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How We’ve Failed the Promise of Making “Genocide” a Crime
The lawyer Raphael Lemkin hoped to use international law to curb abuses of power. But his efforts were curtailed from the start.
Israel declared its independence in 1948. That same year, the United Nations adopted the convention that defined genocide as a crime. The tension between these two “never agains” was there from the start.
The word “genocide” was coined in 1941 by Raphael Lemkin, a Jewish lawyer from a Polish family, who combined the Greek word for a people (genos) and the Latin translation for killing (cide). At its most basic, genocide meant systematically destroying another group. Lemkin laid it out as a two-phase, often colonial process in his 1944 book, Axis Rule in Occupied Europe: First, the oppressor erases the “national pattern” of the victim. Then, it imposes its own. Genocide stretched from antiquity (Carthage) to modern times (Ireland).
“The term does not necessarily signify mass killings although it may mean that,” Lemkin explained in a 1945 article. “More often it refers to a coordinated plan aimed at destruction of the essential foundations”—cultural institutions, physical structures, the economy—“of the life of national groups.” The “machine gun” was merely a “last resort.”
Lemkin was a lawyer, not a sociologist. By birthing the term “genocide,” he was not trying to taxonomize the horrors of war. Instead, Lemkin—who lost 49 family members in the Holocaust—hoped that he could identify a crime to stop it. Nazi terror could not simply be Germany’s “internal problem.” With genocide, Lemkin hoped to give legal and moral weight to international intervention. He hoped to bring into being an offense that could be policed and, in turn, stopped in a new and supposedly civilized world.
Today, as Israel stands accused by South Africa of genocide before the International Court of Justice for the methods used in its war on Gaza, it is worth recalling Lemkin’s arguments. The question of Israel’s actions has been a narrow one: Has the killing met the criteria for genocide under current international law? But Lemkin’s broader conception of the term—though it has been chipped away at by courts and has faded from public memory—has been less discussed.
The sad reality is that Israel’s actions likely met Lemkin’s original definition long before the war on Gaza. Starting in 1947, roughly 700,000 Palestinians fled or were expelled by Israel and barred from returning. After the 1967 war, Israel began occupying the remainder of what was once Palestine. It has since settled hundreds of thousands of people on that land, while subjecting Palestinians to what international human rights groups increasingly consider to be a system of apartheid. The goal of its settlement policy has been clear: to replace one cultural fabric with another.
With genocide, Lemkin hoped to give legal and moral weight to international intervention.
Israel is not the only nation whose actions fit Lemkin’s conception of genocide. The same could be said of the formation of the United States and the mass slaughter of Native Americans. (In fact, Lemkin listed it as a textbook case.) What is different now is a more obvious hypocrisy after decades of international governance designed to create a supposedly new, rules-based order.
“Genocide” represented Lemkin’s desire to move toward this internationally policed peace. Douglas Irvin-Erickson, a George Mason professor who wrote an intellectual biography of Lemkin, said he aspired for a form of world citizenship that reflected his “stunningly broad indictment of oppressive state powers.”
It’s no surprise then that when making it a crime after World War II, nations were careful to protect themselves. The Soviet Union removed political groups from those that could be victims of genocide, to secure a free hand for its purges of dissidents. The United States kept Lemkin’s ideas about cultural genocide out, lest it be in violation for Jim Crow laws. The convention was a “lynching bill in disguise” in the words of a Louisiana segregationist. (Congress only ratified the genocide treaty in 1988 after Ronald Reagan caused a backlash by laying a wreath at a German military cemetery that included the graves of 49 members of the SS.)
“Outlawing genocide becomes this marker of a civilized society,” Irvin-Erickson explained. “But at the same time, [Lemkin] is watching the delegates who are negotiating the Genocide Convention, and they’re literally writing their own genocides out of the law.” His greatest allies came from what is now called the Global South—the nations that had been, or reasonably feared becoming, victims.
Since the Genocide Convention’s adoption, international courts have arrived at a narrow reading of the already narrow interpretation of Lemkin’s concept, says Leila Sadat, the James Carr Professor of International Criminal Law at the Washington University in St. Louis School of Law. The emphasis of the law is determining whether a country or individual has killed massive numbers of a group of people, and whether they did so with a provable intent to destroy that group. This poses a problem for prosecutors since most perpetrators of genocide are not as transparent as Adolf Hitler.
This winnowing of what counts as genocide would have deeply frustrated Lemkin. As Irvin-Erickson has written, genocide was “not a spontaneous occurrence” for Lemkin but a “process that begins long before and continues long after the physical killing of the victims.” Melanie O’Brien, a visiting professor at the University of Minnesota’s Center for Holocaust and Genocide Studies, emphasized that the dehumanization that leads to one group killing another en masse is not a prelude to genocide but a part of it.
But because its definition has been narrowed, Rwanda has been the most clear-cut case of genocide since the Holocaust according to international judges. For the horrors that occurred in Bosnia, a seemingly textbook genocide of Bosnian Muslims at the hands of Slobodan Milošević and fellow Serbs, only the 1995 slaughter of 8,000 men and boys at Srebrenica cleared the bar as an act of genocide in international trials of Serbian war criminals. (Milošević died in prison before any conviction could be secured.)
In the eyes of Sadat, one of the world’s leading experts on international criminal law, the Genocide Convention has become more of “a monument to the Holocaust” than a tool that can be effectively deployed in court. Still, she says South Africa may prevail in clearing the “very high bar” needed to prove a charge of genocide in court due to the scale of death in Gaza, the extreme rhetoric of top Israeli officials, and Israel’s decision to restrict food and other humanitarian assistance. “A question I have is: Is this a Srebrenica moment?” she says. “And I fear that we may well be looking at exactly that.”
In May, Aryeh Neier, a co-founder of Human Rights Watch, concluded that Israel’s actions in Gaza have crossed the line. Neier wrote in the New York Review of Books that he initially refrained from using the term but that the obstruction of aid into Gaza had convinced him: “Israel is engaged in genocide.”
The situation is so grave that, even under the current constrained definition, the judges of the International Court of Justice may eventually agree. In the face of Hamas’ brutal attack and its officials’ repeated calls to annihilate Israel, the Netanyahu government has turned to physical destruction—a technique that Lemkin considered to be the “last and most effective phase of genocide”—at a scale that is unprecedented in its history. More than 36,000 Palestinians have been killed in Gaza, most of them civilians. The deaths of thousands more Palestinians trapped under the rubble are believed to still be uncounted. A famine has begun.
Karim Khan, the chief prosecutor of the International Criminal Court, is now seeking warrants for the arrest of Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant, and Hamas’ leaders for war crimes and crimes against humanity. But Israel remains undeterred. In late May, the International Court of Justice ordered Israel to halt its assault on Rafah. Days later, the Israeli military used American bombs in a strike on Rafah that killed dozens of civilians. Lemkin saw something like this ineffectiveness of international governance coming.
“Better laws are made by people with greater hearts,” Lemkin wrote about how his original definition of genocide had been undermined in its codification. “They want nonenforceable laws with many loopholes in them, so that they can manage life like currency in a bank.”
(c) 2024, Mother Jones
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