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10 March 2008

2382) Can There Be Genocide Without The Intent To Commit Genocide? by Guenter Lewy

The question posed in the title of this essay appears to be nonsensical, if not outright self-contradictory, but in fact it is not. As we will see below, several wellknown students of genocide have argued that it is possible for genocide to take place without an intent to cause genocide. Such a view, I submit, would first have to be squared with the text of the Genocide Convention of 1948. According to Article II of the convention, the crime of genocide consists of a series of acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such [my italics].”[1] Since genocide is a legal term in international criminal law, the definition of the convention establishing the crime of genocide assumes a prima facie authoritativeness. The issue of the definition of genocide should not be used to exculpate crimes that do not reach the threshold of the legal definition of genocide. However, as I will argue in this essay, the disregard of intentionality can stand in the way of a full understanding of events that appear to constitute genocide and lead to a distorted finding of responsibility. The significance of the intent issue goes well beyond the question of how best to define genocide as a crime under international law.

The meaning of the Genocide Convention’s intent clause

Practically all legal scholars accept the centrality of the intent clause in the Genocide Convention. Genocide, writes Alexander K. A. Greenawalt, “is a crime of specific or special intent, involving a perpetrator who specifically targets victims on the basis of their group identity with a deliberate desire to inflict destruction upon the group itself.”[2] It is not enough that a perpetrator acted with knowledge that his actions contributed to the genocide in question, i.e. that he had general intent. The perpetrator must have had special or specific intent, he must have desired and specifically intended the result of genocide.

The prevailing view, as stated by Nehemiah Robinson in a well-known commentary, is that “acts of destruction would not be classified as Genocide unless the intent to destroy the group existed or could be proven regardless of the results achieved.” The destruction of a group without such intent “would not fall under the definition.”[3]

During the deliberations leading up to the adoption of the Genocide Convention, some delegates argued for a clear specification of the reasons or motives for the destruction of a group. In domestic law motive is often a minor matter. Whether A breaks into the house of B and steals the money he finds there in order to pay his debts or to buy himself a fancy television is immaterial. The crime of burglary does not depend on the motive for the act. Two individuals may intend to commit the same crime but for different reasons.[4] Finding a motive may help establish that an individual intended a particular act. The fact that an individual who killed a person strongly hated his victim and repeatedly threatened him will make it more difficult for him to argue that the killing was incidental rather than deliberate, but in many cases the motive for a crime is irrelevant for establishing guilt. In defining the crime of genocide, on the other hand, it was felt by the delegates of some countries, motive was important. Modern war, argued the representative of New Zealand, for example, is total and some instances of aerial bombing might destroy an entire group. Hence unless the convention listed the reasons for the destruction of groups, such bombing might be considered a case of genocide.

The issue of motive was finally resolved by adding the words “as such.” Instead of listing a variety of incriminating or exculpating motives, the term “as such” was held to stand for the aim of destroying the group qua group.[5] This solution did not satisfy all delegates, but it became part of the final text anyway. As Robinson phrases the current status of the intent clause: besides the intention of destruction “there must be a specific motive for the act, derived from the peculiar characteristics of the group.”[6] The destruction of the group must aim at ending the group as a national, ethnical, racial or religious entity. Or as another legal scholar puts it: “Evidence of hateful motive will constitute an integral part of the proof of a genocidal plan, and therefore of genocidal intent.”[7] Not satisfied with the language of the Genocide Convention, the United States ratified the convention with the “understanding” that acts in the course of armed conflicts “committed without the specific intent required by Article II are not sufficient to constitute genocide as defined by this Convention [my italics].” The implementing legislation (the Proxmire Act of 1988) follows up on the terms of this “understanding” and speaks of “the specific intent” to destroy a group in whole or in part.[8]

The strong emphasis of the convention on intentionality also means that there can be no such thing as “negligent genocide.” In 1978, the report of a United Nations Special Rapporteur on genocide proposed modifying the intent requirement so that the convention would reach acts of omission as well as commission, and in 1985, another rapporteur made the same suggestion. However, no action has been taken on these proposed changes.[9] The intent requirement of the convention is also reaffirmed in Article 30 of the Rome Statute of the International Criminal Court adopted in 1998.[10] In its commentary on the 1996 Code of Crimes Against the Peace and Security of Mankind, the International Law Commission referred to specific intent as “the distinguishing characteristic of this particular crime under international law”:

The prohibited acts enumerated [. . .] are by their nature conscious, intentional or volitional acts which an individual could not usually commit without knowing that certain consequences were likely to result. These are not the types of acts that would normally occur by accident or even as a result of mere negligence [. . .]. [A] general intent to commit one of the enumerated acts combined with a general awareness of the probable consequences of such an act is not sufficient for the crime of genocide. The definition of this crime requires a particular state of mind or a specific intent with respect to the overall consequences of the prohibited act.[11]

