By Dave Kopel, Paul Gallant, & Joanne Eisen
August 18, 2004, 8:24 a.m., National Review Online. More by Kopel on Sudan.
[T]he sovereign territorial state claims, as an integral part of its sovereignty, the right to commit genocide, or engage in genocidal massacres, against peoples under its rule, and...the United Nations, for all practical purposes, defends this right. To be sure, no state explicitly claims the right to commit genocide — this would not be morally acceptable even in international circles — but the right is exercised under other more acceptable rubrics.... — Leo Kuper, Genocide: Its Political Use in the Twentieth CenturyOn July 22, 2004, both houses of Congress upped the ante in Darfur, Sudan, by calling the situation there genocide instead of "ethnic cleansing." That legal change in terminology was inspired by the 1948 U.N. Convention on Genocide, in which all the signatories promise to prevent and punish the crime of genocide.
The definition of "genocide" was very tightly written. According to Matthew Lippman ("A Road Map to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide," Journal of Genocide Research, 2002), "measures directed towards forcing members of a group to abandon their homes in order to escape ill-treatment" — what we now know as ethnic cleansing — is not considered genocide according to the U.N. definition.
For months, the world has bickered over what to call the situation in Darfur. According to Article 8 of the U.N. Convention: "Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United nations as they consider appropriate for the prevention and suppression of acts of genocide..." The U.S., which signed and ratified the Genocide Convention, is a "Contracting Party," and has forced the world to accept the fact that another genocide is taking place.
If the U.N. follows its own laws, it must now intervene on the side of the victims. But the world's governments cannot agree on an effective remedy. At the heart of the U.N.'s failure is a grave misunderstanding of national sovereignty: the notion that "sovereignty" belongs to the government, not the people. And this mistaken notion of sovereignty precludes consideration of one of most effective ways to prevent genocide: arming the victims.
As many as 50,000 people have been killed, and more will probably starve to death. Livestock and food have been destroyed; the dead animals have been used to poison the wells, and trees have been uprooted. Rape is used as an instrument of warfare, and, because of the Islamic culture of Darfur, it has irrevocably destroyed many families. Fifteen-year-old Aziza recalled: "Five of them raped me twice...they were armed...I am still in pain." The situation continues to deteriorate.
Even if all hostilities ceased at this very moment, if all weapons were destroyed, if all aid groups could bring all the necessary food, water, and medical supplies into the refugee camps — even if it were safe for the refugees to return home — during the months that the world diddled, the culture of Darfur has been demolished. There is no going back.
Despite all the platitudes about "never again," the world did let it happen — again.
Because of the scarcity of natural resources, and desertification in the area caused by two decades of drought and poor land management, the Arab tribesmen have, in the last few years, invaded the farming communities. Two self-defense forces arose among the black population: the SLA (Sudan Liberation Army) and the JEM (Justice and Equality Movement). Although it is very difficult for ordinary citizens to obtain firearms legally, the black self-defense groups were able to procure black-market arms, and therefore were able to protect the farming communities.
In mid-2003, the Sudanese government began to arm the Arab Janjaweed militias. Although the government claims to deplore the Arabs' war on the blacks, the government has assisted the Arabs by bombing black villages and by allowing the Janjaweed to attack the blacks at will. Approximately 100,000 refugees have been forced into Chad, and it is estimated that about one million people have been displaced internally.
The destruction of black society in Darfur has made it difficult for the populace to protect and provision the self-defense groups. So the refugee camps are vulnerable and unarmed, and cannot fill basic human needs, including food and water. And the camps are guarded by the Arab Janjaweed, the very people who caused the refugee crisis in the first place.
The pattern of arming Khartoum's allies began decades ago when, during the civil war against blacks in southern Sudan, the Khartoum government gave arms to the Arab militias and attempted to disarm the Christians and Animists. According to Douglas H. Johnson, the central government waged war through surrogates, so as to maintain plausible deniability. The policy continues today in Darfur.
For example, the BBC News reported that Sudan's military called the U.N. resolution "a declaration of war." The BBC also observed a placard at a public demonstration that stated, "Darfur will be a foreign graveyard."
According to the July 9, 2004, New York Times, Sudan's Foreign Minister Mustafa Osman Ismail warned: "The American and British voices that call for the imposition of sanctions on Sudan are those that dragged the world into the Iraq problem.... I hope that they will not drag the world into a new problem from which it will be difficult to extricate itself and that is the problem of Darfur."
Recently, the Arab League passed a resolution declaring its support for Khartoum, apparently under the principle that the mass murder of Muslims is not a problem when an Arab tyranny is doing the killing. Sudan's junior foreign minister, Najuid al-Khair Abdul Wahab, explained: "We regard this...[as] a violation of our country's national sovereignty."
For years, the U.N. has been attempting to promote the notion of a rapid-reaction constabulary force responsible only to itself — which would be triggered by warnings from genocide scholars, who are presently studying the early warning signs of impending genocide.
