GENOCIDE

Genocide is again at the forefront of international news. South Africa has brought the charge of genocide against Israel before the International Court of Justice. Is the charge valid? Some basics.

Human rights emerge out of concrete social, economic, and political conditions. They are products of deprivation, and the need for protection from abuse, injustice, or oppression. Whether we believe that human rights are socially constructed or inherent in human nature, they do not fall from the heavens, nor are they spun from the minds of armchair philosophers.

World War II was arguably the most far-reaching unjust phenomenon in the history of humankind. By some estimates upward of 80 million people were killed as a result of the war, more than 50 million of whom were civilians. The greatest war in history cried out for the creation of mechanisms that would hold people free from harm as civilization moved into the post-war world.

In the following decades, the international community created a panoply of such mechanisms. The most comprehensive was the United Nations. Its primary purpose has been to end aggression between nation-states and bring about a state of peace. The UN, in 1948, created the Universal Declaration of Human Rights. The Fourth Geneva Convention of 1949 outlines the protection of civilians during warfare, and there was reinforcement of earlier conventions outlining the treatment of prisoners of war. The UN adopted the Convention on the Prevention and Punishment of Genocide a day prior to proclaiming the Universal Declaration of Human Rights, ie. December 9th, 1948.

Laws of war, which have slowly evolved since ancient times, were given a categorical boost by The Nuremberg Trials of 1945, when major figures of the Nazi regime were tried and punished under the precepts of international law. The Nuremberg Trials were significant for many reasons, among them was the partial breaking down of the convention of national sovereignty in that Nuremberg invoked an international legal regime that superseded the laws which held sway within nation-states. Some see the creation of a permanent international criminal court in 2002, dedicated to trying perpetrators of the most heinous human rights abuses, as a fulfillment of a process initiated at Nuremberg.

Some theoretical discussion is in order. There are two major camps among political theorists. Among such thinkers, there are political realists, who affirm an ideology of realpolitik. In short, this view holds that in a world in which national sovereignty defines the boundaries of state authority, the premier interest of countries is to advance their respective military, political, and economic power and protection. The citizens of nations are governed and ruled by their domestic laws, which are enforced by the power of the state. But once we cross a nation's boundaries and move into the international arena, we enter a lawless zone. Beyond national frontiers, we have entered a jungle. It's a Hobbesian realm characterized by a war of each against all.

Contrasted to political realism is political liberalism. Those holding this view affirm that, while difficult, some legal norms can be applied to shape a more orderly, civilized, and peaceful international realm. In other words, such political liberals are guided by the belief and faith that diplomacy, reason, and the creation of international law are possible and can win out over the exercise of brute power and competition among states. The aforementioned international institutions are expressions of liberal optimism emergent out of the destructive horrors of World War II.

As noted, The Convention on the Prevention and Punishment of Genocide was one of the major human rights documents of the post-war era. The Genocide Convention was arguably the creation of a single individual, the Polish-Jewish international lawyer and linguist, Raphael Lemkin. Lemkin was brought back into the annals of history by human rights scholar and UN representative Samantha Power in her magisterial book, A Problem from Hell: America and the Age of Genocide. From an early age, Lemkin became consumed with the subject of atrocities and the massacre of peoples singled out for destruction. He worked tirelessly and obsessively to end such destruction in what was a lifelong mission. Lemkin was fluent in nine languages and read fourteen. He spoke at legal conferences at every opportunity arguing for a law that would prohibit the mass atrocities that singled out specific groups.

His life was profoundly influenced by such atrocities. Lemkin was deeply moved by the massacre of the Armenians by the Ottoman Turks. As a Jew, he was aware of local pogroms in Poland. He fled the onslaught of Nazism and eventually found asylum in the United States. Forty-six members of his family were killed in the Holocaust. Amid the slaughter, Lemkin searched for a term to describe the unique crime. He considered several terms including “mass murder,” but dropped them because they did not incorporate the motive behind the crime that preoccupied him. For similar reasons, he discounted “barbarity” and “vandalism.” Power makes an interesting observation that captures Lemkin's sensitivity as a linguist. She wrote:

“Of particular interest to Lemkin were the reflections of George Eastman, who said he had settled on 'Kodak' as the name for his new camera because: 'First. It is short. Second. It is not possible of mispronunciation. Third. It does not resemble anything in the art and cannot be associated within the art but Kodak'.” Power notes that for Lemkin, “Somehow it (ie. the proposed word) had to chill listeners and invite immediate condemnation.”

