1
Genocide: The Phenomenon and the Definition

I remember: it happened yesterday, or eternities ago. A young Jewish boy discovered the kingdom of night. I remember his bewilderment, I remember his anguish. It all happened so fast. The ghetto. The deportation. The sealed cattle car. The fiery altar upon which the history of our people and the future of mankind were meant to be sacrificed. . . .

And now the boy is turning to me: "Tell me," he asks. "What have you done with my future, what have you done with your life?"

And I tell him that I have tried. That I have tried to keep memory alive, that I have tried to fight those who would forget. Because if we forget, we are guilty, we are accomplices.

Elie Wiesel, Nobel Peace Prize Acceptance Speech, 1986

Genocide as a Facet of Human History

As the human phenomenon of genocide is a part — albeit a repressed part — of human existence, it is something we need to learn about and keep in our minds. Exploring the subject of genocide, however, raises fundamental questions about the human condition, in which people are capable of acting with exceeding cruelty, but also of achieving great heights of humanity, spiritualism, and culture. The deeper we delve into the subject of genocide, the more clearly these two aspects of the human condition emerge in their most basic form.

Although instances of mass extermination (which, as we will see below, is not always the same as genocide) have taken place throughout human history, the twentieth century witnessed many more genocides and genocide-like acts than any other century in the past. As a result, some have noted the dehumanization of life during the twentieth century — as a 'culture of mass extermination' or a 'culture of death.' These genocidal moments must be considered in conjunction with our ability to use weapons of mass destruction, which also raises challenging questions about the future of human society.

In The Third Chimpanzee: The Evolution and Future of the Human Animal, Jared Diamond, a professor of physiology at the UCLA School of Medicine, explores the essence of genocide as a human phenomenon from a fascinating perspective.1 The book employs anthropological and sociobiological arguments to challenge some of the standard, agreed-upon foundation stones of the study of evolution. Sociobiology utilizes biological explanations to understand human behavior, emphasizing that, like physical traits, some behavior occurs because it enables individuals to have more offspring, which of course inherit the same behavior patterns. In contrast, anthropology bases its understanding of human behavior on culture, which is anchored in socio-economic, psychological, historical, and other factors.

There are two types of chimpanzees, Diamond informs us: the common chimpanzee (homo troglodytes) and pygmy chimpanzees (homo paniscus). "The third chimpanzee," he posits, is the human species (homo sapiens), which shares over 98% of its genes with the two species of chimpanzees known to us. How does this relate to genocide? According to Diamond, it is precisely the unique traits responsible for our success as a species that make us capable of doing what no other creature can do — bringing about our own extermination. Although chimpanzees, like humans, exhibit collective xenophobia (the fear and hatred of strangers and foreigners), humans have augmented this trait to an astonishing degree due to the link between modern technologies created by human cultures and the genes with which we, like chimpanzees, were endowed by our common ancestors. In human society, our instinct to kill is restrained by culture-based values, law, and morality. Nonetheless, Diamond emphasizes, it is our very power that poses a threat to our own existence.

Diamond traces the phenomenon of genocide in human society and analyzes the unique nature of its occurrence during the twentieth century. Why have so many cases attracted such little attention?, he asks. In his attempt to explain why people kill and simultaneously deny doing so, Diamond directs the reader's attention to the human tendency to divide the world into 'us' and 'them'. This mechanism enables a person who has killed to feel as if he or she has killed one of 'them' rather than one of 'us'.2

Diamond offers a clear answer to the question of how perpetrators of modern day genocide succeed in reconciling the contradiction between their actions and universal codes of ethics: "They resort to one of three types of rationalizations, all of which are variations of a simple psychological theme: 'Blame the victim!'"3 These three types of rationalizations are self defense; belonging to the 'right' religion or race, or holding the 'right' political outlook; and comparing the victims to animals.

Diamond also tries to explain the curious passivity of third parties, claiming that most people simply either do not care about injustices inflicted upon others or regard them as none of their business. This is undoubtedly part of the explanation, but not all of it. The other part, he proposes, is "psychological numbing," or the idea that when people are confronted with extreme suffering (others' or their own) they simply go numb. This dynamic finds an extreme manifestation in surviving victims of different kinds who suffer from feelings of extreme guilt because they survived. Another extreme manifestation is reflected in the failure of third parties to react. "Just as intense physical pain numbs us," Diamond explains, "so does intense psychological pain: there is no other way to survive and stay sane. . . . Hundreds of thousands of Americans who fought in Vietnam suffered this numbing."4

This reaction is also characteristic of the perpetrators of genocide and their offspring, who are clearly not responsible for the actions of their ancestors. Many possess a collective sense of guilt, and some even resort to rewriting history in order to relieve the pain stemming from their discomfort regarding the past.

The Challenge of Defining Genocide

It is common today to overlook the fundamental difference between everyday language and scientific language. Everyday language does not require the use of precise terms and definitions because, in addition to information, it is also used to convey emotion, opinions, and attitudes. Scientific language distinguishes between information, scientific principles, and findings on one hand, and evaluative content on the other, and this requires precise definitions and terms. Distinguishing between everyday language and scientific discourse is also sometimes difficult due to the expansion of education, the power of the mass media, and the popularization of science, which together enable scientific discourse to penetrate everyday language. When this happens, scientific terms and principles are imbued with political significance, and their everyday use obscures their original meanings and makes communication less accurate. The term "genocide" provides an illustrative example of this dynamic.