Two ad-hoc tribunals established by the United Nations to try violations of international humanitarian law committed in the former Yugoslavia and Rwanda, respectively, have addressed the role of intent in the crime of genocide. On August 2, 2001, General Radislav Krstic, the Serbian commander of the Drina Corps operating in the Srebrenica area in July 1995, was convicted of genocide for his role in the massacre of more than 7,000 male Bosnian Muslims. What had begun as ethnic cleansing, the court ruled, turned into genocide—the deliberate killing of all Muslim men of military age.[12] Even though there was no evidence that Krstic either personally killed anyone or that he had been present at the mass killings, it was enough that he was held to have had knowledge of the plan to destroy the Bosnian Muslims of Srebrenica and participated actively in it. Krstic was given a jail sentence of 46 years, reduced to 35 years on appeal.[13] On the other hand, the Serb Goran Jelisic, former commander of a detention camp in the Brcko region of northwest Bosnia and Herzegovina, was acquitted in late 1999 of the charge of genocide because he had killed “arbitrarily” and “randomly” rather than with “an affirmed resolve to destroy in whole or in part a group as such.” The prosecution had argued that it was sufficient if the accused knew the consequences of his acts—the extermination of a group—though he may not have sought it, but the court rejected this view. The crime of genocide, the tribunal declared, required a specific intent, and this meant that a perpetrator, “by one of the prohibited acts enumerated in Article 4 of the Statute, seeks to achieve the destruction, in whole or in part, of a national, ethnical, racial or religious group, as such.”[14] Instead, Jelisic was sentenced to 40 years imprisonment for crimes against humanity, a charge to which he had pleaded guilty.[15]

The Trial Chamber of the International Criminal Tribunal for Rwanda, in the Akayesu case decided on September 2, 1998, also ruled that the crime of genocide requires a specific intent to commit genocide. Even in the absence of a confession, the special intent to destroy a protected group as such could be inferred from the speeches of the accused and the massive nature of the atrocities committed. Killings had been carried out in a planned and concerted manner. The fact that the accused had deliberately and systematically targeted victims on account of their membership in a particular group (the Tutsis), while excluding the members of other groups, enabled the Chamber to infer the genocidal intent of a particular act.[16]

Critics of the Genocide Convention have taken exception to the limited scope of the convention’s definition of protected entities, especially the exclusion of political groups, as well as the ambiguity of the requirement that a group be destroyed “in whole or in part.” Such criticism has also targeted the intent provision.

Structural violence as a form of genocide

The crucial role of intentionality in establishing the crime of genocide, emphasized by legal scholars and UN-sponsored tribunals, has been challenged by Isidor Walliman and Michael N. Dobkowski in their book Genocide and the Modern Age, published in 1987. The two genocide scholars questioned the idea that “only intentional or planned massive destruction of human lives should be called genocide,” an assumption that leads to “the neglect of those processes of destruction which, although massive, are so systematic and systemic, and that therefore appear so ‘normal’ that most individuals involved at some level of the process of destruction may never see the need to make an ethical decision or even reflect upon the consequences of their action.” In the modern age, “the issue of intentionality on the societal level is harder to locate because of the anonymous structural forces that dictate the character of our world.” Hence in contemporary society, characterized by the domination of individuals by forces such as market mechanisms and bureaucracies, Walliman and Dobkowski argued, the emphasis on intentionality is almost anachronistic. It has “the tendency to gloss over structural violence which through various mechanisms can be equally as destructive of human life as many an intentional and planned program of annihilation.”[17]

The Australian historian Tony Barta, who acknowledges his indebtedness to Marx, has applied the idea of structural violence to the fate of the Australian aborigines. Genocide, he argued, need not have “intentionality as its defining characteristic.” There can be terrible destruction—genocidal outcomes—without “purposeful annihilation.”[18] In Australia waves of settlers introduced sheep and cattle which became the “instruments of genocide.” The destruction of the aborigines was accomplished not primarily through individual acts of killings, numerous as these were, but by “the objective nature of the relationships” between (white) capitalist wool producers and (black) hunter-gatherers which proved to be totally incompatible. Both the aboriginal inhabitants and the invaders needed the land and the ensuing conflict resulted in a “relationship of genocide.”[19] Driven from their lands and deprived of their traditional food supplies, the aborigines died. Barta admits that by far the greatest number of deaths—possibly two thirds—were caused by diseases such as smallpox against which the natives had no immunity, but he dismisses the significance of this statistic. A whole race, he concludes, became “subject to remorseless pressures of destruction inherent in the very nature of the society. It is in this sense that I would call Australia, during the whole 200 years of its existence, a genocidal society.”[20]

In a critique of Barta, the sociologist Frank Chalk has argued against the downplaying of the role of individuals in the occurrence of genocide. “Systemic variables facilitate genocide, but it is people who kill.” The same structures of society do not always lead to the same consequences. States eschewing capitalism such as China and Cambodia have perpetrated huge massacres of ethnic groups and social classes. Arguments which minimize the importance of intentionality, Chalk points out, “also distract our attention from the role of absolutist or utopian or uncompromisingly idealistic doctrines or ideologies in the great mass killings of the twentieth century.” The search for the perfect society became the recipe for the most horrible bloodshed in which millions lost their lives.[21]

