Read Part I here:
photo by freelancer RJ
Genocide is not the "crime of crimes". – International Commission of Inquiry on Darfur
The legal and moral meanings of the word "genocide" have parted ways. As a result, lawyers and journalists talk past each other, and politicians suddenly find a convenient linguistic excuse for doing nothing. That is not just semantics. – Professor David Luban, Chicago Journal of International Law
Sri Lanka would not be the first instance where international reaction to mass atrocities is almost always confined to press releases, lopsided actions by states and military-diplomatic and financial support for state parties committing crimes (including from the West). There’s a considerable list of mass atrocities committed against civilian populations (targeted for their group identity) -- from the massacre of Hutus in Burundi to ethnically targeted mass killings in Indonesia among others.
Unless genocide terminology is invoked, mass atrocities carried out in systematic and relentless ways are almost always hidden under generic labels like humanitarian disaster, civil war, complex emergency etc., which de-prioritize them for meaningful international action. Even the term ethnic cleansing has not been evoked vis-à-vis Sri Lanka where Tamils face the brunt of a conventional and counterinsurgency/counter terrorism campaign.
According to David Luban, labeling other atrocities genocide
misses the distinctive pluralist dimension of human value that genocide assaults.
But the plight of the Tamils has not even qualified as ethnic cleansing, which is often a precursor to genocide. Arriving at one or more of these determinations is hinged on legal and other technicalities, which is made so much harder as a result of the shortcomings in their conceptualization and application.
Samantha Power argues that the definition of Genocide in the convention “was both under-inclusive (excluding Pol Pot's attempted extermination of a political class) and over-inclusive (potentially capturing a white racist's attempt to cause bodily injury to a carload of African-Americans)”.
A broader interpretation of genocide was not included -- not because that was somehow irrelevant, but because it was objected to by powerful UN member states and such a political compromise was necessary to “preserve the remainder of the Genocide convention”
This is generally the case for genocide determination since it’s almost impossible to thoroughly investigate while it’s ongoing, and also post-facto, as the ICJ found out when Serbia refused to hand over key documents, which could have found it culpable of genocide in Srebrenica.
As Samantha Power points out, Lemkin didn’t go about choosing that word to satisfy tedious legal and moral theorists, but to find a word that resonates deeply within the human consciousness. His word would be an “index of civilization,” something that would introduce “color of freshness and novelty,” but also capture the essence of it “as shortly and as poignantly as possible” -- hence, genocide (Geno-Greek derivative for Race/tribe and Latin derivative - cide - refers to killing).
So when ICID decided against calling what was happening in Darfur genocide and instead supported the war crimes (and crimes against humanity) label, the media misread and possibly distorted the public perception of the ruling. Few organizations paid attention to the fact that the commission had said that contrary to popular belief “genocide is not the "crime of crimes," and that crimes against humanity are every bit as significant. This was a position adopted by the ICTY’s appellate chamber as well, but the common perception was that there was something less severe happening in Darfur.
Genocide is seen as the ultimate crime to warrant intervention so when the crisis in Sri Lanka is called a humanitarian catastrophe (or some other technical term), the public could be forgiven for confusing it for a natural disaster, ideological revolt, armed skirmish, or some minor riot.
The success in giving primacy to genocide over other crimes may have also made it into what Georgetown’s David Luban calls a false friend.
Organized extermination of civilian populations regardless of specific intent is, under current legal definitions, a "crime against humanity." But it isn't genocide. This is the point at which the legal word "genocide" becomes a false friend. In everyday speech, we think of genocide as deliberate annihilation of masses of civilians, regardless of the specific intention. That means that for non-lawyers-indeed, even for lawyers who have never studied the arcana of international criminal law-the crime against humanity of exterminating civilian populations is genocide. Hence, when the UN Commission (ICID) denied that Darfur was genocide, non-specialists could only conclude that there was no wholesale extermination going on in Darfur. That is not what the UN Commission found, and it is not what it said. But as the headlines indicate, it obviously is what people thought the Commission had found and said. The legal and moral meanings of the word "genocide" have parted ways. As a result, lawyers and journalists talk past each other, and politicians suddenly find a convenient linguistic excuse for doing nothing. That is not just semantics.
The media is also responsible, but not solely, for this state of affairs, which in essence has come to downplay equally serious and heinous crimes against a targeted group(s) when such a ruling goes against them.
