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Unformatted text preview: Savannah McDermott Politics of Genocide 20 November 2008 The Call for Intervention
The Case for International Prosecution of Sudanese President Omar al-Bashir for the Genocide in Darfur In 2003, a bloody revolt broke out against the allegedly discriminatory government of Sudan, a country torn by the conflicting ethnic identities of African and Arab. The Arab-dominated government, under the leadership of President Omar al-Bashir, reacted to the African revolt through the use of the Janjaweed, a state-supported Arab militia groupi that, far beyond reasonable suppression of the rebellion, launched a full-blown campaign of violence against African tribes such as the Fur, Zaghawa, Massalit, Jebel, and Arangaii. From the original intent of government control sprung something far more sinister; an ethnically-driven crusade of mass murder, torture, destruction, enforced starvation, rape, and forced resettlement was perpetuated against these African groups, killing anywhere from the United Nations estimate of 70,000 to the estimate of some experts of 300,000, iii displacing 1.65 million to other regions of Sudan and sending 200,000 refugees to neighboring Chad.iv This is a clear-cut case of state-perpetuated crimes against humanity and an arguable case of genocide. Because of the magnitude of these crimes and the role of the government in supporting them, the situation in Darfur calls for international prosecution of President al-Bashir. The African Union has called for suspension of the UN's investigation of the issue,v so it is clear that allowing the case 2 to be handled internally would mean that nearly two million victims would be without the justice they deserve and that an indisputable and unrepentant murderer of a huge portion of the population of his own country would walk free without any retribution, sending a message to future perpetrators of such crimes that their actions are not punishable on a global scale. The international community has the legal right, the preventative obligation, and the moral imperative to act against al-Bashir. "Never Again": Prosecuting Now to Prevent Future Genocidal The international community has an indisputable obligation to do all within its power to prevent genocide, as per Article 1 of the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide, and one of the most vital steps in doing so is the prosecution of perpetrators like al-Bashir. Article 3.25 of the United Nations' Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (R2P) describes threatened punishments as one of the instruments in the "toolbox" of the prevention of genocide, meaning that the prosecution of those who have already committed or orchestrated acts of genocide is essential in the effectiveness of the threat of retribution in prevention of future violations. Article 3.29 continues that the trials of war criminals, as in the cases of Yugoslavia, Rwanda, and Sierra Leone, "will concentrate the minds of potential perpetrators of crimes against humanity on the risks they run of international retribution." If the international statutes against genocidal acts like those of al-Bashir forever remain as toothless warnings on the pages of wordy UN 2 3 documents, their threats of McDermott retribution will always be ignored by bold leaders with murderous intentions. The imprisonment of Rwandan Prime Minister Jean Kambanda for the genocide committed under his leadershipvi was an important step in creating a precedent of international retribution for crimes against humanity, and it is absolutely necessary that this be repeated in the case of al-Bashir and every other future perpetrator of these terrible crimes. After all, is it not reasonable to wonder that had Kambanda been arrested just a few years earlier, perhaps al-Bashir would have reconsidered his actions in light of the consequences suffered by his fellow African tyrant? It is vital that the international community do all within its power to send an unwavering message to future heads of state in positions and states of mind to commit genocidal acts against their people: the international community will act with full force against you and you will be convicted of and punished accordingly for your actions. We must enforce the "never again" message so painfully learned during the Holocaust. This is the only way to prevent such leaders from launching campaigns of violence such as the one we have seen in Darfur. "Genocide": Defining Darfur's Suffering The definition of the crimes perpetuated by the government of al-Bashir is relevant here not because it affects the ability of the international community to intervene, and not because it affects the type or severity of punishment that can be handed down to al-Bashir. It is important because, as stated in the Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, the international legal community as well as the international population has historically 4 viewed genocide as the worst crime that can be committed against humankind. Based on this UN report and further research on the Darfur case, as well as a comparative study of other instances of statesponsored murder, I feel strongly that the Sudanese campaign against its ethnically African population constitutes genocide, and that to call it anything less would be not only an insult to the people who have suffered under the atrocious acts of al-Bashir and his Janjaweed thugs, but a message to other tyrannical leaders that such acts do not amount to worst-regarded crime in the world. The Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General finds that the mass murder in Darfur does not constitute genocide, as per the definition of the UN Convention on the Prevention and Punishment of the Crime of Genocide. In Sections 513-518, the