Genocide by any Other Name
Patrick J. Lewis argues that the current definition of genocide is an inadequate description for the Darfur conflict in western Sudan.
Since 2003, more than 300,000 people have died in a bloody war in west Sudan’s Darfur region, situated in the heart of Africa. Decades of drought, desertification, and overpopulation caused the pastoralist Baggara nomads to take their livestock further south in search of water, causing conflict in land primarily occupied by ‘black African’ farming communities. In 2003, there was a violent rebel uprising by the Justice and Equality Movement (JEM) and the Sudan Liberation Movement/Army (SLA), which accused the government of oppressing non-Arabs in favour of Arabs. The Sudanese government responded by destroying entire villages suspected of harbouring rebels, with a devastating impact on civilians. The International Criminal Court claims that around five million Darfuri refugees have been forced from their homes, and civilians are still under attack from government-backed Janjaweed militia.
During the Rwandan war of the 1990s, U.S. officials quibbled that whilst individual acts of genocide had occurred, these acts did not meet the legal definition of genocide. However, they did not say how many acts of genocide constituted genocide itself. One Department of Defence memorandum warned: “Be careful. Legal at State was worried that this Genocide finding could commit [the US government] to actually ‘do something’.” In Darfur, the same semantic quagmire has arisen. The question needs to be asked again: does the legal definition of genocide need to change?
The Current Definition of Genocide
Genocide is defined in the 1948 Genocide Convention as certain acts – killing; causing serious bodily or mental harm; deliberately inflicting conditions that threaten life; preventing births; forcibly transferring children out of the community – committed “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”. This definition was adopted in response to the unique events of the Holocaust, and has proved to be wholly inadequate in responding to the mass atrocities that are occurring in Sudan.
Articles in the Australian press frequently refer to the Darfur conflict as either an ethnic or racial conflict, between ‘black Africans’ and ‘Arabs’. When described this way, the situation seems to fit within the parameters of the Genocide Convention. However, this ‘Arab versus black’ characterisation is misleading, as these groups are neither internally cohesive nor fully distinct from one another. Alex de Waal, Harvard Humanitarian Initiative fellow and Co-Director of Justice Africa, says that black Darfuris are well-known for their Muslim piety and the majority speak Arabic as well as their native tribal languages. Gérard Prunier, a researcher at the French National Centre for Scientific Research (CNRS) in Paris and director of the French Centre for Ethiopian Studies in Addis Ababa, notes that due to centuries of intermarriage, black Africans and Arabs in Darfur do not look like different groups; they all appear black, though some are adamant that there are differences in facial features that distinguish the groups. The International Commission of Inquiry on Darfur (COI), established by the United Nations to investigate violations of international humanitarian law and human rights law in Darfur, notes that members of certain Arab tribes (for example Misseriga) are fighting on the side of black African rebels, while some blacks side with the Arab government or fight in the Sudanese military. There have been reports of clashes between Arab tribes and black African rebel groups or tribes. In 2007, the New York Times reported that “what started out four years ago in western Sudan as a rebellion and brutal counterinsurgency has cracked wide open into a fluid, chaotic, confusing free-for-all…”
Tribes and the Genocide Definition
Marc Lavergne, Chair of the UN Panel of Experts on the Sudan, told the website afrik.com that “the notion of ‘Arab’ is cultural, not racial. The militias can be considered Arab because they have been ‘Arabised’… In my view everyone in this story is black. The notion of racism has no place.” Gérard Prunier, in his book Darfur: The Ambiguous Genocide, argues that those called black Africans do not generally think of themselves as black, but as members of their respective tribes. In Darfur, these are principally the Fur, Masseleit, and Zagawa. As ‘tribe’ is not a specific category in the Genocide Convention, tribal disputes are not a matter of international concern under the Convention. Nonetheless, interethnic violence may rise to the level of genocide, with moral and legal consequences for the international community. It is debatable whether the tribes of Darfur constitute ‘ethnic groups’ within the meaning of the Genocide Convention. However, the COI wrote, “[T]he policy of attacking, killing and forcibly displacing members of some tribes does not evidence a specific intent to annihilate, in whole or in part, a group distinguished on racial, ethnic, national or religious grounds”.
Moving Forward
The international community needs to recognise the importance of a law that is more responsive to current conflicts, and redefine the crime of genocide. There is a wide gap between the legal imperatives provided by existing international humanitarian law and the world’s unmet moral demands. This gap could be narrowed by altering the language of the Genocide Convention. Among the new definitions that have been proposed are ones that would broaden the scope of genocide protection by expanding the protected categories. Helen Fein, Professor in genocide studies at the City University of New York, has defined genocide as “sustained purposeful action by a perpetrator to physically destroy a collective directly or indirectly”. This definition avoids discussion of what constitutes a race or an ethnic group by extending protection to any ‘collective’.
Frank Chalk and Kurt Jonassohn, Directors of the Montreal Institute for Genocide Studies, have argued that victim groups must be recognised as subjective constructions. They define genocide as “one-sided mass killing in which a state or other authority intends to destroy a group, as that group and membership in it are defined by the perpetrator”. This definition could be useful in Darfur, where self-identified Arabs appear to have targeted ‘black Africans’, who do not see themselves as one race or ethnicity, but rather as members of many different tribes. In Chalk and Jonassohn’s formulation of genocide, it would be unnecessary to show that the victim group is objectively a single collective, as long as there is a clear pattern of group identification by the perpetrators.
In discussions about the Darfur conflict, linguistic wrangling is a stalling mechanism for those who fear triggering an obligation to prevent and punish genocide. International law fails to account for the more complex history and nature of groups in postcolonial societies, too readily assuming that ethnicity and race are universal concepts. The mistaken notion of ‘tribe’, left from a Genocide Convention created in response to the Holocaust, envisions a certain paradigm of genocide that does not address the crisis in Darfur.
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