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Thursday, June 17, 2004

Unmistakable Evidence of Genocidal Intent: 

A Legal Analysis of Khartoum's Continuing Obstruction of Humanitarian Access to Darfur

Eric Reeves
June 16, 2004

For many months now, Khartoum has deliberately denied, impeded, and
made excessively difficult humanitarian access to the war-affected
African peoples of Darfur. Tom Vraalsen, UN special envoy for
humanitarian affairs in Sudan, declared in December 2003---now half a
year ago---that the denial of aid to these peoples was "systematic,"
i.e., ultimately based on race/ethnicity (Ambassador Tom Vraalsen, Note
to the Emergency Relief Coordinator; "Sudan: Humanitarian Crisis in
Darfur," December 8, 2003). For, as was the case then and now, the
war-affected peoples of Darfur most in need of humanitarian assistance
are overwhelmingly the African tribal groups, primarily the Fur, the
Massaleit, and the Zaghawa. These are the people who have been and will
be destroyed by Khartoum's past and continuing denial of humanitarian
access.

The deliberate obstruction of humanitarian aid offers clear and
unambiguous evidence of an intent to destroy these peoples "as such."
It is yet another aspect of Khartoum's wider effort to "deliberately
inflict on the [African groups] conditions of life calculated to bring
about [their] physical destruction in whole or in part" (1948 UN
Convention on the Prevention and Punishment of the Crime of Genocide,
Article 2, clause [c]).

Certainly the world knows full well that it is Darfur's African tribal
groups that have been displaced or turned into refugees by Khartoum's
military and Arab militia allies (the Janjaweed). This is what has
prompted the so far diffident characterizations of realities in Darfur
as "ethnic cleansing." But the world should also know full well that
hundreds of thousands of people from these African tribal groups have
been forced into concentration camps---the majority without humanitarian
access---where there are continuous executions, and where extermination
grows directly out of living conditions deliberately made intolerable.

It is the African peoples of Darfur that make up the overwhelming
majority of the 2.2 million people now defined as "war-affected" by the
UN, the US, and the European Union. And it is this "war-affected"
population that is critically dependent upon the very humanitarian aid
so relentlessly and resourcefully obstructed by Khartoum. Given the
numbers of people at risk, we must speak in terms of a "very substantial
part" of the African tribal populations of Darfur, whose destruction
holds clear potential for a "highly significant impact on the
populations as a whole" (see below for a legal analysis of the
particular implications of these quoted phrases for a finding of
genocide). In short, given the racial/ethnic character of the
populations most acutely in need of humanitarian aid, the denial and
obstruction of such aid is clear evidence of genocidal intent.

Now that the Bush administration has committed itself to a legal
determination of whether the actions of the Khartoum regime and the
Janjaweed rise to the level of genocide in Darfur, it will be useful to
keep in mind some of the legal standards that have been established over
the past decade. (The same must be said for the presidential campaign
of Senator John Kerry.) Usefully, an especially significant review of
the crime of genocide, and the nature of the "intent" essential to any
finding of genocide, has recently been undertaken by the Appeals Chamber
of the International Tribunal for violations of international law in the
former Yugoslavia. The case (involving a review of "Prosecutor v.
Radislav Krstic," Case No. IT-98-33-T) speaks directly to various
questions that bear on any finding of genocide in Darfur, and the
question of whether the "intent" of Khartoum and its Janjaweed allies is
genocidal.

At all points, the case review strongly support a finding, mutatis
mutandis, of genocide in Darfur (the lengthy Appeals Chamber review may
be found at: http://www.un.org/icty/krstic/Appeal/judgement/index.htm).
In particular, the deliberate, systematic denial of humanitarian access
to the African populations of Darfur conforms to various stipulations
and precedents cited by the Appeals Chamber.

