On January25,2005, the International Commission of Inquiry on Darfur issued a report on whether genocide was occurring in the Darfur region of the Sudan.
In Section II.I of the Report, the Commission attempted to define genocide.
4Ronald Dworkin, “The Model of Rules I,” Chapter2inTaking Rights Seriously(Cambridge, MA: Harvard University Press,1977),15.
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Here is how the Commission summarized the current state of international law:
In short, the approach taken to determine whether a group is a (fully) pro- tected one has evolved from an objective to a subjective standard to take into account that collective identities and in particular ethnicity are, by their very nature social constructs, “imagined” identities entirely dependent on variable and contingent perceptions, and not social facts, which are verifiable in the same manner as natural phenomena or physical facts.5
The Commission of Inquiry ultimately finds fault with the purely subjective approach to identifying groups.
Here is how it expresses the problem with the subjective view and also explains how it is possible to move back toward an objective view.
Moreover, it would be erroneous to underestimate one crucial factor: the process of formation of a perception and self-perception of another group as distinct (on ethnic, or national, or religious, or racial ground). While on historical and social grounds this may begin as a subjective view, as a way of regarding the others as making up a different or opposed group, it gradually hardens and crystallizes into a real and factual opposition. It thus leads to an objective contrast. The conflict, thus, from subjective becomes objective. It ultimately brings about the formation of two conflicting groups, one of them intent on destroying the other.6
This complex conceptual analysis of group identification is in line with certain nominalist conceptions.
The Commission of Inquiry came up with the above proposal in response to the problem of how to characterize tribes, such as the Fur, Masalit, and Zaghawa tribes that were the object of attacks and killings in the Darfur region of the Sudan. The problem is that these tribes “speak the same language (Arabic) and embrace the same religion (Islam)” as do the tribes that were attacking them. Because of intermarriage, the groups have become blurred in social and economic terms.7 Generally speaking, tribes have not been recognized as the objects of genocide in international law, but the tribes in Darfur appear to be different from normal tribes, at least in the Commission of Inquiry’s assessment.
During the past decade, polarization has occurred to such an extent that the tribal identities of the tribes in Darfur have become “crystallized” in a way
5The Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, Pursuant to Security Council Resolution 1564of September18,2004, Geneva, January25,2005, para.499.
6Ibid., para.500. 7Ibid., para.508.
Identifying Groups in Genocide Cases 95 that can make them count as groups for international law purposes. Mostly, such crystallization seems to have occurred because of conflicts over scarce resources that greatly intensified in-group and out-group identification. Both attacking group and victim group see one another as belonging to hostile groups. The Commission of Inquiry concludes, “For these reasons it may be considered that the tribes who were victims of attacks and killings subjectively make up a protected group.”8The Commission implied that this was because crystallization had occurred. Nonetheless, the Commission of Inquiry said that genocide was not occurring in Darfur because of a lack of genocidal intent – that is, the attacking group was not trying to destroy the victim group as such, but rather only attacking for counter-insurgency reasons.9 For my purposes, what is significant in the Commission of Inquiry’s findings is the analysis of the way that groups are identified in hard cases such as tribes.
People generally are members of multiple groups. As a teenager, I was a member of the “religious” group of Roman Catholics, the “national” group of Americans, the “racial” group of Caucasians, the “ethnic” group of Germans, as well as many other only somewhat less significant groups, such as the
“demographic” group of “Baby Boomers,” the “political” group of antiwar acti- vists, and the “informal social” group of high school debaters. In a sense, a person is merely the constellation, or intersection, of a large number of group memberships. To single out just one of these group memberships for purposes of identifying who one is misses the fact that there are many, many other groups with which that person could also be identified.
In addition, many groups are like tribes in that they blend, at least partially, into other groups of the same category. Roman Catholics and Anglicans have blended into one another, at least since Henry VIII broke the Church of England off from the Vatican. Intermarriage between Roman Catholics and Anglicans further blurs the border between these two religious groups.
Racial groups, arguably the only biologically based groups recognized by the International Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), are dramatically affected by intermarriage.
In30years of university teaching in the United States, I have observed how hard it has become to tell a student’s race by observing him or her, if the cate- gory of race makes sense any more in “melting pot” societies such as the United States.
Tribes are especially problematic because they are typically defined by birth lineage and such lineages will cross between tribes because of inter- marriage and cultural cross-fertilization. This reason is initially given by the
8Ibid., para.512. 9Ibid., para.518.
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Commission of Inquiry for thinking that subjective considerations must enter into group identification. When such subjective considerations play a role in group identification, judgments by third parties are hard to make, and so it seems hard to see how an external authority, such as a judge or jury, could make such identifications in a way that would play an important if not the key role in a trial. The tribes in Darfur, as well as the ethnic groups in Rwanda, pose an especially difficult problem for courts that are mandated to determine if genocide, involving the intentional destruction of a group, has occurred.
The Commission of Inquiry makes a good case for thinking that tribes are problematic, especially in light of intermarriage among tribes that already share so many features (e.g., religion and ethnicity). Subjective considerations will have to be used to differentiate the members of one tribe from another.
The Commission also makes an important point when it argues that various other factors can make group membership firmer over time, even when the group is defined initially by largely subjective considerations. In Darfur, the in- group and out-group identifications, even though both were initially based on mere subjective perception and self-perception, became solidified as a struggle for scarce resources forced an arbitrary, but nonetheless real, set of identifying markers on these two groups. If both the perpetrator group and the victim group are clear about the borders between these groups, then there is a sense that what was once merely subjective takes on the character of being objective.
In the next section of this chapter, I attempt to build on this important point and to make sense of the metaphors of “crystallization” or “solidity” that occur when some groups previously merely subjectively identified seem to become objectively identifiable.