The word genocide was derived from two words: genos, ancient Greek for race, nation, or tribe; and caedes or cide, Latin for massacre or murder. The term was coined during World War II by Polish Jewish lawyer Raphael Lemkin (1901-1959). The meaning of the term genocide endowed it with highly charged political significance, and the term quickly gained widespread use. As a result, it came to serve not only to denote its original meaning, but also to describe various kinds of negative, destructive processes involving no physical killing, such as the annihilation of national consciousness, languages, cultures, individual freedoms, and economic infrastructures; the supervision of birthrates; and, in some cases, certain types of medical studies. Reference has even been made to "psychological genocide." Some have intentionally falsified the meaning of the term genocide, while others, politicians among them, are accused of using the term casually and disrespectfully, as we will see below.

The term "Holocaust" has undergone a strikingly similar process. Although the term refers specifically to the acts of extermination undertaken by the Nazi regime against the Jews and a number of other groups before and during World War II (as we will see, the question of whether the term also covers the Nazi regime's acts of extermination against other groups of victims remains disputed and controversial today), the word Holocaust has also come to be widely used in other broader contexts, depreciating the significance the historical events to which it refers and obfuscating their meaning. This linguistic process indicates, among other things, that the terms "genocide" and "holocaust" have a great deal of emotional significance.

Although genocidal events are clearly laden with emotional meaning and arouse a multiplicity of attitudes and opinions, scientific use of the term requires us to address these emotions, attitudes, and opinions separately. Many troubling events — such as wars, plagues, starvation, massacres, and natural disasters — have taken place in the course of human history, and classifying them all under one term prevents us not only from understanding and foreseeing them, but from preventing them as well.

Despite the extreme importance of studying the subject of genocide, the cruelty and brutality of the human condition throughout history is a subject only rarely addressed by high school curricula. Historical scholars and text book authors have paid insufficient attention to the horrific massacres of the past, and have instead highlighted the more positive events in human history that mark the victory of justice. For example, high school and university text books typically portray Athens as a prosperous city state, but make no mention of what is perhaps the best known case of genocide in ancient history: the Athenian army's 416 B.C. massacre of the men of Milos, an island in the Aegean Sea.5 Similarly, while it is common knowledge that the Romans defeated Carthage6 and Corinth,7 the fate of the inhabitants of both cities remains virtually unknown. Overall, text book authors tend not to elaborate on the fate of the innocent residents of the innumerable cities and countries that were conquered in the course of human history, and only rarely do they discuss what the city's destruction meant for its inhabitants. In this way, the cruel and unnatural deaths of millions of people eluded us and have not penetrated our consciousness. The situation will not change until researchers, historiographers, and educators make a conscious effort to shed light on all aspects of these occurrences.

Through its neglect of such issues, at least until recently, most of the scientific community was complicit in denying their existence and preventing their study — at times intentionally and at others not. Many forces come together to perpetuate this situation, including the fact that it was typically the victors who documented their own actions, while the fate of the vanquished was determined to be a natural part of their defeat. The concept of human rights is relatively new in Western society. Indeed, even today, many societies continue to emphasize citizens' obligations to the state, but not their rights.

The tendency to deny past acts of murder and destruction has also played an important historical role in generating the philosophical tradition that views man as inherently good,8 and has contributed to the rise of nationalism, including its extreme manifestations. For most people, the concept of nationalism — which in itself may encourage disregard for the fate of others and the massacre of members of other races, religions, and nationalities — sparked neither moral questions nor ample consideration. According to scholar of nationalism Ernest Gellner:

It may be that ... the tendency to make exceptions on one's own behalf or one's own case is the central human weakness from which all others flow; and that it infects national sentiment as it does all else, engendering what the Italians under Mussolini called the sacro egoismo of nationalism. It may also be that the political effectiveness of national sentiment would be much impaired if nationalists had as fine a sensibility to the wrongs committed by their nation as they have to those committed against it.9

We must therefore take heed of the relationship between the intensification of nationalist identities and their sometimes extreme manifestations since the late eighteenth century on one hand, and the instances of genocide carried out during the twentieth century on the other.

At least on the level of decision making, people tend not to resolve to commit genocide based simply on a sadistic urge or the desire to do evil for its own sake. The horrifying truth is that perpetrators of genocide are usually convinced that they are simply doing what is unavoidable for the common good. Can we understand what Gellner refers to as sacro egoismo, based on its usage in the context of Italian fascism, as nothing more than an individual's extreme sense of commitment to the common good of their group, which results in excessive indifference to the suffering of others?

The Holocaust was undoubtedly the most horrifying occurrence of the twentieth century, shocking human society to such a degree that it brought to an end (or at least weakened) the collective denial of its own brutality. The dissonance between the enlightenment ideal of man as inherently good and the disturbing realities of human society now became too great to be ignored. If for years it was victorious rulers who wrote and rewrote history, the Holocaust resulted in a situation in which we began to hear the voices of victims, and particularly of Jewish victims. Only after the Jewish voices were heard and sympathetically received throughout the world did other victims of the Nazi regime (such as Romanis and homosexuals) begin to speak out. They were joined by the victims of other genocides, such as the Armenians and the Ukrainians, who also now felt the need, the urgency, and the right to be heard.

Raphael Lemkin: Originator of the Term Genocide

Raphael Lemkin (1901-1959), a Polish Jewish lawyer who lost his family in the Holocaust, is considered to be the founding father of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide. He studied law at Lvov University and after graduating was appointed to the position of district prosecutor. During the same period, he wrote a draft of an international law for the prevention of the intentional extermination of ethnic, national, and religious groups, a subject that had interested him since he was a boy. During an international legal conference on criminal law held in Madrid in 1933, Lemkin spoke about the slaughter of the Armenians and Hitler's rise to power. He proposed incorporating two new crimes into international criminal law: "acts of barbarity" and "acts of vandalism." "Acts of barbarity" were intentional acts of repression and harm carried out against an individual by virtue of his or her membership in a national, religious, or racial group. "Acts of vandalism" referred to systematic destruction of works of art and cultural heritage.10 Lemkin subsequently combined these two crimes into the single generic concept of genocide.

