PART
ONE
I.
George W. Bush and
Darfur
:
Over half a
million people of
Darfur
have been exterminated systematically by the Sudanese Government
hiding its crime of genocide in the name of a Janjaweed
raiders and non-governmental troops. The Sudanese Government by
proxy and directly has burned out from their homes and land as
large as
Texas
over two million and a half
Darfur
people. The World shamelessly is acting sheepishly doing
very little against such violation of international law, the
Genocide Convention, and the most sacred of all laws�the natural
law of the sanctity of life. In fact, countries like
France
and
China
have become great obstacles because they are protecting the
Government of Sudan from sanctions and other steps by using or
threatening to use their �Veto� power. Especially
China
, with its instable appetite for oil, has become
Sudan
�s Government great political and economic partner while such
crime of genocide is being committed right in front of their
oil-wells, refineries, et cetera. 
The
United Nations Convention on the Prevention and Punishment
of the Crime of Genocide (Genocide Convention)
of 1948 defines �genocide� in its Article II as follows:
�Article
II: In the present Convention, genocide means 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.� The situation in
Darfur
is a text-book case of
genocide. The Government of Sudan has committed Genocide. As far
as I am concerned, there is no worse threat to our world, to our
common decency, and to human civilization than the genocide in
Darfur
.
For once
President George W. Bush seems to be heading in the right
direction, toward doing what is honorable, legal, and morally
right in regard to the genocide in
Darfur
. He seems to be ready
to use all means to stop the genocide that has been going on for
the last two years in
Darfur
. In a long speech given on September 27, 2006 at a conference
organized by Africa Society, Secretary of State Rice gave a clear
and forceful indication of the policy the Bush administration
seems to be adopting. I credit the
United States
for its participation to bring an end to the genocide in
Darfur
. In fact it is the only Western nation that seems to be fully
committed to bring solution and stop the genocide in
Darfur
. The Africa Society must be recommended too for its contribution
in arranging a forum for discussion and understanding of the
numerous problems besieging a rich Continent, but with marginal
economic and political development.
�This tragedy can,
and must, be averted, and President Bush is personally committed
to this goal. Last week, in his speech before the UN General
Assembly, the President reiterated his strong support for the
people of Darfur, and he appointed Andrew Natsios, who is with us
today, the former Director of the U.S. Agency for International
Development, to serve as his Special Envoy on
Sudan
. Andrew, thank you for accepting this task. (Applause.) Andrew
has the complete trust and confidence of President Bush and of
myself; he has a strong mandate to advance our goals in
Sudan
. He will get started because we have no time to lose.�
Secretary of State Condoleezza Rice
The obvious
problem in implementing such forceful foreign policy by the Bush
Administration is the fact that very many people around the world
are very skeptical and suspicious of the
United States
and the United Nations Security Council. It seems the Powerful
nations, both in the West and the East, seem to have exhausted the
good will and trust of the world community. The history of the
world of the last two hundred years is a history of the dominance
of the European nations as colonizers, occupiers, economic
exploiters et cetera of the rest of the world. Of course, people
may seriously challenge such large-brush stroke painting of the
West as a partial picture, since the same Western nations have
also brought about massive progress in the sciences, medicine,
agricultural production and industrial growth. Then the issue
becomes of comparative worth or a question of utilitarian ethical
principles.
The great mystic
poet and philosopher Kahlil Gibran wrote, �Verily the kindness
that gazes upon itself in a mirror turns to stone, And a good deed
that calls itself by tender names becomes the parent to a curse.�
[Gibran, The Prophet, The Farwell, Knopf (2001), 82] The
meaning of such profoundly insightful words cannot be lost on
anyone. Self-interest cuts into the nobility of a deed in helping
others. That is why the world has been too skeptical about the
wars of Bush the father and later Bush the son against Saddam
Hussein, despite the fact of the undeniable good in overthrowing a
brutal dictator who had brutalized and murdered hundreds of
thousands of his own people. If a single action by the President
of the
United States
would be considered for all time as an act of greatness and great
generosity, it would be an action taken to stop the genocide in
Darfur
. 
Like a number of observers and critics of
President Bush�s war against Saddam Hussein, I too am skeptical
of the motive as well as the conduct of the war in Iraq that had
resulted in the death of over 2,700 American soldiers and the
unconscionable high rate of death of over 43,000 Iraqi civilians,
with women and children making up a staggering number of victims.
In the Iraq war, I believe, self-interest of all sort played a
major role in the decision making apparatus of the United States
Government: in case of Bush and Cheney, the prospect of election;
in case of the Jewish lobby embedded in all aspects of the
American political and economic power structure, the removal of a
threat to the national security of Israel; in case of the US
Forces, a chance to prove one more time their usefulness by going
after a foreign belligerent Government leader; and in case
of the religious right (the general public), to overcome the
forces of evil painted as such by overzealous religious fanatics.
