The Specific Intent Required for a Determination of Genocide in Darfur
The Specific Intent Required for a Determination of Genocide in Darfur
Author: Paul Vernon
Contributing Authors: Ari Bassin, Brian Crow
Faculty Advisor: Mary Holland
Issue:
We have been asked to prepare an analysis of the pertinent law and facts to a finding of whether the situation in Darfur presents compelling evidence of specific intent to commit genocide. We have been asked whether or not the situation in Darfur should be denominated “genocide” as that crime is defined in the Convention on the Prevention and Punishment of the Crime of Genocide and the Rome Statute of the ICC. Constituent acts of genocide have been and are being committed – murder, rape, forced displacement, denial or blocking of humanitarian aid and other acts that make conditions of life impossible to sustain. We have focused in this memo on whether such acts were or are being committed with “the intent to destroy, in whole or in part, a national ethnical, racial or religious group, as such.” We hope, however, that regardless of the legal denomination for the situation occurring in Darfur, the international community will take urgent action to curb current suffering and to prevent future atrocities in Darfur.
Short Answer:
Based on the evidence at our disposal, Darfur does not present a clear-cut case of genocide. The evidence of genocidal intent is equivocal; reasonable minds may differ as to whether genocide, as legally defined and interpreted to date, has occurred in Darfur. Some attacks on villages evidence genocidal intent. And without question the situation poses the grave risk of genocide. But we are unable to conclude that genocide has occurred in Darfur based on the facts at our disposal in light of existing jurisprudence.
The Law
The definition for genocide has been static since its inception in the Genocide Convention. The identical definition set out in the Convention appears in the statutes of the ICTY and the ICTR, and in the Rome Statute. This definition has been applied in the cases before the ICTY and ICTR where individuals were accused of genocide. The judgments in these cases are not binding authority, but they are the most relevant and persuasive authority available. Material from the travaux préparatoires of the Genocide Convention and the ILC Draft Code on Crimes is also relevant to the analysis of the crime of genocide. Genocide is defined as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:”
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.[1]
Actus Reus of Genocide
The actus reus required for genocide is satisfied by the commission of any of the acts listed (a) through (e) in the definition.[2]
Mens Rea of Genocide
1. Specific Intent Generally
Genocide requires that the enumerated acts be committed with the specific intent to destroy one of the groups protected by the statute. Acting with specific intent is equivalent to acting with the purpose to destroy a group.[3] Merely possessing the knowledge that the consequences of one’s actions will lead to the destruction of a group is not sufficient.[4] The ICTR stated that “[g]enocide is distinct from other crimes inasmuch as it embodies a special intent or dolus specialis. Special intent of a crime is the specific intention, required as a constitutive element of the crime, which demands that the perpetrator clearly seeks to produce the act charged. Thus, the special intent in the crime of genocide lies in "the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such."[5]
However, the existence of a non-genocidal motive does not preclude a finding of specific intent to destroy a group. The ICTR held that it is possible for a perpetrator of genocide to act both out of the specific intent for genocide and a different personal motive such as “to obtain personal economic benefits, or political advantage or some form of power. The existence of a personal motive does not preclude the perpetrator from also having the specific intent to commit genocide.”[6] The destruction of a group does not need to be the primary objective of a perpetrator of genocide – a non-genocidal situation can turn into an instance of genocide:
It is conceivable that, although the intention at the outset of an operation was not the destruction of a group, it may become the goal at some later point during the implementation of the operation. For instance, an armed force could decide to destroy a protected group during a military operation whose primary objective was totally unrelated to the fate of the group.[7]
Genocide may occur during an armed conflict, but is distinct from that conflict. ICTR distinguished between the Rwandan genocide and the conflict between the Rwandan army and the RPF rebels which “can in no way be considered as an extenuating circumstance for” the genocide.[8]
2. Premeditation
Genocide requires some level of premeditation. According to the ICTR, “for the crime of genocide to occur, the mens rea must be formed prior to the commission of the genocidal acts. The individual acts themselves, however, do not require premeditation; the only consideration is that the act should be done in furtherance of the genocidal intent.”[9] However, the existence of an actual plan to destroy a group does not need to be proved since “the existence of a plan or policy is not a legal ingredient of the crime.”[10] Nevertheless, the nature of the crime of genocide is such that, in most cases, there would be a plan. The ICTR stated that “it would appear that it is not easy to carry out a genocide without such a plan, or organisation.”[11] The Court also held that “it is virtually impossible for the crime of genocide to be committed without some [sic] or indirect involvement on the part of the State given the magnitude of this crime.”[12]
3. “Intent to Destroy in Whole or in Part”
i. “Destroy”
The Genocide Convention proscribes only the physical or biological destruction of a group. The acts enumerated in the definition all lead to the physical and biological destruction rather than cultural, economic or any other kind of destruction. The wording of the “genocide” definition does not preclude an interpretation that the constituent acts could be committed with the intent to destroy a group in some non-physical manner. For example, it is possible that a perpetrator of multiple attacks including the acts enumerated in the genocide definition against group members might intend to subjugate and control the group and deprive it of its ability to exist as a cultural entity but not intend to destroy or eliminate the group biologically. Such attacks would not constitute genocide because, according to the ILC Draft Code of Crimes, genocide is limited to the “material destruction of a group either by physical or biological means.”[13] The ICTY stated that:
[C]ustomary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group. Hence, an enterprise attacking only the cultural or sociological characteristics of a human group in order to annihilate these elements which give to that group its own identity distinct from the rest of the community would not fall under the definition of genocide. The Trial Chamber however points out that where there is physical or biological destruction there are often simultaneous attacks on the cultural and religious property and symbols of the targeted group as well, attacks which may legitimately be considered as evidence of an intent to physically destroy the group.[14]
Therefore, forced assimilation, even where it is accomplished with brutality, is not genocide. However, an attempt to destroy a culture may be a preliminary step to genocide.[15]
Not all examples of ethnic cleansing are instances of genocide, but a project of ethnic cleansing can demonstrate genocidal intent. The ICTY said that mass deportations that were part of a project of ethnic cleansing (defined as “the project of an ethnically homogeneous State…envisag[ing] the exclusion of any group not identified with the Serbian one”[16]) “may be construed as the first step in a process of elimination.”[17]
The destruction intended must be physical or biological and the perpetrator of genocide can intend to accomplish this in a variety of methods. It is recognized that rape is one such method:
[T]he Chamber holds that the measures intended to prevent births within the group, should be construed as sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages. In patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother's group. Furthermore, the Chamber notes that measures intended to prevent births within the group may be physical, but can also be mental. For instance, rape can be a measure intended to prevent births when the person raped refuses subsequently to procreate, in the same way that members of a group can be led, through threats or trauma, not to procreate.”[18]
The perpetrator of genocide can also intend to destroy a group through less direct means:
[T]he Chamber is of the opinion that the means of deliberate inflicting on the group conditions of life calculated to bring about its physical destruction, in whole or part, include, inter alia, subjecting a group of people to a subsistence diet, systematic expulsion from homes and the reduction of essential medical services below minimum requirement.[19]
Additionally, the Court has held that the systematic rape of women with the intention of giving a new ethnic identity to the child as well as the destruction of churches and mosques demonstrated genocidal intent since those acts were intended to “reach the very foundations of the group.”[20]
ii. “In Whole or In part”
Genocide does not require an intent to destroy the entire group; intent to destroy a group “in part” is sufficient. However, an intent to destroy any part of the group, no matter how small, does not necessarily satisfy this requirement. The part selected for destruction must have either qualitative or quantitative significance. The ICTY held that the individuals selected for destruction must be important to the group as a whole, as would be the group’s leadership or all of its military-aged men. The intent may “consist of the desired destruction of a more limited number of persons selected for the impact that their disappearance would have upon the survival of the group as such.”[21] The ICTR has required the intent to destroy “a considerable number of individuals”[22] or “a substantial part of the group.”[23] The ILC Draft Code of Crimes also suggests that an intent to destroy a less-than-substantial part of the group would not be sufficient: “the intention must be to destroy the group ‘as such,’ meaning as a separate and distinct entity, and not merely some individuals because of their membership in a particular group.”[24]
