You Say Genocide, I Say Genocide: Some Thoughts on the Genocide Debate

A Bosnian woman mourns over coffins of some of the victims of the 1995 Srebrenica massacre, which has been described as consituting an act of genocide (Photo: srebrenica-genocide.blogspot.com)

In an article on the continued debate about the meaning and use of the term ‘genocide’, The Economist writes:

“Prosecutors, judges, historians and politicians have made huge efforts in recent years to describe the boundaries of genocide: when mere mass murder stops and the ultimate human crime starts. Yet the term is far more than a tool of historical or moral analysis. Its use brings momentous political and legal consequences—and is therefore bound to be highly contested.”

Since the days when Polish lawyer Raphael Lemkin loitered in front of the offices of UN diplomats and pressed the international community to adopt the Convention on the Prevention and Punishment of the Crime of Genocide, few terms have inspired so many words, speeches, books and films as “genocide”. Perhaps only the term “nuclear” has evoked the same passion and interest. Genocide has, for better or worse, become known as the “crime of all crimes” and has seemingly defined the parameters of humanity’s capacity to conduct evil.

According to the Genocide Convention,

genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

At the center of the genocide debate has been the work of Professor William Schabas. Schabas has written extensively about his discomfort with what he sees as the abuse of the terminology of genocide, declaring that its expanded use and conflation with crimes against humanity has resulted in a “careless and potentially misleading use of precise terminology.” According to the Economist, however, Schabas now argues that the international community should turn its focus away from genocide to crimes against humanity.

State representatives sign the Genocide Convention. On the far right, standing, is Raphael Lemkin who tirelessly worked to get recogntion of the term "genocide" (Photo: ushmm.org)

A trend towards applying crimes against humanity as a sort of blanket crime, would have significant consequences for the adjudication of international crimes. It would virtually guarantee that most perpetrators of mass atrocities are found guilty. Why? Because, as Dov Jacobs argues, they don’t need the intent to destroy, in total or in part, a particular group of people, as the crime of genocide requires, nor does it require a recognition that crimes were committed in the context of an armed conflict, as war crimes require.

Some may argue that there is something fundamentally positive about a world which sees all crimes which may amount to genocide as crimes against humanity. Because genocide must be done by one group against the “other”, calling crimes genocide implicitly and explicitly reifies the belief that some people are different. Crimes against humanity, on the other hand, is a fundamentally cosmopolitan international crime. Which people are targeted is irrelevant because the crime is one not against any type of people, but a crime against all people, against all of humanity. The architects and perpetrators of the Holocaust, for example, were not charged with genocide at the Nuremberg Tribunal (the term “genocide” did not yet exist). Instead, their acts were considered as crimes against all of humanity.

However, there are important dangers to using crimes against humanity as a ‘blanket crime’. An entirely possible consequence, and one we already see evidence of, is “piling on” alleged crimes onto indictments. The list of alleged crimes perpetrated by Ratko Mladic, for example, reads like a Christmas list from hell. Sudan’s Omar al-Bashir faces warrants from the ICC on all three charges: crimes against humanity, war crimes and genocide. The result may be an attitude, encroaching on victor’s justice, which dictates that “if we can’t nab ‘em with genocide or war crimes, we’ll nail ‘em with crimes against humanity.”

Some argue that whatever the legal definition of the crimes in places such as Darfur, action must be taken to end the humanitarian catastrophe. In this context, it seems morally dubious that a decision of whether or not genocide is occurring would decide whether or not effective action to stop mass suffering should be taken. This is convincing on a number of levels and promotes swifter action to end atrocities. However, the question of whether or not genocide has occurred remains important.

(Photo: economicthought.net)

The term genocide has the ability to motivate public opinion and mobilize international consensus, although recent cases, most spectacularly the 1994 Rwandan Genocide, suggests this is often insufficient or simply comes too late. The widespread purchase of the term genocide may explain why so many advocacy and humanitarian groups choose to use the term rather liberally in order to drum up attention and financial support for their work. Yet there is always the danger of crying wolf: that using the term genocide to describe events which are subsequently shown not to constitute genocide, hampers the very mobilization of the power that the term has.