We should recall here that the UN, the US, Human Rights Watch, the
International Crisis Group, and many other authoritative sources are
already using the term "ethnic cleansing" to describe realities in
Darfur, this in order to highlight the racial/ethnic animus in the vast
human destruction and displacement. It is in this context that we must
ask about genocide and the meaning of the fully compelling evidence that
Khartoum continues to obstruct, in clearly intentional fashion,
humanitarian access to the African populations of Darfur. Indeed,
recent days have seen a flurry of condemnations of Khartoum's
obstructionism (though none with any apparent effect):

"Deputy U.S. Ambassador James Cunningham complained to the Security
Council Monday that the Khartoum government is continuing to hamper the
efforts to get humanitarian aid and workers to Darfur. 'Unfortunately,
the government continues to deny release of vehicles needed by
humanitarian relief agencies,' he said. 'It has also in some cases
denied release of radio equipment needed for workers to securely deploy
to remote areas to deliver aid. In addition, the government has also
delayed food shipments from Port of Sudan, potentially to the point of
making the food useless.'" (Voice of America, June 14, 2004)

"UN humanitarian chief Jan Egeland criticized the Sudanese government
Monday for blocking aid workers, food and equipment from reaching the
Darfur region, where 2 million people desperately need humanitarian aid.
Calling Darfur the worst humanitarian crisis in the world today, Egeland
told the U.N. Security Council that relief agencies are trying to get
food, water, sanitation equipment and tents to the western Sudanese
region before the rainy season. 'We've been working for many, many weeks
in a race against the clock, and we see that the government which should
do its utmost to help us is still not helping,' he said. 'Some ministers
are helping us, but some of their subordinates are sabotaging us.' [ ]

"Egeland said UN international staff were now able to travel to Darfur,
but other aid groups still faced visa problems. He also said red tape
has prevented ships carrying food and equipment for Darfur from
unloading for weeks. [ ] 'Nowhere else in the world are so many lives at
stake as in Darfur at the moment,' [Egeland] said." (Associated Press,
June 15, 2004)

"Sudan is blocking aid groups from getting food and medicine to
hundreds of thousands of people in its western Darfur region, despite
promises to the contrary, a senior U.N. official said on Monday. [ ]
Groups, such as Medecins Sans Frontieres (Doctors Without Borders), are
experiencing undue delays in getting visas, bringing in equipment,
medicine and food. For example, [UN humanitarian chief Jan Egeland]
said, radios needed for emergency communications were stripped from
vehicles because Sudanese authorities believed they were a security
liability. 'If they have no radio, they cannot go into Darfur,' he said.
'They see this as a security risk for the government. We see it as a
security necessity for us.'"

"'People are dying because we were denied access for so long, and
people will be dying because we are not able to get through,' Egeland
said. [ ] Egeland said a cease-fire in Darfur was sporadic. 'We are
still seeing grown men attacking defenseless woman and children with
their automatic rifles,' he said. Doctors Without Borders said late in
May it had 50 pending requests for visas and had medical supplies
impounded when they arrived by sea and not by emergency air transport."
(Reuters, June 14, 2004)

The head of UNICEF is reported today as declaring:

"'It is clear to me that a worsening crisis is upon us,' [Carol
Bellamy] said following a visit to Darfur. 'The number of displaced
people [ ] continues to grow.' [ ] The images of burnt-out villages and
markets on the road from al-Junaynah, the capital of Western Darfur,
southward to Sisi were stark in her mind, she said, and they were
repeated hundreds of times across Darfur."

"[Bellamy said] there were not enough NGOs in Darfur to provide aid. 'I
seldom recall coming to a place with this expansion of internally
displaced people, to see so little going on. There are almost no NGOs
[humanitarian nongovernmental organizations],' she stated. 'I understand
it's not their fault--it's hard to get in. We in the UN have to work
with NGOs, so the limited number of partners is a real problem for us.'"
(UN Integrated Regional Information Networks, June 16, 2004)

A US Senate Foreign Relations Committee hearing of June 15, 2004 heard
testimony from senior Bush administration officials and Sudan
specialists:

"John Prendergast [of the International Crisis Group] says the Sudanese
government is now using starvation and disease as weapons of war,
blocking humanitarian relief from getting to those in need. Bush
administration officials agree. 'Have they been denying access to those
who could go there to help the civil population or to see and report on
what was going on? Yes, they do deny access,' said Roger Winter,
assistant administrator for the Democracy, Conflict and Humanitarian
Assistance Bureau at the U.S. Agency for International Development.
'There has been very restricted access.'" (Voice of America, June 15,
2004)

The US State Department also spoke out again yesterday on Darfur:

"'We're deeply concerned that, despite assurances from the government
of Sudan that they are providing the humanitarian access, that there is,
in fact, still considerable blockages to getting aid to the people in
need,' State Department spokesman Richard Boucher said. He said Khartoum
continued to deny the release of vehicles needed to transport food and
other assistance to Darfur, was refusing in some cases to release
communications equipment needed by relief workers to coordinate their
work and delayed the distribution of foreign food which has been sent by
ship to Port Sudan. In addition, Mr Boucher accused Sudanese authorities
of continuing 'to harass or delay humanitarian workers seeking to
administer to the needy.'" (Agence France-Presse, June 15, 2004)

[The official views of Khartoum are represented in recent statements by
National Islamic Front Vice President Ali Osman Taha during a trip to
Egypt: "[Taha] accused the international media of deliberately
magnifying the scale of the humanitarian problem in the region. He also
claimed that the conflict was fabricated by the West" (Agence
France-Presse [Cairo], June 16, 2004).]

In aggregate, these assessments from UN officials, humanitarian aid
officials, Sudan specialists, and US government officials make clear a
policy on Khartoum's part that continues what Ambassador Vraalsen
described half a year ago as the "systematic" denial of humanitarian
access. Six months after this UN assessment, access continues to be
manipulated, impeded and obstructed.

This represents an unconscionable moral and political failure on the
part of the international community, a refusal to respond to what has
clearly been genocide in the making. Khartoum for its part, sensing
that it will pay no real price for obstructionism, has merely varied its
methods of obstruction. The urgency of the demands for access we now
hear from various international actors is months overdue---and this
terrible belatedness has ensured that hundreds of thousands of people
from the African populations of Darfur will die. They will die because
their deaths are clearly what Khartoum intends.

This is genocide. Indeed, it is so clearly genocide that one must
search for reasons to explain why any other characterization is
offered.

The most conspicuous reason is that to characterize the present
realities in Darfur as genocide forces an inevitable question: why
wasn't this characterization appropriate last month? or several
months ago? For the evidence has not changed in character. The numbers
are of course increasing, indeed dramatically, but not in ways that
somehow cross a particular categorical threshold. Nor are there new or
different actions by Khartoum and its militia allies, or new evidence
about Khartoum's intentions in committing or supporting these actions.


Perversely, failure to have characterized Darfur as genocide in the
past seems to make it more difficult to reach this determination in the
present.

To be sure, there is evidence of considerable ignorance (willful or
otherwise) about the meaning of genocide. The comments yesterday of UN
Undersecretary for Humanitarian Affairs Jan Egeland offer an ironic
example. Associated Press (June 15, 2004) quotes Egeland as saying:

"The conflict in the Darfur region of western Sudan is the worst in the
world today and a result of 'ethnic cleansing,' [Egeland] said, 'I think
it's not genocide yet, and we can prevent it from becoming one.'"

But what can this possibly mean? What can be done to "prevent" Darfur
from "becoming a genocide"? Is there some numerical threshold that
Egeland feels must be crossed before genocide is reached? Are the
staggering numbers that prompted Egeland to declare in December 2003
that "Darfur is probably the world's worst humanitarian crisis" not
great enough? How many hundreds of thousands, killed or destined to be
killed from deliberate actions, are required for a finding of genocide?

Are 2.2 million "war-affected" people not enough, even when the
evidence is clear that they are at acute risk precisely because Khartoum
has "deliberately inflicted on [these African groups] conditions of life
calculated to bring about [their] physical destruction in whole or in
part"? What of Amnesty International's prediction that "there are
350,000 people who are most likely to die in this period [the rainy
season]": is this figure too low? And what of the Doctors Without
Borders/Medecins Sans Frontieres (MSF) declaration that "the whole
population [of Darfur] is teetering on the verge of mass starvation"?
Or the grim assessment of the consequences of continued aid denial from
the US Agency for International Development"?

"'We estimate right now if we get relief in, we'll lose a third of a
million people, and if we don't the death rates could be dramatically
higher, approaching a million people,' said US Agency for International
Development (USAID) chief Andrew Natsios after a high-level UN aid
meeting [in Geneva]." (Agence France-Presse, June 3, 2004)

Are these numbers not more than enough to cross any conceivably
required threshold for a determination of genocide in the context of
Darfur?

Or is there some further evolution of "intent" on the part of the
Khartoum regime that Egeland and others expect to see so that the
"intent requirement" of the 1948 UN Genocide Convention is more fully
met? What could "prevent" the racially/ethnically animated human
destruction we now see in Darfur from becoming, or in fact being,
genocide? What difference does Egeland mean to imply by distinguishing
between "ethnic cleansing" and "genocide"?