The “in part” element is also satisfied by an intent to destroy the part inhabiting a limited geographic zone.[25] It is not clear how large the zone must be. The Krstic trial chamber was discussing destruction within a “region,”[26] and there is disagreement about whether the intent to destroy a group in a geographical zone as small a town is sufficient.[27]
4. “A National, Ethnical, Racial or Religious Group, as Such”
i. The Protected Groups
Genocide is a crime targeting “only ‘stable’ groups, constituted in a permanent fashion and membership of which is determined by birth, with the exclusion of the more ‘mobile’ groups which one joins through individual voluntary commitment, such as political and economic groups.”[28] There are no wholly objective criteria for determining whether any particular group is protected by the Genocide Convention; rather this determination is made on a case-by-case basis.[29] The ICTR in Rutaganda used a subjective definition of a group: the victim of genocide must have been perceived to be a member of the group by the perpetrator. However, the Court required that some objective factors, such as “political, social, and cultural context,” be taken into account.[30]
A national group is defined as “a collection of people who are perceived to share a legal bond based on common citizenship, coupled with reciprocity of rights and legal duties.”[31] An ethnic group is defined as “a group whose members share a common language or culture.”[32] A racial group is defined “based on the hereditary physical traits often identified with a geographical region.”[33] A religious group is defined as a group “whose members share the same religion, denomination or mode of worship.”[34]
ii. “As Such”
The perpetrator of genocide must have the purpose of destroying a group, and his or her
“victim is chosen not because of his individual identity, but rather on account of his membership of a national, ethnical, racial or religious group. The victim of the act is therefore a member of a group, chosen as such, which, hence, means that the victim of the crime of genocide is the group itself and not only the individual must be targeted by reason of their membership, not specific individuals.”[35]
However, genocide can take place in situations where it is not clear whether victims are chosen because of their membership in a protected group or in their membership in some other kind of group. The ICTR said:
The association of the Tutsi ethnic group with a political agenda, effectively merging ethnic and political identity, does not negate the animus that motivated the Accused. To the contrary, the identification of Tutsi individuals as enemies of the state associated with political opposition, simply by virtue of their Tutsi ethnicity, underscores the fact that their membership in the ethnic group, as such, was the sole basis on which they were targeted.[36]
5. Intent Can be Inferred from the Circumstances
Specific intent to destroy a group can be demonstrated explicitly by a confession by the accused or by statements made by the accused prior to or during the genocide.[37] However, specific intent “can be, on a case-by-case basis, inferred from the material evidence… including the evidence which demonstrates a consistent pattern of conduct by the Accused.”[38] Factors from which the ICTR and ICTY held that specific intent can be inferred include:[39]
· “[T]he physical targeting of the group or their property.”[40]
· “[T]he fact of deliberately and systematically targeting victims on account of their membership of a particular group, while excluding the members of other groups."[41]
· “[T]he use of derogatory language toward members of the targeted group.”[42]
· “[T]he weapons employed and the extent of bodily injury.”[43]
· “[T]he methodical way of planning,”[44] “the systematic manner of killing,”[45] and “the repetition of destructive and discriminatory acts.”[46]
· The “general political doctrine which gave rise to” the constituent acts of genocide.[47]
· The “perpetration of acts which violate, or which the perpetrators themselves consider to violate the very foundation of the group - acts which are not in themselves covered by the list in [the definition of genocide] but which are committed as part of the same pattern of conduct.”[48]
· “The scale of the atrocities committed”[49] and “the number of victims from the group.”[50]
None of these factors are necessary and it is not clear what configuration of them would be sufficient.
In determining that genocide took place in Rwanda, the Akayesu Trial Chamber considered testimony about the number of deaths and extent of the killing, the fact that Tutsis were clearly singled out, the use of roadblocks, statements made by various people including political figures and popular songs to the effect that all Tutsis were to be eliminated, measures (such as cutting Achilles’ tendons) taken to prevent victims from fleeing before they could be killed, the killing of newborn babies and pregnant women, and the use of the media to incite the killing of Tutsi civilians.[51]
In Kayishema, the Court inferred genocidal intent from (a) evidence that there was a genocidal plan such as the existence of execution lists, the use of the media to incite killing, and the speed with which roadblocks were erected at the beginning of the genocide; (b) the cruelty with which civilians carried out the massacres suggesting an understanding that civilians were authorized to kill Tutsis with impunity; and (c) the fact that 800,000 people were killed.[52] Akayesu and Kayishema suggest that in the absence of a clear statement of a perpetrator’s genocidal intent, a tribunal may infer genocidal intent after examining the circumstantial evidence of such intent.
The Situation in Darfur
1. Intent to Destroy in Whole or in Part
i. “Destroy”
Intent to destroy can be inferred in part from “the physical targeting of the group or their property.”[53] There have been frequent killings and rape in Darfur of individuals in certain ethnic groups. Genocidal intent can be inferred from instances of mass executions[54] and from evidence that male babies have been targeted for killing.[55] Genocidal intent can be inferred from victims’ testimony about perpetrators’ statements. One victim interviewed by Human Rights Watch stated:
The military told us they would erase us. We asked why they wanted to hurt us and they answered that it was none of our business, that orders came from above.[56]
Genocidal intent can be inferred from rape because of the impact widespread rape can have on a group’s ability to reproduce and because the resultant child’s ethnicity would be the ethnicity of the father.[57] There are reports of Janjaweed rapists telling their victims that they are raping them so that the victims will have Arab children.[58]
Some of the killings seem to have been opportunistic and are associated with looting and stealing land[59] and, thus might not support the inference of genocidal intent.[60] Opportunistic looting does not demonstrate genocidal intent, nor does it preclude it, and there are reports of attacks on property that are clearly intended to “violate the very foundation of the group.” [61] During attacks Janjaweed have destroyed mosques, killed religious leaders, and defecated on Qorans.[62] Also the government and militia have deliberately destroyed sources of water, schools and hospitals, thus inflicting unbearable living conditions.[63]
Intent to destroy can be inferred in part from “the weapons employed and the extent of the bodily injury.”[64] At certain times the government has created obstacles to prevent humanitarian aid from reaching the region. As the population has become dependent on aid, Khartoum has denied or significantly hampered aid attempts.[65] The government’s refusal to allow humanitarian assistance to reach displaced persons in Darfur during the crucial months from October 2003 to January 2004[66] has had catastrophic effects on the displaced persons. The government surely knew what effect the denial of humanitarian aid would have and such a denial might be construed as having been “calculated to bring about” the groups’ “physical destruction in whole or in part.” In general, however, such a denial of humanitarian aid must be executed with the specific intent to destroy the group; proving that the perpetrator knew the consequences alone is insufficient.[67] It is not clear what the government intended by closing off the area to aid. Arguably its purpose may have been to prevent aid from falling into the rebels’ hands.[68]
Intent to destroy can be inferred in part from the “methodical way of planning” and “the systematic manner of killing.”[69] The attacks on villages in Darfur involve a high level of coordination and planning, often between government forces and the militia.[70] Many attacks involve aerial bombardment. The campaign to remove Fur, Masalit and Zaghawa from their land relies heavily on a coordinated system of roadblocks.[71]
ii. “In Whole or In Part”
This part of intent may be inferred in part from “the scale of the atrocities”[72] and “the number of victims from the group.”[73] The part of the population at risk of dying is “considerable” or “substantial” by any standard, especially as people are prevented from returning to their villages and their means of producing food and water are destroyed. Currently, the number of victims of murder probably does not satisfy the requirement of a “considerable” or “substantial” number when compared to the population as a whole. In Sikirica, the ICTY found that a murder rate of 2.8% did not demonstrate the intent to destroy a group in part. The 80,000 people estimated to have been killed in Darfur are 3.2% of the 2.5 million displaced. Of course, number of people murdered is not dispositive of the question about intent. The relevant question, however, is not just about the number of people who have actually died, but also the part of the group intended to be destroyed.
