Is Darfur Genocide?

The jury not only is still out, it hasn't even been in.

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Sudanese President Omar Hassan al-Bashir today claimed that his government's brutal counterinsurgency in Darfur isn't genocide.

That's hardly a man-bites-dog story, and, to most casual western observers, Bashir's claim may seem like nonsense. Among scholars and diplomats who specialize in genocide, however, the verdict is far from clear.

While the Bush administration has alleged genocide, so far no other government has followed suit. Indeed, the United Nations commission that referred Darfur to the International Criminal Court in 2005 explicitly claimed genocide had not taken place. (That report correctly noted, however, that "international offences such as the crimes against humanity and war crimes that have been committed in Darfur may be no less serious and heinous than genocide.")

Last month, however, claims of genocide in Darfur received new wind when the ICC's chief prosecutor, Luis Moreno-Ocampo, requested that the court's judges indict Bashir.

Has Ocampo made a persuasive case? We don't know. Despite vowing to "file a public redacted version . . . forthwith," more than five weeks later the prosecutor has yet to do so.

Of course, indictments and their applications are often kept secret ahead of an arrest—say, if the alleged perpetrator poses a flight risk, or an ongoing investigation might produce additional charges. In the case of Ocampo vs. Bashir, it defies logic—and, in truth, fairness—that the prosecutor should hold a press conference announcing his charges without actually revealing them. What's more, it defies precedent: When Ocampo previously sought charges against two Sudanese for war crimes in Darfur, a public version of his application was immediately available.

The case against Bashir is Ocampo's biggest yet, and it's not hyperbole to write that it has profound implications for the future of both the court and the region. The Sudanese government has vowed to crush the ICC, and Ocampo's dithering isn't helping—there are rumors that, as with his handling of the case against Congolese warlord Thomas Lubanga, the prosecutor has already bungled this one as well.

Presumably, a chief reason for the ICC's existence is to bring injustice to light. It's time the court's prosecutor practiced that principle as well.