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.
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.
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.
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.