In Defense of Alex de Waal

by Kevin Jon Heller

A reader has left a comment to my previous post in which he alleges that Alex tipped off Bashir that the OPT was going to seek his arrest and speculates that Alex might have promised Bashir to oppose the genocide charges.

I have reluctantly left the comment up, because I don’t believe that it is my role as a blogger to police the comments to my posts.  That said, I want to make one thing absolutely clear: the commenter’s allegations are completely ridiculous and unequivocally false.  I have very significant disagreements with Alex about whether Bashir is legally responsible for genocide in Darfur, and I did not pull any punches in my previous post.  But I have nothing but respect for Alex — very few people in this world can rival his expertise or his commitment to improving the lives of ordinary Darfuris.  I believe that I am right where Alex and I disagree — as my mentor, Stanley Fish, once said, it’s impossible not to believe what you believe.  But I freely confess that I always think twice before I disagree with Alex, and when I do disagree with him, I do so with trepidation.  That is the highest compliment I can pay someone.

We are all better off for Alex’s work, as angry as it often makes some of us.  I hope I will have the privilege of disagreeing with him for a very long time.

http://opiniojuris.org/2009/03/17/in-defense-of-alex-de-waal/

One Response

  1. On my provocative comments on the genocide debate, I have seen everyone came in defense of Alex De Waal and faulting me. Well, I may accept where I am at fault, but I am also compelled to clarify my position further.
    In this discussions, what I have seen are three major issues: (1) whether the atrocities in Darfur constitutes genocide, (2) if the case of genocide can be presentable in court, (3) and should someone be held accountable for the atrocities committed in Darfur, especially if that someone is Omar al-Bashir, the president in Khartoum.
    Leading the discussions is Alex De Waal who dismisses any claim of genocide committed in Darfur, laughs off at any evidence of genocide charges that can be presented in court, and adamantly opposes Omar al-Bashir to be held accountable by court.
    However, I can prove beyond reasonable doubt that De Waal’s current position is a drastic shift from his previous position on the same questions. The question then is: why a sudden drastic shift of positions? Below are plenty of examples showing those shifts over the short period of the conflict in Darfur.
    In July of 2004, in Addis Ababa, Alex De Waal wrote that after he barely left Sudan, (Darfur in particular) in the year “1987, political processes were in motion that led ultimately to the outbreak of war in 2003 and its escalation into genocidal massacre and displacement.” If this is so, why are we arguing on the question of genocide? So, there is genocide in Darfur. It is that clear.
    De Waal went on to recommend that Darfur should not only be a place for “a textbook study of famine, but of genocide as well.” Well, no one will be more disappointed than the students of Sudanese affairs after learning that the foremost scholar of Sudan recommended an exciting field of studies (genocide) and abruptly abandoned the pursuit of that study, only to turn around and criticize those who took his initial recommendation as those with “little knowledge of Sudan.” It is here that De Waal lost all his students and perhaps more than that.
    According to De Waal, about four years ago, what was happening in Darfur did “fit the definition contained in the Genocide Convention, which is much broader and encompasses systematic campaigns against ethnic groups with the intention of eliminating them in part or whole.” In other words, De Waal Wrote, “genocidal intent can be shown” in the conflict of Darfur. Hearing this coming from an expert, a judge may declare the case close in favor of genocide charges. One is tempted to ask, where is the ICC?
    To find the motivation, which is the driving force for this genocidal campaign in Darfur, De Waal argued, “’ideology’ of ‘Sudanization’, namely the spread of specific social and cultural values, economic and political relations, associated with the riverain core of the Sudanese state, is at work, in tandem with the Arab supremacism of the Janjawiid leadership.” In this reference, De Waal identifies the culprits, their intent, and ideologies behind the genocidal campaign—the things that De Waal today claims are difficult to identify, especially by an Argentinean Prosecutor with a funny name Ocampo. Perhaps, Ocampo should consult De Waal to do the work for him.
    As to the solution to this ongoing genocide, De Waal could only make comparisons that since “the people of Darfur have shown comparable resilience in surviving famine: let us hope they have the same skills when faced with genocidal massacre.” By equal measures, one can argue that since Khartoum kicked out the relief agencies which provide food for Darfuris, let’s hope the Darfuris “resilience in surviving famine” will keep them alive way after al-Bashir imprisonment. Hence, ICC backlash should not be an excuse to defer justice against the perpetrators of genocide, given the “resilience” of the Darfur people that they will survive without the relief agencies.
