What is the legal basis and validity for the UK to declare Genocide in South Sudan?
UK Says Killings in South Sudan Conflict Amount To Genocide: Assessing Its Validity
By Daniel Juol Nhomngek, Kampala, Uganda
April 15, 2017 (SSB) — Not every killing in large numbers amounts to genocide and not every action of the authority that prevents us from knowing the truth concerning the killings is evidence of genocide. As shall be understood in its definition shortly, genocide is special kind of killings that has special requirements which must be proved before it is concluded that genocide has taken place or it is taking place.
Thus, genocide is defined as intentional action to destroy a people or an ethnic, national, racial, or religious group in whole or in part. Genocide means act of killing. In addition, the United Nations Genocide Convention, which was established in 1948, defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.
The term genocide was coined in a 1943 book (see; William Schabas, Genocide in international law: the crimes of crimes. — Cambridge University Press, 2000). After its invention, it has been applied to various killings such as the Holocaust and many other mass killings, which include the Armenian genocide, the genocide of indigenous peoples in the Americas, the Greek genocide, the Assyrian genocide, the Serbian genocide, the Holodomor, the 1971 Bangladesh genocide, the Cambodian genocide, the Guatemalan genocide, and, more recently, the Bosnian Genocide, the Kurdish genocide, and the Rwandan genocide.
The reason for coining the term genocide in 1943 as stated above was to ensure that people are protected against the mass killing based on tribes or based a particular group that may lead to their extermination. The term genocide was later codified in the Statute of International Criminal Court in Article 6. Hence, in order to prove that genocide has taken place, the elements of and the category of which they type of genocide alleged must be proved. For this reason, Article 6 (a) to (e) provides for the types of genocide and their elements, which include:
– Genocide by killing. In order to prove this type of genocide, the following elements must be proved: that the perpetrator or perpetrators killed one or more persons. That such person or persons killed belonged to a particular national, ethnical, racial or religious group. That the perpetrator or perpetrators intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such and that the conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction. This brings me to the next type of genocide and its elements.
-Genocide by causing serious bodily or mental harm. The elements of this type of genocide are: that the perpetrator caused serious bodily or mental harm to one or more persons. That such person or persons who are affected belonged to a particular national, ethnical, racial or religious group. That the perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such. That the conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction. That the term “killed” is interchangeable with the term “caused death” and that this conduct may include, but is not necessarily restricted to, acts of torture, rape, sexual violence or inhuman or degrading treatment. This brings me to the next type of genocide.
–Genocide by deliberately inflicting conditions of life calculated to bring about physical destruction. In order to hold a person responsible for this type of genocide, the following elements must be proved: that the perpetrator inflicted certain conditions of life upon one or more persons; that such person or persons the conditions are imposed upon belonged to a particular national, ethnical, racial or religious group. That the perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such. That the conditions of life were calculated to bring about the physical destruction of that group, in whole or in part and that the conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction, which takes me to the next element of genocide.
-Genocide by imposing measures intended to prevent births. In order to prove this type of genocide, the following elements must be proved: that the perpetrator imposed certain measures upon one or more persons. That such a person or persons prevented from giving birth belonged to a particular national, ethnical, racial or religious group. That the perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such. That the measures imposed were intended to prevent births within that group and that the conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction. This brings me to the final type of genocide and its elements.
–Genocide by forcibly transferring children. In order to prove this type of genocide, the following elements must be proved: that the perpetrator forcibly transferred one or more persons. That such a person or persons transferred belonged to a particular national, ethnical, racial or religious group. That the perpetrator who transferred those persons intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such and that the transfer was from that group to another group. That the term “conditions of life” may include, but is not necessarily restricted to, deliberate deprivation of resources indispensable for survival, such as food or medical services, or systematic expulsion from homes.
It should be noted that the term “forcibly” as used here is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment. That the person or persons transferred were under the age of 18 years or children. That the perpetrator knew, or should have known, that the person or persons were under the age of 18 years and that the conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction
In addition, even if the above elements are proved, the prosecutor must also prove that the intention of the one accused was to eliminate or destroy completely a particular national, ethnical, racial or religious group or that he or they had knowledge of a widespread or systematic attack against such a group of people. However, the requisite knowledge of widespread or systemic killing should not be interpreted as requiring proof that the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the state or organization. In the case of an emerging widespread or systematic attack against a civilian population, the mental element is satisfied if the perpetrator intended to further such an attack.
In general in order to prove that genocide has taken place, the State or prosecutor must prove: that the perpetrator killed one or more persons; that such person or persons belong to a particular national, ethnical , racial or religious group; that the perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such; that the conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.”
As can be understood in the foregoing discussion, it can be concluded that genocide is not a matter of opinion but it is a matter of law and fact. It is a matter of law because it must fall within the provisions of the International Criminal Court Statute on genocide, which further means that the elements of and type of genocide alleged must fall under one of the categories as discussed above.
