Arguing Genocide in Darfur
Hagan’s and Rymond-Richmond’s Darfur and the Crime of Genocide contains shattering statements from direct witnesses and victims of the Darfur conflict. In addition, it provides interesting criminological perspectives on the crime of genocide. Yet where it tries to link the areas of its title, Darfur and the Crime of Genocide, it fails to convince.
Unlike Prunier’s book Darfur: The Ambiguous Genocide, this book, Darfur and the Crime of Genocide does not acknowledge the difficulty of classifying the situation in Darfur as a genocide. The introduction lists the questions that the book will address, ranging from “˜Why is the United States so ambivalent in its response to genocide?’ to “˜What can the science of criminology contribute to the understanding of genocide as a basis for responding more responsibly to this “crime of crimes?”’ The preliminary yet quite relevant question whether the situation in Darfur amounts to genocide is not explicitly posed. Perhaps this is a question for lawyers rather than criminologists, but the authors seem to argue and provide some evidence that the situation does amount to genocide. Presenting the witness statements and (controversial) statistical data, they at times link this evidence to elements of the crime of genocide as defined in the Genocide Convention. However, the book lacks a systematic assessment of the facts in light of the definition. The first chapter sets out nine “˜elements’ that the authors consider part of the genocidal pattern in Darfur, but these are not linked to the legal requirements. In the following section on “˜legal elements of genocide’ (less than two pages) it is simply argued that these elements are “˜variants’ on the “˜five legal elements’ of the legal definition of genocide. While it could indeed be argued that some “˜elements’ fulfil the actus reus of the crime of genocide, no attention is paid to the other legal requirements of genocide. For instance, while elsewhere in the book the authors do address the question of dolus (intent) and argue that perpetrators had the intent to do what they did (kill, impose difficult living conditions, rape, etc) and that it was directed against a specific group, they does not systematically examine whether there was at the state level (as opposed to individual perpetrators at lower levels) the specific intent to destroy this particular group, the dolus specialis unique to the crime of genocide.
Rather than presenting a nuanced judgment, the book reads like a(n improved) filing of the Prosecutor of the International Criminal Court, who has accused President Bashir of genocide. In some respects the book provides a better brief than the Prosecutor’s request for an arrest warrant, although the authors, frequently quoting the Prosecutor’s documents at length, do not make explicit where they deviate from his arguments. For instance, while Ocampo has contended that the situation in Darfur amounts to genocide because ethnic groups are being targeted, this book emphasises the racial element, an argument that the Prosecutor seems to have shied away from. Unfortunately, the book does not explore this difference, sometimes using the terms ethnic and racial interchangeably. Another example where the book may provide a more accurate reflection of the situation on the ground is where it suggests that Harun and Kushayb could also have been charged with genocide, while the Prosecutor charged only the President with this crime. In fact, Harun’s and Kushayb’s genocidal intent may be easier to prove than Bashir’s as they were more directly involved in the execution of crimes.
However, a lawyer or any other critical reader always approaches a Prosecutor’s brief with caution. Having selected his case, a Prosecutor presents it in a one-sided way, leaving out the counterarguments. A good defence team, however, will put the same facts in a different narrative. Casting doubt on the Prosecutor’s presentation of the events is sufficient for an acquittal. Written as a Prosecutor’s brief, this book provides several starting points for compelling counter-narratives. For instance, the authors argue: “˜We conceive of the genocide charge as follows: The Government of Sudan knowingly mobilized and collectivized a racially constructed division between the Arab and Black African groups to intentionally motivate the death, destruction, and displacement of the latter groups from their farms and villages in Darfur.’ A counter-narrative would point to the fact that the GoS in the past also recruited “˜African’ tribes and that many of the “˜Arab’ tribes have now turned against the government. The authors continue: “˜We assume authorization from the highest levels of the Sudanese government’. Yet a carte blanche is not necessarily the same as an order to commit crimes. Similarly, a former governor’s statement that “˜[w]hen the problems with the rebels started in Darfur, we in the government of Sudan had a number of options … we chose the very worst one’, could also cast doubts on the government’s genocidal intent. Equally, accounts that the conflict was about land possibly support charges of ethnic cleansing but not necessarily genocide. Finally, the defence team will criticise the many statements in which witnesses share not only their factual experiences, but also their interpretations of these experiences. The book argues for instance: “˜The widespread conclusion of Black Africans in Darfur is that “the government wants to kill everyone. They have destroyed our houses and now they will build Arab houses.”’ This is an interpretation of events that is very understandable, but as such does not prove the government’s intent. Victims as witnesses provide the facts; the legal qualification is reserved for the people adjudicating the facts: the lawyers in the ICC, and the readers of the book. As an aside, witnesses’ interpretation of these events also vary. When I recently interviewed tribal leaders in Darfur, one argued that the Rizeigat and Fur could reconcile as they had always done. In the same discussion, the other interviewee, however, argued that they could not since this was a genocide hence the “˜Arabs’ wanted to destroy the “˜Africans’.
Considering the importance of the facts presented in the book it is a pity that these have been pushed in the framework of genocide that does not do justice to the nuances and complexity of the situation on the ground. It is questionable whether this was necessary. On a legal note, the book presents genocide as “˜the crime of crimes’ and crimes against humanity as a “˜lesser crime’, whereas there is sufficient case law aptly rejecting this hierarchy. Widespread or systematic attacks against a civilian population that does not belong to a group protected by the genocide definition can be equally or even more serious than genocide. Politically, it is often believed that the G-word triggers the required international action which crimes against humanity might not. However, despite all the lobbying in Washington and Hollywood stars’ campaigning for Darfur, the conflict has not ended. This is not because the world has failed to recognise a genocide, but because outside intervention is not enough to solve the situation. Moreover, the emerging notion of the Responsibility to Protect covers genocide as well as crimes against humanity and war crimes. The authors themselves cite, in a different context, Gertrude Stein: “˜The answers given depend on the questions asked.’ While the book is worth reading for the material it presents, the questions are based on an unfortunate premise of genocide.