John Maynard Keynes was once irritated by a half-witted critic: “When the facts change, I change my mind. What do you do, sir?”
In 2004 I wrote in the London Review of Books, “this is not the genocidal campaign of a government at the height of its ideological hubris, as occurred with the 1992 jihad against the Nuba, or coldly determined to secure natural resources, as occurred when the government sought to clear the oilfields of Southern Sudan of its troublesome inhabitants. This is the routine cruelty of a security cabal, its humanity withered by its years in power, it is genocide by force of habit.”
During those horrific months I wrote that the atrocities in Darfur met the legal definition of genocide, as actions intended to destroy in part an ethnic group. Some enthusiasts of the charge in Darfur have suggested that this means that I subscribe to the entirety of the genocide accusations made against the Sudan Government in general or President Bashir in particular, or even that I subscribe to the “genocide narrative” for Darfur.
To those who make these charges, I say, examine what I wrote and examine the evidence for what is happening.
What was I writing about genocide? First, I contrasted the Darfur counterinsurgency with other episodes in the Sudanese civil war. As the title of the piece — “Counterinsurgency on the Cheap” — should make clear, I subscribe to the view that the intent of those who planned the campaign was counterinsurgency, and that the foreseeable, habitual outcome of such a campaign was massacre, forced displacement, hunger and disease. I did not allege a genocidal plan. Moreover, I took pains to trace the origins of Arab supremacism in Darfur to Libya and Chad, and from there to some elements in the Janjawiid. The Arabism of Khartoum was different. The report of the International Commission of Inquiry into Darfur, headed by Prof. Antonio Cassese, came to a broadly similar conclusion. There was one significant difference: Cassese concluded that because the Sudan Government’s objective was counterinsurgency, that precluded Governmental responsibility for genocidal atrocity. At the time I argued that this objective was not relevant to whether acts of genocide had been committed.
The difference hinges on an interpretation of intent. Can one commit genocide while pursuing another objective — committing genocide in passing — as it were? This would amount to perpetrating a massacre or forced removal — the actus reus of genocide — with criminal intent but not with specifically genocidal intent. In 2004, I argued yes. Since then, lawyers have persuaded me that this would be stretching the law on genocide too far. An identification of genocide also requires a socio-political theory for how and why the crime was committed, and the genocide-as-ancillary-to-counterinsurgency theory of genocide is too contentious. (See my discussion on this issue on 10 February.) I think this conclusion is still up for discussion and this question deserves ongoing debate.
Eric Reeves, in the New Republic, writes that I contributed to the “genocide narrative.” In fact, it should be clear: I was specifically trying to create an alternative genocide narrative. This narrative made genocidal acts subordinate to the objective and means of counterinsurgency. Two other elements to my alternative narrative are worthy of note. First, I argued against international military intervention (though supportive of putting some international troops on the ground as peacekeepers). Second, I argued that we needed to rethink how genocides end. As it happens, I convened a seminar on this topic at the U.S. Holocaust Memorial Museum in January 2004. The overview paper for that seminar specifically challenges the conventional genocide narrative, arguing that most endings are determined by domestic national political processes, not international intervention, and that peace and reconciliation are possible afterwards.
So, it is true that I shifted my position. First, because of the law. It was, perhaps, a minor shift but, a shift across a watershed.
Second, because of the politics. Among the activists who called it genocide in those early days, some were doing so less because they had studied the facts and the law and mostly because they believed it was the best way to get a military intervention. This was intellectually, politically and ethically wrong. However, my efforts to establish an alternative genocide narrative, true to the realities of Sudan, and compatible with finding effective solutions, didn’t get far — it was swamped by the powerful simplicities of the conventional story that presumed a genocidal plan and had international military intervention as its only acceptable outcome. This dominant genocide narrative became an obstacle to action.
And third and most important, the facts changed. Scores of thousands of people were killed in 2003 and 2004 in violence. Most of them were killed by the Sudan government and its allies. A famine was unleashed that killed larger numbers. In 2005 this changed. Violence dropped by 90 percent or more and the humanitarian crisis was brought under control. The figures for this are pretty authoritative. Genocide Intervention Network, an organization with impeccable activist credentials, estimates that about 150 people were killed each month in violence from January to September last year. GI-Net used a variety of open access sources. UNAMID monitoring data, which are not public, give almost exactly the same figure. These data are not exhaustive, but UNAMID has a 24/seven presence in Kalma and some other IDP camps.
We are analyzing the data now. But, what would it mean for the genocide claims if it turned out that more Arabs were killed than non-Arabs? What would it mean if the armed movements were responsible for more killings than the Sudan Government?
Some have questioned why I alerted Sudanese political leaders to the likelihood that the ICC Prosecutor intended to demand an arrest warrant for President Bashir. The first I alerted was Salva Kiir, before I spoke with civil society and opposition leaders including Sadiq al Mahdi. They suggested that it would be advisable to let the President know as well, on the grounds that if he were caught by surprise, there was a danger that he would overreact. I took that advice. I am told the President was angry, but by the time that the official announcement was made on 14 July last year, wiser counsel had prevailed and he responded coolly. He didn’t expel aid agencies, for example.
Why criticize the Prosecutor of the ICC for his genocide charge? Because he’s doing a poor job. It’s not that Bashir is innocent but that with an incompetent prosecution he might be acquitted. Given the wealth of good evidence about crimes committed, the Prosecutor put together an extremely poor case. It is precisely those who are most serious in their criticisms of the Sudan Government and most supportive of the pursuit of justice who should hold the Prosecutor to the highest standards, for these reasons. Imagine if President Bashir were arrested, prosecuted — and acquitted. Antonio Cassese also criticizes him, as do influential legal scholars, precisely because they see the risk of this kind of outcome. Sudanese ambassadors circulate all these critiques of the ICC — overlooking the fact that the discerning reader will see that they actually give the Prosecutor guidance for doing a much better job.
Today, those who cry “ongoing genocide!” do so by force of habit and not force of evidence.
Alex de Waal is the director of Justice Africa. This article was first published in Making Sense of Darfur on 23 March 2009, and it is reproduced here for educational purposes.