And as it is a matter of facts, it must be proved with clear evidence that the killings have taken place, that it is widespread and systematic and that the perpetrator killed one or more persons; that such person or persons belong to a particular national, ethnical , racial or religious group; that the perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such; that the conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.
In relation to South Sudan, it has been reported by the Britain’s secretary for international development, Priti Patel, that the killings and other atrocities going on South Sudan amount to a genocide (see; Rodney Muhumuza Entebbe, Uganda Thursday 13 April 2017 06:00 BST; www.independent.co.uk › News › World › Africa). Patel came to this conclusion after a visit to South Sudan recently. The reason for reaching such conclusion was due to the fact that President Salva Kiir’s government was blocking access to aid and that massacres were taking place, as the people’s throats are being slit; villages are being burnt out as a form of scorched-earth policy from the government. That the conflict is tribal, it is absolutely hence Patel concluded that such a conduct of the Government amounts to genocide.
In my opinion and also based on the already discussion of types of genocides and their elements, the conclusion reached by the Britain’s secretary for international development, Priti Patel, does not prove the existence of genocide for the following reasons—
First of all, the area where people are fighting and killing is going on is not inhabited by one tribe as it is not yet proved to be the case and the killings is for the purpose of exterminating them. In other words, the government does not kill them because they belong to a particular national, ethnical, racial or religious group and because of that it wants to destroy them in whole or in part, that to effect their destruction.
Second to it, is important that the UK or its secretary uses the word “genocide” with utmost care because it is not every killing in large numbers amounts to genocide, and as already discussed above, in order to prove that genocide has taken place, it must be proved that the Government has intention to eliminate different ethnicities in South Sudan in order to create the State of Dinka people, which is not the intention of the government in fighting and consequently killing of civilians in the process of the conflict.
Like any other conflict, the civilians might have been or are killed because of reprisal as rebels may be hiding among civilians and at the same time hit at the government, which makes it hard for the government soldiers to distinguish between rebels and civilians, hence the government carries out collective punishment, which cannot be a genocide but rather such killings can be best explained in term of war crimes or crime against humanity.
Thirdly, the war in South Sudan is highly politicized and tribalized at the same time. This is why killings are being used as political tool intended to destroy the image of and the standing of the government in the international arena. For instance, there are killings which are more reported than other killings that are covered up by the international community and do not want to report them. The clear example is the killings of members of Dinka ethnic group that has been going on constantly as shown by what happened recently (in this month of April 2017) in Eastern Lakes State. The cattle raiders from Western Equatoria came and raided cattle and after that they made away with a lot of herd of cattle and also leaving more than ten (10) citizens of South Sudan from Eastern Lakes dead but it was not reported in the international media.
However, when killings took place in Wau at the same time though it was clear that rebels or civilians were the ones to blame for attacking and killing the soldiers in the first place, what happened was not reported as it happened but the report was twisted and concluded that the Dinka Government is killings innocent civilians based on ethnicity. Yet, those soldiers including army generals that were killed were not from Dinka ethnic group only but some soldiers were also from other ethnicities including even from Wau. This alone without more shows that killings of civilians has become highly politicized in South Sudan, which makes the numbers become more important than human beings.
For instance, killing of one person is not valued or investigated by rebels because it does not have any political benefits attached to it. This was the reason for posting dead bodies on the facebook to make evil out of the government of South Sudan overlooking the fact that those civilians allowed rebels to hide among them so that they could kill soldiers as it happened. For that reason, the report of what actually happened in Wau and how those citizens were killed was not intended to give clear information of what was happening on the ground but instead it was just used as political tool to portray the image of the government as brutal government in order to serve the interest of and standing of the rebels in the international community and if possible get support to overthrow the government.
Nevertheless, by giving the above examples, I should not be seen as if I am supporting the killings of those who were killed in Wau or elsewhere in South Sudan, but what I am trying to say is that the International Community must be careful with the issues of killings in South Sudan and if they need to report any killings they must get accurate information before reporting. Otherwise, relying on any of side to the conflict may give misleading information due to the political interest and by implication to the detriment of the victims.
In addition, relying on what they hear from either rebels or government, the members of international community are likely to reach wrong conclusion like what we have just seen in the report of UK which I am commenting on in this article. The conclusion by the Britain’s Secretary, Priti Patel that the actions of the Government conducted through “the violence in South Sudan is now genocide that is being perpetrated along tribal lines… that there are “massacres taking place, people’s throats are being slit”… there is a “scorched earth policy’s though these are “absolutely abhorrent and inhumane” as Patel noted but they do not amount to genocide.