Intent can be inferred in part from “the systematic manner of killing”[74] and the “repetition of destructive and discriminatory acts.”[75] The attacks are clearly organized and they are widespread. Few Fur and Masalit communities have been spared; those that have not been attacked have often paid protection money to the militia or may have political connections.[76]
There is some evidence that individual victims are chosen “for the impact that their disappearance would have upon the survival of the group as such.” There are reports that the Janjaweed have been rounding up and killing community leaders and targeting men.[77] However, the general pattern seems to be of indiscriminate killing of all villagers. In many cases, most of the victims are elderly people who could not flee villages before attacks.[78]
2. “A National, Ethnical, Racial, or Religious Group As Such”
i. Fur, Masalit and Zarghawa are Ethnic Groups
The Fur, Masalit, and Zaghawa groups satisfy the requirements for ethnic groups. They are permanent and stable.[79] Each group has a distinct language and culture.[80] These groups are identified as being distinct groups by their attackers who claim that all Fur, Masalit and Zaghawa are rebels.[81] More recently the attacks in Darfur and elsewhere in the country have broadened so that singling out the Fur, Masalit and Zaghawa is less relevant. However, the conflict continues to break down along Arab and non-Arab lines.[82] A group defined by the attackers as non-Arab and of African descent would meet the requirements for an ethnic group; the African groups (called “Zurga”) are defined by the facts that they do not speak Arabic as their native language and that they are farmers (with the exception of the Zaghawa, who are nomadic).[83]
ii. The Attacks are Directed at the Groups “As Such”
Intent can be inferred in part from “the fact of deliberately and systematically targeting victims on account of their membership of a particular group, while excluding the members of other groups.”[84] Attacks on villages and other acts of discrimination are clearly directed at Fur, Masalit and Zaghawa. The Sudanese “government forces also regularly arbitrarily detained and sometimes tortured Fur, Zaghawa, and Masalit students, political activists, and other individuals in Darfur and Khartoum suspected of having any allegiance to the rebel movements.”[85]
The government may claim that the attacks are part of a strategy to conduct a counterinsurgency (though it is a strategy that “deliberately targets the civilian population”[86]), and the attacks may be motivated by perceptions on the part of (or at least statements by) government and militia leaders that all Fur, Masalit and Zaghawa are rebels. However, the association of the rebel agenda with the ethnicity of the victims “does not negate the animus that motivated” the attacks, but rather “underscores the fact that their membership in the ethnic group, as such, was the sole basis on which they were targeted.”[87]
Intent can be inferred in part from “the use of derogatory language toward members of the targeted group.”[88] The attacks in Darfur are often accompanied by derogatory language.[89] One third of those interviewed in a refugee camp by the State Department reported hearing racial epithets during attacks.[90] Janjaweed refer to Fur, Masalit, and Zaghawa as “slaves.”[91] There are reports of statements by attackers such as “You blacks, you have spoilt the country!…We will kill your husbands and sons and sleep with you! You will be our wives!”[92] In particular, rapes are frequently accompanied by derogatory language. “In a particularly brutal incident with clear racial overtones, an eighteen-year-old woman was assaulted by janjaweed who inserted a knife in her vagina, saying, ‘You get this because you are black.’”[93]
Intent can also be inferred in part from the “general political doctrine which gave rise to” the constituent acts of genocide. Victim testimony suggests a Janjaweed political doctrine of Arab superiority and of the Janjaweed’s intent to “Arabize” Darfur through the violent displacement of non-Arabs. [94] We are unaware, however, of other evidence, such as documents or public broadcasts, of the government’s or the Janjaweed’s political doctrine to incite genocide.
3. Insufficient Evidence of Intent for Biological or Physical Destruction
The government and militia attacks on villages are at least part of a counterinsurgency against the SLA and JEM. It seems unlikely that the government intends to fight the rebels by destroying the entire civilian population. It is more likely that the government intends to subjugate and control the civilian population through forced displacement.[95] Such a policy would be similar to the methods the government has used over the past 20 years in southern Sudan.[96] These practices of forced displacement have led to suffering on a massive scale but have not resulted in the physical or biological destruction of any group protected under the Geneva Convention of which we are aware, and it does not seem to have been the government’s intention to destroy any of the groups affected, as such. Rather, the government’s policy was to subjugate and control the Southern civilian population through forced displacement and assimilation. Such a policy is not genocidal although it probably constitutes a crime against humanity.
By all appearances, the Janjaweed militia does not entirely share the government’s agenda. The Janjaweed’s primary objective in carrying out the attacks is its economic interest in the land that it takes from the victims of the attacks. Evidence for this is that many of the attacks are along the nomads’ migration routes, where the land is most valuable to them. [97] Again, it does not matter what the attacker’s primary or initial objective or motivation was as long as the attacks were carried out with the specific intent to destroy a group. While there are circumstances from which specific intent might be inferred, there is insufficient evidence that the overall pattern of attacks demonstrates intent on the part of the Janjaweed to destroy any of the groups in whole or in part.
4. Risk of Genocide
There are particular incidents from which an intent to destroy a group might be inferred. The attack at Tawila was characterized by extreme brutality; it included public gang rapes, mutilation and branding “apparently in an effort to permanently stigmatize the victims.”[98] The lack of security in the region and the government’s failure to prosecute those responsible for the attacks[99] has created a “climate of impunity.”[100] The situation should be compared to the situation the ICTR described in Kayishema: the cruelty with which Tutsis were killed by civilians was “facilitated by…an understanding that the encouragement of the authorities… guaranteed them impunity to kill the Tutsis and loot their property.”[101] What might be defined currently as ethnic cleansing could be the “first step in a process of elimination.”[102] Even if it is not possible to infer the specific genocidal intent required by the legal definition, conditions pose the grave risk of genocide.
Conclusion:
The situation in Darfur poses the grave risk of genocide. Existing evidence is equivocal as to whether genocide has occurred to date.
[1] Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature Dec. 9, 1948, art. 2, 78 U.N.T.S. 277, 280.
[2] An in depth analysis of the actus reus of genocide is outside the scope of this memo. We are assuming for the purposes of this memo that at least several of the constituent acts included in the definition of genocide have been committed in Darfur.
[3] John D. Van der Vyver, The International Criminal Court and the Concept of Mens Rea in International Criminal Law, 12 U. Miami Int’l & Comp. L. Rev. 57, 61-72. The dolus specialus required by genocide is a form of dolus directus. The civil law mens rea categories of dolus directus, dolus indirectus, and dolus eventualis more or less map onto the common law categories of purpose, knowledge and recklessness respectively.
[4] Id. Van der Vyver defines dolus directus to require knowledge of consequences and the desire for those consequences.
[5] Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, ¶ 498 (Trial Chamber, Sept. 2, 1998).
[6] Prosecutor v. Jelisic, Case No. IT-95-10, Judgment, ¶ 49 (Appeals Chamber, July 5, 2001).
[7] Prosecutor v. Krstic, Case No. IT-98-33, Judgment, ¶ 572 (Trial Chamber, Aug. 2, 2001).
[8] Akayesu, ¶ 128.
[9] Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgment, ¶ 91 (Trial Chamber, May 21, 1999).
[10] Jelisic, ¶ 48.
[11] Kayishema and Ruzindana, ¶ 94.
[12] Id. (citation omitted)
[13] Draft Code of Crimes Against the Peace and Security of Mankind, in Int’l Law Comm’n, Report of the International Law Commission on the Work of Its Forty-Eighth Session, U.N. GAOR, 51st Sess., art. 17, comment 12, U.N. Doc. GA A/51/10 (1996) [hereinafter ILC Draft Code of Crimes].
[14] Prosecutor v. Krstic, Case No. IT-98-33, Judgment, ¶ 580 (Trial Chamber, Aug. 2, 2001).
[15] See the ICTY’s conclusion that General Krstic knew that the original objective of ethnic cleansing to be accomplished by forced transfer was transformed into genocide. Id. ¶ 622.
[16] Prosecutor v. Mladic and Karadzic, Case Nos. IT-95-5-R61 and IT-95-18-R61, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, ¶ 94 (July 16, 1996).
[17] Id.
[18] Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, ¶¶ 507-08 (Trial Chamber, Sept. 2, 1998).
[19] Id. ¶ 506.
[20] Id.
[21] Prosecutor v. Jelisic, Case No. IT-95-10, Judgment, ¶ 82 (Trial Chamber, Dec. 14, 1999).
[22] Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgment, ¶¶ 96-97 (Trial Chamber, May 21, 1999).
[23] Prosecutor v. Baglishema, Case No. ICTR-95-1A-T, Judgment, ¶ 64 (Trial Chamber, June 7, 2001). See also Prosecutor v. Krstic, Case No. IT-98-33, Judgment, ¶ 634 (Trial Chamber, Aug. 2, 2001); Jelisic, ¶ 82.
[24] ILC Draft Code of Crimes, supra note 13, art. 16 comment 7. The Sikirica Trial Chambers found that the death of 1,000-1,400 Bosnian Muslims in a community of 49, 000 (between 2% and 2.8%) was not a substantial part of the group. Prosecutor v. Sikirica et al, Case No. IT-95-8, ¶ 72 (Trial Chamber, Sept. 3, 2001). See David Alonzo-Maizlish, Note, In Whole or in Part: Group Rights, the Intent Element of Genocide, and the “Quantitative Criterion”, 77 N.Y.U.L. Rev. 1369, 1389 (2002).
[25] Krstic, ¶ 83.
[26] Id.
[27] See William A. Schabas, Genocide in International Law 230-40 (Cambridge Univ. Press 2000).
[28] Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, ¶ 511 (Trial Chamber, Sept. 2, 1998) (citing Summary Records of the meetings of the Sixth Committee of the General Assembly, 21 September - 10 December 1948, Official Records of the General Assembly).
