (or any intent at all) to commit genocide could be found in Darfur. Mr Blayton offers a critique of Justice Africa’s seemingly uncompromising position that genocide has occurred in Darfur, and contrasts it with the conclusion reached by the International Commission of Inquiry that acts enumerated in Article II of the 1948 convention have been committed, but that the “intent to destroy” required by Article II to satisfy the definition of genocide is missing.

    In that respect, I believe that Mr Blayton’s posts clearly identifies what he thinks Justice Africa got wrong, though I’m still not sure why he brought the issue of the United States’ understandings into a discussion of Justice Africa’s position on the law.

    There seems to be a bit of confusion as to whether “specific” intent is a higher threshold than mere intent. Before reading Blayton’s post, I personally wasn’t aware of any difference: I hope the legal scholars here could clarify whether this is mere semantics or whether there is a technical difference that would actually entail a more rigorous test. Nevertheless, correct me if I’m wrong but the fact that the US included an understanding in its ratification of the treaty that sets apart “intent to destroy” from “specific intent to destroy” suggests, perhaps, that there is some difference/disagreement between states or scholars that had to be clarified?

    I assume that the reason that every once in a while you hear someone saying something to the effect that Americans are not permitted to comment on the genocide question or on ICC proceedings is because, perhaps, there is a common perception that the US will end up being the executor of international justice (perception or hope from groups lobbying the US government to intervene in Darfur), when it has not ratified the Rome Statute (and has actually passed acts that amount to an assault on the Rome Statute and the ICC—such as the American Service-members’ Protection Act, cheekily referred to as “Hague Invasion Act”)–this is just an attempt at explaining this attitude, and not a justification for it. I agree with Kevin that to insinuate that Americans—even in their individual capacity—are not allowed to partake in this debate at all is completely unacceptable, and not very different from insinuations made by some people that anyone who vehemently opposes the assertion that genocide has been committed in Darfur must be politically aligned with the NCP. Both are acts of essentialism and are exclusionary and unacceptable. I come from a country that frequently commits flagrant violations of international law, and I work in a legal aid office. If I would only be allowed to express opinions that more or less conform with the position of my government I would find myself out of a job in no time!

    Thanks.

    ps. One more thing that I found quite interesting: the fourth understanding included in the United States’ ratification of the 1948 convention states that:

    “(4) That acts in the course of armed conflicts committed without the specific intent required by article II are not sufficient to constitute genocide as defined by this Convention.”

    It might sound a little redundant, given that any acts committed without specific intent—according to the convention and to the US’s understanding of the convention—would not constitute genocide. But setting apart acts committed within the context of armed conflicts is interesting, and raises some questions about the context in Darfur.

  4. In response to Kevin Jon Heller’s post, my reading of Mr Blayton’s post is that he does not try to identify what Justice Africa got wrong because it is not on the basis of anything to do with their argument per se that he disagrees with them. Rather, his reason for disagreeing with them (or rather disagreeing with Eric referencing them) is that they are “an advocacy organization” and not “an accepted legal authority”.

    I would be interested to hear from Mr. Blayton if this was indeed his point. And if it is, then I would ask him why, if not being an accepted legal authority discounts Justice Africa, wouldn’t the same apply to the EU, AU, or even Alex for that matter – since none are an “accepted legal authority” either.

    Thanks, Bec

  5. Mr. Blayton evidently confuses the length of his response with the cogency of his argument. His own example here suggests the foolishness of such confusion. I won’t be drawn into an extended discussion, given the quality and ad hominem character of the previous responses to my posts on this blog. I will point to a couple of assertions that seem to me especially foolish, and entirely in character with Mr. Blayton’s broader effort.

    Mr. Blayton accuses me of distorting Alex de Waal’s views on genocide in Darfur. But if he had bothered to read my second post under the blog heading in question (“What is the ICC After?”), he would have found me saying about findings and determinations of genocide, by individuals and organizations: “Qualifications might be made by all, other related points were certainly articulated with these comments, and the views of individuals and organizations may have changed in the interim.” What part of “and may have changed in the interim” do you not understand, Mr. Blayton? I am well aware that Mr. de Waal has changed his views, apparently on the basis of a more “mature” understanding of the 1948 Convention. But there was a time—before the genocide debate became so fully politicized—when Mr. de Waal was unambiguous in his statements that what was occurring in Darfur was genocide. Mr. Blayton, despite his sycophantic tendencies, can’t simply wish this away.

