As the United Nations Security Council deliberated this week on whether to send suspected Sudanese war criminals to the International Criminal Court for atrocities committed in Darfur, one man was noticeably absent from the proceedings. Not once in the recent U.N. report on which the Security Council decision was to be based was Raphael Lemkin’s name mentioned.
Lemkin, a Jewish refugee who escaped from Nazi-occupied Poland in 1939, invented the term “genocide,” single-handedly got the U.N. General Assembly to adopt the historic resolution branding genocide an “international crime,” and played a key role in drafting and winning approval for the historic Genocide Convention. Yet the 176-page report of the U.N. commission of inquiry, carrying extensive footnotes, avoids any mention of Lemkin’s classic work, “Axis Rule in Occupied Europe,” in which the term “genocide” is defined for the first time. Neglected, too, are Lemkin’s numerous published and unpublished articles elaborating on genocide and providing illustrative historical examples.
The valuable but flawed report’s ignorance of Lemkin’s work goes a long way toward explaining why the U.N. commission of inquiry concluded after a three-month investigation that Sudan had “not pursued a policy of genocide.” Instead, the commission argued, the reported killing by the Sudanese government and its allied Janjaweed militias of a quarter-million Darfurians and the displacement of another 2 million by the destruction of their farmland and cattle constituted “gross violations of human rights.” Had the authors of the commission’s report paid closer attention to the man who quite literally wrote the book on genocide, however, they would have found that the Sudanese government and the janjaweed militias clearly committed the most heinous of crimes.
According to the report, what was lacking was evidence of intent to commit genocide, as required by the genocide treaty. From the commission’s perspective, the systematic pattern of massive killings, expulsion and destruction did not reveal genocidal intent.
This finding flies in the face of Lemkin’s definition of genocide as “the destruction of the essential foundations of the life of a national group.” Certainly the liquidation of the Darfurians’ agricultural means of subsistence would fit Lemkin’s definition. The commission of inquiry, though, found that “the destruction and burning down of villages” and “the forced displacement of civilians” could be perceived as the result of “counter-insurgency warfare” — even if they display “persecutory and discriminatory” motivation.
The commission’s odd legalistic arguments are at times strikingly contradictory. While the Sudanese government is exonerated from committing genocide, the report notes that “in some instances individuals, including [Sudanese] government officials, may commit acts with genocidal intent.” To square this circle, the commission simply avoids taking responsibility: “Whether this was the case in Darfur, however, is a determination that only a competent court can make on a case-by-case basis.”
Lemkin, however, expressed no such hesitancy. In his unpublished work “History of Genocide,” he cites the Roman killing of the Carthaginians and Christians, Germany’s massacre of the Hereros in Africa in the early 20th century and the murder of Armenians in Turkey during World War I — all without a specific discussion of intent. His documentation and interpretation of former genocidal events were never discussed in the U.N. commission’s report.
While the U.N. commission of inquiry has shied away from the charge of genocide, other investigators have drawn conclusions that validate Lemkin’s definition. This past September, a State Department team, together with the American Bar Association and the Coalition for International Justice, found a “consistent and widespread pattern of atrocities” conducted against Darfurians by the Sudanese government and its Janjaweed allies. That same month, former secretary of state Colin Powell testified before a Senate panel that what was happening in Darfur was indeed genocide.
Powell’s assertion is supported by a February report by Physicians for Human Rights, which found in its investigation that there was “substantial evidence of intentional destruction” of Darfurian livelihoods. This nongovernmental organization had no hesitancy about labeling the destruction “genocide.”
International law also backs Powell’s charge. The Statute of the International Criminal Court, which was adopted in Rome in 1998, argues that genocide is committed when a racial, ethnic or religious group has conditions inflicted upon them that are “calculated to bring about its physical destruction in whole or in part.”
The danger of shying away from the genocide label was brought home by U.N. Secretary General Kofi Annan last year, as the Darfur events were reaching a crescendo level. Annan, who as the head of U.N. peacekeeping operations during the Rwandan tragedy, knows all too well the cost of inaction, expressed profound concern about the hesitancy of governments to use the term “genocide.” He bitterly complained that U.N. member states refuse to call genocide by its name in order to avoid fulfilling their obligations under the Genocide Convention. While Annan was specifically referring to the horrors perpetrated in Srebrenica and Rwanda during the 1990s, he was very much conscious of the ongoing developments in Darfur.
He posed the issue more sharply later that year, while speaking at the U.N. Human Rights Commission in Geneva on the 10th anniversary of the Rwandan genocide. Determined to avoid a repeat of the international community’s failure in Rwanda, Annan cried out that “we must not be held back by legalistic arguments” over Darfur.
Tragically, legalistic arguments continue to inhibit forceful action by the international community. As the U.N. Security Council deliberates on how to respond to the genocide in Darfur, it would do well to heed the lesson learned by the secretary general: “By the time we are certain, it may often be too late to act.”
William Korey is the author of the monograph “An Epitaph for Raphael Lemkin”(2002) and a half-dozen books on human rights.