Calling things by name: Genocide in Darfur?

Sudan’s Darfur region is momentarily the stage for heinous atrocities and hardly imaginable horrors. Sudanese armed forces and the Arab militia Janjaweed force people from their homes, burning and looting villages, leaving numerous murder and rape victims in their trail. Millions of people have fled Darfur. There can be no doubt that serious, gross and widespread human rights violations have been committed and are still being committed in Darfur. These surely amount to crimes against humanity and war crimes.
But is genocide committed in Darfur?

Genocide is called the crime of crimes (International Criminal Tribunal for Rwanda, Akayesu-judgment), and considered as one of the worst crimes known to humankind (International Criminal Tribunal for the former Yugoslavia, Krstic-judgment). A very specific number of objective and subjective requirements needs to be fulfilled in order for certain acts to be represent genocide. Nobody should be found guilty of this crime lightheartedly and at the same time, nobody should escape judgment who committed genocide. Therefore, to meet both these ends, specific requirements and a strict interpretation of these requirements are paramount. The following is mainly a summary of the findings of the International Commission of Inquiry on Darfur (link is provided at the bottom of this post).

According to Art. II of the Genocide-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.

As you can see from this definition, there are two objective elements and one subjective element. The first objective element is one of conduct: the person must have committed one if the acts enumerated in lit. a-e. The second objective element is related to the victims, the targeted group: the conduct must be directed against a national, ethical, racial or religious group. The subjective element contains, besides the general intent necessary for committing a crime, a special aggravated intent: the perpetrator must desire that the act he committed to result in the destruction in whole or in part of the targeted group.

Through the years and the jurisprudence of the International Criminal Tribunals and others this definition has been clarified in several helpful ways, always staying within the purpose behind the prohibition of genocide to protect from obliteration groups that are targeted because they share a certain religion or racial or ethnic features and are targeted precisely because of their distinctiveness. For a more detailed discourse on the elements of genocide I suggest reading some of the sources mentioned at the bottom of this post.

The International Inquiry Commission consisting among others of well-known and respected scholars has put together a detailed report about the situation in Darfur (176 pages). They come to the conclusion that, although there have been horrible crimes committed, genocide as far as they can decide did not take place in Darfur.
The armed forces and the Janyaweed committed many of the acts that are part of the objective element of genocide. Though there is little evidence for an objective distinction between the tribes in Darfur and other Sudanese tribes, the self-perception of the groups reveals that they consider each other to be distinct entities. As this is also an important factor, the attacks in Darfur are can be said to be targeted against a protected group.
The difficult question concerning the atrocities in Darfur is if these attacks were committed with the required special intent to destroy (and this means physically destroy) the targeted group in whole or in part. Though the scale and systematic nature of the atrocities as well as some racially motivated statements appear to show a genocidal intent, there are at the same time more indicative elements that reveal a lack of genocidal intent.
Attacks according to the Commission after hearing eyewitnesses are directed against rebels. Men are killed if they are considered rebels, not because they are members of a certain tribe. Villages are destroyed so that rebels cannot hide there. Fleeing villagers are collected in camps for Internally Displaced People by the government and eradicated by other means (e.g. starvation, no help etc.). The living conditions in those camps, as horrible as they are, are not imposed to annihilate the IDPs.
There is an intent to drive those tribes out of Darfur for political reasons (e.g. counter-insurgency) an for discriminatory motives. But there does not seem to be the required intent to destroy those tribes in whole or in part. It may be that some individuals have this special intent and therefore commit genocide (if a single perpetrator can actually commit genocide without a state practice or policy), but this is very difficult to establish and best left to the International Criminal Court.

This by no means implies that the international community should not take more decided action in Darfur. It neither means that the atrocities committed are any less horrible or punishable because they may not be genocide. Crimes against humanity are as serious crimes as genocide. The people in Darfur need our help. And they need it, no matter if genocide happens there or not. But it is important to call things by their proper name, IMO.

Sources and suggested read:
Report of the International Commission of Inquiry on Darfur
Cassese, International Criminal Law (law text book)
Schabas, Genocide in International Law (law text book)