Unlike Darfur, which continues to be the darling child of Western civil society, many other crises fester in oblivion, and worse, some are rejected -- millions die in the DRC and Iraq experiences extreme inter-ethnic violence while Darfur wins popular favor. On Iraq, there is majority consensus for immediate US withdrawal in the West. However, the Genocide Prevention Project sees both Sri Lanka and Iraq as standing at the precipice of genocide in its 2008 "watch list of watch lists”. It is not the first time that Sri Lanka has showed up in such a listing.
Despite a strong international presence in Iraq and DRC, the West perceives and portrays them as messy crises with far too many power players. This is not surprising. Mark Doyle of the BBC says, during the Rwandan genocide media organizations were highly reluctant to call it a genocide and were keen to portray this as "chaos" more than anything else so they were keen on focusing on the relatively modest crimes committed by the Tutsi militia while genocide was ongoing, with the hope of "balancing" out the coverage. I would even go so far as to say the killing of DRC’s mountain gorillas gets relatively better coverage and sympathy by both the press and the public in the West.
The Darfur conflict is probably as complex as Iraq or DRC when one considers the plethora of influential local actors alone. Hollywood has exorcised whatever Africa fatigue there was. Darfur is apparently framed as a clear-cut case -- Arab vs. blacks. So what became of Darfur? The Sudanese government's designs for the 'non-Arabs' were not spoken of in terms of the 'Global War on Terror," or as an internal issue. It was advocated as a mass crime against a particular racial group by an Arab dominated Sudanese state. How did this come about?
It could be due to the framing of the issue from advocacy groups, and subsequently media hotshots like Nicholas Kristoff, who banked on the (justly) remorseful conscience of Westerners for the brutal oppression that inhabitants of the “dark continent” have been subjected to by outsiders. This perception won favor and few other victims could count Mia Farrow and George Clooney (among countless other celebrities) amongst their advocacy ensemble.
But I don’t see anything wrong in this. Do victims or their advocates need to wade into the complexities of the crisis (much of which may have no direct relevance to halting the mass atrocities)?
It’s all about grabbing that soccer mom in a grocery aisle, or a broker heading home after a pummeling at the exchange, or that college kid vacillating between one too many causes. How does one draw their attention in an environment saturated by millions of news stories, social issues, and ads? Not with a policy memo or country brief for sure.
As the cornerstone of a country’s civil society, it is also incumbent on the media to at times put its activist hat on. However, I do agree that it’s something that may not always work in favor of the victimized population they intend to bring attention to.
At the end of the day, if domestic constituencies in the West are not sold on the urgency of the preventability and suppressibility of the mass slaughter of civilians very little is likely to be done by their elected representatives, especially when strategic interests conflict or are not in play.
How does one do that in instances like Sri Lanka, Darfur, or Iraq (During Saddam’s crackdown of Kurds)? Identify the dominant aggressor, who happens to be the state, even if that means forsaking one’s journalistic objectivity to effect immediate action. For those who find this troubling I’d say the arbitrary use of the term terrorism or the CT/CI language is much more problematic than the incorrect use of genocide, especially when we are talking about third world conflicts. While one can galvanize international attention as a force of good to save many, the other can and does generally condone state terrorism, which can lead to genocide. Better to fail the (perennially troubled legal) criteria of the genocide convention test than permitting or condoning the massacre of tens of thousands in the name of CI/CT. (Little surprise Nelson Mandela and the ANC were listed)
Dominant Aggressor Approach
My case for the state being the dominant aggressor rests on a couple of premises:
1) In terms of the (Time) scale and scope (proportion- CI/CT in the South & conventional & CI/CT in the North & East) of violence and virulent communal and constitutional exclusivism, Sinhala-Buddhist Nationalism is more intolerant than secular and reactionary Tamil nationalism)
Then there is the fact that these actions of the state enjoy a broad electoral mandate, which is as much an indictment of GOSL leaders as it is an indictment of the Sinhala community.
When one accounts for disappearances alone, Sri Lanka comes in second. Only Saddam and Yugoslav warlords outdo the GOSL leaders.
But is there an appetite for mass atrocities in a democratic state? As I have discussed in my previous post, if the Sinhala state cannot even respect the war dead can the living expect any better? In Sri Lanka, there’s a long history of the so-called liberal and civilized types -- ranging from Oxbridge grads, Ivy Leaguers, high flyers in the diplomatic arena, and ivory tower socialists -- who forsake their civility to jump headfirst into barbarism of militant politics. In fact, it was a former Oxford Union President, Lalith Athulath Mudali, who was one of the leaders of one of Sri Lanka’s worst pogroms in history. There, he more than aptly demonstrated his propensity for cultural genocide.
