Grappling with “Genocide”

Grappling with “Genocide”

By: Sarah Hunter 

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Photo: Kwibuka Rwanda

On March 14, the United States House of Representatives unanimously passed a non-binding measure condemning the Islamic State (ISIL or Daesh) of genocide. This measure comes many months after organizations, such as Genocide Watch, called for the genocide designation in response to ISIL’s actions against Yazidis, Chaldeans, Assyrians, Melkite Greeks, Coptic Christians, Shia Muslims, Sunni Kurds, and other religious groups. Three days later, Secretary of State John Kerry reaffirmed this declaration by announcing, “Daesh is genocidal by self-proclamation, by ideology, and by actions — in what it says, what it believes, and what it does.”

But what does it do to call a genocide, “genocide?”

Before getting into its ramifications, a definition is in order. Article II of the 1948 United Nations Convention on the Prevention and Punishment for the Crime of Genocide defines genocide as:

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

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

This definition was born after more than a decade of fevered lobbying by Polish lawyer Raphael Lemkin who, after seeing the atrocities committed by the Nazis, coined the term to vindicate “the presence of a crime without a name.” Unfortunately for Lemkin, the definition that emerged is a watered-down version of what he had envisioned because it leaves out social and political groups. Indeed, the USSR successfully fought back on including these groups, likely to avoid the classification of Stalin’s purges as acts of genocide. In spite of its limitations, however, “genocide” carries political—if not strictly legal—power.

Uncertainty exists as to whether designating acts as “genocide” actually forces the international community to take action. For example, in 1994, President Clinton refused to designate the Rwandan Genocide as such until after it was over, because of concern that such designation could compel international response. However, this understanding changed in 2004, when the second Bush Administration classified actions in Darfur as genocide without subsequently taking much concerted action to address to the crisis.

So which administration was correct?

Despite a common belief that calling acts “genocide” creates an affirmative legal duty to intervene, the Genocide Convention requires no such action. The Convention only requires that parties “provide effective penalties for persons guilty of genocide” (Article V) and prevents the classification of genocide as a “political crime for the purpose of extradition” (Article VII). Article VIII of the Convention provides that contracting parties may call upon the United Nations to prevent or suppress acts of genocide, but this is entirely optional. Indeed, the Clinton Administration’s confusion regarding the Rwandan Genocide seems to have stemmed from the ambiguous language in Article I, which states that contracting parties “confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which [the contracting parties] undertake to prevent and to punish.” However, international legal scholars generally agree that, while the convention may empower countries to act, it does not dictate that intervention must occur.

It bears mentioning that the United Nations developed the Responsibility to Protect (R2P) following the Rwandan genocide to address this weak international enforcement mechanism. While this political commitment provides that the international community has a responsibility to undertake measures when a sovereign fails to protect their populations from atrocities like genocide, the actual execution of this responsibility has been mixed. Although a formal designation of genocide may trigger greater action under the R2P, previous attempts to utilize this commitment in Syria have been blocked in the Security Council by Russia and China.

Despite the lack of a powerful requirement to act the word “genocide” provokes powerful feelings that can lead to calls to action. Furthermore, it can help bring attention to international issues, spur civil societies to insist on action, give affected groups a presumptive basis for refugee status, and lead to creation of tribunals to address the aftermath. Additionally, domestic law provisions in many countries often give these states the power to prosecute individuals who have committed genocide and entered their borders.

Symbolically, using the word also acknowledges the suffering endured by targeted populations. This is perhaps why so many people remain angry that President Obama, despite campaign promises, has refused to refer to the Armenian Genocide as such – even though it occurred a century ago. This failure is likely due to potential political fallout with Turkey, who continues to deny that the Ottoman Empire’s systematic murder of 1.5 million Armenians constituted genocide. This willingness to prioritize international relations – to the detriment of historical accuracy and in spite of the suffering of the Armenian people – is disappointing, but not surprising. As United States Ambassador to the United Nations, and prominent genocide scholar, Samantha Power has stated, “No U.S. president has ever made genocide prevention a priority, and no U.S. president has ever suffered politically for his indifference to its occurrence. It is thus no coincidence that genocide rages on.”

Despite its weak legal imperative and its noncomprehensive definition, the term remains an important moral and normative condemnation. With this backdrop then, it is unclear what the House’s categorization of “genocide” by the Islamic State will do – other than put immediate pressure on President Obama to do the same. But still, there is power in the word.

Sarah is an JD candidate at Berkeley Law. She is a student contributor for Travaux.