The interest of �
America
� in combating terrorism does not seem to have been the case
being pursued by anyone.
If
President Bush carries out his threat to end the
Darfur
genocide as stated by his Secretary of State Rice, in a speech
delivered at the Africa Society summit as indicated above, I will
forgive President Bush all of his alleged ineptitude, political
bumbling, and even his mangling of the English language. I would
even support a third-term presidency for him! That is illustrative
of how far I am hurting to be a witness of the horror of our time,
and watch helplessly the truly beautiful people of Darfur being
exterminated by the marauders of the genocidal current government
of
Sudan
. It is unbearable to me to live through a time that in a span of
a single decade two genocides, the mass killings of almost two
million innocent people because of their ethnic background, could
happen in a Continent already ravaged with civil wars, Aids,
famine, and corruption.
This
essay is not meant to point fingers at any group for delayed
action against the genocide perpetrators in Darfur, for we all are
guilty for such delay that resulted in the death of over half a
million people and the displacement of another two and half
million people of Darfur. The essay is not meant either to give a
singular credit to President Bush or his Administration, but to
profess solidarity with his actions. The fact is that the
Democratic Party leadership and individual politicians have been
asking for decisive action to stop the genocide in
Darfur
for some time now. For example, on September
2, 2006 the
brilliant new Senator Barack Obama traveled to
Chad
to speak with refugees from Darfur who are living in
Chad
under constant threat of bombing by the government of
Sudan
air force and regular soldiers. Senator Obama gave a rousing
speech and invigorated human rights activists and aid-workers. He
has also on his team Professor Samantha Power, the tireless
warrior for human rights and the voice of compassion on behalf of
the voiceless people of Darfur, to advise him on the genocide in
Darfur
.
II.
Problems in the Implementation of the Genocide Convention
A
costly lesson of delayed action resulting in disaster from our
recent tragic history, which is barely a decade old, is the
genocide of the Tutsi minority by the Hutu majority Rwandan
Government, whereby almost a million Tutsi including a few hundred
Hutu moderates were systematically murdered, in a span of one
hundred days in 1994. Professor Samantha Power�s incisive
article �Bystanders to Genocide� [The Atlantic Monthly,
Volume 288 No. 2, September 2001] followed by a more extensive
discussion in a six hundred page book, �A Problem from Hell�: America and the Age of
Genocide,
[Basic Books: New York NY, 2002] exposed the lethargic
ineptitude that griped the United Nations and member states,
especially that of the Western Nations, in the face of horrendous
atrocities being committed in Rwanda.
The United States
Government leaders including the then President, Bill Clinton,
were ignoring the unfolding human tragedy of biblical proportion
despite reports of the ongoing atrocities taking place in
Rwanda
. It is impossible for any reasonable person to understand how so
many world leaders failed from taking the necessary step
independently as well as through the United Nations to stop the
genocide and atrocities in
Rwanda
. Their apologies and sorrow after the fact is almost quixotic if
it were not for the fact of the tragic loses of so many lives.
[Consider, for example, President Clinton�s sort-of-apology
speech of 1998 while visiting the Rwandan Capital Kigali, "I
have come today to pay the respects of my nation to all who
suffered and all who perished in the Rwandan genocide. �The
international community, together with nations in
Africa
, must bear its share of responsibility for this tragedy, as well.
We did not act quickly enough after the killing began. We should
not have allowed the refugee camps to become safe haven for the
killers. We did not immediately call these crimes by their
rightful name: genocide. We cannot change the past. But we can and
must do everything in our power to help you build a future without
fear, and full of hope."]
The
world seems not to have learned anything from the Rwandan
genocide, for the last two years the world leaders have not done
much to protect the people of
Darfur
from further genocide and displacement from their homes by the
Government of Sudan. The
repeat of their previous ineptitude, as was the case during the
Rwandan genocide, is surrealistic. Power wrote in her Atlantic
Monthly article how reluctant national leaders were to
identify what was taking place in
Rwanda
in 1994 as genocide.
