Tomorrow is D-day, the moment Omar al-Bashir finds out if the International Criminal Court will issue a warrant for his arrest. The chief prosecutor, Luis Moreno-Ocampo, has charged him on 10 counts of war crimes, crimes against humanity and genocide but the three pre-trial judges only need to believe he has a case to answer on one of those charges to issue the warrant.
The genocide charges remain controversial. As I wrote in a piece at the weekend, some of the ICC’s own investigators who helped put the case together have privately voiced concern that genocide cannot be proven. The charges have also been questioned by Moreno-Ocampo’s former senior legal counsel, Andrew Cayley. “It is difficult to cry government-led genocide in one breath,” he wrote, “and then explain in the next why 2 million Darfuris have sought refuge around the principal army garrisons of their province.”
Regardless of what happens tomorrow one thing is sure: the genocide debate will go on.
“…operating under very difficult circumstance. He could not go to Darfur to do his investigation. So it is somewhat difficult to put together a case when you can’t visit the crime scene.”
The Stop Genocide blogger, Michelle, also gets in a pre-emptive strike just in case the judges drop the genocide charges. In a post which asks the question “Is Darfur a genocide?” she takes me to task for suggesting it’s not. In her defence, she cites Colin Powell and the 2004 US State Department investigation which made the case that genocide was taking place.
There are two separate debates here.
One: was it genocide and, if so, can legal responsibility be placed on Bashir’s shoulders?
Two: Is it a genocide now and, either way, what should be done?
Here’s where I disagree with Michelle and other Darfur activists. I do not believe that what is happening in Darfur right now is genocide, a position that I know most activists do not share. My views though, are fairly similar to a large number of aid workers, diplomats and analysts who work in Sudan.
The issue of timing, though it sounds petty, is important. If a genocide is taking place then it makes sense to argue that the genocidal government needs to be overthrown. But if what is happening now is actually a messy war with many players then simply overthrowing Bashir is not going to solve Darfur’s problems. It could form part of a more complicated, multi-layered solution. Alternatively, it could make a bad situation a whole lot worse.
It all depends on what you see as a result. Is it peace for those living in Darfur now or justice for the victims? Finding both isn’t easy. Michael Kleinmann, who helped to stoke the flames of this row in the first place, puts it like this:
Rob Crilly, a journalist mate here in Nairobi who has covered Darfur extensively, argues for “messy, contradictory, imperfect solutions”:
“They may not tackle the deep-seated injustices and may just be storing up problems for the future. They might not resolve the big issues, but it stops people dying.”
It can be difficult to have a nuanced debate in such a fevered environment. People on both sides can get heated. Arguing that there is no “ongoing genocide”, as Moreno-Ocampo describes it, can be seen as somehow diminishing the suffering of the victims or questioning the seriousness of the crimes. I’m doing neither of these.
Part of the problem is the way our understanding of the word ‘genocide’ has evolved. The popular understanding of the word is very different from its true legal meaning. Legally speaking hundreds of people can be killed and it’s genocide. Likewise, hundreds of thousands can die and it’s not. Genocide is about motive, not numbers of dead.
But to many people genocide has become something else. It is the worst atrocity that can be committed. It’s the Holocaust, it’s Rwanda, it’s Cambodia. It’s rows of skulls and gas chambers. Hundred of thousands, possibly millions dead. Therefore to argue that something is not genocide is to argue that it’s not as important.
This debate is about far more than semantics. It’s about what sort of solutions are imposed. As I said in my last post on this subject it is a complex problem which requires a complex solution. If we describe it in simple terms we will continue to come up with simple solutions.