    Nor can he wish away or render irrelevant the finding of Justice Africa. Mr. Heller does an excellent job in his post here of pointing out the absurdity, indeed incoherence of Mr. Blayton’s effort.

    Mr. Blayton declares at one point that “I am certain that their members [of Physicians for Human Rights] have witnessed grave crimes, but I would question whether they understand what the crime of genocide is – as defined by the 1948 Convention.” This is sheer presumption, and deeply misinformed. I know this organization well and am quite sure many who are part of the PHR staff and board know a great deal more about the 1948 UN Convention than Mr. Blayton. I might instance in particular Justice Richard Goldstone, who reviewed the genocide finding of PHR.

    Mr. Blayton uses the finding of the UN Commission of Inquiry (COI) for Darfur as if it were a text with unassailable authority. In fact, I and others believe the document to be hopelessly compromised politically, and egregiously in error in its exceedingly short section on “genocidal intent.” Mr. Blayton has evidently foregone the exercise of reading my lengthy critique of this report, and thus responds to none of the arguments I make in it:

    Idea: October 14, 2005 — Vol.10, No.1

    Part 1: http://www.ideajournal.com/articles.php?id=38

    Part 2: http://www.ideajournal.com/articles.php?id=39

    But Mr. Blayton has no hesitation in declaring, simply on the basis of the UN COI report, that Ms. Jennifer Trahan is in error because her conclusions differ from those of the COI. Mr. Blayton seems indeed not to be able to distinguish fact from analytic conclusions: “If the UN Commission is to be believed, Ms. Trahan did not get her facts correct.” But the UN Commission provides not merely facts, but interpretations of those facts, as has Ms. Trahan. Her critique of their interpretations cannot be dismissed as factual error unless those errors are demonstrated, a task Mr. Blayton has not begun to undertake. Indeed, it is difficult to believe that Mr. Blayton has a firm understanding of what is usually meant by the word “facts.”

    A final point before letting Mr. Blayton get on with his inevitable effort at a reply. He cites, as yet another example of my “erroneous” characterization of Mr. de Waal:

    “ALEX DE WAAL AND JULIE FLINT, from “Darfur: A Short History of a Long War,” page 39:

    “But…[the] ultimate objective [of the ‘Arab Gathering’] in Darfur is spelled out in an August 2004 directive from [Janjaweed paramount leader Musa] Hilal’s headquarters: ‘Change the demography of Darfur and empty it of African tribes.’ Confirming the control of [Khartoum’s] Military Intelligence over the Darfur file, the directive is addressed to no fewer than three intelligence services—the Intelligence and Security Department, Military Intelligence and National Security, and the ultra-secret ‘Constructive Security,’ or Amn al Ijabi.”

    “Strike Three – You’re Out!” gloats the self-satisfied Mr. Blayton, with this third mention of Mr. de Waal. But how is such citation from his co-authored book, a passage in which the word genocide is not mentioned, a “strike” against me or my argument? Is the suggestion that this directive was not actually sent? and to three of Khartoum’s intelligence services? Does he doubt its provenance with Musa Hilal? Perhaps Mr. Blayton means to suggest that because Mr. de Waal no longer believes genocide has occurred in Darfur the evidence he has adduced in this particular book is no longer relevant to the issue. Perhaps he means to suggest that the directive has no bearing on a genocide determination. Either way, it is hard to imagine greater foolishness or a more disabling demonstration of intellectual incompetence.

    Eric Reeves

    http://www.sudanreeves.org

  6. I don’t think Mr. Blayton is criticizing Ms. Jennifer Trahan factual statements. He is clearly arguing about Ms. Trahan’s analytical framework, the same way he is arguing about your ill-intentioned campaign against the greater Sudan. Sycophantic you say? That, in itself, suggests your praise to Alex.

    At any rate Dr Reeves, you will find yourself a lonely “intellectual” for the tide is swinging on the side of reason. This continual harping on genocide will only serve to reflect poorly on the international institutions that you wish will prosecute the soon to be nationally elected President, as it does in reflecting poorly on the “cogency” of your views. Try as they must to argue and convince you, you just won’t get it. There is an essentialism to your nature.

    -Jamal.