Too many questions; too few explicit or cogent answers.

We should bear in mind here that the UN General Assembly, when
initially deploying the phrase "ethnic cleansing" in 1991 (in the
context of the Balkan conflicts), made clear that the phrase referred to
a "form of genocide." A review of the term by UN lawyers in 1993 (again
in the context of the Balkans) found that "ethnic cleansing" "might well
be considered genocide under the [genocide] convention" (Samantha Power,
"'A Problem from Hell': American and the Age of Genocide," page 483).

But the most substantial guidance here comes from the Appeals Chamber
of the International Tribunal for violations of international law in the
former Yugoslavia, review of "Prosecutor v. Radislav Krstic," Case No.
IT-98-33-T (http://www.un.org/icty/krstic/Appeal/judgement/index.htm).
Radislav Krstic was charged in connection with his role in the slaughter
of 7,000 to 8,000 Bosnian Muslim men in the UN "safe area" of Srebrenica
in July 1995, as well as the movement of Bosnian women, children, and
elderly from the Srebrenica enclave. The Appeals Chamber speaks
comprehensively to the issues of both "quantity" and "intent" in a
determination of genocide. Attention to this articulate, intelligent,
and deeply historically informed review should clear away some of the
fuzzy (and disingenuous) thinking about genocide that has begun to
proliferate. (All references will be to paragraph numbers of the
Appeals Chamber review.)

"QUANTITY" AND GENOCIDE

From an international legal perspective, how many people among the
African populations of Darfur must be destroyed or confront "conditions
of life calculated to bring about [their] physical destruction in whole
or in part" in order to justify a determination of genocide?

"It is well established that where a conviction for genocide relies on
the intent to destroy a protected group [i.e., "national, ethnical,
racial or religious" group] 'in part,' the part must be a substantial
part of that group. [ ] The part targeted must be significant enough to
have an impact on the group as a whole" (Paragraph 8). Citing Raphael
Lemkin, who coined the term "genocide" (and was instrumental in drafting
the UN Genocide Convention of 1948) the Appeals Chamber noted: "'the
destruction in part must be of a substantial nature so as to affect the
entirety'" (Paragraph 10).

If we survey the situation in Darfur, with a total population of
approximately 6.5 million, with an African majority but very large Arab
tribal populations as well, it is clear that the 1.3 million
persons---overwhelmingly African---internally displaced or displaced
into Chad are a "substantial" part of the population. A fortiori, the
figure of 2.2 million "war-affected" people, with the vast majority at
acute risk because of Khartoum's deliberate impeding and obstructing of
humanitarian access, also meets the criterion of "a substantial part of
the [African tribal] groups," with a clear threat of "having an impact
on these groups as a whole."

The Appeals Chamber review also notes that:

"The historical examples of genocide also suggest that the area of the
perpetrators' activity and control, as well as the possible extent of
their reach, should be considered. Nazi Germany may have intended only
to eliminate Jews within Europe alone; that ambition probably did not
extend, even at the height of its power, to an undertaking of that
enterprise on a global scale. Similarly, the perpetrators of genocide
in Rwanda did not seriously contemplate the elimination of the Tutsi
population beyond the country's borders. [ ] The intent to destroy
formed by a perpetrator of the genocide will always be limited by the
opportunity presented to him." (Paragraph 13)

This is a particularly important consideration, given the means
available to Khartoum. Obliged, at least in part, to refrain from using
its military air power by virtue of the April 8, 2004 cease-fire;
constrained, in part, by the cease-fire and international attention to
be more circumspect in its genocidal ambitions, Khartoum is presently
"limited by the opportunity presented to [the regime]" to obstruct
humanitarian access and to refuse to rein in the primary instrument of
direct civilian destruction, the Janjaweed militia.

It is impossible to avoid the conclusion that Khartoum's actions---in
Darfur and in the "systematic" obstruction of humanitarian
aid---deliberately threaten a "substantial part" of the African groups,
that this will "have an impact on these groups as a whole," and that the
extent of genocidal activity by Khartoum is constrained in significant
ways by limitations on the "opportunities presented."