Raphael Lemkin

Lemkin's effort to persuade conference participants to adopt an international prohibition of mass killings was in vain. He did not use the term genocide during the conference but rather proposed a multilateral covenant that would classify the extermination of human groups as an international crime, like slavery, piracy, and other crimes that were recognized as detrimental to the "Law of Nations." The conference was held during the period of international tension that followed Hitler's rise to power and Germany's withdrawal from the League of Nations, just as the first Jewish refugees began to leave the country. Nonetheless, the report Lemkin prepared in his effort to convince the conference participants to support an international prohibition of mass killings made no direct reference to Nazi Germany.

With the outbreak of World War II, Lemkin joined the Polish underground, fled Poland to Lithuania, and was subsequently granted political asylum in Sweden. In 1941, after a short stay in Stockholm, he was granted entry into the United States, where he taught law at Duke University and Yale University. During the same period, he also served as an advisor to the US War Department and the Board of Economic Warfare, and later as an advisor to the chief counsel of the Nuremberg trials.

At the height of World War II, Lemkin, who lost almost his entire family in the Holocaust, formulated a detailed definition and analysis of the term genocide, which was incorporated into international law as a generic classification for the phenomenon. It was Lemkin who urged the United Nations to draft the Convention on the Prevention and Punishment of the Crime of Genocide, which was unanimously adopted by the UN General Assembly on December 9, 1948 (despite the reservations of a number of countries) and came into force on January 12, 1951.

Lemkin was a candidate for the Nobel Peace Prize twice during the 1950s, but his contributions were subsequently forgotten. Recent decades have witnessed a renewed interest in his work and his writings, but he still remains relatively unknown.

In his book Axis Rule in Occupied Europe, which he wrote in 1943 and published in 1944, Lemkin makes his first use of the term "genocide." "New concepts require new words," wrote Lemkin, in justification of his proposal to define the term "genocide" as the destruction of a national or ethnic group. In general, the term does not refer to the immediate destruction of a national group, except in instances of mass murder of all its members. Lemkin envisioned the term as referring to a coordinated plan involving a number of actions intended to undermine the essential foundations of a nation's existence, implemented with the overall goal of its extermination. Such plans strive for the disintegration of the social and political fabric of a national group and eradication of its cultural, linguistic, religious, and economic foundations. They are also meant to undermine the freedom, health, dignity, personal security, and life of individual members of the nation. Genocide is committed against a nation as an entity; the individual actions it involves are perpetrated against individuals not because of their own personal traits, but because of their belonging to a particular collective entity.11 For example, Jews are targeted because they are Jews and Romanis because they are Romanis. From this perspective, individuals are unable to remove themselves from the group with which they are associated.

Lemkin was also a pioneer in the classification of different types of genocide in accordance with the intentions of their perpetrators, defining three forms which emerged in a chronological, evolutionary manner. The first form was characteristic of ancient and medieval times and involved the complete, or almost complete, extermination of a defeated population. The second form first appeared at the beginning of the modern era, and is characterized by an attempt to eradicate a culture without doing physical harm to the people who espouse it. The third form, which was perpetrated by the Nazis, incorporated the first two forms, but also designated particular groups for immediate physical extermination, while other groups were designated for cultural eradication alone.12 According to Lemkin, all forms of genocide had two stages:

1. Destruction of the oppressed group's national pattern.

2. In the event that the oppressed population is permitted to remain in the territory in question, imposition of the dominant group's national pattern on the oppressed group; in the event that the oppressed population is physically exterminated or expelled, imposition of the dominant group's national pattern on the territory alone.

In 1944, Lemkin wrote: "In the present war, however, genocide is widely practiced by the German occupant.... Some groups — such as the Jews — are to be destroyed completely." It is therefore clear that Lemkin's use of the term "national pattern" was not intended to limit the definition of genocide to "national groups" alone, and he regarded it as inclusive of racial, religious, ethnic, and political groups as well.

Lemkin also recorded techniques of genocide as manifested in a wide variety of areas, including politics; society; culture; religion; economics; biology (for example, limiting the natural reproduction of some groups while simultaneously encouraging the reproduction of other groups); and physical existence. In cases of the physical extermination of a population, genocide is typically carried out in one of three ways: 1) a racially-based reduction of the food supply and intentional starvation; 2) exposure of the population to health hazards; and 3) mass murder. According to Lemkin, the crime of genocide does not always entail the immediate and total extermination of an ethnic group. Sometimes it takes the form of a series of intentional actions aimed at destroying the fundamental components of group life, such as the forced annihilation of national consciousness, language, and culture (some classify such actions, which we will address below, as "cultural genocide" or "ethnocide"); severe limitations on personal freedom; and the destruction of economic infrastructure.13

Genocide according to UN Resolutions

In December 1946, the United Nations General Assembly resolved that:

Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations.

Many instances of such crimes of genocide have occurred when racial, religious, political, and other groups have been destroyed, entirely or in part.

The punishment of the crime of genocide is a matter of international concern.

The General Assembly, therefore,

Affirms that genocide is a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices — whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other grounds — are punishable.14

The resolution was partially the result of Lemkin's efforts to spur the UN General Assembly to provide legitimacy for the fundamental principles underlying the work of the international military tribunal at Nuremberg,15 which was also trying Nazi leaders on charges of crimes against humanity at the time. As a result of Lemkin's work, and for the first time in history, the UN related to genocide not only as an internal matter of the country in which it took place but as an act with relevance to the international community, and as a preventable phenomenon with perpetrators who could be punished.

In 1947, after the passage of the resolution, the UN Secretary General formulated a draft and distributed it to the member states of the United Nations. A seven-member ad-hoc committee was subsequently appointed to submit a modified draft to the UN Economic and Social Council. After being discussed by the Legal Committee, the convention was unanimously adopted by the UN General Assembly in Paris on December 9, 1948.