The abandonment of the criterion of intentionality, I would add, also makes it difficult to assign guilt. Who is to be held responsible for structural violence? Guilt is individual; one cannot punish a social system, violent and unjust as it may be. The principle of individual responsibility for international crimes was affirmed by the International Military Tribunal that tried the German major war criminals. Crimes against international law, declared the Nuremberg Court in its judgment delivered on September 30-October 1, 1946, “are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”[22] According to the judgment of the International Court of Justice rendered in the case of Bosnia and Herzegovina v. Serbia and Montenegro on February 26, 2007, “states can be held responsible for genocide,” but proof has to be established that the acts of genocide were committed by “persons or entities ranking as organs of the respondent.”[23] This is in line with Article IV of the Genocide Convention which provides punishment for “persons committing genocide,” irrespective of “whether they are constitutionally responsible rulers, public officials or private individuals.”

Genocidal consequences as proof of genocide

The Holocaust, the Nazis’ attempt to destroy the Jewish people, is an instance of genocide in which the intentions and plans of the perpetrators are fully known. Leading Nazi personalities—from Hitler down to Himmler and Hans Frank and officials in the Ministry for the Occupied Territories—repeatedly and approvingly talked of the destruction of the Jews that was underway. All this and more is caught on thousands of original documents captured after the defeat of Germany that detail the decision-making process leading up to the Final Solution and tell in abundant detail why and how the process of annihilation unfolded. The names of the men who made and implemented the plan of destruction are recorded and we know why they committed their crimes. Unfortunately, this kind of rich inculpatory evidence is rare, and in many cases of genocide the guilty intent of the perpetrators can be inferred only from the acts themselves. Proof of specific intent, as required by the Genocide Convention, may be difficult.

These difficulties have led some genocide scholars to abandon the criterion of intentionality altogether and to argue that what counts is not intent but results and consequences. “Very few governments,” writes Henry R. Huttenbach, “can be legally indicted to the satisfaction of the standard rules of evidence for their intentions.” Hence the crime of genocide “must stand on the result first and foremost”; it should be defined “in terms of the actual fate experienced by the group” and not on the basis of “the goals of the perpetrators.” Genocide, according to Huttenbach, “is any act that puts the very existence of a group in jeopardy.”[24]

Huttenbach’s formulation, in my view, is inadequate. As I will try to demonstrate presently through the example of the tragedy of the American Indians, the disregard of intent can mislead us and produce wrong conclusions. A huge loss of life in and by itself, even consequences that threaten the existence of a group, is not proof of genocide.

The fate of the American Indians

The story of the encounter between European settlers and America’s native population does not make for pleasant reading. “We took away their best lands,” observed John Collier, commissioner of Indian affairs under Franklin D. Roosevelt in 1938, “broke treaties, promises; tossed them the most nearly worthless scraps of a continent that had once been wholly theirs.”[25] Helen Hunt Jackson’s recitation of forced removals, killings and callous disregard of Indian rights in her famous book A Century of Dishonor [26] is one-sided. The book does not dwell on the mutilation of bodies during Indian raids on undefended farmsteads, the scalping and torture of captives and other atrocities. Still, her indictment captures some essential elements of what happened. There can be no doubt that the Indians of America suffered horrendously and experienced nearextinction. Hence it is not surprising that Indian rights activists and some historians too have used the terms “genocide” and “holocaust” to describe the fate of the Indians of the New World.

Thus, according to Ward Churchill, a professor of ethnic studies at the University of Colorado, the reduction of the North American Indian population from more than 12 million in 1500 to barely 237,000 in 1900 represents a “vast genocide [. . .], the most sustained on record.” This “holocaust was and remains unparalleled, both in terms of its magnitude and the degree to which its goals were met.”[27] By the end of the nineteenth century, writes David E. Stannard, a professor of history at the University of Hawaii, Native Americans had undergone the “worst human holocaust the world had ever witnessed, roaring across two continents non-stop for four centuries and consuming the lives of countless tens of millions of people.”[28] In the judgment of Lennore Stiffarm and Phil Lane, Jr., “there can be no more monumental example of sustained genocide—certainly none involving a ‘race’ of people as broad and complex as this—anywhere in the annals of human history.”[29]

