The origins of genocide as a term stem from the work of one man: Raphael Lemkin. While the morbid topic of exterminating entire races for one reason or another (the wrong God, the wrong belief, the wrong race) had been pondered over, the Polish bibliophile was almost manically enthusiastic about identifying a means of what genocide actually meant. Who races, exterminated, for what?
In 1933, he made a proposal to the International Conference for Unification of Criminal Law held in Madrid, suggesting that a certain form of barbarity involving the elimination of racial, ethnic and religious groups be codified. The proposal drew heavily from the killings and displacements inflicted on Armenians during the First World War. For Lemkin, “barbarity” meant “the premeditated destruction of national, racial, religious and social collectivities”. By “vandalism”, he meant “the destruction of works of art and culture, being the expression of the particular genius of these collectivities”.
With the occupation of much of Europe by Nazi Germany, his thoughts turned to moving beyond the term “barbarity and vandalism,” finding in the actions of the Third Reich a “coordinated plan” centred on annihilating specific groups. For Lemkin, such a term – genocide – would cover virtually every conceivable grouping, “physical, biological, political, social, cultural, economic and religious.”
With the much to-and-fro about the definition, the resulting work yielded the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. From the start, it caused trouble. It certainly persisted in troubling Washington till the 1980s, when the civil religion of Holocaust commemoration pushed politicians to ratification in acts that seemed more than a touch disingenuous.
The familiar wording of Article 2 in the UNGC criminalises the intent – intention in seeking to “destroy, in whole or in part, a national, ethnical, racial or religious group”. This can comprise killing those members, causing serious bodily or mental harm, deliberately inflicting conditions “of life calculated to bring out the physical destruction in whole or in part”; the prevention of births, and the forcible transfer of children from one group to another.
Most conspicuous absences include culture and political groups, the latter very much a compromise reached to include states with an unhealthy appetite for persecuting, not to mention murdering, dissidents. Lemkin’s original suggestion of protecting the “genius” of a collectivity or grouping by criminalising acts destroying cultural expression is also absent.
Intent remains the inscrutable scarecrow, a bare creature that often remains hard to pin down. Jurists associated with the International Criminal Tribunal for the former Yugoslavia suggest that intention to commit genocide can be the only “reasonable inference,” a special intention deemed the dolus specialis. Those at the International Court of Justice reiterated that assumption. In its judgment on Tuesday, the ICJ rejected (15 votes to 2) Croatia’s claim and Serbia’s counter-claim unanimously (17 to 0) that both states had breached the Genocide Convention during the civil wars of the 1990s.
Croatian officials insisted in an application filed in July, 1999 that Serbia had breached the UNGC in Croatia between 1991 and 1995, its defining motif being the destruction of Vukovar; Serbia counter-claimed that Croatia had been responsible for breaching the convention in 1995 in the area of “Republika Sprska Krajina” in the offensive code named “Storm” that displaced 200 thousand Serbs.
In both instances, the ICJ seemed to flirt with the possibility that genocide was present. For one, the judges found that the “material acts perpetrated,” subsumed under what is termed the actus reus, constituted genocide. But the judges decided to pull back, severing the physical acts that seemed to imply genocide from the requisite mental state that should have accompanied such actions.
“Evidence of that intent is to be sought, first, in the State’s policy (although such intent will seldom be expressly stated), but it can also be inferred from a pattern of conduct, where such intent is the only reasonable interference to be drawn from the acts in question.” Serb actions against ethnic Croatians were “aimed at forced displacement of the majority of the Croat population from the regions concerned, and not at its physical or biological destruction.” Ditto that of the ruthlessly effective Storm operation.
The United Nation’s highest court had provided something of a double absolution, while insisting that both countries continue to seek appropriate avenues of reparations to victims and finding missing persons. Law remain the bluntest of instruments, often an imperfect one in the realm of reconciliation.
That said, the political forces were somewhat mellower than expected, though President Tomislav Nikolić did express satisfaction at the court’s acknowledgment about Operation Storm’s comprehensively effective nature. (A prevailing sense on the part of Serbs, not without some justification, is that less ink has been spilled on this chapter than others during the wars.) He had, however, little reason to crow.
Neither side wishes more bad blood on an issue that has reached a point of nationalist exhaustion. In the careful words of Serbian Justice minister Nikola Sekaković, “This marks the end of one page on the past, and I’m convinced we will start a new page on the future, much brighter and better” (Reuters, Feb 3). Croatia’s Foreign Minister, Vesna Pusić, expressed hope that the verdict would close “this historic chapter and moving on to a better and safe period for people in this part of Europe.”
The ICJ verdict itself casts light on Lemkin’s own, broader assertions about what genocide actually constitutes. Sociologists and anthropologists have sought to broaden the scope, seeing the legal distillation as crudely limiting. Lemkin’s understanding of a very specific type of atrocity was certainly broader – states will seek to eliminate groups and justify that in accordance with a political program or some such. Mass murder is often the feast of a very conspiratorial mind.
Refined analysis for such cruelties may seem inappropriate – but genocide remains the most terrible impulses of darkened reason, a matter of calculated killing rather than spontaneous bravado. Irving Louis Horowitz sought to see genocide as a result of “a structural and systematic destruction of innocent people by a state bureaucratic apparatus.”
Rather than being crimes of passion, they have often been crimes of a planned, bureaucratic state, a reductionist view that sees humans as disposable units, eliminated in the name of broader plans. Unfortunately, the legal guise of genocide remains troubled by political haggling, showing how a human rights convention is just a much the assessment of a politician as it is a lawyer.
Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: email@example.com