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Global Rights Host Discussion on the Continuing Crisis in Darfur: The United Nations Response
Wednesday, February 16th, 2005Source: Global Rights, 16 February 2005
A distinguished panel of experts gathered at Global Rights’ Washington, DC
headquarters to address an audience of more than 100 guests on the subject
of the United Nations’ response to the ongoing crisis in Darfur, Sudan.
Moderated by Global Rights’ Board Chair Jim Fitzpatrick, the speakers – Kelly
Askin, Senior Legal Officer of the International Justice Program at the Open
Society Institute; Salih Booker, Executive Director of Africa Action; Omer Ismail,
co-founder of Darfur Peace and Development; and David Scheffer, former U.S.
Ambassador at Large for War Crimes Issues – reacted to the recent U.N. report
on Darfur and analyzed the legal and political issues embedded in the
continuing emergency.
The United Nations’ report concentrated on the categories of crimes that have
been committed in Darfur and on how the perpetrators should be brought to
justice. The authors, who had only three months to investigate and report their
findings, concluded that while war crimes and crimes against humanity had
taken place, there had been no state policy of genocide (though, they said,
individuals may have acted with genocidal intent). They recommended that the
U.N. Security Council refer the case to the International Criminal Court (ICC).
The conclusions on genocide, Mr. Booker noted, were seemingly based on
“relatively meaningless anecdotal evidence” and did not adequately consider
patterns of behavior from which intent-a necessary component of genocide-
could be inferred. Ms. Askin similarly explained that the crimes of extermination
and persecution are common means of committing genocide and argued that
once the authors “found the government of Sudan and the janjaweed [Arab
militias] committed extermination and persecution, it’s inconsistent to turn
around and not find genocide.”
Focusing on the report’s quick production, Mr. Booker pointed out that the
authors faced “not just limitations of time, but limitations on government
cooperation.” Ms. Askin concurred. “For them to conclude that no genocide
was committed was somewhat outrageous,” she said. “They could have said
‘we don’t have explicit evidence [of it].’”
So why did the U.N. Commission make such a finding? Some panelists
suggested it was a political decision. Recalling Sudan’s North-South peace
agreement signed just last month, Mr. Ismail asked, “If we prove beyond a
reasonable doubt that the government of Sudan committed genocide, will that
government be a true partner in peace?” Mr. Booker similarly made clear, “If
there is genocide and the government is the author of crimes, then [the
international community’s] obligation is to protect the people of Darfur from the
government.”
Ambassador Scheffer stressed that a strict legal finding of genocide might take
years to prove, and argued that more flexibility with the term is needed when
atrocities are being committed. “We need to find a methodology by which
governments are able to identify policies of genocide underway without having
to take the final step-the legal step-of determining responsibility,” he
explained. Mr. Booker agreed. Noting that the relevant treaty is the Convention
on the Prevention and Punishment of the Crime of Genocide (italics added), he
said, “you have an obligation to prevent genocide even before you have the
legal definitions all sorted out.”
Panelists expressed some optimism that the Security Council might ultimately
refer the case to the ICC as the report recommended, despite the concerns of
three veto-wielding members of the Security Council: the United States (which
fears Americans might someday be brought before the court) and China and
Russia (which have significant economic interests in Sudan).
Ambassador Scheffer noted that a future Security Council resolution “could
frame a referral to the ICC in a way that is so unthreatening to the United States
and its own exposure to the ICC that it would be hard to vote against the
referral.” But, he made clear, this assumes the United States, while refusing to
become party to the ICC, does not want to undermine the court’s very
existence-an assumption Ambassador Scheffer said is no longer clear.
Ambassador Scheffer also argued that peacekeepers should be sent to Darfur,
preferably through a Chapter VII decision of the Security Council. But, he said, if
this is not possible, at least two other options remain. “The U.S. and the
government of Chad could put together a response [intervening in Darfur] based
on collective self defense,” that would be legal under the U.N. Charter, he said.
Or we could “create a no-fly zone over Darfur and have NATO enforce it with the
cooperation of Chad and possibly Egypt.”
Summing up the gravity of the situation, Mr. Ismail told the audience that the
situation in Darfur today is “much worse than when it was called the worst
humanitarian crisis in the world.” Noting that two million of Darfur’s six million
people have already been displaced from their homes and villages, he said that
the most important thing now is “to protect these very people who have been
uprooted.” And Mr. Booker made clear that “absent international intervention,
this genocide will continue.” After noting that the U.S. “government is the only
one in the world that has recognized [what is happening] as genocide” he
concluded: “It has an obligation to act.”
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