The Concept of Genocide and the Partial Destruction of the National Group

Ever since the 3rd U.N. General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide on December 9, 1948, international law has faced a paradox. The international community resolved to make the systematic annihilation of populations a universal jurisdiction crime with no statute of limitations. But by protecting some groups and excluding others such as political, gender and sexual identity groups from its protection, it created a legal instrument that has proved to be almost useless given that nearly all modern genocides are, to some degree, politically motivated. Indeed, despite the global proliferation of genocide in the second half of the twentieth century, the first conviction for genocide by an international court was not until 50 years later in 1998. Since then, the number of convictions has been disappointingly low.

The steady stream of protest over the years about the wording of the Convention has made little difference. Pioneers of Genocide Studies such as Leo Kuper, Israel Charny, Frank Chalk and Kurt Jonassohn all complained about it, as did Benjamin Whitaker. However, the 1985 Whitaker Report – one of two major United Nations documents on genocide – was never even discussed by the U.N. General Assembly and when the narrow 1948 definition of genocide was included in the Rome Statute of the International Criminal Court in 1998, further discussion seemed useless. Many judges and academics abandoned the notion of genocide in favor of “crimes against humanity.”

Nevertheless, this paper will argue that the concept of genocide is still relevant in the twenty-first century.  In particular, it will show that:

1)    The Genocide Convention does not exclude Lemkin’s essential notion that modern genocides are attempts to destroy the identity of national groups. Therefore the concept of genocide can be applied to a much wider range of cases than is generally supposed.

2)    The notion of “destruction of a group” is specific to the concept of genocide and is not contained in the definition of “crimes against humanity”.

3)    The broadening of crimes against humanity (to include “terrorism” among others) makes it all the more important to distinguish such crimes from genocide. Arguably, accusations of human rights violations are already being used to undermine the sovereignty and political independence of non-hegemonic states with the excuse of defending an ever increasingly list of loosely defined “human rights”.  In such cases, the genocides of the past can easily provide an excuse for armed intervention in quite different situations, to neutralize insurgent or opposition groups.

Partial destruction of a national group
The term genocide was coined by the Polish jurist Raphael Lemkin, who wrote that “By genocide we mean the destruction of a nation or … ethnic group”. Lemkin went on to argue that “Genocide has two phases: one, the destruction of the national identity of the oppressed group, the other, the imposition of the national identity of the oppressor.” [1]

The distinctive feature of genocide, according to Lemkin, is that it aims to destroy a group rather than the individuals that make up the group. The ultimate purpose of genocide is to destroy the group’s identity and impose the identity of the oppressor on the survivors. This idea gives us a useful insight into the workings of power systems in the modern era. In particular, the nation state has tended to destroy the identities of ethnic and religious minorities within its boundaries and impose a new identity on them: the national identity of the oppressor.

Although this meaning of genocide is present in the two earlier drafts (the Secretariat Draft and the Ad Hoc Committee Draft) of the Genocide Convention written in May 1947 and April 1948, it was carefully edited out of the final text, which was approved only after two years of intense disagreements. By excluding political groups, delegates were able to pretend that genocide was an irrational and therefore “non-political” form of racism or religious bigotry far removed from the rational logic of state oppression.

The illegitimacy of excluding political groups in this way has been discussed by various authors in different works.[2]  However, the Genocide Convention still offers a way of linking the crime of genocide with the systematic destruction of national identity through the concept of “partial destruction of a national group.”

The concept of “partial destruction of a national group” is contained in the 1948 Convention and all subsequent legal definitions of genocide, and summarizes the essence of genocidal practices as Lemkin understood them. The oppressed group might live under colonial rule, as was common in Lemkin’s time, or form part of a nation-state, as tended to be the case in the second half of the twentieth century, when the national security doctrine of the Cold War period brought a resurgence of military regimes around the globe and turned national armies into armies of occupation within their own borders, replacing the colonial armies of the past.

