By Mark LeVine and Eric Cheyfitz
May 02 2017
“Genocide” evokes crematoria, mountains of skulls, and mass graves. It is what the Nazis did to the Jews of Europe, what the Khmer Rouge did to fellow Cambodians, what Hutu nationalists did to Tutsis in Rwanda. The term, like the practices of death and social destruction to which it refers, is odious. Charging genocide is like ringing an alarm because, when this crime is occurring or when it has occurred, consequences for perpetrators should follow.
Our approach is to trace the political history of the term “genocide” in law and jurisprudence, and compare some of the contexts in which the practices to which the term refers have occurred, and where accountability has been pursued. We also consider where and why there are grey areas in its usage, and offer some thoughts about the political utility and detriments that accompany the charge of genocide.
Arguably, because of the gravity and potential consequences that attach to genocide deploying it in a manner that does not correspond to its legal definition risks watering down its force which might further harm those who are victimized by extreme forms of state violence.
But we must also ask who is empowered to decide, and what criteria are used to determine whether allegations of genocide are justified. The counterargument could be made that invoking this term to characterize the treatment of Black Americans is perhaps the only way to focus negative attention on the killing of so many unarmed people by police, and to compare it to lynching, which was a direct outgrowth of the enslavement of Black people. Slavery was a genocidal regime both in the expendability of Black lives and in the imposition of social death on the slave.
Contemporary mass incarceration results in the physical and social destruction of the lives and communities of people of colour, who are disproportionately represented in the US prison population, and provides a new source of unpaid labour, not unlike chattel slavery. In this context, it could be argued, the way to force Americans to consider seriously the disastrousness of ongoing police violence and mass incarceration is to link them directly to the history of the even more brutal violence that begot them. Similarly, the use of the term “genocide” by Palestinians and those struggling against the long-term, systematic and criminal oppression and persecution suffered by Palestinians since 1967 (and indeed, since 1948), is necessary to force a conversation that would otherwise remain very difficult to begin.
We write “it could be argued” because genocide is a term whose meaning and even more so whose applicability remains hotly contested. It can be defined from many perspectives—legal, sociological, political and/or historical, all of which are interrelated yet each of which rests on distinct experiences, assumptions, and criteria of judgement. Determining whether Israel or the United States or indeed any other government can be reasonably accused of genocide depends first on whether the accusation is political or legal in its scope and intentions. To reach a legal standard of genocide, that is, one that accords with the criteria under international law, demands comparison with allegations and judgments of genocide cases that have been heard, tried, and/or judged by international tribunals, such as the International Court of Justice (ICJ), the International Criminal Court (ICC), and various ad hoc tribunals mandated to make such determinations.
But, as we explain below, even the most detailed investigation may not lead to a conclusive determination as to whether specific actions or policies have crossed the threshold because the standards presently used to define genocide remain deliberately vague, and the body of court judgments is limited and recent, dating back less than twenty years. Consequently, we survey existing legal standards and rationalities, and contextualize recent allegations about Israel and the United States in relation to the legal record. Finally, we suggest how violent contexts may be assessed in light of expanding sociological and political deployments of the term.
The Genesis of Genocide
Many wars and conflicts across human history have involved mass violence against whole populations that, today, would unambiguously be described as genocidal. The eighth century An Lushan revolt in China and the Mongol conquest of Eurasia each resulted in what would be the equivalent of hundreds of millions of deaths by contemporary population measurements, dwarfing the scale of the twentieth century's two world wars combined. Over the last two centuries, civilians have been increasingly targeted for large-scale violence; this can be attributed to many factors, including the build-up of standing armies; technological advances in weaponry that allowed artillery, aerial bombs, and increasingly long-range missiles to reach what previously had been the rear area of enemy territory; and the rise of “totalizing ideologies” that encouraged violence against all members of the enemy's society. As Alexander Downes has pointed out, in the wars of the twentieth century, “the startling numbers of civilian casualties” and “civilian victimization” more broadly occurred precisely at the very time a consensus emerged that targeting civilians was immoral and should be prohibited. This consensus has taken shape under the rubric of international humanitarian law (IHL), whose origins trace back to the late nineteenth century.