  7. Mr. Reeves makes some very valid points. The genocide debate is becoming increasingly internecine, and is proving to be extremely polarising: scholars and activists on either side are practically ganging up on each other. There are some names that used to make some very valuable contributions to the blog in the past, but are now only seen when one of the people who are on their same side of the political divide is under attack. On the other hand, Mr Reeves is correct to point out Mr Blayton’s mistake in criticising him simply because he had cited De Waal three times: another symptom of the increasingly worrying gang mentality. I would hate to see those who disagree with De Waal’s political position refusing to cite his scholarly work on Sudan, simply because “he belongs to the other camp”. I am already seeing this happening on some other blogs (Sudanese politics is so divisive that some people simply refuse to listen to what anyone who holds an opposing point of view has to say, no matter how much credence that person might have). This is a worrying trend.

    Prof. Reeves: you refuse to be drawn into lengthy discussions here, citing the “quality and ad hominem character” of some of the responses to your posts on this blog. I wish you would reconsider that position: for one thing, some of your past comments and responses have had an ad hominem character themselves (although I did appreciate the sarcasm). For another, although the discussion occasionally descends into personal attacks, I do believe the quality of the debate here is unmatched elsewhere. This blog was made famous by the fact that it had contributions by the sharpest minds from many different points across the political continuum: it is rare to find people like yourself, Eddie Thomas, and Ghazi Salahudin–to name but a few–getting published in one space. It is for that reason that I used to frantically refresh this page looking for the latest comments and responses. It would be a shame to see that gone, and I hope to see you (and others) contributing posts under your name again rather than just responding to criticism in the comment section.

    Karim

  8. I would like to thank Prof. Heller for his constructive criticism. It is always helpful to know who is unable to follow your argument and for what reasons.

    First I would like to point out to Prof. Heller that my post was in response to Eric’s comment regarding Justice Africa’s comment. For that reason, I quoted Eric’s excerpt from Justice Africa in its entirety. My attempt to search for the source of Eric’s post led me unsurprisingly to Sudanreeves.org, given Eric’s predilection for “auto-citation.”

    On one of Eric’s pages titled: “Justice Africa (UK) declares “there is no doubt” that genocide is occurring in Darfur, June 21, 2004” http://www.sudanreeves.org/Sections-article188-p1.html I found the quoted excerpt in its entirety.

    In the body of this blog post, at the Sudanreeves site, Eric wrote:

    “Justice Africa (UK) has produced regular analyses of the “Prospects for Peace in Sudan” for a number of years. Though occasionally misguided in assessing US Sudan policy and politics, the organization has some of the world’s strongest Sudan research capacity, especially on northern Sudan. In speaking on June 18, 2004 to the question of whether Khartoum’s conduct of war in Darfur constitutes genocide, Justice Africa declared unambiguously, explicitly referencing the 1948 UN Genocide Convention;

    ‘there is no doubt that the answer is yes’
    (“Sudan: Justice Africa Analysis,” http://allafrica.com/stories/200406180714.html ).”

    When I attempted to access the page cited by Eric at his blog, I was not taken directly to the source of he cite, so my subsequent comments were based solely upon what Eric had posted in the “What is the ICC After?” thread.

    Since Prof. Heller’s comments to my posting I have found a portion of a May 19, 2004 statement by Justice Africa that is a little more detailed than Eric’s excerpt and which can be found at: http://www.africafocus.org/docs04/just0406.php

    “22. Is the Darfur conflict genocide? If we strictly apply the provisions of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, there is no doubt that the answer is yes. The definition of ‘genocide’ in Article II of the Convention is ‘acts committed with the intent to destroy, in whole or part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.’ The numbers of killings may not yet come close to those perpetrated in Rwanda or Nazi Germany, and the entire destruction of the targeted ethnic groups does not seem in prospect, but these extreme manifestations are not legally necessary for a crime to count as genocide.”

    I shall make the assumptions here that the May 19, 2004 Justice Africa statement varies little from the June 14, 2004 statement and that Justice Africa did not change its position in that short timeframe.

    Justice Africa supports its stated position by citing the definition of “genocide” from the 1948 convention. Then it states:
    “The numbers of killings may not yet come close to those perpetrated in Rwanda or Nazi Germany, and the entire destruction of the targeted ethnic groups does not seem in prospect, but these extreme manifestations are not legally necessary for a crime to count as genocide.”

    Justice Africa rightly stated that while the entire destruction of the targeted ethnic groups in Darfur did not seem “in prospect”, such a manifestation was not legally necessary for the crime of genocide to have been committed. This position is accordance with the opinions of most jurists and the International Commission of Inquiry on Darfur made note of that fact in its report.

