Genocide: On Law, Sociology and Accountability
John Hagan will receive The Stockholm Prize in Criminology on June 23, 2009, in Stockholm for his work on genocide in Darfur and the Balkans. Several commentators have posted reviews and discussions of John Hagan and Wenona Rymond-Richmond’s Darfur and the Crime of Genocide on this blog, and the authors will respond to each over the following days, beginning with a response to de Waal’s entry.
John Hagan and Wynona Rymond-Richmond respond:
We appreciate Alex de Waal’s point of departure in his comments on our book, namely, that the concept of genocide is a socio-legal fusion. De Waal’s point is that any successful prosecution in Darfur or elsewhere will require a socio-political theory of genocide. As he notes, NGOs have played a crucial role in blending victim testimonies with investigative field work in a form of socio-political journalism that makes extensive use of the international media and the internet to allege criminal responsibility for mass atrocities. David Scheffer’s thoughtful 2006 article in the Journal of Genocide Studies draws a related and crucial distinction between atrocity law and atrocity crime. He argues, as de Waal and we do, that we need to open analytic space between the” beyond reasonable doubt” standards of criminal law responsibility for mass atrocities on the one hand, and on the other hand the documentation and analysis of these atrocities. Legal standards have their obvious importance, but so do the collection of evidence and the development of explanations of atrocities. The legal standards of genocide too often have paralyzing effects, deflecting attention and justifying inaction in response to unfolding atrocities. Our book is a call for a criminology of genocide and mass atrocity that embraces social science standards of systematic documentation and probabilistic analysis as a way of building on the growing amount of work already done by other fields and disciplines, including law, noted by de Waal.
De Waal secondly calls attention to our treatment of genocide as a product of collective racial motivation and intent. This intent in Darfur is collective both in the sense that it has been organized through the state and undertaken by the state (i.e., the Government of Sudan and its military forces) with allied actors (i.e., Janjaweed militias), and in the sense that the attacks that have driven black African villagers into the internal displacement camps in Sudan were mobilized with an explicit racial motivation that was expressed in the frenzied shouting of racial epithets during attacks. Our approach is consistent with arguments offered by prosecutors about criminal organization and joint criminal enterprise [JCE] in arguing cases for genocide against Milosevic at the ICTY, and in the February 2007 application for warrants and charges issued by the ICC against a Sudanese deputy minister (Ahmad Harun) and Janjaweed militia leader (Ali Kushayb) for crimes against humanity in Darfur. De Waal notes that ICC Prosecutor Luis Moreno Ocampo seemed to use a different approach in this 2007 application than in his subsequent application for a genocide charge in July 2009 against Sudanese President Omar al Bashir. Rather than use the JCE approach, he argues Ocampo now made “the bold assertion that Bashir has indirectly perpetrated the crimes through others.” He notes that this is the kind of charge that puts the focus back on the individual rather than a collective process: “the kind of charge that might have been laid against Adolf Hitler or Josef Stalin.”
It is true that in publicly speaking about the subsequent Bashir application, Ocampo said “the decision to start the genocide was taken by Bashir personally,” and further that “Bashir publicly instructed the army to quell the rebellion and not to bring back any prisoners or wounded.” This is consistent with the need to establish individual responsibility in international criminal law. However, Bashir was also very clear when he spoke several months later, in October 2008, at a Council for Foreign Relations Symposium in New York City. Here he reemphasized that the larger Sudanese state apparatus was jointly engaged in the planning and implementation of the Darfur attacks alongside the Janjaweed militia. At this Symposium, Ocampo explicitly emphasized that the attacks “were the goal of an operation planned and implemented by the Sudanese apparatus, executed by the Army, the Air Force and Reservist Forces integrating tribal militias called “˜Janjaweed.'” Ocampo went on to explain how the Deputy Minister Harun who earlier played a central planning and implementation role was now appointed by Bashir as the Minister of State Humanitarian Affairs. Here he says “The Humanitarian Aid Commission, within his Ministry, works in close association with the intelligence and security apparatus” and that “As a consequence, 2.5 million people in the camps today are subjected to conditions of life calculated to bring about their physical destruction.” The joint criminal enterprise aspect of the Prosecutor’s case is still very much in play, and the criminological evidence and analysis in our book supports this argument. We agree with Alex de Waal’s larger point about the importance of this collective approach to the understanding of genocide.
De Waal’s third point is about the origins of the joint criminal enterprise approach. He notes that this approach was developed by Edwin Sutherland in his writings about white collar crime and only later applied in white collar criminal prosecutions. He argues that in the case of genocide the source is the Nuremberg Trials and that the conceptualization is less well developed. While we agree that this is partly true, it is also the case that the criminologist Sutherland’s doctoral student, Donald Cressey, went on to apply these ideas to organized crime, and they furthermore were incorporated for this purpose at Cressey’s urging in the American RICO statutes that were in turn used to ground the application of the joint criminal enterprise approach at the ICTY. De Waal sees two overlapping and competing paradigms of genocide resulting from Nuremberg and the Genocide Convention: “One is eliminationist mass murder according to a state plan and a racist ideology. The other is imperial conquest and subjugation of conquered peoples.” De Waal concludes that it is “a stretch” to apply either of these implied theories in Darfur. He argues that the localized and time specific intensity of the conflict argues against the requirement to establish specific genocidal intent, and that instead crimes against humanity were committed in the course of counterinsurgency. De Waal certainly is not alone in this view. For example, the 2005 U.N. Commission of Inquiry on Darfur concluded much the same. In doing so, this Commission also claimed there was no objective evidence of ethnic or racial difference between the conflicting groups in Darfur.
De Waal is revered for his work as an anthropologist with decades of field experience in Sudan. He speaks with an accumulated authority that commands extraordinary respect and attention. Still, we think our evidence shows his viewpoint and that of the 2005 U.N. Commisssion are open to debate. We develop the argument in our book that over decades the Sudanese government has socially constructed a racial division between local Arab groups and black African farmers and villagers. We present quantitative and qualitative evidence that the government forces joined with Janjaweed militas in collectively organized, systematic, and intentional attacks that created racial genocide in Darfur. Hundreds of thousands of black Africans were killed and raped in Darfur, and millions more were driven into internal displacement camps where they continue to be subjected to mistreatment. The elements De Waal questions as applying in his presentation of the two implied genocide theories – mass murder, state planning, racist ideology, conquest, and subjugation – all apply in Darfur. The Prosecutor’s evidence and our own – focusing first on the attacks that drove black Darfurians from their farms and villages and second on their continued destructive mistreatment in the camps – both make a powerful case for genocide that is consistent with the critical collective framing theory that we present in our book. Social science evidence supports the application of the law of genocide in Darfur.