She goes on:

“The word that Lemkin settled upon was a hybrid that combined the Greek derivative geno, meaning 'race' or 'tribe,' together with the Latin derivative, cide, from caedere meaning 'killing,' 'Genocide' was short, it was novel, and it was not likely to be mispronounced. Because of the word's lasting association with Hitler's horrors, it would also send shudders down the spines of those who heard it.”

Lemkin was prescient. The word has become a verbal fetish, and tragically a political football, subject to both evasion and histrionic and excessive employment to rally moral condemnation toward the enemy so charged. But genocide has a specific meaning. As the basis of law it must, but as with all laws, it is subject to interpretation.

Articles I and II of the Convention on the Prevention and Punishment of the Crime of Genocide are most pertinent. They state:

Article I. In the present Convention, the crime of genocide, whether committed in time of peace or in the time of war, is a crime under international law which they [ie. The contracting parties] undertake to prevent and punish.

Article II. In the present 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.

It was recognized from the beginning that the Convention has several weaknesses. The most obvious is the absence of numbers. How many need to be killed for mass killing to be labeled genocide? Its omission was grounded in the recognition that if a number was specified, a leader responsible for genocide could evade criminal prosecution by killing a few less than the specified threshold. Since the mainstay of genocide is the destruction of groups, arguably if a tribe consisted of merely a thousand individuals and three hundred were killed, this large percentage might well count as genocide, whereas killing 2,000 individuals in a group comprised of millions might not.

A second issue is that the Convention omits political groups from the list of victimized parties within the protection of the Convention. This omission resulted from disputes among the contracting nation-states. None wanted to be held responsible for the killing of dissident political groups within their borders. A glaring consequence is that the Cambodian “genocide,” in which close to two million Cambodians out of a population of eight million were killed, many tortured and subjected to horrid brutality, technically does not count as a genocide, though in many ways it fits the paradigm. Some, therefore, prefer to refer to it as “politicide.”

A further limitation is that the convention, as with all human rights conventions, are treaties among nation states. Today, many flagrant abuses are caused not by nations but by non-state actors. Such entities are, therefore, not signatories to the convention and not legally bound by it.

Genocide, furthermore, requires that the mass atrocity in question not be incidental to military conflict. There must be a concerted intention to single out the targeted group for destruction. Such intention may be difficult to discern.

As noted, the employment of the term “genocide” has suffered both avoidance and overuse. A flagrant example of the former took place during the Rwandan genocide. Here was an example of a genocide that could have been prevented, yet more than 800,000 Tutsis were killed by Hutu genocidaires in 100 days, a rate of killing that exceeded the extermination of Jews during the Holocaust. After the notorious Black Hawk Down incident in Somalia, when two American helicopters were shot down by Somali militias and the bodies of 18 American military rangers were ignominiously dragged through the streets of Mogadishu, President Bill Clinton pledged that the United States would not again expend its blood and treasure on the African continent if there were no strategic interests in doing so. Maintaining this position, the United States not only refrained from intervening but pressured the United Nations to diminish a small contingent of peacekeepers who had been sent to Rwanda to oversee an earlier peace treaty between the two ethnic groups. The refusal of the United States to stop the genocide was morally reprehensible in the extreme, and, in the view of this observer, marked the nadir of the Clinton administration.

An alibi for not intervening was to deny the obvious fact that the mass killing of the Tutsi ethnic group was, in fact, a genocide. The administration's refusal to intervene was highlighted by a verbal dance by the State Department to avoid the use of the “g” word. Taking her orders from then Secretary of State, Warren Christopher, Christine Shelley, State Department Spokesperson got into the following exchange with Alan Eisner of Reuters during a press conference. As recorded by Samantha Power:

“Eisner: How would you describe the events taking place in Rwanda?

Shelley: Based on the evidence we have seen from observations on the ground, we have every reason to believe that acts of genocide have occurred in Rwanda.

Eisner: What is the difference between “acts of genocide” and “genocide?”