Fourthly, what the UK and other Western powers must know is that the rebellion in South Sudan is fought along ethnic lines and because of that, it is automatic that each ethnic group supports their rebels and when they attack the government, that particular ethnic group is likely to bear the brunt of the government’s actions as Patel, the Britain Secretary, pointed out above. In such a case, the government cannot be blamed for targeting ethnic group as the war is ethnic from the start, though the government is not justified to use unreasonable force against civilians contrary to the law of the war.
Fifthly, the international Community or Western Powers must be fair because the groups that are likely to commit genocide are the rebels based on the fact that they plan to eliminate Dinka people whom they nickname as “MTN” in order to make it easier for them to identify and kill them as seen in the year 2016) in South Sudan in all the major roads. Thus, identifying and leveling a certain ethnic group with intention of easily targeting them amounts to the act of genocide as shall be explained in the conclusion on the stages of genocide.
The fact is that the government has not planned genocide at all. What need to be clearly understood is that the tactics being used by the Government to fight rebels should not be interpreted as amount to genocide this is because the killings is not carried out systemically even when there is no war. For example, the government is in Juba with other members of the same ethnic groups being killed in the war and if it were genocide these members would have been killed as a method exterminating them, which is not the case.
Sixthly and finally, the Western Powers should pay closer attention to the conduct of rebels. As I have already pointed out above, there is a political aspect of the issues of killings in South Sudan. This means that rebels may also use the killings as they tool to tarnish the image of the government so that the international community joins their side.
The policy of using killings as political tool is not new in South Sudan. For example, on 15 April 2014 in the town of Bentiu, in the north of South Sudan, during the first war, more than 200 civilians were reportedly killed and over 400 wounded by the rebels but the rebels first denied and blamed the government for the killings. It was only when the members of the UN Mission in South Sudan who were eye-witnesses to the killings that helped to prove that rebels were the ones who killed civilians.
It must be pointed out before I go to the conclusion that killings of people per se does not amount to genocide unless the elements of genocide as already explained above are satisfied. Hence, killing se without more should not lead us to the conclusion that there is genocide in South Sudan. As I already stated above, genocide is a matter of law and fact and by law and fact there is no genocide taking place in South Sudan or the actions of the authorities do not amount to genocide there.
In reality what is taking place in South Sudan now are war crimes and crimes against humanity. Therefore, there is a need on the side of government and rebels to respect the Law of Armed Conflict.
In conclusion, contrary to the statement of UK Secretary for international development, Priti Patel, there is no genocide taking place in South Sudan as the conflict has not yet reached the stage of genocide though it may now be in the third stage, which is Dehumanization. Apart from dehumanization stage, for genocide to occur it must pass through other seven stages, which include—
classification in which groups identify themselves based on their ethnic identity; Symbolization: this is the stage where people are identified in association with their physical appearance, names or other symbols to the classifications; organization, in this stage state organizes militias to provide deniability of state responsibility; polarization, at this stage extremists drive the groups apart. Hate groups broadcast polarizing propaganda.
Laws may forbid intermarriage or social interaction. Extremist terrorism targets moderates, intimidating and silencing the center. Moderates from the perpetrators’ own group are most able to stop genocide, so are the first to be arrested and killed. Prevention may mean security protection for moderate leaders or assistance to human rights groups. Assets of extremists may be seized, and visas for international travel denied to them. Coups d’état by extremists should be opposed by international sanctions.
Preparation, at this stage, victims are identified and separated out because of their ethnic or religious identity. Death lists are drawn up. Members of victim groups are forced to wear identifying symbols. Their property is expropriated. They are often segregated into ghettoes, deported into concentration camps, or confined to a famine-struck region and starved. At this stage, a Genocide Emergency must be declared.
Extermination, at this stage genocide begins as mass killings become systemic and widespread. It is “extermination” to the killers because they do not believe their victims to be fully human. When it is sponsored by the state, the armed forces often work with militias to do the killing. Sometimes the genocide results in revenge killings by groups against each other, creating the downward whirlpool-like cycle of bilateral genocide (as was seen in Burundi). At this stage, only rapid and overwhelming armed intervention can stop genocide. Real safe areas or refugee escape corridors should be established with heavily armed international protection.
The final stage is Denial is that always follows genocide. It is among the surest indicators of further genocidal massacres. The perpetrators of genocide dig up the mass graves, burn the bodies, try to cover up the evidence and intimidate the witnesses. They deny that they committed any crimes, and often blame what happened on the victims. They block investigations of the crimes, and continue to govern until driven from power by force, when they flee into exile.
The Author is Human rights lawyer and can be reached through: juoldaniel@yahoo.com
The opinion expressed here is solely the view of the writer. The veracity of any claim made is the responsibility of the author, not PaanLuel Wël: South Sudanese Bloggers (SSB) website. If you want to submit an opinion article or news analysis, please email it to paanluel2011@gmail.com. SSB do reserve the right to edit material before publication. Please include your full name, email address and the country you are writing from.
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