"INTENT" AND GENOCIDE

The Appeals Chamber review noted a number of issues bearing on a
determination of "intent" to commit genocide, perhaps the central issue
in any debate about genocide in Darfur. A particularly important
finding is that while genocidal intent "must be supported by the factual
matrix, the offense of genocide does not require proof that the
perpetrator chose the most efficient method to accomplish his objective
of destroying the targeted part. Even where the method selected will
not implement the perpetrator's intent to the fullest, leaving that
destruction incomplete, this ineffectiveness alone does not preclude a
finding of genocidal intent." (Paragraph 32)

In short, there needn't be a Nazi-like efficiency in killing or
destroying, in whole or in part, the African peoples of Darfur. That
the methods previously and presently deployed by Khartoum will
accomplish enough to meet the "substantiality" criterion is all that
must be established for the purposes of finding that these methods may
constitute genocide.

In the subsequent Paragraph the Appeals Chamber review finds that
"genocidal intent may be inferred, among other facts, from evidence
of 'other culpable acts systematically directed against the same group'"
(Paragraph 33). In other words, Khartoum's "systematic" denial of
humanitarian access to the African populations of Darfur may be
considered in the context of the systematic destruction of African
villages (now numbering in the thousands); the systematic destruction of
African agricultural capacity (in the form of poisoning and blowing up
water wells and irrigations systems; in the form of destruction of
seeds, fruit trees, agricultural implements, and critical agricultural
livestock); and the widespread practices of execution, rape, abduction,
and torture directed against the African populations of Darfur.

The process of inferring genocidal intent from particular atrocities
(such atrocities as have been reported in great number, for example, by
Human Rights Watch, Amnesty International, the UN HCHR human rights
investigation of April 2004, the UN inter-agency investigation of the
Krailek concentration camp in later April 2004, and many others) is also
illuminated in a discussion of legal precedent by the Appeals Chamber
review:

"Where direct evidence of genocidal intent is absent, the intent may
still be inferred from the factual circumstances of the crime. The
inference that a particular atrocity was motivated by genocidal intent
may be drawn, moreover, even where the individuals to whom the intent is
attributable are not precisely identified. If the crime committed
satisfied the other requirements of genocide, and if the evidence
supports the inference that the crime was motivated by the intent to
destroy, in whole in part, a protected group, a finding that genocide
has occurred may be entered." (Paragraph 34)

We need not know the particular perpetrators of individual atrocities
to reach a finding of genocide. But to the degree that various such
genocidal atrocities can be tied to specific individuals (in the
Janjaweed command structure, or in the intelligence, military, or
political structure of Khartoum's National Islamic Front regime), this
becomes cumulative evidence of responsibility for genocide.

Moreover the nature of this responsibility is specifically articulated
by the Appeals Chamber review:

"The Appeals Chamber has previously explained, on several occasions,
that an individual who aids and abets a specific intent offense [e.g.,
genocide] may be held responsible if he assists the commission of the
crime knowing the intent behind the crime." (Paragraph 140)

In considering responsibility for genocide on the part of individual
members of the Khartoum regime, actions such as heavily arming the
Janjaweed, coordinating militarily with the Janjaweed, flying bombing
and helicopter gunship missions in support of the Janjaweed, inciting
the Janjaweed---all constitute acts of genocide, given the known nature
and intention of Janjaweed attacks against African civilian
populations.

*****************

The scale of intentional destruction of African tribal groups in
Darfur, and the clear intent to destroy these groups as such, mark
Khartoum's actions in Darfur as unambiguously genocide. This is clear
not only from a common-sense reading of the language of the 1948 UN
Convention on the Prevention and Punishment of the Crime of Genocide,
but from the vantage of a fully legally and historically informed
analysis of the sort offered recently by the Appeals Chamber of the
International Tribunal for the former Yugoslavia.

To be sure, skepticism about genocide can always be contrived on a
temporary basis---especially, in the case of Darfur, by those whose
inaction has done so much to allow a ghastly slide into the present
abysm of suffering and destruction. But the truth will out, and the
clarity that some now profess to be beyond them will be brought home
with searing force.

There simply can be no reasonable skepticism or agnosticism about the
genocidal realities in Darfur, much less about the responsibility of
Khartoum for deliberately engineering massive displacement, famine, and
epidemic disease among the African peoples of Darfur, especially by
denying humanitarian access to these desperately needy civilians. There
remains only a decision---daily more costly so long as it is not
made---about how much we will to do mitigate the massive and now
unavoidable genocidal catastrophe.

Eric Reeves
Smith College
Northampton, MA 01063
ereeves@smith.edu



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