    “492. As clarified by international case law, the intent to destroy a group “in part” requires the intention to destroy “a considerable number of individuals” or “a substantial part”, but not necessarily a “very important part” of the group. Instances mentioned in either case law or the legal literature include, for example, the intent to kill all Muslims of Bosnia-Herzegovina, or all Muslims living in a region of that country, or, for example, to destroy all the Jews living in Italy or the Armenians living in France.”
    http://www.un.org/News/dh/sudan/com_inq_darfur.pdf (see page 124 of the report)

    Citing the 1999 decision of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Goran Jelisić case, the Commission stated that while the intent to destroy “a considerable number” of individuals or “a substantial part” of a group was necessary for the crime of genocide, it was not necessary for there to be an intent to destroy a “very important part” of the group. [See footnote 174 of the Commission’s Report] So, clearly the intent of total annihilation of a group is not required for genocide. Nor are numbers close to those found in the cases of Rwanda or Nazi Germany requisite. But that is not the point on which the question of whether genocide occurred in Darfur turns.

    As the Commission correctly stated in its Report: “[T]he Genocide Convention of 1948 and the corresponding customary international rules require a number of specific objective and subjective elements for individual criminal responsibility for genocide to arise.”

    The Objective element requires two things: (1) that the prohibited act of killing, etc. took place and (2) that the targeted group be national, ethnic, etc. (See Paragraph 491 of the Report)

    The Subjective element also is comprised of two things: (1) that there be a mens rea to commit the prohibited act of killing, etc. and (2) that there be an aggravated criminal intention (often referred to as “dolus specialis” and special intent) to destroy, in whole or in part, the group as such. (See Paragraph 491 of the Report)

    But the Special Commission warned that dolus specialis should not be confused with “motive” and motive can not be substituted for dolus specialis in order to find that genocide occurred. Motive is “the reason why” something occurred and does not equate to “intent.”

    Perhaps this concept can best be illustrated by the words of the Commission itself.

    “493. Of course, this special intent must not be confused with motive, namely the particular reason that may induce a person to engage in criminal conduct. For instance, in the case of genocide a person intending to murder a set of persons belonging to a protected group, with the specific intent of destroying the group (in whole or in part), may be motivated, for example, by the desire to appropriate the goods belonging to that group or set of persons, or by the urge to take revenge for prior attacks by members of that groups, or by the desire to please his superiors who despise that group. From the viewpoint of criminal law, what matters is not the motive, but rather whether or not there exists the requisite special intent to destroy a group.”
    http://www.un.org/News/dh/sudan/com_inq_darfur.pdf (see page 125 of the Report)

    And as the President of the International Court of Justice, H.E. Judge Rosalyn Higgins, stated to the press on February 26, 2007 in her statement regarding the “Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)”:

    “It is this specific intent, or dolus specialis, that distinguishes genocide from other crimes.”
    http://www.icj-cij.org/court/index.php?pr=1898&;pt=3&p1=1&p2=3&p3=1

    The Commission found that the specific intent (the “dolus specialis”) was not present in Darfur. And without the necessary specific intent, the crime, as defined by the 1948 Convention, was not there. And this was stated in the Report. So, I stand by my statement that “Justice Africa’s statement shows a lack of understanding of the law in this instance,” because they make the assertion that the crime has taken place in the absence of any proof of the necessary “dolus specialis.”

    The point that I was trying to make with my reference to the understanding posited by the United States to the 1948 Convention was that the United States specifically said that it wanted “Specific Intent” to be a requirement of the crime. But now that three very credible investigations (by the UN, the EU and the AU) have all found that the specific intent (or dolus specialis) was not present. The Representatives of the United States and certain other who do not like the findings of those three very credible investigations want to say that genocide took place in Darfur nevertheless.

    To add one more thing, the United States in its fourth “Understanding” to the 1948 Convention stated: “(4) That acts in the course of armed conflicts committed without the specific intent required by article II are not sufficient to constitute genocide as defined by this Convention. “
    http://www.preventgenocide.org/law/convention/reservations/

    If the evidence does not support the existence of specific intent (dolus specialis), and its existence is necessary element of the crime, how can one claim to understand the law and assert that a crime has been committed absent its elements?

