Sole Decision Maker
Given the gravity of the issue, Powell's consultation with anyone outside the State Department was breathtakingly minimal. "There were no fights with the Pentagon. In fact I don't even remember having a conversation with the Pentagon about it," said Powell. According to then-Deputy National Security Adviser, Stephen Hadley, Powell came to see President Bush just two days before making his genocide determination. "I never asked the president, 'Do I have permission to do this?'" acknowledged Powell. "I just said that this is what I was going to do." Bush made no effort to stop him, and merely instructed National Security Adviser, Condoleezza Rice, to inform the heads of the other agencies "so they won't be surprised."
But what about the legal implications?
Was the Bush administration not worried about its legal obligations under the Genocide Convention like the Clinton administration was with Rwanda? Why, in the face of advice that the evidence was inconclusive, did Powell decide to tell the Senate Foreign Relations Committee that genocide had occurred? A recently declassified legal memorandum, written by Taft to Powell's deputy, helps explain.
The June 25 Memorandum
In the June 25, 2004 memorandum Taft wrote: "A determination that genocide has occurred in Darfur would have no legal - as opposed to moral, political, or policy - consequences for the United States." In the following paragraph, Taft explains that the U.S. State Department had rejected an "expansive reading of article I [of the Genocide Convention] that would impose a legal obligation on all Contracting Parties to take particular measures to 'prevent' genocide in areas outside their territory."
Legal scholars have often had differing views over what obligations do or do not flow from article I of the Genocide Convention. But the convention itself says that disputes over its interpretation or application should be brought before the International Court of Justice, and in the early 1990s, the court began to flesh out what the undertaking to prevent genocide meant.
In a 1993 case involving alleged atrocities underway in the former Yugoslavia, the court said that Article I put those who had joined the convention "under a clear obligation to do all in their power to prevent the commission of any such acts [of genocide]." Then in 2007, the court issued a judgment finding that Serbia had in fact violated those Article I obligations in the context of the 1995 Srebrenica genocide in which over 7,000 Bosnian Muslim boys and men were killed.
Careful to state that the legal obligation in article I did not require states to "succeed" in stopping genocide, the court concluded that a nation violated its article I obligation if it "manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide." Even though the court did not prescribe universally applicable measures -- since the measures required to prevent genocide will necessarily depend on the situation and the nations involved -- it clarified that the obligation may apply even when the genocide is taking place in another nation.
The U.S. is unlikely to ever face a judgment like Serbia received because in 1988, when the U.S. government belatedly ratified the Genocide Convention, it lodged something known as a reservation to protect itself from being brought before the court against its will for any alleged violation. Still, the court's interpretation of the genocide prevention obligation remains legally authoritative.
We will never know for sure, but had Taft's advice been that a determination of genocide would have obligated the U.S. to take all measures that might have contributed to preventing genocide then it seems improbable that Powell would have had such autonomy in making his genocide determination. And combined with Taft's position that the evidence was inconclusive, advice that a genocide determination would obligate the U.S. to act is likely to have led to the administration avoiding the word altogether.
Instead, with advice in hand that a genocide determination would be cost-free for the U.S. in legal terms, Powell's decision focused on what impact a genocide determination might have on other governments.
Strangely, Taft's June 25 memorandum states that Sudan is not a party to the Genocide Convention, although it had become so several months before the memorandum was written. As a result of this inaccuracy, Taft's advice does not dwell on what a genocide determination might mean inside Sudan itself. What he does conclude however, is that a finding of genocide in Darfur could "act as a spur to the international community to take immediate and forceful actions to respond to ongoing atrocities." Powell took this advice to heart, hoping that by using the word genocide he would move other nations on the UN Security Council to act.
There are more and less charitable ways of understanding Powell's decision: As a laudable and historic pushing of the boundaries in a genuine effort to stop genocide; as a misguided, or even self-serving, attempt to avoid the risk of a Rwanda-like shaming when the story of Darfur was eventually written; or as an endeavor to claim the moral high-ground in the midst of the war on terror that ultimately undermined the power of the genocide label. What is not in question is Powell's strategy of using the determination to spur other countries to act in Darfur failed.