Many commentators have argued that the national group must necessarily be different from the perpetrator group. However, this idea is not supported by the Convention itself, which states only that genocide occurs when there is “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such” [3] without saying anything about the identity of the perpetrators.

Assumptions about the relationship between victims and perpetrators lie at the heart of different conceptions of genocide.  Those who argue that “partial destruction of the national group” does not apply when victims and perpetrators belong to the same group, tend to see genocide as resulting from a confrontation between two or more groups, fuelled by “ancestral hatred” or “irrational discrimination.” Supporters of this view tend to focus on genocides currently occurring in Africa, where rival groups are assumed to have reverted to tribal savagery and ancestral hatred in its most ethnocentric form. This explains the emphasis of the media and quite a few academics on conflicts in Nigeria, Rwanda, Sudan, and Zimbabwe. However, more careful analysis shows that these conflicts are far from being mere “tribal confrontations.” Moreover, they are not the only phenomena of mass destruction in recent decades.

Interestingly, the conflict in the former – Yugoslavia also tends to be seen as a tribal clash. Thus, a modern conflict is explained in terms of 14th century struggles between Christians and Muslims, which of course is exactly how today’s nationalists in the Balkans – whether they be Serbs, Croats or Bosnians – want to portray the conflict. Unfortunately, it has also become the common sense view not just of the media but of scholars who know little about the realities of ex – Yugoslavia in the twentieth century.

In contrast, those who argue that the “partial destruction of the national group” constitutes genocide even if the perpetrators are members of the same group, tend to see genocide mainly as a power strategy. This idea was pioneered by Spanish Judge Baltasar Garzon in his indictment of Scilingo and other Argentine military officials in 1997 and has been adopted by several courts in Argentina. In this view, the ultimate purpose of genocide is not the destruction of a group as such but the transformation of society as a whole. This was the aim the Nazis in Germany and Axis- occupied Europe as well as being that of the perpetrators in former Yugoslavia, Rwanda, Indonesia, Cambodia and Latin America, to mention just a few cases in which terror has been used as an instrument of social transformation.

To sum up, even though the Genocide Convention makes no claims about the underlying causes of genocide, the way in which the “national group” is interpreted has profound consequences for our understanding of genocidal processes.

Effects on social memory processes
As a paradigmatic case of genocide, the Holocaust provides a good example of how different interpretations can promote ownership of experience or, conversely, alienation. If we analyze the Holocaust only in terms of the Jewish and Roma communities annihilated in Germany, Poland or Lithuania, “ordinary” Germans, Poles and Lithuanians seem to have remained largely unaffected except for possible feelings of solidarity with the victims. Once stripped of their German, Polish or Lithuanian identities, Jews and Gypsies were could only be seen through the eyes of the perpetrators, as being outside of the German, Polish or Lithuanian national group.

On the other hand, if we see the Nazi genocide as a partial destruction of the German, Polish or Lithuanian national group, we can reinstate the victims as full citizens and confront the goals of Nazism, which proposed the need for a Reich “free of Jews.” The aim of Nazism was not only to exterminate certain groups (ethnic, national and political, among others), but to transform German and European society through the absence of such groups, a transformation that in the event proved to be quite successful.  In particular, one of the most enduring effects of the Nazi genocide of Jews and Gypsies was the disappearance of internationalism and cosmopolitanism as constituent parts of German and European identity.

The key feature, then, of this more recent interpretation of “partial destruction of the national group” is that it focuses our attention on the wider purpose of genocide and the way it targets the whole population of a particular territory. It invites societies to reflect on how destruction has shaped their own social practices, avoiding the alienation inherent in treating genocide as the suffering of others.

Understanding genocide as the partial destruction of one’s own group also widens the sphere of complicity in the planning and execution of murder. We are forced to ask who has benefited from the disappearance of certain groups and – more importantly – from the social transformation generated by the processes of annihilation and terror. The business and political sectors behind many genocides have often remained invisible and unpunished, since responsibility is usually attached only to the direct perpetrators, whether military or police, but not to their paymasters.