Shelley: Well, I think the – as you know, there's a legal definition of this...Clearly not all of the killings that have taken place in Rwanda are killings to which you might apply that label...But as to the distinctions between the words, we are trying to call what we have seen so far as best we can; and based, again, on the evidence, we have every reason to believe that acts of genocide have occurred.

Eisner: How many acts of genocide does it take to make a genocide?

Shelley: Alan, that's just not a question that I am in a position to answer.”

Harking back to Lemkin's underscoring the power of the word, genocide is nowadays almost routinely invoked to condemn an enemy who has perpetrated atrocities, even when their actions do not fit the legal definition of genocide as spelled out in the Convention. The term is often used as a propaganda tool. Through such use its appropriate employment has been watered down and the distinctive nature of the crime has become increasingly diffuse in the public mind.

Genocide has been incorporated, along with other mass atrocities, such as crimes against humanity, war crimes, and crimes of aggression, into the protocols guiding international courts set up to try the nations or individual perpetrators of these crimes.

We come now to the current moment. South Africa has brought a charge against Israel for the crime of genocide in its prosecution of its war against Hamas in the Gaza Strip. The loss of life suffered by the Gazans is extremely great. But does it constitute genocide?

From an empirical standpoint, Hamas could be accused of genocide no less than Israel. While Israel is without question the far more powerful combatant, Hamas's genocidal commitments are explicit in that the destruction of Israel and the killing of Jews is written into its charter. But because Hamas is a non-state actor, and even though after its takeover of Gaza it fulfilled governing functions, it cannot be a party to the convention or be tried for its horrendous slaughter of more than 1,200 Israelis in what was an orgy of sadistic mass murder.

The Israeli case is being heard before the International Court of Justice (ICJ). The Court was created by the United Nations in 1946 to rule on disputes between nations. Cases can be brought before the Court only by nations or the General Assembly of the United Nations and usually involve disputes based on treaties. Cases against individual perpetrators of genocide are heard by the International Criminal Court (ICC), which came into force, as noted, in 2002.

Is Israel committing genocide? I am not on the ground nor am I an international lawyer. It is nevertheless my view that Israel is tragically committing war crimes. The laws of war mandate that civilians need to be spared being the victims of killing or injury. The killing constitutive of war must have military purposes and the killing of civilians to achieve those purposes is forbidden. Yet, it is recognized that military operations may lead to civilian deaths. What is often felicitously but glibly referred to as “collateral damage.” These deaths, though painfully tragic, are legally permissible as long as, again, an operation is undertaken for primarily military objectives.

The question at issue is one of proportionality. If the number of civilians killed in military initiatives crosses a threshold and is disproportionately large, then a court may determine that war crimes have been committed. With more than 27,000 Gazans killed by Israeli forces in the past four months, approximately two-thirds children and women and consequently non-combats, I contend that Israel is committing war crimes. The norm of proportionality has been violated.

But what, again, of genocide? While the number of innocent civilians is very large (and I adhere to the notion that every human life is infinitely worthy) my conclusion is that the Israeli assault on Gaza does not constitute genocide.

My determination hinges on the notion of intent. While extremists in the Netanyahu government have made remarks indicating the desire to rid Gaza of Palestinians, I don't believe that these individual utterances reflect the intention of government policy. No doubt, the occupation of the West Bank since 1967 and the blockade of Gaza in 2007 have been oppressive, cruel, and humiliating. But had Israel intended to target the Palestinians for annihilation, they could have done it long before the current war. Moreover, during a genocide, there is a marked decrease in the population of the victimized parties. Since the occupation, the Palestinian population has steadily increased. Before the current conflict, cancer patients could travel from Gaza to Israel for life-saving treatment. This is not the mark of an Israeli regime committed to the destruction of the Palestinian people. Again, none of this exonerates Israel for the cruelty of the occupation nor criminal excesses in the current conflict. Yet however great the anguish, it is my view that Israel is not perpetrating the crime of genocide.

Needless to say, for the child crushed to death under his bombed apartment building that has been turned into rubble, this debate makes absolutely no difference. It is an obscene abstraction.

Yet, for those of us who yearn for peace and want to see a world that has gotten beyond the scourge of war; for those who strive to create an international order that will construct the institutions necessary to curb humankind's most destructive impulses, it is important that we get it right.