commission argues that although the victims of the state-supported killings, rapes, pillaging, and forced relocations do in fact constitute a cohesive and identifiable and therefore protected social group, there seems to be no explicit intent on the part of the perpetrators to destroy that group in part or in whole. A careful reading of the report itself reveals that this is categorically and patently false. It observes that in many cases, the militias did not destroy entire villages, but only killed the men, revealing intent to eliminate only potential rebels, not the tribal groups themselves. However, during the 1915-1918 violations against the Armenian population of Turkey, which have since been formally recognized as acts amounting to genocide by twenty-one nations including Canada, Germany, Italy, and France, forty-two individual states of the US, and the International Association of Genocide Scholars,vii one of the 4 5 central efforts of the Young McDermott Turks was the forced conscription of Armenian men into the military, where they were assigned to hard labor units and worked to death. This is genocide defined by Article 2 of the 1948 convention, as it is an "attempt to destroy...in part...a nation, racial, ethnic, or religious group...[by] killing members of the group." As the committee on Darfur revealed no evidence beyond the restriction of murder to men in a few scattered cases to support its claim that the militias only sought to eliminate the rebels, its argument that the Sudanese government did not support genocidal behavior is extremely weak. The use of rape in Darfur also constitutes genocide. In his request for a warrant of arrest for al-Bashir, International Criminal Court prosecutor Luis Moreno-Ocampo argues that the rapes committed against African women also constitute an effort to destroy this ethnic group through the forced and intentional production of "Janjaweed babies," who are seen as ethnically separate from the targeted group.viii These rapes paired with the murder of the African men amount to "imposing measures intended to prevent births within the group," which is defined as genocide under the UN Convention. The classification of the actions of al-Bashir as genocide is extremely important because this crime is internationally recognized as the worst that can be committed, and to send a message to future perpetrators the international community must call al-Bashir what he is--a murderer of the absolute worst kind. This is vital in the effort to prevent future genocidal acts, which is the ultimate goal of the prosecution of perpetrators. "We Undertake to Punish" :The Legal Right and Obligation to Prosecute 6 The international community also has the legal right to prosecute Omar al-Bashir. If one takes the abovepresented evidence as proof of al-Bashir's guilt of the crimes of genocide, direct and public incitement to commit genocide, and complicity in genocide, then Article 4 of the UN's own 1948 convention applies: "persons shall be punished, whether they are constitutionally responsible rulers, officials or private individuals." This clearly applies to al-Bashir. Even if one takes the UN committee's inadequate argument against the presence of genocide in this appalling case to be true, there are still plenty of legal bases for an international prosecution of Omar al-Bashir. The principles of the Nuremburg Trials, the product of the first internationally-recognized case of genocide, assert that crimes under international law are punishable, that internal laws protecting violent acts on the part of a national leader do not exempt that leader from responsibility under international law, and that a Head of State is not exempt from punishment on account of his position.ix Nowhere is the crime of genocide specifically defined; all violent crimes committed against a population, whether categorized as genocide, war crimes, or crimes against humanity, fall under the principles laid out in this document. More recently, the 2005 World Summit produced the following statement, which was reaffirmed and adopted in 2006 by the UN Security Council Resolution 1674: Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity... The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other 6 7 peaceful McDermott means... to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council... on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.x Whether or not we can specifically define Omar al-Bashir's heinous actions against his own people as genocide as the crime is defined in the 1948 UN convention, there is absolutely no argument for his innocence in committing war crimes and crimes against humanity. There is therefore a strong legal basis for the international prosecution of this reprehensible leader. "As Fellow Members of the Human Race" : The Moral Obligation to Prosecute The international community has not only a legal right, but also the highest moral obligation to prosecute evil as it takes form in rulers like Omar al-Bashir. The very foundations of our own nation, fundamental ideals that we as Americans hold so dearly in our national consciousness, explicitly assert the right of every person to life, liberty, and the pursuit of happiness. As any act of genocide is an overt denial of these sacred principles, are we not obligated, as a nation of free people dedicated to these inalienable 8 rights, to do all within our power to protect all fellow members of the human race from such victimization? And if we are unable to or fail to prevent such violations, are we not morally obligated to pursue the punishment of the perpetrators in an effort to send a message to future would-be perpetrators of the personal consequences of their actions? As a leading member of the UN Security Council, which holds the most power to act in these cases, and one