The charge of genocide against the Indians has gained wide currency in Europe and elsewhere. Relying in part on the work of Stannard, a French specialist on American economic and social history has concluded that in describing the fate of the American Indians the term genocide is indeed “appropriate.”[30] In the eyes of Jehuda Bauer the destruction of the Indian people by Anglo-Saxon settlers was “clearly genocide.”[31] In this country few professional students of American history share this view, but many others in the academic community and beyond have accepted the charge of genocide. The argument became popular at the time of the Vietnam War when historians opposed to the conflict drew parallels between our actions in Southeast Asia and earlier examples of supposedly ingrained American viciousness toward non-white people. The author of a book entitled The American Indian: The First Victim called America’s white civilization as originating in “theft and murder” and the wars against the natives “efforts towards the genocide of the Indian people.”[32] The troops under the command of the famous Indian scout Kit Carson, wrote the historian Richard Drinnon in 1980, were “forerunners of the Burning Fifth Marines” who set fire to Vietnamese villages, and the Puritans at Fort Mystic in 1637 piled up a body count “that equaled or exceeded that at My Lai in 1968.”[33] By the end of the 1970s, a study of the changes in high school American history textbooks concludes, Christopher Columbus had ceased to be a hero and instead had become “a genocidal criminal, responsible for the wreckage of the unspoiled civilizations that preceded the European arrival.”[34]

The 1992 quincentenary of the landing of Columbus brought to the fore more accusations of genocide and revealed the rampant guilty conscience. The National Council of Churches adopted a resolution that called Columbus’ landfall “an invasion” resulting in the “slavery and genocide of native people.”[35] In a widely read book entitled The Conquest of Paradise, Kirkpatrick Sale charged the English “and their United States successors” with following a policy of extermination that lasted four centuries.[36] An Encyclopedia of Genocide, published in 1999 and edited by the genocide scholar Israel Charny, includes an article on genocide against the American Indians authored by Ward Churchill which argues that the “express objective” of the Indian wars waged by the United States was “extermination.” [37] The “only appropriate way” to describe the way white settlers treated the Indians, the Cambodia expert Ben Kiernan has written, is “genocide.”[38]

A demographic disaster

It is a firmly established fact that a mere 250,000 Native Americans were still alive in the territory of United States at the end of the nineteenth century. Still in scholarly contention, however, is the number of Indians at the time of first contact with the Europeans. Some students of the subject speak of a “numbers game.”[39] Since the 1960s, in particular, observes the anthropologist Shepard Krech, population estimates have become “sharply politicized.” Indian scholars have accused non- Indian demographers of minimizing the size of the aboriginal Indian population in order to make the decline less severe than it was.[40]

The disparity in estimates is enormous. In 1928 the ethnologist James Mooney arrived at a count of 1,152,950 Indians in all tribal areas north of Mexico at the time of initial contact with Europeans.[41] By 1987, in American Indian Holocaust and Survival, Russell Thornton gave the figure of five-plus million Indians in the coterminous United States area in 1492.[42] Considering this estimate as far too low, Lenore Stiffarm and Phil Lane, Jr. called Thornton “a somewhat confused Cherokee demographer” who seeks academic respectability by aligning himself with the lowcounters, and they proposed the number of 12 million native inhabitants within the present borders of the United States.[43] This figure is indebted to the anthropologist Henry Dobyns, who in 1983 estimated the aboriginal population of North America as 18 million and that in today’s United States as about 10 million.[44]

From one perspective, these differences, however startling, may seem beside the point; there is ample evidence, after all, that the arrival of the white man triggered a drastic reduction in the number of Native Americans. Nevertheless, even if the higher figures are credited, they alone do not prove the occurrence of genocide.

To address this issue properly we must begin with the most important reason for the Indians’ catastrophic decline—namely, the spread of highly contagious diseases to which they had no immunity. This phenomenon is known as a “virgin soil epidemic”; in North America it was the norm and it resulted in staggering death rates. The most lethal of the pathogens introduced into the New World by the Europeans was smallpox. Sometimes this disease incapacitated so many adults, including hunters, at the same time that as many tribesmen died of hunger and starvation as of the disease itself. In several cases entire tribes became extinct. Other killers included measles, influenza, whooping cough, diphtheria, typhus, bubonic plague, cholera and scarlet fever. Although syphilis was apparently native to parts of the western hemisphere, it, too, was probably introduced into North America by Europeans.[45]

There is some disagreement about the number of the various epidemics that decimated the Indian populations, about the timing of their impact, and the extent of their spread. Population declines varied in different regions.[46] However, the basic facts about the mortality caused by disease are unquestioned. The most hideous enemy of Native Americans was not the white man and his weaponry, concludes Alfred Crosby, “but the invisible killers which those men brought in their blood and breath.”[47] It is estimated that between 75% and 90% of all Indian deaths were the result of epidemic disease.[48] Ann Ramenofsky speaks of “a minimal population loss of 90% from all introduced disease.”[49]

To some this is enough in itself to warrant the term genocide. David Stannard has insisted that the Indians who died of introduced disease “were as much the victims of the Euro-American genocidal war as were those burned or stabbed or hacked or shot to death, or devoured by hungry dogs.” The Jews who died of disease and starvation in the ghettos, he argues, are counted among the victims of the Holocaust. In the same way, the native people of the Americas died “in vastly higher numbers and proportions, directly as a result of the larger genocidal conditions created by violent European invasions of their communities.” As an example of such genocidal conditions Stannard refers to the Franciscan missions in California which he calls “furnaces of death.”[50]

There are several problems with this argument. It is true that the cramped quarters of the missions, with their poor ventilation and bad sanitation, encouraged the spread of disease, but unlike the Nazis, whose intentions were anything but benevolent, the missionaries were sincerely concerned for the welfare of their native converts. Labour was obligatory, food and medical care were often inadequate, and, in conformity with prevailing norms, there was corporal punishment. [51] However, none of this can compare with the fate of the Jews in the ghettos. The missionaries had an inadequate understanding of the causes of the diseases that afflicted their charges, and, given the state of medical knowledge, there was little they could do for them. By contrast the Nazis knew exactly what was happening in the ghettos, but quite deliberately deprived the Jewish inmates of both food and medicine. Unlike in Stannard’s “furnaces of death,” the deaths that occurred there were meant to occur.