Genocide or crimes against humanity
The specific meaning of genocide as a policy directed at groups and not individuals, is almost entirely absent from the looser concept of crimes against humanity as formulated in international law. For example, the  Rome Statute states in Article 7:

1.              For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a)             Murder;

(b)             Extermination;

(c)              Enslavement;

(d)             Deportation or forcible transfer of population;

(e)             Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(f)               Torture;

(g)             Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

(h)             Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

(i)                Enforced disappearance of persons;

(j)                The crime of apartheid;

(k)              Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

The persecution of groups is only mentioned in (h), which curiously reproduces the wider concept of genocide as contained in the Secretariat Draft and the Ad Hoc Committee Draft of the Genocide Convention, and in (j). However, the key element of the definition is the “widespread or systematic attack directed against any civilian population” without there being necessarily any “intent to destroy, in whole or in part, a […] group, as such”.  The definition thus emphasizes attacks on individual members of the “civilian population” rather than on clearly differentiated groups.

The big difference between genocide and crimes against humanity is that the victims are not seen as part of a “national group” but as individuals whose individual rights have been violated. This is the most important legal difference between the concept of crimes against humanity (which refers to indiscriminate actions against members of a civilian population) and the concept of genocide (which refers to the deliberate targeting of specific population groups for complete or partial destruction).

In short, by using the term “crimes against humanity”, we define mass annihilation as an accumulation of individual human rights violations. We recognize the victims as citizens, but we exclude the surviving members of the group from being treated as co-victims.

New directions for criminal law in the 21st century
This debate about genocide and crimes against humanity is not merely an academic one, nor is it relevant only to past events. Its influence can already be seen in the workings of the International Criminal Court and the enactment of “anti-terrorism laws” around the world and its importance will become clearer as international criminal law evolves throughout the 21st century.

The International Criminal Court (ICC) was established in 2002, following the enactment of the Rome Statute. Its main mission was to investigate and prosecute cases of genocide, war crimes and crimes against humanity as defined by the new international criminal law. However, the way in which the Court has operated since it was set up – and even the way it has intervened in conflicts – raises serious concerns about its ability to prevent state violations of human rights, which is purpose for which international criminal law was created in the first place.

To begin with, the ICC can only act in cases where the perpetrators and / or territory involved belong to States that have accepted its jurisdiction.  So far, the ICC has intervened only in cases brought before it by member states or by the United Nations Security Council.  The Court’s freedom to act against violations committed by member states themselves seems to exist almost solely on paper. As a result, all the proceedings of the ICC have to date focused on Africa, with three of them directed against non-state organizations (in the Democratic Republic of Congo, Uganda and the Central African Republic).

The most worrying thing about this – apart from the seriousness of the crimes reported – is that it is not clear why non-state organizations should require action by the Court.  Such action would seem to violate a fundamental principle of international criminal law: the Court exists to try human rights violations committed by the state apparatus and not by forces opposing the state, which can be tried in domestic courts.

Moreover, the Court’s interventions contrast sharply with its failure to intervene in state violations of human rights in Afghanistan, Colombia, Iraq, Palestine, Sri Lanka and Tibet, to name but a few cases that have been reported. In some cases, the Court’s argument is that the defendants (U.S., Israel or China) or the countries where violations are occurring (China, Iraq, Afghanistan) have not ratified the Statute. In others, like Colombia, the situation is more serious. The Court accepts the argument that the state “is making sufficient efforts to address such violations” without asking why proceedings to investigate the systematic annihilation of people in Colombia have not even begun, or why political opponents and indigenous groups are still being murdered to this very day.[4] There has only been one case in which the Court has acted against a state –Sudan – and only then because it had the full backing of the United Nations Security Council.

