A 30-year-old woman squats on the sand outside her tent in eastern Chad's Touloum refugee camp as she tells me about her escape from Darfur. Her family, members of the Zaghawa ethnic group, had been farmers near the town of Kutum in Northern Darfur. She describes how, before fleeing to this desolate place, Sudanese soldiers and Janjaweed militias killed her husband and son, then burned her village. She recounts how she fled with other survivors, and how, during her escape, she became separated from three young boys with whom she was traveling. When she found them again, their throats had been cut, their hands chopped off, and their feet sliced from the big toe to the ankle. She saw that their heads had been broken open and their brains removed. Also, their penises had been cut off.
In the summer of 2004, I served on a team of lawyers and other investigators commissioned by the State Department to travel to Chad to interview survivors of the massacres in Darfur. Shortly after we returned--and based on our interviews--Colin Powell made his now-famous declaration that "genocide has been committed in Darfur." But, since then, other key international organizations--Amnesty International, Human Rights Watch, and, most importantly, the United Nations--have declined to characterize the atrocities in Darfur as genocide. The U.N.'s decision was particularly significant. Unlike other groups, which merely failed to weigh in on the question, the United Nations affirmatively declared that the Sudanese government had not committed genocide. It's not clear what prompted the United Nations to make this excessively cautious pronouncement. It certainly wasn't for lack of evidence.
On September 18, 2004, the Security Council passed Resolution 1564, which directed Kofi Annan to establish a Commission of Inquiry on Darfur to determine whether genocide had taken place. To be found culpable for genocide, one must commit certain criminal acts, such as killing or causing serious bodily or mental harm; and--this is the key part--these acts must be committed with the specific intent to destroy, in whole or in part, a national, ethnic, racial, or religious group. When the Commission reported back several months later, it acknowledged that the government and Janjaweed had committed acts enumerated in the 1948 Genocide Convention and thus were likely culpable for war crimes and crimes against humanity. But it also absolved Khartoum of genocide charges. "[T]he crucial element of genocidal intent appears to be missing, at least as far as the central Government authorities are concerned," the group wrote.
Yet the stories survivors told me made clear that Sudan intended to eliminate the targeted groups. One man recounted witnessing Janjaweed leader Musa Hilal announce in a village marketplace that the Sudanese government had sent him to "kill all the blacks in this area"--a reference to the region's non-Arab tribes. Hilal, this man recalled, declared that his forces would "give the Arab people freedom" by "clear[ing] the land until the desert"--that is, the populated areas of Darfur. Another refugee, who lived near a Janjaweed training camp, explained that she heard the militia being ordered over a loudspeaker to "kill" the "Zaghawa people" of the nine surrounding villages. Still another told how she and six other women were captured by 30 Janjaweed who raped and beat them with leather whips. The Janjaweed's intentions were unmistakable, she said: They shouted, invoking a local racial slur, "We must kill the Nuba."
Even putting aside the perpetrators' statements, the Commission could have inferred genocidal intent by drawing upon the extensive jurisprudence on genocide generated by the war-crimes trials for the former Yugoslavia and Rwanda. The U.N. Yugoslavia tribunal judged Bosnian-Serb commander Radislav Krstic to have had genocidal intent based, in part, on evidence that his forces killed Bosnian males old enough to bear arms without regard to whether they actually served in the military. That precedent surely applies to Darfur, where young children, particularly boys--and even the unborn--are specifically targeted. Consider a mother who told me that soldiers inspected her sevenday-old infant to determine its sex. Upon discovering it was a boy, one soldier declared the male child had to be killed (but, in a moment of conscience, another soldier prevailed upon him to spare the boy's life). The soldiers' explanation for contemplating infanticide? "We are sent by Omar Al Bashir"--Sudan's president--"to kill you because you are black." Or consider a woman who reported witnessing 15 boys--ranging in age from four to 15--rounded up and summarily executed. Or the many boys thrown into burning huts. Or the pregnant woman whose attackers stripped her clothes and then, using a boot, beat her abdomen to kill her fetus, because, they said, the unborn baby would be the "son of a black man." These are not the hallmarks of counterinsurgency warfare, as the Commission described Sudan's campaign, but of something much more sinister: a calculated program to eliminate entire ethnic groups.
There should be no doubt that Sudan's central government was behind this. The man who told of witnessing Hilal's marketplace speech recounted how the Janjaweed leader was accompanied by a uniformed military officer, who instructed the crowd to obey Hilal's commands. Hilal himself has acknowledged he acted on behalf of the governing regime. Ground assaults on villages were invariably preceded by bombardment from the Sudanese air force's fleet of Antonov bombers, MiGs, and helicopter gunships; and survivors almost universally reported to me that their attackers included contingents from both the Janjaweed, who rode horses and camels, and the Sudanese military, who arrived in vehicles. As Human Rights Watch has noted, the Khartoum regime and the Janjaweed work "hand-in-glove."
Even if the Commission felt it didn't have sufficient evidence of genocidal intent in the capital, it should have stated that it couldn't yet make a determination because of the government's obstruction. The regime certainly provided ample justification for such a finding: For instance, First Vice President Ali Osman Mohammed Taha and Defense Minister Bakri Hassan Salih promised the Commission key documents that never materialized.
The Commission's failure to call genocide by its name is not just an academic quibble over legal nomenclature. By absolving Sudan of this crime, it released the international community from its responsibility under the Genocide Convention to "prevent" this "odious scourge." Moreover, Sudan, which received an advance copy of the report, seized the opportunity to trumpet the no-genocide finding to the press. Subsequent headlines represented an enormous propaganda victory for the regime: "UN rules out genocide in Darfur" (BBC); "UN report: Darfur not genocide" (CNN); "Sudan killings in Darfur not genocide, says UN report" (The Financial Times); and so on.
I interviewed only one Zaghawa man who had been captured and yet survived. He explained how his camouflage-wearing captors had wanted to kill him and how, when objections were raised, they took him to their leader, who decided to spare his life--an act that, in the leader's words, contradicted his "orders" from the "Sudanese government." In Darfur, this man's exception proves the genocidal rule.