But genocide scholar Donald Krumm described "the paralysis induced by sovereignty.... This is the fundamental difficulty to be overcome. Actions based on early warning generally would require interventions inside another nation-state, which the United Nations and its member states are loath to do." As late as June 30, 2004, the BBC News reported that "U.N. Secretary General Kofi Annan refused to use the term genocide, which would carry a legal obligation to act."
Krumm's prediction was correct. The international threats, warnings, and admonitions have accomplished almost nothing. Furthermore, Sudan has rejected proposals for 2,000 soldiers to be supplied by the African Union. U.S. Secretary of State Colin Powell has talked tough, but there is no force to back up his words. According to the BBC News, "Analysts say that 15-20,000 troops would be needed to secure Darfur and no one is talking about sending anything like that number."
The U.N. remains impotent against genocide.
In Rwanda, U.N. personnel knew that the victim group had been previously disarmed by laws enacted in 1964 and 1979. Early in the genocide, thousands of Rwandan civilians gathered in places where U.N. troops were stationed. The Rwandans believed the U.N.'s promise that its troops would protect them. If Rwandans had known that the U.N. troops would withdraw, the Rwandans would have fled, and some might have survived. According to the Report of the Independent Inquiry into the Actions of the United Nations During the 1994 Genocide in Rwanda: "The manner in which troops left, including attempts to pretend to the refugees that they were not, in fact, leaving, was disgraceful." The victims were slaughtered.
Sometimes genocide against disarmed victims ends when another nation invades, for the invader's own interests, as when the Allies invaded Germany, when Vietnam invaded Cambodia, or when Tanzania — defending itself against incursions by Uganda's military — invaded Uganda and overthrew Idi Amin.
Unlike Hitler, Pol Pot, and Idi Amin, however, the genocidal regime in Sudan has been careful not to violate any other nation's sovereignty. Accordingly, the international community is, in practice, respecting the "sovereign" power of Sudan's dictatorship to perpetrate domestic genocide.
According to provision (1) of Article 25 of the U.N. Declaration of Human Rights, adopted on December 10, 1948: "Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing, and medical care." But in Darfur, the government has been complicit in depriving its citizens of these basic necessities.
In Sudan, it is virtually impossible for an average citizen to lawfully acquire and possess the means for self-defense. According to gun-control statutes, a gun licensee must be over 30 years of age, must have a specified social and economic status, and must be examined physically by a doctor. Females have even more difficulty meeting these requirements because of social and occupational limitations.
When these restrictions are finally overcome, there are additional restrictions on the amount of ammunition one may possess, making it nearly impossible for a law-abiding gun owner to achieve proficiency with firearms. A handgun owner, for example, can only purchase 15 rounds of ammunition a year. The penalties for violation of Sudan's firearms laws are severe, and can include capital punishment.
International gun-control groups complain that Sudan's gun laws are not strict enough — but the real problem with the laws is that they can be enforced arbitrarily. The government can refuse gun permits to the victims in Darfur and execute anyone who obtains a self-defense gun. Meanwhile, the Arab militias can obtain guns with government approval, or the government can simply ignore illegal gun possession by Arabs.
The blacks in Sudan therefore face a situation somewhat like that of blacks in the 19th-century American south. There, ostensibly neutral gun-control laws were enforced vigorously against blacks, amounting to de facto prohibition. Meanwhile, the governments of the post-bellum south allowed the terrorist KKK to arm with impunity, and the Sudanese government does the same for Arab terrorist militias. The result: second-class citizenship for American blacks, and genocide for Sudanese blacks.
The solution to the worldwide violation of the Universal Declaration of Human Rights is the worldwide recognition of one more human right. As the great English jurist William Blackstone explained, core human rights would be "the dead letter of the laws" if not guarded by "auxiliary rights." So the law "has therefore established certain other auxiliary subordinate rights of the subject, which serve principally as barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property."
Thus, "The fifth and last auxiliary right of the subject...is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute ...and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression."
The Darfur genocide — like the genocides in Rwanda, Srebrenica, Cambodia, and so many other nations in the last century — was made possible only by the prior destruction of that fifth auxiliary right.
It is long past time for the United Nations and the rest of the international community to do more than bemoan genocide after the fact. It is time for formal international law to recognize the natural right of self-defense, and to acknowledge the universal human right of "having arms for their defense" so that, as a last resort, victims can "restrain the violence of oppression." As history has shown, as long as dictatorships exist, the only way to ensure the primary right to life is to guarantee the auxiliary right to arms.
Dave Kopel is research director, and Paul Gallant and Joanne
Eisen are senior fellows, at the
Institute. Their most recent academic publication is "Firearms
Possession by Non-State Actors: The Question of Sovereignty."
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Share this page:
Follow Dave on Twitter.
Kopel's Law & Liberty News. Twice-daily web newspaper collecting articles from Kopel and those whom he follows on Twitter.
Author page on Amazon.
Search Kopel website:
Make a donation to support Dave Kopel's work in defense of constitutional
rights and public safety.
Copyright © 2018