1 i t e UNCLASSIFIED t RELEASED IN FULL 200415443 G United States Department of State Washington D C 20520 vm w stateov JUN 2 %1-' - 2004 2064 JUN 25 PM 6 26 INFORMATION MEMORANDUM SIES SECRET Decl 6 25114 TO The Deputy Secretary FROM L - William H Taft IV W7_ DRL - Lorne W Craner S WCI -- Pierre R Prosper ii' k 1 AF -- Donald Y Yamamoto Acting SUBJECT Genocide and Darfur In the context of our review of whether the atrocities in Darfur constitute genocide we are providing the following overview of genocide and the legal and practical consequences of any such U S determination What is genocide o Although Sudan is not a Contracting Party to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide hereinafter the Genocide Convention the prohibition on genocide reflected in the Genocide Convention applies to Sudan both as a matter of customary international law and as a preemptory norm of international law i e jus cogens o In determining the meaning 'of genocide under customary international law the Genocide Convention provides the internationally accepted definition Article II of the Genocide Convention requires that three conditions be met o specified acts are committed a billing b causing serious bodily or mental harm t-SECRET Classified by Legal a 1SEURx - -zi -11 r H Taft IV Reason E O 12958 1 5 d UNITED STATES DEPARTMENT OF STATE REVIEW AUTHORITY SHARON E AHMAD DATE CASE ID 25 MAR 2009 -200701054 - UNCLASSIFIED - I UNCLASSIMED I SECRET -2c deliberately inflicting conditions of life calculated to bring about physical destruction of a group in whole or in part d imposing measures to prevent births or e forcibly transferring children to another group o these acts are committed against members of a national ethnic racial or religious goo and are committed with the intent to destroy in whole o they or in part therouplas such o As is often the case in contemporaneously assessing whether genocide is occurring the third required element intent is the most difficult to determine o When ratifying the Convention the United States included the following understanding 1 That the term intent to destroy in whole or in part a-national ethnical racial or religious group as such' appearing in article II means the specific intent to destroy in whole or in substantial part a national ethnical racial or religious group as such by the acts specified in article 11 Emphasis added o The difficult question with respect to the application of article H to the situation'in Darfur is whether the Arab perpetrators or Sudanese Government supporters have the specific intent to destroy the non-Arab members of certain ethnic groups as such in whole or substantial part o In the case of Bosnia Tab 1 the Secretary imputed genocidal intent based on the nature and scale of the atrocities associated with ongoing ethnic cleansing Who decides whether genocide bas occurred o Our records reflect that the Secretary of State typically makes a determination whether genocide has occurred in a particular country In recent years after a careful evaluation of the facts in question the Department has concluded that genocide occurred in Cambodia Bosnia SECRET CLASSIFIED I UNCLASSIFIED SECRET i -3- Rwanda and Burundi In all dases but Cambodia policy bureaus analyzed the'acts of violence in the respective countries and with L recommended that the Secretary find that genocide was taking place What are the consequences of such a finding o Contracting Parties to the Genocide Convention have an obligation to prevent and punish acts of genocide in their territory Article VI provides that persons charged with genocide shall be tried by a competent tribunal of the State in the territory of which the act was committed or by such international penal tribunal'as may have jurisdiction with respect to those Contacting Parties which shall have accepted its jurisdiction o As Sudan is not a Contracting Party to the Genocide Convention its obligations apart from not directly engaging or participating in genocide are not clearly established under customary international law o Based on the available facts a determination that genocide has occurred in Darfur- would have no immediate legal -- as opposed to moral political or policy consequences for the United States o In prior years the Department rejected arguments by some human rights advocates for an expansive reading of article I The Contracting Parties confirm that genocide is a-crime which they undertake to prevent and punish that would impose a legal obligation on all Contracting Parties to take particular measures to prevent genocide in areas outside of their territory o From a policy perspective however a finding of genocide can act as a spur to the international community to take more forceful and immediate actions to respond to ongoing atrocities o Article VIII of the Genocide Convention provides that 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 genocide and related genocidal acts Attachments Tab 1 October 1 and February 10 1993 Action Memoranda on Genocide in Bosnia qff STIED C UNCLASSIFIED SECRET -4- Drafted L HRR RKHarris ext 7-4035 6 25 04 Doc No 117957 Cleared L AF GTaft ok L HRR GBrancato ok L SWitten ok DRL ML A Mbutler ok IO JSwigert 6k AWSMTSmith ok INR WWood ok S WCI EHRichard ok MV UNCLASSIFIED SECRET                     National Security Archive    Suite 701  Gelman Library  The George Washington University    2130 H Street  NW  Washington  D C  20037    Phone  202 994‐7000  Fax  202 994‐7005  nsarchiv@gwu edu