In a post written more than four years ago I asked whether there weren't grounds for amending the UN Genocide Convention, so that the path to preventing genocide might be cleared of the obstacle of proving, in advance, that there is a clear intent to commit it. One of the interests for me of this article by Rebecca Hamilton is its (incidental) focus on that question. Here is the key passage:
The U.S. government's historical refusal to label atrocities genocide while they are occurring has often been politically motivated; avoiding the word has been a way of avoiding the imperative to act in response to what many consider the world's worst crime. But there is also a legalistic reason the term has rarely been invoked in the midst of the crisis. The key feature of genocide is something called "specific intent" - meaning that the atrocities are carried out with the intent to destroy all or part of the victim group.
Absent public statements of intent to destroy the group - something most génocidaires are savvy enough to avoid - specific intent is something that has to be inferred from events on the ground. And with external investigators typically shut out during the worst of the violence it is often hard to gather enough evidence to draw this inference conclusively until the genocide is over.
Some cases stand in exception to this rule, including Rwanda where the contemporaneous indications of intent were overwhelming. Usually the best time to reach a legally watertight genocide determination has been in a courtroom after the crime has occurred. But that of course emasculates the moral power of the word genocide to build the pressure to stop atrocities in real time, which is exactly why Craner was keen to see if a genocide determination could be made sooner rather than later.
According to Taft, there was no doubt that the refugee accounts of mass killings, rapes, and destruction of items needed to sustain life for Darfur's non-Arab population could all constitute the physical "acts of genocide." The challenge was whether they had enough evidence to also prove these acts were committed with the specific intent to destroy non-Arab groups such as the Fur, Zaghawa and Massaleit. Darfur fell into the category of situations where specific intent was tough to determine with certainty in real time.
Hamilton's article is also interesting and rather depressing in suggesting how much the political motive of not doing anything to stop genocide has been active with successive US administrations in their decisions about whether genocide was in fact occurring. (Thanks: SC.)