820) Genocide: A Crime Lost In Definition

Amid signs of progress in Darfur, a place United Nations Secretary General Kofi Annan called "little short of hell on earth," many have wondered why the international community failed to prevent the atrocity. Ever since the Holocaust, the phrase "never again" has emerged as a rallying cry to prevent such tragedies. However, it has also become a hypocritical slogan, a ritualistic phrase marking the passing of yet another genocide: never again the Khmer Rouge's obliteration of Cambodian society; never again the Rwandan genocide; never again the Srebrenica massacre. Without doubt, future recollections of the genocide in Darfur will be accompanied by the now-familiar "never again!"

In the 60 years since the Holocaust, the international legal system has failed to prevent the recurrence of genocide. That's why the system must be amended, because the UN's definition of the crime is so narrow and elusive that it makes prevention of genocide virtually impossible. The focus on proving "genocidal intent" and the definition's failure to cover certain groups of individuals have robbed it of efficacy, allowing governments to sit on the sidelines while genocide is committed. A new treaty calling for the prevention of other grave international crimes must be drafted to ensure that genocide is not repeated in the future.

"Genocide" is a relative newcomer to the English lexicon. Coined by Raphael Lemkin after World War II, the term was shaped as a response to the horrors of the Holocaust. It assumed legal form in the 1948 Genocide Convention, which declares that all UN states are required to "prevent and punish" the crime, defined as actions committed "with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such."

However, there are substantial weaknesses in this legal definition. First of all, the Genocide Convention does not cover all groups of victims. From 1975-1979, the Khmer Rouge killed over a million Cambodian citizens. However, as the victims did not constitute a distinct racial, ethnic, national, or religious group, they were not protected by the convention. Similarly, in Indonesia, President Suharto's persecution of hundreds of thousands of communists also fell outside genocide's ambit. Other large-scale persecutions may be legally ignored in the future because the victims had the misfortune of belonging to the "wrong" category.

Second, the crime requires that there exist a "special intent" to destroy the targeted group. It is arguable that such a special intent is what makes genocide the "crime of crimes," akin to the distinction, let's say, between murder and manslaughter. Murder is still murder, whether committed in the name of racial hatred, financial gain, or personal differences. In the eyes of the victims the different shades of intent are completely irrelevant. In addition, it is the near-impossibility of proving intent that has allowed governments to deny that genocide has occurred.

States throughout the world have repeatedly used semantic acrobatics when it comes to genocidal intent, to better avoid their own responsibility for preventing genocide. For example, in the mid-1990s governments described atrocities in the former Yugoslavia as "ethnic cleansing," not genocide. In 1994, the U.S. State Department referred to the slaughter of 800,000 Tutsi and moderate Hutus in Rwanda as "acts of genocide," rather than genocide per se.

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In 2004, U.S. President George W. Bush declared that the atrocities in Darfur constituted genocide, the first time in the UN's history that a member state accused another of committing the crime. However, a UN-appointed group of experts responded that the uncertainty over criminal intent made it impossible to know whether it was genocide until the crimes had been completed. This lay bare the Catch-22 of the Genocide Convention: Proving intent effectively meant allowing the killing to continue to ensure the definition was met. In effect, the experts were absurdly arguing that an autopsy was required to prescribe the cure.

These loopholes can be eliminated by passing a UN convention calling for the "prevention and punishment" of crimes against humanity, an equally odious but often ignored crime. Legally, crimes against humanity require that there be proof of "widespread or systematic" attacks directed against "any civilian population" with "knowledge of the attack." These requirements are both easier to identify and more relevant than those in the Genocide Convention. By identifying "any civilian population," certain groups are not singled out for protection while others are ignored. "Knowledge of the attack" means there is no need to delve into the killers' motives.

Today, there is no international convention or treaty outlawing crimes against humanity. The crime exists only in the statutes of various international criminal courts, such as those for Rwanda, the former Yugoslavia, Sierra Leone, and the International Criminal Court. Nonetheless, crimes against humanity are currently outlawed in all countries of the world. Such a treaty, therefore, would more firmly reiterate the obligation of states to punish and prevent that which they already accept as a crime.

There will no doubt be opposition to any change in the corridors of the UN, where it would hit up against states wanting a wide berth to defend their national interests. Nonetheless, a new treaty should be pursued to remove the existing pretense for inaction. In this way, governments would have one less excuse for averting their eyes and allowing crimes against humanity to be committed with impunity. Perhaps, then, "never again" would cease to be an empty catchphrase and regain a meaning it has tragically lost.

May 2006,
Resource : Daily Star