Recent additions include Dayan Jayatilleke, Palitha Kohona, GL Peiris, Mahinda Samarisnghe. There never seems to be a shortage for this in the south. Why? Some call it opportunism, but hey, it’s a democracy: you can only sell what the majority buys. The Late President (1978-1989) J.R Jayawardene in an interview once exclaimed,
Really, if I starve the Tamils out, the Sinhala people will be happy.
They call him the ‘Old Fox’ for self-evident reasons. For example there are plenty of articulate and ‘sophisticated’ Sinhalese bloggers who have shared such extreme views, from the remorseless to lesser shades of ethnic jingoism (a McGill educated Sinhalese blogger, who also writes for the Sunday Leader, says in his blog: “Tamil people in Colombo live in fear. Perhaps this is necessary in the short-term (this being my lifetime) but it’s important to remember that this is a bad thing.”) *Note: Sri Lanka is ranked only 3rd in the world for disappearances and the GOSL is considered one of the worst perpetrators of disappearances in the world.)
I doubt it’s a question of “ethnic outbidding” when Sri Lankan leaders continue to make such communal and vile remarks in reference to the Tamil minoritiy (not just to the Sinhala gallery, but also to the international press). Little surprise that the world pays attention to such pronouncements, BBC was warned of the designs of the Hutu regime in Rwanda much in advance, but chose to largely ignore it. I’d like to add that some members of the Sinhala community - from intellectuals, activists, journalists, and some members of the security forces to one’s neighbor down the street -- have risked their life and limb, at times also paying the ultimate price, while opposing the state’s popular oppression. However, they are a minority. There’s nothing from the past nor present that convinces minorities that things will be different once Chinthana seals his victory.
Sinhala nationalists are simply bent on dominance at the end of the day, which means reducing the territorial hold of the Tamil polity through colonization schemes, expulsion, depopulation, and other means. So many of the Tamils who now live in the South are either living in abject conditions as plantation workers for generations due to state design and many of the others had to flee conventional and CI warfare to come to the South. If anyone believes that they live happily with the Sinhalese one has to only refer to the culture of disappearances in the South of the country.
If countless Tamils aren’t leaving Sri Lanka to migrate overseas they’re most certainly attempting to. This is not a question of innate evil, but an issue of centuries of acculturization to a bankrupt and racist ethno-religious ideology that typifies Tamils as the enemy/alien-horde, something that even the country’s established and apparently ‘liberal’ English media is not immune to.
Both ICTY and ICID noted regimes accused of genocide are also concerned about public opinion, which may restrain greater excesses on the scale of Rwanda. Their objectives could easily be met without resorting to the costly and irrational exercise of complete extermination, but that may still fall within the official parameters of genocide. It is interesting to note that the defense for Srebrenica accused at ICTY argued that it was
a heinous effort to remove a military threat in one of the conflict's most hotly contested regions.
Srebrenica -- where Bosnian Muslim men of military age were singled out and massacred by Serbs -- was the only atrocity deemed genocide in the entire course of the savage conflict --which included rape camps -- by the International Criminal Tribunal for Yugoslavia and the International Court of Justice. After all, only 8000 mostly adult males (women and children spared,) were killed off, and that too only in one town, so how could this be genocide? But the ICTY and the ICJ did recognize that Srebrenica was indeed genocide, even though those killed in Srbrenica were a fraction of the 1.4 million Muslims in Bosnia. Nevertheless, we continue to be drawn by the archetypical Rwandan genocide or Holocaust analogy in the popular consciousness.
For those wishing to read about Tamil Genocide claims, please visit former US Associate Deputy Attorney General Bruce Fein’s filing with the US State Department (Note: I am not endorsing his approach to the issue, but pointing towards it as a source for further referral http://www.tamilsagainstgenocide.org/).
Secular Tamil nationalism is a reaction to the exclusivity of Sinhala Buddhist Chauvinism: i.e. give us political space to co-exist as equal partners, or let Tamil speakers go (secession became popular 30-40 years since independence). The LTTE understood that their unconscionable military strategy to expel Tamil speaking Muslims in their Northern areas of control (who identify themselves as a distinct ethnic group with other fellow Muslims in the country’s south along religious lines) when they formally apologized and invited them back. No apology is enough, but it was a testament to the accommodating nature of Tamil nationalism, which is only a struggle for democratic space hence such actions do not have the popular backing of the Tamil generality. Tamil democrats who negotiated with the Sinhala leadership were repeatedly deceived (including the late scholar cum statesman -- Dr. Neelan Thiruchelvam) throughout history.
Many international advisors to the peace process continue to point out that Sri Lankan leaders were hardly ever interested in a meaningful devolution of powers.