While the resolution of 1946 actually limited the definition of genocide to physical annihilation alone, it expanded Lemkin's list of possible victims to include "political and other groups." In light of the opposition of the Soviet bloc due to the ostensive absence of clear traits defining political groups, as well as an agreement that crystallized between the superpowers at the time, political groups were removed from the definition in the 1948 resolution. The definition adopted in 1948 also does not classify cultural extermination (defined as "ethnocide") as genocide, although this offense was actually included in an earlier version.

The UN Convention on the Prevention and Punishment of the Crime of Genocide defines genocide as the physical extermination of the members of a group, as opposed to the destruction of a group's social, moral, and spiritual fabric. Is it possible to exterminate a group from a strictly cultural perspective without ultimately resorting to the physical extermination of its members?

Text of the Convention on the Prevention and Punishment of the Crime of Genocide16

The Contracting Parties,
Having considered the declaration made by the General Assembly of the United Nations in its resolution 96 (I) dated 11 December 1946 that genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world;
Recognizing that at all periods of history genocide has inflicted great losses on humanity, and
Being convinced that, in order to liberate mankind from such an odious scourge, international co-operation is required;
Hereby agree as hereinafter provided.

ARTICLE I
The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to 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. 

ARTICLE III
The following acts shall be punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide. 

ARTICLE IV
Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.

ARTICLE V
The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III. 

ARTICLE VI
Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.

ARTICLE VII
Genocide and the other acts enumerated in article III shall not be considered as political crimes for the purpose of extradition.
The Contracting Parties pledge themselves in such cases to grant extradition in accordance with their laws and treaties in force. 

ARTICLE VIII
Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III. 

ARTICLE IX
Disputes between the Contracting Parties relating to the interpretation, application or fulfillment of the present Convention, including those relating to the responsibility of a State for genocide or any of the other acts enumerated in article III, shall be submitted to the In ternational Court of Justice at the request of any of the parties to the dispute. 

ARTICLE X
The present Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall bear the date of 9 December 1948. 

ARTICLE XI
The present Convention shall be open until 31 December 1949 for signature on behalf of any Member of the United Nations and of any nonmember State to which an invitation to sign has been addressed by the General Assembly.
The present Convention shall be ratified, and the instruments of ratification shall be deposited with the Secretary-General of the United Nations.
After 1 January 1950, the present Convention may be acceded to on behalf of any Member of the United Nations and of any non-member State which has received an invitation as aforesaid. Instruments of accession shall be deposited with the Secretary-General of the United Nations. 

ARTICLE XII
Any Contracting Party may at any time, by notification addressed to the Secretary-General of the United Nations, extend the application of the present Convention to all or any of the territories for the conduct of whose foreign relations that Contracting Party is responsible. 

ARTICLE XIII
On the day when the first twenty instruments of ratification or accession have been deposited, the Secretary-General shall draw up a proces-verbal and transmit a copy of it to each Member of the United Nations and to each of the non-member States contemplated in article XI.
The present Convention shall come into force on the ninetieth day following the date of deposit of the twentieth instrument of ratification or accession.
Any ratification or accession effected, subsequent to the latter date shall become effective on the ninetieth day following the deposit of the instrument of ratification or accession. 

ARTICLE XIV
The present Convention shall remain in effect for a period of ten years as from the date of its coming into force.
It shall thereafter remain in force for successive periods of five years for such Contracting Parties as have not denounced it at least six months before the expiration of the current period.
Denunciation shall be effected by a written notification addressed to the Secretary-General of the United Nations. 

ARTICLE XV
If, as a result of denunciations, the number of Parties to the present Convention should become less than sixteen, the Convention shall cease to be in force as from the date on which the last of these denunciations shall become effective. 

ARTICLE XVI
A request for the revision of the present Convention may be made at any time by any Contracting Party by means of a notification in writing addressed to the Secretary-General.
The General Assembly shall decide upon the steps, if any, to be taken in respect of such request. 

ARTICLE XVII
The Secretary-General of the United Nations shall notify all Members of the United Nations and the non-member States contemplated in article XI of the following:
(a) Signatures, ratifications and accessions received in accordance with article XI;
(b) Notifications received in accordance with article XII;
(c) The date upon which the present Convention comes into force in accordance with article XIII;
(d ) Denunciations received in accordance with article XIV;
(e) The abrogation of the Convention in accordance with article XV;
(f ) Notifications received in accordance with article XVI. 

ARTICLE XVIII
The original of the present Convention shall be deposited in the archives of the United Nations.
A certified copy of the Convention shall be transmitted to each Member of the United Nations and to each of the non-member States contemplated in article XI. 

ARTICLE XIX
The present Convention shall be registered by the Secretary-General of the United Nations on the date of its coming into force.

The United Nations, December 9, 1948

The UN Convention excludes political groups from the list of groups whose extermination constitutes genocide. The official explanation for this omission (as opposed to the true political motivations of various individual UN member countries, which often play a key role in such decisions) was that the concept 'political group' was not sufficiently defined and therefore problematic. In the course of their systematic annihilation, do groups become more clearly defined by those carrying out the murders? Can there be any clearer distinction between groups than the distinction between life and death?

The term genocide is used widely today in laws, international conventions, judicial rulings, academic literature, and the media. Most typically, it refers to the murder of people — without any charges of individual wrongdoing — by virtue of their belonging to a particular national, racial, religious, or ethnic group in order to cause harm to the group as a whole and to bring about its extermination.