There is also the danger of manipulating the ‘facts’ of genocide.  Rob Crilly, a journalist who has spent considerable time in Darfur and recently published a riveting and prescient book (Saving Darfur – Everyone’s Favourite African War), has written about the Sudanese government’s employment of false claims of genocide to illustrate Western bias and justify their own death-toll figures. Crilly also argues that the over-zealous drive of activists to label events in Darfur genocide has been detrimental to ending the crisis: “For all their hyperbole and visibility, the advocates … have merely succeeded in pushing Khartoum into a corner and reducing the possibility that diplomacy can prevail.” Rather than a genocide, Crilly, Alex de Waal, and others skeptical of genocide claims view Darfur not as a genocide but as a low-intensity conflict. The desire to call Darfur a “genocide”, what Mahmoud Mamdani refers to as the Nobel prize in reverse, may have adverse effects, especially for those who see a negotiated settlement as the only way to resolve the crisis.

While it is often argued that genocide has the legal power to bind states to take action to halt genocide,  the record is less than stellar. n 1994, the Clinton administration’s notorious reaction to the Rwandan Genocide, which some have called spineless, went to great lengths to avoid the use of ‘genocide’ for fear they would be bound to do something to stop it. Indeed, numerous Clinton administration officials, including President Clinton himself, have publicly stated personal regret over their inaction. In 2005, the International Commission of Inquiry on Darfur, established by the UN, found that Sudan had not pursued genocide. Almost simultaneously, and in contradiction to the Commission’s report, then US Secretary of State Colin Powell declared that genocide had been committed in Darfur and that the government of Sudan and the Janjaweed bore responsibility and genocide may still be occurring.  Yet, despite the US government’s view that genocide had occurred in Darfur and that the Sudanese government was responsible, it has not taken any subsequent action that was able to resolve the conflict in Darfur.

Some have argued that in Darfur, the situation in refugee and internally displaced people's camps amounts to "genocide by attrition"

In 2010, the ICC added an arrest warrant against al-Bashir for genocide. The three counts of genocide include one referring to what amounts to genocide by attrition. Eric Reeves has argued that

“[w]hat Khartoum was unable to accomplish with the massive violence of 2003-04, entailing wholesale destruction of African villages, will be achieved through a ‘genocide by attrition.’ Civilians displaced into camps or surviving precariously in rural areas will face unprecedented shortfalls in humanitarian assistance, primarily food and potable water.”

In line with this more expanded view of the crime of genocide, the ICC charged al-Bashir with “genocide by deliberately inflicting on each target group conditions of life calculated to bring about the group’s physical destruction.” It is in this context that Schabas has argued that what is deemed to constitute genocide has widened in scope.

There remain questions as to whether the expansion of the term genocide necessarily means the erosion of its effectiveness. The Genocide Convention (1948), as international political theorist Chris Brown argues, may be inherently backwards looking. It is a reaction and condemnation of the Holocaust. As such, it may not be able to capture or be an effective tool to prevent or stop contemporary genocide acts of today. The debate on the terminology of genocide is an important one that deserves greater public and scholarly attention.

In short, the genocide debate appears to revolve around a few key themes: the power the term has and its ability to mobilize and bind actors; the expansion of what genocide constitutes and how this has changed throughout time; the effects of labeling events genocide and its implications on peace processes; and the beginnings of what appears to be a trend towards relegating genocide in favour of using crimes against humanity as a blanket crime.

All of these issues are important to debate. Critically, this is not simply an academic exercise. It has implications on how we react to and prevent the gravest of international crimes.

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About Mark Kersten

Mark is a researcher, consultant and teacher based in London. His research focuses on the nexus of international criminal justice and conflict resolution. Specifically, Mark's work examines the politics of the International Criminal Court and the effects of its interventions on peace, justice and conflict processes.
This entry was posted in Crimes against humanity, Genocide, Peace Negotiations, Ratko Mladic, Rwanda, Sudan, United States. Bookmark the permalink.