This is one of the reasons the rebels never felt at ease during any negotiation with the Sinhala leadership: there has always been considerable opposition, even at the grassroots level within the Sinhala polity, to the sharing of space.
So it’s of little wonder that the rebels never gave up their hope for secession, but to their credit still put forward the Interim Self Governing Authority proposal, which is considered to be a proposal hinged on a confederal model that recognized the need to accommodate pluralism from the get go.
Even if one wants to there is no way to disprove genocide claims in Sri Lanka. Investigating an (alleged) genocide during or after can pose numerous challenges. Gathering evidence when experts even have access to victims is notoriously difficult. Although US government officials documented evidence from horrifically injured Kurds who had survived and escaped the gassing of their towns, the State Department’s Assistant Secretary said,
The US Government is convinced that Iraq used chemical agents in the late August offensive against the Kurds, it recognizes it will be difficult in this case to provide physical and medical evidence that will be acceptable in the public arena.
Doctors who had examined the victims including specialists from Médecins du Monde (founded by Bernard Kouchner who split away from MSF because the latter was downplaying witnessing; MSF had been skeptical at best of a gas attack. Instead many victims of gas attack were thought to have suffered from poor hygiene by doctors. Even though scholars like Samantha Power pointed out that Iraq may not have "set out to exterminate every last Kurd in Iraq, as Hitler tried against Jews,” HRW still determined that the Al Anfal campaign was a genocide.
It was former top UN Peacekeeper Romeo Dallaire who said
a reporter with a line to the West was worth a battalion on the ground.
Unlike most war zones, entering Sri Lanka's theatre of conflict or gaining access to its IDPs or refugees is a challenge: one can only travel to them through government controlled areas; there are no porous land borders with neighbouring countries from where reporters can gain access. The traffic of refugees to India has not picked up that much either. The media is also barred from speaking to refugees who have managed to escape to India
What made it possible for the US State department to launch an investigation, and subsequently a genocide determination on the crimes in Darfur, was the access to a sizeable number of the displacees in neighbouring Chad.
In Darfur, although the ICC has not exhausted all avenues for prosecuting President Bashir for genocide (making matters difficult for the ICC) key NGOs like MSF have refused cooperation with the prosecutor (who has no way of sending independent investigators to Darfur and so must rely on the NGOs there).
As I have said before in my ICG piece, it makes little sense for NGOs involved in the field to get into advocacy as their work cannot be easily substituted. As in Sudan, NGOs have been expelled and threatened by GOSL. Apart from Sri Lanka’s ability to keep most western journalists outside of the country and silencing the local media, they have manipulated the UN into refusing to publicly release official casualty figures, ignoring UN local staff held in detention camps, and even co-running them with the state.
But similar challenges have not deterred scholars and other Darfur advocates such as Samantha Powers from calling it the 1st Genocide of the 21st century. The NYT editor Nicholas Kristoff has been credited with single handedly bringing attention to Darfur and critics charge he has like many other Darfur advocates has “simplified” it for rabid consumption of it by the public. Their efforts were reinforced by the Evangelical lobby that having successfully compelled the US government to labor on the South Sudan crisis for peace, which is billed as a Christian vs Muslim war, shifted its attention to Darfur's 'Arab Vs non-Arab' confrontation in favor of the latter. Signing onto this team were other influential actors such as the Anti Defamation League, American Israel Public Affairs Committee, Physicians for Human Rights, American Anti-Slavery Group among others. The Save Darfur Coalition lists an impressive array of such institutional partners, which some estimates put at five hundred and fifteen.
But is there consensus on the Genocide charges? The US government, including leading democrats, have labeled it a genocide. But powerful HR Advocacy NGOs like AI and HRW seem to have sidestepped labeling it altogether. But this hasn't prevented them or other NGOs from cooperating with the various anti-genocide coalitions in advocacy work, which has also included their participation in various rallies to "stop the Genocide". MSF, which once placed considerable importance in witness bearing, has resisted and questioned calls for labeling it a genocide. For MSF’s position on this see: http://www.msf.org.au/resources/position-papers/position-paper/article/darfur-is-humanitarian-action-under-threat.html
Prominent scholars who oppose this genocide label include Columbia’s Mahmood Mamdani, Harvard’s Alex De Waal and Gerard Prunier. Kofi Annan himself sidestepped the issue by saying "it (Darfur) was bordering on ethnic cleansing." While many of the vocal detractors agree to call it by names such as ethnic cleansing and CI, much of the objection or indifference to the genocide determination stems from the difficulty in matching the legal definition of genocide to events as they unfold on the ground.
Part III will be published shortly.
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