[29] Prosecutor v. Semanza, Case No. ICTR-97-20, Judgment, ¶ 317 (Trial Chamber, May 15, 2003).
[30] Prosecutor v. Rutaganda, Case No. ICTR-96-3, Judgment, ¶¶ 56-57, 373 (Trial Chamber, Dec. 6, 1999). See also Prosecutor v. Jelisic, Case No. IT-95-10, Judgment, ¶ 70 (Trial Chamber, Dec. 14, 1999) (rejecting any objective definition of a group in favor of a subjective categorization by the perpetrator of genocide); David L. Nersessian, The Razor’s Edge: Defining and Protecting Human Groups Under the Genocide Convention, 36 Cornell Int’l L.J. 293, 299.
[31] Akayesu, ¶ 512.
[32] Id. ¶ 513.
[33] Id. ¶ 514.
[34] Id. ¶ 515.
[35] Id. ¶ 521.
[36] Prosecutor v. Nahimana, Barayagwiza and Ngeze, Case No. ICTR-99-52-T, Judgment, ¶ 969 (Trial Chamber, Dec. 3, 2003).
[37] See e.g., Radovan Karadzic’s orders expressing the intention to “create an unbearable situation of total insecurity with no hope of further survival or life for the inhabitants.” Prosecutor v. Krstic, Case No. IT-98-33, Judgment, ¶ 28 (Trial Chamber, Aug. 2, 2001).
[38] Prosecutor v. Rutaganda, Case No. ICTR-96-3, Judgment, ¶ 63 (Trial Chamber, Dec. 6, 1999).
[39] Prosecutor v. Mladic and Karadzic, Case Nos. IT-95-5-R61 and IT-95-18-R61, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, ¶ 94 (July 16, 1996).
[40] Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgment, ¶ 93 (Trial Chamber, May 21, 1999).
[41] Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, ¶ 523 (Trial Chamber, Sept. 2, 1998).
[42] Kayishema and Ruzindana, ¶ 93.
[43] Id.
[44] Id.
[45] Id.
[46] Prosecutor v. Mladic and Karadzic, Case Nos. IT-95-5-R61 and IT-95-18-R61, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, ¶ 94 (July 16, 1996).
[47] Id.
[48] Id.
[49] Prosecutor v. Jelisic, Case No. IT-95-10, Judgment, ¶ 47 (Trial Chamber, Dec. 14, 1999).
[50] Kayishema and Ruzindana, ¶ 93.
[51] Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, ¶¶ 112-29 (Trial Chamber, Sept. 2, 1998). The ICTR and ICTY judgments are for the most part concerned with determining individual liability. However, this inference of genocidal intent from the circumstances is part of an initial determination about whether genocide took place at all, separate from the question about whether the accused is guilty of genocide. Thus this section of the Akayesu judgment and the following discussion from the Kayishema judgment are relevant to the question of how to determine whether a particular situation is an instance of genocide.
[52] Kayishema and Ruzindana, ¶¶ 279-291.
[53] Id. ¶ 93.
[54] See, e.g., Human Rights Watch, Darfur Destroyed: Ethnic Cleansing By Government and Militia Forces In Western Sudan 21-22 (May 2004) [hereinafter Darfur Destroyed] (describing the execution of 145 Fur men at Wadi Siliah).
[55] Public International Law & Policy Group, Genocide in Darfur: A Legal Analysis 8 (Sept. 2004) [hereinafter PILPG Report] (citing U.S. Dep’t of State Bureau of Democracy, Human Rights, and Labor and the Bureau of Intelligence and Research, Documenting Atrocities in Darfur (Sept. 9, 2004), available at http;//www.state.gov/g/drl/rls/36028.htm).
[56] Human Rights Watch, Darfur in Flames: Atrocities in Western Sudan 21 (April 2004) [hereinafter Darfur in Flames].
[57] PILPG Report, supra note 56, at 7 (citing Emily Wax, We Want to Make a Light Baby: Arab Militiamen in Sudan Said to Use Rape as a Weapon of Ethnic Cleansing, The Wash Post, June 30, 2004, at A01.)
[58] Id.
[59] Darfur Destroyed, supra note 55.
[60] Interview with Sudan Researchers at Human Rights Watch in New York, N.Y. (Jan. 6, 2005) [hereinafter HRW Interview]. One escaped militia member described how he was told he would be allowed to loot. Part of his reward for fighting with the militia was this “war booty.” Id.
[61] Prosecutor v. Mladic and Karadzic, Case Nos. IT-95-5-R61 and IT-95-18-R61, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, ¶ 94 (July 16, 1996).
[62] Darfur Destroyed, supra note 55, at 28.
[63] Darfur in Flames, supra note 57, at. 20.
[64] Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgment, ¶ 93 (Trial Chamber, May 21, 1999).
[65] Darfur Destroyed, supra note 55, at 40.
[66] Darfur in Flames, supra note 57, at 33-34.
[67] Schabas argues that the word “calculated” imposes a even higher standard of mens rea “implying not only intent and even premeditation but also indicating that the imposition of conditions must be the principal mechanism used to destroy the group, rather than some form of ill-treatment that accompanies or is incidental to the crime.” Schabas, supra note 28.
[68] HRW Interview, supra note 61.
[69] Kayishema and Ruzindana, ¶ 93.
[70] Darfur Destroyed, supra note 55, at 8-21. See also Kayishema and Ruzindana, ¶ 41. (“the attacks…follow clear patterns and were carried out in what appeared to be coordinated and planned operations”).
[71] Darfur in Flames, supra note 57, at 35-36.
[72] Prosecutor v. Jelisic, Case No. IT-95-10, Judgment, ¶ 47 (Trial Chamber, Dec. 14, 1999).
[73] Kayishema and Ruzindana, ¶ 93.
[74] Id.
[75] Prosecutor v. Mladic and Karadzic, Case Nos. IT-95-5-R61 and IT-95-18-R61, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, ¶ 94 (July 16, 1996).
[76] HRW Interview, supra note 61.
[77] Darfur in Flames, supra note 57, at 28-29.
[78] HRW Interview, supra note 61.
[79] Darfur Destroyed, supra note 55, at 5.
[80] HRW Interview, supra note 61.
[81] Human Rights Watch, “If We Return, We Will Be Killed” Consolidation of Ethnic Cleansing in Darfur, Sudan 15 (Nov. 2004) [hereinafter If We Return]; HRW Interview, supra note 61 ("Fur, Masalit and Zaghawa equal rebels").
[82] HRW Interview, supra note 61.
[83] Darfur in Flames, supra note 57, at 6
[84] Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, ¶ 523 (Trial Chamber, Sept. 2, 1998).
[85] Darfur Destroyed, supra note 55, at 7. The government has also conducted “sweeps” in public places in Khartoum in which individuals were selected to be detained based on their ethnicity. HRW Interview, supra note 61.
[86] Darfur in Flames, supra note 57, at 13
[87] Prosecutor v. Nahimana, Barayagwiza and Ngeze, Case No. ICTR-99-52-T, Judgment, ¶ 969 (Trial Chamber, Dec. 3, 2003).
[88] Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgment, ¶ 93 (Trial Chamber, May 21, 1999).
[89] Gerald Martone, The International Rescue Committee, Address at Cardozo Law School (Oct. 28, 2004).
[90] U.S. Dep’t of State Bureau of Democracy, Human Rights, and Labor and the Bureau of Intelligence and Research, Documenting Atrocities in Darfur, (Sept. 9, 2004), available at http;//www.state.gov/g/drl/rls/36028.htm [hereinafter 2004 State Dep’t Report]
[91] Darfur Destroyed, supra note 55, at 40. One witness to an attack described the Janjaweed as shouting “Kill the Nuba, Kill the Nuba.” Id. at 30. A Zaghawa refugee reported to the State Department that he was told “This place belongs to Arab tribes. Blacks must leave.” 2004 State Dep’t Report, supra note 91.
[92] PILPG Report, supra note 56, at 7 (citing Amnesty International, Sudan: Darfur: Rape as a Weapon of War; Sexual Violence and Its Consequences 4 (July 19, 2004).
[93] Darfur in Flames, supra note 57, at 29.
[94] HRW Interview, supra note 61.
[95] Id.
[96] If We Return, supra note 82, at 17.
[97] HRW Interview, supra note 61.
[98] Darfur in Flames, supra note 57, at 30
[99] If We Return, supra note 82, at 25.
[100] Louise Arbour, High Commissioner for Human Rights, Statement to the Security Council, (Oct. 4, 2004).
[101] Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgment, ¶ 290 (Trial Chamber, May 21, 1999).
[102] Prosecutor v. Mladic and Karadzic, Case Nos. IT-95-5-R61 and IT-95-18-R61, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, ¶ 94 (July 16, 1996).