It is important to bear in mind the optimistic international atmosphere (whether genuine or fabricated) that characterized the period during which the Convention was formulated. On December 10, 1948, the day after the United Nations adopted the Convention on the Prevention and Punishment of the Crime of Genocide, the General Assembly adopted the Universal Declaration of Human Rights. Much of the literature on genocide also relates to this Declaration, in various ways and for various reasons. The Universal Declaration of Human Rights was profoundly impacted by World War II and the Holocaust, particularly in its opening sentences. Here, the document declares that the "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world," and that "disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind17. The two resolutions reflect both the hope of the nations of the world that such actions would not repeat themselves, as well as the need to ensure the well being, freedom, and rights of individuals, in addition, of course, to the right to life. They also reflect the need for action to achieve these goals in the international arena. At the same time, however, we must remember that the Universal Declaration of Human Rights has no binding legal authority. Its force is strictly moral, and here lies its weakness.

The Armenian Genocide Museum in Yerevan, Armenia

It is also important to bear in mind that the Convention on the Prevention and Punishment of the Crime of Genocide refers only to national, ethnic, racial, and religious groups, while the Universal Declaration on Human Rights makes reference to other types of groups as well. Under Article 2 of the Declaration:

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, our, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Song of Songs / Iakovos Kambanellis18

How lovely is my love

in her everyday dress

with a little comb in her hair.

No one knew how lovely she was.

Girls of Auschwitz

Girls of Dachau.

Have you seen the one I love?

We saw her on the long journey.

She wasn't wearing her everyday dress

or the little comb in her hair.

How lovely is my love

caressed by her mother,

kissed by her brother.

No one knew how lovely she was.

Girls of Belsen

girls of Mauthausen

have you seen the one I love?

We saw her in the frozen square

with a number on her white arm

and a yellow star over her heart.

Problems Stemming from the Wording of the UN Convention

The Convention on the Prevention and Punishment of the Crime of Genocide was the first general convention submitted by the UN to the nations of the world for authorization. The Convention, which under international law constitutes an agreement between sovereign countries specifying defined obligations, went into force on January 12, 1951, transforming genocide from an internal matter of individual states into an international issue. The Convention, however, fell short of classifying genocide as an international crime (in contrast, for example, to acts of piracy), and limited itself to the less unequivocal formulation of confirming its status as "a crime under international law."

The fact that the UN Convention was the product of an international political framework — whose decisions and actions are influenced by power struggles and different, often contradictory interests — resulted in lack of clarity with regard to definitions and application (lack of clarity that continues to characterize the Convention today). The definition has been the subject of much debate, and some have voiced criticism of its significance, its effectiveness, and its academic and practical benefits. Some view it as symbolic, declarative, and perhaps moral in nature, but devoid of any concrete or legal significance. Others argue that the decades that have passed since its institution prove its political and historical impotence. Most significantly, however, is the fact that the UN has been unable to prevent genocides from taking place even after the adoption of the Convention, and has only rarely succeeded in bringing the perpetrators of genocide to trial.

The UN Convention raises a number of issues that are discussed briefly below. The first is the debate surrounding the use of the term "genocide" to refer to actions carried out in the course of the twentieth century, including the disturbing events of the final decade of the century. Did the events that took place in former Yugoslavia constitute genocide, or were they 'merely' genocidal acts? Today, there is a general consensus that the events that took place in Rwanda did in fact constitute genocide, although no such consensus existed at the time the murders were underway. Rather, the UN recognized the Rwandan genocide after a delay that had tragic practical consequences for the victims, and moral implications as well (this topic is discussed at length in Rwanda 1994: Genocide in the "Land of a Thousand Hills," in this series).

It is important to remain attentive to the often cynical, manipulative, politically-motivated manner in which genocides are classified. The classification of a series of events as 'genocide' obligates the international community to take action to halt or prevent them. However, when events are classified as being merely of 'genocidal nature,' the international community may choose to refrain from taking action and have an ostensibly legal excuse for doing so. Another tragic example of this dynamic was the genocide committed in Darfur, Sudan, beginning in February 2003, during which, according to various estimates, 400,000 people were killed and more than two million uprooted from their homes. In 2012, a still outstanding arrest warrant was issued against Sudan's president Omar al-Bashir.

The UN Convention was formulated and adopted in the wake of the crimes committed by the Nazis during World War II: first and foremost, the extermination of the Jews. The government of Israel signed the Convention for the Prevention and Punishment of the Crime of Genocide and, on its foundation, enacted the Crime of Genocide (Prevention and Punishment) Law of 1950. In this law, the Israeli legislator adopted the definition of the crime employed by the Convention but was more stringent in stipulating punitive measures. The Israeli statute was first used against a Nazi war criminal in the trial of Adolf Eichmann, providing the legal basis for his subsequent execution. John Demjamjuk was also tried and sentenced to death by the Jerusalem District Court under this law, although he was subsequently acquitted by the Israeli Supreme Court due to reasonable doubt regarding his identity as Ivan the Terrible of Treblinka.

In your opinion, what is the basis for the distinction between 'genocide' and 'genocidal acts?' Is it based on the scope of the acts (such as the number of victims, the intensity of the extermination efforts, or the thoroughness and sophistication of the system of extermination), or perhaps the formulation of a clear and comprehensive ideology of extermination on the part of the perpetrators? Does this distinction contribute to the struggle against genocide? Or, on the contrary, does it make it easier to justify the world's failure to take measures to stop mass exterminations as they are taking place?

A question of major significance is whether the United Nations and the international community are doing enough to prevent genocides. After all, many instances of genocide have been committed around the world since the adoption of the UN Convention. Some call for amendment of the Convention to provide the UN with adequate tools not only to provide a limited degree of assistance to victims after the fact, but to actually prevent genocides.