The larger picture also does not conform to Stannard’s idea of disease as an expression of “genocidal conditions.” True, the forced relocations of Indian tribes was often accompanied by great hardship and harsh treatment; the removal of the Cherokee from their homelands to territories west of the Mississippi in 1818 took the lives of thousands and has entered history as the “Trail of Tears.” However, the largest loss of life occurred well before the creation of the reservations, and some of the most severe epidemics hit the Indians after minimal contact with European traders. Later, some colonists welcomed the large number of deaths and saw them as a sign of divine blessing that made the land of the natives available to them, but this does not change the basic fact that the Europeans did not come to the New World in order to infect the Indians with deadly diseases.

Ward Churchill not only agrees with Stannnard that the deaths from alleged “natural causes” must be considered part of the overall pattern of genocide against the Indians, but takes the argument a step further by charging a policy of biological warfare. The waves of epidemic disease that afflicted the indigenous populations during several centuries, he writes, “were deliberately induced, or at least facilitated, by the European invaders.” There was nothing unwitting or unintentional about the way the great bulk of North America’s native population disappeared. “It was precisely malice, not nature, that did the deed.”[52]

We do know of one instance of biological warfare against the Indians. In 1763, a particularly serious Indian uprising threatened the British garrisons west of the Allegheny Mountains. Sir Jeffrey Amherst, commander-in-chief of British forces in North America, concerned about his limited resources to put down the rebellion and disgusted by what he saw as the Indians’ treacherous and savage mode of warfare, wrote to Colonel Henry Bouquet at Fort Pitt: “You will do well to try to inoculate the Indians [with smallpox] by means of blankets, as well as to try every other method, that can serve to extirpate this execrable race.” It is not clear whether Bouquet carried out Amherst’s suggestion, though we know that he approved of it. It is documented that on or around June 24, 1763, two traders at Fort Pitt gave two visiting Delaware Indians two blankets and a handkerchief from the fort’s quarantined hospital. One of the traders, William Trent, noted in his journal: “Out of regard we gave them two blankets and a handkerchief out of the smallpox hospital. I hope it will have the desired effect.” Smallpox was already present among the tribes of Ohio, but some time after this episode there was another outbreak and hundreds of Indians died.[53]

During the Yorktown campaign of 1781, a British officer sent 300 smallpoxinfected blacks to the rebel plantations, and there may have been other instances where the British deliberately used smallpox as a weapon of war.[54] However, apart from Fort Pitt in 1763, no other cases of the deliberate use of smallpox against Indians have been recorded. The allegation of Ward Churchill that the US Army deliberately distributed smallpox-infected blankets to Mandan Indians in 1837[55] is a fabrication, unsubstantiated by any evidence. This instance of academic fraud was one of several cited by the Standing Committee on Research Misconduct at the University of Colorado, and led the Interim Chancellor of the University to announce on June 26, 2006 the initiation of dismissal proceedings against Churchill.[56]

The allegation that agents of the US government intentionally infected Indian tribes with smallpox is also at odds with the attempts of the federal government to vaccinate the Indian population. Vaccination against smallpox was developed by the English country doctor Edward Jenner in 1796, and in 1801 President Jefferson ordered the first Indians to be vaccinated. During the following three decades, this programme continued, though implementation was slowed by the resistance of the Indians, who suspected a trick, and by the lack of interest on the part of some officials. Still, as Thornton writes: “Vaccination of American Indians did eventually succeed in reducing mortality from smallpox.”[57]

The charge that the US government should be held responsible for the demographic disaster that overtook the American Indian population as a result of various deadly epidemics is thus unsupported by any valid argument or evidence. The United States did not wage biological warfare against the Indians; neither can the large number of deaths experienced by Native Americans as a result of disease be considered the result of a genocidal design. European settlers came to the New World for a variety of reasons, but the idea of infecting the Indians with deadly pathogens was not one of them. The experience of the American Indians thus calls into question the notion that it is possible to determine the occurrence of genocide by looking at results and consequences. The crucial role of disease in the decimation of the Indian population drives home the point that a huge death toll in and by itself is not proof of malfeasance or genocide. The stress of the Genocide Convention on intentionality is not a mere legalism.

