Genocide vs. the Constitution

Behind-the-scenes Hero

‘Never again.” As a Jewish boy learning about the Holocaust, lawyer Paul Schwartz absorbed those words. Now, his legal skills are making a difference in the campaign against genocide and irresponsible investment in Sudan.

By Michael Whiteman-Jones

Commercial trial lawyer Paul Schwartz didn’t set out to become a rising star in national and international politics.

He didn’t envision challenging the Department of Justice, Vice President Dick Cheney or President George Bush on complex constitutional issues affecting foreign policy and commerce.

And he never imagined that he would play a critical behind-the-scenes role in saving thousands upon thousands of lives in the war-torn Darfur region of western Sudan.

But, starting about three years ago, he has done all that and more.

Schwartz is a partner in the law firm Cooley Godward Kronish, which employs nearly 650 lawyers in eight U.S. cities, including Broomfield. He lives in Boulder and attends Congregation Har HaShem, a leading Reform Jewish synagogue. The synagogue supports a committee dedicated to ending genocide, and in 2006, when the Genocide Intervention Network’s Sudan Divestment Task Force, in San Francisco, issued an urgent nationwide appeal for legal help, Schwartz felt an urge to volunteer.

“Growing up as a Jewish boy learning about the Holocaust, I often heard and said the words ‘never again,’ ” Schwartz says. “I’ve studied the Holocaust for many years and it is powerfully moving to me; that became what my people and so many other people have experienced. I had read and said the words ‘never again’ so many times, and I got to the point that I realized it was time to put up or shut up.”

Fortunately for Schwartz, his firm is strongly committed to community service. It donated more than 42,000 hours of pro bono legal aid worth nearly $16 million in 2007 alone. Schwartz, who chairs the firm’s pro bono committee, immediately got to work for the Sudan Divestment Task Force.

‘Devils’ Torture, Rape and Kill

The task force’s goal was simple: to end Sudan’s government-financed genocide of the non-Arabic-speaking Africans who controlled Darfur, an oil- and mineral-rich region of western Sudan. Sudan’s leaders support a ruthless fighting force known as the Janjaweed, an Arabic word that means “devil on horseback.” Originally formed to suppress antigovernment rebel forces such as the Sudanese Liberation Army, the nomadic Janjaweed went rogue and expanded the conflict into a tribal and ethnic cleansing, task force co-founder Jason Miller says. It’s estimated the Janjaweed have killed as many as 400,000 people and destroyed 90 percent of Darfur’s villages. Chaos now reigns in the impoverished, war-torn region. Many people who aren’t killed are raped, tortured or maimed. Millions go without enough food and water or other basic needs. More than 2.5 million people have been displaced from their homes, and 3 million to 4 million depend exclusively on humanitarian aid.

“This is a brutal, scorched-earth, drain-the-swamp campaign,” Miller says.

The United States opposes the genocide, but—lacking strong economic interests in Sudan—hasn’t done much to stop it, Miller says. So, in 2005, the task force formed to pressure American and foreign corporations that indirectly fund the genocide to change the way they do business or get out of Sudan. As part of that effort, the task force lobbied local, state and federal governments to enact laws allowing managers to divest from companies and investment funds that refuse to stop doing questionable business in Sudan.

Taking On the Big Guys

So where does Paul Schwartz come in? His help was needed because most state and federal investment funds are legally obligated to maximize profits, regardless of moral issues. What’s more, the U.S. Constitution prohibits local governments from engaging in activities that dictate national foreign policy. The task force asked Schwartz to draft model legislation that would give local governments authority to divest from Sudan, and protect them from being sued by the federal government for meddling in foreign affairs.

It took hundreds of hours of legal research, thousands of travel miles and countless meetings, but Schwartz got it done. Fifteen states, including Colorado, have adopted the legislation developed by Schwartz. Eight have passed similar laws, and all but four of the remaining states are considering it. Meanwhile, Congress unanimously approved a bill in November 2007 to support divestment nationally.

Not surprisingly, success did not come easy. Schwartz met with dozens of state and federal officials before testifying before Congress on behalf of the Sudan Accountability Divestment Act. He had to fight the Department of Justice and Cheney, who argued that the bill undermined presidential authority and was unconstitutional. And he still might be forced to rebut President Bush, who signed the act but asserted in a controversial signing statement that he believes it’s unconstitutional—a move that exposes the bill to legal challenges.

‘It’s Got to Stop’

If all that sounds complicated, it is. “It is a complicated international situation that only government officials and corporations and investment funds can solve,” says Becky O’Brien, coordinator of Har HaShem’s Sudan Genocide Response Team. “But for the rest of us it’s simple: This genocide is wrong and it’s got to stop.”

Miller says that thanks to Schwartz, the divestment effort is having a dramatic effect in Sudan. Many corporations—including Rolls-Royce, Siemens, Schlumberger and global energy giant ABB—have cut back or pulled out of Sudan, or changed their business policies to stop exacerbating the problem. Other companies are weighing these options, or have stayed out altogether. Sudan’s government, now desperate to attract foreign investment, is so concerned about the economic impact of the divestment movement that it recently spent more than $1 million on a six-page ad in The New York Times extolling the virtues of investing in Sudan. It also issued a press release and an op-ed condemning the divestment movement.

The war in Sudan has killed up to 400,000 people and forced millions more, like these women getting water at a communal well, to flee to refugee camps. Many depend solely on humanitarian aid.Photo courtesy i-ACT Field Team of Stop Genocide Now.

Schwartz’s work has garnered local and national praise from fellow lawyers as well as politicians, celebrities and activists. It’s not the sort of role that’s likely to land him on the cover of Time magazine or in the script for a movie of the week, but he’s proud of what’s been accomplished. The divestment movement has attracted public attention to the genocide and helped keep the Sudanese government in check, he says. As bad as it is in Darfur, he points out that there were 800,000 to 1 million casualties in Rwanda’s civil war, and some 2 million slaughtered in the killing fields of Cambodia.

“This killing is not being done in the dark,” O’Brien says. “The divestment movement is making sure the Sudanese government knows somebody is watching.”

Surprisingly, Schwartz has never gone to Darfur and isn’t sure he will. “I would like to meet the people and let them know we’re working for them. But in some ways, I’m sure it would be overwhelming,” he says. For now, he intends to keep using his legal skills here at home to support divestment and help end Darfur’s genocide.

“Is there a long way to go? Absolutely,” Schwartz says. “Is the divestment movement a cure-all? Absolutely not. Have we played a major role in helping save lives? I believe we have.”