    In regard to Prof. Heller’s other point, I hope that does understand that I was born in the United States and my permanent residence has remained here my entire life. That being said, it is true that many nations noted Reservations to the 1948 Convention http://www.preventgenocide.org/law/convention/reservations/
    But it is the moral argument that I make her, not the legal one. It is not an obscure fact that the United States does not appear to intend to be subject to international criminal tribunals. And it makes for an odious hypocrisy when my fellow countrymen shout for “justice” in forums which they themselves will not abide.

    Again, I would like to thank Prof. Heller for his comments; for it is not often that I am afforded the opportunity to lecture a Professor of International Law of his standing. And I will be happy to entertain any other questions or comments that he may have.

  9. Karim,

    Mr. Blayton’s attempt to explain the difference between basic and specific intent is incoherent and misleading, because it elides the difference between two very different meanings of specific intent. In the common-law context, the basic intent/specific intent distinction refers to the intent required by different kinds of material elements of crimes. When a crime only requires an act and not a result, we speak of it as a “basic intent” crime. Assault, for example, is completed by the act of unlawfully touching another person; it is irrelevant whether the act causes harm. Assault is thus a basic intent crime whose mens rea is satisfied as long as the defendant intentionally touched the other person (ie, the touching was not caused by accident, by reflex, during an epileptic fit, etc.).

    A specific intent crime, by contrast, is one that requires the defendant’s act to cause a particular result. Murder, for example, requires the act (shooting, stabbing, poisoning, etc.) to cause the death of a human being. To be guilty of murder, therefore, the defendant must have not only intended the act (basic intent), he or she must also have intended the result — it must have been her conscious object, purpose, or desire to cause the other human being to die. The latter intention is what the common law refers to as “specific intent.”

    The “specific intent” required by genocide, however, is completely different from the common law understanding of specific intent, which is why I and many other ICL scholars from common-law backgrounds refer to it as “special intent” instead — the literal translation of dolus specialis, which is the term used by most ICL scholars from civil-law backgrounds. Genocide’s special intent requirement does NOT apply to the material elements of the crime; it is an ADDITIONAL mens rea requirement that transforms the underlying criminal act from an “ordinary” domestic crime into the international crime of genocide.

    Consider, for example, the prototypic genocidal act: killing members of a protected group. A defendant must actually have three different mens reas to commit genocide by killing, two that apply to the material elements of genocide and one that applies to the crime as a whole. First, there is the basic intent required for the act that causes the death of the protected individuals — the defendant must not have killed them accidentally, by reflex, etc. Second, there is the specific intent required for the death of the protected individuals — the defendant must have intended to kill them; killing them recklessly or negligently does not suffice. Those are the two mens reas that apply to the elements of the crime. Then, on top of those two mens reas (basic and specific intent), there is the general special intent requirement — that the defendant intentionally killed the protected individuals because he or she wanted to destroy the protected group of which they are members in whole or in part. In this context, the special intent requirement of genocide is closely akin to motive, which is normally not required for criminal responsibility. The defendant must not kill the protected individuals randomly or for no reason; he or she must kill them because of their membership in the protected group.

    Genocide is a very complicated crime. It’s unfortunate that Mr. Blayton has such a tenuous understanding of it.

  10. Bec,

    I agree with you. Which is why Mr. Blayton needs to avoid making claims like “Justice Africa’s statement shows a lack of understanding of the law in this instance.” People in glass houses and all…

  11. Oscar,

    I apologize for the rather intemperate tone of my comments — and I appreciate your gracious response. We obviously disagree about the situation in Darfur, but I should have been more constructive in my criticism.

    I would insist, though, that the COI, EU, and AU rejection of genocide do not mean that Justice Africa misunderstands the law. They simply disagree with them and you about the inferences that can be legitimately drawn from the evidence. We need to take the COI and EU seriously (I don’t think the AU is credible on anything Darfur), but they do not end the debate. There is a legitimate case to be made for genocide notwithstanding their positions.

  12. It appears to me that there are three ongoing threads of discussion woven throughout this exchange, two explicit, and one implicit.

    1. A debate about the appropriate definition of genocide, as found in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. If Mr. Blayton were to agree with Professor Heller’s latest explanation, would it be correct to say that the matter would be settled?

    2. A nascent debate about the credibility of the evidence and analysis appearing in the reports of finding by the African Union, European Union, and United Nations with respect to the question of genocide. it is apparent that Mr. Blayton, Professor Reeves, and Professor Heller are making different judgments with respect to the validity of those findings.

