Calling Genocide by Its Rightful Name: Lemkin's Word, Darfur, and the UN Report

I. INTRODUCTION: THE DISAPPEARING GENOCIDE IN DARFUR Every student of a foreign language learns about "false friends"-words in a new language that look like words in your own but mean something different. In French, "experience" means "experiment," not "experience." In German "Konkurrenz" means "competition," while the English "concurrence" means "agreement"-in antitrust terms, the opposite of competition. Legal language, too, contains false friends-technical legal terms that closely resemble words in ordinary language but mean something different. Twenty-five years ago, as a young philosophy teacher with no legal training, I taught my first case ever in a law school classroom. It contained the word "consideration," and I proceeded on the natural assumption that a "good consideration" means "an important thing to think about" rather than "a thing of value given to form a contract." The results were predictably comic. But the result can be tragic as well. On January 25, 2005, the International Commission of Inquiry on Darfur ("UN Commission" or "Commission") presented its report ("UN Darfur Report" or "Report") to UN Secretary-General Kofi Annan.1 The Commission, chaired by the eminent international jurist Antonio Cassese, did a meticulous job of investigating possible international crimes in Darfur. Newspaper headlines summarized the Cassese Commission's findings a few days later: U.N. Finds Crimes, Not Genocide in Darfur,2 U.N. Panel Finds No Genocide in Oarfur but Urges Tribunals,3 Murder-But No Genocide,4 Darfur 'Criminal But Not Genocide,'5 and Sudan's Darfur Crimes Not Genocide, Says U.N. Report.6 Nearly identical headlines appeared in the Chicago Tribune,7 the Queensland Courier Mail,8 the St. Petersburg Times,9 the Irish Times,10 and the Financial Times.11 Most revealing are headlines from the Herald Sun in Melbourne (Horrors Short of Genocide),12 the Glasgow Herald (UN 'Clears Sudan of Genocide' in Darfur),13 and London's Daily Telegraph (UN Confusion as Sudan Conflict is No Longer 'Genocide').14 Plainly, "short of genocide" means "not as bad as genocide." "Clears Sudan of genocide" means exoneration-and, coming just two days after headlines declaring that Sudanese officials denied bombing a village in Darfur, headline-scanners could be excused for believing that the UN report had disproven atrocity reports in Darfur. And "UN confusion" as the Darfur catastrophe is "no longer 'genocide'" shows the baleful results. The UN no longer knew what to do, because without the word "genocide," the mandate for action disappears. Months earlier, United States Secretary of State Colin Powell had labeled the Darfur atrocities "genocide."15 Many people remembered that the Clinton administration went through humiliating contortions to avoid the "G-word" out of fear of being required to do something about genocide in Rwanda.16 Powell's forthright use of the forbidden word suggested to many that the Bush administration would be different-better and more honest. "Not on my watch," were George W. Bush's famous words about genocide inaction.17 Bolstering the hope that the United States would help halt the Darfur atrocities was the fact that Christian groups belonging to President Bush's core constituency were pushing for US action.18 These groups had been concerned about Sudan for years because of the massacre of Christians in the North-South civil war-and now, for admirable reasons of principle, they were not about to back off simply because the victims were Muslims. In 2004, the US Congress passed a resolution condemning the Darfur atrocities, and self-consciously labeled them genocide.19 It was less well-known that, contrary to the fears of the Clinton administration, the Convention on the Prevention and Punishment of the Crime of Genocide ("Genocide Convention") imposes no legal obligation to act.20 Nevertheless, existing political pressure on both the United Nations and the United States ultimately might have turned the tide. …