Author: Paul Vernon
Contributing Authors: Ari Bassin, Brian Crow
Faculty Advisor: Mary Holland
Issue:
We have been asked to prepare an analysis of the pertinent law and facts to a finding of whether the situation in Darfur presents compelling evidence of specific intent to commit genocide. We have been asked whether or not the situation in Darfur should be denominated “genocide” as that crime is defined in the Convention on the Prevention and Punishment of the Crime of Genocide and the Rome Statute of the ICC. Constituent acts of genocide have been and are being committed – murder, rape, forced displacement, denial or blocking of humanitarian aid and other acts that make conditions of life impossible to sustain. We have focused in this memo on whether such acts were or are being committed with “the intent to destroy, in whole or in part, a national ethnical, racial or religious group, as such.” We hope, however, that regardless of the legal denomination for the situation occurring in Darfur, the international community will take urgent action to curb current suffering and to prevent future atrocities in Darfur.
Short Answer:
Based on the evidence at our disposal, Darfur does not present a clear-cut case of genocide. The evidence of genocidal intent is equivocal; reasonable minds may differ as to whether genocide, as legally defined and interpreted to date, has occurred in Darfur. Some attacks on villages evidence genocidal intent. And without question the situation poses the grave risk of genocide. But we are unable to conclude that genocide has occurred in Darfur based on the facts at our disposal in light of existing jurisprudence.
The Law
The definition for genocide has been static since its inception in the Genocide Convention. The identical definition set out in the Convention appears in the statutes of the ICTY and the ICTR, and in the Rome Statute. This definition has been applied in the cases before the ICTY and ICTR where individuals were accused of genocide. The judgments in these cases are not binding authority, but they are the most relevant and persuasive authority available. Material from the travaux préparatoires of the Genocide Convention and the ILC Draft Code on Crimes is also relevant to the analysis of the crime of genocide. Genocide is defined as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:”
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.[1]
Actus Reus of Genocide
The actus reus required for genocide is satisfied by the commission of any of the acts listed (a) through (e) in the definition.[2]
Mens Rea of Genocide
1. Specific Intent Generally
Genocide requires that the enumerated acts be committed with the specific intent to destroy one of the groups protected by the statute. Acting with specific intent is equivalent to acting with the purpose to destroy a group.[3] Merely possessing the knowledge that the consequences of one’s actions will lead to the destruction of a group is not sufficient.[4] The ICTR stated that “[g]enocide is distinct from other crimes inasmuch as it embodies a special intent or dolus specialis. Special intent of a crime is the specific intention, required as a constitutive element of the crime, which demands that the perpetrator clearly seeks to produce the act charged. Thus, the special intent in the crime of genocide lies in "the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such."[5]
However, the existence of a non-genocidal motive does not preclude a finding of specific intent to destroy a group. The ICTR held that it is possible for a perpetrator of genocide to act both out of the specific intent for genocide and a different personal motive such as “to obtain personal economic benefits, or political advantage or some form of power. The existence of a personal motive does not preclude the perpetrator from also having the specific intent to commit genocide.”[6] The destruction of a group does not need to be the primary objective of a perpetrator of genocide – a non-genocidal situation can turn into an instance of genocide:
It is conceivable that, although the intention at the outset of an operation was not the destruction of a group, it may become the goal at some later point during the implementation of the operation. For instance, an armed force could decide to destroy a protected group during a military operation whose primary objective was totally unrelated to the fate of the group.[7]
Genocide may occur during an armed conflict, but is distinct from that conflict. ICTR distinguished between the Rwandan genocide and the conflict between the Rwandan army and the RPF rebels which “can in no way be considered as an extenuating circumstance for” the genocide.[8]
2. Premeditation
Genocide requires some level of premeditation. According to the ICTR, “for the crime of genocide to occur, the mens rea must be formed prior to the commission of the genocidal acts. The individual acts themselves, however, do not require premeditation; the only consideration is that the act should be done in furtherance of the genocidal intent.”[9] However, the existence of an actual plan to destroy a group does not need to be proved since “the existence of a plan or policy is not a legal ingredient of the crime.”[10] Nevertheless, the nature of the crime of genocide is such that, in most cases, there would be a plan. The ICTR stated that “it would appear that it is not easy to carry out a genocide without such a plan, or organisation.”[11] The Court also held that “it is virtually impossible for the crime of genocide to be committed without some [sic] or indirect involvement on the part of the State given the magnitude of this crime.”[12]
3. “Intent to Destroy in Whole or in Part”
i. “Destroy”
The Genocide Convention proscribes only the physical or biological destruction of a group. The acts enumerated in the definition all lead to the physical and biological destruction rather than cultural, economic or any other kind of destruction. The wording of the “genocide” definition does not preclude an interpretation that the constituent acts could be committed with the intent to destroy a group in some non-physical manner. For example, it is possible that a perpetrator of multiple attacks including the acts enumerated in the genocide definition against group members might intend to subjugate and control the group and deprive it of its ability to exist as a cultural entity but not intend to destroy or eliminate the group biologically. Such attacks would not constitute genocide because, according to the ILC Draft Code of Crimes, genocide is limited to the “material destruction of a group either by physical or biological means.”[13] The ICTY stated that:
[C]ustomary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group. Hence, an enterprise attacking only the cultural or sociological characteristics of a human group in order to annihilate these elements which give to that group its own identity distinct from the rest of the community would not fall under the definition of genocide. The Trial Chamber however points out that where there is physical or biological destruction there are often simultaneous attacks on the cultural and religious property and symbols of the targeted group as well, attacks which may legitimately be considered as evidence of an intent to physically destroy the group.[14]
Therefore, forced assimilation, even where it is accomplished with brutality, is not genocide. However, an attempt to destroy a culture may be a preliminary step to genocide.[15]
Not all examples of ethnic cleansing are instances of genocide, but a project of ethnic cleansing can demonstrate genocidal intent. The ICTY said that mass deportations that were part of a project of ethnic cleansing (defined as “the project of an ethnically homogeneous State…envisag[ing] the exclusion of any group not identified with the Serbian one”[16]) “may be construed as the first step in a process of elimination.”[17]
The destruction intended must be physical or biological and the perpetrator of genocide can intend to accomplish this in a variety of methods. It is recognized that rape is one such method:
[T]he Chamber holds that the measures intended to prevent births within the group, should be construed as sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages. In patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother's group. Furthermore, the Chamber notes that measures intended to prevent births within the group may be physical, but can also be mental. For instance, rape can be a measure intended to prevent births when the person raped refuses subsequently to procreate, in the same way that members of a group can be led, through threats or trauma, not to procreate.”[18]
The perpetrator of genocide can also intend to destroy a group through less direct means:
[T]he Chamber is of the opinion that the means of deliberate inflicting on the group conditions of life calculated to bring about its physical destruction, in whole or part, include, inter alia, subjecting a group of people to a subsistence diet, systematic expulsion from homes and the reduction of essential medical services below minimum requirement.[19]
Additionally, the Court has held that the systematic rape of women with the intention of giving a new ethnic identity to the child as well as the destruction of churches and mosques demonstrated genocidal intent since those acts were intended to “reach the very foundations of the group.”[20]
ii. “In Whole or In part”
Genocide does not require an intent to destroy the entire group; intent to destroy a group “in part” is sufficient. However, an intent to destroy any part of the group, no matter how small, does not necessarily satisfy this requirement. The part selected for destruction must have either qualitative or quantitative significance. The ICTY held that the individuals selected for destruction must be important to the group as a whole, as would be the group’s leadership or all of its military-aged men. The intent may “consist of the desired destruction of a more limited number of persons selected for the impact that their disappearance would have upon the survival of the group as such.”[21] The ICTR has required the intent to destroy “a considerable number of individuals”[22] or “a substantial part of the group.”[23] The ILC Draft Code of Crimes also suggests that an intent to destroy a less-than-substantial part of the group would not be sufficient: “the intention must be to destroy the group ‘as such,’ meaning as a separate and distinct entity, and not merely some individuals because of their membership in a particular group.”[24]