Another debated issue is the inclusion of religious and political groups as populations against which genocide can be perpetrated. Some argue that the persecution of religious groups does not constitute genocide because a persecuted member of a religious group can avoid the fate of his or her co-religionists by adopting a different religion. As we have seen, the UN chose to include religious groups on the list of possible victims, but to exclude political groups. For many years, some have called for expanding the definition to include persecuted political groups (such as "opponents of the regime" in the former Soviet Union, many of the victims in Cambodia, and the communists in Indonesia), despite the fact that their members, at least theoretically, are able to change their political affiliation in order to avoid persecution.

Since the genocides of the early 1990s — particularly in former Yugoslavia — rape, committed because of a victim's belonging to a population then being exterminated, has also been considered an act of genocide (for example, the rape of a Bosnian woman by Serbs simply because she is Bosnian). Nonetheless, rape is not covered by the UN Convention on the Prevention and Punishment of the Crime of Genocide.

The most fundamental trait of genocide victims is their designation for extermination by virtue of their membership in a collective. Can a person's political identity (for example, party affiliation or systematic ideological opposition to the ruling regime) be considered a collective identity? How does collective identity resulting from birth (such as national or ethnic identity) differ from collective identity resulting from personal choice (such as political identity)? What is the difference between religious identity and political identity?

Some have maintained that the text of the Convention is flawed in a number of ways. Reservations and criticisms raised include:

● The Convention's failure to clearly distinguish between violence aimed at exterminating a group and violence aimed at the members of a group. Critics argue that the Convention offers no clear guidance on this point. It fails to provide specific criteria for the classification of groups that are likely to be targeted by extermination efforts (such as groups of national, ethnic, racial, or religious character); the traits that characterize such groups within a much broader spectrum typical of most social structures; groups that are likely to fall victim to genocide in practical terms; and whether or not the classifications made by the perpetrators should be accepted.

● The unclear meaning of the word "intent" in Article II ("any of the following acts committed with intent to destroy") of the Convention. Legal rulings and personal moral judgments typically distinguish between murder and attempted murder based on the different outcomes of the two acts. However, although genocide is thought to refer to the actions involved in exterminating an entire group, neither Lemkin's definition nor that adopted by the UN Convention regards this element as a necessary criterion. How, then, is it possible to prove that intention exists or existed when it was never actualized? Theoretical and practical challenges make it difficult to determine the specific point at which general intent that exists in the mind of individuals becomes significant and decisive, and the challenge is even greater in the case of groups. It is also important to keep in mind that perpetrators of genocide typically try to conceal and deny their intentions, particularly when they have not yet been carried out.

● The unclear meaning of the words "to destroy, in whole or in part." Although the Convention says nothing about the number of victims, and although genocide has no quantitative definition, this part of the text can be interpreted in a number of ways.

● The Convention's vague position on individual guilt and obeying orders (Article IV). Can a person who followed the instructions of the authorities legally justify his or her actions by claiming that they were "only" following orders, as Nazi war criminals did after World War II? Indeed, the Nuremberg trials revealed that the war crimes committed by the Germans during World War II were typically carried out under the guise of state law. The tribunal at Nuremberg dismissed defendants' claims that they were only following orders consistent with the laws of Nazi Germany, as did the Israeli court in Jerusalem that tried Adolf Eichmann.

● The Convention's failure to stipulate punitive measures to be taken against countries that commit crimes under its terms and the rejection of the proposal that those countries be held criminally responsible for their actions. As noted, Article VI of the Convention specifies that those charged with criminal acts "shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction." Some argue that such crimes could not be committed without the consent of the country in which they took place and that, under such conditions, there was little chance that criminals tried for their actions by a court in their own country would receive just punishment. The Convention also stipulates that only individuals — and not states — can be tried for the crimes in question. Moreover, the Convention neither specifies a specific punishment nor addresses the idea of an international criminal court, which, as we will see, was only established in 1998.

● Difficulties raised by the article addressing the act of incitement to genocide. As some regard punishment for incitement as posing a potential threat to freedom of speech, the Convention mandated punishment only in the event of "direct and public incitement to commit genocide."

● Lack of clarity regarding the precise meaning of the words "serious bodily or mental harm."

The Convention for the Prevention and Punishment of the Crime of Genocide was the first UN convention to be submitted as a general contract for authorization to the international community. This meant that genocide ceased to be viewed as an internal issue of the country in question and was now regarded as an international matter. The UN definition of genocide sparked much debate, and some questioned the Convention's significance and effectiveness, as well as its academic and practical benefit. Indeed, the UN has proved incapable of preventing genocides since the ratification of the Convention, and has only rarely succeeded in bringing perpetrators of genocide to trial.

Difficulties Ratifying and Implementing the UN Convention

Although charges of genocide have been leveled within the UN regarding the treatment of Africans in Sudan, the Kurds in Iraq, the Nagas in India, the Communists (as a political group) and the Chinese in Indonesia, the Ibos in Nigeria, and the Biharis in Bangladesh, the international organization made no formal decisions regarding these instances. Prior to the late 1980s, the UN had not applied its Convention to even one case of genocide committed after World War II.

In the early 1990s, for the first time since the Nuremberg trials, the international community established two ad-hoc tribunals to try defendants for war crimes, perpetrated in Rwanda and Yugoslavia. Despite its great importance, this action had no preventative impact, as the murders had already been committed. In Rwanda for example, despite the early signs of mass extermination, the UN did not take decisive action. Even though the mass extermination began on April 6, 1994, the United States and the United Nations refrained from classifying it as genocide until October 6, 1994. Instead, they preferred to use the terms "genocidal acts," based on the argument that they could not prove "intent" as stipulated in Article II of the UN Convention.19 By this time, the United States had emerged from the Cold War as the only remaining superpower and apparently had its own reasons for trying to avoid taking military action (including its distress about the death of eighteen American servicemen in Somalia in October 1993). Its position that proving "intent to destroy" was difficult in the case at hand had a major impact on the discussions in the UN Security Council, where the classification of events was debated and where it was decided to refrain from taking action. As we know, had the events been classified as genocide, the signatories to the UN Convention would have been obligated to take "peacemaking" action to prevent them or to bring them to a halt.20 It was only in August 1994, after hundreds of thousands of people had already lost their lives in one of the most horrifying genocides of the twentieth century, that the United States resolved to provide the refugees from the massacre in Rwanda with broad-based humanitarian aid. Some see the massacre in Rwanda, which could have been prevented relatively easily, as the quickest genocide in history, or at least in modern history. After the fact, a UN Security Council resolution of November 8, 1994 established the International Criminal Tribunal for Rwanda.

