By: Anne Boniface
In October of this year, satellite images of the Darfur region in Sudan captured shocking and horrific images: clusters of deep red stains dotting the city of El-Fasher. Yale’s Humanitarian Research Lab confirmed these pools were blood, evidence of the mass killings carried out in mere hours by the Rapid Support Forces (RSF). In the weeks since, survivors have begun describing how the RSF moved from house to house, separated the men from the women, and systematically executed them.
Images such as these should eliminate any ambiguity. And yet the international community remains in limbo, a quagmire of legal hesitation that has surrounded the Darfur region since 2003. Is this genocide? Genocidal acts? Ethnic cleansing? The difference between these questions is not frivolous; it has real-world ramifications.
The crisis in Sudan is often characterized as civil war or mere conflict. Experts, however, warn that Sudan faces a catastrophic humanitarian and human rights crisis. Over nine million individuals have been displaced, and thousands of ethnic killings have occurred in the past few months alone. Reports of more than a dozen mass graves, torture, violent displacement, and sexual violence have been documented by the United Nations and nongovernmental organizations such as Human Rights Watch. Recognizing these actions as crimes is simple; recognizing them as genocide is difficult. The classification is contingent on proving the perpetrators’ intent to destroy a particular group in whole or in part. This mens rea is extremely difficult to prove in international law, and few cases have successfully met the threshold of intent. This leads to a significant gap between genocidal acts and their legal classification as genocide.
Sudan’s current conflict is reminiscent of its past. Sudan is predominantly represented by two groups: ethnic Arabs and non-Arabs (such as the Masalit). In 2003, tension between these ethnic groups erupted into civil war. In Darfur, a region in western Sudan, a non-Arab rebel insurgency led the Sudanese government to restore order by arming and supporting the Janjaweed (the local Arab militia). The suppression of the rebellion led to significant violence perpetrated by the Janjaweed against non-Arab communities in Darfur, such as the Fur and the Zaghawa. Millions were displaced, and hundreds of thousands were killed. In 2004, the United States recognized the crisis as genocide; it was the only member of the Security Council to do so. The United Nations refused, stating that the critical element of genocidal intent was missing.
Today, the RSF has evolved directly from the Janjaweed of the early 2000s. The United Nations withdrew its peacekeeping mission in 2020 and its political mission in 2023 at the request of the Sudanese government. The withdrawal opened a security vacuum in the region, allowing for turmoil to erupt between the RSF and the Sudanese Armed Forces (SAF). This turmoil has resulted in widespread slaughter focused on the non-Arab population in Darfur.
To most, the killings and violence perpetrated against one ethnic population in Darfur look precisely like genocide. International law, however, draws a strict line:
Genocidal acts are the physical actions related to genocide: killing group members, causing serious harm, inflicting conditions meant to bring about the destruction of a people, attempting to prevent births within a group, and forcibly removing the children of a group into another group.
Genocide, however, requires genocidal acts and the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.
There is a mental element that must be satisfied in order to constitute genocide, which is extremely difficult to prove. The crimes in Darfur thus fall within genocidal acts and ethnic cleansing, neither of which require satisfaction of a mental element. Here, even though there is violent, forcible removal and the systematic slaughter of hundreds of thousands of people from a single group through genocidal acts, it cannot be classified as genocide because the mental intent has not been proven, which is extremely difficult to determine during a conflict. Further compounding the difficulty is the fact that states have often avoided the genocide classification because it triggers certain obligations to act under international commitments and treaties. There is a problematic gap in the legal framework, with Darfur sitting in the middle.
The current violence in Darfur meets most definitions of the five genocidal acts: thousands of ethnically targeted killings, mass graves with men of one ethnicity, systematic sexual violence against one ethnicity, and intentional attacks on medical facilities and refugee camps predominantly serving one ethnic group. These acts are not disputed; they are proven.
Intent, however, is a different matter. Despite these same actions occurring in 2003, the UN and the ICC declined to call the violence in Darfur a genocide, even though the violence was ethnically selective. Intent is a matter of fact, and it is clear the parameters those in power choose to look at today are not good enough; they are too narrow. International law must therefore evolve. The legal community cannot continue to treat genocidal intent as a near-impossible evidentiary mark while entire ethnic communities are systematically killed in patterns that speak for themselves. When a group is targeted, displaced, starved, raped, and killed, this intent to destroy is not some hidden factor to uncover. The standard must evolve if justice is to be seen in conflicts like Darfur; the intent revealed by patterns of violence and destruction must be taken seriously. Proof of intent cannot be limited to formal declarations or documented after-the-fact evidence. If it is, modern genocides will unfold in the gap between what the world can see and what the law is willing to actually name.
