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If it weren’t for the horror of what is happening in Darfur, with at least 80,000 lives lost and around 1.6 million people displaced, the United Nations’ impotence on the subject would constitute high farce. But it causes one to ask: Is the international legal system capable of coming to grips with Darfur, or is it destined to be yet another entry in the long catalog of U.N. human-rights failures since its creation in 1945? Genocide, defined as the attempted annihilation of an entire national, ethnic, racial or religious group, is unquestionably the most egregious crime in the international legal lexicon. Labeling of the Darfur case as “genocide,” most notably by Secretary of State Colin Powell, has triggered references to the Convention on the Prevention and Punishment of the Crime of Genocide, especially Article 8, which contemplates Security Council involvement. But as the only international agreement devoted solely to the subject, the Genocide Convention actually goes considerably further in the range of possibilities it presents. Darfur constitutes an ideal opportunity to breathe life into the terms of the convention. While Article 8 raises-in permissive language-the possibility of the Security Council taking such action as it may “consider appropriate,” this is certainly not an exhaustive statement of what may be done under the convention; in addition, the article contemplates that any of the “competent organs” of the United Nations, that is, including the General Assembly, may act. Indeed, the procedural mechanism, known as the Uniting for Peace Resolution, has long existed to enable the assembly to be convened, as a matter of urgency, on 24 hours’ notice. In Sudan’s case, the formality of a vote in the Security Council-with China a likely veto-would first be required. But that would crystallize the situation, trigger the Uniting for Peace Resolution, and point the spotlight of international blame, with its accompanying opprobrium, where it belongs. Though the result in the General Assembly also may be predictable, the power of bringing the debate into the public arena of the assembly should not be underestimated. At any rate, with massive human suffering taking place, and a crying need for drastic action, no stone can be left unturned. Prevention worth pound of cure At its heart, the convention was designed with prevention in mind. Article 1 directs parties, in unequivocal language, to “prevent” genocide. What are not spelled out, however, are the means by which parties should do so. By not prejudging or dictating what the nature of such action should be, the convention requires an assessment of what is appropriate to a particular case-and then requires that such action be taken. Currently, 136 states are parties to the convention (including, it should be noted, Sudan), and each is thus charged with the obligation to tailor a solution to the case at hand, either alone or in concert with others. If what it takes to stop the carnage is an arms embargo or a trade embargo (whether or not specifically directed at oil), then that is what is mandated by the convention. Or, if it would help to establish an international tribunal, following the Nuremberg precedent, to investigate and issue indictments and arrest warrants, then that should be done. And if nothing less than humanitarian intervention, in the form of military action by one or more states, is the only solution, then so be it. If working around the U.N. in that fashion is not to the liking of the world body, regrettably it has only itself to blame. As the revelations of the full extent of the U.N.’s culpability in Rwanda continue to emerge, on top of so many other failures, it has become clear that if serious issues are to be meaningfully addressed, other avenues in the international legal system must be pursued. The convention provides such an avenue; Darfur is a perfect opportunity to demonstrate that, when the convention imposes an obligation to prevent genocide, it really means what it says. Harry Reicher, a professor at the University of Pennsylvania Law School, thanks his fall 2004 human rights class for contributing to this article.

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