What explains countries' hesitation and inaction when faced with genocides in process, even in the modern day era of the 'global village'? Is it naive to expect countries to take action to defend victims in other countries simply out of moral obligation or natural compassion? Should the international community have taken action in April-July 1994 in light of the genocide being carried out in Rwanda?

By the beginning of 1973, 76 countries had ratified the Convention for the Prevention and Punishment of the Crime of Genocide, and by early 2000, the number of signatories had risen to 130. However, more than fifty other countries — including Japan (which is accused of carrying out a large-scale killing of Chinese between 1937 and 1945) and Indonesia (which is accused of perpetrating massacres, genocidal acts, and genocide in East Timor between 1975 and 1998) — did not sign the Convention. It is also important to note that the United States ratified the Convention only in 1988, forty years after its adoption by the UN General Assembly. The United States expressed a number of reservations regarding the UN Convention, including concerns that the establishment of an international criminal court would detract from the sovereignty of independent countries; that the convention contained only a vague definition of genocide; and that entire countries should not be forced to bear the guilt for crimes carried out by a small number of their citizens.

Regarding the arguments raised in defense of its hesitation to ratify the Convention, some maintained that the US was concerned about the possibility of being charged under the Convention for its actions against African Americans or Native Americans. Sociologist Jack Nusan Porter believed that while there had been no intent to carry out a mass extermination of African Americans (despite the acts of repression committed), there had been an intent to commit genocide in the case of the Native Americans, and that American treatment of the country's native population did in fact constitute genocide (for two separate explorations of the extermination of the Native Americans in North and South America, see two other books in this series: Genocide in the "Land of the Free": The Indians of Northern America, 1776-1890 and Conflictual Encounter: The Destruction of the Indian Peoples of Spanish America).21 Others held that the Americans' use of atomic weapons against Japan at the end of World War II also constituted a form of genocide, and still others accused the United States of perpetrating genocide in Vietnam — the late 1960s and the early 1970s. These charges resulted in objections to the ratification of the UN Convention in some American political circles and among a significant number of members of Congress. In any event, the fact that a superpower such as the United States refrained from signing the convention for so many years undoubtedly weakened its effectiveness and its chances of being implemented.

And even when the United States did eventually ratify the Convention on Genocide in 1988, it did so with explicit reservations and understandings. The first reservation stated that "before any dispute to which the United States is a party may be submitted to the jurisdiction of the International Court of Justice under this article, the specific consent of the United States is required in each case."22 The "understandings" pertained to implementation of the Convention, the extradition of defendants, the objection to the establishment of an international criminal tribunal, and the right to refrain from participating in such a tribunal. An additional understanding stipulated that actions in the course of armed conflict without specific intent would not be considered genocide under the UN Convention.

That same year, genocide was classified under US criminal law by a definition (pertaining to deeds committed in the United States or perpetrated by an American citizen) that differs in a number of ways from the definition of genocide found in the UN Convention. Under the US Genocide Convention Implementation Act of 1987, genocide is defined as follows:23

A monument in memory of the victims of the Khmer Rouge at the Killing Fields outside the Cambodian capital of Phnom Pen. The use of bare skulls, which were regarded by Western monotheistic religions as horrifying and taboo, is a common and legitimate component of the cultures of memory and commemoration of African and Eastern Asian peoples.

Whoever, whether in time of peace or in time of war . . . and with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such -

(1) kills members of that group;

(2) causes serious bodily injury to members of that group;

(3) causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques;

(4) subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part;

(5) imposes measures intended to prevent births within the group; or

(6) transfers by force children of the group to another group; or attempts to do so, shall be punished as provided in subsection.

It must be borne in mind that the Convention cannot be applied retroactively and therefore has no bearing on actions that occurred in the past. Therefore, even if it is argued that the United States perpetrated genocide against the Native Americans (a claim which some reject), it still cannot be legally charged for doing so. Some critics, including a number of American allies, have argued that these reservations effectively emptied the Convention of substance.

The International Criminal Court

During the period following World War II, the lessons learned from the war resulted in the incorporation of human rights into international law more than at any other time in history. The Nuremberg trials institutionalized a legal norm by which serious violations of the human rights of citizens by their governments were an issue of international concern and policy, and not simply a domestic matter.24 The superpowers, however, impeded this trend as the Cold War intensified. During the 1970s, NGOs, human rights organizations, and legal associations began conducting humanitarian work and protests against the violation of human rights, tyrannical regimes, and massacres and mass extermination. Serious diplomatic work by the countries themselves got underway only after the end of the Cold War and the fall of the Berlin Wall in 1989.

The early 1990s marked the emergence of new interest in the creation of effective international mechanisms aimed at punishing individuals charged with serious violations of human rights and international humanitarian law. In 1992, the UN Security Council set up an expert committee to gather evidence and to investigate serious violations of the Geneva Convention and other violations of international humanitarian law in former Yugoslavia. This measure was precipitated by reports of deeds such as mass murders, mass arrests, rapes, and ethnic cleansing. In 1994, it was decided to investigate the genocide that had taken place in Rwanda.

