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When the United Nations commission investigating Darfur issued its report in January 2005, it concluded that the Darfur atrocities represented war crimes and crimes against humanity, but not genocide. This had the harmful effect of deflating efforts to mobilize political support to halt the Darfur atrocities. But the Commission's conclusion was based entirely on technicalities in the legal definitions of the international crimes, not on denial that extermination is going on in Darfur. In this paper, the author argues that the legal and popular meanings of genocide have diverged in harmful ways: where laymen understand that mass killings and rapes that are exterminating a civilian population simply are genocide, lawyers also require a specific intent to destroy a "protected" group as such. The original motivation for defining genocide differently from extermination (a crime against humanity) lay in a theory that religious, racial, and national groups have value over and above the value of the individuals in them. But, subsequent developments have thinned the connection between the crime of genocide and the theory of group pluralism. Hence, there is no longer a good reason to draw a sharp legal distinction between genocide and extermination, which today functions to provide a fig leaf for inaction by the world community. The author proposes adding the crime against humanity of extermination to the other crimes in the definition of genocide.

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7 Chi. J. Int'l L. 303-320 (2006)