The United States was the first country to attempt to impose a balance between military necessity and humanitarian considerations in the conduct of war. The Lieber Code, produced by Frances Lieber and signed by President Abraham Lincoln in 1863, was a set of military orders that took the “best practices” from the laws and customs of war to govern the Union Army during the US Civil War. This Code included the prohibition against deliberate attacks on or other forms of mistreatment of enemy civilians. The Lieber Code served as inspiration for The Hague Conventions of 1899 and 1907, which constituted the first steps in the development of modern international laws of armed conflict, and specified that violations, or “war crimes,” would include deliberate attacks against civilians during international conflicts between states.
However, violations were not abated by these new rules. On the contrary, in the wake of the Ottoman mass murder of over one million Armenians and the similarly devastating (but far less discussed) Allied blockade of the Central Powers during World War I, there was no authoritative determination of war crimes let alone accountability for perpetrators. While these events inspired the development of the category of “crimes against humanity”—a term first used by the Allied powers during World War I to describe the Ottoman massacres of Armenians—and later the category of genocide, they did not obtain any functionality as legal concepts until the Nuremberg Tribunals after World War II.
Raphael Lemkin, a Polish Jewish scholar, coined the term “genocide” in 1943. He had been agitating over the previous few decades for international recognition that what the Ottomans had done to the Armenians should be recognized as egregious and criminal. Originally, what he called the “Crime of Barbarity” (in a 1933 academic paper) included mass murder, but also the “attempt to destroy a nation and obliterate its cultural personality” motivated on the basis of “racial, national or religious considerations.”
But it was the Nazi extermination of Jews and other population groups in Germany and the countries it occupied in Europe that provided the opportunity for Lemkin to push his argument and to name this form of violence “genocide,” which combines the ancient Greek word genos (race, clan) and the Latin suffix cide (killing). In a 1946 article for American Scholar, Lemkin elaborated on the definition of the term, arguing that it involved the “mass obliteration of nationhoods,” the “murder and destruction of millions,” and the “destr[uction] demographically and culturally” of populations within countries. Crucially, Lemkin saw genocide as both an international crime, whose commission was of concern to all nations, not just the one(s) directly affected, and as a crime that could occur during peacetime as well as wartime.
Not surprisingly, given the background of World War II, Lemkin argued that “genocide can be carried out through acts against individuals, when the ultimate intent is to annihilate the entire group composed of these individuals…Moreover, the criminal intent to kill or destroy all the members of such a group shows premeditation and deliberation and a state of systematic criminality which is only an aggravated circumstance for the punishment.” The objectives of such a plan would be “disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups.” In 1946, the new United Nations General Assembly would declare in Resolution 96(1) that genocide involved “a denial of the right to existence of entire human groups.” (The United Nations was established in 1945)
Thanks to Lemkin's passion and labours, that term became a centrepiece in the revolutionary transformation of international law in the aftermath of World War II. Nazis were tried for the newly named and defined crime, and the Convention on the Prevention and Punishment of the Crime of Genocide, passed by the United Nations in 1948, became the first international human rights law. As enshrined in Articles II and III of the Convention, genocide comprises both a “mental” and a “physical” element, and was defined as the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” It would include the commission of acts of killing, causing serious bodily or mental harm, deliberately inflicting on group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births, and/or forcibly transferring children outside the victimized group.
According to the Genocide Convention, while the levels of death and destruction do not have to encompass most or even a majority of members of a protected group, the violence does have to be of sufficient intensity and organization to threaten to change its “pattern of life.” In Article III of the Genocide Convention, punishable acts include conspiracy, incitement, and attempts to commit genocide, as well as complicity in these actions, even if they were not successfully carried out. This basic definition has been maintained and reinforced in the ensuing seven decades, including in the Rome Statute of 1998 to establish an International Criminal Court (ICC).
Despite this continuity in the legal definition of genocide since 1948, the term has not remained static. At the time the Convention was being negotiated, experts, including Lemkin, were pushing to include within the definition of the crime an explicit cultural component, which the United States strongly opposed because there was a significant fear that persecuted minoritised groups could pursue genocide claims for the destruction of their culture(s) or forced assimilation into the dominant group's. Similarly, the definition of protected groups deliberately excluded political groupings or parties, even though—or perhaps because—they were among the most common targets of large-scale state violence.