The “in part” element is also satisfied by an intent to destroy the part inhabiting a limited geographic zone.[25] It is not clear how large the zone must be. The Krstic trial chamber was discussing destruction within a “region,”[26] and there is disagreement about whether the intent to destroy a group in a geographical zone as small a town is sufficient.[27]
4. “A National, Ethnical, Racial or Religious Group, as Such”
i. The Protected Groups
Genocide is a crime targeting “only ‘stable’ groups, constituted in a permanent fashion and membership of which is determined by birth, with the exclusion of the more ‘mobile’ groups which one joins through individual voluntary commitment, such as political and economic groups.”[28] There are no wholly objective criteria for determining whether any particular group is protected by the Genocide Convention; rather this determination is made on a case-by-case basis.[29] The ICTR in Rutaganda used a subjective definition of a group: the victim of genocide must have been perceived to be a member of the group by the perpetrator. However, the Court required that some objective factors, such as “political, social, and cultural context,” be taken into account.[30]
A national group is defined as “a collection of people who are perceived to share a legal bond based on common citizenship, coupled with reciprocity of rights and legal duties.”[31] An ethnic group is defined as “a group whose members share a common language or culture.”[32] A racial group is defined “based on the hereditary physical traits often identified with a geographical region.”[33] A religious group is defined as a group “whose members share the same religion, denomination or mode of worship.”[34]
ii. “As Such”
The perpetrator of genocide must have the purpose of destroying a group, and his or her
“victim is chosen not because of his individual identity, but rather on account of his membership of a national, ethnical, racial or religious group. The victim of the act is therefore a member of a group, chosen as such, which, hence, means that the victim of the crime of genocide is the group itself and not only the individual must be targeted by reason of their membership, not specific individuals.”[35]
However, genocide can take place in situations where it is not clear whether victims are chosen because of their membership in a protected group or in their membership in some other kind of group. The ICTR said:
The association of the Tutsi ethnic group with a political agenda, effectively merging ethnic and political identity, does not negate the animus that motivated the Accused. To the contrary, the identification of Tutsi individuals as enemies of the state associated with political opposition, simply by virtue of their Tutsi ethnicity, underscores the fact that their membership in the ethnic group, as such, was the sole basis on which they were targeted.[36]
5. Intent Can be Inferred from the Circumstances
Specific intent to destroy a group can be demonstrated explicitly by a confession by the accused or by statements made by the accused prior to or during the genocide.[37] However, specific intent “can be, on a case-by-case basis, inferred from the material evidence… including the evidence which demonstrates a consistent pattern of conduct by the Accused.”[38] Factors from which the ICTR and ICTY held that specific intent can be inferred include:[39]
· “[T]he physical targeting of the group or their property.”[40]
· “[T]he fact of deliberately and systematically targeting victims on account of their membership of a particular group, while excluding the members of other groups."[41]
· “[T]he use of derogatory language toward members of the targeted group.”[42]
· “[T]he weapons employed and the extent of bodily injury.”[43]
· “[T]he methodical way of planning,”[44] “the systematic manner of killing,”[45] and “the repetition of destructive and discriminatory acts.”[46]
· The “general political doctrine which gave rise to” the constituent acts of genocide.[47]
· The “perpetration of acts which violate, or which the perpetrators themselves consider to violate the very foundation of the group - acts which are not in themselves covered by the list in [the definition of genocide] but which are committed as part of the same pattern of conduct.”[48]
· “The scale of the atrocities committed”[49] and “the number of victims from the group.”[50]
None of these factors are necessary and it is not clear what configuration of them would be sufficient.
In determining that genocide took place in Rwanda, the Akayesu Trial Chamber considered testimony about the number of deaths and extent of the killing, the fact that Tutsis were clearly singled out, the use of roadblocks, statements made by various people including political figures and popular songs to the effect that all Tutsis were to be eliminated, measures (such as cutting Achilles’ tendons) taken to prevent victims from fleeing before they could be killed, the killing of newborn babies and pregnant women, and the use of the media to incite the killing of Tutsi civilians.[51]
In Kayishema, the Court inferred genocidal intent from (a) evidence that there was a genocidal plan such as the existence of execution lists, the use of the media to incite killing, and the speed with which roadblocks were erected at the beginning of the genocide; (b) the cruelty with which civilians carried out the massacres suggesting an understanding that civilians were authorized to kill Tutsis with impunity; and (c) the fact that 800,000 people were killed.[52] Akayesu and Kayishema suggest that in the absence of a clear statement of a perpetrator’s genocidal intent, a tribunal may infer genocidal intent after examining the circumstantial evidence of such intent.
The Situation in Darfur
1. Intent to Destroy in Whole or in Part
i. “Destroy”
Intent to destroy can be inferred in part from “the physical targeting of the group or their property.”[53] There have been frequent killings and rape in Darfur of individuals in certain ethnic groups. Genocidal intent can be inferred from instances of mass executions[54] and from evidence that male babies have been targeted for killing.[55] Genocidal intent can be inferred from victims’ testimony about perpetrators’ statements. One victim interviewed by Human Rights Watch stated:
The military told us they would erase us. We asked why they wanted to hurt us and they answered that it was none of our business, that orders came from above.[56]
Genocidal intent can be inferred from rape because of the impact widespread rape can have on a group’s ability to reproduce and because the resultant child’s ethnicity would be the ethnicity of the father.[57] There are reports of Janjaweed rapists telling their victims that they are raping them so that the victims will have Arab children.[58]
Some of the killings seem to have been opportunistic and are associated with looting and stealing land[59] and, thus might not support the inference of genocidal intent.[60] Opportunistic looting does not demonstrate genocidal intent, nor does it preclude it, and there are reports of attacks on property that are clearly intended to “violate the very foundation of the group.” [61] During attacks Janjaweed have destroyed mosques, killed religious leaders, and defecated on Qorans.[62] Also the government and militia have deliberately destroyed sources of water, schools and hospitals, thus inflicting unbearable living conditions.[63]
Intent to destroy can be inferred in part from “the weapons employed and the extent of the bodily injury.”[64] At certain times the government has created obstacles to prevent humanitarian aid from reaching the region. As the population has become dependent on aid, Khartoum has denied or significantly hampered aid attempts.[65] The government’s refusal to allow humanitarian assistance to reach displaced persons in Darfur during the crucial months from October 2003 to January 2004[66] has had catastrophic effects on the displaced persons. The government surely knew what effect the denial of humanitarian aid would have and such a denial might be construed as having been “calculated to bring about” the groups’ “physical destruction in whole or in part.” In general, however, such a denial of humanitarian aid must be executed with the specific intent to destroy the group; proving that the perpetrator knew the consequences alone is insufficient.[67] It is not clear what the government intended by closing off the area to aid. Arguably its purpose may have been to prevent aid from falling into the rebels’ hands.[68]
Intent to destroy can be inferred in part from the “methodical way of planning” and “the systematic manner of killing.”[69] The attacks on villages in Darfur involve a high level of coordination and planning, often between government forces and the militia.[70] Many attacks involve aerial bombardment. The campaign to remove Fur, Masalit and Zaghawa from their land relies heavily on a coordinated system of roadblocks.[71]
ii. “In Whole or In Part”
This part of intent may be inferred in part from “the scale of the atrocities”[72] and “the number of victims from the group.”[73] The part of the population at risk of dying is “considerable” or “substantial” by any standard, especially as people are prevented from returning to their villages and their means of producing food and water are destroyed. Currently, the number of victims of murder probably does not satisfy the requirement of a “considerable” or “substantial” number when compared to the population as a whole. In Sikirica, the ICTY found that a murder rate of 2.8% did not demonstrate the intent to destroy a group in part. The 80,000 people estimated to have been killed in Darfur are 3.2% of the 2.5 million displaced. Of course, number of people murdered is not dispositive of the question about intent. The relevant question, however, is not just about the number of people who have actually died, but also the part of the group intended to be destroyed.