Is there other evidence to support the charge that American Indians were the victims of genocide? Perhaps there is, though this evidence does not implicate the national government and involves massacres of small groups of Indians rather than the Indian people as such. The treatment of Native Americans by European settlers was often callous and brutal. Settlers on the expanding frontier treated the Indians with contempt, often robbing and killing them at will. In California especially, volunteer militias and vigilante groups at times displayed a flagrantly exterminatory mentality and murdered large numbers of Indians.

The Genocide Convention outlaws the destruction of a group “in whole or in part,” but does not address the question of what percentage of a group must be affected by the destructive acts enumerated in the convention to trigger the crime of genocide. The prosecutor of the International Criminal Tribunal for the Former Yugoslavia has declared that the definition requires “a reasonably significant number, relative to the total of the group as a whole,” though he added that the actual or attempted destruction should relate to “the factual opportunity of the accused to destroy a group in a specific geographic area within the sphere of his control, and not in relation to the entire population of the group in a wider geographic sense.”[58] The trial chamber in the Krstic case, involving the wholesale killing of Bosnian Muslims in Srebrenica, ruled that “although the perpetrators of genocide need not seek to destroy the entire group protected by the Convention, they must view the part of the group they wish to destroy as a distinct entity which must be eliminated as such.”[59] If this principle is adopted, an atrocity such as the Sand Creek massacre of November 29, 1864 during which a volunteer regiment of Western settlers attacked an Indian village and killed large numbers of women and children, even though limited to one group in a specific single locality, could be considered an act of genocide. Still, it is well to remember that a far larger number of Indians died from the epidemic diseases unintentionally introduced and spread by the white man than from outright violence. As the historian Francis Jennings has observed: “Not even the most brutally depraved of the conquistadores was able purposely to slaughter Indians on the scale that the gentle priest unwittingly accomplished by going from his sickbed ministrations to lay his hands in blessing on his Indian converts.”[60]


Intentionality is an important element in domestic law. The difference between homicide and murder, for example, turns on the degree of intent that is present in the act of taking life. The negligent killing of a pedestrian by a motorist is not the same as a deliberate assault that aims at the death of the victim. In the same way, I have argued in this essay, there is every reason not to ignore the role of intent in what is often called “the crime of crimes”—the destruction of an entire group of people or genocide. Proof of specific intent is necessary to find an individual guilty of genocide, and the role of intent is similarly crucial when the historian assesses an episode of mass death that occurred in the past. A large loss of life should be the point of departure for a searching investigation to determine responsibility, but in and by itself it should never be sufficient for a finding of genocide. The disregard of intentionality will create an incomplete or distorted picture and lead to false conclusions.

In the absence of a confession, the establishment of intent in mass deaths that occurred in the past is often difficult. Yet many times genocidal intent can be inferred from factors such as the scale of the atrocities committed or the deliberate targeting of victims on account of their membership in a particular group. “The emphasis on intent is important,” Kurt Jonassohn has correctly noted, “because it removes from consideration not only natural disasters but also those manmade disasters that took place without explicit planning. Many of the epidemics of communicable diseases that reached genocidal proportions, for example, were caused by unwitting human actions.”[61] To the victims it makes no difference whether they died because of a deadly epidemic or as a result of a planned programme of destruction. It does make a difference for the assignment of responsibility and guilt and, more importantly, for historical truth.

Notes and References

1. The Genocide Convention was signed on December 11, 1948, and came into force on January 12, 1951. For the text see: United Nations, Secretariat, Treaty Series, Vol 78, 1951, pp 277ff.

2. Alexander K. A. Greenawalt, “Rethinking genocidal intent: the case for a knowledge-based interpretation,” Columbia Law Review, Vol 99, No 8, 1999, p 2264.

3. Nehemiah Robinson, The Genocide Convention: A Commentary (New York: Institute of Jewish Affairs, 1960), pp 58-59.

4. William A. Schabas, Genocide in International Law (Cambridge: Cambridge University Press, 2000), p 245.

5. Greenawalt, “Rethinking genocidal intent,” p 2278.

6. Robinson, Genocide Convention, p 60.

7. Schabas, Genocide, p 255.

8. Resolution of Ratification adopted by the US Senate on February 19, 1986, and Title 18, Part I, Chap. 50A, § 1091, both quoted in Lawrence J. LeBlanc, The United States and the Genocide Convention (Durham, NC: Duke University Press, 1991), pp 253, 255.

9. Matthew Lippman, “The Convention on the Prevention and Punishment of the Crime of Genocide: fifty years later,” Arizona Journal of International and Comparative Law, Vol 15, No 1, 1998, pp 464-466.

10. Schabas, Genocide, p 214.

11. Quoted in William A. Schabas, “Was genocide committed in Bosnia and Herzegovina? First judgments of the International Tribunal for the Former Yugoslavia,” Fordham Journal of International Law, Vol 25, No 1, 2001, pp 49-50.

12. Krstic (IT-98-33-T), Judgment, August 2, 2001, para. 572, See also: John Hagan, Justice in the Balkans: Prosecuting War Crimes in the Hague Tribunal (Chicago: University of Chicago Press, 2003), p 172.