    Writing for Index on Censorship in 2005, De Waal agreed with the then US Secretary of State, Colin Powell as being “correct in law” for describing the war in Darfur as ‘genocide.’ One can assume that it is this very “correct law” that Ocampo is using to prosecute crimes in Darfur. Why attack Ocampo then if the law is correct on this? We would have blamed Ocampo had he used anthropology for his prosecution, but for using the correct law, one wonders the motive of attacking him.
    De Waal wrote, “according to the facts as known and the law as laid down in the 1948 Genocide Convention, the killings, displacement and rape in Darfur are rightly characterized as ‘genocide’.” The “facts” here would imply the evidence on the ground for the killing, displacement and rape, therefore, Ocampo should borrow this line to strengthen his weak presentation to the judges. On the flip side, if al-Bashir reads this line, it will not take him look before he comes on television to declare De Waal supporter of ICC, meaning an enemy in Khartoum’s language.
    De Waal went on to write that in order to prosecute the perpetrators of genocide, “the bar is lower.” Compare this to De Waal’s attacks on Ocampo for his ‘student failing grade’ analogy,’ one will really be surprise on what really changed with De Waal all of sudden. So, if the “bar is lower,” then where did Ocampo go wrong, especially in analogy of ‘student failing grade,’ which is advance by De Waal to discredit Ocampo.
    To supplement his argument of bar being lower for the prosecutions of genocide, De Waal wrote, “this can be inferred from the successful ICTR prosecution of a Rwandese genocidaire, Jean-Paul Akayesu, in which it was found that intent could be inferred from a number of presumptions of fact, including the general context in which deliberate harm was systematically being inflicted on the target group.” So, “presumptions” is the standard, then one see a real reason for Ocampo to appeal the case of genocide charges against al-Bashir or as De Waal nicely argued that as for Darfur case, “the fact that the state did not plan genocide is immaterial. It planned a counterinsurgency and gave its officers complete impunity to commit atrocities, which they have routinely done on a gross scale and an ethnic basis. This was ethics-free counterinsurgency, escalated to a genocidal extreme.” Call it ‘counterinsurgency on a cheap’ or what have you, but the escalation of the war in Darfur led into genocide, therefore, genocide is committed in Darfur just as the escalation of a downed plane led into genocide in Rwanda, leading into genocide being committed in Rwanda.
    Arguing anthropologically on how difficult it is to identify the perpetrators and the targets in the case of Darfur, De Waal drew a parallel with Rwanda where the ICTR overcame the issue by putting emphasis on “what was subjectively believed in the minds of those perpetrating the acts in question.” If the Arab Janjaweed are as dark as their victims or if they are Africans themselves, but yet in their empty minds they believe they are Arabs and go to commit genocidal acts on the ideology of Arab supremacism, that is all it requires to convict al-Bashir on genocide charges. One will conclude that Ocampo has his work cut out for him here by citing anthropological evidence to strengthen his weak case of genocide.
    In 2007, in Prospect Magazine on the question of whether the atrocities in Darfur constitutes genocide, De Waal explained, “certainly, the crimes of the Janjaweed and their backers seem to fit the genocide convention definition of acts intended to destroy, in whole or in part, an ethnic, racial or religious group.” Again, an acknowledgement of genocide committed in Darfur by both Janjaweed and their masters in Khartoum, al-Bashir included.
    De Waal shifting of positions on this subject is drastic, and it is the reason that lead many people to speculate on his contacts with al-Bashir just weeks prior to Ocampo’s filing the application of arrest warrant against al-Bashir where De Waal decided to alert al-Bashir. Of course, it is not that the allegation of De Waal alerting al-Bashir is false as those who came into his defense are arguing. De Waal courageously and honestly admitted this. So, what should be known is that De Waal decision to alert al-Bashir can leave many people to speculate on what is really that they discussed with al-Bashir. The burden is up for De Waal to explain the nature of his action with respect to alerting al-Bashir and to also justify why he made a sudden drastic shift of his positions. Base on the above examples, the positions are complete opposites of his positions of today.
    Steve Paterno

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