Intent can be inferred in part from “the systematic manner of killing”[74] and the “repetition of destructive and discriminatory acts.”[75] The attacks are clearly organized and they are widespread. Few Fur and Masalit communities have been spared; those that have not been attacked have often paid protection money to the militia or may have political connections.[76]
There is some evidence that individual victims are chosen “for the impact that their disappearance would have upon the survival of the group as such.” There are reports that the Janjaweed have been rounding up and killing community leaders and targeting men.[77] However, the general pattern seems to be of indiscriminate killing of all villagers. In many cases, most of the victims are elderly people who could not flee villages before attacks.[78]
2. “A National, Ethnical, Racial, or Religious Group As Such”
i. Fur, Masalit and Zarghawa are Ethnic Groups
The Fur, Masalit, and Zaghawa groups satisfy the requirements for ethnic groups. They are permanent and stable.[79] Each group has a distinct language and culture.[80] These groups are identified as being distinct groups by their attackers who claim that all Fur, Masalit and Zaghawa are rebels.[81] More recently the attacks in Darfur and elsewhere in the country have broadened so that singling out the Fur, Masalit and Zaghawa is less relevant. However, the conflict continues to break down along Arab and non-Arab lines.[82] A group defined by the attackers as non-Arab and of African descent would meet the requirements for an ethnic group; the African groups (called “Zurga”) are defined by the facts that they do not speak Arabic as their native language and that they are farmers (with the exception of the Zaghawa, who are nomadic).[83]
ii. The Attacks are Directed at the Groups “As Such”
Intent can be inferred in part from “the fact of deliberately and systematically targeting victims on account of their membership of a particular group, while excluding the members of other groups.”[84] Attacks on villages and other acts of discrimination are clearly directed at Fur, Masalit and Zaghawa. The Sudanese “government forces also regularly arbitrarily detained and sometimes tortured Fur, Zaghawa, and Masalit students, political activists, and other individuals in Darfur and Khartoum suspected of having any allegiance to the rebel movements.”[85]
The government may claim that the attacks are part of a strategy to conduct a counterinsurgency (though it is a strategy that “deliberately targets the civilian population”[86]), and the attacks may be motivated by perceptions on the part of (or at least statements by) government and militia leaders that all Fur, Masalit and Zaghawa are rebels. However, the association of the rebel agenda with the ethnicity of the victims “does not negate the animus that motivated” the attacks, but rather “underscores the fact that their membership in the ethnic group, as such, was the sole basis on which they were targeted.”[87]
Intent can be inferred in part from “the use of derogatory language toward members of the targeted group.”[88] The attacks in Darfur are often accompanied by derogatory language.[89] One third of those interviewed in a refugee camp by the State Department reported hearing racial epithets during attacks.[90] Janjaweed refer to Fur, Masalit, and Zaghawa as “slaves.”[91] There are reports of statements by attackers such as “You blacks, you have spoilt the country!…We will kill your husbands and sons and sleep with you! You will be our wives!”[92] In particular, rapes are frequently accompanied by derogatory language. “In a particularly brutal incident with clear racial overtones, an eighteen-year-old woman was assaulted by janjaweed who inserted a knife in her vagina, saying, ‘You get this because you are black.’”[93]
Intent can also be inferred in part from the “general political doctrine which gave rise to” the constituent acts of genocide. Victim testimony suggests a Janjaweed political doctrine of Arab superiority and of the Janjaweed’s intent to “Arabize” Darfur through the violent displacement of non-Arabs. [94] We are unaware, however, of other evidence, such as documents or public broadcasts, of the government’s or the Janjaweed’s political doctrine to incite genocide.
3. Insufficient Evidence of Intent for Biological or Physical Destruction
The government and militia attacks on villages are at least part of a counterinsurgency against the SLA and JEM. It seems unlikely that the government intends to fight the rebels by destroying the entire civilian population. It is more likely that the government intends to subjugate and control the civilian population through forced displacement.[95] Such a policy would be similar to the methods the government has used over the past 20 years in southern Sudan.[96] These practices of forced displacement have led to suffering on a massive scale but have not resulted in the physical or biological destruction of any group protected under the Geneva Convention of which we are aware, and it does not seem to have been the government’s intention to destroy any of the groups affected, as such. Rather, the government’s policy was to subjugate and control the Southern civilian population through forced displacement and assimilation. Such a policy is not genocidal although it probably constitutes a crime against humanity.
By all appearances, the Janjaweed militia does not entirely share the government’s agenda. The Janjaweed’s primary objective in carrying out the attacks is its economic interest in the land that it takes from the victims of the attacks. Evidence for this is that many of the attacks are along the nomads’ migration routes, where the land is most valuable to them. [97] Again, it does not matter what the attacker’s primary or initial objective or motivation was as long as the attacks were carried out with the specific intent to destroy a group. While there are circumstances from which specific intent might be inferred, there is insufficient evidence that the overall pattern of attacks demonstrates intent on the part of the Janjaweed to destroy any of the groups in whole or in part.
4. Risk of Genocide
There are particular incidents from which an intent to destroy a group might be inferred. The attack at Tawila was characterized by extreme brutality; it included public gang rapes, mutilation and branding “apparently in an effort to permanently stigmatize the victims.”[98] The lack of security in the region and the government’s failure to prosecute those responsible for the attacks[99] has created a “climate of impunity.”[100] The situation should be compared to the situation the ICTR described in Kayishema: the cruelty with which Tutsis were killed by civilians was “facilitated by…an understanding that the encouragement of the authorities… guaranteed them impunity to kill the Tutsis and loot their property.”[101] What might be defined currently as ethnic cleansing could be the “first step in a process of elimination.”[102] Even if it is not possible to infer the specific genocidal intent required by the legal definition, conditions pose the grave risk of genocide.
Conclusion:
The situation in Darfur poses the grave risk of genocide. Existing evidence is equivocal as to whether genocide has occurred to date.
[1] Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature Dec. 9, 1948, art. 2, 78 U.N.T.S. 277, 280.
[2] An in depth analysis of the actus reus of genocide is outside the scope of this memo. We are assuming for the purposes of this memo that at least several of the constituent acts included in the definition of genocide have been committed in Darfur.
[3] John D. Van der Vyver, The International Criminal Court and the Concept of Mens Rea in International Criminal Law, 12 U. Miami Int’l & Comp. L. Rev. 57, 61-72. The dolus specialus required by genocide is a form of dolus directus. The civil law mens rea categories of dolus directus, dolus indirectus, and dolus eventualis more or less map onto the common law categories of purpose, knowledge and recklessness respectively.
[4] Id. Van der Vyver defines dolus directus to require knowledge of consequences and the desire for those consequences.
[5] Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, ¶ 498 (Trial Chamber, Sept. 2, 1998).
[6] Prosecutor v. Jelisic, Case No. IT-95-10, Judgment, ¶ 49 (Appeals Chamber, July 5, 2001).
[7] Prosecutor v. Krstic, Case No. IT-98-33, Judgment, ¶ 572 (Trial Chamber, Aug. 2, 2001).
[8] Akayesu, ¶ 128.
[9] Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgment, ¶ 91 (Trial Chamber, May 21, 1999).
[10] Jelisic, ¶ 48.
[11] Kayishema and Ruzindana, ¶ 94.
[12] Id. (citation omitted)
[13] Draft Code of Crimes Against the Peace and Security of Mankind, in Int’l Law Comm’n, Report of the International Law Commission on the Work of Its Forty-Eighth Session, U.N. GAOR, 51st Sess., art. 17, comment 12, U.N. Doc. GA A/51/10 (1996) [hereinafter ILC Draft Code of Crimes].
[14] Prosecutor v. Krstic, Case No. IT-98-33, Judgment, ¶ 580 (Trial Chamber, Aug. 2, 2001).
[15] See the ICTY’s conclusion that General Krstic knew that the original objective of ethnic cleansing to be accomplished by forced transfer was transformed into genocide. Id. ¶ 622.
[16] Prosecutor v. Mladic and Karadzic, Case Nos. IT-95-5-R61 and IT-95-18-R61, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, ¶ 94 (July 16, 1996).
[17] Id.
[18] Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, ¶¶ 507-08 (Trial Chamber, Sept. 2, 1998).
[19] Id. ¶ 506.
[20] Id.
[21] Prosecutor v. Jelisic, Case No. IT-95-10, Judgment, ¶ 82 (Trial Chamber, Dec. 14, 1999).
[22] Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgment, ¶¶ 96-97 (Trial Chamber, May 21, 1999).
[23] Prosecutor v. Baglishema, Case No. ICTR-95-1A-T, Judgment, ¶ 64 (Trial Chamber, June 7, 2001). See also Prosecutor v. Krstic, Case No. IT-98-33, Judgment, ¶ 634 (Trial Chamber, Aug. 2, 2001); Jelisic, ¶ 82.
[24] ILC Draft Code of Crimes, supra note 13, art. 16 comment 7. The Sikirica Trial Chambers found that the death of 1,000-1,400 Bosnian Muslims in a community of 49, 000 (between 2% and 2.8%) was not a substantial part of the group. Prosecutor v. Sikirica et al, Case No. IT-95-8, ¶ 72 (Trial Chamber, Sept. 3, 2001). See David Alonzo-Maizlish, Note, In Whole or in Part: Group Rights, the Intent Element of Genocide, and the “Quantitative Criterion”, 77 N.Y.U.L. Rev. 1369, 1389 (2002).
[25] Krstic, ¶ 83.
[26] Id.
[27] See William A. Schabas, Genocide in International Law 230-40 (Cambridge Univ. Press 2000).
[28] Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, ¶ 511 (Trial Chamber, Sept. 2, 1998) (citing Summary Records of the meetings of the Sixth Committee of the General Assembly, 21 September - 10 December 1948, Official Records of the General Assembly).
[29] Prosecutor v. Semanza, Case No. ICTR-97-20, Judgment, ¶ 317 (Trial Chamber, May 15, 2003).
