Kenneth Anderson, Washington College of Law, American University:
I want to go back to something that everyone has already talked to death – the UN report from a week or two back concluding that although Darfur involves mass murder, it does not meet the legal definition of genocide.
The reason why the UN experts concluded that it does not meet the definition of genocide was that, in their view, it did not meet the requirement of intent – an intent to destroy an ethnic, religious, etc., group in whole or in part.
My view of this is pretty simple. The term genocide has been morphed during the 1990s, essentially to vitiate the intent requirement. That is, I do not believe that the Bosnia war, for example, fit the definition of genocide, because it did not have the requisite intent. But everyone in the "international community" concluded, on grounds that I thought at the time were quite weak, that it did constitute genocide. With so many of the great and good having concluded that, then the defintional ball under international law shifted somewhat. Then along came Rwanda, with mass atrocities that clearly fit the intent requirement as genocide as clearly as any since the Holocaust. Then comes along reports on places such as, for example, Guatemala, where the UN report – with no new evidence not already known from the 1980s – concludes that it, too, was genocide – again, I would have said that the intent requirement was not met. Once again, however, the chorus of great and good in the international community says that it was. And then Samantha Power's Pulitzer-winning book, which pretty much walks away from the intent requirement – in any sense of specific intent – and turns genocide into any mass murder of an identifiable group of people.
Okay, I'm not in favor of this redefinitional trend – I think there is value to identifying a specific crime that is not just mass murder, but extermination with a group in mind to exterminate. But that will always have an inconveniently high threshold of specific intent – as even the Yugoslavia tribunal, with its relaxed view of proof against defendants, has found in trying Milosevic. This is partly what caused Power and others in the human rights community to move away from anything so demanding in the definition of genocide.
Along comes Darfur, however, in the context of reflexive anti-Americanism on the part of the so-called international community – if the US is for it, we must be against! – combined with the real politik, which will increasingly rear an ugly head, of commercial interests of China and Russia. And all of a sudden, somehow, mysteriously, the great and good of the international community suddenly rediscover a high threshold of specific intent for genocide. Mind, I was never in favor of lowering it. But if you do lower it for Bosnia, Guatemala, and elsewhere, then you have an obligation not to arbitrarily raise it again when you take up Darfur." [February 16, 2004; Law of War and Just War Theory Blog has the post]
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