The concept of genocide, as outlined in the Convention on the Prevention and Punishment of Genocide, is no longer useful and detracts attention and resources from other instances of systematic mass violence. In fact, the concept of genocide as we know it today, was not what Raphael Lemkin had originally conceived when he coined the term. Only four groups are protected under the convention: racial, ethnic, national, and religious groups. Other groups are excluded from protection including political groups. There are also no explicit prevention provisions within the Genocide Convention. The definition and conception of genocide as it currently exists allows us to pick and choose which acts of mass violence deserve the recognition that comes with labeling something a genocide.
There is a tendency to downplay instances of mass violence if they do not conform to the strict definition of genocide outlined in the convention. Taking away attention from mass atrocities because the victim pool is not homogenous or does not neatly fit into one of the four categories is cruel and dehumanizing.
The Original Conception of Genocide
It would be neglectful to not begin this paper with a brief overview of Raphael Lemkin’s original conception of genocide. This is to honor his role in coining the term but to also demonstrate how different the current definition is from what he imagined and how that limits our understanding of genocide today. Lemkin coined the term genocide in 1942, but the bones of the concept were there as early as 1933. Lemkin’s report titled “Acts Constituting a General (Transnational) Danger Considered as Offences Against the Law of Nations” developed the precursor to genocide which he called “barbarity.” Barbarity was “acts of extermination directed against the ethnic, religious, or social collectivities whatever the motive (political, religious, etc.). Barbarity was unique in that the attacks were “carried out against an individual as a member of a collectivity” with the goal being to damage the collectivity. A second type of attack on a collectivity was known as “vandalism,” or cultural and artistic destruction. Lemkin saw individual cultures as contributing to a wider world culture that all humans were part of. His argument was that destroying a particular culture inflicted a loss on world culture. These two acts, barbarity and vandalism, violated the law of nations and therefore a multilateral convention criminalizing these acts was necessary.
Lemkin coined the term ‘genocide’ in 1942, but it first appeared in print in his 1944 book Axis Rule in Occupied Europe. In Chapter 9, Lemkin defines genocide as “the destruction of a nation or of an ethnic group.” The word is
intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be the disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups.
Lemkin identifies two phases of genocide: destroying the “national pattern” of the oppressed group and then imposing the “national pattern” of the oppressor.
Lemkin’s definition highlighted different techniques of genocide in various areas. He identified eight techniques of genocide. The first was political, which included the destruction of local institutions of self-government and the imposition of the oppressing government. The second was social, which meant the overhauling of social structure through the forced deportation of intellectual leaders and the clergy. The third was cultural, which included prohibitions on speaking and printing in local languages, as well as strict control over cultural activities and artistic expression. The fourth was economic, which included lowering the standard of living, expelling groups from certain industries, seizing private property, and controlling the banking system. The fifth was biological, which was taking measures to prevent the group from reproducing like separating men and women, and also taking steps to actively reproduce the oppressing group. The sixth was physical, which Lemkin outlines in the following ways: “racial discrimination in feeding;” “endangering of health;” and “mass killing.” The seventh was religious, which included forcing people to renounce their religious affiliations and persecuting clergy. The last was moral, which meant creating an atmosphere of moral debasement by forcing oppressed groups to watch pornographic movies, to overconsume alcohol, and to gamble. In the end, the concept of genocide officially adopted in the convention only focuses on biological and physical techniques of genocide.
It is important to note that Lemkin understood genocide as a process, not a singular event. Genocide was an attempt to destroy a nation, with ‘attempt’ meaning an “active social, political, or historical process set in motion intentionally” rather than a single act. Lemkin made sure to emphasize the role of the state in developing a genocidal policy over time through various laws, decrees, and administrative institutions that worked together to commit genocide. In this way, the apparatus of the state becomes a vehicle for genocide.
