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.
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.
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.
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.
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.
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.
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!
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.