13. Krstic (IT-98-33-T), Judgment, April 19, 2004, para. 275, See also: Schabas, “Was genocide committed in Bosnia?,” New York Times, April 20, 2004. In a paper presented at a conference in Yerevan, Armenian, in April 2005, “The ‘odious scourge’: evolving interpretations of the crime of genocide,” Schabas has characterized recent attempts to broaden the concept of genocide by including “aiding and abetting” genocide or “complicity” in genocide as “not exactly elegant in their legal reasoning” (p 16).

14. Cited by Martin Mennecke and Eric Markusen, “The International Criminal Tribunal for the Former Yugoslavia and the Crime of Genocide,” in Steven L. B. Jensen, ed., Genocide: Cases, Comparison and Contemporary Debates (Copenhagen: Danish Center for Holocaust and Genocide Studies, 2003), p 336.

15. Jelisic (IT-95-10-T), Judgment, December 14, 1999, para. 139, The judgment can also be found in Andre´ Klip and Go¨ran Sluiter, eds, Annotated Leading Cases of International Criminal Tribunals, Vol 4: The International Criminal Tribunal for the Former Yugoslavia 1999-2000 (Antwerp: Intersentia, 2002), pp 669-697.

16. Akayesu ((ICTR-96-4-T), para. 523-24, See also: Schabas, Genocide, pp 222-223, and L. J. van den Herik, The Contribution of the Rwanda Tribunal to the Development of International Law (Leiden: Martinus Nijhoff, 2005), pp 110-112.

17. Isidor Walliman and Michael N. Dobkowski, introduction to Genocide and the Modern Age: Etiology and Case Studies of Mass Death (New York: Greenwood Press, 1987), p xvi.

18. Tony Barta, “Relations of genocide: land and lives in the colonization of Australia,” in Walliman and Dobkowski, Genocide and the Modern Age, p 238.

19. Barta, “Relations of genocide,” pp 247-248.

20. Ibid, p 240.

21. Frank Chalk, “Redefining genocide,” in George Andreopoulos, ed., Genocide: Conceptual and Historical Dimensions (Philadelphia: University of Pennsylvania Press, 1994), pp 56-57.

22. Office of the United States Chief of Counsel for Prosecution of Axis Criminality, Nazi Conspiracy and Aggression: Opinion and Judgment (Washington, DC: GPO, 1947), p 53.

23. The full text of the judgment can be found on the Court’s website

24. Henry R. Huttenbach, “Locating the Holocaust on the genocide spectrum: towards a methodology of definition and categorization,” Holocaust and Genocide Studies, Vol 3, No 3, 1988, pp 294, 297.

25. John Collier, Annual Report of the Secretary of the Interior (Washington, DC: GPO 1938), p 209, quoted in Wilcomb E. Washburn, ed., The Indian and the White Man (Garden City, NY: Anchor Books, 1964), p 393.

26. Helen Hunt Jackson, A Century of Dishonor: A Sketch of the United States Government’s Dealings with Some of the Indian Tribes (Boston: Roberts Brothers, 1888).

27. Ward Churchill, Indians are Us? Culture and Genocide in Native North America (Monroe, ME: Common Courage Press, 1994), p 38; Ward Churchill, A Little Matter of Genocide: Holocaust and Denial in the Americas, 1492 to the Present (San Francisco, CA: City Lights Books, 1997), p 4.

28. David E. Stannard, American Holocaust: The Conquest of the New World (New York: Oxford University Press, 1992), p 146.

29. Lenore A. Stiffarm and Phil Lane, Jr., “The demography of Native North America: a question of Indian survival,” in M. Annette Jaimes, ed., The State of Native America: Genocide, Colonization, and Resistance (Boston: South End Press, 1992), p 37.

30. Pap Ndiaye, “L’extermination des Indes d’Ame´rique du Nord,” in M. Ferro, ed., La livre noir du colonialisme (Paris: Robert Laffon, 2003), p 57.

31. Yehuda Bauer, “Comparison of genocide,” in Levon Chorbajian and George Shirinian, eds, Studies in Comparative Genocide (New York: St. Martin’s Press, 1999), p 38.

32. Jay David, The American Indian: The First Victim (New York: William Morrow, 1972), p 89.

33. Richard Drinnon, Facing West: The Metaphysics of Indian-Hating and Empire-Building (Minneapolis, MN: University of Minnesota Press, 1980), p 459.

34. Robert Lerner et al., Molding the Good Citizen: The Politics of High School History Texts (Westport, CT: Praeger, 1995), p 152.

35. Quoted in Jose´ Barreiro, “View from the shore: toward an Indian voice in 1992,” Northeast Indian Quarterly, Vol 7, No 3, 1990, p 16.

36. Kirkpatrick Sale, The Conquest of Paradise: Christopher Columbus and the Columbian Legacy (New York: Alfred A. Knopf, 1990), pp 281-282.