the most powerful nations on the globe, we have an obligation to use our influence to the benefit of the worst-positioned people of the world, the most obvious of whom are victims of state-perpetuated or sanctioned genocide. This obligation applies not only to America, but to the international community as a whole, as the violation of human rights in one small part of the world is in essence a violation of human rights everywhere. Arguments that the interference of the international community undermines state sovereignty pale to the argument that the lives of individuals subjected to genocidal acts are far more precious than the autonomy of a state, particularly when that state's leaders are the perpetrators, as is the case in Sudan, where a dictatorial leader has organized and supported the mass murder, rape, and displacement of his own people. The law supports the moral argument here: According to the R2P document, "The defense of state sovereignty... does not include any claim of the unlimited power of a state to do what it wants to its own people."xi The report finds that sovereignty implies obligations the people, and should a sovereign state fail to fulfill those obligations, the international community has the right to disregard the state's claim to sovereignty and intervene on behalf of the people. And that is exactly what we must do in the case of Darfur; the 8 9 African Union's call for the McDermott cessation of the investigation of the situation and of al-Bashir's role in it must be ignored and the prosecution of the President must be pursued, because although state sovereignty and self-rule is important, nothing can override our fundamental rights as human beings, which have been horribly violated in Darfur. "Only One Course of Action" The international community has the preventative obligation, the legal right, and the moral imperative to bring President Omar al-Bashir to justice for his role in the mass murder, torture, destruction, enforced starvation, rape, and forced resettlement that has been perpetuated against the ethnically African groups of the Darfur region of Sudan. The prosecution of this war criminals in vital in sending a message to future would-be perpetrators, is justifiable according to decades of international legal statutes, and is a moral obligation of all those who have the power to act on behalf of the victims. The argument for the preservation of state sovereignty, while relevant to cases in which human life is not at stake, is weak here; although self-rule and nonintervention are important parts of our international system, no imperative can override that of the sanctity of human life and the obligation of all capable parties to protect it from those who would violate the fundamental rights to which every person on Earth is entitled. As the head of the Sudanese government is the primary perpetrator and the African Union denies the legitimacy of claims against him, there will be no internal retribution for the actions of the President. Therefore, failure on the part of the international community to prosecute al-Bashir would be a failure to act in the most powerful way to prevent future cases of 10 genocide, to fulfill the legal rights and obligations of the international community in such a case, and to bring to justice a man who orchestrated the deaths of thousands and the displacement of millions in an attempt to destroy an ethnic group. There is only one suitable course of action in this case; President Omar al-Bashir must be apprehended and made to face an international criminal tribunal for his crimes. 10 i Nicholas D. Kristof, "Ethnic Cleansing, Again." (The New York Times, 24 March 2004).
i "Report of the International Commission of Inquiry on Darfur to the United Nations SecretaryGeneral." (Geneva: 25 January 2005. <http://www.un.org/News/dh/sudan/com_inq_darfur.pdf#search=%22un%20report%20darfur %20genocide%22>. Accessed 29 Oct. 2008) p3. Smith, Russel. "How many have died in Darfur?" (BBC News, 16 February 2005. <http://news.bbc.co.uk/1/hi/world/africa/4268733.stm>. Accessed 4 Nov. 2008). iii
i "Report of the International Commission of Inquiry on Darfur to the United Nations SecretaryGeneral." (Geneva: 25 January 2005. <http://www.un.org/News/dh/sudan/com_inq_darfur.pdf#search=%22un%20report%20darfur %20genocide%22>. Accessed 29 Oct. 2008) p3. v
v Dicker, Richard and Georgette Gagnon. "AU: Do Not Call for Suspending ICC's Investigation of President al-Bashir: Letter to the African Union Peace and Security Council." (19 Sept. 2008. <http://hrw.org/english/docs/2008/09/18/sudan19848.htm>. Accessed 29 Oct. 2008). McKinley, James C. "Ex-Rwandan Premier Gets Life in Prison On Charges of Genocide in '94 Massacres." (The New York Times, 5 Sept. 1998). Armenian National Institute. "Frequently Asked Questions about the Armenian Genocide." (<http://www.armenian-genocide.org/ genocidefaq.html#acknowledged>. Accessed 29 Oct. 2008). Moreno-Ocampo, Luis. "Prosecutor's Statement on the Prosecutor's Application for a warrant of Arrest under Article 58 Against Omar Hassan Ahmad AL BASHIR." (The Hague, 14 July 2008. <http://www.icc-cpi.int/library/organs/otp/ICC-OTP-ST20080714-ENG.pdf>. Accessed 4 Nov. 2008) p4. "Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgement of the Tribunal, 1950. (<http://www.icrc.org/ihl.nsf/FULL/390? OpenDocument>. Accessed 4 Nov. 2008). vi
x United Nations General Assembly. "2005 World Summit Outcome." (24 Oct. 2005. <http://daccessdds.un.org/doc/UNDOC/GEN/N05/487/60/PDF/N0548760.pdf? OpenElement>. Accessed 4 Nov. 2008) p30. United Nations International Commission on Intervention and State Sovereignty. The Responsibility to Protect. (Dec. 2001. <http://www.iciss-ciise.gc.ca/pdf/CommissionReport.pdf>. Accessed 29 Oct. 2008) Article 1.38. xi
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