    3. The unasked, but implicit question, is, of course, “What is the purpose of this argument?” Mr. Blayton’s original remarks, posted elsewhere, implied that those who insist that genocide has occured in Darfur are trying to shoehorn a particular, invalid set of opinions into legal dress in order to bring about international action in Darfur. Yet Mr. Blayton himself believes that the world must act to stop the unfolding tragedy in Darfur. Mr. Balyton also invited Americans to take a long, hard look in the mirror if they are going to demand that the U.N. or other international bodies take legal or other action in the name of treaties or conventions that they may not believe should be applied to themselves. This is a fair point, although, as Mr. Heller and others have argued, it should not, and does not, preclude Americans, whether or not they take the view described by Mr. Blayton, from making valid analysis of legal issues. Therefore, is it enough to say that Mr. Blayton’s remarks were a call for consistency, but that the disputants in this thread actually agree that horrific crimes are taking place, and that President Omar al-Bashir is part-author and enabler of these crimes whether or not he intends to eliminate all black Sudanese or simply to conduct a harsh counter-insurgency campaign?

  13. Auschwitz, Darfur IDP camps and children’s drawings.

    Here we ago again, ‘Ocambo’ has again compared the Sudanese government of President Omar al Bashir with the rulers of the Third Reich by equating the latter complicity in the Shoah of European Jewry and the attempted genocide of European Roma people with the former government’s alleged responsibility for the death of members of “specific ethnic groups” in Darfur, ie (black) ‘Africans’ to use journalistic shorthand, to the delight of the activists and many ‘advocates’.

    To celebrate his victory on 3 February in his appeal against the International Criminal Court’s First Trial Chamber rejection last year of his attempt to bring an indictment for genocide against al Bashir, Luis Moreno-Ocampo (LMO) has been quoted in the world’s media that that he accused the Sudanese President of keeping 2.5mln ‘refugees’ (supposed to be IDPs) from “specific ethnic groups in Darfur” in camps under “genocide conditions like a gigantic Auschwitz”.

    Correct me if I am wrong but was not Auschwitz the place where most people were sent to with a one way train ticket, certainly if one was Jewish or Roma, with only the possibility of temporary reprieve if one could perform some useful skills or tasks for the masters of the Third Reich?

    But in all seriousness the emotive but factual wrong language of LMO and his activist fan club throws up some pertinent questions not only about their true motives for their distortion of the true situation in Darfur, including during the bloody 2003/04 period, but also has serious consequences for the study of genocide in the history of man’s inhumanity against man, which seems to have escaped or is being deliberately ignored by LMO and his fan club.

    In effect by racheting up the true nature of what happened and is happening in Darfur LMO and his fan club are by equating Darfur IDP camps with Auschwitz in effect not only criminally diminishing the historical reality of the enormity that was Auschwitz and the Shoah but also as such they are in effect slurring the memory of the very victims and survivors of the Shoah in whose name they claim make the equation of ‘Darfur’ with the Shoah in the first place, as good as joining the ranks of the Holocaust deniers.

    Slightly less serious is LMO’s and fan club’s slur on the UN, its agencies and the ‘operational’ NGOs who are involved in the humanitarian relief effort for the IDPs in the camps, they are in effect accused of if not conniving at the “genocide conditions” in the IDP camps, then at least of standing idle by.

    While the UN and the ‘operationals’ have to answer the above slur, historians etc have to answer the historical and criminal slur of equating Auschwitz with the Darfur IDP camps. Kalma, Kass, Zam Zam, Abu Shouk, Dar es Salaam etc whatever they are, they are not Auschwitz, Sobibor or Treblinka, or for that matter Bergen Belsen, Sachsenhausen, Mauthausen, Dachau etc etc, or can they even be compared with the POW camps on the Burma ‘Railroad of Death’ and the civilian internee camps of the Third Reich’s Axis partner in the original ‘Axis of Evil’ Imperial Japan during WWII.

    LMO likes to compare himself with the prosecutors of the Nuremberg and Tokyo tribunals and seems to believe that he acts in accordance with their standards but he fails miserably, ignoring the standard they set but also what they did not set. Nuremberg and Tokyo were about illegal wars of aggression, something that seems to fit rather Messrs Bush and Blair, but they did grapple extensively with the definition of the ultimate responsibility and culpability in the final chain of command.

    And LMO may want to take note that while in fact Nuremberg did not had to deal with this question exhaustively as many figureheads in the Third Reich’s chain of command were already dead, often by suicide, from Hitler down or got away by committing suicide later such as Goering or Himmler, Tokyo was in effect ordered for political convenience sake not to investigate the responsibility and culpability of Emperor Hirohito under the instruction of the Supreme Allied Commander in the Asia-Pacific theatre General McArthur and US President Truman.