Lemkin lobbied heavily for a UN convention outlawing genocide and in 1947, along with Vespasian Pella and Henri Donnedieu de Vabres, he created the first draft of such a convention, now known as the secretariat draft. I want to highlight two notable provisions in this draft that are not included in the final version. First, the protected groups are not just racial, religious, and national, but also linguistic, cultural, and political. Second, genocide can be biological, physical, and cultural. Cultural genocide included “forced and systematic exile of individuals representing the culture of a group;” “prohibition of the use of the national language even in private intercourse;” “systematic destruction of books printed in the national language or of religious works or prohibition of new publications;” and “systematic destruction of historical or religious monuments or their diversion to alien uses, destruction or dispersion of documents and objects of historical, artistic, or religious value and of objects used in religious worship.” Lemkin’s original conception of genocide was lost throughout the drafting process. Each draft after the secretariat draft looked less and less like his original vision and he was forced to decide what his priority was: definitions or prosecuting genocide. Ultimately, he chose to fight for the provisions that would establish an international criminal tribunal for genocide. In the end, the work Lemkin put into preserving his original conception of genocide would not produce tangible results until the ad hoc tribunals for the former Yugoslavia and Rwanda were created in the early 1990s.
Specific Problems with the Genocide Convention
The Exclusion of Political Groups
The exclusion of political groups is one of the critical flaws of the Genocide Convention. The primary justification for the exclusion of political groups from the Genocide Convention is that people choose their political affiliation, but people cannot choose their race or ethnicity. This argument hinges on the idea that genocide is the targeting of a specific group solely because of some innate characteristic, but that is rarely ever the case. It is important to note, however, that nationality, religion, even ethnicity are not innate characteristics. While you are born into a nationality or religion, it is a choice to remain part of a national or religious group and we know that ethnicity is not an entirely biological phenomenon, but also socially constructed and ever-changing. “Groups formed on the basis of ‘religion’ or ‘nationality’ are in reality no more stable or permanent than groups formed on the basis of political affiliation” and “ethnicity can be shaped by political and economic factors as much as ancestry and inherited culture.” Extensive research has been done into why political groups were excluded from the initial drafting of the Convention (states wanted to be able to suppress political opposition, among other things), but as Beth Van Schaack explains, the exclusion of political groups is fundamentally at odds with the international human rights apparatus.
Discarding political groups from the Genocide Convention created an internally inconsistent human rights regime, because other major international agreements include the category. The prohibition of crimes against humanity prohibits persecutions on ‘political, racial, or religious grounds.’ Likewise, the provisions of the Refugee Convention protect individuals from persecution on account of ‘race, religion, nationality, membership in a particular social group, or political opinion.’
To solidify this point further, political persecution is a valid reason to seek asylum, which shows that political affiliation and expression, while not innate, is something worth protecting. Additionally, before the Genocide Convention was adopted, the UN General Assembly passed a resolution affirming that genocide is a crime under international law “whether the crime is committed on religious, racial, political, or any other grounds.” In sum, there is a history of political affiliation being a protected status under the international human rights regime that cannot be ignored.
The Exclusion of Cultural Genocide
Culture is a fundamental part of identity, and its destruction not only harms that culture, but humanity as well. But the Genocide Convention does not reflect this. The first two drafts of the Genocide Convention explicitly stated that cultural destruction is a form of genocide. In the Secretariat Draft, the definition of genocide included provisions such as “forced and systematic exile of individuals representing the culture of a group;” “prohibition of the use of the national language even in private intercourse;” “systematic destruction of books printed in the national language or of religious works or prohibition of new publications;” and “systematic destruction of historical or religious monuments or their diversion to alien uses, destruction or dispersion of documents and objects of historical, artistic, or religious value and of objects used in religious worship.” The Ad hoc Committee Draft succinctly reiterated these provisions, defining cultural genocide as “any deliberate act committed with the intent to destroy the language, religion, or culture of a national, racial, or religious group on grounds of the national or racial origin or the religious beliefs of its members…” As mentioned in the previous section, fifteen years before the creation of the Genocide Convention, Lemkin explained how vandalism, defined as the “destruction of culture and works of art,” constituted an attack on a collectivity. “The contribution of any particular collectivity to world culture as a whole, forms the wealth of all humanity…Thus, the destruction of a work of art of any nation must be regarded as acts of vandalism directed against world culture.” The definition of cultural genocide in the first two drafts of the Genocide Convention is simply a generalization of the examples Lemkin used to describe the cultural genocide committed by the Nazis in France and Poland.