Neither Taft's June 25 memorandum nor Powell himself factored in the legacy of the secretary of state's infamous 2003 testimony before the UN Security Council when he said Iraq had weapons of mass destruction. By the time Powell made his Darfur genocide determination, the U.S. invasion of Iraq had become a quagmire, global coverage of U.S. human rights abuses in Abu Ghraib and Guantanamo had diminished whatever "soft power" the U.S. had in the wake of 9/11, and Powell's personal credibility had been weakened by his WMD speech.
Far from spurring others to act on Darfur, Powell's genocide determination made other nations wary; his was perhaps the least credible voice of all to rally other states to the cause of human rights in a Muslim country. Not even the Bush administration's war-weary ally, Tony Blair, was willing to apply the genocide label.
What Powell's genocide determination did do, however, was to catalyze a U.S.-based citizens movement for Darfur. The so-called Save Darfur movement used the moral force of the genocide label to try to spur the U.S. government to action, believing that the battle to stop the atrocities in Darfur would be won or lost in the realm of U.S. domestic politics.
But seven years later neither a genocide determination by the U.S. government, nor an outcry by the American people have been enough to bring peace to Darfur.
Genocide or not, the situation in Darfur today remains unresolved, with millions displaced and still too insecure to return to their homes. Moreover, a brutal war has now erupted in another part of Sudan, in an area called Southern Kordofan. It's no stretch to imagine that the State Department's current legal adviser, Harold Koh, will soon be pushed to answer the same questions as Taft faced seven years ago: Does the situation constitute genocide? And if so, what is the U.S. obligated to do about it?
The soundest response to the second question is that the U.S. is obligated to take all measures within its power that might contribute to preventing genocide. Moreover, according to the International Court of Justice, that obligation kicks in even in the absence of a conclusive genocide determination; those who have signed the convention are obligated to take preventative action as soon as there is a "serious risk" of genocide.
The response to the first question should be dictated solely by the evidence. But lining up the Clinton and Bush administration responses to Rwanda and Darfur respectively provides a telling reminder of how readily political ends, well-intentioned or not, can influence those tasked with deciding whether to label a situation genocide.
In the Clinton administration, the argument that a genocide determination would bring a legal obligation to act was used as a rationale for avoiding such a determination -- notwithstanding clear evidence that genocide was taking place. In the Bush administration, the argument that a genocide determination would not bring any legal obligation to act, coupled with an erroneous belief it might get others to do so, contributed to such a determination being made - notwithstanding legal advice that the contemporaneous evidence was inconclusive.
Though reaching different conclusions on whether or not to apply the genocide label, the decision of both Democratic and Republican administrations alike were influenced more by what they believed a genocide determination would mean in terms of action rather than by a strict interpretation of the evidence they had before them. The results to date suggest that neither Rwandans nor Sudanese have been well-served by such instrumentally-motivated avoidance, or use, of the g-word.
What lessons should be taken from this bleak history? One lesson is that it is time to revisit the assumption that whatever the U.S. government says (or does not say) is crucial to determining outcomes on the ground. Another is that it is unwise to place so much stock in a label -- even one as potent as genocide.
*It was not the first time a Secretary of State had uttered the word genocide in relation to an ongoing conflict. On June 10, towards the end of the 1994 genocide in Rwanda, Secretary Warren Christopher, on a visit to Istanbul, responded to a question on whether Rwanda was genocide with the following answer: "If there is any particular magic in calling it genocide, I have no hesitancy in saying that." However, the same day, following Christopher's instructions that U.S. officials not use the word "genocide" directly, the State Department spokesperson continued to refuse to call the situation genocide. Powell's testimony before the Senate Foreign Relations Committee therefore marked the first time the word has been formally used by the executive branch.