    Despite prima facie evidence that Hirohito as the head of state and his immediate court circles had to say the least knowledge of Imperial Japan’s war of aggression first against China and later against the European possessions in the Far East and were at least not unaware of genocidal orders to exterminate European and mixed Eurasian POWs and civilian internees as Japan’s defeat loomed, Hirohito was not only saved from prosecution, but he was allowed to continue to reign as this considered to be more political opportune.

    It seems that LMO and his activist fan club not only continue to believe they don’t have or want to bother about the historical facts of the Shoah, but also they continue to believe that they don’t have to or want to bother about the true facts of the insurgency and counter insurgency in Darfur.

    In the same week last week when Rob Crilly’s book ‘Save Darfur’ trying to deal with the activist myths was given a launch in London by the Royal African Society and an other by Arab Media Watch, one of the main members of the LMO fan club, the self styled ‘Advocacy’ NGO ‘Waging Peace’ stated in another public meeting that the children’s drawings of alleged incidents in Darfur during 2003/04 it had collected in Darfuri refugee camps in eastern Chad in 2007 (!) had been given to and accepted by the ICC as “contextual evidence” of the alleged genocide in Darfur.
    These drawings, some of which have words in French such as Les morts for the dead written on them so that there can no mistake that they show people who have been killed, claim ‘Waging Peace’ show clearly the “racial differences” between the aggressors, ie the ‘Arabs’, and the victims, ie the ‘Africans’, which also repeated the unsubstantiated claim that 400,000 people had died as the result of the conflict in Darfur continuing to be the “world’s worst humanitarian disaster”.

    For LMO and his fan club continue to ignore the historical facts of the Shoah, of the standards set by the Nuremberg and Tokyo tribunals, of the established facts of the Darfur situation and of the contemporary situation in neighbouring African countries such as Somalia and the DRC, is not only a criminal insult to the memory of the victims and survivors of the Third Reich and Imperial Japan, it does not advance one bit the cause of justice and peace for the people of Darfur of whom they claim to ‘advocate’ their interests.

  14. I apologize to Eric and everyone else for the length of my original posting, but much of its length was due to my incorporating Eric’s comments that were the subject of my post. And while I try to make my arguments as cogent as possible, I realize that not everyone will understand them or be convinced by them.

    Eric, I must admit, however, that I am at a loss with regard to what you termed my “broader effort” and would greatly appreciate some clarification.

    With regard to my reading your second post in the thread: “What is the ICC After?” It was my understanding that that post was directed towards the comments of Abd al-Wahab Abdalla and not towards mine. And at any rate, my concern was that in your first set of comments you posted excerpts from different statements by Alex without the courtesy of letting the reader know that these were no longer his views on whether genocide had occurred in Darfur as defined by the 1948 Convention. I found that first posting to be very misleading. And if you believe that I am playing Melas to Alex’s Dicaeogenes you are mistaken as it is my sense of fairness that you have offended in the way that you present your case.

    If Eric believes that it is a presumption to question someone’s (or in this case, some organization’s) understanding of an issue, then he will have to continue to believe that I am presumptuous, because I certainly do not intend to stop questioning when I believe questioning is warranted. And with regards to Eric’s statement that Justice Goldstone had reviewed the “findings” of the PHR, I assume he is referring to the PHR report that he quoted in his comments. That report: “Darfur, An Assault on Survival” is acknowledged by PHR as having been reviewed by (among other) Eric and Alex, as well as by Justice Goldstone. It is agreed that Alex does not now believe that genocide occurred in Darfur as defined by the 1948 Convention, although Eric still does. But this in no way indicates Justice Goldstone’s position on the matter at this time. And I for one would be greatly interested in knowing if the Justice still holds to that view.

    Eric has generously suggested that I read his critiques of the COI report, and I am sure that I will find them entertaining when I have the time to read them. But for now I believe my time would be better spent reading analyses and commentaries written by individuals who are trained in the law, and who (in my opinion) would be a little more balanced in their approach to the subject.