The 21st century has also witnessed a widespread attempt to equate genocide and crimes against humanity (committed by the State) with crimes of terrorism (committed by individuals). This blurring of conceptual boundaries has become increasingly frequent since the terrorist attacks of 9/11, leading to the enactment of the Inter-American Convention against Terrorism in 2002 as well as the subsequent adoption of anti-terrorism laws in many countries. The speed with which some countries have passed these laws contrasts surprisingly with their slowness to pass anti-genocide legislation.

These anti-terrorism laws are becoming increasingly vague and open-ended, criminalizing political protest and differences of opinion. Thus, Argentina defines “terrorism” as “compelling a government or an international organization to do or to abstain from doing any act” as long as there is “a plan of action to propagate ethnic, religious or political hatred.”. [5] By invoking the proviso of “political hatred” judges are potentially able to typify a wide number of actions such as mass demonstrations, walkouts and strikes as “acts of terrorism.”

These developments take on new meaning in relation with U.S. reports analyzing the tools of international law. An element that appears repeatedly in these reports – the most famous of which is “Preventing Genocide: A Blueprint for U.S. Policymakers”, (2008) – is the need to limit territorial sovereignty as a way to prevent genocide.[6]

These reports advocate “prevention” regardless of international agreements, suggesting that the U.S. can intervene economically or militarily anywhere in the world without requiring the approval of any regional or international body. In other words, once the U.S. considers a crime to have been committed, it can ride roughshod over any State’s territorial sovereignty. And yet, paradoxically, if the same events took place in the U.S. or were committed by U.S. citizens, no international or regional intervention would be possible because the U.S. has not ratified any international conventions or even the ICC.

In conclusion
We have seen that the Genocide Convention allows for an interpretation of genocide based on Lemkin’s notion of partial destruction by the perpetrators of their own national group. This explanation makes the Convention applicable to a potentially large number of politically motivated annihilations, including nearly all modern genocides. This is true even when a group appears at first sight to have been targeted for religious or ethnic reasons. At the same time, Lemkin’s interpretation is much more enriching for social memory processes, restoring ownership of the past to the victims rather than letting it be appropriated by the perpetrators.

We have also seen that the concept of genocide is restricted to attempts to destroy a particular group, even when this also involves the mass annihilation of civilian populations, as in crimes against humanity. Although the current legal definition of genocide needs to be changed to include political and other groups, the fact that any group annihilation also constitutes a “partial destruction of a national group” may serve in the meantime as a technical solution to the problem of excluded groups, making the application of the Genocide Convention more effective and less arbitrary.

There is a growing tendency to include non-state actions within the category of “crimes against humanity”, thus confusing acts of terrorism and even political dissent with state-sponsored atrocities. This blurring of conceptual boundaries is making the notion of “crimes against humanity” so open ended that it could eventually be used to persecute any civilian group opposed to the status quo.

It is therefore important to emphasize the distinctiveness of the concept of genocide, which requires intent to destroy a group in whole or in part. We should not devalue international criminal law with a host of new concepts (“atrocity crime”, etc.) which lump things together that are qualitatively different (for example, state-sponsored crimes as compared to non-state crimes). Clear legislation is needed to protect individuals from arbitrary state persecution and to guarantee fundamental rights, which have taken centuries to evolve.

Contrary to the hegemonic trend in international law, which seeks to replace the term “genocide” in all cases with “crimes against humanity”, I feel it would be much more useful if the ICC called cases of genocide by their proper name. It should stop putting the actions of insurgent movements in the Congo, Uganda or Colombia on the same level as mass murder committed by the state. Instead, it should insist that small-scale non-state crimes be tried in national courts under national laws, respecting the fundamental rights of the perpetrators, however abhorrent these monsters and their crimes may be.

Failure to confront these issues will not only affect the work of individual judges and lawyers. It may eventually destroy the criminal justice system that we have known throughout most of the twentieth century, with the return of unfettered discretion and arbitrary exercise of power marking the end of citizenship rights. Unfortunately, this will occur under the guise of “defending” human rights and “preventing” violations.