Crime of Crimes

Does It Have to Be Genocide for the World to Act?

Death in Darfur: What do we call a brutal campaign to kill civilians in western Sudan? (Jahi Chikwendiu -- The Washington Post)

On Feb. 1, the United Nations issued a finding that sounded like hopeful news about one of Africa's worst conflicts.

"UN report clears Sudan government of genocide in Darfur," reported Agence France-Presse.

"UN Panel Sees No Genocide in Darfur," a St. Petersburg Times headline on a Reuters wire story said the next day.

"Report on Darfur Says Genocide Did Not Occur," read another in the New York Sun.

The headlines said more about the mindset of the people reading the report than they did about the long-awaited investigation by the U.N. commission of inquiry on the conflict in western Sudan. The 176-page document provided a litany of misery and blamed the government in Khartoum. But to many readers, it appeared to have let Sudan's leaders off the hook by not branding their actions as genocide, as the Bush administration and U.S. Congress had already done.

It's not as though the report gave Sudan a seal of approval. It detailed extensive atrocities authorized by the Sudanese government and carried out by Janjaweed militias. Its authors concluded that the government and militias conducted "indiscriminate attacks, including killing of civilians, torture, enforced disappearances, destruction of villages, rape and other forms of sexual violence, pillaging and forced displacement throughout Darfur." They added that the government's brutal campaign had displaced more than 1.5 million people. But for many news editors and readers, one conclusion overshadowed all the rest: There was no genocide in Darfur, after all.

In considering whether and where to intervene, one question has assumed talismanic significance: Is it genocide? In the words of judges on the international tribunal for Rwanda, genocide is the "crime of crimes." Such a finding has become a signal for the world to act.

But as the Darfur report shows, genocide is an unreliable trigger. For all its moral power, genocide is both hard to document and linked to questions of race, ethnicity and religion in a way that excludes other -- similarly heinous -- crimes. Intended as a clarion call, the term itself has become too much of a focal point, muddling the necessity for action almost as often as clarifying it.

Few issues have been more important in the last decade than reacting to the bloody civil conflicts that still haunt many parts of the globe. The current film "Hotel Rwanda" hammers audiences with the tale of the world's shameful failure to stop the 1994 Rwandan massacres. Looking to the genocide label to motivate international intervention in places like Rwanda, however, overlooks two sad truths: Widespread slaughter can demand intervention even if it falls outside of the genocide standard. And the world is quite capable of standing by and watching even when a genocide is acknowledged.

To a remarkable extent, the term genocide was the product of one man's work. As Samantha Power recounts in her recent book " 'A Problem From Hell': America and the Age of Genocide," Raphael Lemkin placed the term into public discourse and international law through sheer willpower. A Polish Jew who narrowly escaped the Nazis, Lemkin was instrumental in drafting and winning support for the 1948 Convention on the Prevention of Genocide. He wanted a law that captured the unique horror of a concerted campaign to deny a specific group's right to exist, and that is what he got.

In international law, genocide is a crime of specific intent -- it requires that the guilty parties intended to destroy all or part of an ethnic, racial, national or religious community. Identifying that intent can be a difficult struggle.

In 1995, Bosnian Serb forces killed 8,000 Muslim men and boys in the besieged town of Srebrenica. It was Europe's worst massacre since World War II. But when the U.N. tribunal finally got hold of one of the Bosnian Serb generals who had been at Srebrenica, it found him guilty only of aiding and abetting genocide -- not actually committing it. "Convictions for genocide," that court said, "can be entered only where intent has been unequivocally established." Try as they might, the prosecutors in that case could not document the Serb officer's intent.

If getting inside the mind of the killers is one complication, identifying and classifying the victims is another. The commission investigating Darfur, for example, immersed itself in the details of local tribal structures as it tried to puzzle out whether the victims of that conflict fit under the definition of genocide. "The various tribes that have been the subject of attacks and killings," the report conceded, "do not appear to make up ethnic groups distinct from the ethnic group to which persons or militias that attack them belong." Only after lengthy analysis did the authors conclude that the victimized population in Darfur was a different tribe and therefore a "protected group." But they were still unable to identify the intent needed to show genocide.

Documenting genocidal intent and determining whether the victims are part of a protected group eats up time when time is of the essence; a few weeks of concentrated violence killed more than 800,000 people in Rwanda. Waiting for the lawyers to decide is perilous, as became apparent once again when the Sudan commission released its report. To many observers, it appeared that the U.N. experts were downgrading the Darfur crisis when it was really struggling -- in good lawyerly fashion -- to meet a high evidentiary burden.