In 1948, hand in hand with the formulation of the Convention for the Prevention and Punishment of the Crime of Genocide, the UN General Assembly asked the Commission on International Law to explore the possibility of establishing a permanent international criminal court. As we have seen, Article VI of the Convention refers explicitly to the possibility of judgment "by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction." In accordance with this request, the International Law Commission submitted two versions of a draft statute. However, this process was halted in the early 1950s as a result of the Cold War era, and the revived interest in the early 1990s was one outcome of the end of this era. In 1993, the UN established an international tribunal to investigate crimes committed in the former Yugoslavia, and in 1994 it established a similar body to investigate crimes committed in Rwanda.

The Vienna Declaration, which was adopted at the conclusion of the World Conference on Human Rights in June 1993, recommended the establishment of a permanent international criminal court. In 1994, the UN General Assembly's International Law Commission formulated and submitted a draft statute along with a recommendation to convene a diplomatic convention to conclude the process. The General Assembly established two committees, which were open to all UN member states, to discuss the draft. In 1998, in accordance with a resolution of the UN General Assembly, a diplomatic conference attended by government representatives from all over the world was convened in Rome to conclude the formulation of the draft statute that would proclaim the establishment of the international criminal court.

After a month of talks in Rome, the conference concluded on July 17, 1998 with the incorporation of criminal penal law into the Rome Statute of the International Criminal Court. The Statute authorizes the International Court (ICC) to try individuals for charges of genocide, as defined by the UN Convention on Genocide; crimes against humanity; war crimes; and acts of violence (if the signatories to the Convention manage to agree on a definition of 'violence'). Unfortunately, the Rome Statute limits the court's jurisdiction by requiring the fulfillment of one of two criteria: a) that the case be referred to the court by the UN Security Council; or b) that the country of which the accused is a citizen or in which the crime was committed be a signatory to the Statute. This means that even if they have left their country, perpetrators of genocide or other serious crimes in a non-signatory country cannot be punished by the international community unless the UN Security Council refers the case to the Court. Moreover, the Security Council's ability to refer cases to the Court is limited by the veto powers enjoyed by its five permanent members, enabling these powerful nations to influence decisions based on practical interests (as we have seen, the United States still objects to the operation of the ICC). The Statute also provides countries with a loophole enabling them to remove war criminals from the jurisdiction of the ICC for a period of seven years (in the event that the country in question has started discussing the issue). The United States, it should be noted, voted against the Statute out of concern that the ICC would take action against American soldiers or leaders involved in military operations around the world for political reasons. Israel also voted against the Statute. Nonetheless, by December 31, 2000, 139 countries had signed on, constituting what are regarded as the "founding countries" of the permanent ICC.

The ICC is only authorized to hear cases regarding actions committed after the Statute went into effect. However, despite its shortcomings, the establishment of the permanent ICC must be regarded as a step forward for the international legal and justice system. Not only does it symbolize and embody the values of justice, human rights, and human solidarity, but many regard it as one of the most important institutions of the modern age and perhaps as the beginning of a new era in the history of international criminal law.

In practice, the ICC was established in July 2002, after the resolution was ratified by more than 60 countries. These ratifying countries did not include the United States or Israel, which noted that, despite its long-standing support for the establishment of a court of this kind, it was forced to vote against it. For decades, Jewish and Israeli legal experts had taken part in efforts to establish such a court, and for this reason Israel's position during the final stage of the process was surprising. Israel was one of the few countries that attended the Rome Conference of July 1998 to vote against the Statute. Its opposition stemmed primarily from a paragraph inserted at the initiative of the Arab countries that had bearing on the Israeli settlements established in the territories occupied by Israel during the 1967 war. Although not explicitly stated, the paragraph implied that the direct or indirect transfer of population from an occupying country into occupied territory constituted a war crime.

During the internal Israeli debate that took place within the administration of Prime Minister Ehud Barak in 1998 in the aftermath of the Rome Conference, Justice Minister Yossi Beilin expressed firm support for signing the Statute. He was subsequently joined by Foreign Minister Shlomo Ben-Ami, but was opposed by Israel's defense establishment and the Israeli legal system, including the attorney general. The main argument of the supporters of the Statute was that, in light of the history of the Jewish people and the fact that the state of Israel was established in the aftermath of the Holocaust, Israel could not ally itself with countries like China, Iraq, or Libya, who had become infamous for their blatant violation of human rights.

Israel ultimately signed the Statute following President Clinton's decision to do so, despite the opposition of the Pentagon and the Republican majority in the US Senate. Clinton explained his decision as stemming from the international responsibility to ensure the ability to try perpetrators of genocide, war crimes, and crimes against humanity. According to Clinton, the decision was one in a long history of American involvement in such issues since the Nuremberg trials.

As a result of the pressure exerted by a large number of countries (European countries and Canada in particular) and at the urging of Jewish organizations, both the United States and Israel signed the Statute on December 31, 2000, the last day that countries could sign the Convention without ratifying it. After that date, adopting the Convention would require a complex internal legal process including government ratification. It should be remembered, however, that the signing of the Convention was a declaration with symbolic significance alone, and carried no practical legal importance whatsoever.

By signing the Statute, Israel joined the family of nations and ensured that it would not remain isolated and ostracized on the issue. However, like the United States, Russia, and China, Israel did not ratify the Convention and is highly unlikely to do so in the near future. Moreover, the Bush Administration adopted a critical stance toward the International Criminal Court and made efforts to weaken it, including the conclusion of bilateral non-extradition treaties such as the one it signed with Israel. In July 2002, an Israeli national unity government under Prime Minister Ariel Sharon, which also included ministers from the Labor Party, unanimously decided to refrain from joining the ICC in Hague and from ratifying its signature of the Statute (Dan Meridor was the only government minister to abstain).

In many ways, the decision to establish the permanent ICC represented a completion of the UN Convention on Genocide and an effort to overcome some of its shortcomings.