    If Ms. Trahan would like to discuss her article with me, I would be happy to do so. But I am not sure that Eric can adequately represent her in this matter. I contend that the COI was much more thorough in their fact finding than was Ms. Trahan. And therefore I am more comfortable in relying on the statement of fact by the COI than I am of any contradiction by Ms. Trahan. Secondly, it appears to me that Ms. Trahan in the opening statement in her article is trying to cite “motive” in order to establish that genocide has occurred in Darfur, rather than the requisite “dolus specialis.”

    I must apologize to Eric if I appeared to gloat in my post, and I will try to answer his question as to why I referred to his third citation of Alex deWaal as a third “strike.” As I said earlier, the manner in which Eric presented the literature in his comment (without commentary) certainly gave me the impression that he was using each of his selected excerpts as evidence to refute my position that genocide, as defined by the 1948 Convention, had not occurred in Darfur. Using Alex’s words to try to support the argument that genocide had occurred, when Alex now takes the position that genocide had not occurred, as defined by the 1948 Convention, had the appearance (to me) of being misleading. I counted each time that Eric used Alex’s words in this way as a “strike” against Eric. I do not doubt that Musa Hilal sent the subject directive, nor do I believe that the directive should be overlooked when making a determination as to whether genocide took place in Darfur. My position is that the manner in which Eric presented this information was misleading.

    Finally, I would like to thank Eric for his comments, as they illuminate his thinking in this matter and the manner in which he arrives at his opinions.

  15. Ingrid,
    Thank you for your kind words, I too have concerns over the relationship between Eric and the ICC prosecutor.

    Karim,
    My initial post should have been clearer and I hope that my subsequent posts have helped to eliminate the confusion created earlier. I did not know how deeply to go into explanations about the necessity for the existence of “a” specific intent in order to prove genocide. I tried to use a shorthand version of an explanation for this point and it fell short. And as Prof. Heller rightly pointed out, “specific intent” as a legal concept is a concept generally found in common law countries and a simple substitution of “specific intent” for “dolus specialitis” can create confusion in a situation such as this.

    Bec,
    You are correct in your understanding that I was not impressed by Eric’s referencing an advocacy organization in order to contradict the UN, the EU and the AU. The latter three organizations have been vested by sovereign nations with a certain degree of authority (including certain legal authority). Because of this, these organizations have a certain degree of legal competence [“competence” in this sense means the “right to take cognizance”] whereas Justice Africa has no such competence. I do not believe that I have cited Alex as a legal authority. However, I did object to Eric’s citing Alex’s quotes in a way that seemed to infer that Alex was in agreement with Eric’s position at this point in time.

    Karim,
    I did not object to Eric’s citing Alex’s statements. My objection was to what I saw as a mischaracterization of Alex’s position on the matter at this time, by using statements that Alex had made in the past – but that do not adequately represent his current views. I support the citing of any source as long as it is done in a clear and fair manner. Views that are well thought out and well articulated (whether you agree with them or not) are what give value to a blog such as this. And I hope to continue to meet opposition to my ideas and beliefs as they help me find my truths.

    Kevin,
    Did you mean that you have not heard anything to date from the AU on Darfur that you consider credible when you wrote: “I don’t think the AU is credible on anything Darfur”? I would disagree with that statement, but it would not seem unreasonable. But if you mean that the AU “can not be credible on anything Darfur,” such a statement would tend to reflect negatively on your objectivity. I hope that you meant the former, but you should not be surprised if people understand you to mean the latter.

    Matthew,
    I believe that you are correct when you state that Eric, Kevin and I disagree as to the validity of the findings of the COI, the EU and the AU. I also believe that we must all work to bring an end to the tragedy in Darfur (as well as in other places where such tragedies occur). I believe that the Government of Sudan has to accept significant responsibility for what has happened in Darfur. I also believe that if there had not been such an insistence on classifying the crimes in Darfur as genocide, the world community could have been much further down the road in finding a solution. I believe that those who were so insistent on characterizing the crimes as genocide were more of a hindrance than a help to finding a peaceful solution to the crisis in Darfur; and my major concern is to stop the suffering as soon as possible.

  16. To Oscar Blayton:

    You declare that, “I too have concerns over the relationship between Eric and the ICC prosecutor.” There is no relationship—none.

    You substitute feeble efforts at sarcasm for a willingness to understand my positions:

    “Eric has generously suggested that I read his critiques of the COI report, and I am sure that I will find them entertaining when I have the time to read them.”

    I’m also pressed for time, and can’t be bothered to rebut arguments in this post that are repetitive, redundant, or simply uncomprehending of the criticism that has been made of them.

    Eric Reeves

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