�American
officials, for a variety of reasons, shunned the use of what
became known as �the g-word.� They felt that using it would
have obliged the
United States
to act, under the terms of the 1948 Genocide
Convention. They also believed, understandably, that it
would harm
U.S.
credibility to name the crime and then do nothing to stop it. A
discussion paper on
Rwanda
, prepared by an official in the Office of the Secretary of
Defense and dated May 1, testifies to the nature of official
thinking. Regarding issues that might be brought up at the next
interagency working group, it stated, Genocide Investigation:
Language that calls for an international investigation of human
rights abuses and possible violations of the genocide convention. Be
Careful. Legal at State was worried about this yesterday�Genocide
finding could commit [the
U.S.
government] to actually �do something.�
[Emphasis added.]�
Millions
of Sudanese citizens, the people of
Darfur
, are driven out of their homes and land; hundreds of thousands
have been murdered, and countless number of women raped. All these
atrocities and crimes were committed by the Janjaweed, armed and
assisted by the Sudanese Government. The Government of Sudan
itself was destroying scores of villages, murdering uncountable
number of people using its army and advanced weapon systems of
helicopters et cetera. It does not take great insight to realize
that the Government of Sudan has committed genocide and allowed
criminals to commit genocide, thus has violated the Genocide
Convention. All Members of the United Nations have an obligation
to protect the People of Darfur, and that obligation includes
promptness to sanction or punish the Government of Sudan. The
Genocide Convention imposes an obligation on the Members of the
United Nations, both as a collective unit and individually, to
punish those individuals and governments that violated the
Genocide Convention, and that obligation is obligation
erga omnes.
If the World community fails to protect the People of Darfur, it
means it too has violated the Genocide Convention by its
complicity [See Genocide Convention, Article III(e)]. I emphasize
that complicity, in not observing the Convention in order to
prevent genocide and punish those who commit genocide, is
considered also a crime under the Genocide Convention. If we
consider the issue of taking action against those who commit
genocide under the Genocide Convention the problem of procedure
deficiency is real. We have conflicting procedures between what is
provided for under the Charter of the United Nations as the
responsibilities of the Security Council to deal with conflicts in
order to insure world peace and security, a procedure carefully
designed with the cumbersome �Veto� power of the Permanent
Members of the Council, and the obligation of Member States under
the Genocide Convention.
I
believe the conflict would have been resolved to a great extent if
we did not embrace the narrow positivistic approach to
international law and focus more on its ontology. I believe
nations looking up to the Security Council to declare the
existence of �genocide� before they can take steps under the
Genocide Convention is both a misreading of the provisions of the
Genocide Convention and that of the responsibility of the Security
Council under the Charter of the United Nations. There is no need
or requirement for a declaration of the existence of
�genocide� by the Security Council in order for individual
States to take action under the Genocide Convention. To require
such procedure would defeat the very purpose of the Geneva
Convention.
The
unique quality of the Genocide Convention is its imposition of an obligation erga omnes on each Member State a duty to carry out the
provisions of the Convention both individually and/or in a
collective structure like that of the United Nations under Chapter
VII. Moreover, the legislative history of the Convention does not
substantiate such expansive power of the Security Council
over/thwart the provisions of the Genocide Convention. In fact, to
the contrary, the statements of the delegates at the Conference
indicate the opposite. None
of the reservations of Signatory Nations to the Genocide
Convention indicate such accession of the extension of the power
or responsibility of the UN Security Council as a controlling
agent in the implementation of the provisions of the Genocide
Convention.
The
duty of the Security Council under Chapter VII to maintain world
peace and security is not being challenged here. Rather such duty
of the Security Council must be seen as distinct a role
significantly different when it comes to the implementation of the
Genocide Convention. The confusion in this regard arises from the
language of Article 39 of the Charter that states the Security
Council �shall determine the existence of any threat to the
peace, breach of the peace, or act of aggression� that is
interpreted by national governments to include the crime of
genocide as breach of the peace and act of aggression. I will
develop this thesis at great length in Part Three here under.
The
exercise of the �Veto� power in a decision to be made under
the Genocide Convention is totally inappropriate and contrary to
both the letter and spirit of the Convention. There are areas in
which a �Veto� may not be exercised in the decision to be
reached by the Council. When I suggested above that we need to
focus on the ontological import of the Genocide Convention rather
than look at the Convention and international law in general in a
narrow positivistic interpretation, what I meant was to look at
the Convention�s basic or foundational elements. The Geneva
Convention seems to have aspects of principles of self-defense
where one�s immediate survival is at stake; whereas, the United
Nations Charter Chapter VII provisions seem to be geared toward
insuring collective security, containment of conflicts, and
promotion of peace among nations�a
process that has no urgency by comparison to genocide cases
where the risk of massive destruction of life and death allows no
time for extended deliberation as would be the case with the
Chapter VII process.
There
is a profound difference between the two approaches on the
implementation of the Genocide Convention and the power of the
Security Council in terms of their scope and hierarchy, even
though both may involve military force and the breach of the peace
of the world. The
Charter itself is a good source to see how differently it treated
questions of self-defense as opposed to conflicts between states
which require some form of enforcement of peaceful resolution of
such conflict under Chapter VII.
Tecola
W. Hagos
Washington
DC
Next
PART TWO
III.
Darfur: Human Rights [Jus Cogens] Principles*