4 Responses to You Say Genocide, I Say Genocide: Some Thoughts on the Genocide Debate

  1. Mathias Holvoet says:

    Interesting post!

    Here are some of my remarks:

    First of all, I’m not really a fan of some kind of hierarchy of international crimes, like calling genocide ‘the crimes of all crimes’ or the fact that in Nuremberg, aggression was called the ‘supreme crime’. I think we’ll agree that international crimes are very grave, and i don’t see the utility of a ranking. War crimes can also be very grave, take for example the bombing of Hiroshima and Nagasaki at the end of WWII. It just depends on the context and the methods used.

    Secondly, I’m doubting if we really need a crime of genocide, at least as a distinct criminal law concept. I really don’t undertand the obsession that some Prosecutors seem to have to want to prosecute genocide instead of ‘mere’ war crimes and crimes against humanity. Take for example the killing of 8000 male Muslims in Srebenica. Who cares if it’s really genocide or not? It was killing of innocent civilians, seems grave enough for me. Isn’t genocide just a specific crime against humanity? Actually, I have the same problems with the crime of terrorism. Who cares what the political motives behind the crimes are? Killing of innocent civilians can never be justified. But I guess I’m a real liberal cosmopolitan :)

    Thirdly, I think it’s a bit extravagant to call crimes against humanity a ‘blanket’ crime, encroaching on victor’s justice. Crimes against humanity go back to Nuremberg, and they’re now firmly established in customary international law and international treaty law (the Rome Statute). On one particular article of the Rome Statute I can folllow follow your interpretation though: art. 7(1)(k) which criminalizes ‘Other inhumane acts’ as crimes against humanity. This article is really to vague in my opinion and is probably violating the nullum crimen sine lege principle, also enshrined in the Rome Statute. The chance of misusing this article are not small. For example, the Supreme Court of Venezuela, referring to the Rome Statute has considered that drug trafficking, terrorism and child prostitution may amount to crimes against humanity.

    Regards,
    Mathias

  2. Obs says:

    Thanks for this great article and allow me to speak as someone who has gone through genocide and crimes against humanity all at the same time. I come from Rwanda and i have family on both sides of the two main ethnicities namely( hutu and tutsi)!
    I lost family members and 80/% of my childhood friends to the 1994 massacres and then lost many more after the current Army invaded Congo in the name of searching for Genocidaires,so do you want me to consider myself as a victim of Genocide or Crimes against Humanity? Just letting you know that there is always a face behind these legal terms and it is not always clear cut but i undersatnd that people have to make a living.

  3. saraabra says:

    In Joyce Apsel and Ernesto Verdeja’s work, “Genocide Matters,” genocide is described as a modern phenomenon. Leo Kuper noted that genocide is, “a term that is new but a crime that is ancient,” with that sated it becomes apparent that although the study is new, what constitutes as genocide is not modern. From all fields genocide is dissected and observed, historians try to provide empirical detailed accounts from past incidences, psychologists try to explain the individual acculturation to violence, and sociologists seek to shed light on how radical ideology is stratified and propagated. And, I predict that defining genocide will increasingly become harder, more contested, and highly debated as more scholars enter the field with their unique and individualized plethora of views and ideologies.

    With a larger pool of investigators holding opposing views it is no surprise that venturing to set and establish an exact definition is challenging. I believe that the definition established at the United Nations Genocide Convention on the Prevention and Punishment of Genocide is appropriate but I would add that “orientation” should be included. I also believe that genocide should be used to label any deliberate crime against humanity. In her work, “Questioning Boundaries,” Maureen S. Hiebert lists varying labels such as: politicide, democide, ethocide, gendercide all of which I believe are shaded underneath the definition set by the United Nations.

    There is an extreme importance defining genocide. Defining genocide revolves around the binding ability to influence actors in the political international sphere and it certainly influences peace-processing discussions.

    When intervention is demanded by an evidently oppressed people then a definition that will aid them will no longer become a definition but rather such a definition will transform into a sword.

  4. Robert Schmidt says:

    What can be done? Should the UN have more power to stop all of this?

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