37. Churchill, “Genocide of native populations in the United States,” in Israel W. Charny, ed., Encyclopedia of Genocide (Santa Barbara, CA: ABC-Clio, 1999, Vol 2), p 436.

38. Ben Kiernan, “The genocide of Native Americans,” Bangkok Post, July 29, 2001.

39. Brian W. Dippie, The Vanishing American: White Attitudes and U.S. Indian Policy (Middletown, CT: Wesleyan University Press, 1982), p xv.

40. Shepard Krech, The Ecological Indian: Myth and History (New York: W. W. Norton, 1999), pp 83-84.

41. James Mooney, The Aboriginal Population of America North of Mexico (Washington, DC: Smithsonian Institution, 1928), p 2.

42. Russell Thornton, American Indian Holocaust: A Population History since 1492 (Norman, OK: University of Oklahoma Press, 1987), p 43.

43. Stiffarm and Lane, Jr., “The demography of Native North America,” pp 27-28.

44. Henry F. Dobyns, Native American Historical Demography: A Critical Bibliography (Bloomington, IN: Indiana University Press, 1976), p 1. See also his Their Numbers Became Thinned: Native American Population Dynamics in Eastern North America (Knoxville, TN: University of Tennessee Press, 1983).

45. Krech, The Ecological Indian, p 91; E. Wagner and Allen E. Stearn, The Effect of Smallpox on the Destiny of the Amerindian (Boston: B. Humphries, 1945), p 94; Karen Ordahl Kupperman, Settling with the Indians: The Meeting of England and Indian Cultures in America, 1580-1640 (Totowa, NJ: Rowman and Littlefield, 1980), p 5.

46. Dean R. Snow and Kim M. Lanphear, “European contact and Indian depopulation in the northeast: the timing of the first epidemics,” Ethnohistory, Vol 35, No 1, 1988, pp 15-33.

47. Alfred W. Crosby, Jr., The Columbian Exchange: Biological and Cultural Consequences of 1492 (Westport, CT: Greenwood Press, 1972), p 31.

48. Brenda Baker gives this figure for southern New England in “Pilgrim’s progress and praying Indians: the biocultural consequences of contact in southern New England,” in Clark Spencer Larsen and George R. Milner, eds, In the Wake of Contact: Biological Responses to Conquest (New York: Wiley-Liss, 1994), p 36. Estimates for other regions of the country yield a similar ratio. See e.g. the case of the Kalapuya tribe on the northwest coast in James L. Ratcliff, “What happened to the Kalapuya? A study of the depletion of their economic base,” The Indian Historian, Vol 6, No 3, 1973, p 27.

49. Ann F. Ramenofsky, Vectors of Death: The Archaeology of European Contact (Albuquerque, NM: University of New Mexico Press, 1987), p 171.

50. Stannard, American Holocaust, pp 137, 255, and “Uniqueness as denial: the politics of genocide scholarship,” in Alan S. Rosenbaum, ed., Is The Holocaust Unique? Perspectives on Comparative Genocide (Boulder, CO: Westview Press, 1996), p 179.

51. The standard work on the subject is Sherburne F. Cook, The Conflict between the California Indians and White Civilization (Berkeley: University of California Press, 1976). See also: James J. Rawls, Indians of California: The Changing Image (Norman, OK: University of Oklahoma Press, 1984).

52. Churchill, A Little Matter of Genocide, pp 2, 156, 151.

53. A. T. Volviler, “William Trent’s journal at Fort Pitt, 1763,” Mississippi Valley Historical Review, Vol 11, No 4, 1924, p 400; Elizabeth Fenn, “Biological warfare in eighteenth-century North America: beyond Jeffery Amherst,” Journal of American History, Vol 86, No 4, 2000, pp 1554-1558; Gregory Evans Dowd, War under Heaven: Pontiac, the Indian Nations and the British Empire (Baltimore, MD: Johns Hopkins University Press, 2002), p 190.

54. Fenn, “Biological warfare in eighteenth-century North America,” pp 1572-1573, 1580.

55. Churchill, A Little Matter of Genocide, p 155. The story of the “distribution of smallpox-infected blankets by the U.S. Army to Mandans at Fort Clark” also appears in Stiffarm and Lane, Jr., “The demography of Native North America,” p 32, and in Jaimes, State of Native America, p 7.

57. Thornton, American Indian Holocaust, p 101.

58. Quoted in Schabas, Genocide, p 237.

59. Krstic (IT-98-33-T), Judgment, August 2, 2001, para. 590, See also: William A. Schabas, The UN International Criminal Tribunal: The Former Yugoslavia, Rwanda, and Sierra Leone (Cambridge: Cambridge University Press, 2006), p 169.

60. Francis Jennings, The Invasion of America: Indians, Colonialism and the Cant of Conquest (Chapel Hill, NC: University of North Carolina Press, 1975), p 22.

61. Kurt Jonassohn, “What is genocide?,” in Helen Fein, ed., Genocide Watch (New Haven, CT: Yale University

The above appeared in the Journal of Genocide Research (2007), 9(4), December, 661–674; thanks to Hector.

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