Humanity clearly understands the importance of cultural preservation and appreciation. If we did not, UNESCO World Heritage sites would not exist, and museums would have nothing to exhibit. Culture gives life meaning and to destroy the culture of a particular group is to destroy the “social vitality” of that group, as identified by Claudia Card. She writes, “Social vitality is destroyed when the social relations—organizations, practices, institutions—of the members of a group are irreparably damaged or demolished.” Because culture gives groups social vitality, “When a group with its own cultural identity is destroyed, its survivors lose their cultural heritage and may even lose their intergenerational connections.” If people cannot participate in their culture because it was destroyed, life becomes devoid of meaning, leading to social death akin to physical death. “By limiting genocide to its physical and biological manifestations, a group can be kept physically and biologically intact even as its collective identity suffers in a fundamental and irremediable manner…the present understanding of genocide preserves the body of the group but allows its very soul to be destroyed.”
Forgets Prevention
The Genocide Convention as it currently exists fails to provide sufficient guidance on how states should prevent genocide, diminishing the utility of the convention as a legal instrument. For a crime like genocide, who implementation and methodology are constantly evolving, there simply needs to be more substantive explanation and guidelines for its prevention. Prevention is currently based on deterrence and the threat of punishment. But it is unclear how effective a deterrent punishment is. Preventing a genocide is a difficult task because the term tends to be retroactively applied via courts or independent fact-finding missions. The international community cannot prevent a genocide if it refuses to acknowledge one is happening and only do so after the violence has ended. Genocides can be prevented by understanding and mitigating the factors that are most likely to lead to genocide, a significant one being war. Prevention must be proactive and cannot be solely based on threat of punishment.
Moving Forward
After highlighting a few problems with the concept of genocide, I want to offer a few alternatives. In terms of Genocide convention, changes are possible. Article XVI of the convention states “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.” All it takes is one state to request that the Genocide Convention be revised, and the General Assembly can decide where to go from there. Given that this convention is 75 years old, it is worth reevaluating its provisions given that the world has changed tremendously since 1948. Revisions to the convention can mean including cultural genocide and expanding the protection status to include political groups. Revisions can also make the prevention aspect clearer. While convincing states to make changes might be difficult, proposing revisions does no harm and can even bring greater attention to the issues with the convention.
One of the problems highlighted earlier in this paper is the exclusion of political groups from the Genocide Convention. Beth Van Schaack offers a new way of thinking of the protection of political groups from genocide and that is through the norms of jus cogens. Jus cogens is the idea that there are certain peremptory norms in international law, norms that cannot be violated no matter the circumstances. According to Article 50 of the Vienna Convention on the Law of Treaties
a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.
Examples of peremptory norms are the prohibitions on genocide, crimes against humanity, war crimes, torture, human trafficking, slavery, apartheid, etc. Van Schaack makes the case for applying the norm of jus cogens to protect political groups from genocide. “When faced with mass killings evidencing the intent to eradicate political groups in whole or in part, domestic and international adjudicatory bodies should apply the jus cogens prohibition of genocide and invoke the Genocide Convention vis-à-vis signatories only insofar as it provides practical procedures for enforcement and ratification.” Enforcement and ratification can be found in Article IX which says the International Court of Justice has jurisdiction over disputes between states about the interpretation, fulfilment, and application of the Convention (although there are several reservations to this article). Article VIII says that any party can call upon “the competent organs of the United Nations to take such action…as they consider appropriate for the prevention and suppression of acts of genocide” or any enumerated acts.
Conclusion
There is a tendency to call instances of mass violence ‘genocide’ to garner attention and action from the international community because imbedded in the word is a certain gravity that necessitates action. The obsession with genocide makes equally grave crimes like crimes against humanity and war crimes secondary and something to settle for. This directs attention away from mass violence that is not genocide, leading to inaction and indifference.
There are changes that can be made to reduce our obsession with genocide. Contracting parties can propose revisions to the Genocide Convention; the norm of jus cogens can be the legal framework by which we view genocides and mass violence in order to include historically excluded groups from the convention; and we can think diligently about the language we use to describe instances of genocide and mass violence and use the more inclusive phrase of ‘crimes against humanity.’
To be reiterate once again, this is not an argument for genocide denial or even the concept as a whole. Rather, it is an argument against the concept of genocide as it currently exists. The concept of genocide can be strengthened by the inclusion of other groups, cultural genocide, and more prevention provisions.