In September 2004, then-U.S. Secretary of State, Colin Powell, became the first member of any U.S. administration to apply the label "genocide" to an ongoing conflict.* Interviews I conducted for Fighting for Darfur: Public Action and the Struggle to Stop Genocide revealed that despite a thorough investigation into the atrocities in Sudan's western region of Darfur, the legal advice given to Powell was that the resulting evidence (on which he based his genocide determination) was inconclusive. Now a newly declassified State Department memorandum sheds further light on why Powell nonetheless decided to label the situation in Darfur genocide.
Sitting before the Senate Foreign Relations Committee on September 9, 2004, Secretary of State, Colin Powell, was taking his time getting to the question that everyone in attendance was waiting for him to answer. "And finally" he said, "there is the matter of whether or not what is happening in Darfur is genocide."
The U.S. House and the Senate had drawn their own conclusion on the question some six weeks earlier. Through a concurrent resolution, Congress had determined that atrocities being committed against non-Arab groups by the Sudanese government and their proxy militia force in Sudan's western region of Darfur did indeed constitute genocide. It was not the first time Congress had accused the Sudanese government of genocide. They had drawn the same conclusion back in 1999 with respect to the Sudanese government's actions during a brutal war in southern Sudan that resulted in the deaths of an estimated 2 million people. But if Powell were to make a determination of genocide in Darfur it would be unprecedented: the first time the executive branch had used the word "genocide" in relation to an ongoing conflict.
"When we reviewed the evidence compiled by our team, along with other information available to the State Department, we concluded that genocide has been committed in Darfur and that the Government of Sudan and the jinjaweid bear responsibility -- and genocide may still be occurring" said Powell.
Up until that moment, Powell had been studiously avoiding a growing chorus of reporters' questions about whether Darfur was genocide. He had been awaiting the results of an investigation that his staff had hoped would provide "clear evidence" of whether or not the label was applicable. It had turned out to be a false hope.
The State Department investigation, which involved the deployment of 24 independent experts to the Chadian border where refugees of the atrocities were fleeing, had primarily been the brainchild of assistant secretary Lorne Craner. And like so much of the State Department's thinking on Darfur over this period, it was influenced by the massacres in Rwanda a decade earlier.
Craner remembers Powell saying: "There is not going to be another Rwanda." (Powell has no recollection of this. "It wasn't that I wasn't mindful of Rwanda of course, I just don't recall making that statement" he says.)
Craner says he knew exactly what Powell meant, having finished the Pulitzer Prize-winning book A Problem from Hell: America and the Age of Genocide. The book, written by former journalist and now Obama adviser, Samantha Power, memorably recounted how the Clinton administration had tied itself in semantic knots to avoid using the word genocide while the 1994 massacres of over 800,000 Tutsi and moderate Hutu were underway in Rwanda.
The ban on saying "genocide" by the Clinton administration arose out of a briefing compiled by the Office of the Secretary of Defense. Inside the May 1994 briefing (later declassified by the National Security Archives), State Department lawyers said they were worried that a finding of genocide might obligate the administration "to actually 'do something.'"
The concerns of the State Department lawyers stemmed from the 1948 Convention on the Prevention and Punishment of Genocide, which was drafted in the aftermath of the Holocaust. Article I of the convention places an obligation on those who have joined, like the U.S., to "undertake to prevent and to punish" genocide. The article does not elaborate on what the obligation means in practical terms, and certainly does not specify a requirement for the deployment of troops. But in the wake of the Clinton administration's Black Hawk Down disaster in Somalia, there was no desire to even open a discussion about the engagement of U.S. resources in another African country. So, despite clear evidence to the contrary, U.S. officials refused to label the Rwandan atrocities genocide.
Craner viewed the U.S. government's avoidance of "the g-word" with shame, and committed not to repeat such a failure if he encountered an analogous situation.
So in March 2004, as the Darfur atrocities belatedly captured mainstream media attention, Craner decided to start building internal support for an investigation to determine if it was a situation of genocide.
Five months later, the investigation report arrived on Powell's desk. At a meeting to discuss the results, all eyes were on Powell's legal adviser, William Taft IV, who was tasked with answering the question that had motivated the ambitious research endeavor: Were the atrocities in Darfur genocide?
"We can justify it one way, or we can justify it the other" Taft said.
The "Specific Intent" Challenge
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.
As Powell recalls it "Will Taft told me that others could argue against the genocide determination with a strong legal basis, but that the conclusion on genocide was legally supportable."
In short, Powell says it came down to a "judgment call." And it turns out the call was Powell's alone to make.