[30] Prosecutor v. Rutaganda, Case No. ICTR-96-3, Judgment, ¶¶ 56-57, 373 (Trial Chamber, Dec. 6, 1999). See also Prosecutor v. Jelisic, Case No. IT-95-10, Judgment, ¶ 70 (Trial Chamber, Dec. 14, 1999) (rejecting any objective definition of a group in favor of a subjective categorization by the perpetrator of genocide); David L. Nersessian, The Razor’s Edge: Defining and Protecting Human Groups Under the Genocide Convention, 36 Cornell Int’l L.J. 293, 299.
[31] Akayesu, ¶ 512.
[32] Id. ¶ 513.
[33] Id. ¶ 514.
[34] Id. ¶ 515.
[35] Id. ¶ 521.
[36] Prosecutor v. Nahimana, Barayagwiza and Ngeze, Case No. ICTR-99-52-T, Judgment, ¶ 969 (Trial Chamber, Dec. 3, 2003).
[37] See e.g., Radovan Karadzic’s orders expressing the intention to “create an unbearable situation of total insecurity with no hope of further survival or life for the inhabitants.” Prosecutor v. Krstic, Case No. IT-98-33, Judgment, ¶ 28 (Trial Chamber, Aug. 2, 2001).
[38] Prosecutor v. Rutaganda, Case No. ICTR-96-3, Judgment, ¶ 63 (Trial Chamber, Dec. 6, 1999).
[39] Prosecutor v. Mladic and Karadzic, Case Nos. IT-95-5-R61 and IT-95-18-R61, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, ¶ 94 (July 16, 1996).
[40] Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgment, ¶ 93 (Trial Chamber, May 21, 1999).
[41] Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, ¶ 523 (Trial Chamber, Sept. 2, 1998).
[42] Kayishema and Ruzindana, ¶ 93.
[43] Id.
[44] Id.
[45] Id.
[46] Prosecutor v. Mladic and Karadzic, Case Nos. IT-95-5-R61 and IT-95-18-R61, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, ¶ 94 (July 16, 1996).
[47] Id.
[48] Id.
[49] Prosecutor v. Jelisic, Case No. IT-95-10, Judgment, ¶ 47 (Trial Chamber, Dec. 14, 1999).
[50] Kayishema and Ruzindana, ¶ 93.
[51] Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, ¶¶ 112-29 (Trial Chamber, Sept. 2, 1998). The ICTR and ICTY judgments are for the most part concerned with determining individual liability. However, this inference of genocidal intent from the circumstances is part of an initial determination about whether genocide took place at all, separate from the question about whether the accused is guilty of genocide. Thus this section of the Akayesu judgment and the following discussion from the Kayishema judgment are relevant to the question of how to determine whether a particular situation is an instance of genocide.
[52] Kayishema and Ruzindana, ¶¶ 279-291.
[53] Id. ¶ 93.
[54] See, e.g., Human Rights Watch, Darfur Destroyed: Ethnic Cleansing By Government and Militia Forces In Western Sudan 21-22 (May 2004) [hereinafter Darfur Destroyed] (describing the execution of 145 Fur men at Wadi Siliah).
[55] Public International Law & Policy Group, Genocide in Darfur: A Legal Analysis 8 (Sept. 2004) [hereinafter PILPG Report] (citing U.S. Dep’t of State Bureau of Democracy, Human Rights, and Labor and the Bureau of Intelligence and Research, Documenting Atrocities in Darfur (Sept. 9, 2004), available at http;//www.state.gov/g/drl/rls/36028.htm).
[56] Human Rights Watch, Darfur in Flames: Atrocities in Western Sudan 21 (April 2004) [hereinafter Darfur in Flames].
[57] PILPG Report, supra note 56, at 7 (citing Emily Wax, We Want to Make a Light Baby: Arab Militiamen in Sudan Said to Use Rape as a Weapon of Ethnic Cleansing, The Wash Post, June 30, 2004, at A01.)
[58] Id.
[59] Darfur Destroyed, supra note 55.
[60] Interview with Sudan Researchers at Human Rights Watch in New York, N.Y. (Jan. 6, 2005) [hereinafter HRW Interview]. One escaped militia member described how he was told he would be allowed to loot. Part of his reward for fighting with the militia was this “war booty.” Id.
[61] Prosecutor v. Mladic and Karadzic, Case Nos. IT-95-5-R61 and IT-95-18-R61, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, ¶ 94 (July 16, 1996).
[62] Darfur Destroyed, supra note 55, at 28.
[63] Darfur in Flames, supra note 57, at. 20.
[64] Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgment, ¶ 93 (Trial Chamber, May 21, 1999).
[65] Darfur Destroyed, supra note 55, at 40.
[66] Darfur in Flames, supra note 57, at 33-34.
[67] Schabas argues that the word “calculated” imposes a even higher standard of mens rea “implying not only intent and even premeditation but also indicating that the imposition of conditions must be the principal mechanism used to destroy the group, rather than some form of ill-treatment that accompanies or is incidental to the crime.” Schabas, supra note 28.
[68] HRW Interview, supra note 61.
[69] Kayishema and Ruzindana, ¶ 93.
[70] Darfur Destroyed, supra note 55, at 8-21. See also Kayishema and Ruzindana, ¶ 41. (“the attacks…follow clear patterns and were carried out in what appeared to be coordinated and planned operations”).
[71] Darfur in Flames, supra note 57, at 35-36.
[72] Prosecutor v. Jelisic, Case No. IT-95-10, Judgment, ¶ 47 (Trial Chamber, Dec. 14, 1999).
[73] Kayishema and Ruzindana, ¶ 93.
[74] Id.
[75] Prosecutor v. Mladic and Karadzic, Case Nos. IT-95-5-R61 and IT-95-18-R61, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, ¶ 94 (July 16, 1996).
[76] HRW Interview, supra note 61.
[77] Darfur in Flames, supra note 57, at 28-29.
[78] HRW Interview, supra note 61.
[79] Darfur Destroyed, supra note 55, at 5.
[80] HRW Interview, supra note 61.
[81] Human Rights Watch, “If We Return, We Will Be Killed” Consolidation of Ethnic Cleansing in Darfur, Sudan 15 (Nov. 2004) [hereinafter If We Return]; HRW Interview, supra note 61 ("Fur, Masalit and Zaghawa equal rebels").
[82] HRW Interview, supra note 61.
[83] Darfur in Flames, supra note 57, at 6
[84] Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, ¶ 523 (Trial Chamber, Sept. 2, 1998).
[85] Darfur Destroyed, supra note 55, at 7. The government has also conducted “sweeps” in public places in Khartoum in which individuals were selected to be detained based on their ethnicity. HRW Interview, supra note 61.
[86] Darfur in Flames, supra note 57, at 13
[87] Prosecutor v. Nahimana, Barayagwiza and Ngeze, Case No. ICTR-99-52-T, Judgment, ¶ 969 (Trial Chamber, Dec. 3, 2003).
[88] Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgment, ¶ 93 (Trial Chamber, May 21, 1999).
[89] Gerald Martone, The International Rescue Committee, Address at Cardozo Law School (Oct. 28, 2004).
[90] U.S. Dep’t of State Bureau of Democracy, Human Rights, and Labor and the Bureau of Intelligence and Research, Documenting Atrocities in Darfur, (Sept. 9, 2004), available at http;//www.state.gov/g/drl/rls/36028.htm [hereinafter 2004 State Dep’t Report]
[91] Darfur Destroyed, supra note 55, at 40. One witness to an attack described the Janjaweed as shouting “Kill the Nuba, Kill the Nuba.” Id. at 30. A Zaghawa refugee reported to the State Department that he was told “This place belongs to Arab tribes. Blacks must leave.” 2004 State Dep’t Report, supra note 91.
[92] PILPG Report, supra note 56, at 7 (citing Amnesty International, Sudan: Darfur: Rape as a Weapon of War; Sexual Violence and Its Consequences 4 (July 19, 2004).
[93] Darfur in Flames, supra note 57, at 29.
[94] HRW Interview, supra note 61.
[95] Id.
[96] If We Return, supra note 82, at 17.
[97] HRW Interview, supra note 61.
[98] Darfur in Flames, supra note 57, at 30
[99] If We Return, supra note 82, at 25.
[100] Louise Arbour, High Commissioner for Human Rights, Statement to the Security Council, (Oct. 4, 2004).
[101] Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgment, ¶ 290 (Trial Chamber, May 21, 1999).
[102] Prosecutor v. Mladic and Karadzic, Case Nos. IT-95-5-R61 and IT-95-18-R61, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, ¶ 94 (July 16, 1996).
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