As public consciousness of the grim situation in Darfur grows,
the difficulty of prosecuting what is often popularly called
genocide is becoming clearer.
For years, the term genocide was used to describe the ultimate
crime. But that crime was rarely - if ever - charged, since
international courts were too weak.
Now, the mechanics of international justice are modestly rising
to confront man's inhumanity to man: take, for example, the
International Criminal Court and the Yugoslavia and Rwanda Tribunals
here at The Hague.
Yet at the same time, the political sensitivity surrounding a
genocide charge, which requires nations to intervene under
international law, is creating friction. The cases of Rwanda,
Bosnia, and now Darfur demonstrate this.
Sunday, protesters in 35 nations and more than 280 US cities
marched against what a UN mission calls "apocalyptic" scenes still
emerging from the Darfur war, now spreading from Sudan to Chad.
Protest groups, including Amnesty International, called on Britain
and the US to help create a peacekeeping force.
So is Darfur a genocide? A US Holocaust Memorial Museum committee
and Colin Powell have said it is. So do at least two human rights
reports. One French expert, Marc Lavergne, calls it "worse than a
genocide" since mass killings are not done out of racial hatred, but
because Darfurians are simply "in the way" of Sudan's plans to
Yet many Sudanese experts and an International Criminal Court
(ICC) don't term it genocide. They say it doesn't fit the 1948
Geneva Convention definition to win a case. This requires absolute
proof of "mental intent" to kill or displace based on national,
ethnic, or religious identity. Hence, an ICC prosecutor this winter
did not charge a Sudanese interior minister and a rebel Janjaweed
militia leader with "genocide," but crimes against humanity.
'An explicit call to action'
The word genocide raises deep legal and moral conundrums in a
globalizing world, experts say: The term has gained popular usage in
a media age to describe mass atrocities, as in Darfur, Rwanda,
Bosnia. Yet prosecutors and world courts are ever more cautious
about leveling the charge, even when it may apply - since it raises
a requirement to intervene.
"Genocide is an explicit call to action under the 1948 treaty, a
call to prevent and punish," says Diane Orentlicher at American
University in Washington. Recent court rulings show that "if you
wait until there is a legal certainty to prove genocide, you have
waited too long," she adds.
That's where politics enter. A party or state charged with
genocide will likely be isolated and stigmatized in the global
community, perhaps even making the situation worse. This is disputed
on Darfur. Some Darfur activists feel Sudan hasn't been charged with
genocide because that would make it impossible for governments to
deal with Khartoum.
The politics of genocide rose in a ruling on Bosnia this
February. The International Court of Justice (ICJ) at The Hague did
not find Serbia guilty of genocide in the ethnic cleansing of
Bosnian Muslims in the early 1990s. Rather, it found Serbia culpable
in not preventing genocide in the Srebrenica massacre, and awarded
The ruling outraged scholars like Ruth Wedgwood of Johns Hopkins
University who told the Monitor it "appeared to be a posthumous
acquittal of [then President] Slobodan Milosevic for genocide. The
court didn't look at a pattern of crimes in Bosnia, but selectively
picked its evidence."
Early this month it came to light that ICJ judges did not read
and did not seek to investigate a huge range of materials from
Belgrade that were used as evidence by the UN-sanctioned Yugoslavia
Tribunal, just down the street in this city.
New York Times reporter Marlise Simons wrote that the ICJ ruling
"raised some eyebrows because aspects of Serbian military
involvement are already known from records of earlier [Tribunal]